maryjaneduchene_mayor candidate_writprohibitiona10-937

State of Minnesota

Minnesota Court of AppealsIn Re: Petition for Writ of Prohibition

COA court file no. A10-937

SUPPLEMENTAL MOTION

Mary Jane Duchene, Petitioner AND MEMORANDUM OF LAW

TO DECIDE JURISDICTION

vs. AND FOR INJUNCTION

RE: Petition for Writ of

Prohibition

City of West St. Paul, Respondent

District Court file: 19WS-CR-

09-15734

=========================================================

COMES NOW, Petitioner Mary Jane Duchene to ask the Court of Appeals

to make a ruling as to which court has jurisdiction.

The Respondent is attempting to revest jurisdiction with the trial court

(FIRST JUDICIAL DISTRICT Court file: 19WS-CR-09-15734) in order

to PROCEED TO TRIAL ON JUNE 7, 2010, IGNORING THE Petition for

Writ of Prohibition FILED HEREIN, AND WITHOUT HAVING

COMPLETED THE REQUISITE LONG FORM COMPLIANT INCLUSIVE

OF A SEPARATE STATEMENT OF FACT IN THAT COMPLAINT,

WHICH SUPPORTS A CRIMINAL CHARGE AND SHOWS THE

SPECULATION OF THE RESPONDENT IN SOME OTHER LIGHT,

SUPPLEMENTAL MOTION AND MEMORANDUM TO DECIDE JURISDICTION AND FOR INJUNCTION RE:

Petition for Writ of Prohibition page 1

WHICH ENTITLES RESPONDENT TO PROCEED WITH A CRIMINAL

PROSECUTION.

In support of his motion Petitioner states as follows:

1) The Petitioner has made multiple made motions before the district

Court to order Respondent to either amend the long form compliant to

include a separate statement of fact that that is required by the Minnesota

Rules of Criminal Procedure, and absent which, dismissal of the case is

mandatory:

Rule 17.06 Motions Attacking Indictment, Complaint or Tab Charge

Subd. 1. Defects in Form. No indictment, complaint or tab charge shall be

dismissed nor shall the trial, judgment or other proceedings thereon be affected by

reason of a defect or imperfection in matters of form which does not tend to

prejudice the substantial rights of the defendant.

Subd. 2. Motion to Dismiss or for Appropriate Relief. All objections to an

indictment, complaint or tab charge shall be made by motion as provided by Rule

10.01 and may be based on the following grounds without limitation:

(1) Indictment.

(a) The evidence admissible before the grand jury was not sufficient as

required by these rules to establish the offense charged or any lesser or other

included offense or any offense of a lesser degree;

(b) The grand jury was illegally constituted;

(c) The grand jury proceeding was conducted before fewer than 16 grand

jurors;

(d) Fewer than 12 grand jurors concurred in the finding of the indictment;

(e) The indictment was not found or returned as required by law;

(f) An unauthorized person was in the grand jury room during the

presentation of evidence upon the charge contained in the indictment or during

the deliberations or voting of the grand jury upon the charge.

(2) Indictment, Complaint or Tab Charge. In the case of an indictment,

complaint or tab charge:

(a) The indictment, complaint or tab charge does not substantially comply

with the requirements prescribed by law to the prejudice of the substantial rights

of the defendant;



(b) The court lacks jurisdiction of the offense charged;

(c) The law defining the offense charged is unconstitutional or otherwise

invalid;

(d) In the case of an indictment or complaint, that the facts stated do not

constitute an offense;

(e) The prosecution is barred by the statute of limitations;

(f) The defendant has been denied a speedy trial;

(g) There exists some other jurisdictional or legal impediment to

prosecution or conviction of the defendant for the offense charged, except as

provided by Rule 10.02;

(h) Double jeopardy, collateral estoppel, or that prosecution is barred by

Minn. Stat. § 609.035.

and:

Rule 17.02 Nature and Contents

Subd. 1. Complaint. A complaint shall be substantially in the form

prescribed by Rule 2.

