IN THE CRIMINAL COURT
OF KNOX COUNTY,
TENNESSEE
DIVISION 3
STATE OF TENNESSEE
)
Plaintiff, )
) Case No. 90252, 91484,
v. ) 90618, 90821
) Judge Leibowitz
CLIFFORD E. CLARK )
Defendant, )
===============================================================
REBUTTAL
TO WBIR’S RESPONSE TO OBJECTION TO MOTION TO QUASH SUBPOENAS AND MOTION FOR
SANCTIONS BY INTERVENORS WITH OFFER OF PROOF; EXCEPTION TO ORDER FOR SANCTIONS;
MOTION TO CORRECT CLERICAL MISTAKE; MOTION TO
ALTER OR AMEND JUDGMENT;
MOTION
FOR SANCTIONS AGAINST THE STATE
AND
INTERVENORS; MOTION FOR SHOW CAUSE FOR CONTEMPT AGAINST WBIR
===============================================================
Regarding the hearing in State v. Clark, held on 11
September 2009, petitioner John Lee, pro se, executive producer and host
of Pirate News TV and Pirate News Radio Show, and editor/writer/webmaster for
PirateNews.org (de facto “Intervenor”), hereby files this timely
rebuttal brief.
1. WBIR-TV’s
response states, “It is not entirely clear what relief the purported Intervenor
is seeking.”
Intervenor John Lee seeks reversal of order for
sanctions paid to WBIR, and reversal of order denying media access to videotape
proceedings. Despite Mr. Clark’s “massive stroke” after the hearing on 11
September 2009, the State has not dismissed the pending charges. Thus
Intervenor John Lee seeks media access to videotape those future hearings, via
“motion to reconsider” (sic – that’s what the State calls such motions in this
case).
Intervenor John Lee seeks permission to subpoena
witnesses regarding denial of media access, or in the alternative, Mr. Lee
seeks injunctive relief under the Tennessee Open Records Act, for inspection
and copying of all government contracts entered into by WBIR and it’s employees
and parent corporation(s), with delay of proceedings in State v. Clark
to allow media intervenors time to schedule inspection and copying of those
public records. This information is required to rebut the State’s only argument
against John Lee being “traditional news and educational media”.
Enclosed is an exhibit which includes the only
documents that Debbie Poplin, law director of the Law Department of City of
Knoxville Municipal Corporation, allowed to be released as a public record.
This exhibit is the government paycheck totals for Gene Patterson, anchorman
for WATE-TV News, while he was employed by City of Knoxville Municipal
Corporation as “deputy mayor” (a non-existent job position). Mr. Patterson was
paid $92,449.34 in 1999, and $98,048.32 in 2000. Mr. Patterson has since been rehired as
anchorman at WATE News. WATE has previously assigned a video crew to record
courtroom proceedings in State v. Clark, as approved by the Court. These
exhibit(s) are self-authenticating under Tennessee Rules of Evidence as
business records or public records.
Debbie Poplin continues to illegally deny John Lee
the statutory right to inspect government contracts and tax abatements
regarding WBIR and Knoxville News-Sentinel. These contracts/abatements total
over $20-million, according to news reports published by the News-Sentinel.
As a government contractor, WBIR’s government
contracts are open public records. If WBIR wishes its records to remain
private, its only alternative is to forever cancel all government contracts.
Perhaps WBIR is conspiring with City of Knoxville to
hide its contracts, for fear of being fined by Federal Communications
Commission for illegal propaganda on behalf of the government. FCC Rules
require news media to identify who funded all “Video News Releases”, including
when funded by government. FCC fines can total more than $100,000 per failure
to identify the source of each VNR. Billions of taxdollars are illegally spent
on illegal propaganda, according to the General Accounting Office in the United
States Congress (Michelle Chen, The New Standard, “Bush Administration Spent
$1.6B on ‘Propaganda’ Efforts,” 15 February 2006, citing a GAO Report).
Consolidated Appropriations Act of 2008. H.R. 2764
Prohibition on Publicity or Propaganda. Section 639.
“No part of any appropriation contained in this Act
shall be used for publicity or propaganda within the United States not
authorized before the enactment of this Act by the Congress.
