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Ohio Federal Court Decision / The "star chamber" / Who has the right to decide?

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Date: Thu Oct 10 2002 - 08:56:12 EDT

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Good People & People of Faith,

This message (long) has info on:
1. Family Law Reform - by judicial "home run?"
2. The Third Amendment - forgotten but not gone?
3. Decision from Ohio Federal Court - more due process.
4. Rights under the Ninth Amendment - reserved to YOU.
5. The "Star Chamber" - not just old history.

1. Family Law Reform - by judicial "home run?"
Today's message has a lot of "law" and some very good case law and
history you may want to reference in the future.  As you read the
items below please think about what the "proper level of proof" is
before a parent is made a spectator in their child's lives:

* The preponderance of evidence?
* Clear and convincing proof?
* Proof beyond a reasonable doubt?

Most importantly, who gets to decide when that level of proof is
attained.  A Judge alone, or other parents in a Jury?  Many of us at
AKidsRight.Org feel the presence of a jury is crucial to any serious
reform.  Does anyone expect a Court Decision to mandate Jury
protection?  Can serious reform happen without that protection?

2. The Third Amendment - forgotten but not gone?
We all know about the First Amendment, and "pleading the Fifth", and
the Fourteenth, and number Two, "the right to bear arms."  But what
about the one that was so important to our Founding Fathers that it
made number THREE!  Well, here it is:

"No Soldier shall, in time of peace be quartered in any house without
consent of the Owner, nor in time of war, but in a manner to be
prescribed by law."

Why even bring this up when discussing Family Law?  We hope it will
lend some background to some of the articles below.  Especially for
parents to understand your "rights" aren't limited to what is written
in black & white in the Constitution.  In the 1700's people having to
put up with Soldiers in their homes was a "big deal" and they didn't
like it -- it made the Bill of Rights.  Right now the authority of
Government to interfere with your relationship with your children seems
almost limitless as long as they say "we have the best interest of the
child at heart."  Would Thomas Jefferson had tolerated an order from a
Judge, "Stop smoking at home or we'll take your kids away."  Do you
think something about the rights of parents to raise their own
children, for better or worse, would have made the Bill of Rights?

Where do we set the threshold of conduct when the "state" has the
authority to determine the "best interest" of your child, instead of

3. Decision from Ohio Federal Court - more due process.
This came to us from ANCPR,

Contact: Michael Galluzzo, 937-663-4505,
         Lowell Jaks,

> On Sept. 24, 2002, Federal Magistrate Judge Michael Merz, United
> States District Court for the Southern District of Ohio, Western
> Division at Dayton, (Michael A. Galluzzo vs. Champaign County Court
> of Common Pleas, et al., Case No. C-3-01-174) filed an order joining
> the State of Ohio as a party into a case to defend the
> constitutionality of Ohio statues that allow courts to deny due
> process in removing custody from a fit parent in divorce situations
> without a finding of substantial harm to the child.
> On August 12, 2002, Magistrate Judge Merz withdrew his report and
> recommendations to dismiss the federal question action filed in
> April 2001 pursuant to Plaintiff Michael Galluzzo's argument that
> defeated the Rooker-Feldman doctrine.  The Rooker-Feldman doctrine
> is used in a majority of federal cases to dismiss underlying state
> actions by asserting 'impermissible state appeals to the federal
> court'.
> The court had given the Attorney General 30 days to file her
> response for intervention, for under the 11th Amendment a state has
> immunity from federal suit unless the state voluntarily chooses to
> intervene, at which time the state voluntarily waives its right to
> immunity from suit.  The State failed to respond voluntarily and
> where a constitutional question was previously certified under
> federal law to the Attorney General, the 11th Amendment immunity is
> no longer a question.

> This is the first time that a federal court has issued a certified
> question to rule on the merits of a presumption of equal custody in
> a divorce situation. This is the only case that has ever happened in
> a federal court that specifically addresses the federal rights of
> divorcing parents, fitness, the evidentiary standard required by
> federal law to prove unfitness {clear & convincing evidence-which is
> already part of the juvenile code in Ohio, but not the domestic
> code} and equal custody.