Subd. 2. Indictment. An indictment shall contain a written statement of

the essential facts constituting the offense charged. It shall be signed by the

foreperson of the grand jury.

Subd. 3. Indictment and Complaint. The indictment or complaint shall

state for each count the citation of the statute, rule, regulation or other provision

of law which the defendant is alleged to have violated. Error in the citation or its

omission shall not be ground for dismissal or for reversal of a conviction if the

error or omission did not prejudice the defendant. Each count may charge only

one offense. Allegations made in one count may be incorporated by reference in

another count. An indictment or complaint may, but need not, contain counts for

the different degrees of the same offense, or for any of such degrees, or counts for

lesser or other included offenses, or for any of such offenses. The same

indictment or complaint may contain counts for murder, and also for

manslaughter, or different degrees of manslaughter. When the offense may have

been committed by the use of different means, the indictment or complaint may

allege in one count the means of committing the offense in the alternative or that

the means by which the defendant committed the offense are unknown.

Subd. 4. Bill of Particulars. The bill of particulars is abolished.



Subd. 5. Indictment and Complaint Forms--Felony and Gross

Misdemeanors. For all indictments and complaints charging a felony or gross

misdemeanor offense the prosecuting attorney or such judge or judicial officer

authorized by law to issue process pursuant to Rule 2.02 shall use an appropriate

form authorized and supplied by the State Court Administrator or a word

processor-produced complaint or indictment form in compliance with the supplied

form and approved by Information Systems Office, State Court Administration. If

for any reason such form is unavailable, failure to comply with this rule shall

constitute harmless error under Rule 31.01..

2) This case is now in appeal, Petitioner has filed a Petition for Writ of

Prohibition to restrain the trial court from continuing to trial

notwithstanding the Respondent’s refusal to file an amended long form

complaint that states facts which support a criminal charge, and compel

dismissal if that refusal continues, and is before the Minnesota Court of

Appeals (case #A10-937).

3) Petitioner has a public defender who is handling the district court case,

and who is fiscally restrained from doing the appeal work who concurs that

the Respondent has utterly failed to prove it’s case.

4) Petitioner has not waived or withdrawn the Petition for Petition for

Writ of Prohibition not has Petitioner given permission to the public

defender or any other party to waive or withdraw the Petition for Writ of

Prohibition, and jurisdiction is believed to be with the Court of Appeal,

5) The parties have not stipulated and the Petition for Writ of

Prohibition is not withdrawn, and Petitioner has no intention of

withdrawing the Petition for Writ of Prohibition, and the District Court



must rule on Petitioner’s motion to proceed in Forma Pauperis:

109.02 Motion for Leave to Proceed In Forma Pauperis in the Court of Appeals

A party who desires to proceed in forma pauperis in the Court of Appeals shall file in

the trial court a motion for leave so to proceed, together with an affidavit showing the

party’s inability to pay fees and costs and a copy of the party’s statement of the case as

prescribed by Rule 133.03, showing the proposed issues on appeal. Any such

motion by a party initiating an appeal shall be filed on or before the date the

appeal is commenced. The trial court shall rule on the motion within 15 days after

it is filed, unless the Court of Appeals grants additional time.

The party shall file a copy of the motion with the clerk of the appellate courts

simultaneously with the notice of appeal or the petition that initiates the appeal.

The trial court shall grant the motion if the court finds that the party is indigent

and that the appeal is not frivolous. If the motion is denied, the trial court shall

state in writing the reasons for the denial. The party shall promptly file a copy of

the trial court’s order on the motion with the clerk of the appellate courts.

If the trial court grants the motion, the party may proceed in forma pauperis

without further application to the Court of Appeals. If a transcript is to be prepared

for appeal, the party shall file the certificate as to transcript required by Rule

110.02, subdivision 2(a), within 10 days from the date of the trial court

administrator’s filing of the order granting leave to proceed in forma pauperis or

within 10 days after filing the notice of appeal, whichever is later.

