What J.A.I.L. Would
Right to Petition
(Edited by Ron Branson)
It should be noted that J.A.I.L. takes no position
re: tax laws.
As some of you may already know, on August 31, 2005, the WTP ("We
The People") federal lawsuit on the Right to Petition Congress for Redress of
Grievances was dismissed by U.S. District Judge Emmet G. Sullivan, District
of Columbia. It is on this subject I offer my thoughts regarding this
particular case. This attack upon the First Amendment is yet another Wake
Up Call to the People that we must act NOW-- and what better opportunity than to
get behind the South Dakota J.A.I.L. effort currently in progress? If you
haven't been convinced before, doesn't this tyrannical decision convince you
that we must implement the SOLUTION? NOW?
Get J.A.I.L. qualified for the 2006 ballot in South Dakota for the
sake of all American People! www.sd-jail4judges.org
call SDJA at (605) 231-1418.
We recently published a J.A.I.L. News Journal (9/13/05)
Special Grand Jury
(SGJ). It's important that everyone read the
J.A.I.L. Initiative and understand what it says. For purposes of this report,
I'm referring to the South Dakota initiative, since that's one we're actively
The SGJ is the operative body in the J.A.I.L. process. It is described in
¶3. A complaint is filed, the defendant-judge may file his answer stating
his defense, and the complainant may file a reply to the answer. The
SGJ examines both the complaint, the judge's answer, and the
reply thereto. Their examination is to be based on common sense and
does not require a Master's Degree in Government or Law to figure out. In fact,
a formal education by government schools may be detrimental because of the
brainwashing and propaganda that is taught, especially in law schools. (e.g.,
"The law is not what the law says, but what the judge says the law says.")
The foundation of J.A.I.L. is based on the most common denominator of
mankind, i.e., the Laws of Nature explained below. A good background for
understanding this analysis is the JNJ dated 10/23/04
Enforce The Constitution.
Summary of Basic Principles:
--Absolute (uncontrolled) power in man = tyranny (unnatural law).
--Tyranny = force against the Laws of Nature.
--To prevent tyranny, by Nature there must be an intermediate authority
between government and the governed. (a
--By Nature, man must first create that intermediate authority which
prescribes the powers and limitations of government.
--The only document that meets that function as "intermediate body"
(or intermediate authority) between the governed and the governors in this
country is the organic Constitution of 1787.
Discussion of Above
Begin with Laws of Nature: Existence; Reality (that's all there
A Critique of the Declaration of Independence- by Paul Wakfer.
"Laws of Nature" being entirely sufficient since nature - reality - is all that exists. [T]hey meant that all men have equal "rights"... They are unalienable specifically because they are a necessary consequence of the reality of the nature of human beings - i.e. a part of existence. They are essential and logically unalienable because their not being true would be contradictory to the immutable structure of reality. Nor, being true of reality, can valid rights ever be removed. All that can be done is to "break" them - i.e. to not allow them to take their natural course and to be fulfilled. [Tyrannical rule is unnatural law]. Many people take "life" to include property and logically this has merit. [The pursuit of happiness] is logically derivable from the rights of Life, Liberty and Property. [Happiness] can rightly only be made by the individual himself under the circumstances of full freedom of life, liberty and property. [Unalienable rights do not come from government, but exist apart from government].
For self-preservation, man must first form a charter for government
and thereafter delegate men --the government-- to execute that
charter. By nature, man is the creator of government by charter. [Our
Constitutional Republic is created by the People (or on their behalf) as a
matter of nature.]
And when a man seriously reflects on the
precariousness of human affairs, he will become convinced, that it is infinitely
wiser and safer, to form a constitution of our own in a cool deliberate manner,
while we have it in our power, than to trust such an interesting event to time
and chance. ... First, they had a king, and then a form of government; whereas,
the articles or charter of government, should be formed first, and men delegated
to execute them afterwards... [men existed
before kings and would thus be the creator of government, by
But as there is a peculiar delicacy, from whom, or in what manner, this business must first arise, and as it seems most agreeable and consistent, that it should come from some intermediate body between the governed and the governors, that is between the Congress and the people. ... [T]hat a charter is to be understood as a bond of solemn obligation [between the governed and the governors], which the whole enters into, to support the right of every separate part, whether of religion, personal freedom, or property... The members of Congress, Assemblies, or Conventions, by having had experience in national concerns, will be able and useful counsellors, and the whole, being empowered by the people will have a truly legal authority. ... A government of our own is our natural right: [emphasis added] Thomas Paine, Id.
