IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
OF FLORIDA, IN AND FOR PALM BEACH COUNTY, FLORIDA
IN THE MATTER OF THE MARRIAGE OF
JEFFREY P. LAWSON, Husband
Petitioner,
v.
CASE NO. 502005DR001269XXXNB
KATHY ANN GARCIA-LAWSON, Wife
Respondent.
______________________________________/
Notice of Respondent’s Constitutional Objections to Personal Jurisdiction,
Motion for Leave to Amend Answer & Counterclaim,
Motion for Scheduling Order and New Trial, and
MOTION TO STAY PROCEEDINGS PENDING DETERMINATION OF
CONSTITUTIONAL JURISDICTION
COMES NOW the Respondent Kathy Ann Garcia-Lawson, pro se, giving notice
of her constitutional objections to the exercise of personal and subject matter jurisdiction
over her by and under the Family and Domestic Relations Code and Courts of Florida.
The fundamental question which Respondent submits is this:
Where there is no express constitutional authorization, how can there be any
legitimate constitutional exercise of control over any subject matter or personal
question defined as a matter of fundamental right, such as marriage, privacy, and
child-rearing? If neither the constitutions of the United States of America nor the State
of Florida authorize the licensing or dissolution of marriages, nor to regulate domestic
relations in any way except with regard to public safety, how can the State of Florida
erect and maintain courts to adjudicate cases relating to such matters?
The Fourth District Court of Appeal for the State of Florida has expressly decided
in its order of February 15, 2012, that the Judge Richard L. Oftedal had no power
whatsoever to enter a final judgment on April 29, 2010 for the dissolution of marriage. In
other words, the Fourth District Court found that Judge Richard L. Oftedal acted in the
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
1
complete absence of jurisdiction in entering that “Final Decree of Dissolution” dated
April 29, 2010, and that his actions were a nullity. Implicitly, Judge Oftedal must also
have acted unlawfully when he refused to set aside his April 29, 2010, order upon Kathy
Ann Garcia-Lawson’s post-trial Motion.
As the Fourth DCA correctly noted,
Respondent Kathy Ann Garcia-Lawson had not one, but two appeals of non-final orders
filed (pursuant to the Florida Rules of Appellate Procedure, 9.130).
The two interlocutory appeals both concerned constitutional challenges to the
Florida Family Code and Florida Domestic Relations jurisdiction. Since the Fourth DCA
denied Respondent’s motion for clarification or rehearing on these subjects, the appellate
justices essentially declined to decide and/or found it unnecessary or improper to reach
these issues, since they had already reversed and vacated Judge Oftedal’s final judgment
in full in Respondent’s favor1.
Kathy Ann Garcia-Lawson now returns to this Circuit Court and asks for leave to
amend her pleadings, and for a new scheduling order, a new opportunity to conduct
discovery (which she never did) and for a New Trial in this Court to find and/or
determine, after sufficient hearing and inquiry into the underlying facts and law of the
case all of the Constitutional Issues which Kathy Ann Garcia-Lawon has sought to bring
to bear in this case, as a matter of law.
The essential point is that neither the United States Constitution nor the
Constitution of the State of Florida authorize the State to Issue Marriage Licenses or to
impose jurisdiction by statute to resolve cases or controversies involving or arising from
1
Kathy Ann Garcia-Lawson abandoned these two interlocutory appeals once Judge
Oftedal entered his final judgment on April 29, 2010, but the issues were not waived
firstly because by operation of law the issues raised by the interlocutory merged, and
secondly because these issues were fully briefed, as part of Kathy Ann-Garcia-Lawson’s
Initial Appellate Brief, of which the Florida Fourth D.C.A. reached only the 9.130
jurisdictional issue and refused, even on her March 1, 2012, motion for clarification or reargument, to address, decide, or resolve in any manner.
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
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private domestic relations or religious questions of any kind (so long as no breaches of
the public safety or peace are involved or implicated).
Kathy Ann Garcia-Lawson now demands that, in the interests of judicial
economy, this Court rule (after seven long years of waiting) how the Florida Florida
Family Code (in particular as dealing with dissolution, division of property, and child
custody) derives any legitimate power or constitutional authority in light of Article I: §§1,
2, 3, 5, 9, 10, 12, 21, 22, 23, 27, including but not limited to Basic Rights, Religious
Freedom and Non-impairment of contract provisions of Article I: §§3 & 10 (including the
proposed amendment of Article I: §3 submitted to the people for popular mandate on the
ballot this November 2012) of the Florida Constitution, as well as the First, Fifth, Ninth
and Tenth Amendments to the United States Constitution, as a whole, and her rights to
Due Process of Law (Art. I: §9), Trial-by-Jury (Art. I: §22), and protection from wrongful
intrusion into her privacy (Art. I: §23) by the Courts as a precondition of preserving those
rights in dissolution proceedings.
The only mentions of “marriage” in the entire constitution of Florida appear in the
recently adopted negative definition in I: §27 and in Article X, §5. Neither section
neither authorizes nor implies state authority to license marriage. Article I, §27 mandates
that Florida will respect only heterosexual unions as marriages as a matter of law, for
whatever legitimate purposes there might be in so doing. Article X, §5 likewise makes
no reference to state regulation of marriage, but addresses (somewhat mysteriously, and
perhaps redundantly with Article I, §2 above) another issue of “respect” under law:
There shall be no distinction between married women and married men in
the holding, control, disposition, or encumbering of their property, both
real and personal; except that dower or curtesy may be established and
regulated by law.
Accordingly, Kathy Ann Garcia-Lawson now asks this Court finally to rule,
resolve, and clarify, upon new trial after amendments, discovery, and full-briefing herein
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
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requested to resolve Kathy Ann Garcia-Lawson’s constitutional questions and affirm her
challenges both to this court’s exercise of personal and subject matter jurisdiction.
Kathy Ann Garcia-Lawson is the respondent to the Petition for Dissolution of
Marriage brought by her husband, Jeffrey P. Lawson, originally in February of 2005.
Contending from the beginning that there was a defect in the subject matter
jurisdiction of this Court, Kathy Ann Garcia-Lawson has never consented to the
jurisdiction of this Court. It is a time honored principle in this state, affirmed steadily by
our Supreme Court since at least Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (Florida
March 29, 1927) that any:
Party proceeding without objection with hearing in equity court of
controversy, jurisdiction of which may be given by consent, may not
thereafter complain as to jurisdiction.
But the record will show that Kathy Ann Garcia-Lawson has continually objected
to the jurisdiction of this Court and never waived her rights to challenge the personal or
subject matter jurisdiction of any Florida Court to adjudicate any aspect of her marriage,
her domestic relationship with her husband, or her domestic relationship with their
daughter, or to dispose of any of their property except that her husband or the Court show
positive constitutional authority to do so, and not merely acquiescence by silence as to
this point of most sacred and fundamental rights.
Nor has Kathy Ann Garcia-Lawson ever been afforded the right to amend her
pleadings in accordance with her constitutional objections and challenges to the personal
and subject matter jurisdiction of this Court. Accordingly, Respondent here and now
further requests that this Court acknowledge, affirm, and enforce her right under Article I,
§§1, 2, 3, but especially §5 (Right to Instruct Representatives and to Petition for Redress
of Grievances), §9 (Due Process of Law) and §21 (the “Open Courts” provision) of the
Florida Constitution to amend her pleadings, conduct discovery (Art. I, §24), file pretrial (and, unlike under Judge Oftedal, have a full and fair hearing on all) motions
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
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(including but not limited to Constitutional questions of both substance and procedure2),
and otherwise to prepare try her constitutional and jurisdictional challenges related to the
current Florida Statutory Scheme for the Dissolution of Marriage. Kathy Ann GarciaLawson submits that seven years is too long already, and that she should no longer have
to wait to challenge and deny the power of the State of Florida so to intrude upon her
fundamental rights as to design and enforce upon her a Family Law Jurisdiction and
application of judicial process without consent to deny her (1) right to petition, (2) right
to privately contract, (3) right to due process of law, (4) right to a trial-by-jury, (5) rights
and powers reserved to her as one of the American people under the Ninth and Tenth
Amendments to the United States Constitution.