While ordinarily a cause of action to force
inspection of public records would be filed in chancery court, the present
matter is before the criminal court. Thus it would be an imposition upon the
chancery court to file a secondary lawsuit, seeking evidence necessary for
immediate use in criminal court. The criminal court has authority to order
injunctive relief under equity, just as it has authority to order writs.
An order for injunctive relief to inspect public
records would negate the need for subpoena of witnesses to testify about those
public records. Without injunctive relief to inspect public records, the only
alternative is subpoena of witnesses to testify about those public records, as
required for due process.
City attorney Debbie Poplin, through her
subordinates, alleged that no public records exist of media
contracts/abatements, except for Gene Patterson’s $200,000 paychecks. At the
minimum, WBIR employee(s) can testify whether or not Debbie Poplin and her
subordinates are lying. In the court experience of John Lee, while litigating
other matters involving Debbie Poplin as law director (Lee v. City of
Knoxville and Sutherland Avenue Wrecker Service, 3:00-CV-693, United States
District Court for the Eastern District of Tennessee at Knoxville, Northern
Division), Debbie Poplin has no hesitation perpetrating fraud upon the Court,
and conspiring to perpetrate massive numbers of felonies against the residents
of Tennessee, proven by willfully and knowing ignoring federal court order (Hale
v. Tyree and City of Knoxville, Civ. No. 3-79-387, U.S. District Court, Eastern
District in Tenn., Northern Division, 1979), audit by city council, and reading
of the Federal Aviation Authority Authorization Act. Over 100 contractors of
City of Knoxville were fired as a result of the criminal investigation and
prosecution conducted by John Lee, in spite of Ms. Poplin’s obstructions of
justice. Thus WBIR employees can testify whether Debbie Poplin is guilty of
perjury by illegally hiding public records, if she were required to testify.
2. WBIR’s
Response argues that Intervenor John Lee’s objection to motion to quash is
untimely.
Tennessee Court Rules specifically require all orders
to be served upon the parties named in those orders, and no entry of judgment
can exist until process has been served (“[T]he court shall not give the successful
party relief, though he may be entitled to it, where the propriety of such
relief was not litigated and the opposing party had no opportunity to assert
defenses to such relief.. ”TRCP Rule 54.03). That order for sanctions against John Lee was not served
upon John Lee, proven by the fact that WBIR’s counsel wrote that order, and did
not list John Lee’s name on the certificate of service. Thus no entry of
judgment is allowed.
TRCP Rule 58. Entry of Judgment
Entry of a
judgment or an order of final disposition is effective when a judgment
containing one of the following is marked on the face by the clerk as filed for
entry:
(1) the signatures of the judge and all parties or counsel, or
(2) the signatures of the judge and one party or counsel with a certificate of
counsel that a copy of the proposed order has been served on all other parties
or counsel, or
(3) the signature of the judge and a certificate of the clerk that a copy has
been served on all other parties or counsel.
TRCP Rule 60.01 allows for remediation of clerical
mistakes (failure of court clerk to mail Court’s Order due to incorrect address
for John Lee). TRCP Rule 60.02 provides a one year time limit for Rule 60.01.
3. WBIR’s
Response states, “Intervenor demands service of process ‘of all orders,
motions, exhibits and briefs relevant to Intervenor John Lee’… and seeks
sanctions against attorneys for WBIR-TV… for refusal to serve process under
Tenn. Code 20-2-103.”
WBIR’s failure to serve process upon John Lee is
contempt of previous court order, that ordered copies of orders involving John
Lee to be mailed to John Lee.
Intervenor John Lee seeks show cause order why WBIR
should not be held in contempt of that prior court order in State v. Clark.
If intervenor WBIR is confused about proceedings
regarding media access in State v. Clark, perhaps counsel for WBIR
should read the case file in possession of the court clerk. After all, WBIR was
granted media access in State v. Clark.
4. WBIR’s
Response states, “WBIR-TV is not a party in the case.”
Intervention makes any intervenor a “limited party”,
by definition. Informal motion for media access by definition is a de facto
motion to intervene. Both John Lee and WBIR have made such informal motions to
intervene in State v. Clark, in addition to motions to intervene
regarding the right to issuance of subpoenas by intervenors.