The organic Constitution (1787) is the natural stabilizing force --the "glue"-- that holds the People and Government together. If the Constitution-- the intermediate authority between the People and Government-- is not respected by both bodies, then Government ceases to exist causing the People to be left with anarchy. Anarchy isn't caused by the People's disobedience to court orders; it is caused by the court's disobedience to the Constitution. J.A.I.L. will prevent anarchy.
This is demonstratively to reduce all to anarchy, and so
effectually to dissolve the government: for laws not being made for themselves,
but to be, by their execution, the bonds of the society, to keep every part of
the body politic in its due place and function; when that totally ceases, the
government visibly ceases, and the people become a confused multitude, without
order or connexion. Where there is no longer the administration of justice, for
the securing of men's rights, nor any remaining power within the community to
direct the force, [this is the need that J.A.I.L. will fulfill] or provide for the necessities
of the public, there certainly is no government left. Where the laws cannot be
executed, it is all one as if there were no laws; and a government without laws
is, I suppose, a mystery in politics, unconceivable to human capacity, and
inconsistent with human society. Of
the Dissolution of Government by John Locke
Plaintiffs of the WTP lawsuit relies upon the First Amendment, Right to Petition Government for Redress of Grievances.
--Redress = The act of receiving satisfaction for an injury sustained.
(Vol. 3 Bouvier's Law Dictionary, Third Rev. 8th Ed.)
--Grievance = An injury, injustice or wrong which gives ground for complaint because it is unjust and oppressive.
(Black's Law Dictionary, Rev. 4th Ed.)
--Remedy = The means employed to enforce a right or redress an injury.
(Vol. 3 Bouvier's Law Dictionary, Third Rev. 8th Ed.)
--Remedies for rights are ever favorably extended.
18 Viner's Abridgment. (Black's Law Dictionary, Rev. 4th Ed.)
It is the federal courts, as guardian of our rights, which have the responsibility of seeing to it that a remedy is provided when sought by petition to government. If the court fails, then the People must act, for what good are rights without a remedy?
To say that our rights are protected by the Constitution
is to rely on a piece of paper if we ignore the control of the powers of
government exerted by the people. It is the people who are the ultimate
guardians of the Constitution and the rights it guarantees...
[J.A.I.L. will fulfill this role]
A constitution alone cannot control government without republican forms, i.e., mechanisms that keep control of their representatives in the people's hands. [the function of J.A.I.L.] Constitutions are not self-enforcing.... [W]ithout a sovereign people in control determining what shall be the constitution and the form of government functioning thereunder, that determination is made by the governors themselves. [i.e., usurpation of power]They function as a higher power, and that higher power then becomes the sovereign, dictating government and its policies to all others. [J.A.I.L. will restore control to the sovereign People]
The only check upon arbitrary power is the
It is the law, and the law only, which can
successfully resist the encroachments of despotism. In the absence of defined
laws, and an independent judiciary to enforce them, the only check upon
arbitrary power is popular insurrection;... http://www.svpvril.com/comcivlaw.html
There is no other mechanism in existence that can adequately and consistently protect our rights. Power quickly leads to corruption, and the power to protect the rights of the people can be trusted nowhere but with the people themselves. Therefore it is the responsibility of the citizens themselves to look after their own rights.
Analyzing the WTP Court
The court relies on Smith v. Ark. State Highway Employees, Local
1315, 441 U.S. 463, 465 (1979) which states:
The First Amendment protects the right of an
individual to speak freely, to advocate ideas, to associate with others,
and to petition his government for redress of grievances.
And it protects the right of associations to engage in advocacy on behalf
of their members. NAACP v. Button, 371
U.S. 415 (1963); Eastern Railroad Presidents Conf. v. Noerr Motor Freight,
U.S. 127 (1961). The government is prohibited from
infringing upon these guarantees either by a general prohibition against
certain forms of advocacy, NAACP v. Button, supra, or by imposing sanctions for
the expression of particular views it opposes, e. g., Brandenburg v. Ohio, 395
U.S. 444 (1969); Garrison v. Louisiana, 379
U.S. 64 (1964). [emphasis in red
But the First Amendment is not a substitute for the
national labor relations laws....