> On April 27, 2001, a complaint was filed in U.S. District Court,
> Dayton, Ohio against Champaign County Common Pleas Court. The suit
> filed by Michael Galluzzo (C-3-01-174) claims the court deprived him
> of his constitutional right to due process in a divorce action that
> deprived him of custody of his children without a finding of
> substantial harm to the children.  In June of 1993, Mr. Galluzzo was
> designated a non-custodial parent and ordered to pay child support
> and his ex-wife was given full custody of the children.
> It appears as though this case will move forward on the merits.
> What are the ?merits??  THAT IN A DIVORCE ACTION, A FIT PARENT MAY
> See also Santosky v. Kramer (1982) To terminate parental rights, the
> state must prove its allegations of parental neglect or misconduct
> by ?clear and convincing evidence.?

> Michael Galluzzo
> 937-663-4505

4. Rights under the Ninth Amendment - reserved to YOU.
Following submitted to us by Bruce Eden (
Director, Fathers Rights Association of New Jersey & 
Mid-Atlantic Region

> The recent revival of interest in the 9th Amendment is due to
> dissatisfaction with the intrusive bureaucratic state created in
> this country over the last fifty years.  The 9th Amendment is, of
> course, a fairly obvious place to look for protection from the
> ravages of positivism, for it holds out at least a modicum of hope
> to those who value liberty and autonomy--those, that is, who would
> like to locate in the Constitution something like a general right to
> be left alone.  Such people used to be called liberals, but that
> label has ironically been appropriated by persons with a socialist
> vision which requires massive coercion to effect and maintain it.
> This coercion appears in a large number of forms, but most
> frequently it manifests itself in two ways: First, in
> interventionist statutes that prohibit the enforcement of some
> contracts or compel the creation of others; and Second, in takings
> and redistributions of wealth that have rendered the promise of just
> compensation held out in the 5th and 14th Amendments a virtual dead
> letter.  Since the possibility of enforcement is what often, though
> by no means always, induces obedience to law, guns and jails lurk
> behind these laws, however subtle may be the camouflage, and however
> worthy their progenitors think them to be.  Much recent 9th
> Amendment scholarship is generated by a desire to find some
> sanctuary from what is perceived as majoritarian tyranny".  Morris
> S. Arnold, U.S.D.J., Western District of Arkansas.  "Doing More Than
> Remembering the 9th Amendment", Chicago-Kent Law Review, Vol. 64
> pg. 265 (1988)(Symposium of articles on the 9th Amendment in this
> law review).
> "The enumeration in the Constitution of certain rights shall not be
> construed to deny or disparage others retained by the People".
> U.S. Constitution, Amendment 9.
> "This enumeration of rights and privileges shall not be construed to
> impair or deny others retained by the people".  N.J. Constitution,
> Article I, Paragraph 21.  (Notice the word "impair" in the
> N.J. Constitution vs. "disparage" in the U.S. Constitution.  Which
> is the stronger usage?  "Impair".)
> The Ninth Amendment of the United States Constitution came about
> during the debate about the Bill of Rights during the ratification
> of the Constitution in 1787.  There were those who advocated for and
> against a Bill of Rights.  The Federalists included James Madison,
> Alexander Hamilton and John Jay who were for a strong centralized
> national government and were against the Bill of Rights for
> individuals because they felt that all rights were unalienable and
> couldn't be given away.  The Anti-Federalists included Samuel Adams,
> Patrick Henry, George Clinton, Elbridge Gerry, who advocated for
> weak centralized government with power to the individual states and
> a Bill of Rights.  Those that pushed for the Bill of Rights were
> concerned that the centralized government would abridge any rights
> not enumerated and any rights omitted would be excluded or ceded to
> the central government.
> The Ninth Amendment has been construed to establish substantive
> individual rights.  Palmer v. Thompson, 403 U.S. 217, 237
> (1971)(Douglas, J., dissenting); Griswold v. Connecticut, 381
> U.S. 479, 485-86 (1965)(Goldberg, J., concurring).  There are two
> schools of thought whether the Ninth Amendment only applies to
> federal rights claims or whether it applies to individual or states'
> rights claims.  To assuage any confusion, the Ninth Amendment is
> used in establishing enumerated and unenumerated rights at the state
> level by the incorporation of the Bill of Rights pursuant to the Due
> Process Clause and Equal Protection Clause of the Fourteenth
> Amendment as a limit on state action.  Benton v. Maryland, 395
> U.S. 784 (1969)(describing the standard for incorporating provisions
> of the Bill of Rights through the Fourteenth Amendment as a limit on
> state action).
> The Ninth Amendment addresses unenumerated rights which we all have
> all the time.  Some of these rights are the right to wake up and go
> to sleep whenever one feels like it, the right to eat whatever,
> wherever and whenever on wants, the right to go to the country or go
> to the shore, etc.  These are just but a fraction of the plethora of
> unalienable God-given rights we all have.
> Some of these rights have also been classified as enumerated rights:
> The right to retain American Citizenship, despite even criminal
> activities, until explicitly and voluntarily renouncing it.  Afroyim
> v. Rusk, 387 U.S. 253 (1967).
> The right to receive equal protection not only from the states but
> also from the federal government.  Bolling v. Sharpe, 347 U.S. 497
> (1954).
> The right to vote, subject only to reasonable restrictions to
> prevent fraud, and to cast a ballot equal in weight to those of
> other citizens.  Reynolds v. Sims, 377 U.S. 533 (1964); Baker
> v. Carr, 369 U.S. 186 (1962).
> The right to a presumption of innocence and to demand proof beyond a
> reasonable doubt before being convicted of a crime.  Jackson
> v. Virginia, 443 U.S. 307 (1979); Sandstrom v. Montana, 442 U.S. 510
> (1979); Estelle v. Williams, 425 U.S. 501 (1976); In re Winship, 397
> U.S. 358 (1970). (Note: This would apply to any civil case wherein
> one is accused of civil family court domestic violence accusations
> and civil or criminal child support enforcement & contempt hearings,
> accused of civil and criminal income tax violations, etc.).
> The right to use the federal courts and other governmental
> institutions and to urge others to use these processes to protect
> their interests.  NAACP v. Button, 371 U.S. 415 (1963);
> Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
> The right to associate with others.  NAACP v. Alabama, 357 U.S. 449
> (1958); De Jonge v. Oregon, 299 U.S. 353 (1937).
> The right to associate under the First, Fifth, Ninth, Tenth and
> Fourteenth Amendments can also apply to family matters with respect
> to visitation and custody rights.  Troxel v. Granville, 530 U.S. 57
> (2000); Mabra v. Schmidt, 356 F. Supp. 620 (W.D.Wisc. 1973); Doe
> v. Irwin, 441 F. Supp. 1247 (D. Mich. 1977).