Kathy Ann Garcia-Lawson has already collected statistical and documentary
evidence which she would have plead and presented by and through expert witnesses and
testimony (long ago) to the Fifteenth Judicial Circuit, had she been allowed to do so by
Judge Richard L. Oftedal, which shows that Florida Courts automatically grant 100%
petitions for divorce without regard to any principal or standard other than that to allege
that a marriage is irretrievably broken is taken as sufficient proof of the same as a matter
of both fact and law. Kathy Ann Garcia-Lawson would also have argued that such a
system was enacted by the Florida Legislature without legitimate or even colorable
constitutional authority, then enforced by the State Judges and “officers of the Court,”
and applied to her in defiance of all constitutional and statutory law, and in violation of
her rights guaranteed under the Federal and Florida Constitutions to rights to due process,
equal protection, and freedom from both state impairment of the obligations of contract
and takings of liberty and process in violation of the First, Fifth, Seventh, Ninth, and
Fourteenth Amendments.
2
This Court should be aware that Judge Oftedal, on the record, refused to hear or
rule upon any constitutional issues in his court, which is surely a denial of Kathy Ann
Garcia’s rights under both the State and Federal Constitutions of Florida and the United
States.
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
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pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
Kathy Ann Garcia-Lawson would further have pled and proved by a
preponderance of the credible evidence, or even by clear and convincing evidence had
she been allowed discovery and a trial-by-jury, that the state statutory scheme by which
Florida marriages are licensed is itself unconstitutional. Respondent would further have
pled and proved that these unconstitutionally authorized (statutory) dissolution
proceedings for unconstitutionally licensed marriage unconstitutionally creates an
institutional double-nullity (a wrongfully dissolved marriage, which marriage offended
the First Amendment’s prohibition against establishment of religious sacraments, such as
the sacrament of marriage, ab initio).
The institutional (and unconstitutional, strictly extra-constitutional and statutory)
double-nullity of State Created and State Dissolved Marriage effects only cultural, social,
and economic destruction of obscene proportions, without redeeming positive practical
value or importance of any kind. Unconstitutional State Licensing of Marriage followed
by unconstitutionally forced dissolution of that licensed marriage is, Kathy Ann GarciaLawson contends, precisely the kind of law respecting an establishment of religion or
prohibiting the free exercise thereof which the Bill of Rights of the United States
Constitution and the Declaration of Rights in Article I of the Florida Constitution were
BOTH designed to prevent.
STATEMENT OF THE CASE: NEITHER STATE NOR FEDERAL
CONSTITUTION AUTHORIZES STATE REGULATION OF MARRIAGE NOR
GRANTS ANY JURISDICTION OVER
DOMESTIC RELATIONS, BUT EXPRESSLY PROHIBIT THE SAME
Kathy Ann Garcia-Lawson she now requests a FULL AND FAIR (genuine, not
merely illusory) opportunity to plead, prove, and present to trial-by-jury all the
constitutionality issues which she was wrongfully, unlawfully, and in fact
unconstitutionally prevented from pleading in the proceedings prior to April 29, 2010 by
Judge Richard L. Oftedal. This case began with a standard for petition for dissolution of
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
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marriage filed by Jeffrey P. Lawson in or about February of 2005, naming Kathy Ann
Garcia-Lawson’s response.
Kathy Ann Garcia-Lawson submits that, despite long-standing custom, practice,
and policy implemented under color of law, despite the hundreds of thousands, perhaps
millions, of such petitions which have been filed, Florida Courts lack constitutional
authority, and hence both personal and subject matter jurisdiction, to receive, hear, or
adjudicate such petitions.
Kathy Ann Garcia-Lawson does not know or pretend to know why no one has
ever noticed or objected to state regulation of marriage and family life on the grounds
that neither the licensing of marriage nor the regulation of domestic relations are
expressly approved anywhere in the Florida Constitution, but it does not change the fact
that there is no such express constitutional approval and several constitutional provisions
in the declarations of right, as discussed above, especially Article I, §§2, 3, 5, 10 and 23
strongly suggest that marriage is not authorized. For example, why does Article I, §2,
expressly authorize statutory limitations on the rights of inheritance, but not marriage:
All natural persons, female and male alike, are equal before the law and
have inalienable rights, among which are the right to enjoy and defend life
and liberty, to pursue happiness, to be rewarded for industry, and to
acquire, possess and protect property; except that the ownership,
inheritance, disposition and possession of real property by aliens
ineligible for citizenship may be regulated or prohibited by law. No
person shall be deprived of any right because of race, religion, national
origin, or physical disability.
Bold and italic emphasis added by Respondent Kathy Ann Garcia-Lawson, herein.
Likewise while Article V §1 specifically authorizes traffic and military courts
there is no specific authorization for domestic relations courts:
The judicial power shall be vested in a supreme court, district courts of
appeal, circuit courts and county courts. No other courts may be
established by the state, any political subdivision or any municipality.
The legislature shall, by general law, divide the state into appellate court
districts and judicial circuits following county lines. Commissions
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
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established by law, or administrative officers or bodies may be granted
quasi-judicial power in matters connected with the functions of their
offices. The legislature may establish by general law a civil traffic
hearing officer system for the purpose of hearing civil traffic
infractions. The legislature may, by general law, authorize a military
court-martial to be conducted by military judges of the Florida National
Guard, with direct appeal of a decision to the District Court of Appeal,
First District.
Bold and Italic emphasis added by respondent.
And similarly, throughout the Florida Constitution, it will be seen that there is no
express authorization for the licensing or other regulation of marriage or domestic
relations generally. Instead, under Article I §§3, 10, and 23, the Florida Constitution
forbids such regulation of marriage either as a religion, a contract, or of domestic
relations as a matter of privacy. Article I §3 states (in its present form):
There shall be no law respecting the establishment of religion or
prohibiting or penalizing the free exercise thereof. Religious freedom shall
not justify practices inconsistent with public morals, peace or safety. No
revenue of the state or any political subdivision or agency thereof shall
ever be taken from the public treasury directly or indirectly in aid of any
church, sect, or religious denomination or in aid of any sectarian
institution.
An amendment has been proposed to the Florida Constitution, to be voted on by the
people in November 2012, which would alter this section of the Florida Declaration of
Right to read:
There shall be no law respecting the establishment of religion or
prohibiting or penalizing the free exercise thereof. Religious freedom
shall not justify practices inconsistent with public morals, peace, or
safety. Except to the extent required by the First Amendment to the
United States Constitution, neither the government nor any agent of the
government may deny to any individual or entity the benefits of any
program, funding, or other support on the basis of religious identity or
belief.
Respondent submits that both versions of Article I, §3 effectively prohibit the enactment
of any statute establishing or regulating the conduct of the rites sacraments of any church
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
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or religion, including (but obviously not limited to marriage). If the change proposed is
relevant at all, it strengthens the Respondent’s position to the extent that some people
might argue that “licensing” and “dissolution” of marriage are “benefits” provided by (or
forced upon) the people by the government, and both the licensing and forcible
dissolution of marriage are clearly forbidden to the FEDERAL government by the First
Amendment to the Constitution (whose effect has already been applied to/incorporated
into the states numerous times by the U.S. Supreme Court, as will be shown below).
