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JOHN D. LEE II
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1. Defendant-Appellant-Counterclaimant John D. Lee II ("Defendant"), pro se and informa pauperis, a resident of Knox County and a disabled journalist, in general appearance for his counter-claims, and in special appearance for answering Plaintiffs' illegal "complaint", hereby files this amended answer to City of Knoxville Municipal Corporation's ("Plaintiffs") "complaint" (an unsworn, unserved "parking citation" from complainant Richard Graham). 2. Pursuant to Tennessee Rules of Civil Procedure, Rule 15.01, "A party may amend the party's pleadings once as a matter of course at any time before a responsive pleadings is served." Plaintiffs have thus far failed to file the mandatory reply to counterclaim as required by Rule 7.01. Plaintiff Corporation has filed Motions to Strike certain sections in counterclaim while Plaintiffs individually have failed to make any of the mandatory responses to Defendant's counterclaim and has failed to make any appearance before this Court. 3. Defendant appeals final judgment for civil debt rendered in Plaintiffs' Home Rule Municipal Court. 4. This proceeding was instituted by the Plaintiffs against Defendant in violation of the United States Constitution, Tennessee Constitution, Tennessee Code, Tennessee Rules of Court, Corporation's own ordinances local court rules and contrary to case law binding in Tennessee and the United States for the past 100 years. 5. Plaintiffs conspired to maliciously institute false litigation against
Defendant, fraudulently misrepresenting facts and local court rules, extorting
Defendant to appear under duress and to abuse process by continuing this
frivolous litigation, in an attempt to undermine litigation in federal
court currently pending for the past two years between most of these parties,
under identical facts and law, and/or to censor Defendant's journalism
regarding governmental corruption, and/or to intimidate Defendant from
investigating and publicizing homicides committed by Corporation's "informants",
which have thus far resulted in convictions for second-degree murder and
kidnapping. Defendant is currently attempting to force Plaintiffs and other
law enforcement agencies to obey the law and retain this prisoner until
serving his mandatory minimum sentences rather than release him three years
early and then pay him a government salary as a "licensed illegal-narcotics
salesman with a get-out-of-jail-free card", also known as an "informant".
Defendant is also publicizing the condoned-homicide of Knoxville police
officer Tony Williams, who was murdered in 1989. The individuals charged
with that murder were released when charges were dismissed, notwithstanding
a videotaped confession and recovery of the weapon in their possession,
and were later imprisoned on federal narcotics charges. In fact, Plaintiffs
stole Defendant's vehicle a mere six hours after Knoxville Journal phoned
to notify Defendant of publication of Defendant's article about this "unsolved
mystery". The newspaper had requested permission to publish Defendant's
byline, warning that retaliation might result, but Defendant bravely ordered
for his byline to be included, complete with link to a page on his free
website for additional information:
(1) The Prohibition Times |
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6. In the civil action pending in UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE, NORTHERN DIVISION, AT KNOXVILLE, John Lee, and all others similarly situated, versus City of Knoxville, Victor Ashe, Phil Keith, Ryan Flores and Sutherland Avenue Wrecker Service, 3:00-CV-693, J, Plaintiffs in the current matter stole Defendant's automobile from the identical location involved in the matter before this Court, without notice to Defendant and allegedly without filing any "parking ticket" with Corporation's Court docket. Corporation and its officers repeatedly denied the theft of Defendant's vehicle and denied knowledge of its location for nearly two months, at which point Plaintiffs' admitted they had illegally donated the vehicle to another Corporation. Corporation and its representatives are currently demanding $15,000 from Defendant for that "parking ticket", regarding the identical parking spot involved in the current matter before this Court, plus future expenses increasing at approximately $5,000 per year for alleged storage costs (in violation of Corporation's contract with its contractor), plus potential losses to Defendant from "annexation" of two valuable parking spaces on private property downtown. Not to mention over $15,000 in actual expenses paid for legal research on the "parking ticket", only one of which has ever been admitted to by Plaintiffs. 7. Plaintiffs have sought to file an amended complaint ("amended parking citation") post-conviction in this case which fails to address the fatal flaws of the original complaint (an additional "amended parking citation") and other fatal flaws of jurisdiction and alleged causes of action. 8. Plaintiffs' illegal and malicious and frivolous prosecution cannot be rehabilitated by numerous amended complaints which merely substituted new charges ex parte pre-trial and post-judgment, or fails to state a claim for which relief may be granted. 9. Nor can Plaintiffs' prosecution be rehabilitated by Official Oppression and other crimes perpetrated by Plaintiffs' court clerks. Allowing Plaintiffs to amend their complaint ex parte for the third time under these circumstances would be futile and abuse of judicial discretion. 10. As per Tennessee Rules of Civil Procedure (TRCP), Rules 7, 8 and 12, Defendant also files an amended counterclaim in regards to issues involving defense of alleged parking causes of action for civil debt and for counterclaims of fraudulent concealment, malicious prosecution, abuse of process, organized crime and racketeering and violations of Due Process and Equal Protection doctrines under State and Federal Constitutions. Defendant also seeks injunctive relief from unconstitutional ordinances and State statutes.
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11. Defendant, who is sued by the City of Knoxville Municipal Corporation and its employees ("Plaintiffs") for alleged "parking infractions", hereby demands trial by jury of twelve regarding all issues and facts, pursuant to Rules 38.01 and 38.02 of the Tennessee Rules of Civil Procedure (TRCP) 12. Pro se litigants are entitled to the same liberality of construction with regard to their pleadings that this rule and Tenn. R. Civ. P 8.05 and 8.06 afford any other litigant. Irvin v. City of Clarksville, 767 S.W.2d 649 (Tenn. Ct. App. 1988). The constitutional right to trial by jury may not be denied because a nonjury trial might be easier and faster, and to do so would be an abuse of judicial discretion. Caudill v. Mrs. Grissom's Salads, Inc., 541 S.W.2d 101 (Tenn. 1976). 13. Defendant has also timely met the requirements for jury demand in
Federal Rules of Civil Procedure (FRCP):
(a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate. Advisory Committee Notes.
This rule provides for the preservation of the constitutional right of trial by jury as directed in the enabling act (act of June 19, 1934, 48 Stat. 1064, U.S.C., Title 28 § 723c[sec. 2072]. Rule 39. Trial by Jury or by the Court
(a) By Jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. |
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Rule 81. Applicability in General
(c) Removed Actions. These rules apply to all civil actions removed to the United States District Courts from the state courts. Repleading is not necessary unless the court so orders.
14. Rule 2 of TRCP, ONE FORM OF ACTION, states, "all actions in law or equity shall be known as "civil actions". However, as the evidence will show, Plaintiffs are attempting to illegally "prosecute" Defendant under "Tennessee's Quasi-Criminal Rules of Procedure", as vaguely mentioned by Plaintiffs' "non-impartial" magistrate during Defendant's hearing in this case. In Plaintiffs' "local rules of court" titled, "Your Rights at City Court", the one-page handout says, "The Judge will answer questions regarding law and procedural matters prior to your hearing." 15. Despite the magistrate's "explanation", Defendant is unclear what "quasi-criminal" means in regards to which rules of procedure to use in defending his case, since it is impossible to respond to plaintiffs' complaint using both civil and criminal rules of procedure and courts of appeals, and is a waste of the Court's time for Defendant to attempt the impossible, yet Defendant was forced to try or accept seizure and forfeiture of tens of thousands of dollars in personal and real property as punishment for "conviction" ("judgment") of a "parking ticket" ("complaint"). After Defendant wasted many hundreds of hours of time researching Plaintiffs' alleged claims, it is presumed that TRCP is the correct Rules of Court in this matter, notwithstanding recent U.S. Supreme Court decisions to the contrary. 16. Tennessee statutes clearly declare parking cases to be criminal misdemeanor prosecutions, not civil cases nor "quasi-criminal causes of prosecution", depending merely upon the "qualifications" of the Corporation's judge as granted by Charter, that is to say, Corporation cannot appoint a "criminal court" judge to serve less than eight years after "re-election" by the voters. In Corporation's instance, it chose to have a judge that violated the State's Constitution, and thus it waivered its right to hold criminal proceedings in its Court. 17. Thus, in judgment against defendants for alleged violations of Corporation's ordinances on vehicle parking, Corporation's judge and Court cannot impose any incarceration, making its ordinances unconstitutional. 18. Nor do the State's statutes declare "parking citations" to be ex parte "summary convictions" or "summary judgments" by non-impartial police officers without any procedural rules nor without statutory requirements of due process. 19. Allegations of incorrect parking outside of city limits are to be investigated for probable cause by general sessions judges and allegations made within city limits are to be investigated for probable cause by municipal magistrates using general sessions rules of court, rather than TRCP or T.R.Crim.P. 20. Burden of proof for "Plaintiffs" in criminal cases is "beyond a reasonable doubt", while in civil cases burden of proof is typically "by a preponderance of the evidence", although sometimes the requirement is "beyond a moral certainty". The former is closer to 99-percent burden of proof of "criminal" guilt, while the middle is closer to 50.01-percent burden of proof of "contract" liability. 21. Obviously, the burden of proof required by rules of criminal procedure are nearly double that required under TRCP and thus more difficult for "Plaintiffs" to meet, yet Plaintiffs appear to be prosecuting Defendant's appeal of "criminal conviction" under TRCP. Without knowing which standard is required by the courts, since the courts fraudulently conceal court rules from defendants, it is impossible for any defendant to prepare an adequate defense. 22. This vagueness is violation of the Equal Protection doctrine of the United States Constitution, Amendment XIV, which states: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the Unites States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of its laws." The evidence already gathered informally in this case, despite unlawful obstruction of justice by Plaintiffs, will prove that employees of Plaintiffs' Corporation, instead of protecting the peace, routinely violate traffic laws, routinely cause traffic crashes and occasionally kill motorists, and thus are a substantial and immediate threat to the welfare of the public, yet Plaintiffs and the State fail to prosecute these dangerous criminals, choosing instead to offer them employment and retirement benefits. 23. Tenn. Code, Title 55, MOTOR AND OTHER VEHICLES, Chapter 8, Section 103, Crimes and Offenses, states, "[I]t is a Class C misdemeanor, for any person to do any act forbidden... in this chapter and chapter 10 of this title." Tenn. Code § 55-8-158, Stopping or Parking on Roadways, and Tenn. Code § 55-8-159, Stopping or Parking on Roadway; Removal, and Tenn. Code 55-8-161, Parking, specifically do not apply inside business and residential districts, and only applies State law "with respect to highways under its jurisdiction outside of the limits of municipalities". Tenn. Code Title 55, Chapter 10, Accidents, Arrests Crimes and Penalties Ordinances, Section 307(a) states: "Any incorporate municipality may by ordinance adopt, by reference, any of the appropriate provisions of §§ 55-8-101—55-8-180... and may by ordinance provide additional regulations for the operation of vehicles within the municipality, which shall not be in conflict with the provisions of such sections." Tenn. Code § 55-10-308, Enforcement, states, "Where §§ 55-8-101—55-8-180... apply to territory within the limits of a municipality, the primary responsibility for enforcing such sections shall be on the municipality which shall further be authorized to enforce such additional ordinances for the regulation of the operation of vehicles as it deems proper." Tenn. Code § 55-10-315, Fees; convictions for traffic violations, states: "'Traffic violations,' for purposes of this section, means a violation of any provision... or a violation of a municipal ordinance regulating traffic, or both state law and local ordinance violations. Municipal ordinances regulating traffic include those that regulate parking." 24. Obviously, Plaintiffs's choice of TRCP is most confusing to Defendant in light of State's choice of ordering parking cases classified as criminal cases and with no clear rules for defense of traffic and parking citations in T.R.Crim.P. WestLaw, Lexis-Nexis and Tenn. Court Rules Annotated offer Defendant insufficient clarification from previous cases decided by State's courts, other than the Advisory Committee's Comment in T.R.Crim.P. Rule 1, which the Commission admit are non-binding on the courts. 25. The evidence will show that Plaintiff's illegal "complaint" and ex parte summary conviction or ex parte summary judgment, titled, "Parking Violation Notice" used a "non-uniform" form with the impersonation but not the statutory content of a "criminal citation", "criminal summons" or a "misdemeanor citation in lieu of arrest", with "Notice to Owner" stating, "If this ticket is not paid within 10 days or appealed within three (3) working days from date of issuance, it becomes delinquent and will result in an additional penalty of nine dollars ($9.00)." Plaintiffs' unsigned, unsworn, unserved complaint does not conform to Rule 5(c)(2) of T.R.Crim.P. which provides, "If the plea is not guilty, the magistrate shall set the case for a preliminary examination within ten days if the defendant remains in custody and within thirty days if released under applicable law, unless the preliminary examination is expressly waived in writing, in which case the magistrate may then bind the defendant over to the grand jury." Instead of following T.R.Crim.P., Plaintiffs' "local rules of court" apparently follws TRCP, with its requirement in Rule 38.03 that a jury demand be in writing and filed within 10 days of city court clerk filing appeal in circuit court. 26. Defendant was unable to locate "Tennessee's Quasi-Criminal Rules of Procedure" in any public law library or legal library on the Internet, or find the term "quasi-criminal" in Tenn. Code Index nor in any legal dictionary. However, in Notes to Decisions of Rule 1 of TRCP, the term "quasi-criminal" means that TRCP does not apply. The state rules of civil procedure do not apply to paternity cases in juvenile court, which are quasi-criminal actions. Patrick v. Dickson, 526 S.W.2d 449 (Tenn. 1975); Tennessee Dept. of Human Services v. Daniel, 659 S.W.2d 625 (Tenn. Ct. of App. 1983). |
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27. The evidence will show that Plaintiff's former "court clerk" repeatedly
committed felonious acts to obstruct justice under color of law by refusing
to issue Defendant's subpoenas with correct filing dates and/or correct
Court Order subpoena decus tecum dates for production of public records.
