Google warns that court order removing Muhammad video will create Hollywood chaos

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“The panel has adopted a novel interpretation of copyright law that will invite uncertainty and chaos for the entertainment industry, documentary filmmakers, amateur content creators, and for online hosting services like YouTube, allowing bit players in movies, videos, and other media to control how and when creative works are publicly displayed.” Indeed. And the panel did this, wittingly or unwittingly, in service of a Sharia agenda to forbid criticism of Islam. Cindy Lee Garcia’s real quarrel was with the filmmakers. She should have settled it with them instead of having the film taken down. Now she has handed a great victory to the Leftist and Islamic supremacist foes of the freedom of speech.

“Google Warns ‘Muslims’ Ruling Will Create Hollywood Chaos,” by Eriq Gardner for the Hollywood Reporter, February 28:

Google is really freaking out about Wednesday’s ruling determining that Innocence of Muslims actress Cindy Lee Garcia could assert a copyright interest in her performance in the film and that as a result, the controversial anti-Islamic film had to be wiped from YouTube.

The web giant has filed a new emergency motion to stay the disposition pending a rehearing before a larger panel at the 9th Circuit Court of Appeals.  In doing so, Google has some bold First Amendment warnings about the implications for allowing an actress with five seconds of screen time to enjoin its distribution of Innocence of Muslims:

“The panel has adopted a novel interpretation of copyright law that will invite uncertainty and chaos for the entertainment industry, documentary filmmakers, amateur content creators, and for online hosting services like YouTube, allowing bit players in movies, videos, and other media to control how and when creative works are publicly displayed.”

How so? Google continues:

“Under the majority’s analysis — absent contractual shifting — movie extras could register copyrights in their reaction shots, facial expressions, and mimed chatter. Background singers on a record could register their ‘oohs’ and ‘ahhs.’ The list goes on.”

Could the ruling be the end of YouTube? Google says:

“Most of the millions of amateur filmmakers who upload their videos and other creative works to YouTube presumably do not have written agreements with those who appear in their videos. That means anyone who appears in those videos — even for five seconds — will now have independent authority to contact YouTube and demand their removal.”

And what about Hollywood? More from Google:

“To be sure, many professional filmmakers try to obtain releases from participants. But how long have they done so? And how long do they keep them? And do they obtain them from everyone with even the smallest role? The majority’s approach opens the door to an extra in even Gone With the Wind contacting Netflix and demanding that it purge every copy of the film from its inventory.”

Google says the copyright system isn’t meant to deal with such fallout and points to something we wrote on the day the ruling was released.

“Nor would the implied-license doctrine solve the problem. YouTube, after all, could not meaningfully adjudicate a takedown dispute if a bit player asserted that he had been misled about what his role in the film would be. Implied contract claims are intensely factual and subject to defenses — such as the fraud-in-the-inducement defense the majority identified — that third-parties like YouTube are ill-equipped to adjudicate. Its only choice would be to roll the dice with an infringement suit or remove the video. As one commentator has already recognized, the majority’s rule will ensure that online service providers like Google and YouTube ‘will have tough days ahead of them in determining how to respond to copyright takedown notices from individuals who, before today, might not have been presumed to hold any interest in copyrighted material.’”

Here’s the full motion.

What Is Polycentric Law? by Tom W. Bell

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Do you like having options when you look for a new bank, dry cleaner, or veterinarian? Of course you do. You want to find the service that will best satisfy your particular demands, after all, and you know that when banks, cleaners, and vets have to compete they have a powerful incentive to make you happy. A monopoly, in contrast, can take its customers for granted.

Polycentric law simply extends that observation from commercial services to government ones. Just as competition makes life better for those who seek banking, cleaning, and pet care, it can benefit those seeking fair and efficient legal systems. Competition helps consumers and citizens alike.

Polycentric law regards the sorts of legal services that governments provide—defining rules, policing their application, and settling disputes—as a ripe field for competition. When a government claims a monopoly in the law, it tends to neglect the needs of its subjects. In a polycentric system, however, providers of legal services care more about what consumers want. They have to, if they don’t want to go out of business.

Our Polycentric World

But won’t competition between legal services lead to chaos? Evidently not. We already live in a world that offers us a fair degree of choice between the sorts of rules we live under. Polycentric law simply takes note of that fact, sees the good in it, and argues for more of the same.

It may not always seem as if you can choose the legal system you will live under. If you like the culture and climate of United States, for instance, but not the commands that issue from the federal government, you indeed face a hard choice: Suck it up or hit the road.

And even if you do decide to leave in search of a better legal system, you have no guarantee of finding one. Because they typically impose uniform rules across large geographic areas, governments tend more toward monopolistic law than polycentric law.

Even so, excepting totalitarian regimes such as the former Soviet Union and present-day North Korea, most governments allow disgruntled residents the freedom to escape to better legal systems. Most also allow movement within their borders, from one state, county, or town to another, affording the freedom to choose between local legal systems. To some degree, therefore, governments already compete against each other. But the influence of polycentric law goes deeper than that.

From Plain Old Law to Polycentric Law

To fully understand the extent of polycentric law, you have to understand the nature of law itself. Legal philosopher Lon Fuller aptly described it as “the enterprise of subjecting human conduct to the governance of rules.” So described, the law is not just a service provided by public organizations. It also issues from private sources such as homeowners’ associations, businesses, religions, clubs, and myriad other organizations that subject their members’ conduct to the governance of rules.

Consider a residential cooperative corporation, for instance. Such a co-op’s members both possess shares of it and lease their homes from it; in effect, they own their landlord. And like other landlords, a residential cooperative corporation subjects its tenants to the governance of rules. A residential co-op might specify quiet hours, for instance, and establish a committee to resolve complaints between member tenants.

That may not sound much like the sort of legal system offered by a conventional government—until you reflect that many residential co-ops rival cities in terms of their size and range of operations. The largest of them, Co-Op City in New York’s Bronx borough, houses over 50,000 members. In addition to shelter, Co-Op City provides an elected government, parks, streets, security, and just about every other service you might expect from a conventional city.

Homeowners’ associations (HOAs) likewise often grow as large and capable as cities. The largest HOA in the United States, Highlands Ranch, Colorado, includes over 30,000 homes and 90,000 residents. In all respects but its origins and legal status, it resembles a conventional municipality.

Other private organizations also effectively duplicate cities on a small scale. Malls and hotels, for instance, provide their users with transportation networks, shelter from the elements, utilities, fire protection, security, and (most pertinently for present purposes) rules of conduct.

The scale and scope of residential co-ops, HOAs, malls, and hotels make it easy to see how the private sector can rival the public one in providing governing services. Polycentric law is not solely the province of huge, private quasi-cities, however. Under Fuller’s definition, even a small organization that regulates only a narrow range of behavior—a church that imposes strict dietary rules on its members, for instance—also qualifies as a source of law. Size and breadth matter less than whether an organization subjects human conduct to the governance of rules.

For More Polycentricity

We thus already live in a somewhat polycentric legal order. Except when they completely imprison their subjects, governments have to compete against each other for financial and human capital. This means that, in the long run, governments that fail to supply adequate legal services tend to end up poor and unpopulated. Alas for consumers of governing services, though, that “long run” can last for generations. To make governments better sooner, we need to make them face more competition.

Except when a totalitarian government completely eradicates them, intermediary institutions also compete in the market for law. Towns compete with residential co-ops and HOAs to provide housing arrangements; main streets compete with malls to provide shopping environments; religious institutions compete with each other to provide moral instruction, and so forth. Because each subjects human conduct to the governance of rules, each of these institutions competes in providing the law. Here, too, though, we might benefit from more competition.