If the trial court denies the motion, the party shall, within 10 days from the date of

the trial court administrator’s filing of the order, either:

(a) pay the filing fee, post the cost bond, and file a completed transcript certificate,

if a transcript is required; or

(b) serve and file a motion in the Court of Appeals for review of the trial court’s

order denying in forma pauperis status. The record on the motion shall be limited

to the record presented to the trial court.

(Adopted effective March 1, 2001.).

6) After filing the Petition for Writ of Prohibition Respondents have

taken no action to oppose the Petition for Writ of Prohibition and the trial

court became divested of jurisdiction over the Petitioner's person, because of

the irreversible violation of Petitioner's constitutional rights that the

Respondent is attempting to impose on Petitioner, seeking to manipulate



legal process to unfairly prejudice Petitioner's ability to defend again

frivolous criminal charges, which Respondent has brought for the sole

purpose of harassing the Petitioner. No action was taken to revest

jurisdiction and the Respondent should be directed to take her cause to the

court of appeal where the Petition for Writ of Prohibition action is

pending or to the Court of Appeals in some other manner. Petitioner

contends that the Respondent has the burden to establish jurisdiction if

Respondent intends to switch courts to the District court and attempt to

proceed to trial on June 7, 2010; notwithstanding that Petitioner has filed a

motion with the Court of Appeal requesting immediate stay of all proceeding

in District Court, inclusive trial on June 7, 2010.

7) Judge Perkins was appointed as a “special judge” for the trial court

matter and has stated that an appeal via Petition for Writ of Prohibition or

otherwise should ensue in the event that Petitioner does not like his refusal to

compel Respondents to file and/or amend a long form complaint in this

matter, that is in compliance with the Minnesota Rules of Criminal

Procedure. He is not an appellate judge and is not a judge from outside the

First Judicial District.

8) Black Law Dictionary Sixth Edition id 842 defines a Writ of

Prohibition as follows:

"Prohibition is a process by which a superior court prevents an

inferior court or tribunal possessing judicial or quasi-judicial

powers from exceeding it's jurisdiction in matters over which it



has cognizance or usurping matters not within it's jurisdiction to

hear or determine. A means of restraint on judicial personnel or

bodies to prevent usurpation of judicial power, and it's essential

function is to confine inferior courts to their proper

jurisdiction and to prevent them from acting without or in excess

of their jurisdiction; it is preventive in nature rather than

corrective."

9) Should this Court of Appeals rule it has jurisdiction and the trial

court does not it would be appropriate for this court to issue an

IMMEDIATE Injunction preventing the trial judge from exceeding his

judicial authority or, in this case, acting in the absence of all judicial

authority.

10) Respondent attorneys, Bridget Nason under the supervision of chief

prosecutor Korine Land are licensed attorneys who have practiced law for

years. They should know what the rules are and know what court has

jurisdiction. A pro se litigant, such as myself, should not have the burden of

having to instruct these seasoned lawyers as to what court has jurisdiction.

Petitioner therefore contends that Respondent attorneys have filed

a frivolous criminal case and continue in this action and should be

sanctioned and that they should reimburse the Petitioner for his

time and expenses, which has been nearly one year now.

11) Petitioner is confused as to the motives of Judges MCManus, Perkins

and Chief Judge Lunch as to why same would want to agreed to have a trial

after being clearly notified that he does not have jurisdiction and that to do



so would violate the Minnesota Rules of Criminal Procedure regarding long

form complaints and the Petitioner’s due process rights. Because of the

unusual judicial behavior in going out of his way to proceed to trial despite

the offense to Petitioner’s civil rights, and noting this judge's willingness to

exceed his judicial authority and usurp the power of the Appellate Court

even after notification thereof, the Petitioner is concerned that there

exists an improper relationship between the Respondent's attorneys

and the judge.

12) The Petitioner is conducting herself in a professional manner and is

playing by the rules. Petitioner asks the court to uphold the rules

and enforce the rules. That it is fundamentally unfair for the

Respondents attorneys to be allowed to break the rules and subvert

the administration of justice, and of course contrary to the public interest to

allow this in criminal matters as this subverts justice and the United States

legal system and rule of law.