The evidence will show that this "non-impartial" clerk, who was a subpoenaed
witness in this case, was terminated one month after his testimony admitting
fraud of Plaintiff's docket, allegedly for felonious acts committed one
year previously, with admitted knowledge of Plaintiff's magistrate and
attorney. The evidence will show that the circuit court clerk has continued
this tradition of fraudulently concealing Defendant's filing dates, in
violation of TRCP Rule 5.06, and by refusing to issue subpoenas as required
by TRCP Rule 1, Notes to Decisions, in an apparent attempt to defraud Defendant
of a jury trial, to the extent of even "whiting out" stamped filing dates
and restamping them numerous times on a judicial order, without notice
to Defendant. Plaintiff's "local court rules", titled "Your Rights at City
Court", imply that all cases on its docket are criminal prosecutions by
the Plaintiff, including the majority of its cases which are parking complaints:
* All cases are called in groups by the prosecuting officer. 28. While there certainly appears to be an inexhaustible supply of "quasi-criminal" loopholes for Plaintiff to legally "cheat" any defendant out of a demanded jury trial, fraudulent misrepresentation by both Plaintiff's court and State's circuit court, utilizing phantom "local rules" of "Quasi-Criminal Procedure" in combination with fraudulent abuse of their dockets, makes this a near certainty. Both Plaintiff's court and State's Knox County General Sessions Court, which is directed by the circuit court clerk, fraudulently conceal booklets titled, "Knox County Local Rules of Court for General Sessions Court". Defendants or complainants must request these rule booklets from the circuit court clerk. Plaintiff's "local rules", titled "You Have the Right to Know: City Court Appeals Process", censors the requirement of Rule 38.03, TRCP, for a "written" jury demand, alleging that all that is required is to: "[R]equest a jury trial of your peers if you desire.... After the appeal is filed here in City Court, the clerk will submit the case to the Knox County Circuit Court Clerk's office. That must also be done within ten (10) days of filing the papers with the clerk." Which clerk in what court is not specified. As if the excessive appeal bond and litigation fee of $624.50 were not sufficient deterrence to jury and justice, defendants are given false or misleading information on two critical matters, virtually guaranteeing them denial of jury trial and due process: (1) that a "request" can be verbal, and (2) the defendant is not responsible for filing the appeal in circuit court. Plaintiff's so-called "City of Knoxville Parking Ticket Appeal Form, Affidavit of Appeal", forced defendants to plead "Not Guilty" before answering Plaintiff's complaint. It is axiomatic that all parties in litigation are entitled to receive notice of important hearings and other proceedings; due process requires it. Bryant v. Edwards, 707 S.W.2d 868 (Tenn. 1986). 29. While America's "Founding Fathers"--or as their King would say,
"Founding Felons"--were not recognized by history for their respect for
rights of "common" citizens, they surely did not desire to restrict the
right of jury trial to only those also accused of felonious acts. The Founding
Fathers fail to mention "quasi-criminal prosecutions" in their constitution
or amendments. In their 6th Amendment to the United States Constitution,
they ordered:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed... and to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have assistance of counsel for his defense. 30. In Defendant's case, oversight by an impartial jury of 12 may go far towards equalizing the scales of justice. The purpose of trial by jury is to prevent oppression by the Government by providing a safeguard... against the compliant, biased or eccentric judge. Apodaca v. Oregon, 406 U.S. 404, 406 (1972). 31. This case was initially scheduled on the Circuit Court's jury docket for trial on June 25, 2001, per Defendant's oral demand for jury trial, as allowed by Rule 1, TRCP, before the Court granted an Order of Continuance on June 22, 2001, as per Defendant's special appearance with Plaintiff's counsel in Judge's chambers prior to the Court's scheduled motion hearing. The Tennessee Rules of Procedure apply to cases appealed to the circuit court from the general sessions court, but they do not require the filing of written pleadings, issuance of new process, or any other steps which have been completed prior to appeal. Vinson v. Mills, 530 S.W.2d 761 (Tenn. 1975); Ware v. Meharry Medical College, 898 S.W.2d 181 (Tenn. 1995). Where a party has, on his own demand, been granted a jury trial, he cannot, under our statute, afterwards waive his demand so as to deny his adversary of a jury trial without his consent. Warren v. Scudder-Gale Grocery Co., 96 Tenn. 574, 36 S.W. 383 (1896). The demand for a jury in a case appealed from a justice may be made by entry on the proper docket, without calling the attention of the court to the same. Louisville & N.R.R. v. Timmons, 116 Tn. 29, 91 S.W. 1116 (1905); National Life and Accident Insurance Co. v. Jordan, 133 Tenn. 495, 182 S.W. 250 (1915). A demand for a jury trial, made three days before the first day of the term, by the counsel of the party, by an entry on the docket, was sufficient, although not made to the court on the first day of the term. National Life and Accident Ins. Co. v. Jordan, 133 Tenn. 495, 182 S.W. 250 (1916). 32. The evidence will show that Plaintiffs' so-called "complaint" against
Defendant fraudulently misrepresents that Plaintiffs may illegally and
permanently seize Defendant's legally parked vehicle, without notice and
without a due process hearing, with Plaintiffs, contractors and friends
profiting from private resale of stolen vehicle, and Plaintiffs' former
"court clerk", in violation of Tenn. Code, personally threatened Defendant
with imprisonment if he not only refused to plead guilty without a hearing,
but that Defendant was not even allowed any hearing at all. Plaintiffs'
actions of summary convictions, seizure and forfeiture against persons
accused of parking violations do not meet the standard for "Small Offenses"
and thus are especially deserving of trial by jury, in both municipal (or
general sessions) court and in Circuit or Criminal Court, and described
in TRCP, Rule 5, Advisory Commission Comments, which states:
Small offenses are those which carry a fine of fifty dollars and for which no imprisonment may be inflicted.... Where trial is held for a small offense, upon a plea of not guilty and a conviction results, there is a right to trial de novo upon appeal, but there is no right to a jury upon the new trial (there being no such right as to small offense in the first instance). Further, where the defendant in serious misdemeanor cases waives the right to a jury trial, that waiver before the magistrate carries over into the Criminal or Circuit Court and attaches to the trial de novo on appeal. 33. Plaintiffs' "complaint", "summons" and "notice" in no way meets
the legal requirements found under any constitution, code, statute or ordinance:
KNOXVILLE POLICE DEPARTMENT [emphasis in original] |
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34. The evidence will show that Plaintiffs routinely violated Tenn. Code § 39-14-101 and committed hundreds of thousands of Class D and Class C felonies against citizens, under color of law, using this fraudulent form and similar forms, assisted greatly by its unreasonable time limits to prepare a legal defense and its illegal denial jury trials to defendants. 35. As a counterclaimant, Defendant's claim for financial damages exceeds
the jurisdictional limitations of a court of general sessions and thus
automatically qualifies for trial by jury. In a case appealed from the
general sessions court to the circuit court and subjected to de novo revue,
the rule limiting plaintiff's recovery to the jurisdictional limits of
the general sessions court is not viable in the light of adoption of the
Rules of Civil Procedure and the principles of judicial economy. Moran
v. Weinberger, 149 Tenn. 537, 260 S.W.2d 906 (1924), Ware v. Meharry Medical
College, 898 S.W.2d 181 (Tenn. 1995). A local court rule requiring a party
seeking a jury to file issues of fact and stating that failure to comply
constituted waiver of jury trial was in conflict with the right to trial
by jury provided by this rule and was null and void. Brown v. Daly, 884
S.W.2d 121 (Tenn. Ct. App. 1994). Tennessee Constitution, Article I, Section
6, demands, "The right to trial by jury shall remain inviolate".
