UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KEVIN BROWN,	)
on behalf of himself and all others	)
similarly situated,	)
	)
Plaintiff,	)
	)	1:05-CV-1585-RLY-VSS
v.	)
	)
STATE OF INDIANA, et al.,	)
	)
Defendants.	)

PLAINTIFF’S TRIAL BRIEF IN SUPPORT OF RESPONSE TO STATE DEFENDANT’S MOTION FOR DISMISSAL

I. Introduction

Kevin Brown, plaintiff above named, submits this trial brief in connection with a Response to Motion for “Dismissal”. Plaintiff requests oral argument on defendant’s motion to dismiss.

A. Defendants brought complaint in the Marion County Juvenile Court (“MCJC”), by virtue of the Marion County Office of Family and Children (“MCOFC”), an agency of the State of Indiana, in response to plaintiff’s political activity, alleging that plaintiff’s minor dependent son (“M.B.”) is an abused or neglected child under Title 31 and 34 of the State of Indiana’s statutory provisions. Defendants have brought complaint under five actionable causes against plaintiff; (a) prior conviction of sexual exploitation of children, (b) prior conviction of possession of child pornography, (c) “continues to support the sexual exploitation of minor children”, (d) “identified himself as a member of NAMBLA on a syndicated radio show”, and (e) “refusal to allow authorities to view information on his computer that could possibly clear his name”.¹ B. The actionable causes of these five complaints are not found in the State of Indiana’s statutory provision to determine a Child In Need of Services (“CHINs”) ², other statutory provisions of the State³, or the body of common law⁴. They allege the specified injury of the State’s CHINs statute.

C. Plaintiff has stated as federal defenses (a) res judicata of prior federal final order, involving substantially the same parties, with respect to plaintiff’s prior conviction for possession of obscenity, or constitutional invalidity of complaint; (b) error in complaint with respect to the federal JAMS database; (c) error in complaint with respect to defendant’s perjury; (d) unconstitutional infringement on fundamental speech and associational freedom, with respect to complaint, lacking rational basis, that plaintiff identified himself as a member of a particular political association of “pedophiles” ⁵; and (e) freedom from unreasonable search. Plaintiff overcomes defendants objection to suit, as follows.

II. Statement of the Issues

A. Will plaintiff be irreparably harmed if this Court abstains in the case at Bar, and is bad faith or extraordinary circumstance present to justify this Court exercising its equitable jurisdiction?

B. Will this Court, in exercising its equitable jurisdiction, maintain comity
between the Federal power and the State of Indiana?

C. Are other considerations requiring this Court to exercise its equitable
jurisdiction satisfied?

D. Are issues of preclusion absent in the case at Bar?

E. Should the Hon. Indiana State Supreme Court Justices be dismissed from suit?

F. Is defendant State of Indiana Attorney General [name omitted] properly joined in his prosecutorial capacity to the case at Bar?

G. Does plaintiff state a claim against defendant Attorney General[name omitted]?

H. Is defendant State of Indiana Governor [name omitted] properly joined in the case at Bar with respect to prospective relief to remediate the hostile environment created for class members by the State?

I. Are plaintiff’s claims ripe?

J. Are defendants [MCOFC Supervisor] and [MCOFC Caseworker] properly held to trial in their individual capacities?

III. Fact Or Conclusions Of Fact Disputed By Plaintiff

A. The State concludes from plaintiff’s complaint that “the body of juvenile law is challenged because it is ‘progressive, liberal, Marxist, socialdemorat’ and the judiciary that applies the law suffers from the same philosophical biases”, State’s brief supporting motion to dismiss, p. 2.

ANSWER: Plaintiff has not accused the Republican incumbent of the Marion County Juvenile Court of being a Marxist. Plaintiff has asserted that she suffers from the same invidious animus towards “minor attracted individuals”
widely extant in all of American society.