The public employee surely can
associate and speak freely and petition openly, and he is protected by the First
Amendment from retaliation for doing so. See Pickering v. Board of Education,
-575 (1968); Shelton v. Tucker, 364 U.S. 479
the First Amendment does not impose any affirmative obligation on the government
to listen, to respond or, in this
added] to recognize the association and bargain with
[ Footnote 2
] See Hanover Township Federation of Teachers v. Hanover
Community School Corp., 457 F.2d 456, 461 (CA7 1972), quoting Indianapolis
Education Assn. v. Lewallen, 72 LRRM 2071, 2072 (CA7 1969) ("there is no constitutional duty to bargain collectively with an
exclusive bargaining agent"). [emphasis
The context of the above case relates to "national labor relation laws,"
"bargaining collectively with an exclusive bargaining agent" --not the
context of the instant WTP case. Dismissal of the instant case is
based entirely on the court's misapplication of law to the different factual
context of plaintiffs' case, and likewise the denial of their motion for leave
to amend as "futile."
The court also places federal tax laws above the Constitution, indicating
that the First Amendment right to petition for redress of grievances does not
apply to those laws.
By that ruling, Judge Sullivan contributes to the natural outcome
of popular insurrection that is bound to arise, because it goes against the Laws
of Nature. The judge has put himself at war with plaintiffs; and having
disregarded material facts of plaintiffs' case, having deliberately
violated plaintiffs' First Amendment right to Petition for Redress of
Grievances, and having intentionally violated due process of law, under the
specific provisions of J.A.I.L., the judge would not be entitled to immunity
from liability in a subsequent jury trial if taken by complainant.
Whosoever uses force without right, as every
one does in society, who does it without law, puts himself into a state of war
with those against whom he so uses it; and in that state all former ties are
cancelled, all other rights cease, and every one has a right to defend himself,
and to resist the aggressor.
Of the Dissolution of Government by John Locke (supra)
The ruling is void and a
16, American Jurisprudence, 177, we find the following: "The general rule
is that an unconstitutional statute, though having the form and name of law, is
in reality no law, but is wholly void, and ineffective for any purpose; since
unconstitutionality dates from the time of its enactment, and not merely from
the date of the decision so branding it. An unconstitutional law, in legal
contemplation, is as inoperative as if it had never been passed. Such a statute
leaves the question that it purports to settle just as it would be had the
statute not been enacted.
"Since an unconstitutional law is void, the
general principles follow that it imposes no duties, confers no rights, creates
no office, bestows no power or authority on anyone, affords no protection, and
justifies no acts performed under it. . . .
A void act cannot be legally consistent with a
valid one. An unconstitutional law cannot operate to supersede any existing
valid law. Indeed, insofar as a statute runs counter to the fundamental law of
the land, it is superseded thereby.
No one is bound to obey an
unconstitutional law and no courts are bound to enforce it. "
Our American Common Law by Howard Fisher and Dale Pond
The judge is a pretender of power:
If any agency of the Federal, State or County
government, including the court, would act as if it were Principal, and Freeman,
against its true Principal, the People, this would be an inversion of the legal
principle of Sovereignty of the People. By so acting, any agency of the
government, including the court, would be a pretender to the power, and as a
pretender, its acts would be a nullity and would not exist, at Law; that is to
say, that it would be null and void, and of no force and effect, at Law. That,
in fact, it would not be government at all, but would be a private, criminal
operation, imposing a rule of force, fraudulently pretending to be government,
since, in this country, the only legitimate function of government is to protect
the Rights and
freedoms of the People. Such acts are not unlike the privately owned and
operated Mafia who demands our money
(taxes, fees, etc.) in exchange for them not committing violence against us or
our property. Id.
J.A.I.L. is the means of
self-defense for an oppressed people:
Must the people then always lay themselves open to the cruelty and rage of tyranny? Must they see their cities pillaged, and laid in ashes, their wives and children exposed to the tyrant's lust and fury, and themselves and families reduced by their king to ruin, and all the miseries of want and oppression, and yet sit still? Must men alone be debarred the common privilege of opposing force with force, which nature allows so freely to all other creatures for their preservation from injury? I answer: Self-defence is a part of the law of nature; nor can it be denied the community, even against the king himself... John Locke, (supra.)