In Shriver ex rel. Shriver v. Fratenal Order of
Eagles, 671 S.W.2d 859 (Tenn. Crim. App. 1984), the Tennessee Court of Criminal
Appeals failed to distinguish between a statute that creates merely a right or
interest in a claim or property, and one that creates a right to intervene. The
Court also cited TCA 8-6-109(b)(1), which gives the attorney general the duty
to direct all civil litigated matters in which the state may be interested.
The Tennessee attorney general routinely intervenes
in its own criminal cases, under civil asset forfeiture seizure statutes, as it
is currently doing in State v. Clark, attempting to force Mr. Clark to
forfeit $10,000 in seized firearms that were allegedly feloniously stolen by
deputies from a locked safe in the attic. In that instance, the Court did not
even require the State to intervene (as required by law) in order to seek de
facto forfeiture, and is forcing Mr. Clark to file a duplicate civil
action, thus imposing additional unnecessary litigation upon the circuit or
chancery court, and upon Mr. Clark’s personal finances, to recover Mr. Clark’s
stolen property.
Needless to say, the State is refusing to arrest and
prosecute the thieves who confessed to stealing Mr. Clark’s property. This
appears to be a common theme with “government” – one set of laws for “mere
citizens”, immunity from all laws for government employees. Such is the road to
fascism, communism and totalitarian dictatorship, and why this nation chose to
violently remove itself from the British Empire.
Tennessee Court of Appeals reversed denial of
intervention on the ground that the statute identified “appellants” as “parties
entitled to bring an action”, thus they were entitled to intervene. City of
Alcoa v. Tennessee Local Government Planning Advisory Committee, No.
E2002-00662-COA-R3-CV, 2003 Tenn. App. LEXIS 502 (Tenn. App. E.S. July 17,
2003).
Appeals of denial of motion for media access is
properly titled “motion to intervene” in the courts. In fact, counsel for WBIR
routinely titles its objections to media access as “motions to intervene” in
criminal cases, when it suits its purposes.
WBIR’s Response states, “WBIR-TV… was brought before
the Court in response to the State Subpoena that was issued against it”… that
“was improperly issued” and served on behalf of a non-party.” Thus “WBIR-TV, a
non-party, is not required to serve copies of any documents or papers on the
purported Intervenor, also a non-party”.
As stated in Paragraph 4 above, WBIR had previously
filed informal motion to intervene in this case, for purpose of media access.
So WBIR was already a “limited party” in State v. Clark. Four prior
judges in State v. Clark had ordered that John Lee was a “limited
party”, for purpose of media access. Prior Court order by Judge Leibowitz had
ordered that copies of orders pertaining to John Lee be served upon John Lee,
for purpose of denial of motion for media access. Yet even that order was never
served, for omission of correct address by the court clerk, in a clerical
mistake.
Constitutional due process requires service of
process upon John Lee, for WBIR’s motions for sanctions against John Lee.
5. WBIR’s
Response states, “Tennessee Rules of Civil Procedure only apply to civil actions…
There is no process in a criminal case.”
WBIR’s counsel apparently is of the opinion that the
defense or prosecution is never required to notify the opposition of motions or
requests for discovery, and the Court is not required to notify parties of
orders issued against them. In fact, in State v. Clark, the State
successfully argued that a brief by defense counsel was untimely, when it was
submitted to the Court for the first time with oral argument, without prior
notice, by lack of service of process of a copy of the brief.
Intervention in criminal cases is by definition a
civil action, proven by its omission from Tennessee Rules of Criminal
Procedure. Yet WBIR, and all other media persons, routinely use “intervention”
in motions for media access in criminal cases.
6. WBIR’s
Response states, “Intervenor’s demand for sanctions against WBIR-TV’s attorney
for refusal to serve process… is fatally flawed…. [A]ttorneys for WBIR-TV are
not required to serve copies of any papers or orders on the purported intervenor.”
WBIR’s counsel did serve process upon John Lee for
its “Response” brief, although counsel omitted John Lee’s name from its
Certificate of Service. Why perform service of process if not required to do so
by law?
