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Kathy Ann Garcia-Lawson: Appellant’s Initial Brief in 10-12369-B July 2, 2010

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JURISDICTION

(A) Kathy Ann Garcia-Lawson (hereinafter “Appellant”) filed her Second Notice

of Removal (Appendix, Excerpts of Record: Tab 2) on March 10, 2010 in response

to three orders entered by Judge Richard L. Oftedal (Exhibits C, F, H, I, K & L at

pages 37-40, 74, 86-88, 89-91, 112, and 115 of 119 of Document 1-1 [Notice of

Removal] Entered on FLSD Docket 03/10/2010 in Case 9:10-cv-80374-KAM].

(B) Appellant filed her Second Notice of Removal [Document #1 in Case 9:10-cv-

80374-KAM, pursuant to 28 U.S.C. §1443(1)] alleging that the specific four orders

C, F, I, K, & L cited, all filed within the 30 days prior to March 10, 2010, irrefutably

confirmed that Judge Richard L. Oftedal had no intention of allowing a Appellant to

raise any constitutional defenses to the Petition for Divorce against her when he

wrote on February 10, 2010: “the court will not address any constitutional issues or

attacks upon Chapter 61 [of the Florida Statutes] at the final hearing scheduled on

February 26, 2010”. 9:10-cv-80374-KAM, Document 1, Page 39 of 50, Entered on

FLSD Docket 03/10/2010.

(C) Judge Marra’s Order and Opinion Remanding Case to State Court entered on

FLSD Docket 03/16/2010 (less than one week after removal---See Appendix:

Excerpts of Record, Tab 3) was a “final decision of a District Court” from which

appeal may be taken under 28 U.S.C. §1291.

(D) 28 U.S.C. §1447(d) provides the statutory basis for this Court’s special

jurisdiction over Judge Marra’s Order and Opinion Remanding Case and within the

language of the statute “by appeal or otherwise” was also subject to post-trial

motions. Appellant Kathy Ann Garcia-Lawson accordingly, within 28 days of

March 16, on April 13 filed her Rule 59(e) Motion to Amend and Alter Judgment

and Motion for Revocation of Remand. (Document 8, file stamped by the U.S.


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District Clerk on April 13, 2010 but Entered on FLSD Docket 04/14/2010 in Case

9:10-cv-80374-KAM, See Appendix: Excerpts of Record at Tab 6).

(E) Appellant’s Rule 59(e) Motion focused on Judge Kenneth A. Marra’s

“Manifest Error” of failing or refusing to treat and analyze 28 U.S.C. §1443(1) as an

Exception to the “Well-Pleaded Complaint” Rule regarding Federal Question

Removal under 28 U.S.C. §§1331 & 1441.

(F) Judge Marra appeared to at least conditionally accept that “Garcia-Lawson is

correct that an application of the well-pleaded complaint rule is inapplicable to

removal under 28 U.S.C. §1443, the civil rights removal statute” he still concluded

that “this case is not properly removable under that statute,” because of the

application of the first prong of the “Johnson” rest, namely that: “First i t must

appear that the right al legedly denied arises under federal law

providing for specif ic civi l r ights stated in terms of racial equali ty.”

Case: 10-cv-80374-KAM, Document 9, Entered on FLSD Docket 04/19/2010, Page

2 of 5, see Appendix: Excerpts of Record, under Tab 7.

(G) In summary, BUT FOR the “race factor”---the judicial gloss imposed on a

racially neutral statute, the District Court had removal jurisdiction over the state

court action pursuant to 28 U.S.C. §§1343 (Civil Rights Jurisdiction) asserted by

removal from state court pursuant to 28 U.S.C. §1443(1), which is a congressionally

mandated statutory exception to the “well-pleaded complaint” rule applied to

ordinary “Federal Question” Removals” under 28 U.S.C. §1441(a) pursuant to 28

U.S.C. §1331: Appellant asks: does RACE-BASED DISCRIMINATION

OPERATE TO DENY HER OF ACCESS TO THE COURTS, WHEN ALL

OTHER ELEMENTS OF CIVIL RIGHTS REMOVAL ARE PRESENT?

(H) It is this subject of racial equality which serves as the focus of Kathy Ann

Garcia-Lawson’s present, Second Appeal of a Judge Marra Order of Civil Rights


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Remand: Appellant asks that this court review the racial classification and racial

discrimination scheme set up and imposed by the Supreme Court of the United

States in Georgia v. Rachel , Greenwood v. Peacock , and Johnson v.

Mississippi as a Federal law predating Univ. of Cal. v. Bakke, 438 U. S. 265,

(1978), Richmond v. Croson, 488 U.S. 469 (1989) and Adarand Contractors

v. Pena, 515 U.S. 200, 227 (1995) and then and there to apply the “strict scrutiny”

test to this race-based inequality in the application and enforcement of the law

relating to civil rights removal under 28 U.S.C. §1443.

(I) Judge Marra denied Appellant’s Rule 59(e) Motion on April 19, 2010 without

awaiting responses, which were not due based on the filing date until April 30, 2010,

as shown on the Clerk’s Docket Report at Tab 1, page 2). Kathy Ann Garcia-

Lawson time filed her Notice of Appeal on May 17, 2010, which was within 30 days

of the denial of her Motion to Amend or Alter Judgment.

(J) In that Petitioner Jeffrey P. Lawson filed no motions for relief with the Court

in this case at all and has by writing indicated that he does not intend to file anything

with this court, Removing Respondent Kathy Ann Garcia-Lawson has herein

appealed pursuant to 28 U.S.C. §1447(d) from an order which disposed of all

parties claims to the United States Court of Appeals for the 11th Circuit, in which

jurisdiction lies, as noted above, under 28 U.S.C. §1291.

SUMMARY OF ARGUMENT

(K) The Supreme Court of the United States held in Greenwood v. Peacock

that “Under § 1443(1), the vindication of the defendant's federal rights is left

to the state courts except in the rare situations where it can be clearly

predicted by reason of the operation of a pervasive and explicit state or

federal law that those rights will inevitably be denied by the very act of

bringing the defendant to trial in the state court. Georgia v. Rachel, ante;


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Strauder v. West Virginia, 100 U.S. 303.” 384 U.S. 808, 828, 86 S.Ct. 1800,

1812, 16 L.Ed.2d 944, 957 (1966).

(L) Judge Richard L. Oftedal, by his express invocation and application of Florida

Law (Chapter 61), showed and confirmed that by the operation of a pervasive and

explicit state law that Kathy Ann Garcia-Lawson’s rights to petition for redress of

the grievances embodied in her “constitutional issues or attacks” and assertions of

her right to due process of law, to be free of self-incrimination, as well as her right

to jury trial, would inevitably be denied, infringed, and violated [and all of Kathy

Ann Garcia-Lawson’s asserted rights ultimately were denied, in the kangaroo,

ludicrous, mock, and nugatory trial which Judge Oftedal conducted on

February 26, 2010 and in the Final Judgment of Dissolution which he entered

on April 29, 2010] by the very act of bringing the defendant to trial in the state

(15th Florida Judicial Circuit, Domestic Relations) court.

(M) These facts, by themselves, should be enough to invoke the civil rights

removal jurisdiction of the Federal Courts, especially in light of Judge Oftedal’s

absolute and conclusive statement that “the court will not address any constitutional

issues or attacks upon Chapter 61 at the final hearing scheduled on February 26,

2010” so that there would be no possibility of “gain or los[ing]” these issues “by entry

of a final judgment or decree” such as the one finally entered [albeit after the present

case was removed and remanded by the United States District Court to the Florida

Fifteenth Judicial Circuit Court in and for Palm Beach County, and in fact after the

denial of the Appellant’s Rule 59(e) motion, but before the filing of the notice of

appeal which invoke this Court’s continuing special review jurisdiction under 28

U.S.C. §1447(d).]