[written in the 1680s]
Bob Schulz, Chairman WTP, writes:
September 13, 2005
The Greatest Threat
There is no greater threat to Liberty in America, and consequently to Her
strength and durability, than the loss of the ability of the People to hold
their servant government accountable to the Principles of the Declaration of
Independence, the Constitution and the Bill of Rights.
With accountability, the cry for Freedom of each
individual is maximized and the Rights of the governed are secured.
Liberty is directly proportional to
accountability. The more the People are able to hold government accountable to
these essential principles, the greater their Liberty.
The First Amendment provides a guarantee of the
primary methods for exercising accountability. Of crucial importance is
the Petition clause, which unlike the other clauses (which enable personal
expression, belief and association) brings the People and their government into
a direct confrontation, and results in a public declaration of individual
Liberty or governmental Tyranny.
Petitioning the government for Redress of Grievances is nothing less than a peaceful rebellion of citizens seeking to keep their government in its proper place: as a servant of the People, created through a written Constitution for their service and protection.
The Petition is the period at the end of the
sentence on Liberty. It is the capstone Right, the ultimate peaceful
deterrent to the abuse of power in government, a protection against the theft of
Freedom from the People.
Listen to the words of Jefferson: "On every
government on Earth is some trace of human weakness, some germ of corruption and
degeneracy, which cunning will discover, wickedness insensibly open, cultivate
and improve. Every government degenerates when trusted to the rulers of the
People alone. The People themselves therefore are its only safe
The Petition Clause was positioned for the
People's use against an imperfect political process, a process that would favor
the majority and those who possess power and influence. The Petition Clause is
there to protect the individual from the whim of man and the whim of the
majority. It offers protection against abuses of government that infringe upon
the Fundamental Rights of both Individuals and the minority.
The Petition is a necessary tool available to
every individual, to remind and instruct those in government that their control
is always, and ultimately, subject to the greater power and control of the
Sovereign People that created it, bound -- not by the whims of men, but by the
essential principles of Liberty. Petitions keep the government's ears open to
its master's voice and they can sharpen popular attention to what the government
The Founders knew that the unequal and unorganized
citizens must have a practical, constitutional vehicle by which they could
secure protection against those who would employ and enjoy political domination
for their advantage. Indeed, it is this single principle - the Natural Right of
popular sovereignty, as excised through the Right to Petition, that
distinguishes our form of government from any that has arisen during the history
Confrontations between men and their governments have
never been without anguish or agony. In our system of governance, the Petition
is the fine line between peaceful and physical rebellion. Although Petitions may
bring painful revelations and result in difficulties, the Right to Petition is
the final check and balance that protects the People against the abuses of
government - and insures the continuation of our Founding Principles.
That said, a government that restricts or infringes
upon the Right to Petition commits a clear and grave error because it diminishes
accountability and the full enjoyment of Rights, Freedoms and Liberty.
To outright deny the Right to Petition is to invite physical rebellion.
Such is the recent decision http://www.givemeliberty.org/RTPLawsuit/CourtFilings/USDC-OrderDismiss08-31-05.pdf
by federal Judge Emmet Sullivan.
is horrifying in its implications. (see
In We The People et al., v. United States, et al., Sullivan, ruled that the government does not have to listen or respond to the People's Petitions for Redress of Grievances. Without the Right to a response, the People do not have the Right to
Petition. Popular Sovereignty thus becomes a quaint anachronism.
essence, a federal District Court has declared its allegiance with Congress and
the Executive, which have repeatedly ignored our Petitions. The decision
effectively declares that our government is no longer accountable to We the
People and that our servant government is unrestricted and untouchable in its
pursuit of activities and agendas that are clearly prohibited by our
Accountability contests between a free People and its
servant government should always be of a respectful nature and require minimal
encroachment or confrontation.
Unfortunately, Judge Sullivan's decision is anything but
Any reasonable person would agree that the People's Right To
Petition the government for Redress of constitutional torts includes the Right
to an honest response. The Right to bring grievances before the government is of
no value if the People do not have the Right to a respectful response.
Indeed, this is the essence of the Right.
Listen to the words of Chief Justice Marshall in Marbury v. Madison in 1803, "It cannot be presumed, that any clause in the Constitution is intended to be without effect."