Tennessee Court Rules, Tennessee Constitution and
United States Constitution require service of process as fundamental due
process. Rule 45(c) of Tenn. Rules of Criminal Procedure requires service of
process of all motions and notice of hearing, unless ex parte. Counsel
for WBIR would be advised to read the prior court file in State v. Clark,
before said counsel litigates as an intevenor in State v. Clark, and
before it bills it client. After all, professional journalists for WBIR were
covering every hearing in State v. Clark, until the hearing where John
Lee appealed denial of media access, and subpoenaed an employee of WBIR.
WBIR and WATE found it “entertaining” that Mr. Clark
represented himself pro se and “lost” in the preliminary hearing on the
charges of vandalism and discharge of a firearm, when it is extremely rare for
any lawyer to win dismissal in a preliminary hearing and is used mainly for
limited discovery. In fact, Mr. Clark ultimately prevailed by dismissal of
those charges. The tone was that “only a fool would try to represent himself pro
se”, ignoring the fact that 99% of the 200,000 annual “criminal
misdemeanor” trials in Knoxville are handled pro se, and even the Knox
County “public defender office” (a private law firm) illegally refuses to
handle any criminal misdemeanor cases (which should force automatic dismissal
of all such charges for indigent defendants). WBIR also found it
“un-newsworthy” to report Mr. Clark’s “massive stroke”, after “winning” the
“world-famous” red-light shooting case. (It has been said that no party ever
“wins” a lawsuit, no matter how much money they get paid in a verdict or
settlement, due to stress, losses, time and legal fees, unless your name is
Mrs. Paul McCartney, a prostitute who won over $30-million pro se in
divorce court.) Also in English court, pro se litigant William Penn set
the legal precedent that judges can no longer jail juries until the “correct”
verdict of guilty is rendered. Mr. Penn was then made the “largest landholder
on planet Earth” by the King of England, founding what later became the state
of Pennsylvania in USA.
7. WBIR’s
Response states, “Section 20-2-103 of the Tennessee Code Annotated is not
applicable to WBIR-TV…. Process cannot be issued by the Court Clerk in a
criminal case…. WBIR-TV’s attorneys are not officers who would be required to
mark the date on which they issued or executed process.”
Tenn. Code 20-2-103. Date of process shown —
Penalty for violation.
(a) The clerk, general
sessions judge or attorney issuing any process shall mark thereon
the day on which the process is issued; and the sheriff or other officer into
whose hands the process shall come to be executed, shall, in like manner, mark
thereon the day on which the sheriff or other officer received it.
(b) The
penalty for neglect of this requirement shall be a forfeiture of one hundred
twenty-five dollars ($125), to be recovered in any court having cognizance
thereof, by any persons who shall sue for the penalty, with costs.
Process.
1. The proceedings in any action or prosecution
<due process of law>. 2. A summons or writ, esp. to appear or respond in
court <service of process>.
-Black’s Law Dictionary, 7th Edition
Service.
1. The formal delivery of a writ, summons, or other
legal process. Also termed service of process. The formal delivery of
some other legal notice, such as a pleading <be sure that a certificate of
service is attached to the motion>.
-Black’s Law Dictionary, 7th Edition
Personal service.
1. Actual delivery of the notice or process to the
person to whom it is directed.
-Black’s Law Dictionary, 7th Edition
Certificate of service.
A section of a pleading or motion filed with the
court, usually contained separately on the last page, whereby the party filing
the pleading or motion certifies to the court that a copy has been sent to the
opposing party. A certificate of service is usually not included with the
initial pleading that a plaintiff files to begin a suit, because that pleading
is usually served with a formal summons, unless the defendant waives service.
But other pleadings and motions filed in a suit are usually required to have a
certificate of service attached to them.
-Black’s Law Dictionary, 7th Edition
“Service” and “process” are defined as not only
regarding complaints, arrest warrants, subpoenas and orders, but also motions.
All filings by parties must have either a summons or certificate of service, to
give notice to the opposition.