B. The State of Indiana maintains that “[f]or the State to seek a temporary removal of a minor child after a declaration by the custodial father that he belongs to a national association of pedophiles cannot be construed as an act of egregious bias or harassment”, id, p. 7

ANSWER: Minor attraction is a suspect class to unequally differentiate in matters of law from heterosexual men, or fails to establish a rational basis for such unequal treatment in matters of law from heterosexual men.

C. The State asserts that [MCOFC Supervisor] and MCOFC Caseworker [ ] performed their lawful duty in good faith, id, p. 13 (E).

ANSWER: Defendant [MCOFC Caseworker] committed an unwarranted, or warrantless, seizure of plaintiff’s minor dependent, on March 7, 2005, or defendant [MCOFC Caseworker] submitted perjured complaint to the MCJC on March 9, 2005, or Defendants [MCOFC Supervisor] and [MCOFC Caseworker] conspired and submitted perjured complaint to the MCJC on March 9, 2005 in overt act of that conspiracy.

D. The State asserts that “[t]o date, with the exception of the temporary removal of his minor son, none of the perceived civil rights violations hypothesized by Plaintiff have occurred”, id, p. 10.

ANSWER: (a) Plaintiff’s minor dependent is unlawfully detained, depriving plaintiff of substantive right to freedom of familial association, based on due process violation and perjured testimony of the State, deriving from an unwarranted and
warrantless seizure, and the personal injury to plaintiff is ongoing (developed supra, “§ XV”). (b) Plaintiff’s right to marital privacy has been violated, by intent and overt act, in furtherance of civil conspiracy, to force the dissolution of plaintiff’s marriage, and the personal injury to plaintiff is ongoing and irreparable (Dissolution of Marriage proceedings, Marion Superior Court, Cause Number [omitted]) and established in Griswold v. Connecticut, 381 U.S. 479 (1965). (c) Plaintiff’s right to interstate commerce, or political speech, or political fund raising, or free association, has been violated, by intent and overt act, in furtherance of civil conspiracy, to disrupt plaintiff’s theatrical performance Adam’s End: Confessions of a Pedophile, or its inclusion of minor-aged actors, or its audience, largely comprised of “pedophiles” and their families, and the personal injury to plaintiff is ongoing, and has deprived plaintiff of vested property interest in billeted revenue to employ for political purposes, of which he was entitled, without due process of law (Plaint.Evid.Bk.2, 70). (d) Plaintiff has been entered, based on perjured complaint by the State, in an Indiana State registry of abusers of children (Plaint.Evid. 47, based on the CHINs complaint), and is denied fundamental freedom of association, and the personal injury to plaintiff is ongoing. (e) Plaintiff is held to trial on novel charges (supra, “§ I (B)”) in a secret proceeding, before a trier of fact and law that is biased by virtue of statutory requirement (inter alia, IC 31-34-11-1), and deprived fundamental due process requirements, including the right to discovery, and the personal injury to plaintiff is ongoing. (f ) Plaintiff is forbidden by judicial order to speak to prospective counsel in preparation of an appeal from the biased State proceeding (Plaint.Evid. 19, p.4), and the personal injury to plaintiff is ongoing, and redressable by this Court exercising concurrent jurisdiction. (g) Plaintiff is forbidden by judicial order (id) to lobby the National legislature on pending Bill which affects his right, and the personal injury to plaintiff is ongoing, and redressable by this Court exercising concurrent jurisdiction. (h) Plaintiff suffered an unwarranted, or warrantless, seizure of his minor dependent because he refused an unwarranted search of his property, on the advice of counsel, and the personal injury to plaintiff is ongoing (developed, supra, “§ XV”).

ARGUMENT

IV. State’s Counterclaim In Excess Of Pleadings

The State of Indiana has stated a permissible Fed.R.Civ.P. Rule 13(c) counterclaim exceeding opposing claim, or Rule 13(a) compulsory counterclaim, arising out of the transaction or occurrence that is the subject matter of plaintiff’s claim, and against the putative class, as follows.