Seldom has the Judiciary been so disrespectful of
the Rights of People - probably not since the court decision in Plessey v.
Ferguson, which held that "Black" people were "separate but equal" --
a patently absurd, political decision that was eventually overturned by Brown
v. Board of Education.
It's one thing for the political branches to deny
the Right to Petition, it is an entirely different matter for a federal judge,
standing as the Judiciary, to officially sanction the denial.
As was the case with Martin Luther King, Jr. in
Alabama and Ghandi in India, the enhancement of Liberty in any society must come
from the efforts of the People.
The history of man's struggle for Freedom teaches
us to become involved citizens and to become Petitioners when the normal
political process no longer meets our needs or fails us entirely.
Petitioners are first class citizens who, having
the courage of their convictions, act as free and thinking people. They rise and
engage themselves as involved, responsible citizens to make change where change
What must a Free People do after Petitioning the
Executive and Legislative branches for stepping outside the boundaries drawn
around their power by the war making, taxing, property, privacy, money and due
process provisions of the Constitution and then witness their government turn a
blind eye and a deaf ear to the Petitions?
What must a Free People do
when, after petitioning the Judicial branch, a federal judge effectively
declares the Petition clause "CANCELLED" --- declaring that this essential
provision of the First Amendment "is without effect"?
Under the present facts and circumstances, an
extraordinary commitment to Freedom by the People is necessary. Personal
activism must become a priority in order to stem the rising tide of
Accountability requires that the People hold their
Principles above not only the consequences that may result from the Petition
itself, but also the consequences that may result in attempting to hold
The lowest level of the federal Judiciary has now
spoken and Judge Emmet Sullivan has assured his noteworthy place in
history. After having profound questions of Constitutional Order and
Natural Rights placed before him, he has ruled that our Right to Petition was
intended to be without effect.
Working against despotism, and needing to complete
the historical and legal Record of our Petition process for future generations,
documenting our confrontation against modern tyranny, we will now move through
the federal appeals process, starting with the U.S. Court of Appeals and, if
necessary, the United States Supreme Court. We cannot allow it to be said that
we did not complete our judicial remedies.
It is now clear that within the coming months, we
will be living witnesses to the further demise -- or resurrection -- of a nation
where men once walked free, endowed with the Blessings of Devine
My personal actions in the future are offered to
encourage People to become involved as citizens and activists in the defense of
Liberty when, as now, Freedom has come under attack, and the political and
judicial processes designed to serve and protect us turn against us.
(Attorney Mark Lane writes:)
STATEMENT BY MARK LANE
On December 15, 1791, the most important statement in American history became effective law to guide our nation. The Bill of Rights began with the First Amendment, and that one sentence commitment to We the People is in large measure what makes us unique. The First Amendment directs that:
"Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
A number of ordinary Americans sought to exercise their right to petition the Government; they respectfully, imaginatively and persistently, over a period of years asked the Government to cite the law or regulations that constrained them to pay direct taxes on their labor or that authorized any number of other government activities that were well outside the limits of the Constitution. The Government refused to answer.
These folks then filed an action in the United States District Court for the District of Columbia asking the Court to issue a declaration that the Government was constrained to respond to the numerous petitions.
Remarkably, the Government responded to the Court that the right to petition did not exist. Well, you could send a letter if you wished but the Government was not required to respond or even read the petition. The government cited two cases that were plainly not applicable. It could not find an applicable case because, in fact, this case is a case of first impression, meaning that no court has ever considered this issue before.
Of course the courts are faced with serious
consequences when they consider issues of this magnitude. If the Government was
required to answer questions about the validity of income tax and if those
answers were inadequate to support the present income tax assumptions, the
Government would be denied access to funds to continue undeclared wars and other
costly (and largely unconstitutional) measures. The vast majority of funds
the government receives are generated from taxes upon labor with a small portion
being derived through taxes on corporations, and the corporate tax obligations
are shrinking each year.