(N) Judge Richard L. Oftedal’s belief that Florida Marital Dissolution law

mandated that he award Jeffrey P. Lawson’s Petition for Divorce and ignore all of


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Appellant’s assertions of state and federal constitutional rights, including but not

limited to those secured by 42 U.S.C. §§1981 & 1982, but also the First, Fifth,

Ninth, and Fourteenth Amendments to the United States Constitution.

(O) Appellant Kathy Ann Garcia-Lawson admits, at this point in time and

litigation, that Judge Richard L. Oftedal’s application of Chapter 61 and other

relevant provisions of Florida statutory law is consistent with the customs, practices,

and policies illegitimately enforced under color of unconstitutional law by all the

Circuit Courts and Circuit Court Judges and Clerks of the State of Florida, but this

state-wide custom, practice and policy REINFORCES AND SUSTAINS, rather

than undermines, the use and invocation of of 28 U.S.C. §1443(1) removal under

the above-cited language of Greenwood v. Peacock relating to the Second Prong

of the Two Prong Test of Johnson v. Mississippi, namely that “Second, it must

appear, in accordance with the provisions of §1443(1), that the removal Petitioner is

“denied or cannot enforce” the specified federal rights in the courts of the state.”

(Appendix: Excerpts of Record under Tab 7: Case 9:10-cv-80374-KAM, Document

9, Entered on FLSD Docket 04/19/2010, Page 2 of 5.)

(P) Appellant contended below and continues to contend that Judge Richard L.

Oftedal’s infringement on her rights were in no sense isolated, idiosyncratic, or

unique to this case, but were (at least in Judge Oftedal’s interpretation and

application of the law) absolutely required by Florida state customs, practices, and

policies to be violated programmatically and without hope of variance in one single

fixed, predetermined outcome.

(Q) Florida statutes, both on their face and as applied, are the statutory program

which render all dissolution actions in Florida nugatory: there is only one possible

outcome of the central question, and that is dissolution of the marriage and

destruction of the family as a unit.


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ISSUES PRESENTED FOR REVIEW

I. DOES 28 U.S.C. §1443(1) CONSTITUTE AN EXCEPTION TO THE

“WELL-PLEADED COMPLAINT” RULE REGARDING REMOVAL?

II. HAVE THE COURTS PROPERLY IMPLEMENTED SPECIAL

STATUS EVIDENT IN CONGRESSIONAL INTENT BY A NARROW

CONSTRUCTION OF 28 U.S.C. §§1943(1) in light of 28 U.S.C. § 1447(d)?

III. HAS KATHY ANN GARCIA-LAWSON ADEQUATELY PLEAD THE

CERTAINTY OF DENIAL OF HER FEDERAL RIGHTS ACCORDING TO

THE LETTER OF STATE LAW AS OFFICIALLY APPLIED BY THE STATE

COURTS?

IV. ARE FREEDOMS to the FREE EXERCISE of RELIGION in

the absence of GOVERNMENTAL LAWS RESPECTING an

ESTABLISHMENT of RELIGIOUS RITES and RULES, as well as

FREEDOM of CONTRACT as well as the EQUAL RIGHTS TO

ENFORCE CONTRACTS in MARRIAGE and FAMILY

FORMATION GUARANTEED by FEDERAL LAW?

V. DO the FLORIDA DOMESTIC RELATIONS LAWS,

INCLUDING LAWS REGARDING INITIAL LICENSING and

DISSOLUTION PROCEDURE, as well as MANDATORY STATE

SUPERVISED CHILD CUSTODY ARRANGMENTS OPERATE SO

AS TO ABRIDGE, INFRINGE, and VIOLATE the FEDERAL


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FREEDOMS to FREE EXERCISE and FROM GOVERNMENTAL

LAWS RESPECTING an ESTABLISHMENT of RELIGION?

VI. DO STATE-LICENSED MARRIAGE AND STATE-

SUPERVISED DIVORCE WITH MANDATORY STATE

REGULATION OF CHILD CUSTODY POST-DIVORCE VIOLATE

THE FIRST, FIFTH, NINTH, AND FOURTEENTH

AMENDMENTS?

VII. WHAT IS THE CONGRESSIONALLY INTENDED ROLE OF

THE FEDERAL COURTS IN SUPERVISING THE

ENFORCEMENT OF FEDERAL RIGHTS IN THE STATE

COURTS: the relat ionship of civi l r ights removal under 28 U.S.C.

§1443 to civi l r ights injunctions under 42 U.S.C. §§1983, 1988(a),

and the tr io: DOMBROWSKI, YOUNGER, & MITCHUM?


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STATEMENT OF THE CASE (APPEAL OF REMAND OF CIVIL RIGHTS REMOVAL)

Kathy Ann Garcia-Lawson appeals Judge Kenneth A. Marra’s remand of

her second notice of civil rights removal pursuant to 28 U.S.C. §1443(1) entered

on March 17, 2010, her Rule 59(e) Motion having been overruled on April 19,

2010. The essence of Judge Marra’s ruling is one which imposes a racial gloss on

the racially neutral statutory language of 28 U.S.C. §1443(1), a racial gloss which

should now, in light of the past 32 years of Supreme Court jurisprudence, be

reviewed under a standard of “STRICT SCRUTINY”.

Kathy Ann Garcia-Lawson’s central contention in this appeal is

simply this: THE FEDERAL JUDICIAL POLICY OF automatic and non-

discretional RACIAL DISCRIMINATION IN THE ENFORCEMENT OF

CIVIL RIGHTS REMOVAL (28 U.S.C. §1443) AND EQUAL ACCESS TO

THE COURTS TO ENFORCE CONTRACT AND PROTECT PROPERTY

(42 U.S.C. §§1981-1982) AS INVOKED AND APPLIED BY Judge

Kenneth A. Marra VIOLATES EQUAL PROTECTION AND MUST NOT

BE ALLOWED TO SURVIVE STRICT SCRUTINY.

Judicial doctrines, formulations, or policies which alter plain statutory

language, as well as any other species of law, should be subjected to the same

exacting test whenever decisions are made on race-based schemes categorizing

people as favored or disfavored according to their skin color:

Garcia-Lawson has not met the first prong of the Johnson removal test, i.e., that the right allegedly denied her arises under a federal law providing for a specific right to RACIAL equality. Garcia-Lawson’s contentions have nothing to do with RACIAL equality.

Case 9:10-cv-80374-KAM, Doc. 9, Entered FLSD Docket 04/19/2010, p. 5 of 5 (bold capital emphasis added)

It is time to break the racial lock on this, one of the most important civil rights

statutes ever enacted, and on two closely related statutes, 42 U.S.C. §§1981 &


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1982, which retain archaic, Reconstruction era racial language. 28 U.S.C. Section

1443 states as follows: Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending: (1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;

(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.

On its face, this statute is color-blind, makes no reference to race, and is

absolute. In practical application, the Federal Courts have rendered this statute

all but nugatory. Anyone who wishes to exercise civil rights removal in the

United States today must be prepared to fight to overturn one of the oddest relics

of Jim Crow segregation imaginable: Civil Rights actions are still, in large part,

said to be available only to cure RACIAL discrimination, and all other kinds of

civil rights abuse are largely left immune, literally immunized, and untouched by

the Constitution, unlimited by any constraints imposed by fundamental rights or

human dignity.