> The right to enjoy a zone of privacy (or the right to private
> autonomy).  Griswold v. Connecticut, 381 U.S. 479 (1965).
> The right to travel within the United States (interstate migration).
> Shapiro v. Thompson, 394 U.S. 618 (1969); Crandall v. Nevada, 73
> U.S. (6 Wall.) 35 (1868).

> The right to marry or not to marry.  Zablocki v. Redhail, 434
> U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967).  (In
> Zablocki v. Redhail, the state tried to prevent a man who owed child
> support to his first family from remarrying.  The U.S. Supreme Court
> overruled and said that the right to remarry is a fundamental
> unalienable right that cannot be infringed upon).

> The right to make one's own choice about having children.  Carey
> v. Population Services, 431 U.S. 678 (1977); Roe v. Wade, 410
> U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold
> v. Connecticut, 381 U.S. 479 (1965).

> The right to educate one's children as long as one meets certain
> minimum standards set by the state.  Pierce v. Society of Sisters,
> 268 U.S. 510 (1925) (home schooling is allowed; does a divorced
> parent have to send their adult children to college when married
> parents don't?).

> The right to choose and follow a profession.  Gibson v. Berryhill,
> 411 U.S. 564 (1973); Meyer v. Nebraska, 262 U.S. 390 (1923);
> Allgeyer v. Louisiana, 165 U.S. 578 (1897).  (Does the family court
> have the right to tell you that you must maintain a certain
> profession and salary to meet its orders or that you must get a
> second or third job?  This is prohibited under the Ninth Amendment).

> The right to attend and report on criminal and civil trials.
> Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)(Court
> watching and open public court hearings).