How can we make the law more polycentric? We can start by recognizing that legal systems do not differ in principle from banks, vets, cleaners, or other services. All face some competition and, insofar as they do, consumers benefit. Legal systems differ from other services not because they escape the effect of market forces, but because they have for too long pretended to do so.

Once we recognize that competitive forces already shape legal services, we can turn to increasing their influence. We should seek ways to make it easier for disgruntled subjects to flee, either physically or virtually, from bad governments to better ones. Bitcoin, for instance, seems likely to help on that front. And we should encourage the rise of special jurisdictions, such as the ZEDE/LEAP zones recently introduced in Honduras, where locals can opt into legal rules imported from abroad.

From a Good World to a Better One

Far from a mere theoretical ideal, polycentric law already shapes our world. We need only appreciate its latent power and invite more of the same. Once more fully realized, polycentric law can give to the consumers of legal services the same benefits that free and open competition already gives to the consumers of banking, cleaning, and veterinary services.

ABOUT TOM W. BELL

20121126_TomBell

Tom Bell

Tom W. Bell is a professor at Chapman University School of Law.

Is America ready for Common Law Divorce?

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In the course of human events we as a People need to divorce ourselves from statutes and regulations and bring justice to what has become a legal system. I have been studying Common Law and have learned that this union of States never had a legal system but a Justice system in place when it was founded. A legal system taxes you for making errors in what some legislator says is bad for society. In country known as the “land of the free and the home of the brave”, I ask you are free or brave enough to make a stand?

What is Common Law? It is the Law of the Land.

Our judicial system has you tricked in traffic court, or some planning and zoning employee telling you that your shed is too tall or has too many square feet and they file a complaint against you in Admiralty court. Did you know, you do not need to consent to Admiralty court or that you were even in Admiralty court?  Did you know that by pleading you have agreed to be ruled statutes and regulations in Admiralty court? That is not the Law of the Land but you have waived your rights by not challenging the jurisdiction of the court. Judges will object to your demand to know the jurisdiction and threaten you. This is just to keep you thinking they have power over you but they do not. You may even be lead out of court in handcuffs for challenging the jurisdiction. The people with cases behind you will not attempt to do the same by seeing this; it is just a power play.

A study of Common Law, and just 2 friends in the court as observers from the gallery, can bring back the justice system to ever case and every challenge of jurisdiction for every statute and regulation violation. Statutes and regulations are not Law.  You, a People in the land of the free and the home of the brave, will accomplish this by exposing the legal system hoax and its fraud upon the People. Those brave enough to help your common law friend in his case by signing an affidavit of an unconstitutional act against them by a judge a prosecutor or even a defense attorney appointed by a judge is the cure.

All IRS code, yes all 74,000 (plus) pages of it are not allowed in your Common Law Court of record, if it is your wish. You cannot defend against IRS code, because you have entered into Admiralty court. You need to file your complaint in your Common Law, court of record case and your case is a higher court then the IRS’ s court.

Imagine that no attorney has ever told you such a thing and many ask why?

It is simple that attorney can never pay for his “Law Degree” loan because he cannot represent you in a Common Law court of record. You have to stand on your own two feet and represent yourself. It is true you have a fool for an attorney if you represent yourself in Admiralty court but you are not attorney you are a People and you do not practice Law you perfect it in your court of record.

Common Law is common sense and has no written code but it allows a jury of your peers to judge it and nullify your bad complaints and remedy you good complaints. NO JUDGE RULES A CASE IN COMMON LAW. So many people today complain that judges do not give justice. That is not the job of a judge, they are in Admiralty court seeking monetary judgment for a party or denying monetary judgment to a party. Equity is all an Admiralty court does. Justice is from your action in court and your remedy sought to rectify you for your loss by a jury of your peers. Yes it is just that simple.

Corpus Delicti means with no injured party, you have no crime. When a government employee makes a complaint against you like a ticket for parking to far from the curb you must ask, who was harmed?  You own the road, the curb, the car and the officer is paid out of your pocket, which makes him your subject and employee.  In Common Law you cannot sue yourself but these Admiralty courts have you doing just that. It is a revenue generator that harms you and just by pleading you have an agreed to the Court’s authority. Do not plea; ask the court to see the complaint from a People, not one of your employees. Demand to see the International Contract that allows them to force you to make a plea in Admiralty court.

When a judge makes a plea for you learn to object. When judge denies your challenge to jurisdiction and has entered a plea for you as “not guilty” say the magic words “ let the record show the judge has ruled me not guilty” in Admiralty court.  A judge cannot practice law, from the bench, by entering a plea for you. He can rule you not guilty. Once spoken by a judge and my objection is disregarded by the judge and the prosecutor I may even add, “further proceedings will show the prosecutor is impersonating an officer of the court” and demand his arrest. Your friend in the court as observers can verify all things that may not be recorded by the court recorder. All they need to do is file an affidavit.

The courts will resist these measures and We the People of our states need to take these actions. It is not civil disobedience it is civil obedience that our founding fathers had in mine when they wrote the US Constitution and your State had in mind when in adopted its Constitution as a republic in this union of 50 republics. Since we have been fooled for so long it is time to make these truths self evident to the people that think they are Law makers. They are only statute and regulation makers. Know the difference and make a stand for Liberty. I see no need to correct the Law I only see the need to remove the corrupt people, by ignorance or intent, to deny the People what is the Law.

These things were taught to every kid that passed the 8th grade before 1900 and we do not even hear about Common Law unless someone is using it for a marriage agreement that was never made before a justice of the peace or clergy. We need the American People to know they can demand a Common Law Divorce from government Statutes, Regulations and Code. It does take about 100 hours of study and that is about the average amount of time people watch television in a month.

Turn off your TV, study Common Law. Never pay income tax again? This sounds like an affordable idea to most people.

Florida Sheriff: Medical Marijuana Amendment a very bad idea

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Sarasota County Sheriff Tom Knight did an op-ed in the Herald-Tribune on the Florida Right to Medical Marijuana Initiative, Amendment 2. Sheriff Tom Knight is the 10th Sheriff of Sarasota County, serving since January 6, 2009. To pursue this office, he left a 20 year career with the Florida Highway Patrol where he held the position of Troop Commander, managing a seven-county region with more than 300 employees, a central communications center and a $20 million budget.

According to Ballotpedia:

The Florida Right to Medical Marijuana Initiative, Amendment 2 is on the November 4, 2014 ballot in the state of Florida as an initiated constitutional amendment. The measure, upon voter approval, would legalize the cultivation, purchase, possession and use of marijuana to treat medical conditions when recommended by a licensed physician. The measure would also order the Florida Department of Health to register and regulate producers and distributions of medical marijuana and to issue identification cards to patients and caregivers utilizing marijuana.

The measure is sponsored by the People United for Medical Marijuana.