Appellant submits that the proper purpose of civil rights removal, exposed

by the statutory language, is to provide a federal forum to address systematic

denials of equal access to the courts and denial of due process. It should be

available to protect and prevent the creation of statutory classes, must ask the

courts to analyze the 44 year old judicial construction and application of Civil

Rights Removal (28 U.S.C. §§1443(1), 1447(d)) by application of the “strict


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scrutiny” test applicable all race-based schemes (even those called “benign”) and

give that statute the full breadth and strength implicit in the plain language

enacted by Congress. 28 U.S.C. §1443(1), a statute tracing its history back more

than a hundred and thirty five years, as written, adopted, and codified by

Congress into the positive law of the United States, ought to be one of the most

powerful engines of civil rights enforcement under the constitution.

The language of 28 U.S.C. §1443(1) is inclusive, rather than exclusive, but it

the United States Supreme Court gave it an unconstitutionally (racially restricted

as well as procedurally and factually) narrow construction in 1966, in the paired

cases of Rachel v. Georgia and Greenwood v. Peacock, stating that the

statute was only available where civil rights were denied as a matter of racial

discrimination. From this narrow vantage point---and from this statement that

only defendants alleging cases of racial discrimination may remove the court has

never retreated, last ruling on 28 U.S.C. §1443(1) in Johnson v. Mississippi in

1975, and lower courts have unquestioningly followed.

RELIEF REQUESTED: MAKE CIVIL RIGHTS REMOVAL RACIALLY NEUTRAL AND COMPLETELY COLORBLIND

Appellant submits, and asks this court to find, hold, and unequivocally rule

and issue its mandate that: the racially unequal application of 28 U.S.C. §1443(1)

is an affront to all recent U.S. Supreme Court Jurisprudence since Regents of

the UC v. Bakke, 438 U.S. 265 (1978), City of Richmond v. Croson, 488

U.S. 469 (1989), and Adarand v. Pena, 515 U.S. 520, 527-8 (1995).

It is specifically time to command the United States District courts to allow

civil rights removal so that all Appellant and all similarly situated defendants in

Florida Marital Dissolution and/or Child Custody and/or Property Division cases

(or any other state statutory scheme in which fundamental constitutional rights

are routinely and systematically trampled or even obliterated, such as foreclosure


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and eviction proceedings) will be able to put on evidence. It would appear from

the published cases examined by Appellant that ONLY the Defendants in Rachel

v. Georgia have ever been allowed to do so, and that happened in 1966. To

strike the race-based elements of Civil Rights Removal is only to follow the plain

language of the statute and give Congressional language its plain broad meaning.

Appellant is satisfied with and does not request in any close to a complete

reversal of Georgia v. Rachel, Greenwood v. Peacock, or Johnson v.

Mississippi, but only the excision of the racial criteria as unconstitutional.

ARGUMENTS ON APPEAL

Appellant submits that she has alleged and can prove by clear and

convincing evidence all the non-racial or racially neutral criteria imposed on the

invocation of 28 U.S.C. §§1443(1) and 1447(d) by the U.S. Supreme Court in

Greenwood v. Peacock, Georgia v. Rachel, and Johnson v. Mississippi.

In fact, Appellant insists that her case is removable precisely because of the

direct, in fact the perfectly aligned, factual fit between the evidence concerning

Florida Dissolution and Florida Divorce statistics and the above-quoted language

of Greenwood v. Peacock that:

“Under § 1443(1), the vindication of the defendant's federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court. Georgia v. Rachel, ante; Strauder v. West Virginia, 100 U.S. 303.” 384 U.S. 808, 828, 86 S.Ct. 1800, 1812, 16 L.Ed.2d 944, 957 (1966). The condition of automatic and systematic denial of rights by reason of the

operation of pervasive state and (as construed) Federal law does in fact apply to

all proceedings. The Florida marital formation and dissolution statutes

(especially Chapter 61) were enacted, not quite uniquely, with express


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discriminatory intent and effect creating disparate classes of litigants more

draconian than most, are designed to obliterate the following fundamental

Constitutional freedoms (either included as limitations on state power in the

original constitution or incorporated by the Fourteenth Amendment to the

states): (1) freedom from laws tending to establish forms and cannons of religious

or moral belief and practice in violation of the First Amendment, (2) freedom to

engage in the free exercise of religion, freedom from statutes impairing the

obligations of contract, (3) freedom to petition for redress of grievances, (4)

freedom from deprivation of private property for public use without just

compensation, (5) freedom from deprivation of life, liberty, or property without

due process of law, (6) the right to jury trial in all cases where the matter in

controversy exceeds $25.00, (7) freedom to exercise all rights retained by the people

and not specifically limited by the constitution, (8) the right to be free from

involuntary servitude, (9) the right to equal protection of the laws.

So great is the weight of state policies and statutes forbidding any contest

against Florida Dissolution of Marriage prior to effecting what is in effect an

unconstitutional deprivation of multiple liberty and property interests under color

of law that even freedom of speech itself is suppressed (along with its several First

Amendment partners, Freedom of Religion and the Right to Petition for Redress of

Grievances). Judge Kenneth A. Marra threatened, but did not actually impose,

sanctions on Appellant Kathy Ann Garcia-Lawson for being an “obstructionist”

and trying to slow or delay the prosecution of what he, like Judge Richard L.

Oftedal, apparently regarded as an inevitable, unidirectional process.

Judge Marra’s threat of sanctions for filing a Notice of Civil Rights Removal

whose only defect is the absence any direct of racial discrimination, when this

standard itself is reprehensibly antiquated and overruled and outlawed by all of the


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recent civil rights jurisprudence of the Supreme Court, is nothing short of

reprehensible. And even so, Appellant has raised an indirect issue of statutes based

on race within the standards of Johnson v. Mississippi, as quoted above: “First i t must appear that the right al legedly denied arises under federal law providing for specif ic civi l r ights stated in terms of racial equali ty.”

Accordingly, here there is a direct issue derived from a statute framed in terms of

racial equality, in that Appellant has invoked the protections of 42 U.S.C. §§1981-

1982, which do frame equality expressly in terms of racial equality. As noted, the

persistence of such federal judicial policy in the face of “strict scrutiny of all race-

based schemes, even ones called “benign”” itself raising issues on which this court

must rule in the present appeal) which must be stricken down, suggests that Marra,

with Oftedal, believes that dissolution of marriage takes precedence over the

fundamental rights guaranteed in the United States and Florida constitutions.

Appellant submits that it is nothing short of judicially abusive conduct that

she has been threatened with sanctions after a U.S. District Court’s denial of her

right to present evidence showing (1) that the outcome of all Florida Dissolution

cases following the same is uniformly fixed and predetermined patterns, required

simultaneously by Florida (especially Chapter 61) statutes, court rules and practices

having the force or effect of law relating to Florida marriage, family formation and

definition, marital dissolution, and child custody, as well as other official customs,

practices, and policies of the state of Florida relating to marriage, child rearing,

property division, and divorce, and having the force and effect of written law, (2)

that the statutes fixing and predetermining these non-judicial and judicial outcomes

constitute an infringement of the rights to due process, equal protection, and

freedom of contract under 42 U.S.C. § 1981 as well as the rights to own and benefit

from the lawful use of property under 42 U.S.C. §1982 (if these statutes can

possibly be construed in a racially neutral manner, which Appellant contends is not


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only possible but mandatory, necessary, and required by all modern civil rights law

and jurisprudence), (3) that the statutes, court rules, and state customs, practices,

and policies relating to uniformly arbitrary and capricious conduct of dissolution

and child custody proceedings concerning the disposition of families, their wealth,

their lives, and their property uniformly deny due process of law. Indeed, Florida

Circuit Judges in marital, dissolution, and child-custody cases enjoy and exercise, as

a matter of statute and official state policies such as hopelessly vague statutes such

as “the best interests of the child”, absolutely unbridled and hence utterly

unconstitutional discretion to arbitrary and capricious judicial decisions. The sum

total effect of all marital, dissolution, and child custody proceedings in Florida is to

tend uniformly towards the utter suppression of constitutional rights to private

contractual formation and equality of access to the Courts, ownership of private

property, and individual freedom to offer and give evidence under both 42 U.S.C.