THE STATE OF FLORIDA PROCEDURES FOR THE DISSOLUTION OF
MARRIAGE ARE ILLEGAL AND UNCONSTITUTIONAL AS ENACTED,
IMPLEMENTED, AND ADMINISTERED IN THIS STATE
The primary focus of Kathy Ann Garcia-Lawson’s present Objections to
Jurisdiction and Motions are that all exercise of the power of the state of Florida
concerning marriage or domestic relations is unconstitutional, in the sense of lacking any
express mandate in the constitution, but the dissolution procedures are particularly
offensive (and particularly relevant as reasons to dismiss or at least to allow Respondent
constitutionally to challenge these procedures before persisting in the atrocity of
enforcing the law as construed, applied, and implemented by, for example, Judge Richard
L. Oftedal.
To begin with, the (constitutionally UNauthorized) Florida statutes
authorizing dissolution expressly authorize the (constitutionally Unauthorized) Florida
Domestic relations Courts impair the obligations of contract and invade privacy for no
reason whatsoever. Article I, §21, of the Florida Constitution, relating to “open courts”
provides:
The courts shall be open to every person for redress of any injury, and
justice shall be administered without sale, denial or delay.
The ethical, logical, and moral corollary to this provision of the Declaration of
Rights is, and the legal corollary ought to be, that the courts are not open to any person
who has suffered no injury and justice cannot be denied to a person who has suffered no
Injustice. The Courts are not a place to take your everyday problems, the fact that you do
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
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pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
not live in love and harmony with your neighbor or your bed-partner or the co-parent of
your children. These are ethical and moral matters of the soul, i.e., fundamentally
religious matters; or in the language of the science which has so largely usurped religion
by taking from it the Greek word for “soul”, these are matters best left to the
psychologists and psychiatrists who receive advanced degrees in the study of the
“psyche” or soul, since doctors of divinity and preachers generally are everywhere in
such rampant disrepute. The First Amendment to the Constitution, and Article I, §3, of
the Florida Constitution, exist precisely to prevent state jurisdiction over the individual
soul and mind, as has been argued throughout this motion so far.
Jeffrey P. Lawson filed his “normal” and “commonplace” petition for dissolution
of marriage on 2/1/05. In accordance with “no fault” divorce statutes, he alleged no
injury because he was not required to do so. Respondent objected early on to the fact that
the Courts of this State should not be open to any fool who wishes to break his prior
agreements and contract, seeking authority to do so, yet that is precisely what the Florida
statutes on dissolution as construed and implied in the Domestic Relations Courts of this
state allow, effect, and implement. The only injured party in a dissolution proceeding is
the “victim” of prospective (or retrospective) breach of the marriage contract, and this
“victim” has no recourse whatsoever unless he or she wants to totally “play the game”
and seek to divide the property of the marital estate3. This is neither an adequate nor
3
Should any person now complain that for this Court to declare and adjudge the
Florida Statutory Scheme of Marital Licensing and regulation of Domestic Relations
unconstitutional would force people to live together who do not wish to do so,
Respondent replies “poppycock”. Jeffrey P. Lawson is by his lifelong profession a
commercial (international) pilot and was never “required” or forced to live at home with
his wife and daughter at any point during their relationship. Nor is any husband or wife,
because no known institutional (state, religious, or private) scheme of marriage in any
religion or social scheme (including the present one extant in Florida) operates to coerce
cohabitation. The only institution from which there seems no escape is the institution of
State Controlled Domestic Relations, which is now imposed on people with children even
without marriage in the name of “social welfare” and “redistribution of the wealth.”
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
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pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
meaningful remedy, because the Domestic Relations statutes and courts, as will be seen,
are a one-way street to social disintegration and chaos.
Despite massive, coercive duress from Judge Richard L. Oftedal, coupled with
attorney descriptions of the inevitability of divorce once a petition has been filed under
current [unconstitutional] Florida statutory law, as written and as applied, as noted above,
Kathy Ann Garcia-Lawson never consented to the divorce. Rather, she objected to it and
sought every judicial avenue to protest it. Jeffrey P. Lawson never directly answered his
wife’s constitutional objections to these proceedings, and Judge Richard L. Oftedal
simply refused to address them.
The Constitutional offenses included and implicit within the Florida statutory
scheme for the regulation of marriage and family life are multifarious and complex, but
they begin with a simple concept: there is no such thing as freedom of contract or religion
in marriage, childrearing, or domestic relations of any kind. In this place mythologized
as “land of the free and the home of the brave” all aspects of family life from
contraception through education and administration of family funds are closely regulated
by the state, in the name of public health, welfare, and security, but there is at least one
uniformity: all petitions for dissolution of any marriage for which any license was ever
granted by any state, if filed and prosecuted, SHALL be granted. United States Supreme
Court’s held in Greenwood v. Peacock, a party has successfully alleged and articulated
grounds for constitutional, civil rights violations under the Federal Constitution when a
Court finds that, according to any express statutory scheme or provision of State Law, a
judicial process exists wherein:
…it can be clearly predicted by reason of the operation of a pervasive and
explicit law that federal rights will inevitably be denied by the very act of
bringing the defendant to trial in the state court.
384 U.S. 808, 828, 86 S.Ct. 1800, 1812, 16 L.Ed.2d 944, 957 (1966).
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
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The Florida statutory scheme for dissolution of marriage, as enacted on paper and
as applied in the state courts violates the most elementary principles of constitutional law
and procedure due process inasmuch as the outcome of each and every dissolution
proceedings is effectively ordained and predetermined: of the more than 31,000 no-fault
divorce petitions in Palm Beach County, none were judicially denied from 2004-2009.
Similar statistics are available from every county in Florida. Judge Oftedal tried to
coerce Respondent into agreement and acceptance of this regime, but she refused.
By way of contrast, in 1692, Puritan prosecutors in the village of Salem,
Massachusetts, charged 141 individuals with witchcraft in one of the most celebrated and
infamous incidents of mass hysteria and injustice in American history. Despite the
Levitical mandate “thou shalt not suffer a witch to live,” only 19 of the accused in Salem
(and none in any other town, despite the fact that the “witch hunt” raged throughout the
entire Massachusetts Bay Colony) were hanged and one was pressed to death (all the
reset were released and, even then, posthumously, the victims of wrongful execution
were exonerated and rights restored to their families within 7 years)4.
Florida Marital Dissolution Law imposes Social Burdens without Benefits
So defined and described, and as applied in the real world, Florida divorce
proceedings are now a “merely ministerial” function, not a genuine judicial process at all.
Especially as applied by Judge Richard L. Oftedal, in the prior proceedings in this case,
4
Likewise, in an infamously homophobic and anti-Catholic speech at Berlin's Deutschlandhalle, on
May 30, 1937, the Minister of Propaganda for Adolf Hitler’s Third Reich, Joseph Goebbels, stated in his
legendary inflammatory style, front of 25,000 supporters, that the "criminal aberrations of the Catholic
clergy threaten the physical and moral health of our young people." He declared that the "plague" would be
"radically extirpated." Goebbels’ speech was spurred on by the crowd's repeated cries of "Hang them!