Memorandum of Law

The Minnesota Rules of Criminal Procedure state fundamental legal

principles in a criminal case and fundamental defense rights that compel the

prosecution to clearly state facts which are relied on by the prosecution to

support any criminal charge, in a long form complaint:

Rule 17.06 Motions Attacking Indictment, Complaint or Tab Charge

Subd. 1. Defects in Form. No indictment, complaint or tab charge shall be

dismissed nor shall the trial, judgment or other proceedings thereon be affected by



reason of a defect or imperfection in matters of form which does not tend to

prejudice the substantial rights of the defendant.

Subd. 2. Motion to Dismiss or for Appropriate Relief. All objections to an

indictment, complaint or tab charge shall be made by motion as provided by Rule

10.01 and may be based on the following grounds without limitation:

(1) Indictment.

(a) The evidence admissible before the grand jury was not sufficient as

required by these rules to establish the offense charged or any lesser or other

included offense or any offense of a lesser degree;

(b) The grand jury was illegally constituted;

(c) The grand jury proceeding was conducted before fewer than 16 grand

jurors;

(d) Fewer than 12 grand jurors concurred in the finding of the indictment;

(e) The indictment was not found or returned as required by law;

(f) An unauthorized person was in the grand jury room during the

presentation of evidence upon the charge contained in the indictment or during

the deliberations or voting of the grand jury upon the charge.

(2) Indictment, Complaint or Tab Charge. In the case of an indictment,

complaint or tab charge:

(a) The indictment, complaint or tab charge does not substantially comply

with the requirements prescribed by law to the prejudice of the substantial rights

of the defendant;

(b) The court lacks jurisdiction of the offense charged;

(c) The law defining the offense charged is unconstitutional or otherwise

invalid;

(d) In the case of an indictment or complaint, that the facts stated do not

constitute an offense;

(e) The prosecution is barred by the statute of limitations;

(f) The defendant has been denied a speedy trial;

(g) There exists some other jurisdictional or legal impediment to

prosecution or conviction of the defendant for the offense charged, except as

provided by Rule 10.02;

(h) Double jeopardy, collateral estoppel, or that prosecution is barred by

Minn. Stat. § 609.035.

and:

Rule 17.02 Nature and Contents

Subd. 1. Complaint. A complaint shall be substantially in the form



prescribed by Rule 2.

Subd. 2. Indictment. An indictment shall contain a written statement of

the essential facts constituting the offense charged. It shall be signed by the

foreperson of the grand jury.

Subd. 3. Indictment and Complaint. The indictment or complaint shall

state for each count the citation of the statute, rule, regulation or other provision

of law which the defendant is alleged to have violated. Error in the citation or its

omission shall not be ground for dismissal or for reversal of a conviction if the

error or omission did not prejudice the defendant. Each count may charge only

one offense. Allegations made in one count may be incorporated by reference in

another count. An indictment or complaint may, but need not, contain counts for

the different degrees of the same offense, or for any of such degrees, or counts for

lesser or other included offenses, or for any of such offenses. The same

indictment or complaint may contain counts for murder, and also for

manslaughter, or different degrees of manslaughter. When the offense may have

been committed by the use of different means, the indictment or complaint may

allege in one count the means of committing the offense in the alternative or that

the means by which the defendant committed the offense are unknown.

Subd. 4. Bill of Particulars. The bill of particulars is abolished.

Subd. 5. Indictment and Complaint Forms--Felony and Gross

Misdemeanors. For all indictments and complaints charging a felony or gross

misdemeanor offense the prosecuting attorney or such judge or judicial officer

authorized by law to issue process pursuant to Rule 2.02 shall use an appropriate

form authorized and supplied by the State Court Administrator or a word

processor-produced complaint or indictment form in compliance with the supplied

form and approved by Information Systems Office, State Court Administration. If

for any reason such form is unavailable, failure to comply with this rule shall

constitute harmless error under Rule 31.01.

Numerous US Supreme Court cases uphold these rights:

U.S. Supreme Court, U S v. CRUIKSHANK, 92 U.S. 542 (1875), 92 U.S.,

542, COLE V. ARKANSAS, 338 U. S. 345 (1949) and FARETTA V.