Sections 1981 and 1982.

Likewise, the statutory racial language of 42 U.S.C. §§1981 and 1982

themselves must be subjected to strict scrutiny and this court should order it

stricken, because there can be no compelling governmental interest in maintaining

that:

Section 1981:

"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens,"

and

Section 1982:


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"All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."

When the consequence of these laws being so written, in archaic,

Reconstruction-era language with its exclusively (post-Abolition of Slavery) Race-

Related concerns, is to allow states to create, and to allow the Courts to uphold

and enforce non-racial categories of disfavored persons, such as Respondents in

Florida dissolution cases, who must always lose, there is a great need for removal

to Federal Court to preserve these liberties. Racial discrimination in the

enforcement of civil rights is counter to all legitimate purposes of government,

and makes a mockery of all American values. When people are reduced to

conditions of involuntary servitude by private economic manipulation and

judicial strategems implemented in a matter subservient to those private special

interests, the people are reduced to slavery. It matters little that this is done by

the stroke of judge's and lawyers' pens and word processors rather by than

forcible capture and de jure enslavement, the philosophy of equality and the

existence of a free society are equally imperiled.

ARGUMENTS AND ISSUES SHARED & RESTATED FROM KATHY ANN GARCIA-LAWSON’S FIRST APPEAL 09-16406-D

I. Judge Marra Failed to treat 28 U.S.C. §1443(1) as an Exception to the “Well-Pleaded Complaint” Rule Regarding Federal Question Removal under 28 U.S.C. §§ 1331 & 1441

Judge Marra’s refusal to apply or even describe the purpose of 28 U.S.C.

§1443(1) correctly in two successive cases was either a clear and manifest error in

legal interpretation on his part or else a sign of clear and manifest extra judicial bias

and prejudice on his part. Judge Kenneth A. Marra committed manifest error

when he confused Federal Question with Removal Jurisdiction by writing:

It is clear from a review of the removal documents that the state court dissolution of marriage proceeding is not one subject to removal under


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28 U.S.C. § 1443. DE 1-2 at 86-92. To the extent that Respondent is contending that the Florida dissolution of marriage statute is being applied in an unconstitutional manner, those issues are raised by way of defense to the dissolution petition. In order to be able to remove a case to federal court based upon a federal question, as Respondent attempts to do here, a substantial federal question must be presented “on the face of the complaint.” Hill v. BellSouth Telecommunications, Inc ., 364 F.3d 1308, 1314 (11th Cir. 2004). The federal question cannot be raised by way of a defense asserted in the answer or raised in the petition for removal. Gully v. First National Bank , 299 U.S. 109, 113 (1936). The dissolution of marriage petition does not raise any federal question, and in particular, it does not raise one relating to the denial of “equal civil rights.”

FLSD Case 9:09-cv-81615-KAM, Document 6, Entered: 11/20/2009, Page 2 of 4

28 U.S.C. §1443(1) is designed to permit removal by disadvantaged

defendants from those in power who would oppress them for membership in or

adherence to beliefs making them part of a “discrete insular, politically powerless

minority”. Defendant’s perspective of the state judicial and general legal

environment created by a state legislatures is, uniquely, by this statute protected as an

avenue by which to assert and “defend” Constitutional rights.

Thus, it is obvious as well as axiomatic that 28 U.S.C. §1443 constitutes an

expressly authorized, in fact, specially mandated, exemption to the “well-pleaded

complaint rule” and Judge Marra has plainly erred in confusing the two forms of

removal in his November 20, 2009, opinion, which he repeats in his order and

opinion remanding case on March 16, 2010. Although Judge Marra reaffirmed this

erroneous view in his November 23, 2009, denial of Respondent Kathy Ann Garcia-

Lawson’s Rule 59(e) Motion within several hours of receiving said motion, Judge

Marra took longer and gave greater consideration in April and appears to have been

at least convinced on this one point (related to the well-pleaded complaint rule).

McCullough v. Ligon , 430 F. Supp. 2d 846, 850 (E.D. Ark. 2006); Neal v.


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Wilson , 112 F.3d 351, 355 (8 th Cir. 1997). Unlike the Defendant in

Neal v. Wilson , Kathy Ann Garcia-Lawson, has indeed both “shown that there is

a state law preventing him from raising his federal claims in state court, [and] further

[she] has [] shown the basis for an "equally firm prediction" that [s]he will be unable

to protect h[er] federal rights in state court.” 112 F.3d at 855.

II. HAVE THE COURTS PROPERLY IMPLEMENTED SPECIAL STATUS EVIDENT IN CONGRESSIONAL INTENT BY A NARROW CONSTRUCTION OF 28 U.S.C. §§1943(1) in light of 28 U.S.C. § 1447(d)?

Respondent Kathy Ann Garcia-Lawson particularly urges this Court to

consider a comprehensive re-evaluation of the Civil Rights Injunction doctrine in

Dombrowski v. Pfister , Younger v. Harris , and Mitchum v. Foster ,

alongside the Civil Rights Removal doctrine articulated in Greenwood v.

Peacock and Rachel v. Georgia , because, in essence, statutory removals are

treated as stays (injunctions) of state court proceedings under the anti-injunction act,

28 U.S.C. §2283, and a comprehensive and color-blind State-to-Federal Civil Rights

jurisprudence has yet to be developed, but such a constitutional jurisprudence is

clearly necessary in light of the recent history of the United States. § 2283. Stay of State court proceedings: A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.

Dombrowski v. Pfister , 380 U.S. 479; 85 S.Ct. 1116; 14 L.Ed.2d 22

(1965) is one of a trio of cases, including Younger v. Harris , 401 U.S. 37; 91 S.

Ct. 746; 27 L.Ed.2d 669 (1971), culminating in Mitchum v. Foster, 407 U.S.

225; 92 S.Ct. 2151; 32 L.Ed.2d 705 (1972), which specifically addresses the

relationship between removals of all kinds (though not specifically civil rights

removals) and civil rights actions for injunctions or stays against state court

proceedings under 42 U.S.C. §§1983, 1988 and the anti-injunction act:


18

It is clear from the legislative debates surrounding passage of §

1983's predecessor that the Act was intended to enforce the provisions of the Fourteenth Amendment "against State action, . . . whether that action be executive, legislative, or judicial." Ex parte Virginia, 100 U.S. 339, 346 (emphasis supplied). Proponents of the legislation noted that state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or were in league with those who were bent upon abrogation of federally protected rights.

As Representative Lowe stated, the "records of the [state] tr ibunals are searched in vain for evidence of effect ive redress [of federal ly secured rights] . . . . What less than this [ the Civi l Rights Act of 1871] wil l afford an adequate remedy? The Federal Government cannot serve a writ of mandamus upon State Executives or upon State courts to compel them to protect the rights, privi leges and immunit ies of ci t izens . . . . The case has arisen . . . when the Federal Government must resort to i ts own agencies to carry i ts own authority into execution. Hence this bi l l throws open the doors of the United States courts to those whose rights under the Consti tut ion are denied or impaired." Cong. Globe, 42d Cong., 1st Sess., 374-376 (1871). This view was echoed by Senator Osborn: "If the State courts had proven themselves competent to suppress the local disorders, or to maintain law and order, we should not have been called upon to legislate . . . . We are driven by existing facts to provide for the several states in the South what they have been unable to fully provide for themselves; i. e., the full and complete administration of justice in the courts. And the courts with reference to which we legislate must be the United States courts." Id., at 653. And Representative Perry concluded: "Sheriffs, having eyes to see, see not; judges, having ears to hear, hear not; witnesses conceal the truth or falsify it; grand and petit juries act as if they might be accomplices . . . . All the apparatus and machinery of civil government, all the processes of justice, skulk away as if government and justice were crimes and feared detection. Among the most dangerous things an injured party can do is to appeal to justice." Id., at App. 78.