TCA 20-3-103, allowing for $125.00 sanction against
an attorney for failure to comply with service of “any process”
is in Title 20, Civil Procedure, which includes general sessions court, which
includes criminal cases. “Criminal” courts in Tennessee are a subdivision of
the Circuit Court, which has concurrent jurisdiction over civil and criminal
cases. In fact, most counties in Tennessee lack a “Criminal Court” division.
The purpose of a criminal division is to expedite litigation, not to create
additional litigation. Thus, for example, it is contrary to legislative intent
to force litigants to pursue duplicate causes of action in a so-called “civil
court”, by putting a criminal case on hold in a “criminal court”, when the same
matter can be immediately resolved by the “criminal court” under concurrent
jurisdiction.
Almost every municipal court in Tennessee, including
Knoxville City Court, fraudulently alleges it is a criminal court, contrary to
the Tennessee Supreme Court, Tennessee Constitution and United States
Constitution. Bankston v. State, 908 S.W.2d, 194-197 (Tenn. 1995); City
of White House v. Whitley, 979 S.W.2d 262, 268 (Tenn. 1998); Town of
Carthage v. Barnett, 840 S.W.2d 895 (Tenn. 1992); Tenn. Attorney General
Opinion No. 07-07; Moses v. City of Jellico, No. E2008-00004-COA-R3-CV
(Tenn. App. 2009) citing Bankston and Carthage.) In the Jellico
case, the city court was disbanded for fraudulently calling itself a criminal
court.
Intervenor John Lee is unaware of any case whereby an
intervenor for media access in a criminal case chose to enforce media access by
suing a civil action in a “civil court”. In such a case, would the media
intervenor sue the judge in his/her individual capacity, or official capacity,
or sue the State or the defendant for objecting? Such a civil action would be
absurd, of course.
That absurd situation is exactly what intervenor
WBIR, the State and the Court is demanding that John Lee do, to enforce the
Tennessee Open Records Act in chancery court, then apparently sue everybody in
circuit court for media access in the criminal cases of State v. Clark.
Such an absurdity would of course cause irritation with the judges of chancery
and circuit courts, for wasting their time by duplicate and triplicate
litigation in the same matter. Tennessee Open Records Act specifically allows
litigation “in any other court”.
As a cautionary tale, chancery court is to be avoided
at all costs, warned paralegal Charles Dickens in “Bleak House”, since
litigation can take on a life of its own, with no judge, counsel, clerk nor
party having any idea what’s going on, with cases taking decades without
resolution. The northeastern States banned chancery courts after winning the
Revolutionary War against the British Empire, for fear of lack of equity in the
King’s equity courts. Delaware allows chancery courts, to protect “Delaware
corporations” from ANY litigation.
If process cannot be issued by a court clerk in a
criminal case, perhaps someone ought to tell the court clerk. A court clerk
holds the same authority as a judge, regarding issuance of process. Court
clerks routinely sign “blank” subpoenas, for service by attorneys and pro se
litigants, under Tennessee Court Rules, which include both civil and criminal
rules of procedure.
All attorneys are by definition “officers of the
court”, as required by their “license” from the relevant court.
It is unclear whether pro se litigants are likewise
“officers of the court”, though presumably they are, since they have literally
“passed the bar” (walked past the bar to speak at the podium) and been allowed
by the Court to litigate on a case-by-case “license” (they just don’t get a
fancy certificate of “license” suitable for framing). Tennessee Supreme Court
Rules allow several exceptions to the “requirement” for attorneys-at-law to be
“licensed” lawyers, before they can represent clients; for example, law school
students can represent clients in any court, both civil and criminal, without a
supervising “licensed” attorney. “Power of attorney” contract allows any person
to represent any other person in any court, civil or criminal, as an
attorney-in-fact (“pro se for a pro se”), without being a “licensed”
lawyer.
According to the New York Times, 75% of judges in USA
are not licensed lawyers (“attorneys-at-law”), most judges never attended law
college, and many judges cannot even read (William Glaberson, New York Times,
“Broken Bench: In Tiny Courts, Abuses of Law and Power”, 25 September 2006).