"The Fourth Amendment demands that we temper our efforts to apprehend criminals with a concern for the impact on our fundamental liberties of the methods we use. I hope that it will be a matter of concern to my colleagues that the police surveillance methods they would sanction were among those described 40 years ago in George Orwell's dread vision of life in the 1980's: "The black-mustachioed face gazed down from every commanding corner. There was one on the house front immediately opposite. BIG BROTHER IS WATCHING YOU, the caption said.... It was the Police Patrol, snooping into people's windows." Nineteen Eighty-Four (1949). Who can read this passage without a shudder, and without the instinctive reaction that it depicts life in some country other than our ours? Florida v. Riley, 488 U.S. 445, 466-467, 109 S.Ct. 1659 (1988). 36. "Little Brother's Police Patrols" are currently "snooping" into people's driveways and backyards, routinely seizing and reselling vehicles for alleged "parking violations", without due process of law. Presumably, Plaintiff's "Police Patrols" also snoop into people's windows, as well, as a routine requirement of their "quasi-criminal investigations". Orwell's scene currently depicts life in our own city, state and nation as a result of illegal denial of jury trials. Such subversion converts the justice system into an excessive and regressive tax-collection system. Such perversion overloads the courts and not only denies justice to victims of predatory crime but invites organized crime to partner with government. 37. The evidence will show that Plaintiff's illegal operation of its
courts and its so-called law enforcement agencies has invited Mafia-connected
governmental contractors to make the Knoxville area their "Home"—with over
$15-billion in declared annual revenues from bid-rigging and illegal seizure
of vehicles and real property for any allegations of "quasi-criminal parking
violations". The evidence will show that such career criminals have previously
utilized Plaintiff's "quasi-criminal" scheme to defraud Defendant of a
valuable automobile, destroying Defendant's freedom to conduct both intrastate
and interstate commerce. The evidence will show that other "paid informants"
of Plaintiff, State or Federal law-enforcement agencies have perpetrated
violence and murder upon the citizens of Knoxville, including against Defendant,
while Defendant conducted pro bono work on behalf of victims of crime which
led to convictions for murder and kidnapping against a professional "hit
man" and serial killer and mass murderer working for the government, and
Defendant is currently working pro bono to prosecute a convicted murderer
of a police officer who the District Attorney General has dropped charges
in that particular murder. The evidence will show that Defendant has published
news articles detailing these cases, has appeared on television and in
public hearings to publicize these cases and is lobbying the legislature
to overturn its naming of a highway in Knoxville after a convicted hit-and-run
killer. Denial of a jury trial will endorse Plaintiffs' and others' acts
of illegal retaliation against Defendant and their routine abuse of governmental
authority, with resultant suppression of free reporting of news. Orwell
might not be proud of certain acts and policies of our government, but
convicted felon and Nazi Reich-Chancellor Adolf Hitler would be most impressed.
As Judge Learned Hand said, "If we are to keep our democracy, there must
be one commandment: Thou shalt not ration justice."
"The people of this country have fought long and hard against a police state. Their success should not be erased by elimination of an adversary trial. Actually, traffic court is one of our most important venues. To a large part of our population, this will be their only contact with the justice system. They are certainly going to wonder what happened to the impartial, blind Miss Justice and the doctrine of separation of powers." People v. Daggett, 206 Cal. App.3d Supp. 1 (1988). "For the average law-abiding American citizen, minor traffic offenses constitute the only contact such a person will have with the law enforcement and judicial systems. Public confidence relies upon the fairness of such proceedings.... Let it be understood once and for all, that the function of the traffic court is to convict the guilty, acquit the innocent, and improve traffic safety, not to merely an arm of any revenue collecting office." Aquilera, State v. 711-101S, Dade County (1979 FL). 38. Defendant's amended pleading is timely filed according to Rules 15.01 and 15.02, TRCP, since Plaintiffs have not responded to Defendant's first counterclaim. 15.01. Amendments. A party may amend the party's pleadings once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been set for trial, the party may so amend it at any time within fifteen (15) days after it is served. Otherwise a party may amend the party's pleadings only by written consent of the adverse party or by leave of court; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within fifteen (15) days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders. 39. Defendant's written demand for jury trial was made in his Motion for Extension of Time for Answering Complaint and Motion for Extension of Time for Jury Trial which were granted by Order of the Court on June 22, 2001. Defendant written demand for jury trial was also made in all other motions thus far and in his original Answer to Complaint and Counterclaim. Defendant's demand for jury trial complies with TRCP 38.02 and thus is timely. 38.02. Any party may demand a trial by jury... by demanding same in any pleading specified in Rule 7.01 or by endorsing the demand on such pleading when it is filed, or by written demand filed with the clerk, with notice to all parties, within fifteen (15) days after the service of the last pleading raising any issue of fact. 7.01. Pleadings. There shall be a complaint and answer; and there shall be a reply to a counterclaim denominated as such. 40. Plaintiffs have failed to respond to Defendant's initial Answer and Counterclaim, and have failed to respond to Defendant's First Interrogatories and Request to Produce. A defendant is allowed a jury trial on an appeal from a judgment of a municipal court based on the violation of a city ordinance provided a jury trial is timely demanded. City of Chattanooga v. Myers, 787 S.W.2d 921 (Tenn. 1990). Defendants should be freely permitted to amend their answers when a case has not been set for trial, when discovery has not been completed, and when the plaintiff will suffer no prejudice except insofar as the defense itself might prevail. Guarantor Partners v. Huff, 830 S.W.2d 73 (Tenn. Ct. App. 1992). 41. Defendant further requests any necessary hearings that should be required under State or Local Rules.
42. Defendant John Lee brings the action on his own behalf and, pursuant to Rule 23 of TRCP, and objects to the Court's Order denying trial by jury, pending review by the Tennessee Court of Appeals pursuant to Rules 9 and 10 of the Tennessee Rules of Appellate Procedure, on behalf of all other persons similarly situated. Under state law for Fraudulent Concealment, the class is comprised of all persons who have had in the past six (6) years, or who will have in the future, an automobile "ticketed" by the Plaintiff for allegations of parking misdemeanors or civil causes of action, under state statute or city code, either on alleged public property or on private property within the boundaries of the Corporation. 43. Some of such persons have had their Constitutional rights violated by the Plaintiffs, through its ordinances, policies and practices. These rights include the right to a Due Process hearing by receipt of lawful service of a Uniform Affidavit of Complaint, Uniform Summons and notice, presided by an impartial judge in a court with jurisdiction. These rights include the right to Equal Protection by equal access to publicly funded "free parking" spaces. 44. These rights include the right to Separation of Powers by access to a Judicial Branch independent of the Executive Branch. 45. These rights include the right freedom from Cruel and Unusual Punishment, including parking citations each penalized: (a) up to $2,675; (b) seven months in prison; (c) forfeiture of vehicle; (d) forfeiture of real property (de facto "annexation"), and (e) Excessive Bail and "court-access fees" of $624.50 to appeal a five-dollar parking "citation". 46. These rights include the right to Freedom of Speech, including for
journalists critical of the Plaintiffs and for all those who utilize official
channels for complaints against the Plaintiffs or appeals of the Plaintiff's
judgments.
48. (a) The class is so numerous that joinder of all members is impracticable. The exact number of persons in the class is not presently known to Defendant, but can be adduced through discovery. Defendant estimates the number of Complainant-Appellee-Plaintiff class members at a minimum of 300, and the estimated number of Defendant-Appellant-Counterclaimant class members at a minimum of 450,000. 54. A class action is the superior and the only available method for
the fair and efficient adjudication of the controversy.
55. Comes now John Lee, defendant, and on behalf of all those similarly situated, and for answer to the false, illegal, unsworn, ambiguous and frivolous complaints by (a) Richard Graham, et. al., (collectively "Plaintiffs"); under appeal to the Circuit Court by trial de novo of the illegal final judgment by Plaintiff's illegal Municipal Court ("Department of Court"), says: 56. Defendant answers complaint according to full use of TRCP. While appeals from lower courts to the circuit courts do not require written pleadings, TRCP does not prohibit them. In cases appealed from lower courts to the circuit courts, TRCP does not prohibit financial limits on claims or counterclaims, class-action defenses, counterclaims, class-action counterclaims or racketeering charges against government agencies. Upon filing of a written pleading, or by court order, parties are required to comply fully with TRCP. 57. Rules 1 of TRCP declares:
Subject to such exceptions as are stated in them, these rules shall govern the procedure in the circuit and chancery courts of Tennessee and in other courts while exercising the jurisdiction of the circuit or chancery courts, in all civil actions, whether at law or in equity, including civil actions appealed from or other wise transferred to these courts.58. A civil action has not commenced against the Defendant, pursuant to Rule 4.01 of the Tennessee Rules of Civil Procedure, which states: (1) Upon the filing of the complaint the clerk of the court wherein the complaint is filed shall forthwith issue the required summons and cause it, with the necessary copies of the complaint and summons, to be delivered for service to any person authorized to serve process. This person shall serve the summons, and his return endorsed thereon shall be proof of the time and manner of service. Rule 4.02 of the Tennessee Rules of Civil Procedure states:
(1) The summons shall be directed to the defendant, shall state the time within which these rules require him to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint. 59. Rule 4.03 of the Tennessee Rules of Civil Procedure states:
(1) The person serving the summons shall promptly and within the time during which the person served must respond, make proof thereof to the court and shall identify the person served and shall describe the manner of service. Rule 4.04 of the Tennessee Rules of Civil Procedure states: Service shall be made as follows:
(1) Upon an individual other than an unmarried infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally, or if he evades or attempts to evade service, by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, whose name shall appear on the proof of service. (12) Service by mail of a summons and complaint upon a defendant
may be made by the plaintiff, his attorney or by any person authorized
by statute. After the complaint is filed, the clerk shall, upon request,
furnish the original summons, a certified copy thereof and a copy of the
filed complaint to the plaintiff, his attorney or other authorized person
for service by mail. Such person shall send, postage prepaid, a certified
copy of the summons and a copy of the complaint by registered return receipt
mail to the defendant…. Service by mail shall not be the basis for judgment
by default unless the record contains a return receipt showing personal
acceptance by the defendant.