Sheriff Knight makes the following points in the Herald-Tribune op-ed:

  • There is overwhelming factual information pointing to the darker side of legalized marijuana, even when it is intended strictly for medical therapy. Messages in the $4 million-plus campaign to get this issue passed have tugged on our emotions and focused on isolated cases, without a thought or mention of the many negative, unintended consequences that are already playing out in other states that have legalized medical marijuana — even those whose ballot amendment language was far more restrictive than what is proposed in Florida.
  • Although many voters may think that medical marijuana will truly be limited to those with chronic, life-threatening conditions or severe, unmanageable pain, we must not delude ourselves into thinking that this will be our reality if it passes. Keep in mind that it will not be treated like real medicines — the kinds that are scientifically tested through clinical trials and regulated by the Food and Drug Administration. Instead, it will be more like a homeopathic substance, sold not by pharmacists but marijuana retailers.
  • In Colorado, where nearly 107,000 patients have approval for medical marijuana, the average user is a male in his 30s with no terminal illness and a history of drug abuse. Only 2 percent of Colorado medical marijuana patients report being treated for cancer, less than 1 percent report treatment for HIV/AIDS, and only 1 percent report treatment for glaucoma. The statistics from other states that permit medical marijuana show similarities.
  • What we will likely (almost certainly) see is a proliferation of marijuana dispensaries in our communities, because the profit potential here is enormous. Census data suggests that communities with populations comparable to Sarasota’s in states that permit medical marijuana have already experienced this. To evaluate this for yourself, visit www.weedmaps.com. Thus, Venice, Florida, could mirror Venice, California, where marijuana dispensaries are a common sight along the famous beach.
  • Because federal law makes marijuana illegal, corresponding banking and credit card restrictions make medical marijuana a largely cash business. As with any cash business involving a commodity that people crave, the infiltration of organized crime has followed. In November 2013, the Drug Enforcement Administration raided several Colorado marijuana dispensaries based on suspected ties to Colombian drug cartels. Given that Florida has almost four times the population of Colorado, this trend will easily migrate here.

Read the full op-ed by going here.

Recently Dr. Larry Reed was in Sarasota to discuss seven principles of sound public policy. In the context of the medical marijuana debate principle number three comes to mind:

Sound policy requires that we consider long-run effects and all people, not simply short-run effects and a few people.

Sheriff Knight is considering the long-run effects and all the people.

RELATED STORIES:

Students Find Way To Secretly Smoke Marijuana In Class – CBS Denver
Pocket hookahs proliferate with young marijuana users, sources say – The Denver Post
LA Times – Pot candy ‘geared toward children’ seized at San Clemente checkpoint

EDITORS NOTE: The featured image is attributed to Rachel S. O’Hara, Staff Photographer for YourObserver.com.

Lawsuit against malicious internet attackers

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Image: “An Abyssinian Lawsuit”

Bill finally hits back against malicious internet attackers.

[youtube]http://youtu.be/GDj9CEei5mQ[/youtube]

“An Abyssinian Lawsuit”.

The featured image is based on the description of Abyssinia by James Bruce. The book notes:

Bruce also described the Abyssinians as never making a new law, as with their usual superstition and obstinacy they ascribe to their ancient statutes a Divine or sacred authority. Thus, when a case is before the judges, they say: “Let us hear what the Fitha Negust (their law-book) says.” It is opened solemnly, and the first passage which can be found bearing at all on the subject, is read and acted upon, all other considerations being disregarded. On the occasion of a lawsuit, both parties, accuser and accused, must find security or be fastened together during the continuance of the suit; and afterwards the loser must again give security on all the points for which he may be condemned. Also he must hand over a certain amount, according to the importance of the case, to the judges, who get no other pay beyond the numerous presents they receive on all hands.

A Rabbi’s Letter to Georgia Legislators on American Law for American Courts

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Re: HB 895 – Foreign Law; prohibit the application of foreign law in Georgia courts; violations of rights guaranteed natural citizens by U.S. and Georgia Constitutions

Dear Congressman Hightower,

My name is Rabbi Jonathan Hausman. I have a BA in Judaic Studies, MA in International Affairs concentrating on the Middle East (both degrees from The George Washington University), JD from Emory University (licensed to practice in the State of Connecticut and Commonwealth of Pennsylvania), and my Rabbinic degree from Kollel Lomdei Torah of The Tifereth Israel Rabbinical Yeshiva. I spent a great deal of time living and studying in the Middle East having lived and worked in Israel and studied at The American University of Cairo. I read, speak and write Hebrew and Arabic, and am conversant in Jewish and Islamic sacralized texts and literature.

It has come to my attention that representatives of the Anti-Defamation League gave testimony opposing the aforementioned legislation SB 895 – Foreign Law; prohibit the application of foreign law in Georgia courts; violations of rights guaranteed natural citizens by U.S. and Georgia Constitutions.

I write to you in response as one who possesses the unique skills to plumb the sources of two traditions (Judaism and Islam) along with the requisite legal training appertaining to US law and Constitutional governance.

Indeed, a comprehensive study was undertaken by the Center for Security Policy (CSP) in 2011 which uncovered the extent of the use of Sharia (Islamic Law) as the basis for legal decisions. 50 Appellate court cases from 23 States were reviewed in this study. Most of the cases referenced in this study involve Muslim women and children, who were asking American courts to preserve their rights to equal protection and due process in cases dealing with divorce and child custody. These families came to America for freedom from the discriminatory and cruel laws of Shariah. However, all 50 Appellate decisions dealt with the application of Sharia in contravention to the Constitutional guarantee of equal protection under the law.

The CSP study’s findings suggest that Sharia law has entered into state court decisions, in conflict with the Constitution and state public policy. Some commentators have said there are no more than one or two cases of Sharia law in U.S. state court cases; yet the Center for Security Policy found 50 significant cases just from the small sample of appellate published cases in 2011. The number of lower court decisions that did not result in appeals is not known as such cases are generally not reported.

With all due respect to the claims of the ADL that the aforementioned legislation’s supposed purpose is to counter the infiltration of our judicial and legal system by Sharia (Islamic) law while subsequently claiming that no Georgia court decision, or any other court decision, demonstrating an actual need for this legislation can be found is demonstrably incorrect.

Many have asserted with certainty that state court judges will always reject any foreign law, including Sharia law, when it conflicts with the Constitution or state public policy; once again, the Center’s study found 15 Trial Court cases, and 12 Appellate Court cases, where Sharia was found to be applicable in these particular instances. The facts are the facts: some judges are making decisions deferring to Sharia law even when those decisions conflict with Constitutional protections. The complete study is available at http://shariahinamericancourts.com/.

Some have also claimed that such legislation is applicable to all religious law. So, for instance, the observant Jewish community regularly uses religious tribunals (Batei Din) to resolve all kinds of disputes, including divorce settlements, which often are the basis for civil court divorce decrees and orders. But this legislation would prevent a Jewish couple in Texas from voluntarily using a Bet Din to resolve their divorce settlement, and also would invalidate an out-of state divorce based on a Bet Din arbitration. This is incorrect.

There is a basic Rabbinic principle that has operated since roughly the year 226 CE. That principle is known as Dina d’malchuta Dina, the law of the country is binding and, in certain cases, is to be preferred to Jewish law/Halacha. Rabbinical developments evidenced a practicality regarding dealing with and maintaining positive relationships with the governing non-Jewish civil society (e.g. Parthian and subsequent Sassanid Persian rulers of Babylonia) which surrounded the Jewish community. This extended to the Jewish communities of Europe and, subsequently, transplanted to the United States.

While it is true that Jews maintained their own courts in certain locales during certain historical periods whose decisions were enforced by the secular authorities, such Rabbinical court decisions always were set aside if there was a conflict with the society at large. As a member of the Rabbinate who engages frequently with many different issues regarding matters of personal status (marriage, divorce, property settlements, etc.), I can attest to one basic fact of legal life. If a Get (Jewish bill of divorce) is issued by a husband to a wife without a civil divorce, that couple is still married in every jurisdiction in this country. This is just one example amongst many.

Halacha/Jewish Law has this precept that one must be reconciled to changed circumstances regarding government, and that civil law is necessary for the functioning of the greater society. The result was an internal recognition of Judaism’s non-supercessionist and non-conversionary character. According to the Prophet Nehemiah, Jews should obey the laws of their rulers (Nehemiah 9:37). It extends to real property issues (after all, the government could/can confiscate property), common currency, taxes, recognition of administrative officers and documents and regulations issued by such authorities, as well as the appointed juridical positions within and outside of the Jewish community.