Those who opposed the Act of 1871 clearly recognized that the proponents were extending federal power in an attempt to remedy the state courts' failure to secure federal rights. The debate was not about whether the predecessor of § 1983 extended to actions of state courts, but whether this innovation was necessary or desirable.

This legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts. Section 1983 was thus a product of a vast transformation from the concepts of federalism that had prevailed in the late 18th century when the anti-injunction statute was enacted. The very purpose of §


19

1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights -- to protect the people from unconstitutional action under color of state law, "whether that action be executive, legislative, or judicial." Ex parte Virginia, 100 U.S., at 346. In carrying out that purpose, Congress plainly authorized the federal courts to issue injunctions in § 1983 actions, by expressly authorizing a "suit in equity" as one of the means of redress. And this Court long ago recognized that federal injunctive relief against a state court proceeding can in some circumstances be essential to prevent great, immediate, and irreparable loss of a person's constitutional rights. Ex parte Young, 209 U.S. 123; cf. Truax v. Raich, 239 U.S. 33; Dombrowski v. Pfister, 380 U.S. 479. For these reasons we conclude that, under the cri teria established in our previous decisions construing the anti- injunction statute, § 1983 is an Act of Congress that fal ls within the "expressly authorized" exception of that law.

407 U.S. 240-242, 92 S.Ct. 2161-2162, 32 L.Ed.2d 716-718 (bold added).

By its exhaustive review of the legislative history of 42 U.S.C. §1983,

Mitchum concludes unequivocally that civil rights injunctions against state court

proceedings ARE “expressly authorized by Act of Congress” (namely §1983) and are

therefore permitted under the anti-injunction act. Dombrowski and Mitchum

both upheld Federal Court injunctions against state court proceedings on civil rights

grounds, but all three cases emphasized the fact-specific inquiry which a District

Court should make regarding the entry of an injunction against state court

proceedings. III. HAS KATHY ANN GARCIA-LAWSON ADEQUATELY PLEAD THE CERTAINTY OF DENIAL OF HER FEDERAL RIGHTS ACCORDING TO THE LETTER OF STATE LAW AS OFFICIALLY APPLIED BY THE STATE COURTS?

As noted above, the “facts” in this case are so far merely in motions for leave

to amend, Judges Richard L. Oftedal of the Florida forbade the amendment of

pleadings sufficient to permit discovery of facts in State Court, and Kenneth A.

Marra has now dismissed Respondent/Appellant’s plea to allow discovery three

times. However, insofar as can be determined by reasonable semi-expert and lay

investigation, no Petition for Dissolution of Marriage filed according to Chapter 61


20

of the Florida Statutes has been denied on the merits or for anything other than want

of prosecution in the past twenty-five to thirty years.

If the sole reason for this rather extraordinary record is that the state licenses

marriage, and what the state creates, the state may destroy, then the question is,

what constitutional right or power does the state have to license a fundamental

right, especially a religious/sacramental right, such as the right to marry? Or, if the

right to marry be divided into sacred and secular (civil) components, what right

does the state have to uniformly coerce the dissolution of a partnership or otherwise

impair the civil right to form a pre-marital contract in consideration of marriage or

a post-nuptial marital agreement or agreements for any other purpose, but

dependent upon the validity of the marriage, such as an agreement to buy a home

together and filing therewith an “affidavit of continuing marriage” such as is

required in Florida? IV: ARE FREEDOMS to the FREE EXERCISE of RELIGION in the absence of GOVERNMENTAL LAWS RESPECTING an ESTABLISHMENT of RELIGIOUS RITES and RULES, as well as FREEDOM of CONTRACT as well as the EQUAL RIGHTS TO ENFORCE CONTRACTS in MARRIAGE and FAMILY FORMATION GUARANTEED by FEDERAL LAW? So again, Appellant asks, what is the basis for the state licensing of marriage?

NO TAX OR LICENSE MAY BE IMPOSED ON THE EXERCISE OF ANY FIRST AMENDMENT RIGHT

The answer is that there is no such basis. A line of cases from the 1930s and

1940s establishes firmly that there can be NO tax or license imposed on the exercise

of any first amendment right. One case, on which all subsequent decisions rely,

Grosjean v. American Press Company , established in 1936 that a state could

not impose or enforce a tax on advertisements in a newspaper where the tax

operated to limit the circulation of information. 297 U.S. 233; 56 S.Ct. 444; 80


21

L.Ed. 660 (1936).

Seven years later, however, in Murdock v. Pennsylvania , the Supreme

Court clearly held (1) that the power to tax the exercise of a privilege is the power to

control or suppress its enjoyment, (2) a state may not impose a charge for the

enjoyment of a right granted by the federal constitution (3) a person cannot be

compelled to purchase, through a license fee or a license tax, the privilege freely

granted by the constitution, and (4) the fact that a licensing ordinance is non-

discriminatory does not relieve it from attack upon the ground that it violates the

constitutional guaranties of freedom of religion and of speech and press. 319 U.S.

105, 111-115; 63 S.Ct. 870, 874-876; 87 L.Ed. 1292, 1298-1300 (1943): The fact that the ordinance is "nondiscriminatory" is immaterial. The protection afforded by the First Amendment is not so restricted. A license tax certainly does not acquire constitutional validity because it classifies the privileges protected by the First Amendment along with the wares and merchandise of hucksters and peddlers and treats them all alike. Such equality in treatment does not save the ordinance. Freedom of press, freedom of speech, freedom of religion are in a preferred position.

319 U.S. at 115, 63 S.Ct. at 876, 87 L.Ed. at 1299-1300.

If marriage is to be a matter of First Amendment concern at all, it is at least as

immune from licensing and taxation as preaching the Gospel. Appellant submits

that it is nothing short of incredible that this contradiction has not previously been

noted or litigated, but there is an obvious and causal connection: marriage was a

primarily a religious and expressive matter in 1787. Marriage is now treated by the

Florida Domestic Relations Courts as primarily a commercial matter, while limiting

the ability or motivation of parties freely to contract about it, but that fact that

marriage has both a sacramental and a commercial aspect to it does not lessen its

entitlement to full exemption, under the First and Fourteenth Amendments, from

any licensing procedures:


22

Freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way. As we have said, the problem of drawing the line between a purely commercial activity and a religious one will at times be difficult.

* * * * * * * * * We have here something quite different, for example, from a tax on the income of one who engages in religious activities or a tax on property used or employed in connection with those activities. It is one thing to impose a tax on the income or property of a preacher. It is quite another thing to exact a tax from him for the privilege of delivering a sermon. The tax imposed by the City of Jeannette is a flat license tax, the payment of which is a condition of the exercise of these constitutional privileges.