Massacre them!" One author wrote of this episode: "The anti-Catholic campaign continued until 1941. By
1936, all the Catholic youth organizations had been closed down." However, she also notes that, out of
approximately 20,000 German priests, only "57 were convicted; of 4,000 members of the regular clergy, 7
were convicted. Lastly, of 3,000 lay brothers, 170 were convicted, mostly Franciscans." (Florence
Tamagne, History of Homosexuality in Europe, 2005). So, as can be seen from these statistics, with regard
to due process of law, it was better to have been a Catholic Priest accused of homosexuality in Nazi
Germany, or an accused Witch in Salem, Massachusetts in 1692, than to be the respondent to a petition for
dissolution of marriage petition in the entirely extra-constitutional Florida Domestic Relations Courts of the
present day.
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
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pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
Respondent had lost the very moment the divorce action was filed: her divorce was going
to be granted. Defendants in these divorce hearings who do not wish the marriage to end
have no real recourse. The outcome (the dissolution of the marriage) is determined before
the trial commences. This in turn results in both a statutory impairment of the obligations
of contract in violation of Article I, §10, and an invasion of privacy in violation of Article
I, §23, as well as a denial of the open courts provision of Article I, §21.
Kathy Ann Garcia-Lawson has thoroughly researched the history of Florida
marital dissolution proceedings, and discovered this disturbing, yet hitherto unaddressed
phenomenon: that all divorce petitions are granted in Florida, despite any actions taken
by the defendant, creating a situation where ALL petitions for divorce end in dissolution
and the splitting of the nuclear family. Thaddeus Baklinski’s article, “Children of
Divorce/Separation Die Five Years Earlier: Study” states clearly the devastating effect
divorce has on children.
Parental divorce during childhood emerged as the single strongest
predictor of early death in adulthood. The grown children of divorced
parents died almost five years earlier, on average, than children from
intact families. The causes of death ranged from accidents and violence to
cancer, heart attack and stroke. Parental break-ups remain among the most
traumatic and harmful events for children.
Automatic dissolution of marriage “on demand” obviously destabilizes the family
as a social institution, and hence society itself, but psychological and sociological
evidence exists that automatic dissolution damages adults and children on all fronts:
cognitively, emotionally, occupationally or academically, and even with regard to
longevity. Is the automatic granting of no-fault divorces—the status quo in Florida—
essentially a question of state-sponsored child abuse, or even torture in violation of the
U.S. Eighth Amendment, since it causes such harm to the people, especially the children?
None of this is to say that Florida should force people to live together who do not wish to
do so. But under Florida’s constitution as now written, and under the Federal Constitution
as well, the state should merely, but absolutely and without exception, stay out of the
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
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business altogether.
State abstention from interference with personal and private marital and domestic
relations is not only required by constitutional law, it is a social and moral positive. Such
abstention, in the American tradition, will promote individual prudence, caution, forward
thinking assumption of responsibility by each individual for him or herself.
State
abstention is the price of freedom---but to require people to protect themselves through
private agreement, dialogue, and private resolution of such issues among themselves
supports and fosters the autonomous development of each person’s mind and “adult”
integrity of society as a whole, requiring people to structure their lives and succeed or fail
without any state-mandated intrusion into the process, to exactly the same degree that
state intervention as parens patriae reduces all people involved nearly to slave status as
“children” of the state.
The statutory mandate governing dissolution in marriage, known as “no fault”
divorce, denies any defense to the integrity of marriage as a contract; Florida allows no
defense to an allegation of irretrievable breakdown. It creates a contradiction in terms:
“contested no-fault divorce.” The state Supreme Court decided almost forty years ago in
Ryan v. Ryan, 277 So.2d 266 (Florida, March 30, 1973), proof of an irretrievable
breakdown must be adduced and heard when challenged. So, an irretrievable breakdown
in the marriage was not designed to mean unilateral divorce on demand, but, in reality,
the [Unconstitutional statutory] procedures as now applied, construed, enforced and
implemented in the [Unconstitutional statutory] Florida Domestic Relations Courts do
indeed divorce on demand. There is not even a standard evidentiary test to prove that a
marriage is not broken. So the Florida Courts have chosen to make a bad thing and make
it worse, and Kathy Ann Garcia-Lawson is not certain why no one has challenged the
complete absence of constitutional authority to do so before now.
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
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The divorce court system as it operates now requires only this one vacuous,
arbitrary statement “that the marriage is irretrievably broken”, and (perhaps by res ipsa
loquitur?) the statement itself is sufficient, no other proof is required. So, in total and
abject violation of Article I, §21, in the [Unconstitutional, statuory] system as it now
operates in Florida, the state itself is authorizing vacuous lawsuits, and in fact mandating
that Courts hear and decide uniquely frivolous lawsuits. The only beneficiaries are the
licensed attorneys, specializing in Domestic Relations/Family/Divorce law, a specialty
which was hardly known or recognized to exist some 50 years ago, except as a subspecies
either of contract, chancery, or ecclesiastical law.
Under both the Federal “case or controversy” rule of Article III of the U.S.
Constitution of 1787 or the herein cited Article I, §21, of the Florida Constitution Revised
in 1968, all other types of lawsuits require an injury or loss for a suit; the no-fault divorce
system permits one party to dissolve the marriage without reason or proof, rendering the
most essential element of society the most unstable relationship of society.
What is a marriage if it can be dissolved by one spouse filing a simple,
unsubstantiated claim? Marriage is a conjugal relationship terminable at will. Marriage
is cohabitation with a registration requirement. But where does this requirement come
from, and of what real (general) social benefit is it to allow a small class of parasitic
lawyers to enrich themselves while litigating an emotional disturbance in individual lives,
taking a common disease of the soul before judges? State-licensed marriage constitutes a
constitutionally prohibited redesign of a religious sacrament, invading the privacy of the
individual and family and religious culture and society all at once.
Indeed, State
Licensing and Regulation of Marriage imposes social costs and burdens without benefits,
so that even if it were constitutional, the statutory scheme is entirely negative in its
impact, and should be abolished and nullified because it is applied and administered in
such a hopelessly negative, counterproductive, and above-all oppressive manner.
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
15
IT SHOULD NOT EVEN BE SLIGHTLY DISPUTED OR CONTROVERSIAL that
pursuant to and uner Article I, §§2 and 21, of the Florida Declaration of Rights
authorize, ANY NATURAL PERSON AGAINST WHOM ENFORCEMENT OF CERTAIN
STATUTES IS SOUGHT IN SUCH COURTS, such as RESPONDENT, may challenge
those statutes and courts on the grounds that these are UNCONSTITUTIONAL
STATUTES AND UNCONSTITUTIONAL COURTS and the Courts of Florida cannot
Constitutionally refuse to hear and decide such claims.
Thus the Real Injury cognizable in this case, to which Kathy Ann Garcia-Lawson
demands this Court open it doors, an injury plainly stated under Article I, §§2, 3, 10, 21,
& 23 is the enactment, implementation, and enforcement of Unconstitutional Statutes
Licensing and Regulating the Creation and Destruction of Marriage in Florida, and
creating Courts to enforce and adjudicate these regulations.
Judge Richared L. Oftedal wrongfully, and outrageously, mislabeled Kathy Ann
Garcia-Lawson’s attempts lawfully to challenge the process and present legal arguments
to the court as frivolous delay tactics. Kathy Ann Garcia-Lawson’s actions differ in no
material way from any other First, Fourth, Fifth, Seventh, Ninth, Tenth or Fourteenth
Amendment litigated protest of or objection to any unconstitutional law or any custom
practice, or policy having the force or effect of law in any given jurisdiction, such as the
State of Florida. Litigated protest of an unconstitutional law can continue on for years,
and sometimes decades---but does this mean that the defense of unconstitutionality
cannot be raised in a Florida Circuit Court of Domestic Relations Jurisdiction? Kathy
Ann Garcia-Lawson demands an answer.