The Rules are not applicable to general sessions courts in the exercise of jurisdiction conferred by general statutes, "except in cases where the court exercises jurisdiction similar to circuit or chancery courts by special or private act." 61. Plaintiff's court does not exercise "concurrent jurisdiction" with Knox County Circuit Court. In order to qualify for jurisdiction, the legislature decided that a city magistrate must not be appointed and must be elected for a period of eight (8) years. Legislature allows "home rule" corporations to create independent courts, and Plaintiff operates under the home rule statutes. 62. By its Charter, Plaintiff's appoints its magistrate and thereafter holds elections every four (4) years, with Plaintiff "retaining control" of its magistrate. Plaintiff's Department of Court fails the legislature's test for jurisdiction. 63. In fact, Plaintiff intentionally ignores statutory requirements for its court to obey in order to obtain jurisdiction, therefore the Plaintiff has no intention that its complaints against residents and visitors be heeded neither in its Department of Court nor in any other court. 64. Rule 1 TRCP Annotations states:
While these Rules are applicable after a case is appealed from general sessions court to circuit court, they do not require the filing of additional pleas other than that which have been filed before appeal unless the trial court so orders, pursuant to local court rule or other authority. Vinson v. Mills, Tenn. 530 S. W. 2d 761 (1975). 65. Rule 3 of Tennessee Rules of Civil Procedure states:
If process remains unissued for 30 days or if process is not served or returned within 30 days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of the statute of limitations. 66. While it is true that Plaintiff's court does not exercise concurrent jurisdiction with Circuit Court, therefore the Rules of Civil Procedure do not apply with regards to requirement for service of process of complaint and summons, the Plaintiff's own Code of Ordinances still requires service of process of both complaint and summons. 67. Code of Ordinances, Chapter 8, City Court, Section 8-1, states:
The city judge shall issue process on the complaint of any person when it appears to the city judge that any provision of this Code or other ordinance of the city has been violated. He shall try no case until process has been regularly sued out, served and returned. 68. Plaintiff has failed to comply with its own laws, therefore no cause of action exists. The Tennessee Attorney General concurs. Tennessee Attorney General Opinion 97-029 states:
Under current state law, the Memphis City Court may not collect outstanding judgments by restricting the issuance of state license plates until the applicant has paid outstanding fines. 69. Plaintiffs did not comply with TRCP Rules and ordinance requiring:
(1) sworn oath of affidavit of complaint; 70. Therefore this Court lacks jurisdiction over the Defendants. 71. Plaintiffs did not comply with these Rules and ordinance requiring complaint and summons be directed at Defendants. In fact, at no time did Plaintiffs ever bother to ascertain the names of Defendants upon alleged complaints and alleged summons as required by law. 72. Plaintiffs did not comply with these Rules and ordinance requiring complainants' names, addresses and sworn oaths upon alleged civil warrants. 73. Plaintiffs did not comply with these Rules and ordinance requiring name of complainants, instead alleging "KNOXVILLE POLICE DEPARTMENT" is complainant. Plaintiffs also alleges "KNOXVILLE POLICE DEPARTMENT" is the name of the Plaintiff's court and Plaintiff's court clerk. No such legal entity exists as required under law and no such entity is registered with the Tennessee Secretary of State, therefore no complainants exist and thus no complaints exist, and in fact, no such "court" exists. 74. If such a court did exist, it would be required to recuse itself due to a conflict of interest as "impartial judge", prosecutor and plaintiff for Constitutional reasons regarding Separation of Powers between executive and judicial departments, and its magistrate would be required to recuse himself under the Rules of Professional Responsibility as both plaintiff and impartial judge. 75. Plaintiffs did not comply with these Rules and ordinance requiring return of service of process, and did not note the individuals personally served with the alleged complaints and alleged summons as required by law. In fact, no persons were ever served with the complaints and summons, nor was notice properly served or sworn to. 76. The Plaintiff fails to distribute its traffic citations using the recommended Uniform Traffic Citation as discussed in Tennessee Code (which conflicts with Uniform Affidavit of Complaint in Rule 2 of TRCP, Advisory Commission Comments, nor the Uniform Summons in Rule 3 of TRCP, Advisory Commission Comments. This lapse produces Fraudulent Concealment of both Constitutional and statutory rights, to the benefit of Plaintiff's revenues from its court. Tenn. Code 55-10-208. Uniform traffic citation form.
(a) Every law enforcement officer in this state who is authorized to issue traffic citations may use a uniform traffic citation form prescribed by the department of safety. The plaintiffs' alleged complaints declare:
KNOXVILLE POLICE DEPARTMENT (emphasis in original) 77. Tenn. Code 29-9-108. Local ordinances and environmental violations;
failure to oppose, states:
(b)(3) The power to punish for contempt conferred by this section may not be used to punish persons who fail to appear for traffic violations or parking violations. 78. The Plaintiffs' civil warrants sued upon were not valid complaints and any alleged waivers of requirement for service of process is not valid nor were they binding upon the Defendants because Defendants never gave free assent thereto. 79. To the contrary, the Plaintiff and its representatives feloniously threatened Defendants, alleging that if they did not make, execute and deliver to the Plaintiffs and Department of Court the funds allegedly sued against Defendants to Plaintiff's Department of Court at Plaintiff's Department of Police Safety Building within three (3) days, payable to "Knoxville Police Department", that the Plaintiff's Department of Court and Department of Police would have the Defendants immediately arrested and placed in prison and their property immediately seized and possibly forfeited in judgment against Defendants, as already illegally attempted against Defendant John Lee on several occasions. 80. The Plaintiff's Department of Court clerk, Michael Martin, personally threatened the Defendant John Lee with arrest and seizure of his vehicle, and personally refused to allow Defendant to appeal the Plaintiffs' complaint(s) within the alleged three (3) day ordinance of limitations. This threat was recorded on audio tape, admitted under oath and witnessed by magistrate John Rossen. 81. At the time of the threat to Defendant John Lee, the Department of Court's clerk had admitted to felonious conduct and theft and extortion of funds within the Department of Court, and said theft and extortion occurred with publicly admitted permissions by representatives of the Plaintiff, including the Director of Department of Law, Michael Kelly, and the Director of Department of Court, John Rossen. This felonious conduct was admittedly publicly by the Plaintiff approximately one (1) month after Defendant John Lee's appeal to Circuit Court. 82. The Defendants' free will was thereby restrained, and their consent
was induced to the Special Appearance under duress of such threats. In
truth and fact, the Defendants were not indebted to the Plaintiffs
83. The alleged civil warrant sued upon implies it is a criminal warrant and Defendants' consent was induced to the Special Appearance under duress of such threats. In truth and fact, the Defendants were not indebted to the Plaintiffs for anything, and the Special Appearance to contest alleged Plaintiffs'unfounded allegations were wholly without consideration. 84. The alleged civil warrants sued upon were unenforceable in that they were made without a show cause hearing before Department of Court's Director, such that the complaints were illegal ones. 85. Plaintiff's Director is without authority to adjudicate any matter before its Department of Court, since to do so would violate Separation of Powers doctrine requiring separate judicial and executive branches. Plaintiff's Director is appointed by its mayor and allowed employment at the whims of its City Council, irregardless of subsequent public elections with term limits that fail statutory requirements. Plaintiff's Department of Court is located within its Department of Police headquarters and its abandoned jail, using citations demanding payment to "Knoxville Police Department", failing the requirement for an "impartial judge". 86. Plaintiff's lack of impartial court fails Constitutional and statutory tests for jurisdiction. 87. The alleged complaints fail to state a claim upon which relief may be granted, pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure, in that the alleged complaints fail to list an address for the Defendants' vehicles. Complainants A, B and C's complaint against Defendant John Lee, who's vehicle was parked at an address that was not the dwelling house or usual place of abode of the Defendant, and which was not public property contracted by the Plaintiff, was in fact private property and thus off limits to employees of the Plaintiff, who negligently or willfully committed criminal trespass. 88. Code of Ordinances, Chapter 17, Motor Vehicles and Traffic,
At any location where parking is prohibited as provided elsewhere in this section, the division of engineering may use yellow curb markings to reinforce such prohibitions and, based upon an engineering and traffic investigation, may use such markings to effect reasonable extensions of the distances over which the specified prohibitions are effective. Section 17-289 states:
No person shall park any vehicle upon a street in such a manner or such conditions as to leave available less than ten (10) feet of the width of the roadway for free movement of traffic. |
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Section 17-304 states:
When any parking time limit is established as authorized in section 17-301, or parking is prohibited as provided in section 17-298, 17-299 or 17-300, or special purposes parking spaces designated as provided in sections 17-302 and 17-303, it shall be the duty of the division of engineering to erect appropriate signs giving notice thereof, and no such regulations shall be effective unless the signs are erected in each block and in place at the time of any alleged offense. Section 17-360 states: Whenever any restriction on stopping for the purposes of loading or unloading of freight or passengers is established as authorized in sections 17-352 and 17-357 it shall be the duty of the department of engineering to erect appropriate signs giving notice thereof, and no such regulations shall be effective unless the signs are erected in each block and in place at the time of any alleged offense clearly indicating the limits of such restricted zone. 89. The civil warrants sued upon were unenforceable in that no street address was named for location of alleged civil cause of action. Alleged complaint names "Promenade Alley" as location of civil cause of action. No such address exists on any map or deed within boundary of Plaintiff. No individual street address is named in alleged complaint, therefore it is impossible to ascertain where alleged cause of action took place. In fact, prior to complainant-plaintiff-appellee's alleged cause of action, Plaintiffs' Department of Traffic Engineering refused on numerous occasions defendant's verbal and written requests that street signs naming the correct name of the historic street be installed and an engineering and traffic survey be conducted as required by statute and ordinance, as well as other signs required for public safety such as ONE WAY, DO NOT ENTER, according to information in possession of plaintiff. At no time did defendant-appellant-counterclaimant park in such a way as to reduce the width of the street available for public traffic to less than ten (10) feet. 90. The alleged civil warrant sued upon implies that it is a criminal warrant and his consent was induced to the special appearance under duress of such threats. In truth and fact, the defendant-appellant-counterclaimant was not indebted to the complainant-plaintiff-appellee for anything, and the Special Appearance in court to contest alleged plaintiffs' unfounded allegations are wholly without consideration. 91. Defendant avers that the execution of the purported civil cause of action in the alleged complaints was obtained by fraud and misrepresentations by the plaintiffs as follows: 92. Alleged Complainant A, Richard Graham, testified under oath that he did not attempt at any time to ascertain the name or number of the street the alleged cause of action occurred at. 93. Alleged complainant Richard Graham testified under oath that he did not attempt at any time to ascertain whether any street signs were posted to prohibit parking in the street, and testified under oath that he ignored the fact that the street included private parking on private property, including numerous individual spaces, entire parking lots both public and private and an entire street dedicated to private parking on private property, all accessible only via the street alluded to in the alleged complaint, and at no time blocked or restricted or impaired access by defendant's implied vehicle. In fact, defendant provided a parking permit duly issued to defendant in compliance with law authorized by the City of Knoxville Department of Traffic Engineering which authorizes him and others to block the public lane of the street if need be, in addition to the lane designated and taxed as private property. 94. The Plaintiff's court lacks judicial jurisdiction under the Tennessee and United States Constitutions regarding separation of powers of executive and judicial branches of Corporation. Tennessee Constitution states:
ARTICLE I. 95. Tennessee Attorney General Opinion No. 01-100, June 18, 2001, City
of Knoxville - Recall Petition - Qualified Voters - Home Rule – Constitutionality,
writes:
Under Article XI, Section 9 of the Tennessee Constitution, the charter of a municipality that adopts "home rule" may not be altered or amended by the General Assembly except "by laws which are general in terms and effect." But that provision was not intended to enable "home rule" municipalities to adopt charter provisions that are inconsistent with the general law. See Journal and Proceedings of the 1953 Constitutional Convention regarding Resolution 117, now Article XI, Section 9, p. 1011("[E]ven if you elect to operate at your option under the home rule plan, and you elect to amend your charter, you cannot adopt an amendment that is inconsistent with the general law, with only one exception that the home rule city will have the exclusive right of regulating the pay of its employees.") Tennessee Code 16-17-102 states:
The judges of the city court hereinafter established by the governing body of home rule municipalities shall be appointed on the nomination of the mayor or chief executive officer, concurred in by the city council or other legislative body, but the judges so appointed shall run for election in the next general election. Knoxville Code, Section 510 states:
The judge of the municipal court who shall also be known as the city judge, may be impeached, and after due trial before the council, following ten (10) days' notice in writing of the specific charges, may be removed by an affirmative vote of five (5) members of the council, and the judgment of the council shall be final. The grounds for impeachment, trial and removal shall be misconduct, drunkenness, immorality, malfeasance, misfeasance and nonfeasance. The council may institute impeachment proceedings by resolution of that body, and shall do so upon petition of not less than five hundred (500) qualified electors of the city, which impeachment petition need not set forth the specific charges against the city judge. 96. The Municipal Technical Advisory Service at University of Tennessee,
2000 Municipal Officials Handbook, writes:
Powers of municipal courts 97. All other allegations in the complaint not hereinabove admitted, or not specifically denied, are hereby denied. 98. WHEREFORE, Defendants demand judgment dismissing the complaints with prejudice and with costs against the Plaintiffs. ______________________________________________________________________________________
99. Now having fully answered the complaint, defendant-appellant John Lee, on behalf of himself and for all others similarly situated, assumes the role of counterclaimant and would show the court:
100. Defendant John D. Lee II is disabled military veteran and part-time journalist, and is a resident of Knox County, Tennessee. 101. The evidence will show that on December 28, 2000, Defendant parked his vehicle upon private property owned by Defendant's family, the "Lee Building", which also housed law offices of Lee, Lee and Lee, located between 422 Gay Street and Fire Street (so named for an historic fire station located on that street), intersecting Union Avenue and Summit Hill Avenue, formerly named Asylum Avenue. Plaintiffs failed to post signs on Fire Street as to name of street and failed to post signs warning of one-way traffic. At no time, neither then nor now, did Plaintiffs ever post "No Parking" signs at that address nor in that lane which was zoned by Plaintiffs for private parking. 102. Defendant previously lived at that address until December 1999 when employees of Plaintiffs' general contractor for "downtown renovation", Denark-Smith, admittedly set its own building on fire, adjacent to Defendant's building, which destroyed the contractor's building and caused $750,000 damage to Defendant's building and subsequently forced Defendant to abandon his home and find other accommodation. No arson investigation was performed by Corporation's Department of Fire, and while the inferno was several hours from being extinguished, Defendant was threatened with arrest by Plaintiffs if Defendant attempted to contact Plaintiffs with photographic evidence and eyewitness testimony of apparent arson. The supervisor on the scene from Plaintiffs' Department of Fire threatened Defendant, "If you keep saying that word I'll call the Knoxville Police Department and they have a jail cell with your name on it." The next day, while Defendant's family was forced to stay with relatives, Defendant's vehicle was damaged in a hit-and-run crash while still legally parked adjacent to the location of the fire, when the street was still a restricted area under control of Department of Fire. Plaintiffs' Department of Risk Management subsequently paid approximately $200.00 to Defendant as compensation for unknown employees of Corporation causing the damage to Defendant's legally parked vehicle. No parking citation was issued against Defendant for "Parking in a Fire Lane", and in fact, Department of Fire was unable to use Fire Street for access to fight the fire, since the Promenade walkway overpass blocks ladder trucks from using ladders and water cannons, nor were there any fire hydrants installed on Fire Street. 103. Defendant's family's building was thus undergoing renovation to repair damage caused by fire, water and smoke and to bring the structure up to code for eventual resale, and Defendant was required to occasionally maintain security, such as when vandals would pick the lock and leave the front doors open on Gay Street, fortunately without any theft or vandalism. The building was also used as storage and required constant access, including access to its loading dock and basement, where Defendant had personal items in storage, which required 24-hour access. Defendant often parked there simply to prevent other vehicles from blocking access to Defendant's loading dock, or else Defendant was forced to track down the owners of those vehicles and ask them to leave work and park somewhere else, or to save time, Defendant simply connected a hand-operated winch to the vehicles and personally moved them to the adjacent parking space. This street is used primarily for "private parking" for area businesses and residential complexes located along Gay Street, including several public "pay parking" lots, with the street used by the general public to access these parking lots, businesses and residences, and occasionally was used by employees of Department of Police to park their unattended vehicles during the day. All side streets perpendicular to Fire Street are zoned entirely for private parking, without any fire lanes whatsoever. Defendant's parking area is located adjacent to business and public parking lots of downtown's former shopping "mall" district, which included J.C.Penny, White Stores and Fowler Furniture. After death of that shopping district, due in part to Plaintiffs and Corporation's insistence on harassing motorists who attempted to park, work and shop, often by stealing their legally parked automobiles, the "Promenade walkway" was constructed in a vain and alleged attempt to lure shoppers and businesses back to downtown. Since that construction, the mass exodus has accelerated, due to Plaintiff's and Corporation's policies of seizing businesses, residences and parking lots then demolishing them, often without compensatory payment, leaving only a wake of destruction and higher taxes, with additional shortage of parking spaces, except for new parking garages for government employees to park for free, at a cost of $15,000 per parking space, or a privileged few businesses that get free grants from Plaintiffs and Corporation for free parking garages at a cost to taxpayers of $50,000 per parking space. 104. Adjacent to Defendant's building where Defendant occasionally parked were metal loading docks owned by an adjacent restaurant business, which legally extended three feet further into the street than did Defendant's vehicle. Other businesses on that street also had loading docks, although those businesses were shut down and abandoned, and currently so is the restaurant. The adjacent restaurant business was granted a free parking permit from Plaintiffs allowing a large "garbage" truck to park at that location on a permanent basis and to block both lanes of the street if need be. This truck extended approximately one foot further into the street than its loading docks did, while still leaving over ten feet of clear passage for other vehicles using the street to access other businesses, residences and parking lots. The evidence will show that a similar "garbage" truck previously received a parking ticket for actually blocking the second lane, which is posted as a "fire lane", when it was parked at an angle at the burned-out building that was adjacent to Defendant's building. 105. Richard Graham is an employee of Corporation, working in "Knoxville Police Department" ("Department of Police"). 106. The evidence will show that on Saturday, December 27, 2000, or Sunday, December 28, at approximately 2:00 PM on Christmas weekend, Mr. Graham, in coordination with an unidentified partner, supervisor and with other persons unknown, conducted a summary ex parte in absentia criminal arrest, prosecution, trial and subsequent conviction of Defendant, without notice to Defendant and without due process, and allegedly filed a valid judgment in Plaintiffs' court against Defendant for alleged criminal violation of an allegedly Constitutional ordinance involving parking of automobiles on alleged public property. In fact, Defendant's vehicle was parked on property owned by relatives of Defendant, which Corporation's ordinance requires a minimum of two "private parking" spaces in order to meet its building code. The evidence will show that Mr. Graham admits that he failed to conduct any investigation of the area surrounding Defendant's vehicle to determine what official signs were posted regarding alleged parking restrictions. Mr. Graham also failed to record the address where Defendant's vehicle was parked. Mr. Graham failed to record his own name on Plaintiffs' complaint and failed to sign his name. Plaintiffs' parking citation alleged Defendant's vehicle was "Parking in a Fire Lane" (singular), yet he failed to tow the vehicle that allegedly was "blocking" a fire lane and allegedly causing immediate danger to public safety, admittedly because Mr. Graham was able to drive his full-size automobile up and down the street without hindrance by Defendant's parked vehicle. Mr. Graham's unsworn "complaint" was allegedly filed on the docket of Plaintiffs' Department of Court, prior to any probable cause hearing before an "impartial" magistrate, court clerk or representative of the District Attorney General. No service of process was performed by Plaintiffs regarding their complaint and final judgment against Defendant, neither by personal delivery to an individual at Defendant's normal place of abode nor by use of certified mail, return receipt requested, with return postage prepaid. Plaintiffs' anonymous "complaint" against an unidentified defendant was abandoned at site of Defendant's vehicle, where any passing individual, gust of wind or pigeon might destroy said "complaint" and notice of criminal conviction, and threatened and extorted Defendant with theft of his property valued at many thousands of dollars if Defendant failed to immediately pay Plaintiffs $25.00, and if not paid within 3 days, an additional $9.00 would be extorted for a total of $34.00, payable by mail to "Knoxville Police Department". Plaintiffs' extortion letter of summary criminal conviction of unidentified defendant declared that "appeal" of conviction made by unidentified complainant/prosecutor/judge/jury "must be made in person" at the Knoxville Police Department's headquarters and jailhouse/museum, a building populated by 400 of Corporation's most violent employees who are armed with numerous deadly weapons and who are reported to kill numerous "civilians" an annual basis. 107. On Monday, Defendant phoned the clerk's office at Plaintiffs' Department of Court and requested to file an "appeal" of Plaintiffs' summary conviction. The clerk advised that a public hearing would be required, but that if there was a dispute over the lack of posting of "No Parking" signs, the bailiff would "take a look at it."
108. The Plaintiff has illegally refused to release public records to the defendant, on numerous occasions, from both Plaintiff's City Recorder's office at City County Building and from Safety Building, including public records under subpoena in the Plaintiff's court, in the case currently on appeal. This includes the public docket of the Plaintiff's court. In also includes the personnel file of Richard Graham, the plaintiff-complainant in this case. In fact, the Plaintiff literally banned the defendant from it corporate police headquarters in the Safety Building, via telephone answering machine message from Lieutenant Mark Pressley, under orders of the Plaintiff's law director, preventing the defendant from (1) accessing public records, (2) from conferring with Internal Affairs, and (3) from discussing with Criminal Investigative Division the theft of defendant's property. 109. The Municipal Technical Advisory Service at University of Tennessee,
in Municipal Officials Handbook, writes:
Open records
Confidential records 111. The Plaintiff, through its employees have and will continue to enforce certain city parking ordinances and official acts and policies which are unconstitutional under the Equal Protection clauses of the United States Constitution and Tennessee Constitution. 112. The Plaintiff, through its employees have and will continue to enforce certain city parking ordinances and official acts and policies which are unconstitutional under the Due Process clauses of the United States Constitution and Tennessee Constitution. 113. Enforcement of these ordinances and policies were declared unconstitutional by Judge Robert Taylor in Hale v Tyree, 491 F.Supp. 622, E.D.Tenn., on Nov 15, 1979, or will continue to deny due process to individuals whose automobiles the Plaintiff has illegally issued parking citations to, illegally rendered judgment for fines and court costs and fees or will render judgment of fines and court costs and fees, seized or will seize defendants' vehicles, declared default judgment in ex parte forfeiture proceedings against defendants' vehicles or will declare default judgment in ex parte forfeiture proceedings. 114. Defendant-appellant-counterclaimant, John Lee, has twice suffered the deprivation of a property, i.e., an automobile, without due process in violation of Judge Taylor's 1979 order, in violation of 42 U.S.C. 1983, the Fourteenth Amendment, and state law over which this court has pendent jurisdiction. Once from the identical private property and private parking location of the current litigation, prior to the current civil action and pending in another court of federal jurisdiction, and once from another public location on a city street nearby which occurred since the counterclaimant's filing of both the current litigation and the federal litigation. 115. In neither of those two seizures was due process observed, in violation of Judge Taylor's 1979 order. In fact, the parking citations issued to the defendant by employees of the Plaintiff have allegedly disappeared completely from the Plaintiff's court docket, denying due process hearings and probable cause hearings to the defendant-appellant-counterclaimant, resulting in illegal seizure and attempted forfeiture of defendant's vehicles. After towing and impounding the defendant-appellant-counterclaimant's two vehicles, the Plaintiff denied it towed or obtained possession of the two vehicles. In fact, severe damage was perpetrated upon those two vehicles by employees of Plaintiff. Such illegal activities committed by employees of Plaintiff, in pursuit of its illegal ordinances and policies and/or negligence, damages or destroys the ability of defendant to run his businesses and receive a college education. 116. A recent audit conducted by the Plaintiff's Department of Finance,
into mismanagement and misappropriations committed by employees of Department
of Court, revealed:
"It is impossible to determine if unrecorded citations were collected but not processed or deposited…. These factors prohibit adequate controls necessary to ensure that all citations have been processed." 117. Knox County Local Rules of Court for General Sessions Court, which are adopted by Plaintiff states: The dockets of the civil division of General Sessions Court shall be posted daily in a conspicuous place at the office of the Clerk of the Court of General Sessions, Civil Division, at the City County Building. 118. Plaintiff chooses to operate under home rule, which defeats the authority of its court. An advantage to home rule is that its Department of Court is not required to share its wealth with the county and state. Plaintiff's Code of Ordinances allows its Department of Court to collect fees for violations of state law but does not forward that money to the state: Sec. 8-9. Court costs for cases involving violation of state statutes.