Judicial commissioners and municipal judges are not required to be “licensed
lawyers” in Tennessee, and no general sessions judges handling criminal cases
were required to be “licensed lawyers” until Bankston v. State, 908
S.W.2d, 194-197 (Tenn. 1995). Justices of the peace are now called general
sessions court in Tennessee. As a justice of the peace in Monroe County,
Tennessee, Judge Ray H. Jenkins decided civil and criminal cases while
attending University of Tennessee College of Law before getting licenses to
practice law, and passed the bar exam one year before graduation from UT. Judge
Jenkins eventual defended over 600 murder trials. Such unlicensed judges
routinely issue subpoenas in civil and criminal cases in Tennessee today, as
attorneys-in-fact (pro se judge for a pro se municipal
corporation, by power of attorney-in-fact, which violates or makes
unconstitutional the state statute prohibiting corporations from being
represented pro se).
United State Supreme Court, overruling the California
Supreme Court and California statute, in Feretta v. California, 422 U.S.
806 (1975), ordered that legislatures and judges cannot ban pro se
litigation in criminal courts. Pro se litigants in criminal courts must
be allowed to serve their own subpoenas, signed by the court, as constitutional
due process requires it.
“Certificate of service” is by definition a sworn
statement by an attorney or pro se (as an “officer of the court”) that
service of process has been served properly upon the opposing party. Secret ex
parte motions and secret ex parte orders are not allowed by
Tennessee Court Rules, except in certain matters, such as indigency. In fact,
in the hearing on 11 September 2009, Judge Leibowitz threatened to arrest
Clifford Clark for contempt of court, for his ex parte “email motion pro
se” (without counsel’s knowledge) for objection to order and to correct
“clerical mistake”, regarding ex parte “evidence” by the State,
mentioned in that order. This ex parte Order was apparently never
corrected by the Court. During that same hearing, the State moved for sanctions
against Mr. Clark’s defense counsel Ron Newcomb, for his motion for discovery
of exculpatory evidence, pertaining to an audiotape of Mr. Clark’s statement to
a detective of the Knox County Sheriff Office. That was the same de facto ex
parte hearing where Mr. Lee was threatened with arrest if he dared speak or
to argue against WBIR’s motion for sanctions, for daring to lawfully subpoena
material witnesses to rebut the State’s objection to media access, on Mr. Lee’s
“motion to reconsider” denial of media access.
8. Paragraph
8 in WBIR’s Response denies future claims against WBIR.
Intervenor John Lee restates his motion for sanctions
for failure to serve process, motion for show cause for contempt of court order
requiring service of process upon John Lee (that was/is still in effect), and
restates his motion for inspection of all government contracts/abatements
entered into by WBIR, its employees, its contractors, and its parent
corporation(s).
Intervenor moves the clerk and Court to enter all
exhibits into evidence that have been filed with the clerk by John Lee in this
matter, including the relevant portion of the hearing transcript from 11
September 2009.
Intervenor does not seek oral argument, for fear of
arrest, after oral opinion by the Court on 11 September 2009.
Intervenor seeks written findings of fact and
conclusions of law regarding these motions, per Supreme Court Rule 30.D(2).
Respectfully submitted,
______________________
John
D. Lee II, pro se
executive producer
Pirate News TV & Pirate News
Radio Show
Knoxville, Tennessee
CERTIFICATE
OF SERVICE
I hereby certify that a true and accurate copy of the foregoing was
forwarded by U.S. mail, postage prepaid, to:
Ronald Newcomb, Burroughs, Collings and Newcomb PLC, 900 S. Gay St, Ste
600, Riverview Tower, Knoxville, TN 37901
Zane Scarlett, Knox County Attorney General, 400 Main St, Ste 168,
Knoxville TN, 37901
Scott Stair, attorney for intervenor WBIR, Bernstein, Stair & McAdams
LLP, Knoxville TN 37919
Knoxville News Sentinel, 2332 News Sentinel Drive, Knoxville TN 37921
(attorney unknown due to lack of service of process)
Debbie Poplin, Room 612, 400 Main St, City of Knoxville Municipal
Corporation, Knoxville TN 37901
on this ____ day of _______________, ______.
______________________
John D. Lee II, pro se
Pirate News TV
Knoxville, Tennessee