The State of Indiana states in its brief in support of motion to dismiss, “[f]or the State to seek a temporary removal of a minor child after a declaration by the custodial father that he belongs to a national association of pedophiles cannot be construed as an act of egregious bias or harassment”, p.7.

A. The policy does not extend to non “minor attracted” individuals belonging to “national association[s] of pedophiles”, such as juvenile sex offender therapy (“SOT”) advocacy organizations.

B. The State’s policy cannot lawfully be predicated on whether a “minor attracted” individual is politically active, or not. Political activity identifies the class status of the individual, rather than bearing on the State’s decision to “seek a temporary removal of a minor child” preliminary to adjudication of that minor as a CHINs, or entry of the individual in the State’s “child abuse registry” as an “abuser”.

C. A reasonable mind can discern that the State’s true policy is “[the act] of the State to seek a temporary removal [and adjudication as an “abuser” in the State’s registry, and determination that a custodial minor is CHINs] of a minor child after [discovery that] the custodial father [is sexually attracted to children] cannot be construed as an act of egregious bias or harassment; it is, after all, the State’s [administrative policy]”.

D. Complaint by the State with respect to plaintiff being an unfit parent, based on his class status as a “minor attracted” individual, is not found in the pendant State proceeding, and it is clear that the State carries this complaint against plaintiff in that proceeding, as demonstrated in (A) to (C) above. Plaintiff will be subject to repeated complaint on the same non discoverable grounds as the instant complaint should he prevail in the pendant state proceeding.

The State asserts that membership in lawful political organizations which are comprised of ‘“minor attracted individual[s],’ a class of individuals distinct from the sexually-deviant pedophile”, is actionable cause for removal by the State of the minor-attracted individual’s minor dependents, id, p.7., and the extent of counterclaim is narrowed in (C) above. This claim exceeds the State’s complaint in the pendant State dependency proceeding⁶, and plaintiff’s complaint⁷. Plaintiff demands trial by jury on this counterclaim.

V. Injunctive Relief is Appropriate and Authorized

As a threshold matter, the 42 U.S.C. § 1983 suit brought by plaintiff is expressly authorized by Act of Congress as an exception to 28 U.S.C. § 2283, Mitchum v. Foster, 407 U.S. 225 at 237 (1972).

The nature of relief sought by plaintiff is not comparable to relief sought in Dombrowski v. Pfister, 380 U.S. 479 (1965), wherein Plaintiff sought to enjoin enforcement of a State’s criminal statute and to subject the State’s legislature to submitting proposed legislation for approval. The State of Indiana maintains a statutory system of juvenile law that is laid on the body of Ind.R.Civ.P. and the State’s common law system. The majority of challenged provisions of juvenile law, if declared repugnant to the Federal Constitution, would revert to their counterparts in the rules of order. Other counts are redressable by decree. The State’s interest in protecting children from abuse and neglect would not be disrupted or impaired. It is a novel assertion that the State cannot achieve its requirements if forced to endure the extension of constitutional procedural due process to guardians, custodians, or parents in dependency proceedings, and that procedure is clearly defective (Amended Complaint, 82-84).

Rather than the relief contemplated in Dombrowski for enjoining all action to enforce the statute, plaintiff has brought this suit under the Declaratory Judgment Act (Amended Complaint, 1), and all counts seek alternative relief. Temporary restraining order sought in suit is to maintain status quo between the parties during trial.

VI. Equity Doctrine Satisfied in Case

Defendants invoke the doctrine of equity that has developed from § 16 of the Judiciary Act of 1789, praying this Court dismiss complaint, alleging such that plaintiff may find plain, adequate and complete remedy at law in the State courts. The facts establish that plaintiff will suffer irreparable injury from the State’s complaint, which was brought in bad faith and is harassing in nature, and that extraordinary circumstances also exist requiring this Court to exercise its equitable powers and not dismiss or abstain from hearing plaintiff’s complaint. Plaintiff has no adequate remedy at law, as follows.