THE PRELIMINARY FUNDAMENTAL QUESTIONS TO BE PRESENTED BY
AMENDED PLEADINGS and TRIED FOR THE FIRST TIME IN THIS STATE
AS MATTERS OF FIRST IMPRESSION:
(1)
Whether the Florida Courts are constitutionally required to allow Kathy Ann
Garcia-Lawson to plead and offer proof suitable for presentment and resolution at final
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
16
trial-by-jury that state licensed marriage unconstitutionally imposes a contract of
adhesion by which all licensees consent to a “no fault” petition for divorce?
(2)
Whether the Florida Statutory Scheme of Marital Regulation and Dissolution as
implemented and applied through the State Courts violates the provisions of the Bill of
Rights and Federal Constitutional embodied in (a) the First Amendment right to be free
from the establishment of a State Religion, (b) the Fourth Amendment right to be secure
in one’s homes and papers, free from unlawful searches and seizures unsupported by a
criminal warrant, (c) the Fifth Amendment Right to be free from deprivation of life or
liberty without due process of law, (d) the Seventh Amendment to Right to Trial-by-Jury,
(e) the Ninth and (f) Tenth Amendment provisions reserving all powers and rights not
expressly waived or limited by the state or federal constitutions to the people, (g) the
Fourteenth Amendment rights to due process and equal protection of laws, as well as (h)
the Article I right to be free from all state and federal impairments of the obligations of
contract?
(3)
Whether the Florida Statutory Scheme of Marital Regulation and Dissolution as
implemented and applied through the State Courts violates the provisions of the Florida
Constitutional guarantees embodied in the Declaration of Rights, Article I, §§ 1, 2, 3, 5,
9, 10, 12, 21, 22, & 23, including but not limited to all arguments made and set forth
above in this present set of Objections to Jurisdiction and related Motions.
(4)
Whether Judge Richard L. Oftedal NOT ONLY acted in excess of his jurisdiction
in issuing final judgment in the dissolution of marriage on April 29, 2010, BUT ALSO
IN THAT HE repeatedly denied Kathy Ann Garcia-Lawson the right to object to the
constitutional and jurisdictional bases for the Florida Statutory Scheme of marriage,
marriage dissolution, and divorce, and to challenge the constitutionality of the contract of
adhesion, which wrongfully imputes prior consent to automatic granting of no-fault
divorces to trial.
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
17
DETAILED ISSUES IGNORED, UNTOUCHED, nor EVEN ADDRESSED BY the
FLORIDA 4th DCA ON FEBRUARY 15, 2012, NOW REQUIRING FULL
ADJUDICATION
Kathy Ann Garcia-Lawson’s constitutional rights and civil liberties have been
violated throughout these proceedings for the [UNconstitutionally mandated, regulated,
statutory] dissolution of her [UNconstitutionally licensed, regulated, statutory] marriage.
In violation of the Florida State (1968) and Federal (1787) Constitutions, however, she
has not been given the opportunity to fully address the grievances inherent to those very
proceedings, the constitutionality of unilateral divorce on demand derived from
unconstitutional state licensing of marriage:
(1)
REGULATION OF MARRIAGE FORBIDDEN BY FIRST AMENDMENT
First Amendment: Free Exercise of Religion, Freedom from Establishment of Religion,
including STATE-mandated religious rites/sacraments (including marriage, baptism,
confirmation and penitence), Freedom from Prior Restraint/Censorship of Speech and of
the Press and of Expression generally, Freedom of Assembly/Association, and Freedom
to Petition for Redress of Grievances all touch upon the fact that Marriage and Divorce
should be free from state intervention. The Court cannot violate the fundamental right to
freedom of religion, whether phrased under the First Amendment in the Bill of Rights or
in Article I of Florida’s constitution. (See also section (9) on Supreme Court precedent).
(2)
THE CORE UNCONSTITUTIONALITY OF LICENSED MARRIAGE
Governmental stipulation or law requiring that a marriage license be obtained
from the Court before a certificate of marriage may be obtained from the Church is in
violation of the fundamental right to freedom religion. Marriage and private family life
represent the very pinnacle, the sum total and consummate whole and totality, of all First
Amendment Rights. State licensing and regulation of marriage is not only an outrageous
infringement of First Amendment rights, but creates and poses a state monopoly and
regulated order of marriage, which constitutes a clandestine taking of liberty by the state
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
18
through coercive imposition of a contract of adhesion with neither due process of law nor
freedom of contract.
(3)
FOURTH AMENDMENT FREEDOM FROM
UNLAWFUL SEARCHES AND SEIZURES
The Florida Judicial customs, practices, and policies relating to marriage
constitute unlawful and unwarranted Judicial "searches" commanding that litigants accept
state intrusion into their lives and private matters and authorize in some cases state
seizures of property. Many of the specific procedures of the Florida Domestic Relations
Courts, in violation of Article I, §§12 & 23 of the Florida Constitution, authorize Judges
to invade the privacy and security of individual natural person’s homes, papers, and
personal effects without probable cause based on any affidavit.
(4)
JUDICIAL ORDERS DISCLOSURES WITHOUT EVIDENCE OF INJURY OR
CRIME VIOLATE THE FIFTH AMENDMENT
Respondent Kathy Ann Garcia-Lawson submits that Judge Oftedal’s practice in
this Court violated her rights under the Fifth Amendment. She asks this Court so to
declare and adjudge and to enjoin any further such violations in this or subsequent
proceedings. She alleges as follows: Florida Marital law in general, and child custody
and Martial Dissolution procedures in particular, authorize or constitute takings of liberty
and property without due process of law.
Florida Family Courts apparently customarily order the creation of documents,
the sole purpose of which was and is and could only be, to be used in evidence against
the witnesses ordered to create them.
Respondent specifically asks this Court to
consider, decide, declare and adjudge whether A JUDICIAL ORDER TO CREATE
PREVIOUSLY NON-EXISTENT DOCUMENTS VIOLATES THE FIFTH and/or
THIRTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION?
Arguably, such judicial orders make every participant in the system a party complicit to
state mandated forgery and fraud, and certainly these practices affirm the utterly frivolous
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
19
nature of the Florida “no fault” statutory scheme for the dissolution of marriage and
submission to “domestic court” jurisdiction for the regulation of private family life.
Just as the Fifth Amendment protects a private person from takings of life, liberty,
and property without due process of law (if in punishment for a crime or tort) or without
just compensation (if taken for public use and purposes), the Thirteenth Amendment
likewise prohibits involuntary servitude except as punishment for a crime. What exactly
do Florida Domestic Relations Statutes define as this Respondent’s crime? She accepted
a state marriage license, the state having failed to disclose that it was a one-way ticket to
state management of her life by and through the divorce courts.
This Court should grant Respondent leave to amend her pleadings and submit to a
trial-by-jury the question whether the Respondent’s uninformed and innocent purchase of
the Florida State marriage license is reason enough to compel the Respondent to submit
all the rest of her life to state-planning? This respondent rejects that hypothesis as an
unconstitutional taking of her liberty (and property) without due process of law and an
imposition of a condition of involuntary servitude without proof (nor even any allegation)
of criminal conduct on this respondent’s part.