319 U.S. at 111-112, 63 S.Ct. at 874, 87 L.Ed. 1297-98.

A case which closely followed Murdock during this amazing decade of “pro

freedom” decisions coming down from the Supreme Court, reprimanding state after

state for unconstitutional burdens on the exercise of First Amendment rights on

account of Fourteenth Amendment incorporation was Follet v. McCormick,

which reaffirmed that (even where a person’s entire living came from his First

Amendment activities, so that there was no doubt about their commercial

importance to this particular individual): Freedom of press, freedom of speech, freedom of religion are in a preferred position. The "inherent vice and evil" of the flat license tax is that it restrains in advance those constitutional liberties and inevitably tends to suppress their exercise. * * * * * * * * * The exemption from a license tax of a preacher who preaches or a parishioner who listens does not mean that either is free from all financial burdens of government, including taxes on income or property. But to say that they, like other citizens, may be subject to general taxation does not mean that they can be required to pay a tax for the exercise of that which the First Amendment has made a high constitutional privilege.

321 U.S. 573, 575-76; 64 S.Ct. 717, 718-19; 88 L.Ed. 938, 940 (1944)

Even statutes with such commendable public health and general welfare


23

purposes as preventing littering on the streets may not be imposed or enforced

where they restrict freedom of speech or expression. “To require a censorship

through license which makes impossible the free and unhampered distribution of

pamphlets strikes at the very heart of the constitutional guarantees.” Schneider v.

State , 308 U.S. 147, 164; 60 S.Ct. 146, 152; 84 L.Ed. 155, 166 (1939). A parallel

case in this line Cantwell v. Connecticut , 310 U.S. 296; 60 S.Ct. 900; 84 L.Ed.

1213 (1940) made the interesting point that the state had no right to determine either

by administrative or judicial means what was “religious” or not: To condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.

310 U.S. at 307, 60 S.Ct. at 904-905, 84 L.Ed. at 1219, citing Near v. Minnesota, A statute authorizing previous restraint upon the exercise of the guaranteed freedom by judicial decision after trial is as obnoxious to the Constitution as one providing for like restraint by administrative action.

It is interesting to note that several Florida statutes show the excessive

entanglement (coming very close to establishment), which the licensing of marriage

creates between state and church officials: § 741.07. Persons authorized to solemnize matrimony All regularly ordained ministers of the gospel or elders in communion with some church, or other ordained clergy, and all judicial officers, including retired judicial officers, clerks of the circuit courts, and notaries public of this state may solemnize the rights of matrimonial contract, under the regulations prescribed by law. § 741.041. Marriage l icense application valid for 60 days Marriage l icenses shall be valid only for a period of 60 days after issuance, and no person shall perform any ceremony of marriage after the expiration date of such l icense. The county court judge or clerk of the circuit court shall recite on each marriage l icense the final date that the l icense is valid.


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And of course, just like the disputed licensing fees in Murdock v.

Pennsylvania and Schneider v. State the Florida marriage licenses are flat and

non-discriminatory EXCEPT for the recent provisions for a fee reduction if one

takes a state approved pre-marital instructional course [§741.0305(5)] analogous to

the pre-marital instruction and preparation courses provided by many churches: § 741.01. County court judge or clerk of the circuit court to issue marriage l icense; fee (1) Every marriage l icense shall be issued by a county court judge or clerk of the circuit court under his or her hand and seal. The county court judge or clerk of the circuit court shall issue such l icense, upon application for the l icense, if there appears to be no impediment to the marriage. The county court judge or clerk of the circuit court shall collect and receive a fee of $2 for receiving the application for the issuance of a marriage l icense. (2) The fee charged for each marriage l icense issued in the state shall be increased by the sum of $25. This fee shall be collected upon receipt of the application for the issuance of a marriage l icense and remitted by the clerk to the Department of Revenue for deposit in the Domestic Violence Trust Fund. The Executive Office of the Governor shall establish a Domestic Violence Trust Fund for the purpose of collecting and disbursing funds generated from the increase in the marriage l icense fee. Such funds which are generated shall be directed to the Department of Children and Family Services for the specific purpose of funding domestic violence centers, and the funds shall be appropriated in a "grants-in-aid" category to the Department of Children and Family Services for the purpose of funding domestic violence centers. From the proceeds of the surcharge deposited into the Domestic Violence Trust Fund as required under §938.08, the Executive Office of the Governor may spend up to $500,000 each year for the purpose of administering a statewide public-awareness campaign regarding domestic violence. (3) Further, the fee charged for each marriage l icense issued in the state shall be increased by an additional sum of $7.50 to be collected upon receipt of the application for the issuance of a marriage l icense. The clerk shall transfer such funds monthly to the Department of Revenue for deposit in the Displaced Homemaker Trust Fund created in §446.50.


25

(4) An additional fee of $25 shall be paid to the clerk upon receipt of the application for issuance of a marriage l icense. The moneys collected shall be remitted by the clerk to the Department of Revenue, monthly, for deposit in the General Revenue Fund. (5) The fee charged for each marriage l icense issued in the state shall be reduced by a sum of $32.50 for all couples who present valid certificates of completion of a premarital preparation course from a qualified course provider registered under §741.0305(5) for a course taken no more than 1 year prior to the date of application for a marriage l icense. For each l icense issued that is subject to the fee reduction of this subsection, the clerk is not required to transfer the sum of $7.50 to the Department of Revenue for deposit in the Displaced Homemaker Trust Fund pursuant to subsection (3) or to transfer the sum of $25 to the Department of Revenue for deposit in the General Revenue Fund.

The Florida Statutes thus mandate a constant stream of interaction between state and

religious authorities relating to marriage and in effect make religious officers optional

“state agents” for the performance ONLY of state-licensed marriages. State officials

are obviously, like those in Cantwell v. Connecticut constantly placed in the

position of deciding who or what is religious or not.

The Florida scheme may or may not be worse in this regard than other states.

But, applying the famous Lemon v. Kurtzman , 3 part-test for religious

establishment impact of state actions, 403 U.S. 602; 91 S. Ct. 2105; 29 L. Ed. 2d 745

(1971), there is no doubt that the Florida marriage licensing scheme creates

“excessive entanglement” of state and religious activities, and so far blurs the

boundaries that the whole notion of a “wall of separation between church and state”

has indeed come tumbling down. According to Chief Justice Warren Burger’s

opinion in Lemon (sometimes called “Lemon I” although the second Supreme

Court opinion dealt only with remedies rather than tests), the three main evils against

which the Establishment Clause was intended to afford protection were sponsorship,

financial support, and active involvement of the sovereign in religious activity, and


26

from these three evils, the Court gleaned three tests from the Supreme Court history

of Establishment Clause cases.

The three parts of the Lemon test are: first, the statute must have a secular

legislative purpose; second, its principal or primary effect must be one that neither

advances nor inhibits religion; finally, the statute must not foster an excessive

government entanglement with religion.

Appellant submits that the Florida Statutes establishing the marriage license

requirements in the State of Florida flunk all three prongs of the Lemon test as well

as facially violating the Murdock v. Pennsylvania and Follet v. McCormick

prohibitions on the licensing or taxing of fundamental rights. It is inconceivable

what the Supreme Court would have said at that time about licensing schemes which

were linked to unstated but unescapable contracts of adhesion which would regulate

the individual’s life forever after unwittingly “signing on” to the state-licensed and

taxed exercise of a fundamental right, connected by the express terms of the Florida

Statute to a PRESUMPTION that there will be both domestic violence and

“displaced homemakers” who require special governmental protection and welfare

provisions. (The governmental services involved in these matters are each awarded a

slice of the marital license fee/tax.)

In other words, by marrying in the state of Florida spouses become

automatic, presumptive candidates for a wide array of state “services”

amounting to a presumptive protection racket with extort ion by both

lawyers and state off icials al l but guaranteed along the way i f the

marriage should ever fal l on hard t imes.