In all cases tried and disposed of in the municipal court for the violation of state statutes pursuant to the authority of law and which result in conviction, the sum of twenty-five dollars ($25.00) shall be taxed and collected as court fees in each case. Such fees are in addition to the fine imposed by the court, and shall be paid to the city. 119. The Plaintiff's docket for Department of Court fails to record
parking citations and revenues, according to the audit conducted by the
Plaintiff's Department of Finance. This is a criminal violation in that
it indicates by circumstantial evidence that "ticket fixing" is taking
place, among other crimes such as embezzlement of court revenues.
55-10-204. Illegal cancellation of traffic citation - Audit of citation records. 55-10-305. Cases - How tried.
No judge shall try any case except upon warrant duly prepared in the form required by law, which shall be preserved with the other papers pertaining to such judge's office, and no such judge shall collect any fine or cost imposed in any case involving a violation of chapters 8 and 9 of this title and parts 1-5 of this chapter until that judge has completed the entries pertaining to such case in a docket kept for the making of the judge's records, and all such dockets shall be preserved and shall be at all times subject to inspection upon demand of any person named therein, and by all state officials or their duly authorized representatives. All judges shall deliver upon request, without charge, to the accused a receipt showing in detail the amount of fine and cost imposed upon and paid by such accused. No judge shall divide the fees of the judge's office with any constable, sheriff, or other state officer, or with any individual who may assist in making an arrest or furnish evidence in a case arising under chapters 8 and 9 of this title and parts 1-5 of this chapter. Any judge violating any of the provisions of this section or failing or refusing to make returns of convictions and fines or penalties imposed in chapters 8 and 9 of this title and parts 1-5 of this chapter shall be subject to removal for misdemeanor in office.
121. A hostile witness in this current litigation, Michael Martin, Plaintiff's clerk for its Department of Court, subpoenaed by this defendant, testified that he knew nothing about how many citations the Department of Court processes per day, month or year, and further testified he did not keep records of how much money is collected by the Plaintiff and its Department of Court. 122. Michael Martin, the Plaintiff's clerk for its Department of Court, was soon "fired" (i.e., "forced to resign or be terminated") by the Plaintiff's magistrate, the Honorable John Rossen, ("Director") for theft and extortion of his subordinate's paychecks, i.e., the court employee's "bonus" paychecks, as per Tennessee Code 16-18-207: (b) The… clerk may be removed by the city judge:
1. Tennessee Code 16-18-205, City judges; compensation and salaries,
states:
Knoxville Charter, Section 502 states:
Knoxville Code of Ordinances, Section 8-26 states:
125. The city ordinance for the salary of the city magistrate is actually below that of the city court administrator, who was admittedly salaried $41,308, plus "bonus". Presumably the corporate court's magistrate is paid more than its court clerk, with a larger "bonus". This is a violation of law. 126. To Serve All People: A report from the Commission on the Future
of the Tennessee Judicial System 1996, writes:
127. The Plaintiff operates its Department of Police according to an
illegal scheme of quotas for citations issued daily for its 400 officers.
This defeats the public interest and corrupts the Plaintiff's court. In
fact, illegal quotas beg the question: does KPD demand an illegal quota
of convictions and revenues from "its" court located in "its" Safety Building?
COUNSELING-
EXPECTATIONS FOR JUNE 1998- MINIMUM OF 2 CITATIONS FOR MOVING VIOLATIONS PER DAY
MOVING VIOLATIONS-
FAILURE TO MEET EXPECTATIONS WILL BE CAUSE FOR MUCH CLOSER SUPERVISORY SCRUTINY AND CONTROL. 130. Note that this is not addressed to the two (2) KPD cadets (under
age 21) that admittedly each write 150 parking citations daily in Central
Sector. 131. Another publicly reported document from Department
of Police and provided by Eddie Daniel states:
AT MY THURSDAY MEETING WITH THE OTHER DISTRICT COMMANDERS AND CHIEF COKER IT WAS AGREED TO MODERATE THE STANDARDS WHICH WERE ANNOUNCED AT OUR STAFF MEETING ON WEDNESDAY. THE BLANKET OF TWO MOVING VIOLATIONS PER DAY AND THREE CITATIONS PER DAY PER OFFICER HAS BEEN RESCINDED. THERE WILL BE NO BLANKET POLICY TO PUNISH ALL FOR THE SINS OF A FEW. THE NEW POLICY WILL BE: THE CONTACTS WILL BE REVIEWED EACH MONTH BY THE DISTRICT SERGEANTS, LIEUTENANTS AND COMMANDER. ANY OFFICER THAT IS PERCEIVED TO BE LOW IN CONTACTS, IN ANY AREA, MAY BE CALLED IN AND COUNSELED BY HIS SERGEANT AND A LIEUTENANT OR CAPTAIN. IF IMPROVEMENT IS NOT SHOWN THE NEXT MONTH MORE SERIOUS SANCTIONS MAY FOLLOW. 132. Eddie Daniel was publicly quoted in a press release for Fraternal
Order of Police:
133. Eddie Daniel has in his possession an audio tape recording of a
KPD commander's admission that, "Don't believe what you read in the papers,
the quota is still in effect."
(a) A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense: (1) Intentionally engages in action or causes a result that would constitute an offense if the circumstances surrounding the person are as the person believes them to be; 39-12-103. Conspiracy |
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(a) The offense of conspiracy is committed if two (2) or more people, each having a culpable mental state required for the offense which is the object of the conspiracy and each acting for the purpose of promoting or facilitating commission of an offense, agree that one (1) or more of them will engage in conduct which constitutes such offense; PART 2—Organized Crime 39-12-201. Short title This part shall be known and may be cited as the "Racketeer Influenced and Corrupt Organization Act of 1989." 39-12-202. Findings and intent The general assembly hereby finds and declares that an effective means of punishing and deterring criminal activities of organized crime is through the forfeiture of profits acquired and accumulated as a result of such criminal activities. 39-12-203. Definitions (2) "Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association or group of individuals associated in fact although not a legal entity, and it includes illicit as well as licit enterprises, and governmental, as well as other, entities. (6) "Pattern of racketeering activity" means engaging in at least two (2) incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents; provided, at least one (1) of such incidents occurred after July 1,1986, and that the last of such incidents occurred within two (2) years after a prior incident of racketeering conduct; 39-12-204. Prohibited activities (a) It is unlawful for any person who has with criminal intent received any proceeds derived, directly or indirectly, from a pattern of racketeering activity or through the collection of of an unlawful debt to use or invest, whether directly or indirectly, any part of such proceeds or the proceeds derived from the use or investment thereof, in the acquisition of any title to or any right, interest, or equity in, real or personal property or in the establishment or operation of any enterprise. 39-12-205. Fines and penalties (b)(1) In lieu of a fine otherwise authorized by law, any person convicted of engaging in conduct in violation of the provisions of this part, through which pecuniary value is derived, or by which personal injury or property damage or other loss is caused, may be sentenced to pay a fine that does not exceed three (3) times the gross value gained or three (3) times the gross loss caused, whichever is greater, plus court costs and the costs of investigation and prosecution, reasonably incurred. 39-12-210. Remedies; third parties (a) Any creditor or innocent person who has an interest in any real
or personal property which is the subject of any civil suit filed by the
investigative agency shall have the right to intervene in such civil suit.
(a)(2)(c) The remedies provided to creditors and innocent persons in
this section are in addition to any other rights or remedies provided by
this part or by law.
COUNTERCLAIM
151. Defendant John Lee, as proposed class representative, as pending
appeal under Rules 9 and 10 of Tennessee Rules of Appellate Procedure,
has had at least one car ticketed for alleged parking causes of action
upon request and by color of law by Plaintiffs and the Corporation. The
exact number of parking tickets prosecuted against Defendant is unknown,
due to willful and/or negligent destruction of the docket of Plaintiff's
Department of Court.
COMMON FACTS
156. Defendants have had or will have their cars ticketed for parking
by order of the Plaintiff.
EXCERPTS FROM THE
is a 50-page free guide provided to appellants to the Court of Appeals,
the Court of Criminal Appeals and the Supreme Court by the Office of Clerks
of Court, including to defendant-appellants of parking judgments in municipal
courts. A similar 50-page free guide deserves to be provided to appellants
within the Plaintiff's Department of Court, under Constitutional Equal
Protection doctrine.
Whenever any motor vehicle without a driver is found parked, standing or stopped in violation of any of the restrictions imposed by ordinance of the city or by state law, the officer finding such vehicle shall take its registration number and may take any other information displayed on the vehicle which may identify its user, and shall conspicuously affix to such vehicle a parking citation for the driver to answer to the charge against him within five (5) days during the hours and at a place specified in the citation. 163. At no time did Plaintiffs make any attempt to identify the owner
of Defendant's vehicle.