With specific reference and regard to the creation of two evidentiary documents
which Judge Richard L. Oftedal ordered her to create in December 2009-February 2010
regarding her “parenting plan” and child support arrangements, Respondent Kathy Ann
Garcia-Lawson would assert that she, although neither poor nor a member of any discrete
or insular minority, like Rosa Parks quite simply refuses this Court’s offer of a seat at the
rear of the bus. Respondent knows that this Court has ordered Respondent to agree with
and submit to its intended exercise of authority over her. The Court has done so by
asking the Respondent to accept and wear all the badges and incidents of servitude
(specifically to this Court and generally to the State of Florida), which accompany
involuntary acquiescence in these domestic relations proceedings.
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
20
In an ordinary criminal case, an accused cannot be compelled to confess or create
evidence against him or herself under the Fifth Amendment. Modern statutory domestic
relations litigation in Florida, by definition, is quasi-criminal in nature, to be judged by
the intermediate standard of proof known as “clear and convincing evidence” (higher
than the civil “preponderance of the evidence” but lower than the criminal “beyond
reasonable doubt”). Having been accused to date of no wrongdoing except her refusal
to accept, agree with, consent5, or otherwise submit to this Court’s jurisdiction, Kathy
Ann Garcia-Lawson does not see how or why any Constitutionally legitimate authority
can be invoked against to compel her to create evidence whose sole purpose is to be used
against her to achieve an end result which she does not consent.
Judge Oftedal’s Court sought TO LEGITIMIZE ITS EXERCISE OF
JURISDICTION THROUGH SOLICITATION OR EVEN COERSION OF
“CONSENT?” Respondent Kathy Ann Garcia-Lawson quite simply refuses to dignify
these proceedings with any cloak of legitimacy springing from her consent or
acquiescence. She contends that the existence of Domestic Relations Courts in Florida is
a violation of the First, Fifth, Ninth, and Fourteenth Amendments, and she cannot support
it.
Judge Oftedal’s court orders of December 2009, January and February 2010, all
sought to impose a kind of chattel slavery (involuntary servitude) on Respondent by
ORDERING her, under penalty of “sanctions [which] include, but are not limited to,
contempt, the striking of all of Respondent/Wife’s pleadings, and/or the entry of default
against her” to prepare certain documents before trial and thereby to acquiesce, however
quietly and tacitly, in his “one-way”, “one-size fits all” dissolution proceedings.
Respondent submits that this Court can only believe that it has the power to compel the
creation of evidence, the making of “confessions” about income or assets, without
violating the Fifth and Fourteenth Amendment, if this Court can justify its orders as
imposing anything other than “involuntary servitude” (work without pay and against a
citizen’s actual or constructive consent, and against her competently expressed and
directly communicated personal and individual will or wishes and which is absolutely
destructive to the emotional, academic, spiritual development of her daughter.) It is well
known, of course, that in contempt proceedings, unlike even misdemeanor criminal
charges, the right to a trial-by-jury is exceedingly limited. Threatening Contempt of
Court charges thus permit a court to circumvent the constitutional requirements of due
process of law.
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
21
5
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
Whatever the theoretical or “ideal” end result of marriage dissolution proceedings
in Florida may be, the practical result of marital dissolution under current de facto
Florida Law is that Respondent’s world will be torn asunder without respect for
Respondent’s constitutional rights or her rights at common law. Respondent’s world is
the 25-year old product of a genuine (and ongoing) business and investment partnership,
whose terms were based on a series of express and explicit oral and written contracts and
agreements with her husband Jeffrey P. Lawson. This is the financial side of dissolution,
on the one hand. But on the other is that she and her daughter will find imposed upon
them by the State of Florida a regime of divided living and residence which they do not
desire, and which they find repugnant.
(5)
Seventh Amendment: Florida Dissolution and Child Custody procedures infringe
upon the right to trial-by-jury in all civil cases where the amount in controversy exceeds
$25.00, and the denial of jury trials by Oftedal and Florida Courts generally also
constitutes a denial of due process. Kathy Ann Garcia-Lawson demanded a trial-by-jury
of all issues so triable, including all questions of fact and all mixed questions of law and
fact, and an advisory jury as to all questions of law, and Judge Richard L. Oftedal never
appears even to have considered her request.
(6)
Judge Oftedal’s court order of February 19, 2010, failed to address this
Respondent’s demand for a common-law trial-by-jury of all facts and mixed factual and
legal issues so triable under the Seventh Amendment to the United States Constitution
AND the Florida Constitution’s parallel guarantees. Even if had been (at that time, two
years and two months ago) no automatic stay in effect from a Bankruptcy Court, even if
there had been no appeal addressing jurisdictional issues from this Respondent and the
intervenors, even if there were no objections to the creation of evidence against
Respondent’s liberty and property interests and will in violation of the Fifth, Thirteenth,
and Fourteenth Amendments, Judge Richard L. Oftedal’s Court Orders illegally and
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
22
improperly ignored Respondent’s demand for a jury trial by setting this case for a nonjury trial on February 26, 2010, and by finally holding such a trial during the continued
pendency of TWO interlocutory appeals on April 29, 2010, in Respondent’s absence and
despite her continued (and unanswered) challenges to the Court’s jurisdiction.
(6)
Ninth and Tenth Amendments: Marriage and Family life (aka “Domestic
Relations”) in general are immunize, completely protected from Governmental
interference by the Ninth and Tenth Amendments: "all rights [and powers] (not
specifically granted to the States or Federal Government are) reserved to the people."
(7)
Fourteenth Amendment and Article I,§2 of the Florida Constitution: Florida
Marital Law in general and child custody and Marital Dissolution procedures generally
deny equal protection of the law and due process of law and infringe upon the privileges
and immunities of the people. The right to due process is denied to the party receiving the
petition for a no-fault divorce. The Florida Constitution further guarantees equality based
on sex, which Judge Richard L. Oftedal has plainly disregarded.
(8)
Original Constitution: Article I, Section 9, Clause 1: no state shall "pass any
bill of attainder, ex-post facto law, or law impairing the obligation of contracts" and
Florida (1968) Constitution’s Declaration of Rights: Article I, §10.
By infringing upon the right to structure one's own marriage according to
contract, and imposing a general, population-wide CONTRACT OF ADHESION on all
marriages, the State of Florida has impaired the obligations and rights of contract, and
because no one ever really discovers to what degree the state-licensed marriage deprives
one of freedom until divorce or dissolution or child custody proceedings begin. The
divorce and dissolution "contract of adhesion" also operates in much the same manner of
surprise that an ex-post facto law, and discreditable for that reason, and in that the
dissolution and divorce procedures tend to wipe out all the rights of certain specifically
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
23
identified people (divorcing spouses in the state of Florida), the law also suffers from the
deficiencies of a bill of attainder/bill of pains and penalties.
(9)
SUPREME COURT Jurisprudence on the First Amendment and Licensing
of Religious, Expressive, and Associative Activities
The cases Near v. Minnesota, 283 U.S. 697 (1931); Grosjean v. American Press
Company, 297 U.S. 233; 56 S.Ct. 444; 80 L.Ed. 660 (1936); Schneider v. State, 308 U.S.
147, 164; 60 S.Ct. 146, 152, 84 L.Ed. 155 (1939); and Murdock v. Pennsylvania, 319
U.S. 105, 111-115; 63 S.Ct. 870, 874-876; 87 L.Ed. 1292, 1298-1300 (1943) all deal
directly with the prohibition of any state licensing of First Amendment activity, and the
protection of First Amendment rights against advance restriction, i.e., censorship. In
Murdock v. Pennsylvania, the licensing of a religious solicitor was deemed
unconstitutional.