As for those issues dealing with personal piety (e.g. Kashruth, that is observance of the Jewish dietary rules), such only apply to Jews specifically and not to the world at large. There is nothing coercive vis a vis general society.

Sharia, on its face might be described as the religious code for living the moral system according to Islamic tradition; perhaps, in the same way the Bible would serve for Christians. The difference is quite stark, however.

Sharia refers both to the Islamic system of law and the totality of the Islamic way of life. It is immutable, perfect, unchangeable, static, and unchanging. Death penalty for apostasy, as well as homosexuality, adultery, freedom of speech issues when it comes to criticizing Islam or Muhammad or drawing satire cartoons, disfigurement for theft, depredations suffered by women (e.g. the increasing frequency of honor killings in the US protected under Shariah, female genital mutilation, child custody and absconding of minor children) and the irrelevancy of women’s testimony as well as lower percentage of inheritance and no rights regarding issues of child custody, plaintiffs exacting legal revenge (eye for an eye is taken literally), gambling, alcohol consumption all command exacting punishment under Sharia.

The only instance in the United States dealing with a criminal prosecution for female genital mutilation occurred in Georgia. Furthermore, there are known to be two cases of children of a marriage between a non-Muslim American mother and a Saudi Muslim father who absconded with the children because Sharia law dictates that custody resides solely with the Muslim father and male relatives.

The United States has a Constitution under which the government functions, and the Bill of Rights which protects basic human rights and freedom – rights derived from the Almighty according to the secular foundational documents of these United States – freedom of speech, freedom of worship, freedom of education and freedom to organize political parties. The pertinent question regarding Sharia is thus. Does Sharia, as a legal system act in consonance with the Constitutional legal principles so cherished by and supported by over two centuries of American case law or does it stand for a diminution of the rights of many segments of our population? If the latter, then legislation such as HB 895, The application of foreign law and foreign forum selection in certain family law proceedings certainly is one of the surest methods to protect the Constitutional rights of parties in family law matters under Georgia law and practice, as well as in front of the Georgia Judiciary.

Sincerely,

Rabbi Jonathan H. Hausman
BA,MA, JD, Rabbinic Ordination
Spiritual Leader
Ahavath Torah Congregation
Stoughton, Massachusetts

Cc: Congressman Wendell Willard, Chair, GA House Judiciary Committee
Congressman David Ralston, Speaker, GA State House
Congressman Alex Atwood, Secretary, Public Safety and Homeland Security
Committee

EDITORS NOTE: This column originally appeared on The New English Review. The featured image is courtesy of David B. Strutt Photography, www.dstruttphotography.com.

Free Marie Winkelman: Pray for Justice Now!

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Marie Winkelman’s guardianship has a large cast of characters who benefit from her status as a Ward of the State of Florida, including family members and quasi-family members, as well as a host of attorneys and numerous service providers that were unknown to Marie before she was forced into guardianship. This is the fifth in an investigative series on Marie’s case (see links at the end of this column).

A Large Cast of Attorneys

Economou_D

Judge Deno Economou, 12th Circuit Court, Sarasota, FL.

Marie’s first guardianship attorney, Erika Dine, was appointed by Judge Deno Economou, who single-handedly presides over the probate courts in Manatee and Sarasota Counties, Florida. Dine was also the attorney who represented the guardian (Aging Safely, Inc.) of Al Katz, who was an 89-year-old Holocaust Survivor, as is Marie. See this writer’s previous investigative series on the Al Katz guardianship.

Barry Spivey, Marie’s next attorney, prepared and signed a mediated settlement agreement that he asked Judge Economou to adopt in his incapacity and guardianship order, which declared Marie to be incapacitated and made Sabal Trust Company her Trustee. Spivey never showed the Agreement to Marie before or after it was signed and never told her he had a closed hearing with the Judge to declare Marie incapacitated and put her into guardianship, losing all control of her millions of dollars in trust.

Rebecca Proctor, P.A.

Rebecca Proctor, P.A.

Also attending the secret hearing on December 2, 2013, was Rebecca Proctor, the attorney for Marie’s two guardians, Raymond Millman and Alina Koren, Marie’s sole blood relative, who was rescued by Marie from Poland as a toddler after the Holocaust. Attorney Proctor is a Director of Aging Safely, which is the agency that was Al Katz’s guardian for two months, during which time he went from fully verbal and mobile to “imminent death” status.

Both Proctor and Alina Koren (plus her husband, Dr. Yoram Koren) signed the Mediated Agreement that made Marie’s trust part of her guardianship and transformed it from revocable to irrevocable, thereby sealing the beneficiaries of the trust forever, including Alina Koren. Thus, its primary beneficiaries, Marie’s stepdaughters – Corinne Szychowski and Diane Winkelman – are set to inherit millions of dollars each from the trust.

Quasi-Family Members and Even More Attorneys

Corinne’s husband and Ruttger’s administrator, Robert Szychowski, initiated Marie’s guardianship, which automatically made him the successor trustee to her trust. All of his legal bills and transportation costs to fight Marie in court are paid from Marie’s assets without any oversight by Marie or the court. Robert Szychowski hired two attorneys, Christopher Likens and Kim Bald, who fought to have all of Marie’s civil rights taken from her. Their fees, likely amounting to hundreds of thousands of dollars, are paid from Marie’s accounts.

Audrey Bear PA

Audrey Bear, P.A.

At this time, Marie’s lawyer is Audrey Bear, a friend of Rebecca Proctor and Christopher Likens, who had promised Marie she would litigate her case zealously, but instead asked the court to once again mediate Marie’s incapacity and guardianship behind closed doors, with no record made and no evidence presented on Marie’s behalf. This mediation has been ordered by the court to take place on February 28 in the offices of attorney and mediator, Gary Larsen.

Medical Professionals Added to the Cast Members

JosephJLarkin

Joseph J. Larkin, M.D.

Behind the scenes from the beginning of Marie’s case were medical professionals. Dr. Joseph Larkin, Marie’s physician, sent visiting nurse, Lori Gaetano, to Marie’s residence, and Gaetano then recommended a psychiatrist, Dr. Miguel Rivera, to see Marie. In early July 2013, Gaetano accompanied Rivera to evaluate Marie without telling her the purpose of their visit. It was Rivera’s subsequent report that was used by Robert Szychowski in court to initiate Marie’s guardianship. Rivera was later paid more than $900 from Marie’s assets by Robert Szychowski, who later hired Gaetano to be Marie’s “care manager,” at her expense without her knowledge for months.

Also hired by Robert Szychowski is an agency (Bright Star) that visits Marie twice everyday, although Marie is in good health for her age and has outstanding health for a Holocaust Survivor. Somehow, unbeknownst to Marie, Lori Gaetano is still being employed at Marie’s expense to supervise this staff of nursing assistants.

In a depressed economy, at least dozens of professionals are faring very well from fair Marie.

RELATED COLUMNS:

The taking of Marie Winkelman 1-2-3

Florida places Holocaust survivor in guardianship without due process

Marie Winkelman’s Case demands Litigation, not Mediation, to protect her Life, Liberty and Property?

Exposed: Florida’s Judicial Star Chamber

Army Lieutenant Michael Behenna wins parole!

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In what has to be a true miracle, Army 1LT Michael Behenna has won parole. Apparently he was notified that his clemency request was denied but the parole request was granted.

Michael was serving a 15-year sentence for unpremeditated murder of a known terrorist in Iraq. His trial and sentencing had created a firestorm and grassroots movement. I went to Ft. Leavenworth to speak at a rally on his behalf and have met his mother and father on several occasions.