> Even though these unenumerated rights may be acknowledged, judicial
> protection of these rights is often controversial simply because
> such rights are not included in the "enumeration of the
> Constitution, of certain rights".  The reason for this is that the
> judiciary is hard pressed to acknowledge unenumerated rights because
> they don't fit into judicial philosophies that require every
> judicial right to be micromanaged or grounded in a specific
> provision of the text of the Constitution.

> Distrust of the government is what spurred the Ninth Amendment.  The
> founding fathers designed government to be incompetent because they
> didn't trust power.  The question that remains is whether the
> enumerated rights standing alone are adequate to power constraining
> tasks or do the unenumerated rights have a large impact.  Trying to
> preserve limited government without recourse to unenumerated rights
> retained by the people is doomed to failure as we have seen with the
> huge, unwieldy size of the present bureaucracy.  Given the less than
> perfect track record of collective attempts to solve individual
> problems, and the intervention of government having exacerbated
> those problems, it may be a severe mistake for individuals to give
> up rights and rely on collective governmental measures to satisfy
> basic individual needs.  One only has to look at the present welfare
> system, child support/Title IV-D/AFDC/TANF bureaucracy-industry, and
> the Social Security system.

> Forcing individuals to rely on government to preserve their lives
> violates one of the most fundamental natural rights of man.
> Proceeding from a natural rights view, the Ninth Amendment not only
> supports individual rights, but also the argument that the right
> cannot be restricted by collective action even in the form of a
> prohibitive constitutional amendment such as the 16th Amendment (The
> Income Tax Amendment) or prohibitive law (Child Support Enforcement
> Acts).

> The Ninth Amendment encompasses the "Constitutional Right to be left
> alone".  Olmstead v. United States, 277 U.S. 438, 474 (1928).

> Many of the enumerated and unenumerated rights that apply under the
> Ninth and Tenth Amendments can be found in the United Nations
> Universal Declaration of Human Rights, adopted by the United States
> in 1948.

5. The Star Chamber - not just old history
Following also submitted to us by Bruce Eden (

> The Star-Chamber was an efficient, somewhat arbitrary arm of royal
> power in England in the 17th Century.  It was a court which
> originally had jurisdiction in cases where the ordinary course of
> justice was so much obstructed by one party, through writs or
> overawing influence, that no inferior court would find its process
> obeyed.  The Star-Chamber consisted of what today would be called
> attorneys, common-law judges, and, it seems, all legislators (peers
> of parliament).
> During the reigns of Henry VIII and his successors, the jurisdiction
> of the court was extended to such a degree (especially in punishing
> disobedience to the king's proclamations--sound familiar?), that it
> was abolished.  The height of its power was during the reign of the
> Tudor and Stuart kings.  The Star-Chamber embodied swiftness and
> power; it was not a competitor of the common law (which the
> U.S. Constitution is based on), so much as a limitation on it (and
> limitation on the rights of the people).
> In the family courts, you are guilty until proven innocent; if you
> do not have the money you go to jail; you have no right to a jury;
> no right to present defenses; and in many cases, no right to
> competent, effective counsel.
> The Star-Chamber adopted a practice of forcing counsel upon an
> unwilling defendant.  The defendant's answer to an indictment was
> not accepted unless it was signed by their counsel.  Because the
> Star-Chamber was of mixed judicial and executive power, it
> specialized in trying "political"cases.  It came to symbolize the
> civilized world's greatest denial of basic individual rights--until
> family court came along.
> Counsel had to sign the indictment, also.  If they did not feel that
> one was a worthy client, they could refuse to sign.  Counsel's
> refusal to sign was usually done because if the indicted individual
> were found guilty, so was the counsel who signed his indictment.  In
> most cases, counsel refused to sign.  Not signing the indictment was
> an indication of guilt of the individual--guilty before being proven
> innocent.  Just like in today's Family Courts where attorneys write
> and sign their own certifications attacking the opposing party.  It
> is interesting to note that most attorneys sign certifications and
> not affidavits.  Why is that?  Affidavits are declarations or
> statements of facts, confirmed by oath or affirmation of the party
> making it, taken before a person having authority to administer
> oaths or affirmations.  Certifications are only formal assertions in
> writing of some fact and signed, but not sworn to under oath.