Since (at least no Florida) court appears ever to have addressed this question,
Kathy Ann Garcia-Lawson asks this Court to answer definitively: what is the
constitutional basis for the licensing of (where there can be no prior restraint imposed on)
the behavior and relationships of long duration constituting the elements of marriage?
The answer must be that there is no Constitutional basis. The substantial and never
overruled line of Supreme Court cases (referenced above) from the 1930s and 1940s
establishes firmly that there can be NO tax or license imposed on the exercise of any first
amendment right.
One case, on which all subsequent decisions rely, Grosjean v.
American Press Company, established in 1936 that a state could not impose or enforce a
tax on advertisements in a newspaper where the tax operated to limit the circulation of
information. 297 U.S. 233; 56 S.Ct. 444; 80 L.Ed. 660 (1936).
Seven years later, however, in Murdock v. Pennsylvania, the Supreme Court
clearly held (1) that the power to tax the exercise of a privilege is the power to control or
suppress its enjoyment, (2) a state may not impose a charge for the enjoyment of a right
granted by the federal constitution (3) a person cannot be compelled to purchase, through
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
24
a license fee or a license tax, the privilege freely granted by the constitution, and (4) the
fact that a licensing ordinance is non-discriminatory does not relieve it from attack upon
the ground that it violates the constitutional guaranties of freedom of religion and of
speech and press. 319 U.S. 105, 111-115; 63 S.Ct. 870, 874-876; 87 L.Ed. 1292, 12981300 (1943):
The fact that the ordinance is "nondiscriminatory" is immaterial. The
protection afforded by the First Amendment is not so restricted. A license
tax certainly does not acquire constitutional validity because it classifies
the privileges protected by the First Amendment along with the wares and
merchandise of hucksters and peddlers and treats them all alike. Such
equality in treatment does not save the ordinance. Freedom of press,
freedom of speech, freedom of religion, are in a preferred position.
319 U.S. at 115, 63 S.Ct. at 876, 87 L.Ed. at 1299-1300.
If discussion and interpretation of the law among free (unincarcerated) citizens
stands at the “core” of the First Amendment, or amounts to any matter of First
Amendment concern at all, such discussion, whether oral or written, ought to be at least
as immune from licensing and taxation as preaching the Gospel. Historically, there is an
obvious and causal connection between what the late French Structural Anthropologist
Georges Dumézil called “the magical and judicial functions” in society.
Marriage, from time immemorial, has been promulgated as a mystical matter of
religion, presided over by priests, and the rules concerning marital relations (including
contracts relating to marital property) in the Near East and Europe were drafted by priests
(not lawyers, although the law was a study derivative of and dependent upon the
priesthood). The primary basis for “marital law” and the regulation of domestic relations
in Ancient, Mediaeval and Renaissance times, and law—from the time of Hammurabi
and Moses and the ten commandments up through most of the 17th century when the 13
English-American colonies first took root (and throughout the Spanish Colonia period
when Europeans first came to California) was religion and the expression of religious
ideas (on the Stele of Hammurabi, the Sun God “Shamash” was invoked as the God of
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
25
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
Justice, even as the Code wisely decreed: “If a man has taken a wife and has not executed
a marriage contract, that woman is not a wife.”)
As late as 1791-2, Plaintiffs submit, it was no coincidence the First Amendment
concerned matters of religious freedom, freedom of speech, of assembly, the press, and
the right to petition all together. The Florida Constitution utterly fails to “establish”
marriage as a matter to be governed by state law, even as probate and other aspects of the
law of inheritance are carefully enshrined and expressly addressed.
But the historical fact remains that the definition of marital and domestic relations
were always associated with religious freedom in the 265 years of English and American
history between Henry VIII and 1792 supports and does not diminish the entitlement
adhering to the people’s exercise of their rights to marry, procreate, and otherwise to
arrange their private fully exempt, under the First, Fifth, Ninth, Tenth, and Fourteenth
Amendments, from any licensing or other regulatory procedures:
Freedom of speech, freedom of the press, freedom of religion are
available to all, not merely to those who can pay their own way. As we
have said, the problem of drawing the line between a purely commercial
activity and a religious one will at times be difficult.
*
*
*
*
*
*
*
*
*
We have here something quite different, for example, from a tax
on the income of one who engages in religious activities or a tax on
property used or employed in connection with those activities. It is one
thing to impose a tax on the income or property of a preacher. It is quite
another thing to exact a tax from him for the privilege of delivering a
sermon. The tax imposed by the City of Jeannette is a flat license tax, the
payment of which is a condition of the exercise of these constitutional
privileges.
319 U.S. at 111-112, 63 S.Ct. at 874, 87 L.Ed. 1297-98.
A case which closely followed Murdock--during these amazing decades (1930s40s) of “pro freedom” decisions coming down from the Supreme Court, reprimanding
state after state for unconstitutional burdens on the exercise of First Amendment rights on
account of Fourteenth Amendment incorporation--was Follet v. McCormick, which
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
26
reaffirmed that (even where a person’s entire living came from his First Amendment
activities, so that there was no doubt about their commercial importance to this particular
individual):
Freedom of press, freedom of speech, freedom of religion are in a
preferred position. The "inherent vice and evil" of the flat license tax is
that it restrains in advance those constitutional liberties and inevitably
tends to suppress their exercise.
*
*
*
*
*
*
*
*
*
The exemption from a license tax of a preacher who preaches or a
parishioner who listens does not mean that either is free from all financial
burdens of government, including taxes on income or property. But to say
that they, like other citizens, may be subject to general taxation does not
mean that they can be required to pay a tax for the exercise of that which
the First Amendment has made a high constitutional privilege.
321 U.S. 573, 575-76; 64 S.Ct. 717, 718-19; 88 L.Ed. 938, 940 (1944)
Even statutes with such commendable public health and general welfare purposes
as preventing littering on the streets may not be imposed or enforced where they restrict
freedom of speech or expression. “To require a censorship through license which makes
impossible the free and unhampered distribution of pamphlets strikes at the very heart of
the constitutional guarantees.” Schneider v. State, 308 U.S. 147, 164; 60 S.Ct. 146, 152;
84 L.Ed. 155, 166 (1939). A parallel case in this line Cantwell v. Connecticut, 310 U.S.
296; 60 S.Ct. 900; 84 L.Ed. 1213 (1940) made the interesting point that the state had no
right to determine either by administrative or judicial means what was “religious” or not:
To condition the solicitation of aid for the perpetuation of religious
views or systems upon a license, the grant of which rests in the exercise of
a determination by state authority as to what is a religious cause, is to lay
a forbidden burden upon the exercise of liberty protected by the
Constitution.
310 U.S. at 307, 60 S.Ct. at 904-905, 84 L.Ed. at 1219, citing Near v. Minnesota,
A statute authorizing previous restraint upon the exercise of the
guaranteed freedom by judicial decision after trial is as obnoxious to the
Constitution as one providing for like restraint by administrative action.
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
27
CONCLUSIONS AND PRAYERS FOR RELIEF
Marriage is only one of the seven sacraments recognized by many traditional
Christian Churches ultimately deriving their charter from the Council of Nicea of 323
A.D. (the full inventory of the Seven Christian sacraments includes: baptism,
confirmation, communion, penance, last rites, holy orders, matrimony) presently
subjected to state regulation and requirements (unless one counts birth registration as the
equivalent of Baptism, a question beyond the scope of this present motion).
Under the First Amendment to the United States Constitution, and arguably
according to the Ninth and Tenth as well, the individual and social practice of each and
every sacrament must remain unobstructed by State or Federal Law (assuming the true
incorporation of the First Amendment by the Fourteenth to the States, upon which
subjects Kathy Ann Garcia-Lawson sees no variance in any of dozens of Supreme Court
and hundreds of lower court opinions and rulings).