Congratulations to the Behenna family; Michael is coming home. Michael, God has rewarded you for your faith as he heard yours and many others’ prayers. Next we have to get justice for 1LT Clint Lorance.

EDITORS NOTE: This column originally appeared on AllenBWest.com. Featured photo of LT Behenna and his girlfriend Shannon Wahl is courtesy of BobMcCarty.com. Bob has been following the Behenna case from the beginning.

RELATED COLUMN: Army Leadership Failures Continue to Destroy Lives

Catherine Engelbrecht v. United States

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Catherine Engelbrecht’s testimony at House of Representatives hearing on the IRS targeting her and True the Vote.

[youtube]http://youtu.be/xxcMKtsm5BU[/youtube]

ABOUT TRUE THE VOTE:

Unfortunately, Americans have lost faith in the integrity of our nation’s election results and fraud and law-breaking has become all too common in our electoral system. We hope to change that perception. True the Vote is a citizen-led effort to restore truth, faith, and integrity to our elections.

True the Vote is an initiative developed by citizens for citizens, meant to inspire and equip volunteers for involvement at every stage of our electoral process. We promote ideas that actively protect the rights of legitimate voters, regardless of their political party affiliation.

We are working to restore integrity to the American system of electing its leaders. With True the Vote, we have, “deconstructed the entire process, focusing on educating voters, examining the registry, recruiting, training and mobilizing election workers and poll watchers, training how to collect data all along the way, then use the data to shape government action and legislative agendas to support desperately needed election code reform.”

Our government was built upon the belief that election results represent the true will of the people and our election processes were always intended to be supported by citizen volunteers. We are helping stop corruption where it can start – at the polls.

Our initiatives include:

  • Mobilizing and training volunteers who are willing to work as election monitors
  • Aggressively pursuing fraud reports to ensure prosecution when appropriate
  • Providing a support system for our volunteers that includes live and online training, quick reference guides, a call bank to phone in problem reports, information on videotaping at polling places, and security as necessary
  • Creating documentaries and instructional videos for use in recruiting and training
  • Raising awareness of the problem through strategic outreach efforts including advertising, social networking, media relations, and relational marketing
  • Voter registration programs and efforts to validate existing registration lists, including the use of pattern recognition software to detect problem areas

Based in Houston, Texas and headed by Catherine Engelbrecht (President), True The Vote is staffed by volunteers all across the country. Essentially, True The Vote is you and me. Every day Americans interested in the integrity of the elections in the home district.

 

Law Enforcement in America: Pretty Uniforms, Ugly Demeanor

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Most of my adult life I lived and worked in the ever changing world of law enforcement. I feel I put in my time and have the right to provide my analysis on law enforcement in America, and their effectiveness in fighting Islamic based terrorism and their lack of support of the American Patriots who love our country and Constitution.

I will break the various categories of U.S. law enforcement down into four groups:

Group 1: Local and County law enforcement officers
Group 2: State law enforcement officers
Group 3: The dozens of 1811 federal law enforcement officers excluding the FBI.
Group 4: The FBI
Group 5: U.S. Military

Our country has always needed law enforcement officers at all levels of government to enforce the laws of our land in accordance with the U.S. Constitution. For the most part they have been effective … up until the sad day on 11 September 2001.

On 911 I was an active (1811) U.S. Federal Agent. I fell into Group 3. It is my honor to say I did not fall into Group 4. On 911 I saw our country change, and not for the better. This is the day I saw the early stages of a wide separation of the Group 1 officers and the FBI (Group 4).

Group 1: Group 1 officers have always been the backbone of our country. Over our young history they have always been the ones with their eyes on the ground and an inner loving and respect for America. They handled law enforcement matters for the most part with a firm, heavy hand when needed, but knew when to back off when required. Their training normally consisted of ‘on the job training’. They were the American citizens best friend, the true defenders of our U.S. Constitution, and a menace to lawbreakers.. They were not always right, but their intentions normally were. They are often the lowest paid and hardest worked. These officers have a Police Chief, Sheriff, but more often than not there were only a couple of officers assigned to a small town area. In other words their management oversight was low. They worked together as one unit protecting America.

Groups 2 and 3: These officers were normally trained to a higher level and their pay was higher. These two groups had more oversight than group 1 officers. Their organizations were often led by people who were career managers and not law enforcement officers. Politics and pleasing politicians were an every day occurrence. Before 911 these officers worked hard days and nights and did their best to stay out of the media and politicians line of view. These officers put the U.S. Constitution ahead of politics, but often their higher management became politician ‘pleasers’ instead of supporting their street level officers.

Group 4: The FBI. Since it’s founding in 1935 it has always been managed by non elected politicians. The first duty of FBI management has always been to fight for the attention from the media, and to do their best to please their masters (Senior U.S. Government politicians all the way up to the White House). FBI Agent were taught directly from the academy that they were America’s super investigators. They had the money allocated to them that was always in excess of what they truly needed. The egos of most FBI Agents is way higher than their true value to America. Many great street level Agents, but they are taught to be glory hounds. The FBI routinely take over local, county, and state investigations when there is even a hint of nationwide media attention. 1811 Federal Agents who fall into Group 3 attend the same academy and receive the same training, but with the help of the media and politicians (through continuous butt kissing) they are portrayed as a more clever investigator. In actuality they are not. They just have more government money to look pretty. The FBI often get involved in military cases and overseas investigations, although they have no authority to do so.

Group 5: The U.S. military. This group of several hundred thousand are not supposed to be involved in U.S. law enforcement activities. Posse Comitatus Act of 1878 Prior to 911 they seldom were. The Posse Comitatus Act of 1878 was intended to prevent U.S. military from enforcing U.S. civilian law. The role of the military was to defend our country from outside forces. For 200 plus years they have been very honorable.

AFTER 11 September 2001: Prior to 911, the dividing lines between each of the five groups has always been well laid out. Each of the groups knew their roles and duties in enforcing civilian law in America. I noticed a major change after 911. All of the groups have seen an increase in department funding, primarily due to counter-terrorism money granted by the federal government.

Their lines now overlap one another. Even small police departments have been provided money they never knew existed. They now have the money to buy military style uniforms, military style weapons, and many now have the egos of FBI Agents (both undeserved). Their goals are no longer to protect the citizens in their communities, they now have the media, politicians, and federal money dispatchers to please. Group 1 now want to look like highly trained combat military soldiers. Their departments have new patrol cars, expensive SWAT gear, RV’s for HQ operations, and they are now 10 times more likely to be seen giving news conferences on trivial matters.

Nice equipment, authoritative combat gear, tanks, drones, and other costly equipment does not make any of the groups any better in handling Islamic based terrorism events if they do not have the proper training. Current none of the groups (1 -5) are being properly trained to defend our country against Islamic based terrorist groups. Few are ever taught Arabic or can even use the term Islam in their investigations.

Our former leaders never intended for our local, county, state, and federal law enforcement officers to be U.S. military personnel. The lines were drawn over 200 years ago and for a reason. Our forefathers have always known that the closer law enforcement are to senior government officials their mindset changes. We do not need our local law enforcement who police a community of 500 to have the type of equipment our U.S. military have. Why? Because the higher you get to the top of the federal government, the more corrupt people become.

As the non commissioned officers are the backbone of our military (ask any commissioned officer), the backbone of defending America from within as the first-line defenders are the local and county law enforcement officers. The more political and ego driven they become, the less prepared they are to fight Islamic based terrorism.

Another lesson: We could help resolve our country’s high debt ceiling if we were to abolish the FBI. This agency costs billions a year to fund, and the vast majority of cases could be handled by Groups 1, 2, 3, and 5.