A. Irreparable Injury

(i) Plaintiff has no access to compulsory discovery in the pendant State proceeding, and cannot avail himself of remedy in the appellate court without discovery of the case against him. Written interrogatories, serviced to the State’s attorney on September 19, 2005, remain unanswered in excess of ninety days after service, Plaintiff’s Evid. 41. Plaintiff is denied discovery of the initial police report, of the visitation notes provided in service to the State from plaintiff’s supervised visitation with his minor dependent (they have never been provided to plaintiff), and the federally required “EPSDT” report (Plaint.Evid. 19, p. 4-5), or

(ii) the Bench of the MCJC has prosecutorial power, provided by statute, and plaintiff has no right to compulsory discovery with respect to the MCJC’s prosecutorial judge. Plaintiff cannot compel discovery of the juvenile judge’s theories and complaint in the state proceeding, yet is held to count on them, or

(iii) plaintiff has exhausted State forum remedy for the federal question of erroneous entry in the federal JAMS database, Plaintiff’s Evid. 36, and 19 p. 5, and 44, p. 17, or

(iv) plaintiff cannot protect or effectuate the final federal judgment heard before the district court of Judge Hugh Dillon in United States v. Kevin Brown. Prior to entry of that order, the district court and MCOFC’s mutual contracted service provider (“Broad Ripple Counseling Center”) raised issues identical to issues raised in the State’s complaint in the pendant juvenile dependency proceeding, and that service provider involved the MCOFC in that complaint prior to its adjudication favorable to plaintiff by Judge Dillon, or

(v) plaintiff has exhausted State forum remedy for discovery of a federally mandated medical examination of plaintiff’s dependent minor. The MCJC ordered that “[t]he MCDCS does not have in its possession, custody or control St. Francis Hospital’s ESPDT report as well as any associated documentation thereof, and therefore, Respondent will have to pursue discovery of said information through other channels”, Plaintiff’s Evid. 19, P. 4, or

(vi) plaintiff cannot retain counsel on appeal of final judgment in the pendant state proceeding by order of the MCJC, which entered order forbidding him to speak about the matter to prospective counsel outside of the Marion County Public Defender’s Office (“MCPD”), Plaintiff’s Evid. 19, p. 4. The MCPD’s service does not encompass appeal. Plaintiff has full right to speak to, or secure, counsel on appeal from the district court in the event of unfavorable judgment, or

(vii) the MCJC has instructed plaintiff, with respect to perjured statements entered in the pendant proceeding by the MCOFC, to seek remedy in “proper forums for seeking redress [of] his perceived legal injuries and it is through those proper legal channels that he should pursue same, if at all”, Plaintiff’s Evid. 19, P. 4, and 6, p. 5, filed on the MCJC’s docket August 1, 2005, and Plaintiff’s Evid. 30, p. 8, or

(viii) plaintiff was brought to charge in the State proceeding based on a suspect classification, or a classification without rational basis, and the mere pendency of proceeding enables this Court to make a firm prediction that plaintiff will be denied his rights in the state courts, since the burden of having to defend the prosecutions itself constitutes the denial of a right conferred by the Fourteenth Amendment. Such a basis for prediction is the equivalent of a state statute authorizing the predicted denial. The circumstance is analogous to precedent of the Supreme addressing state trespass statutes denying public accommodation to Negro citizens, Georgia v. Rachel, 384 U.S. 780 (1966), or