A decision by the Court in this case stating
that circumstances had largely changed since 1791, that the Government's
obligations have increased to an extent that those who drafted the First
Amendment could not have expected and that, therefore, we cannot any longer give
full faith and credit to the promise made to our people when the nation was
founded, would have likely been a more accurate assertion by the judiciary of
its position. It would not have been acceptable and it would have stated, in
essence, that the First Amendment, or a least a substantial portion of it, had
But courts work their magic by seeking to find some
precedent when they make new law that is unprecedented. Here, the Court relied
upon the two inapplicable cases that were cited by the Government.
assessing the importance of this matter we must remember that whatever legal
arguments have been posed or considered, the Court ultimately relied upon the
Government's statement that the right to petition the Government for a redress
of grievances no longer exists.
Of course, we intend to seek a review of
that decision by a higher court. In the meantime, however, it is now the law of
the land that your right to petition the Government has been abolished by the
executive and judicial branches of the your
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF
Civil Action No.
THE PEOPLE, et al., )
UNITED STATES, et al., )
Plaintiff We the People Foundation for
Education, Inc. and several individually-named
including pro se plaintiff Robert L. Schultz, bring
against the United States of America, the U.S.
Department, the Internal Revenue Service, and the U.S.
of Justice. Plaintiffs' Complaint "arises from the
the President of the United States and his Attorney
his Secretary of the Treasury and his Commissioner of
Internal Revenue Service, and the failure of the United
Congress, to properly respond to Plaintiffs' Petitions
Redress of Grievances against their government,
grievances relating to violations of the U.S.
powers, taxing, money, and "privacy" clauses."
Amended Complaint ("Compl.") at 66. Plaintiffs also
the Executive Branch has retaliated against plaintiffs
petitioning the government and for "Peaceably Assembling
Associating with other individuals under the umbrella of the
the People Foundation for Constitutional Education and the We
Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 1
People Congress." Id.
Pending before the
Court are defendants' Motion to Dismiss
and plaintiffs' Motion to
Amend the Complaint. Upon
consideration of the motions, the
oppositions thereto, and the
replies in support thereof, and for
the following reasons, it is
ORDERED that the
defendants' Motion to Dismiss is GRANTED.
ORDERED that the plaintiffs' Motion for Leave to
Amended Complaint is DENIED.
I. Motion to
A. Standard of Review
A motion to dismiss for
failure to state a claim under
Federal Rule of Civil Procedure
12(b)(6) should be granted when
it appears "beyond doubt" that
there is no set of facts that
plaintiffs can prove that will
entitle them to relief. See
Sparrow v. United Air Lines, Inc., 216
F.3d 1111, 1114 (D.C. Cir.
2000). "Accordingly, at this stage in
the proceedings, the Court
must accept as true all of the
complaint's factual allegations."
Johnson v. District of Columbia,
190 F. Supp. 2d 34, 39 (D.D.C.
The First Amendment provides that "Congress shall make
law ... abridging ... the right of the people peaceably
Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 2
assemble, and to petition the Government for a
grievances." U.S. Const. Amend. I. Plaintiffs contend
therefore have a constitutional right to a response to
petitions they have filed with the various defendants, and
defendants have committed constitutional torts against
in failing to respond to their petitions. See Pl.
Def. Motion to Dismiss ("Pl. Opp.") at 9-10. The
however, has held that "the First Amendment does not
affirmative obligation on the government to listen, to
or, in this context, to recognize the association and
with it." See Smith v. Ark. State Highway Employees, Local
441 U.S. 463, 465 (1979). Plaintiffs' claims that the
are obligated to "properly" respond to plaintiffs'
shall thus be dismissed for failure to state a claim upon
relief may be granted.
Plaintiffs' claims based on the
"retaliatory actions" the
defendants have allegedly taken against
plaintiffs for exercising
their First Amendment rights are
similarly flawed. The
governmental actions plaintiffs complain of
plaintiffs threatening letters, placing liens on
raiding plaintiffs' homes or offices, and
forcing plaintiffs to
appear before administrative or other
tribunals. Compl. at ¶ 48.
It appears that because plaintiffs have
not received responses to
their petitions, they have "decided
to give further expression to
their Rights under the First
Amendment to Speech, Assembly and
Case 1:04-cv-01211-EGS Document
28 Filed 08/31/2005 Page 3 of 7
Petition, by not
withholding and turning over to government
taxes on Plaintiffs' labor - money earned
in direct exchange for
their labor (not to be confused with money
"derived from" labor)."
Pl. Opp. at 30-31.