CALIFORNIA, 422 U. S. 806 (1975):



U. S. 818:

III

This consensus is soundly premised. The right of self-

representation finds support in the structure of the Sixth

Amendment, as well as in the English and colonial jurisprudence

from which the Amendment emerged.

A

The Sixth Amendment includes a compact statement of the rights

necessary to a full defense:

"In all criminal prosecutions, the accused shall enjoy the right . .

. to be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense."

Because these rights are basic to our adversary system of

criminal justice, they are part of the "due process of law" that is

guaranteed by the Fourteenth Amendment to defendants in the

criminal courts of the States. [Footnote 14] The rights to notice,

confrontation, and compulsory process, when taken together,

guarantee that a criminal charge may be answered in a manner

now considered fundamental to the fair administration of

American justice -- through the calling and interrogation of

favorable witnesses, the cross-examination of adverse witnesses,

and the orderly introduction of evidence. In short, the

Amendment constitutionalizes the right in an adversary criminal

trial to make a defense as we know it. See California v. Green,

399 U. S. 149, 399 U. S. 176 (Harlan, J., concurring).

Regarding Jurisdiction

1. “Once jurisdiction is challenged, the court cannot proceed when it

clearly appears that the court lacks jurisdiction, the court has no authority



to reach merits, but, rather should dismiss the action.” Melo v. US 505, F2d

1026

2. In US v. Lopez and Hagan v. Levine decisions were render void

because of lack of jurisdiction. If jurisdiction does not exist it cannot justify

conviction or judgment. See also Broom v. Douglas, 75, ALA 268, 57, So.

860 and In re: FNB, 152 F64.

3. “There is no discretion to ignor lack of jurisdiction.” Joyce v. US, 474

21) 215

4. “The law provides that once state and federal jurisdiction has been

challenged, it must be proven.” Main v. Thiboutot, 100 S. Ct. 2502 (1980)

5. “Jurisdiction can be challenged at any time.” and “Jurisdiction, once

challenged, cannot be assumed and must be decided.” Nasso v. Utah Power

and Light Co. 495 F2d 906, 910

6. “Defense of lack of jurisdiction over the subject matter may be raised

at any time, even on appeal.” Hill Top Developers v. Holiday Pines Service

Corp. 478 So. 2d. 368 (Fla 2nd DCA 1985)

7. “The burden shifts to the c ourt to prive jurisdiction.” Rosemond v.

Lambert 469 F2d 416

8. “A court has no jurisdiction to determine its own jurisdiction, for a

basic issue in any case before a tribunal is it’s power to act, and a court must

have authority tp decide that question in the first instance.” Rescue Army v.



Municipal Court of Los Angeles, 171 F2d 8, 331 US 549, 911. ed 1666, 67 S

Ct. 1409.

9. “Where a court failed to observe safeguards, it amounts to denial of

due process of law, court is deprived of juris.” Merritt v Hunter, C.A.

Kansas, 170 F2d 739.

Regarding Emergency situations

Rule 121. Mandamus and Prohibition - Emergency Situations

121.01 Communication to the Court

If an emergency situation exists and the provisions of Rule 120 are impractical, the

attorney for a party seeking a writ of mandamus or of prohibition directed to a lower

court may orally petition the reviewing court for such relief by telephoning or by

personally contacting the Supreme Court Commissioner, if application is made in the

Supreme Court, or the Chief Staff

Attorney, if application is made in the Court of Appeals, who will communicate with the

reviewing court relative to an early or immediate consideration of the petition. If the

Commissioner or Chief Staff Attorney is unavailable, the oral petition may be made to a

justice or judge of the reviewing court.

WHEREFORE, Petitioner asks the court to IMMEDIATELY decide

that district court, division one, does not have jurisdiction to proceed with

any trial in the District court, or any related matters, on June 7, 2010,

pending review and issue of Petitioner’s Petition for Writ of Prohibition

thereby restricting courts with no jurisdiction from usurping the power of

the Appellate Court and to issue sanction against Respondent's attorneys as

it deems appropriate.