(ix) The State of Indiana has undertaken “certain government actions that” substantive due process simpliciter protects individual liberty against “regardless of the fairness of the procedures used to implement them”, Daniels v. Williams, 474 U.S. 327, 331 (1986), including substantive right to a fair, impartial, and adequate proceeding, Schweiker v. McClure, 456 U.S. 188 (1981), Gibson v. Berryhill, 411 U.S. 564 (1972), Irvin v. Dowd, 366 U.S. 717 (1961), or right to a disinterested trier of fact, In Re Murchison, et al., 349 U.S. 133 (1955) (Amended Complaint 171-174), by contriving to hold plaintiff to trial on complaint unfounded in law, and the nature of that proceeding in toto, i.e. held to the bench of a biased prosecutorial judge; forbidding plaintiff to speak to another human being, save counsel, about the proceeding; offering no meaningful process of discovery to plaintiff; forbidding him to speak to law enforcement about crimes committed against him in that proceeding; freely allowing perjury by the State in prosecuting plaintiff; depriving fundamental political right in entirety from plaintiff; and with clear purpose to establish a rational basis to deprive right based on class membership of plaintiff at law, or

(x) The pendant state proceeding will turn on a question of federal law with which the district court is more familiar and experienced than the state court, Thiokol Chemical Corp. v. Burlington Industries, Inc., 448 F.2d 1328 (C.A.3 1971).

Injury to plaintiff in the pendant state proceeding, should the district court dismiss or abstain this complaint, is irreparable, great, and immediate, on the basis of (i) to (x) above. Plaintiff’s federally protected rights cannot be asserted by his defense against the single pendant state dependency proceeding. Plaintiff cannot set up and rely upon his defense in the state courts, as it plainly appears that this course would not afford adequate protection, Fenner v. Boykin, 271 U.S. 240 at 243-244 (1926). Plaintiff is further guaranteed equity jurisdiction of this Court in order effectually to defend plaintiff’s rights against injuries otherwise irremediable, Terrace v. Thompson, 263 U.S. 197 at 214 (1923).

B. Bad Faith

(i) The State has adequately identified their complaint (supra, “§ IV”), and it is conspicuous in its absence from their complaint against plaintiff in the pendant state dependency proceeding, and the State submitted perjured complaint to the MCJC to avoid stating their true complaint, or

(ii) The State had reasonable uncertainty as to whether their complaint of M.B. being a CHINs, based on plaintiff’s prior obscenity conviction, would carry, based on the evidence known to the MCOFC prior to the Initial Hearing in the pendant State proceeding, Plaintiff’s Evid. 46, P. 2. Rather than proceeding in good faith and stating their concern of plaintiff’s sexual orientation in complaint, they considered the common law’s clear position that “[the government] cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts”, Ashcroft v. Free Speech Coalition, 535 U.S. 234 at 252-53 (2002), and state actors conspired to submit perjured affidavit to the MCJC without hope of obtaining a valid conviction⁸ to achieve that forbidden end. The nature of that perjury is developed with respect to those defendant’s assertion of qualified immunity (supra, “§ XV”) in this brief. The reasonable belief carried by defendants that they would secure invalid favorable judgment is evident in nonmovant’s pleading (Amended Complaint, 82, 83), or

(iii) that the instant case arose from bad faith by the State is evident from the record. Defendant Rick Roberts offered a substantial monetary bounty for identifying information of individuals who were “minor attracted” and members of a particular organization (“NAMBLA”). Mr. Roberts promised to disclose these individual’s home and work addresses on-air, and to place their photographs and other identifying information on his website, when the thousand dollar “bounties” were to be paid to callers of his syndicated program, Plaint.Evid. 50.

For political activity related to an attempt to disrupt a monetary bounty inciting violent reprisal, plaintiff suffered investigation by a combined force of National, State, and Municipal agents, and those Agents resolutely refused to investigate violent threats made against plaintiff arising out of the Rick Robert’s interview, Plaintiff’s Evid. 46 p. 4., and instead brought complaint against plaintiff, or

(iv) The instant case derived from an interview plaintiff granted on the
Rick Robert’s Show, intended to promote a theatrical performance plaintiff was producing and acting in (Amended Complaint, 400-411; Plaintiff’s Evid. 67). This production was political in nature (Plaintiff’s Evid. 70). The performance envisioned using minor aged actors. Defendants, for reasons not fully clear, sought to disrupt plaintiff’s theatrical production⁹ (Plaintiff’s Evid. 28, p. 3, 5) in invidious animus to plaintiff’s class status.

