December 22, 2004

In Defense of the Petition Clause:

Battles Now Underway on Three Fronts

2^nd Circuit Directs DOJ to Explain
Lack of IRS Summons Enforcement Authority

As is now widely known, since July of 1999 the We The People organization has led a nationwide legal and educational attack on the federal government, utilizing the force of “popular constitutionalism.” This assault has come in the form of an intelligent and rational exercise of the First Amendment Right to Petition for Redress of Grievances, relating to the government’s imposition of an unconstitutional, direct, un-apportioned tax on labor.

What is also known is that in November of 2002, three additional Petitions for Redress were added to the People’s overall Petition process. These Petitions are related to the Constitution’s war powers clauses versus the Iraq Resolution, the privacy and due process clauses versus the USA Patriot Act, and the money and debt limiting clauses versus the Federal Reserve System.

It is also widely known that the People’s Petitions for Redress have been legally served on the highest ranking officials of the Executive and Legislative branches of the federal government, including the President and leadership of the Congress and every member of Congress, the Attorney General, Treasury Secretary, and Commissioner of the IRS. Undoubtedly, these officials know about the We The People Foundation and the Petitions for Redress of Grievances.

What’s more, with dismay, the People watched their servant government’s reaction: they have seen the government trespass on the People’s First Amendment Right to Petition by striking out against the Petitioners -- infringing on that unalienable Right, rather than respond by answering their questions.

The People decided to fight back – to defend against this invasion of their Right to Petition. Nearly two thousand joined the fight this year by becoming named plaintiffs in the lawsuit aimed at getting the federal courts to declare the meaning of the Right to Petition, including the Right of the People to retain their money until their grievances are redressed if the government decides not to properly and honestly respond as the Constitution commands.

What has not been widely known is that parallel battles in defense against the government’s invasion of the People’s Right to Petition are now being fought on a total of three judicial fronts by the We The People organization. What follows is an update of the primary lawsuit and breaking news regarding significant developments in a related case that has reached the 2^nd Circuit Court of Appeals. This second case was brought by Chairman Bob Schulz, as the sole plaintiff, against the IRS. We will discuss the third case in a future article.

Ed. Note: Many of the following linked .PDF documents are large. It is suggested that you
RIGHT-CLICK to Save (i.e., download) the files to your computer before attempting
to open them using the (free) Adobe Reader software.

Update -- The Primary Battle:

We The People v. The United States

On July 19, 2004, this case was initiated in the U.S. District Court in the District of Columbia. An Amended Complaint was filed in early September.

On September 30, 2004, as we had previously reported, the government filed a Motion to Dismiss our complaint.

On November 12, 2004, Mark Lane and Bob Schulz filed a Memorandum in Opposition to the government’s motion to dismiss.

We asked constitutional scholar and attorney John Wolfgram to review and comment on our Opposition memorandum. Wolfgram called the Memorandum “Splendid…Brilliant.” Click here for Wolfgram’s comments.

Wofgram is the author of the article, “How the Judiciary Stole the Right To Petition,” which was published in 31 U. WEST L.A. L. REV. (Summer 2000).

Wolfgram has a B.A. Degree (University of Wisconsin) and a J.D. Degree (Southwestern University 1977). Wolfgram founded the Constitutional Defender Association in 1989 to advance Petition Clause Principles.
Its name derives from the observation that the practical value of a Constitution depends on the effective enforcement of constitutional rights and limits against government, by the people. Wolfgram argues that the Petition Clause is the People's Right to redress government violations of the Constitution - the Constitution's Defense system against government usurpation and oppression.

According to the rules of the U.S. District Court for the District of Columbia, the government had until November 17, 2004 to reply to our Memorandum in Opposition to the government’s Motion to Dismiss. However, DOJ filed a Motion for more time, due in part, to “the gravity of the relief sought.”

We thought this to be an odd reason because the only relief we are seeking is a declaration of our Rights under the Petition Clause of the First Amendment, and an end to unconstitutional retaliation against those who Petition for Redress. However, the court granted the request. DOJ's reply is due today, December 22, 2004.

After reading the government’s motion to dismiss our complaint, our Memorandum in Opposition (dated 11/12/04), and the government’s reply (due 12/22/04), the court will decide to deny or grant the government’s motion to dismiss. If the court denies the government’s motion to dismiss, the government may appeal that decision to the U.S. Court of Appeals. If the government does not appeal the court’s denial of its motion to dismiss, the case will move to the discovery phase, in advance of trial. On the other hand, if the court grants the government’s motion to dismiss, we will appeal to the U.S. Court of Appeals.

On November 12, 2004, Mark Lane and Bob Schulz filed a Motion to Amend our complaint, in order to add hundreds of named plaintiffs, to narrow the issues and to cure a minor issue in our complaint. The government has opposed our Motion to Amend the complaint and we have replied to the government’s opposition. We are also awaiting the court’s decision on our Motion to Amend. Right-Click to download the Second Amended Complaint.

A Second Front: Schulz v. IRS

A second front has been established in the People’s defense against the government’s invasion of our First Amendment Right to Petition. Bob Schulz has sued the IRS for interfering with his Right to Petition for Redress.

The government decided to retaliate against the leaders of the Petition process, including Bob Schulz in his personal capacity and as Chairman of the WTP organization. The government served Schulz with a Summons, demanding that Schulz turn over certain personal records to the IRS.