The undersigned Appellant now proposes to step back and attack a much

larger statutory framework. If the Court should invalidate the Florida marriage

scheme, as herein requested, either as a matter of Federal Constitutional law under


27

the First, Fifth, Ninth, and Fourteenth Amendments, or for excessive entanglement

of state and religious functions under Lemon v. Kurtzman , it would have an

invigorating effect on personal responsibility and individual independence.

Repeal of the state marital licensing and dissolution/custody regime currently

considered “normal” (or at least an essential part of the status quo) might result in or

in fact dictate a new socially normative situation in which people would neither

“marry at haste” nor repent at leisure. Once the state sponsored contract of

adhesion implicit in statutorily-mandated marital licensing and dissolution are

abolished, people will marry ONLY according to well-planned practical contracts

based on shared values, or they will not marry at all. Furthermore, there will be no

authoritarian “nanny state” welfare net designed to protect the truly incompetent or

immoral, or (in other words) to pick up the pieces for those too casual to make their

plans in advance.

Accordingly, individual failure to plan in advance will be socially and

economically stigmatized in the future, as it always was in the past. Thus, the second

possible derivative result would be the non-existence of any valid Florida marriage

licensing and dissolution scheme would, to put it mildly, undercut the legitimacy of

the Florida divorce scheme, and put thousands of marital lawyers utterly and

completely out of business. Such a transformation of the normative legal landscape

in the United States could only result in a more self-reliant, more cautious, less

reckless society in which individual freedom and integrity are restored at the expense

ONLY of governmental power and those who enjoy or profit from the authoritarian

social-welfare dictatorship which the Florida Family Courts/Marital Licensing and

Dissolution & Custody regimes have come to epitomize. V. DO the FLORIDA DOMESTIC RELATIONS LAWS, INCLUDING LAWS REGARDING INITIAL LICENSING and DISSOLUTION PROCEDURE, as well as MANDATORY STATE SUPERVISED CHILD CUSTODY ARRANGMENTS OPERATE SO


28

AS TO ABRIDGE, INFRINGE, and VIOLATE the FEDERAL FREEDOMS to FREE EXERCISE and FROM GOVERNMENTAL LAWS RESPECTING an ESTABLISHMENT of RELIGION?

Kathy Ann Garcia-Lawson saw impossible contradictions in the law, on the

other hand, a long tradition of “substantive due process” rights cases summarized by

Justice Antonin Scalia as reflecting the belief that: a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all Men … are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.”

Troxel v. Granvil le , 530 U.S. 57, 120 S.Ct. 2054; 147 L.Ed.2d 49 (2000)

(Scalia’s Dissent, citing: Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923); Pierce v.

Society of Sisters, 268 U.S. 510, 534—535 (1925); Wisconsin v. Yoder, 406 U.S.

205, 232—233 (1972)).

To this line of cases regarding the parental right to make decisions concerning

what their children SHOULD do has been added another “substantive due process”

jurisprudential lineage stating that all family decisions, such as WHETHER or not to

bear children once conceived, a right to abortion and contraception which effectively

resuscitates the ancient practice of infanticide under a nearly absolute (albeit

maternal, pre-partum) ius vi ta necisque and basically to forbade the state from

enacting any laws determinative of individual choice in regard to sexual practices or

family matters of any significance. All of these cases rely heavily on the confluence of

the Fifth, Ninth, and Fourteenth Amendments, see especially Griswold v.

Connecticut , 381 U.S. 479; 85 S.Ct. 1678; 14 L.Ed.2d 510 (1965), wherein

(according to a search on Lexis) the Ninth Amendment is cited 55 times (see

especially the Ninth-Amendment centered concurrence of Justices Goldberg,

Harlan, Brennan, and Earl Warren) at 381 U.S. 486, 85 S.Ct. 1682, 14 L.Ed.2d

516).


29

As is well known, Griswold v. Connecticut stands merely as the starting

point of a very long line of cases, including most notably Stanley v. I l l inois , 405

U.S. 645; 92 S.Ct. 1208; 31 L.Ed.2d 551 (1972), Roe v. Wade , 410 U.S. 113; 93

S.Ct. 705; 35 L.Ed.2d 147 (1973); Planned Parenthood v. Casey , 505 U.S.

833; 112 S.Ct. 2791; 120 L.Ed.2d 674 (1992); into which Troxel v. Granvil le ,

530 U.S. 57; 120 S.Ct. 2054; 147 L.Ed.2d 49 (2000) itself fits, if rather

uncomfortably as an exception in favor of traditional rather than new-found family

structure, autonomy, and liberties; and Lawrence v. Texas , 539 U.S. 558; 123

S.Ct. 2472; 156 L.Ed.2d 508 (2003).

In each of these cases (with the sole exception of Lawrence), the Ninth

Amendment played a significant if not decisive role in conjunction with the Fifth and

Fourteenth to establish a “broad statement[] of the substantive reach of liberty”

(Lawrence , 539 U.S. at 564, 123 S.Ct. at 2476) into subjects such as contraception,

abortion, sex generally, and family structure in particular regarding which there is no

express language in the Constitution whatsoever. How much stronger is the

inference that each individual person has an actionable “liberty interest” under the

First, Fifth, Ninth, and Fourteenth Amendments in the enforcement of

CONTRACTS and immunizing RELIGIOUS SACRAMENTS under the expressly

protective clauses of the Constitution? If contraception, abortion, sex, and family

structure generally are beyond the legitimate power of the state to mandate or

prohibit, the how then can the state mandate divorce and state supervision of child

custody merely by (1) granting a marriage license, or (2) enacting laws permitting

access to the courts for these matters or, (3) for that matter in any wise “respecting an

establishment” of marriage and/or the creation and maintenance of families, since

these are matters which lie (and have always laid) at the very heart of all religious

practice and “free exercise” protected by the First Amendment.


30

The avoidance of FEDERAL regulation of marriage contracts and practices

was surely first and foremost among the minds of the framers of the First

Amendment when they prohibited “any law respecting the establishment of

religion”, and Kathy Ann Garcia-Lawson submits that ALL relevant jurisprudence

indicates that ALL of the elements required by Greenwood v. Peacock for civil

rights removal under 42 U.S.C. §1443(1) have been met and that this United States

Court of Appeals for the Eleventh Circuit should accordingly reinstate her removed

case as of the remand date of November 20 or 23, 2009.

Finally appellant quotes from Meyer v. Nebraska :

The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the HN1Fourteenth Amendment. "No State shall . . . deprive any person of life, liberty, or property, without due process of law." While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, HN2it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and general ly to enjoy those privi leges long recognized at common law as essential to the orderly pursuit of happiness by free men . Slaughter-House Cases , 16 Wall. 36; Butchers ' Union Co. v. Crescent City Co. , 111 U.S. 746; Yick Wo v v. Hopkins , 118 U.S. 356; Minnesota v. Barber , 136 U.S. 313; Allgeyer v. Louisiana, 165 U.S. 578; Lochner v. New York , 198 U.S. 45; Twining v. New Jersey , 211 U.S. 78; Chicago, Burlington & Quincy R.R. Co. v. McGuire , 219 U.S. 549; Truax v. Raich , 239 U.S. 33; Adams v. Tanner , 244 U.S. 590; New York Life Ins. Co. v. Dodge , 246 U.S. 357; Truax v. Corrigan , 257 U.S. 312; Adkins v. Children's Hospital , 216 U.S. 525; Wyeth v. Cambridge Board of Health , 200 Mass. 474.


31

The established doctrine is that this l iberty may not be interfered with, under the guise of protecting the public interest , by legislat ive act ion, which is arbitrary or without reasonable relat ion to some purpose within the competency of the State to effect . Determination by the legislature of what consti tutes proper exercise of police power is not f inal or conclusive but is subject to supervision by the courts.

Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S.Ct. 625, 626-627, 67 L.Ed. 1042, 1045 (1923)(bold and italic emphasis added).

Appellant here contends that under the standards of Meyer v. Nebraska ,

echoing across 87 years of history, the Florida Domestic Relations Code and Courts

are plainly unconstitutional both on their face and as applied, and the rights of

respondents are so consistently infringed to warrant removal. VII. WHAT IS THE CONGRESSIONALLY INTENDED ROLE OF THE FEDERAL COURTS IN SUPERVISING THE ENFORCEMENT OF FEDERAL RIGHTS IN THE STATE COURTS: the relat ionship of civi l r ights removal under 28 U.S.C. §1443 to civi l r ights injunctions under 42 U.S.C. §§1983, 1988(a), and the tr io: DOMBROWSKI, YOUNGER, & MITCHUM?

Judge Marra instructed then Plaintiff, but mostly Respondent and Appellant

Kathy Ann Garcia-Lawson to give the State Courts a chance to address the

constitutional issues, and in the time since Judge Marra remanded her first Notice of

Removal pursuant to 28 U.S.C. §1443(1), Respondent has done precisely that, to

no effect. Judge Marra told her she had to “take her chances” and see whether the

Courts would completely violate her rights or not. The Supreme Court has held

that this is not necessary, because Dombrowski v. Pfister expressly disavows the

notion that a defendant must wait and “take his chances” with a clearly and plainly

biased and “rigged” state system: A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms. See, e.


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g., Smith v. California, 361 U.S. 147. When the statutes also have an overbroad sweep, as is here alleged, the hazard of loss or substantial impairment of those precious rights may be critical. For in such cases, the statutes lend themselves too readily to denial of those rights. The assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases. See Baggett v. Bullitt, supra, at 379. For "the threat of sanctions may deter . . . almost as potently as the actual application of sanctions. . . ." NAACP v. Button, 371 U.S. 415, 433. Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression -- of transcendent value to all society, and not merely to those exercising their rights -- might be the loser. Cf., Garrison v. Louisiana, 379 U.S. 64, 74-75. For example, we have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Thornhill v. Alabama, 310 U.S. 88, 97-98; NAACP v. Button, supra, at 432-433; cf. Aptheker v. Secretary of State, 378 U.S. 500, 515-517; United States v. Raines, 362 U.S. 17, 21-22. We have fashioned this exception to the usual rules governing standing, see United States v. Raines, supra, because of the ". . . danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application." NAACP v. Button, supra, at 433. If the rule were otherwise, the contours of regulation would have to be hammered out case by case -- and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation. Cf. Ex parte Young, supra, at 147-148. By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, avoided making vindication of freedom of expression await the outcome of protracted litigation. Moreover, we have not thought that the improbability of successful prosecution makes the case different. The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure. See NAACP v.Button, supra, at 432-433; cf. Baggett v. Bullitt, supra, at 378-379; Bush v. Orleans School Board, 194 F.Supp. 182, 185, affirmed sub nom. Tugwell v. Bush, 367 U.S. 907; Gremillion v. United


33

States, 368 U.S. 11. 380 U.S. at 486-487, 85 S.Ct. at 1120-1121, 14 L.Ed.2d at 28-29 (bold emphasis added).

RELIEF SOUGHT IN THIS COURT

As requested above: Appellant here asks this Court to apply strict scrutiny to

the Judicially formulated doctrine of racial discrimination which is applied in

violation of equal protection to 28 U.S.C. §1443. In so doing this Court can restore

judicial integrity in the application and enforcement of Notices of Civil Rights

Removal under 28 U.S.C. §1443 and endow this statute with the vitality which

Congress intended to give it be framing the right to removal in broad, inclusive,

colorblind statutory language which would surely allow Federal Court review of state

programs such as Florida’s Chapter 61, which the Florida Courts will not review but

which provides population-wide uniformity in the dissolution of marriage and

dismemberment of families.

In relation to her present action, Appellant asks this court should reverse

Marra’s orders of March 16, 2010 and April 19, 2010, vacate his order of remand,

and order this case reinstated on the docket of the United States District Court,

restoring the remand from the Florida Fifteenth Judicial Circuit in and for Palm

Beach County, Florida, thereby vacating the Final Judgment of Dissolution which

was entered following the improper remand, and in fact during the U.S. District

Court’s continued plenary power over this case, prior to the filing of Appellant’s May

17, 2010, Notice of Appeal; to wit, final Judgment was entered on April 29, 2010,

and this judgment ran (predictably) roughshod over all of Appellant’s fundamental

rights. In addition, this Court should vacate Judge Marra’s prior (November 2009)

remand of Kathy Ann Garcia-Lawson’s Notice of Removal filed in this dissolution

action to Judge Marra’s Court, which was remanded on November 23, 2010).


34

Material from all three cases before Judge Marra could ideally be reconsidered and

consolidated as one for purposes of further briefing and argument to this Court.

Respectfully submitted,

Friday, July 2, 2010

By:__________________________________________

Kathy Ann Garcia-Lawson, Ph.D., pro se By her Secretary, Charles E. Lincoln, with permission 2620 Nature’s Way

Palm Beach Gardens, Florida 33410 Telephone: 561-624-8724 Facsimile: 561-691-1423 E-Mail: [email protected]


35

CERTIFICATE OF SERVICE

I, the undersigned Appellant/Respondent Kathy Ann Garcia-Lawson do

hereby certify that I filed an original signed copy of the above-and-foregoing Initial

Appellate Brief pursuant to Notice of Appeal Pursuant to 28 U.S.C. §§1291 and

1447(d) with BOTH the U.S. District Clerk for the Southern District of Florida in

Palm Beach and the Palm Beach County Clerk of the Fifteenth Judicial Circuit

Court and simultaneously served a true and correct copy of the same on each of the

following known parties to the above entitled and numbered cause as follows:

Clerk of 15th Judicial Circuit Court, Palm Beach County Palm Beach County Courthouse

North County Courthouse 3188 PGA Boulevard

Palm Beach Gardens, Florida 33401-4599

Mr. Jeffrey P. Lawson c/o Steve Marchildon

113 Ashley Court Jupiter, Florida 33408

Respectfully signed, served, and submitted to the Courts on Friday, July 2,

2010, in Palm Beach Gardens, Florida 33410.

By:___________________________________________

Kathy Ann Garcia-Lawson, Ph.D., pro se By her Secretary, Charles E. Lincoln 2620 Nature’s Way

Palm Beach Gardens, Florida 33410 Telephone: 561-624-8724

E-Mail: [email protected]


36

CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

The undersigned appellant submits this Certificate of Compliance With Type-

Volume Limitation, Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed.R.App.P. 32(a)(7)(B)

because, [not counting this certificate or other excludable parts] this, Kathy Ann

Garcia-Lawson’s Initial Brief, brief contains 11,136 words, excluding the parts of the

brief exempted by Fed.R.App.P. 32(a)(7)(B)(iii), and contains 1,081 lines of text,

excluding the parts of the brief exempted by Fed.R.App.P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed.R.App.P. 32(a)(5) and

the type style requirements of Fed.R.App.P. 32(a)(6) because this brief has been

prepared in a proportionally spaced typeface using MS Word

in Baskerville Old Face Type, 14 pts.

Executed, signed and respectfully submitted,

Friday, July 2, 2010

By:_________________________________________

Kathy Ann Garcia-Lawson, Ph.D., pro se By her Secretary, Charles E. Lincoln, With permission 2620 Nature’s Way

Palm Beach Gardens, Florida 33410 Telephone: 561-624-8724 Facsimile: 561-691-1423 E-Mail: [email protected]

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