And yet, today, in Florida as
elsewhere in America, marriage receives negative treatment, and somehow finds less
favor from immunity from governmental regulation than other sacraments, when all
sacraments are (nominally, or at least ought to be) equally protected from governmental
interference under the Bill of Rights First Amendment, and Article I, §3, in Florida?
Respondent, reflecting upon the history of the Establishment Clause, and its
antithetical English roots two hundred and 30 years before the adoption of the Bill of
Rights, asks this Court, if it can, to imagine the furor which might result if the Florida
State legislature or United States Congress were to enact rules, binding upon all residents
of the United States or the State of Florida, to believe and worship uniformly, for
example, to accept that the communion wafer and wine are actually the true flesh and
blood of Christ, magically transformed by the priests at the altar during each Eucharist.
Of course, this is precisely what the English Parliament did several times in first
creating, then mandating and reforming the Book of Common Prayer for the Church of
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
28
England not once but several times during a period of social turmoil, constant debate, and
even civil war spanning the reigns of King Henry VIII Tudor, Queens Mary I Tudor and
Elizabeth I Tudor, and finally under Kings James I & Charles Edward I & II Stuart. The
several adoptions and implementations of these Elizabethan Book of Common Prayer
with standards for public confession of faith bear the name “acts of Uniformity”. They
decree and define what all citizens must believe and publicly acknowledge. These acts of
uniformity defined and ordained marriage and baptism, but also outlined accepted beliefs
and religious tests regarding the substantive and mystical nature of the “host” (the wine
and bread) in the Communion---whether the bread and wine consumed are actually the
blood and body of Christ transubstantiated or merely the memorial of His Precious Death
and Perfect Sacrifice.
Respondent herein submits, however: that the Florida State statutory schemes
concerning the licensing and dissolution of marriage intrude to exactly the same
degree into the ethical, moral, private lives and religion of the people of the United
States as did the English Parliament’s a statutory definition of communion in the
1530s-1660s.
And the economic, political, and social consequences of the First
Amendment violations resulting from the state regulation of marriage are actually
much greater. Unlike the English people of the 16th and 17th Centuries, the Americans
of the 21st century seem to accept this intrusion as a matter of routine, but Respondent
Kathy Ann Garcia-Lawson does not.
Judge Richard L. Oftedal carefully and systematically thwarted all of Kathy Ann
Garcia-Lawson’s prior attempts to present these fundamental but clearly defined
constitutional issues for review. Instead of a fair trial, Kathy Ann Garcia-Lawson was
given an unlawful final judgment without jurisdiction, a nullity, and stands now by the
mandate of the Florida Fourth District Court of Appeals back before this Court, pleading
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
29
that this Court lacks any constitutional jurisdiction to adjudicate her marriage whatsoever,
under either the Constitutions of Florida or the United States of America.
The licensing of marriage and the imposition of contracts of adhesion on all
persons who want a domestic life of any sort is the antithesis of freedom and the right to
autonomy, privacy, and self-determination for which the American Constitutional system
of government was created.
The long-standing nature of the constitutional error of state regulation of marriage
and divorce does not excuse or justify its perpetuation; the contested irretrievable
breakdown statute is flawed, but it is not nearly so flawed or dangerous and the licensing
statute on the one hand, and the child-custody and domestic relations regulatory schemes
enacted into law by the Florida Legislature (without constitutional authority of any kind)
on the other.
The failure to address these constitutional issues is a violation of the United States
Constitution and a serious derogation from the two hundred years of jurisprudence
construing the “unflagging” duty of the courts to engage in constitutional review, and the
condemnation of failure so to review the constitutionality of jurisdiction as “treason to
the Constitution.” Cohens v. Virginia, 19 U.S. 264, 404, 5 L.Ed. 257 (March 3, 1821):
The judiciary cannot, as the legislature may, avoid a measure because it
approaches the confines of the constitution. We cannot pass it by because
it is doubtful. With whatever doubts, with whatever difficulties, a case
may be attended, we must decide it, if it be brought before us. We have no
more right to decline the exercise of jurisdiction which is given, than to
usurp that which is not given. The one or the other would be treason to
the constitution. Questions may occur which we would gladly avoid; but
we cannot avoid them. All we can do is, to exercise our best judgment,
and conscientiously to perform our duty.
PRAYER FOR RELIEF
Kathy Ann Garcia-Lawson must now, finally, be allowed to try all her
constitutional and jurisdictional issues in the Fifteenth Judicial Circuit Court in and for
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
30
Palm Beach County, Florida. Kathy Ann Garcia-Lawson asks that she be allowed, as
Judge Oftedal never allowed her, fully, fairly, and appropriately to structure the
amendment of her pleadings, to engage in relevant discovery, and after all appropriate
pretrial briefing, to a full trial of all facts and a decision after trial, of all her properly
raised and framed constitutional issues now upon remand.
Respondent once again,
finally and firmly reiterates her notice of her objections in equity to the personal and
subject matter jurisdiction of this Court, and to setting this matter for any final hearing or
entry of judgment prior to the full and fair trial on the merits and entry of declaratory
judgment concerning the constitutionality of the entire set and collection of statutory
schemes supporting Florida regulations establishing Marital Licensing, Dissolution, and
Domestic relations without express constitutional authorization or authority to do so.
Kathy Ann Garcia-Lawson prays that any actual divorce proceedings brought
pursuant to Jeffrey P. Lawson’s petition for dissolution be delayed until a full, fair, and
complete trial of all of her issues under the Federal and Florida Constitutions, including
but not limited to her challenge to the existence of State Marital and Dissolution
procedure laws as violative of the First Amendment to the United States Constitution and
parallel provisions of the Florida State Constitution has been allowed after full discovery
of facts, briefing of all legal questions, and judgment rendered.
RESPECTFULLY SUBMITTED,
Monday, April 16, 2012
__________________________________________
Dr. Kathy Ann Garcia-Lawson, Ph.D.,
2620 Nature’s Way
Palm Beach Gardens, Florida 33410
Telephone: (561) 624-8725
E-mail: kgarcialawson@yahoo.com
By her Secretary Charles Edward Lincoln, III
Telephone: (512) 968-2500
Santa Monica, California 90401
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
31
CERTIFICATE OF FILING AND SERVICE
I, the undersigned Respondent Kathy Ann Garcia-Lawson, do HEREBY
CERTIFY that I filed an original signed copy of the above-and-foregoing Motion for
Stay of Proceedings Pending Determination of Constitutional Jurisdiction Pursuant to
1.550(b) with the Palm Beach County Clerk of the Fifteenth Judicial Circuit Court and
simultaneously served a true and correct copy of the same on Jeffrey P. Lawson, at his
last declared lawful address recorded in the above entitled and numbered cause as
follows:
Mr. Jeffrey P. Lawson
c/o Steve Marchildon
113 Ashley Court
Jupiter, Florida 33408
Respectfully signed, served, and submitted to the Courts on Monday, April 16,
2012 in Palm Beach Gardens, Florida 33410.
By:______________________________________
Kathy Ann Garcia-Lawson, Ph.D., pro se
2620 Nature’s Way
Palm Beach Gardens, Florida 33410
Telephone: 561-624-8724
Facsimile: 561-691-1423
E-Mail: kgarcialawson@yahoo.com
Motion to Stay Proceedings Pending Determination of Constitutional Jurisdiction
pursuant to Fl. Rules of Civ. Proc. Rule 1.550 (b), Monday, April 16, 2012
32