Members of the police department shall have the authority to impound any vehicle, by towing such vehicle to the vehicle pound, under the following circumstances: (6) At any place where official signs or markings designate a no parking or tow away zone. Sec. 17-99. Notice to registered owner. (a) After a vehicle has remained unclaimed in the pound for forty-eight (48) hours, the officer in charge of the pound shall send a notice by certified mail, return receipt requested, to the registered owner of the impounded vehicle. The officer shall determine the name and address of the registered owner from state registration records using the vehicle's license plate number and vehicle identification number. (b) The officer in charge shall deliver the same notice to owners or authorized agents who appear at the impoundment lot to claim a vehicle. The owner or authorized agent shall acknowledge in writing receipt of the notice. If any person required by this section to sign a notice refuses to do so, the officer in charge shall note this fact in writing, which shall constitute prima facie evidence of delivery of notice as required by this section. Sec. 17-101. Release of vehicle from impoundment. (a) The owner of a vehicle impounded pursuant to this division or his authorized agent may make application to take possession of the vehicle and remove such vehicle from the vehicle pound upon presentation of an application for certificate of title or a certificate of title, and upon payment of the cost of towing the vehicle and all charges which may have accrued for the storage of the vehicle. However, payment of towing and storage fees shall not relieve the owner of responsibility for the violation. (b) Any owner who requests a hearing pursuant to section 17-102 may obtain the release of his vehicle from the pound without prepayment of any towing or storage costs; provided, however, as security for the impoundment costs, he shall either make a cash deposit or execute a bond with one (1) or more sureties as approved by the director of public safety, payable to the city, in a sum equal to the total impoundment fees at the time of release of the vehicle. 167. Upon information and belief, Defendants assert that Plaintiff's ordinance Sec. 17-102 violates Federal Law and Judge Taylor's order in Hale because the ordinance requires payment of a bond or deposit before the hearing. Appeal of parking citations to circuit court requires prepayment of $624.50 in appeal bonding and fees at double rate. Alleged codes enforcement violations for residents parking in their own driveways, under so-called "abandoned or inoperable vehicle" ordinances, costs defendants $375 per day for every day their car will not start, in addition to 30 days imprisonment for every day their car will not start, plus seizure and forfeiture of their vehicles whether they are operable or inoperable, without due process of law or receipt and service of process. These ordinances, court rules, police policies and practices are Cruel and Unusual Punishment as prohibited by the United States Constitution and Tennessee Constitution. 168. Judge Taylor held that the Ordinance is unconstitutional insofar as it does not provide for a hearing by a neutral official before payment of towing and storage fees, and insofar as it provides for summary seizure of abandoned vehicles which are not blocking traffic. It is a proper Ordinance, however, insofar as it provides for removal of vehicles which impede the flow of traffic. 169. The unconstitutional ordinance is Sec. 17-102. Hearing:
(a) An owner whose vehicle has been towed and impounded pursuant to this division shall have an opportunity for a hearing in municipal court on the parking or traffic violation which resulted in the impoundment. 170. On these facts Defendants seek a declaratory judgment and injunctive
relief, claiming that the Ordinance is unconstitutional in that it:
(1) Does not provide for prior notice or opportunity for hearing before seizure of a vehicle. 171. On these facts, Defendants seek a declaratory judgment and injunctive relief claiming that the policy and practice of the Plaintiff does not in any event provide for any type of hearing before an impartial decision maker on the merits of the violation giving rise to the parking citation or subsequent judgments.
172. Defendant owned a 1991 Ford Tempo and legally parked this car behind his family's place of business, 422 S. Gay Street, Knoxville, Tennessee, on private property at a legally required loading area adjacent to 422 Fire Street (historically named for the former Fire Department located there. It was not renamed when the adjacent Asylum street was changed). 173. The Ford Tempo was not blocking the public street, which is the only access for numerous parking lots on Fire Street, both public pay-parking and private parking lots and individual spaces. In fact, Fire Street is virtually nothing but private parking for its entire length of two blocks, including both parallel parking as on Defendant's property and large public parking lots managed by professional parking corporations, including Plaintiffs' Knoxville Utilities Board (KUB). 174. On December 28, 2000, Richard Graham, and employee of Plaintiffs, Department of Police, filed a civil complaint with his employer in its Department of Court, for an alleged cause of action for parking in an alleged public street while allegedly blocking an alleged fire lane, an alleged violation of Plaintiffs' ordinance on public property. Defendant "appealed" this false allegation, under illegal duress and extortion from Plaintiffs, demanding a due process hearing in Plaintiffs' Department of Court. 175. Five hostile witnesses were subpoenaed by Defendant, including Plaintiff's court clerk, bailiff, two officers and a commanding officer. None of the subpoenas were correctly issued by the Plaintiffs' court clerk as to day, month and year. Numerous witnesses employed by Plaintiffs disobeyed their subpoenas without sanction by the Plaintiffs' Department of Court, despite oral Motions to Compel by Defendant. The Director of Department of Court ruled against Defendant. Defendant appealed the Final Judgment to the Circuit Court. 176. A towing incident for an alleged parking civil action occurred after appeal to the circuit court. Defendant alleges destruction of the parking citation and city court docket. A previous parking complaint was "filed" by Plaintiffs' employee(s) against Defendant. In this cause of action, Plaintiffs refused to serve process upon Defendant resulting in illegal seizure and destruction of his car, and damage to his business and education. Defendant alleges destruction of the parking citation and city court docket, an occurrence that Plaintiff publicly admitted was an illegal policy and practice of its Department of Court. 177. The following witnesses testified in Plaintiff's Department of Court regarding the current parking-citation appeal litigated before this Court. Defendant owned a 1990 Honda ACCORD 4D and legally parked this car behind his residence at 422 Gay Street, Knoxville, Tennessee, on private property located beside 422 Fire Street. 178. The car was not blocking the 2-lane "alley" and was safely positioned in counterclaimant's commercial loading zone along Fire Street, under or next to the Promenade Garage near the corner of State Street and Union Avenue. 179. No street signs exist to identify the name of this historic street, which is a potentially deadly violation of Fire Code and/or "Ambulance Code". On January 25, 2001, Plaintiffs' engineering department finally responded with a letter officially refusing Defendant's repeated verbal and written requests for Corporation to install street signs, "One-Way, Do Not enter" signs and refusal to make an engineering survey to determine once and for all that there are zero "No Parking" signs on Defendant's private property, which would of course, destroy Plaintiffs' claims for parking violations of ordinances. William E. Cole wrote, "It is my understanding that this matter is the subject of litigation and so I would refer any further inquiries to our Law department." Plaintiffs' refusal to settle this matter in the most expeditious manner possible has the obvious purpose of continuing its frivolous and malicious litigation against Defendant and to waste the Court's time. Defendant had routinely parked in that location, as many others continue to park their cars, and had never been ticketed or warned that doing so violated any laws. 180. On December 29, 1999, Defendant's vehicle was damaged by a hit-and-run driver employed by Plaintiff. On January 31, 2000, the Plaintiff's Department of Risk Management compensated Defendant approximately $173.20 for damage to Defendant's car, which was parked legally in the exact place from which the car was subsequently towed, and one year after that finally received its first fraudulent "parking ticket". 181. This ticketing was in apparent attempt to influence the federal court with a fraudulent civil judgment for alleged violation of Corporation's ordinance. 182. At about 3 A.M., early on a Saturday morning, January 15, 2000, Plaintiffs' employees Ryan Flores, " Sgt. John Doe","Eddy" (KPD Vehicle Impoundment Report, possibly Eddie Lynch) and other employees of Sutherland Avenue Wrecker Service, Inc., E911 dispatchers Angela Johnson and Heather D'Allesandro and others unknown to Defendant conspired to unlawfully take Defendant's car. 183. Defendant asserts that the causes of action against these unknown "John Does" are tolled because counterclaimant cannot through reasonable diligence determine the identity of such persons. 184. A review of the 911 Dispatch tapes reveal that Ryan Flores was ordered to look specifically at Defendant's car, a 1990 Honda Accord, despite other cars being parked in the street at that time. 185. This street is basically "private parking" for a distance of two city blocks, which is the entire length of Fire Street, including both parallel parking like Defendant's property and large public parking lots operated by management corporations. Ryan Flores declared publicly via his recorded radio discussion at about
3 A.M. on Saturday morning, January 15, 2000, as follows:
There's a car in the alley but it's not blocking anything. You can pass all the way through there. I was down there. There's a guy in his little orange service truck and he advised there was no problem. I'll be back around. 186. Upon making these statements upon the publicly accessible channel, Officer Flores was told by dispatcher Heather D'Allesandro to communicate with his supervisor via a change to Channel 1-F, then to Channel 1-H, after which he returned to counterclaimant's car and assisted in the tow by Plaintiffs' contractor, Sutherland Avenue Wrecker Service. During bench trial in this matter in Corporation;s court, Ryan Flores admitted to making an illegal cell-phone call to his supervisor, Shawna Williams, in contravention of Coporation's regulations and ordinances against secret conversations among its officers that would expose it to legal liability. 187. Circumstantial evidence tends to prove that this contractor illegally phoned Emergency 911 Dispatch and demanded an illegal towing and/or vehicle theft ("cruising" is specifically prohibited by statute, ordinance, regulation and contract), rather than the "street sweeper" as alleged by Plaintiff Bob Wooldridge and denied by the public radio broadcast and informal audio-tape recording of Ryan Flores. 188. Approximately thirteen (13) hours later, after counterclaimant realized his car was missing, counterclaimant called KPD, Sutherland Avenue Wrecker, Cedar Bluff Towing and Department of Police's Impound Lot, all of whom denied that a Honda Accord had been towed. 189. Department of Police's Teleserve declared publicly via its recorded
telephone service at about 5:35 P.M. on Saturday afternoon, as follows:
Teleserve: Knoxville Police Department, Officer Gallop. 190. Defendant reported his car stolen (Plaintiff's police report # 000000002925). At no time did a detective or wrecker inspector phone the Defendant or anyone else regarding the fact that Plaintiffs ordered the car seized and that Plaintiffs were in possession of the vehicle. It is unknown where Sutherland Avenue Wrecker Service driver "Eddy" (from "KPD Vehicle Impoundment Form") towed the Honda Accord. However, a tow to anywhere but to Plaintiff's Impound Lot is a violation of city ordinance, and Department of Police's General Order 3.3, IV. Parking violations: 191. KPD General Order 3.3, IV. Parking violations.
Any vehicle towed for the parking violations listed in Knoxville Code 17-98 will be towed to the Vehicle Impoundment Lot by an area wrecker. 192. Within one hour of Internal Affairs handing Defendant this public record of Corporation's ordinance, and helping Defendant make an appointment with a detective regarding theft of personal property, Lt. Mark Pressley phoned Defendant's unlisted home number and left an unlawful order "banning" Defendant from a public building, under unlawful orders from Corporation's counsel. Mark Pressley was subsequently transferred into Internal Affairs. 193. On February 23, 2000, Sutherland Avenue Wrecker sent defendant
a letter alleging that $753.62 was owed for towing, and was increasing
at about $100/week. This communication was the first communication confirming
that Counterclaimant's car had been towed. These rates violated the Motorists
Bill of Rights and Sutherland Avenue Wrecker Service's contract with the
City. The time limit of notification violated City ordinance.
The above vehicle was towed to our storage facility on 1-15-00 from the location shown. According to division of motor vehicle you are the last registered owner of this vehicle. As of this date of this letter, the accumulated charges on t vehicle total $753.62. This includes a towing charge of $40. Storage is $13.00 pre day plus tax and charge will continue until the vehicle is picked up. There is also a $10.00 research fee. Sec. 26-277. Nonconsensual towing rates.