A Dirty Little Judicial Secret

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USURPATION OF JUDICIAL POWER:

A practice has grown among the judiciary to reserve, exclusively, to a trial judge, the power of judging the law. This is not to say that judges, per se, refuse all knowledge of the Jury’s right to judge the law. Many courts have recognized this right. However, what the judicial branch, per se, does, is refuse to tell a jury of their rights, while at the same time not allowing an attorney to do so either (Sparf & Hansen v. U.S. 1895, 156 U.S. 102).

There are two primary reasons judges insist on being the only definer of the law. 1) Because they believe common jurors are just that – regular people that are not sophisticated enough to understand the law unless a judge explains it to them; 2) Judges do not want to surrender their self-granted power to attorneys.

Judges, officiate in criminal jury trials for the primary purpose of ensuring a fair trial. They are referees or umpires whose duties lie in making sure the playing field is level – not to pass judgement. Judgements are reserved to the jury. Juries decide facts, and when appropriate, judge the law as well.

When a jury judges the law it has been commonly called Jury Nullification. It could be better labeled, Jury Prerogative, a recognition of the juror’s right (duty) to judge the law as well as the facts of a case. Judging the law means comparing a law in question against an accepted standard. In America, the only standard to which a law can be assessed is a constitution, either state or federal.

Jurors do not have the license to judge a law to their personal standard or opinions. To allow one to whimsically decide whether a law is good or bad based upon a personal view would be inviting judicial lawlessness.

Jury Prerogative (nullification) is the right and power of a jury to decide the facts of a case and determine the validity of a law by judging the subject law against a state or the federal constitution.

HISTORICAL BACKGROUND:

The 6th Amendment to the U.S. constitution states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury….” It doesn’t say by a judge; it specifies an IMPARTIAL jury. A government employee, using his or her powerful position to ‘charge’ or ‘instruct’ a jury, is violating the 6th, 9th and 10th Amendments of the U.S. Constitution. A jury that has been subjected to this usurpation of power is no longer impartial – it has been influenced to the judge’s uncontested bias.

Our Constitution, our rule-of-law, was written by laymen for laymen. No where in its articles or amendments is the judicial branch empowered to TELL a jury anything, much less how to apply a law. Some states, in open confrontation to the Constitution, have even gone so far as to require jurors to report fellow jurors who refuse to follow the law as directed by a judge!

Our fore fathers realized that judges, being human, carry their own prejudices. Because of this, the framers of our Constitution did not require judges, during a jury trial, to swear to tell the whole truth and nothing but the truth. In all criminal proceedings witnesses who are going to testify before a jury must swear, under penalty of perjury, to tell the truth. This rule applies to everyone including lawyers, police officers and other government employees even though they have sworn an oath to their office and the Constitution. The judge is immune to this rule of law because he is not expected to testify. Unfortunately, a practice has evolved where judges do testify in the form of their ‘instructions’ or ‘charges’ to the jury. It is during this ‘testimony’ – this propagation of their own power – that the judge will NOT tell the whole truth. The whole truth being a jury’s right and power to decide the constitutionality of a law.

Many precedent setting rulings, dating from the decade of this country’s inception to as late as 1972, have confirmed that Jury Prerogative is a bono fide right and power of a jury.

COMPARATIVE EXAMPLE:

Just for the sake of argument, let’s say that Public Law X makes it a crime to speak or write anything derogatory about any federal employee. Soon thereafter, your car is struck by a vehicle negligently operated by a FBI agent. In the heat of the moment and outraged that this bozo had damaged your new BMW, you call the agent an incompetent jerk whereas you are immediately arrested for violation of Public Law X.

You’re an honest person and do not deny that you made those comments. You place your faith in the fact that Public Law X is obviously in direct violation of the 1st Amendment to the U. S. Constitution. However, and for whatever reason the judge in your trial denies your attorney’s motions for summary judgement, i.e., that Public Law X is unconstitutional. At the conclusion of the trial the judge ‘instructs’ the jury that if they find that you did utter derogatory comments to a federal employee they, the jury, MUST find you guilty as charged. Of course, the jury has the right and power to determine that Public Law X is in violation of the First Amendment. However, if the judge refuses to tell the jury that they have this right and your attorney is not allowed (ibid, Sparf & Hansen) then that leaves you in a shooting war – and without a gun.

JURY PREROGATIVE – WHAT IT IS/IS NOT

Circa 1988, a group of citizens formed a grassroots organization, The Fully Informed Jury Association (www.fija.org). Their intention was to inform jurors of their right to judge laws. However the FIJA misinterpreted the meaning and definition of Jury Nullification/Prerogative and have skewered, twisted and misapplied this 200 year old concept. They promote the notion that juries have the right to decide if a law is good or bad as judged against their own (individual juror’s own) standards of good and bad. (http://fija.org/)

In a recent case, the California Supreme Court (People v. Williams, S066106, 2001), found that a juror who told a trial judge, “I simply cannot see staining a man, a young man, for the rest of his life for what I believe to be the wrong reason.” This juror raised no issue of constitutionality – he was applying the law to his own personal standards. The juror was replaced by an alternate in what has been called a “Jury Nullification” case. It was not. There was no issue of constitutionality at bar.

The California Supreme Court correctly upheld the dismissal of the juror for applying his own standard to what the law meant. To evoke Jury Prerogative, a juror must believe the law under which a defendant is charged is unconstitutional. For example: if a defendant is charged with violation a law “A” and a juror votes for acquittal because this juror believes that law “A” is unfair, defective, unjust, not a good law or the law is stupid, the juror is not doing his duty. However, if the juror is convinced that law “A” is in violation of a state or a federal constitutional guarantee, then the juror is obligated to vote not-guilty.

Jury Prerogative (nullification) is the right and power of a jury to decide the facts of a case and determine the validity of a law by judging the subject law against a state or the federal constitution.

POSSIBLE REMEDIES:

  • Demand a full legal representation. Forcing a defendant to become his own lawyer just for the sake of arguing the law’s constitutionality is a clear violation of the 6th Amendment right to counsel. In other words, it is well established in case law, that the accused is entitled to representation at ALL levels of trial including even pre-trial interrogation and post-trial sentencing. Therefore, how can the courts continue to support Sparf (ibid) which clearly forbids representation at a most critical stage of a trial – the “instructions/charge” to the jury? This quirk of forbidding attorneys to argue the law before the jury, but permit pro se testimony seems to have escaped the logic of the judicial system. By this same reasoning, if the courts are permitted to bar an attorney from presenting evidence, testimony and/or summation concerning the constitutionality of a law, then what is to prevent the court from forbidding an attorney from arguing the credibility of a witness or any other issue before the jury? No doubt the trial judge will deny your request thus allowing you to appeal to a higher court where this matter should be settled.
  • Join the JUDICIAL ACCOUNTABILITY INITIATIVE LAW organization. J.A.I.L. is working to enact Special Grand Juries to sanction judges by levying fines, forfeitures and possible removal from the bench against judges who usurp their powers. (www.jail4judges.org).
  • Consider filing suit against your local Jury Commissioner to require the Jury Prerogative option be disseminated to prospective jurors.
  • If you are charged with a crime and you can show the law under which you are charged is in violation of your state’s or the Federal Constitution, demand a jury trial and mount a challenge to Sparf & Hansen v. U.S.
  • If you are not successful with your challenge to Sparf & Hansen at the trial level, have Plan ‘B’ ready: Consider acting as co-counsel. Because the judge will not advise your jury of their right to judge the law and also refuses your attorney that power, your only option might be to tender the summation yourself.

Acting pro se, you can say almost anything to a jury as acknowledged by the 1972 case, U.S. vs Dougherty (473 F.2d, pg 1137):  “Thus, a defendant’s ability to present his demeanor and often even a kind of testimony, without exposure to impeachment or cross-examination, may be a tactical consequence of pro-se representation, and even a moving cause of its invocation….”