Schulz immediately sued the IRS in the US District court. In his complaint, Schulz asked the Court to quash the IRS Summons on the grounds that the IRS did not have a legitimate purpose, that the IRS was infringing on his First Amendment Right to Petition and his Right to associate with others of like mind, and that the Summons was nothing more than harassment and impermissible retaliation.
Right-click here for the Memorandum of Law.

The IRS, as defendant, did not respond to the lawsuit. They never made an appearance in District Court! Eventually, Schulz motioned the District Court for a default judgment. The District Court issued its decision, holding that the court was prevented by law from quashing an IRS Summons.

Schulz immediately appealed to the US Court of Appeals for the Second Circuit (see Schulz’s Appellant Brief). The IRS, through its attorney, the U.S. Department of Justice, decided to make an appearance in the court of Appeals. DOJ, through its Senior Counsel, Robert Storch, filed a Respondent’s Brief. Schulz filed his Reply Brief.

Oral argument was held last week on December 13, 2004.

At oral argument, DOJ argued that the District Court lacked jurisdiction and could not quash the Summons served on Schulz because the Summons legally meant nothing. Ironically, in order to scuttle Schulz’s case by asserting lack of jurisdiction, and to avoid a judicial skirmish directly debating the Summons authority of the IRS, DOJ argued before the three appellate justices that the IRS Summons was legally “unenforceable,” therefore Schulz was under no legal obligation to respond to it, denying the court subject matter jurisdiction.

Schulz disagreed. He argued that Reisman was dispositive, that in Reisman, the US Supreme Court recognized the jurisdiction of the federal courts in such matters, by declaring the right of a person served with an IRS Summons to respond to the Summons by taking the IRS to a US District Court. Schulz also argued that under Powell, the IRS was required to appear in court to prove its purpose in issuing the Summons was a legitimate purpose. Finally, Schulz argued that the court had jurisdiction on the ground that the Summons was, in fact, an IRS “enforcement action” with significant adverse, statutorily prescribed consequences (including arrest for contempt), if he either ignored the Summons or failed to give the IRS what it was demanding of Schulz. See IRC Sections 7604 & 7210.

During argument, one of the justices inquired of Storch, “If there is no legal obligation to respond to IRS Summons, then why didn't the IRS simply print a disclaimer on the Summons itself informing people that they did not have to respond to the Summons?” Storch could not answer the question.

In a highly unusual move, the appellate court ordered DOJ to submit a memorandum to the Court by December 23, 2004, further explaining to the court why DOJ believes people do not have to respond to IRS Summons, why people will suffer no consequences if they ignore such Summons, and why the court is without power to grant Schulz’s request to quash the Summons. In response, Storch, the Senior Counsel in the office of the US Attorney, repeatedly asserted he did not understand this area of the law and would have to engage IRS officials to draft the Memorandum requested by the Court.

Click here to listen to the oral arguments made by Schulz and the DOJ before the 2^nd Circuit Court of Appeals on December 13, 2004. RIGHT-Click here to save (download) a copy of the audio file to your computer (4 MB).

The Third Front

A third battle in defense against the government’s attempt to seize power from the People by acting without authority, and in defense of the People’s Right to Petition is now being waged. This battle also involves the practical application and legal enforcement of the Right to Petition by withholding taxes.

Specifically, the case involves property taxes and the commitment of seven families who have "bet the farm" in defense of their constitutionally protected Rights. We will provide details in a future article.

Just The Beginning

Although we have made considerable progress since our primary judicial work commenced just months ago, and it appears the government is having measured difficulty with our efforts thus far, we want to remind everyone that our battle to secure the Right to Petition -- and restore Constitutional Order -- will likely be long, and without doubt, very costly.

Although many are fighting hard and sacrifices have been made, there remains much to be done -- including moving the District Court for Injunctive protections for all the lawsuit Plaintiffs, generating a critical mass of public awareness, and defending our Rights through trial Court, the Courts of Appeal, and through to the Supreme Court.

We ask each of you to help us remain focused on our common objectives and strategies and share, as you are able, in the substantial burdens of this landmark, righteous, and necessary cause.

Please consider a year-end, tax-deductible donation so that you and your family may soon enjoy Freedom as our Founders and our Creator intended.

PLEASE REMEMBER DICK SIMKANIN

After four requests for more time, Simkanin's attorney is apparently about ready to file his Brief on Behalf of Appellant Simkanin. One would argue that it is better to take the time to prepare a persuasive and winning argument than to rush the appeal brief and fall short.

Although it shocks the senses to consider what Dick Simkanin and his wife Carol have endured in defense of Liberty, Dick's sprit remains very strong and positive. He has asked us to remind people not to forget him and that he always looks forward to "mail call". Please consider dropping Dick a note.

Dick's address is:

Richard Michael Simkanin
30383-177 Unit F
FEDERAL CORRECTIONAL INSTITUTION
P.O. BOX 7000
TEXARKANA, TX 75505-7000

Join the RTP lawsuit as a Plaintiff and learn about the long-forgotten Right to Petition.
in the Lawsuit Information Center. Remember, there is NO cost to become a Plaintiff.

Click here to listen to the oral arguments made by Schulz and the DOJ before the 2^nd Circuit Court of Appeals on December 13, 2004. RIGHT-Click here to save (download) a copy of the audio file to your computer (4 MB).