"Nonconsensual tow" or "nonconsensual towing" is towing without the prior consent or authorization of the owner or operator of the vehicle to be towed. The rates for nonconsensual tows for which a towing company may charge when services called for originate within the city include the following: Sec. 26-282. Compliance with instructions of owner as to place to which
vehicle is to be towed.
The driver of a wrecker shall tow, transport or convey the vehicle to be towed to any place designated by the owner of such vehicle. It shall be unlawful for the owner, driver, driver's helper or operator of the wrecker, or an agent, employee or representative of the owner or driver of the wrecker at the scene of any accident, to coerce, insist or solicit any owner or operator of a vehicle to sign a work order or agreement at the scene of any place from which the vehicle is to be transported for any repairs to be made on such vehicle. The driver of a wrecker, in all cases, before moving the vehicle to be towed, shall ask the owner or operator of the vehicle the place to which he desires the vehicle to be taken, and shall so transport such vehicle to such place upon the towing charges being paid or secured. Otherwise, the vehicle shall be towed or transported to the wrecker operator's storage lot. Sec. 26-283. Prohibited acts.
It is unlawful: |
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Sec. 26-284. Storage lot.
With the exception of a request of the owner or operator of a vehicle to transport the vehicle to a specific location within or without the city, all certificate holders shall tow vehicles within the city to a storage lot within the city maintained by the certificate holder, which location must be properly zoned, lighted and screened in accordance with the requirements of the city; have an attendant with authority to transact business available at all times; have a telephone available to the public; and, have sufficient area available to accommodate all vehicles towed to the lot. DIVISION 5. ENFORCEMENT Sec. 26-288. Penalty for violation of article.
Anyone who violates any of the provisions of this article shall, upon conviction, be guilty of a misdemeanor and subject to punishment as provided in section 1-9 and sections 26-246, 26-247, and 26-248 (Suspension or revocation) of the City Code. If any person operates a wrecker without a certificate within the city limits, each separate tow or offer to make a trip shall be deemed a separate violation. (Ord. No. O-210-98, § 1, 4-7-98)
March 24, 2000 194. The maximum price allowed by Sutherland Avenue Wrecker Service's
contract with the City, for non-consentual tows of cars and trucks less
than 1/1 ton cargo capacity is $15.
CONTRACT SPECIFICATIONS 195. Initially, Sutherland Avenue Wrecker would not allow counterclaimant to see his car, even with a Bill of Sale to John Lee. Since the vehicle was listed as stolen in the NCIC system, it was impossible for DMV to print a lost title. There was no required posting of the Motorists Bill of Rights, nor was there a public telephone available for use by customers. 196. In March, counterclaimant finally got to see his car, and at that time realized that the car stereo and CD player were stolen. There was also damage to vehicle and to other personal items. 197. When asked where counterclaimant's stereo and CD player was, a Sutherland employee stated that it was all missing before they got to tow it. 198. Flores's Tow-In Report ("KPD Vehicle Impoundment Form" # 00-002147) noted some minor pre-existing damage to the steering wheel, but did not mention anything about a missing stereo. The missing stereo is now much more noticeable than the minor damage to the steering wheel. 199. Defendant filed a stolen stereo report (KPD # 000000019098). No one at Department of Police would enforce the law against contractor for Defendant, nor will anyone at Department of Police investigate these allegations of stolen property. In fact, Lt. Mark Pressley gave an unlawful order to Defendant on Defendant's telephone answering machine, apparently acting under the unlawful orders of Corporation counsel, that Defendant was "banned" from Corporation's department of police and was not allowed to speak with any detective. Defendant was thus "forced" to cancel his appointment with a detective, under duress of 400 of Plaintiffs' employees each wielding weapons of mass destruction. 200. While this amended complaint does not seek compensation for this particular incident of theft by the Plaintiffs, Plaintiffs' unconstitutional ordinances and practices are the starting point for Plaintiffs' pattern of racketeering and organized crime conspiracies. Unconstitutional parking ordinances also are the foundation for the City's, State's and Nation's stolen-vehicle "industries". As such, justice demands that this Court deny Plaintiffs' their opportunity to plunder the Community.
201. On these facts Defendants seek a declaratory judgment and injunctive
relief, claiming that the Plaintiff's policy is unconstitutional in that
it:
(1) Denies due process and does not provide for service of process for notice, affidavit of Uniform Complaint, Uniform Summons and impartial hearing before a court with jurisdiction. 202. On these facts Defendants seek a declaratory judgment and injunctive relief, claiming that the Plaintiff's Ordinance is unconstitutional in that it is cruel and unusual punishment in requiring payment of excessive appeal deposit or appeal bond for parking and court fees, penalties and costs, potentially exceeding 10,000 percent (%) of the cost of the alleged damages to Plaintiff, before a defendant can appeal the Plaintiff's Department of Court's judgment in Plaintiff's parking lawsuits, notwithstanding the availability of pauper's oath and affidavit of indigency for a minority of defendants. 203. With the recent U.S. Supreme Court decision of Atwater v. City
of Lago Vista, No. 991408, Argued December 4, 2000, Decided April 24, 2001,
these ordinances and policies and practices of Corporation's officers has
been given further "authority" for abuse of Defendants' civil rights:
Relying on Whren v. United States, 517 U.S. 806, 817818, the court observed that, although the Fourth Amendment generally requires a balancing of individual and governmental interests, the result is rarely in doubt where an arrest is based on probable cause. Because no one disputed that Turek had probable cause to arrest Atwater, and there was no evidence the arrest was conducted in an extraordinary manner, unusually harmful to Atwaters privacy interests, the court held the arrest not unreasonable for Fourth Amendment purposes. 205. On these facts, Defendants seek a declaratory judgment and injunctive relief claiming that the policy and practice of the Plaintiff does not in any event provide for any type of show cause hearing before an impartial decision maker on the merits of the violation giving rise to the parking complaint, and does not provide for service of process to defendants in civil actions involving parking complaints.
206. Defendant John Lee alleges that plaintiffs were unjustly enriched by ticketing defendant's vehicle and by seizing various items of personal property belonging to defendant, as well as annexing or seizing real property in which defendant retains potential property interest. 207. Defendant seeks all damages related to this unjust enrichment including punitive damages. ______________________________________________________________________________________ 208. Defendant alleges that plaintiffs engaged in a conspiracy to convert defendant's personal property and defendant's interest in real property under color of law. 209. Defendant seeks all damages related to this conversion including
punitive damages.
210. Defendant alleges that Plaintiffs engaged in a conspiracy to censor Defendant's journalism by intimidation and extortion and abuse of process. 211. Defendant seeks all damages related to this conversion including punitive damages.
212. Defendant alleges that Plaintiffs engaged in a conspiracy deprive Defendant of equal access to free public parking as provided by Plaintiffs to Corporation's employees, including judges. Parking meters deny equal access to free parking downtown and harm the community in both business enterprise and residential development. Parking meters encourage Fraud, Waste and Abuse of contracts and theft of revenues, resulting in excessive debt to the Corporation and thus the public. Parking meters also encourage the car-theft industry through misuse of towing contracts and tempts corruption of police forces. 213. Defendant seeks all damages related to this constitutional violation including punitive damages.
214. Defendants respectfully request that this court:
(a) certify this action to proceed as a class action under Rule 23;(b) declare the challenged statutes of Tennessee and ordinances, policies and practices of Plaintiff to be in violation of the defendants' Constitutional Rights; 215. WHEREFORE, defendant prays the judgment that the plaintiff take
nothing and that the defendant recover of the respondents to counterclaim,
employees of Plaintiff and Corporation, the amount of $1,000,000 Dollars,
or, in the alternative, demands judgment against the plaintiffs for said
amount to be credited against any the plaintiff shall recover in this action.
Respectfully submitted: John Lee, pro se and in forma pauperis
STATE OF TENNESSEE COUNTY OF KNOX Comes the affiant, after being duly sworn, and does depose and say the following: I, John Davis Lee II, am over 18 years of age and make this affidavit in support of the Motion for Extension of Time in the above listed case based upon my own personal knowledge. 1. Richard Graham ("Complainant A") failed to personally serve process of complaint and summons upon me or any member of my household. Complainant A failed to provide service of process by registered mail. Complainant A did not mail to me a written request to waive requirements for service of process. 2. The attorney of Plaintiff failed to provide me personal service of process of complaint and summons. The attorney of Plaintiff failed to provide me service of process by registered mail. The attorney of Plaintiff did not mail to me a written request to waive requirements for service of process. 3. Complainant A left a copy of his complaint and summons on my vehicle at an address that was neither my house nor usual abode. Complainant A failed to personally serve process of complaint and summons upon me or any member of my household. Complainant A failed to provide service of process by registered mail. Complainant A did not mail to me a written request to waive requirements for service of process. 4. The attorney of Plaintiff failed to provide me personal service of process of complaint and summons. The attorney of Plaintiff failed to provide me service of process by registered mail. The attorney of Plaintiff did not mail to me a written request to waive requirements for service of process. 5. The attorney for the Plaintiff, Hillary Browning, verbally agreed to approve a stipulation and agreed order for continuance of motion hearing and jury trial, then, after defendant prepared said pleadings as per specifications agreed to by assistant city attorney, said attorney refused to meet with and sign said pleadings. Instead, said attorney ordered a clerk to phone circuit court clerk in regards to seeking legal advice from a person who was not licensed to practice law, in violation of Tennessee Court Rules. Said clerk of city attorney then proceeded to allege to defendant unsound legal advice that allegedly prevented said attorney from signing the prepared pleadings and letting defendant file them with court clerk, thus wasting the court's time by requiring a meeting in judge's chambers on the motions, when an agreed continuance may have prevented the need for a meeting in camera to contest the matters. 6. The Plaintiffs' then fired this witness, apparently to continue Plaintiff's policy of firing many of Defendant's best potential witnesses, and threatening to fire others to extort them from speaking with Defendant. 7. The Court's Order of Continuance, originally filed and dated June 22, 2001, was fraudulently altered. The original stamp was obliterated with "White Out" and restamped with the date June 25, 2001. This date was subsequently obliterated with "White-Out" and redated the original June 22, 2001, but with a hand stamp rather than the time-dated machine stamp that is required to be used. Further affiant sayeth not. __________________________
STATE OF TENNESSEE COUNTY OF KNOX Sworn to and subscribed before me on this ________ day of _____________, 2001. ___________________________
My commission expires: ____________________
The undersigned hereby certifies that a true and exact copy of this pleading has been served upon counsel for all parties at interest in this case by delivering a true and exact copy of said pleading to the offices of said counsel, or by placing a true and exact copy of said pleading in the United States Mail, addressed to said counsel at his office, with sufficient postage thereon to carry it to its destination. City of Knoxville Municipal Corporation
All other individual plaintiffs
This ______ day of ___________, 2001. _________________________
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