June 6, 2010 Respectfully submitted:



Mary Jane Duchene, BA, BS

1144 Ottawa Avenue

West St,. Paul, MN 55118

Fax: 651 457 4376

[email protected]



Subj: motion coa injunction emergency Date: 6/6/2010 1:44:25 P.M. Central Daylight TimeFrom: [email protected]: [email protected]

Page 1 of 2motion coa injunction emergency

Sunday, June 06, 2010 AOL: Sharon4Anderson

EMERGENCY MOTION: http://www.ddaexchange.org/1144OttawaAvenue/supmotionjurisdiction.pdf www.ddaexchange.org/1144OttawaAvenue/supmotionjurisdiction.pdf

Rule 121. Mandamus and Prohibition - Emergency Situations See motion to Court of Appeal attached RE: Writ Prohibition 121.01 Communication to the Court If an emergency situation exists and the provisions of Rule 120 are impractical, the attorney for a party seeking a writ of mandamus or of prohibition directed to a lower court may orally petition the reviewing court for such relief by telephoning or by personally contacting the Supreme Court Commissioner, if application is made in the Supreme Court, or the Chief Staff Attorney, if application is made in the Court of Appeals, who will communicate with the reviewing court relative to an early or immediate consideration of the petition. If the Commissioner or Chief Staff Attorney is unavailable, the oral petition may be made to a justice or judge of the reviewing court.

Mary Jane Duchene 1144 Ottawa Avenue St. Paul, MN 55118-2008 Fax: 651 457 4376 E-Mail:: [email protected]

Page 2 of 2motion coa injunction emergency

Sunday, June 06, 2010 AOL: Sharon4Anderson

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Senior CitizenSenior CitizenSenior CitizenSenior Citizen share: del.icio.us | digg | reddit | furl | facebook

Primary Election Results 2004:

Community: • West St. Paul Native

• Sibley High School Graduate • Disability and Senior

Activist

• Founder and Member:

Diabetics/Disabled

Anonymous

• West St. Paul Resident and Homeowner

Professional: • Owner, OpusArts LLC. • Lecturer on US Culture:

American Embassy, England

• Portrait Artist, Revlon International

• Legal Education in London, England, and Member of the

Honorable Society of Grays Inn

• BFA in Fine Art from the Minneapolis College of Art and Design

E-mail: [email protected]

or call: 651 457 4376

Thank you all for voting for me!

Quality Housing Program:

Page 1 of 3MARY JANE DUCHENE FOR WEST ST. PAUL MAYOR - 2004

6/6/2010http://www.angelfire.com/mn3/mj4mayor/

• Mary Jane will work to ensure that available funding is obtained for required repairs low income and senior citizens in West St. Paul, so that these citizens do not continue to be in danger of loosing their homes, from abatements added on to property taxes.

• Mary Jane believes that the community in West St. Paul want to be caring and supportive of the disabled, low income and senior property owner, and will want to develop their neighborhood programs to include meaningful development of volunteer programs to assist these disadvantaged citizens with mandated home repairs.

City Attorney:

Mary Jane will work for the appointment of a city attorney who

resides and offices from West St. Paul, not South St. Paul; and who has no conflicts of interest that impede ethical action, see:

www.DDAWEB.org www.MurderbyDiabetes.org http://www.angelfire.com/mn3/abuseofpower/index.html

Diversity:

Mary Jane has the experience and skill to work for a community that

welcomes the disabled, seniors, and members of ethnic minorities, and which enforces laws prohibiting the taking of unethical and illegal advantage of people in these protected classes;- and will work diligently to remedy the current status quo to achieve these equitable results



Prepared and Paid for by the Duchene

4 Mayor Volunteer Committee, 1144

Ottawa Avenue, West St. Paul, MN

55118

It's Time for the Change to Tolerance, Diversity and Ethical Government in West St. Paul

New People in Government = CHANGE STOP REVOLVING DOOR POLITICS IN WSP



maryjaneduchene_mayor candidate_writprohibitiona10-937

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