Congress has provided methods for challenging
of such enforcement actions and to prevent
For example, taxpayers have the right to notice
and a hearing
before the federal government can file a notice of a
tax lien or
levy. 26 U.S.C. §§ 6320, 6330. Citizens have a right of
for wrongful levies or other collection actions and for
failure to release liens. Id. at §§ 7426(a). And taxpayers
sue to recover money erroneously or illegally assessed
collected by the government. Id. at § 7422(a).
do not, however, have a First Amendment right to
owed to the government and to avoid governmental
actions because they object to government policy.
See, e.g., Adams
v. Comm'r, 170 F.3d 173, 182 (3d Cir.
1999)("Plaintiffs engaging in
civil disobedience through tax
protests must pay the penalties
incurred as a result of engaging
in such disobedience."); United
States v. Rowlee, 899 F.2d 1275,
1279 (2d Cir. 1990)("The consensus
of this and every other
circuit is that liability for a false
or fraudulent return cannot
be avoided by evoking the First
United States v. Kelley, 864 F.2d
569, 576-77 (7 Cir.), cert. th
denied, 493 U.S. 811 (1989)(actions
that constitute more than
Case 1:04-cv-01211-EGS Document 28 Filed
08/31/2005 Page 4 of 7
mere advocacy not protected by the
First Amendment); Welch v.
United States, 750 F.2d 1101, 1108 (1
Cir. 1985) st
("[N]oncompliance with the federal tax laws is
conduct that is
afforded no protection under the First
States v. Ness, 652 F.2d 890, 892 (9 Cir.),
cert. denied, 454 th
U.S. 1126 (1981)("Tax violations are not a
protected form of
political dissent."); United States v.
Malinowski, 472 F.2d 850,
857 (3d Cir. 1973)("To urge that
violating a federal law which
has a direct or indirect bearing on
the object of protest is
conduct protected by the First Amendment
is to endorse a concept
having no precedent in any form of
organized society where
standards of societal conduct are
promulgated by some
injunctive relief that plaintiffs seek, that
is, "a temporary
injunction against the United States Internal
Revenue Service and
the Department of Justice and any other
agency of the United
States that arguably may act in this matter
under color of law,
from taking any further retaliatory actions
against the named
plaintiffs in this proceeding," is clearly
barred by the
Anti-Injunction Act, 26 U.S.C. § 7421. See, e.g.,
Lodging Institute, Inc. v. Regan, 809 F.2d 842, 844
1987)("The Anti-Injunction Act provides that 'no suit
purpose of restraining the assessment or collection of
shall be maintained in any court by any person.' 26
7421(a)(1982). The Declaratory Judgement Act provides
1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 5 of
that '[i]n a case of actual controversy within its
except with respect to Federal taxes ... any court of
States ... may declare the rights and other legal
any interested party seeking such declaration, whether
further relief is or could be sought.' 28 U.S.C. §
III 1985). By their terms, these statutes clearly bar
appellant's claims for injunctive and declaratory relief as
the [challenged IRS regulations].").
For the above cited
reasons, plaintiffs' complaint must be
dismissed for failure to
state a claim, pursuant to Fed. R. Civ.
Motion for Leave to File Amended Complaint
In light of the
preceding discussion and the Court's ruling
defendants' motion to dismiss the complaint,
plaintiffs' motion for
leave to amend their complaint to add
including the President of the United
States, the United States
Congress, the Commissioner of the
Internal Revenue Service and
others, as well as adding 1,600
plaintiffs, shall be DENIED as
futile. See James Madison Ltd. v.
Ludwig, 82 F.3d 1085, 1099
("Courts may deny a motion to amend a
complaint as futile ... if
the proposed claim would not survive a
dismiss.")(citations omitted); see also Nat'l Wrestling
Ass'n v. U.S. Dept. of Educ., 263 F. Supp. 2d 82, 103-04
(2003), aff'd, 366 F.3d 1047 (D.C. Cir. 2004), cert. denied,
S.Ct. 2537 (2005)(citing and discussing cases supporting
Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 6 of
district court's discretion pursuant to Fed. R. Civ. P.
deny a motion for leave to amend complaint on the
reasons set forth herein, it is hereby ORDERED that
motion to dismiss the complaint is GRANTED and
for leave to amend their complaint is DENIED.
An appropriate order
accompanies this Opinion & Order.
Signed: EMMET G.
U.S. District Judge
August 31, 2005
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