Sidebar: “The law itself is on trial quite as much as the cause which is to be decided.” Harlan F. Stone, Chief Justice U. S. Supreme Court (1941). “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge….” (U.S. vs. Dougherty, 473 F.2d 1139 [1972]). “The jury has a right to judge both the law as well as the fact in controversy.” John Jay, 1st Chief Justice U.S. Supreme Court (1789).

The jury does and always has had, in the words of Justice Holmes, “the power to bring in a verdict in the teeth of both law and facts” (Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53,54,65 L.Ed. 185 [1920]).

© 2014 Chuck Klein www.chuckklein.com

EDITORS NOTE: The featured image is a screenshot of “A dirty little secret” from Frasier episode, “The Show Where Sam Shows Up” in 1995 courtesy of Paramount Television and Grub Street Productions.

Woman targeted by TSA Agent for reading The Jewish Press newspaper

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Phyllis_Chesler

Phyllis Chesler, author of “An American Bride in Kabul”

I just read an article about a Jewish woman Phyllis Chesler who was at John F. Kennedy International Airport waiting for a flight to Florida (my home state) last Wednesday and she was notified there would be a delay because of the ice storm. So, not being inclined to be bored Ms. Chesler pulled out a newspaper called the “The Jewish Press” and went about reading it.

Paul Joseph Watson from Infowars.com writes:

Award winning Jewish author Phyllis Chesler was questioned and had her bag searched at New York’s JFK Airport as a result of a TSA agent’s suspicions over the fact that she was reading a conservative newspaper.

The incident happened on Wednesday afternoon after Chesler’s flight to Florida was delayed due to the recent ice storms.

As soon as Chesler pulled out a copy of The Jewish Press, a popular English language weekly with a conservative political bent, a TSA agent eyed her with suspicion, approached the author and asked to see the newspaper.

Read more.

Upon reading this article I immediately called the TSA at JFK in New York. I waded through all the press 1 for Spanish and 2 for Mandarin Chinese and then got hold of the TSA Special Agent in charge and laid down the law like Senior Chief’s are supposed to do. I don’t take prisoners.

He told me the phone call was being recorded and he wanted me to spell my first and last name and give him my phone number. No problem said the senior Chief here you go. I told him I am on so many lists adding me to yours at JFK is a badge of honor and make sure he records what I have to say. Do it !!

I then told him that we the people are watching them the government and how they treat Americans. I also added that I understand they are trying to keep us safe but not at the expense of the US Constitution. No way was this lady a threat to anyone and we are not putting up with it. I told the TSA agent that they are now on my list and we are watching like hawks.

I then stated that effective immediately all patriots that fly will be carrying a copy of the newspaper “The Jewish Press” I told him that tomorrow I will take my copy of the “Jewish Press” and stand in front of the TSA agents at Okaloosa Regional Airport and will read it. If they don’t like it well tough crap. Suck it up.

The TSA agent (Name withheld by me) said he was really sorry this happened he gave me directions to pass onto the lady how to file a discrimination charge against the agents that harassed her. He said he will initiate an investigation and find out what happened too. He got worried when I refused to stand down and I refused to stop my offensive posture. I was the castle crushing the pawns swooping across the chess board like a chess master on steroids.

The TSA Agent then surrendered to me emotionally told me that in accordance with TSA rules, Section 504 articles of rehabilitation Section 15.3b and 15.3d, Mrs Chesler has 90 days to file a discrimination complaint. The TSA Agent in charge thanked for me for my 30 years in the US Navy and again apologized for what happened. I think the man thought I was friends with Ms. Chesler or that I was an attorney but I am not.

I just stood up for her, the US Constitution and her freedom to travel freely unmolested at any airport in the United States.

EDITORS NOTE: Phyllis Chesler is the author of An American Bride in Kabul.

RELATED COLUMNS:

“American Bride in Kabul” Wins National Jewish Book Award

An American Bride in Kabul: My Life in Hell in an Afghan Harem

Marie Winkelman guardianship: A Test Case to Lower the Bar on Incapacity in Florida?

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The above photograph shows Willi Berchau  (seated front row center) at his guardianship freedom celebration party in January 2014.

At least 100 pages of Florida law, Chapter 744, are devoted to “Guardianship,” which may or may not be imposed upon a person who is determined to be incapacitated. Holocaust Survivor Marie Winkelman is now a Ward of the State of Florida, based upon the order of the Sarasota County Probate Court, which adopted a mediated settlement agreement that denied Marie her due process rights. This is the fourth part in an investigative series on the involuntary guardianship of author and acclaimed painter Marie Winkelman.

What is incapacity supposed to be?

According to the Uniform Guardianship and Protective Proceedings Act (1997), an “Incapacitated person” is an individual who, for reasons other than being a minor, is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.

So what was Marie’s status before she was put into State guardianship? Until July 2013, Marie lived independently in a lovely residence in Sarasota, Florida, where she cleaned her apartment immaculately everyday, organized her papers and closets effectively, dressed herself beautifully, prepared her meals, entertained guests frequently, did all of her own shopping, talked with her bankers and financial advisors regularly in person and by telephone, made and received calls multiple times per day, read the daily newspaper, paid her own bills by check and by telephone, and carried on conversations for hours, switching from Polish to English, depending upon the recipients with whom she was speaking.

Why Marie Winkelman’s guardianship is a test case …

Can Marie receive and evaluate information? Absolutely. Can Marie make and communicate decisions? Assuredly. Does Marie have the ability to meet essential requirements for physical health, safety, and self-care? Yes. By lowering the bar of “incapacity,” the State of Florida has created a substantially larger pool of affluent persons whose lives and fortunes are under the authority of the probate courts that increasingly operate in secrecy by closing hearings to the media and the public and removing court records from the public sphere.

Why is Marie in Florida state guardianship?

As a Ward of the State, Marie’s assets – millions of dollars – are no longer in her control. They can be and are being spent on hundreds of thousands of dollars of attorney bills, guardian fees, service provider charges, and other such costs that Marie never had before she was forced into guardianship. In other words, Marie’s assets are feeding dozens of professionals in a distressed economy. Only a few individuals are permitted to see the enormous bills being paid by the Sabal Trust Company from Marie’s assets, without Marie’s consent and without any court records of them.

How does Marie’s case affect you?

Have you ever left your checkbook on the table? Marie’s visiting nurse decided that this was a sign of financial incapacity. Do you have paintings on your walls? Marie’s visiting nurse testified in court that someone could take the paintings or the checkbook; so she determined that Marie must be financially incapacitated. Are you?

Can Marie ever escape guardianship?

Marie could litigate her incapacity and guardianship order, but so far, her attorney, Audrey Bear, has only asked the court for yet another mediation (scheduled for January 28, 2014), with which Marie disagrees.

Although Marie has repeatedly asked to have her rights restored, so far Ms. Bear has not filed a restoration of rights petition with the court. On December 15, 2013, Marie passed her examination of four consecutive hours by Dr. Eric Weinstock, the psychiatrist whose positive restoration of capacity evaluation promptly resulted in the freedom from guardianship of Florida Ward, Willi Berchau, who, like Marie, lived independently and successfully managed his wealth until he was forced into guardianship for many years; but, finally, at age 99, Willi is free.

Marie’s guardianship is a test case for the American people to speak out before more of us lose our life savings because we left our checkbooks lying on tables. Lowering the bar for incapacity is opening the floodgates of total state control of elders.

ABC Action News interview with Willi Berchau:

[youtube]http://youtu.be/p7izeaAPdEI[/youtube]

Are “We The People” really members of “The Union”?