> The parallels between the Star-Chamber and today's family courts are
> strikingly similar or the same.  Counsel and their clients can lie
> on certifications and get away with it.  However, they do not have
> to answer to authority as one did to the political-judicial court of
> Star-Chamber.
> In an interesting case from 1632 (which could also be a case from
> today's family courts), William Prynne was "indicted" for a
> controversial book he had printed.  Prynne's answer to the
> "indictment" was that his book had been licensed.  (Sounds a lot
> like today--having a driver's license, a marriage license, a
> professional license, a hunting license, etc.).  His trial, like all
> other Star-Chamber proceedings, was decent and quiet, but the
> sentence was monstrous and barbaric.  He was sentenced to be
> disbarred and deprived of his university degree, to be put twice in
> the pillory, have one ear cut off each time, fined L5,000 English
> pounds, and be perpetually imprisoned without a book, pen, ink or
> paper.  Prynne was a lawyer.  The Star-Chamber was so harsh that it
> was finally disbanded in 1641 under the revolutionary government of
> that time.
> Yet, we have received a present from the Star-Chamber which came
> about in the early 1630s--the court's abusive contempt powers, and
> the fraud known as judicial immunity.  Today's family courts take
> several pages out of the Star-Chamber book.  Such as, if you do not
> have counsel, you are often required to find counsel (beholden to
> the court and in conflict of interest with the court and the client)
> and then you are found "guilty" of some non-criminal, civil thing,
> with no chance to prove your innocence, such as in child support
> enforcement "hearings" (or non-hearings if you prefer) and/or
> domestic violence hearings.
> In child support enforcement cases you have 30 seconds to 2 minutes
> for your hearing which are usually summary in nature and provide no
> semblance of due process or equal protection under the laws.  In
> these summary proceedings, judges only ask the litigant whether or
> not he can pay, and if not, are immediately jailed without any sense
> of an ability to pay hearing or ability to bring in evidence,
> witnesses or defenses.
> When fathers request custody, they are routinely charged with
> "civil" abuse crimes that find them guilty before they can prove
> their innocence.  This is usually done when one has paid an attorney
> exorbitant life's earnings to defend them in a civil jurisdiction
> divorce action.  The idea is to charge a parent, usually the father,
> with a "civil" domestic violence, child abuse, child sexual abuse,
> failure to pay child support (again, without proofs or
> substantiation and in most cases without a proper audit of the child
> support account) or "civil" "crime" du jour.  In New Jersey there is
> a statute, N.J.S.A. 9:6-8.22, which states that:
> "The Superior Court, Family Part, in each county, shall have
> jurisdiction over all NONcriminal proceedings involving ALLEGED
> CASES of child abuse or neglect, and shall be charged with the
> immediate protection of said children.  All NONcriminal cases
> involving child abuse shall be commenced in or transferred to this
> court from other courts as they are made known to the other courts.
> Commencement of cases of child abuse or neglect must be the first
> order of priority in the Family Part."
> These types of cases are routinely sent from the Prosecutor to the
> Family Courts where allegations are made in the heat of a divorce
> action.  These cases are railroaded through the Family Courts since
> there are no due process protections and anyone charged with one of
> these matters is presumed guilty without the ability to prove
> innocence.  This statute is being used/abused to bypass due process
> procedures and allow the Family Court to run roughshod against the
> allegedly accused's rights.  Since the State cannot win these types
> of cases in criminal court because they have to follow all criminal
> due process, and in most cases of this type, the accuser would be
> charged with malicious prosecution, the State sends these cases to
> the Family Courts, where the accused is not allowed to defend
> himself (and for the obvious reason that the Federal Government
> funds the States to report and process all cases of child abuse and
> neglect under the Federal CAPTA (Child Abuse Prevention and
> Treatment Acts) laws.

> This is the politically correct thing to do in today's family
> courts--to imitate Star-Chamber proceedings.  The dichotomy of the
> judicial-political courts, known as the Family Court, is alive and
> well as today's Star-Chamber.  But the State and Federal governments
> have refined and streamlined these procedures to cut out due process
> and equal protection under the law in order to maximize Federal
> funding to the States--it's called extortion and fraud, along with
> kidnapping for profit and gain when arresting and jailing the
> unsuspecting.  The mob does the same thing, but when they do it,
> it's considered illegal.

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