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Recently, in my court battle with the State of Florida, the lawyer for the State argued that, although I am the sole owner of and stockholder in my company, that I was not “personally injured” when the State of Florida forcibly removed money from my company bank account. He argued that “only the company was injured and that I suffered no injury”, and the judge agreed.

Sorry, but the money they took was headed straight for my pocket so I’m pretty sure, in some circles, that would be considered a mugging. That battle is continuing and I am going to have to reconfigure some paperwork so a jury can decide that, but it made me think something this judge and lawyer may regret later.

The preamble of The Constitution Of The United States starts out “We the People of the United States, in Order to form a more perfect Union……..” So, who exactly is a “member” of the Union and who is not? Does the administration of this “Union” have any power or authority over an individual or group that is not a “member” of this Union?

The answer to the second question should be easy, NO.

Here is an example: My brother is an electrician and a member of the electricians union. They can make him, under their agreement to be a member of the union, to pay dues (taxes) to support the union and to participate in the union’s retirement plan. They could also declare that immediate family members of the members of the union “shall be entitled to all Privileges and Immunities” that the members of the union receive, but it still would not have the authority to require those immediate family members to also pay dues and participate in the retirement plan, as they are not the actual members of the union.

The first question is the real big one; who exactly is a “member” of the Union and who is not?

Once you read and understand the document, or as I like to call it “The Contract”, that formed the Union, “The Constitution Of The United States” the simple answer is The States and only The States are the members of the Union. This is important because if this is the case, The Union and the Administration of The Union, can NOT impose anything on an individual that is not a member of The Union. Only the States, under the authority of their State Constitution, can impose anything upon an individual citizen of their State. One point to note is the pure abstract and limited authorities and boundaries of The Union, is the FACT that we are the only country on the planet that does not have boundaries that are legally defined. The States are the ones with legally defined boundaries and the borders of the country are defined by the joining of the boundaries of the States when they become members of The Union. The fact is that the borders of our country have changed several times by the act of States joining and seceding from The Union.

Here is how I came to this conclusion:

  • Article. VII. “done in Convention by the Unanimous Consent of the States” This is the enacting clause of The Constitution. It was done with the “Consent of the States” not the consent of “The People”.
  • The signers who did so were sent by the legislatures of the States with the authority to act on behalf of The States, not The People.
  • Article I Section 2. “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers”. The direct taxation addressed is to the several States, not “The People” because it’s the States that are the members of the Union, not The People.

So I know what you are saying “What about the 16th Amendment smart guy?” Well let’s look at what the 16th Amendment ACTUALLY says: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” Does anyone see the words “direct taxes” in the 16 Amendment? Nope!

The 16th Amendment only gives Congress the power to lay and collect taxes on incomes from “Members of the Union”. It never gave Congress the authority to bypass the States and Directly tax “Citizens of the Member States” as the Citizens of the Member States are not themselves “Members of the Union”. We the People have been duped by a word game.

If Congress could actually tax people that are not actually members of the Union because this Amendment declares “from whatever source derived” then they could lay and collect taxes on people from Canada, Mexico and every place on the planet, so I demand these people start paying “THEIR FAIR SHARE!”

Now let’s continue with more supporting evidence that “The States” are the members of the Union and not “The People”:

  • Article. IV. Section. 2. “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” First note that if “The People” were the members of the Union, this section would have no reason to be written. Second “The People” are referred to as “The Citizens of each State” further indication that The People or The Citizens are not actually members of The Union.
  • Article I Section 8 declares that Congress shall have the power To “exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings”. Please note the “not exceeding ten Miles square” The Congress has no power or authority to “exercise exclusive Legislation” Outside of this ten square mile area. It only has the power and authority to exercise legislation on the Members of the Union, and only with the consent of the representatives of those members.

The last thing we are going to consider is how we elect a President.

As you know, we use a system known as the “Electoral College”. We don’t actually cast votes directly for the President. Instead we are casting votes for our “Preference” in candidates for President and those votes actually elect delegates to represent The State and its those delegates that actually cast the votes as “representatives of the State.” In addition, each State, through the legislature of that State, makes it’s own rules as to how the delegates are awarded. Some are “winner take all” and some are divided based on the percentage of votes cast for each candidate. In the end, the delegates, who are technically not bound to vote a certain way, cast the vote on behalf of the legislature of the State, not on behalf of the Citizens.

Some believe it was done this way to make it easier to count the votes for President in the days before modern electronics, but that is a false conclusion. It’s because we are a “Representative Republic”, not a Democracy and because The People are not the members of the Union, only the States. This process is a way to let their preference be known to the legislature, but the legislature is still not technically bound because The Citizens of the State are not members of the Union. This is also why changing the voting to count the popular vote of the citizens would be unconstitutional, as only members of the Union have standing in the process.

The final conclusion is this:

The People are not members of the Union, so the Administration of the Union cannot impose anything on The People. In addition, the Union was formed by The States and the Administration of the Union was created specifically to perform tasks outlined in Article I Section 8 of the Constitution of the United States.

Anything outside of these delegated powers is wholly unauthorized, but unfortunately exists because the States have taken their eye off the ball and allowed these actions to happen, partially from ignorance, but mostly from being co-conspirators with the administration of the Union, letting the Administration of the Union be the muscle to pilfer the coffers of The People and then accepting bribes and payoffs from the Administration of The Union to the legislature of the State to allow the pilfering to happen.

FL Rep. Keith Perry’s attack on term limits stirs controversy in his hometown

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In Sunday’s Gainesville Sun, I make the case in an op-ed that Rep. Keith Perry’s (R-Gainesville) bill to weaken Florida term limits from eight to 12 years is an effort to benefit legislators at the expense of citizens.

“The results during Florida’s term limits era have been good. Legislatures are like marriages, in that they are all dysfunctional in their own special way. But some are definitely better than others — and Florida’s is pretty good. In a 2013 ranking of states by their fiscal condition — an outcome highly influenced by government policy — the Mercatus Center at George Mason University ranked Florida as sixth in the nation. Incidentally, five of the top 10 states in this ranking have eight-year term limits on their legislatures. So, it must be asked again, why is Rep. Perry launching this attack on eight-year term limits?”

The answer isn’t flattering to Rep. Perry. Perry is a successful businessman who got the opportunity to run because Speaker Larry Cretul reached his 8-year limit in the House. Now, it appears Rep. Perry wants to cut the ladder off beneath him.

Perry rationalizes this in a straight piece in today’s Gainesville Sun.  He claims eight years isn’t sufficient to master the complexities of being a Florida legislator. Eight-year limits are, however, the most common in the United States from the president, to governors, to state legislatures, to county commissioners and mayors. He does not explain what makes being a Florida legislator so particularly daunting.

Hint: It isn’t.

Fortunately, I was provided a chance to respond. “Blumel said that when politicians say eight years is too short, people should keep in mind that the Florida Senate is made up of many former members of the state House of Representatives who possess considerable legislative experience, while the lower chamber has more political newcomers who provide better representation of the citizenry.”

Instead of focusing on the centerpiece of the legislation, the weakening of term limits, Perry instead focuses on the fact the bill also lengthens the terms themselves from two to four in the House and four to six in the Senate. But these are just window dressing. Legislators have tried to loosen their limits numerous times and continue to test new angles to slip this idea by voters.

Perhaps the best quote in the article isn’t by Rep. Perry or me. It is by Alachua County Democratic Party Chairman Robert Prather.

“We’re disappointed that Rep. Perry seems more interested in protecting jobs in Tallahassee… than … Gainesville, Alachua County and Dixie,” Prather said.

For the complete articles, see Blumel op-ed and Perry news article.