C. Extraordinary Circumstances

Extraordinary circumstances have arisen during the pendant state proceeding which demand the exercise of this Court’s equitable powers, to redress an irreparable injury to a National citizen’s political rights with respect to the body politic, and denied to plaintiff by the State proceeding, as follows. Subsequent to the pendant State dependency proceeding’s commencement, an amendment to the federal Jacob Wetterling, Megan Nicole Kanka, and Pam Lychner Sex Offender Registration and Notification Act was passed in the House, and is currently in Senate committee, sponsored by the Hon. Senator Orrin Hatch. This national Bill legislatively embodies two fundamental complaints of the State against plaintiff:

(i) S.1086 provides that States who receive federal funding associated with the Sex Offender Registration and Notification Act, of which the State of Indiana does, shall require residents carrying one conviction of 18 U.S.C. § 2252 to register in the state and national sex offender registries. At the time of plaintiff’s instant offense, 18 U.S.C. § 2252 was an obscenity violation. ¹⁰ The national Bill identifies this offense as a “Covered Offense Against A Minor”, and asserts a theory held currently in the fields of theoretical and applied social science, and overruled by the Seventh Circuit, see Circuit Judge Ripple’s dissent, John Doe v. City of Lafayette, Indiana, No. 01-3624 (7th Cir. 2003). Defendants have brought this complaint in the pendant state proceeding against plaintiff.

(ii) S.1086 provides as well that the States register “An individual that is a sexually violent predator”, and defines that phrase as inclusive of individuals who “suffer…from a mental abnormality (as defined in section 110 of this Act) or personality disorder that makes the person likely to engage in a predatory (as defined in section 110 of this Act) sexually violent offense”, and the legislative history of the Bill indicates clearly that the intention is to force “‘minor attracted individuals[s],’ a class of individuals distinct from the sexually-deviant pedophile”, to register as sex offenders. Both the Indiana State child abuse hotline and the National child abuse hotline (administered by defendant “NCMEC”) now accept anonymous tips from neighbors and relations reporting individuals to the authorities for investigation of their sexual orientation, and potential inclusion in the registries (Amended Complaint, 1449-1453, Plaint.Evid.Bk.2, 70).

(iii) Defendants brought this complaint in the pendant state proceeding against plaintiff, in counterclaim exceeding the pleadings (supra, “§ IV”), or carry this complaint against plaintiff and have evaded discovery of that fact.

(iv) Plaintiff is forbidden to engage in fundamental and protected political activity, United States v. Cruikshank, 92 U.S. 542 (1876), including appearing in national news media, or lobbying the national Legislature, with respect to this Bill, by virtue of order of the MCJC compelling his conduct. Irreparable damage occurs when a National citizen is forbidden to engage in lawful political activity seeking to shape National legislation, by the attempt of the State to establish that very legislative intent of the national Bill in a partial and biased trial before an Article II court (“MCJC”). The practice of the State of Indiana violates the First and Fourteenth Amendments, and plaintiff has stated a valid claim for relief, Elrod v. Burns, 427 U.S. 347 (1976).¹¹ The injury is redressable by this Court exercising jurisdiction in the case at Bar, and the interests of the putative class are represented in that case as well with respect to the precedent established, and which bears materially on the national Bill.

The State judicial order compelling conduct (Plaintiff’s Evid. 19, p.4) was entered on motion of the Guardian Ad Litem (Plaintiff’s Evid. 30), filed in response to plaintiff’s public accusation of criminal behavior on the part of the MCOFC Caseworker and Supervisor (Plaintiff’s Evid. 30, p.8) in violation of 18 U.S.C. § 241 (Plaintiff’s Evid. 6). Plaintiff is denied the right to lawfully inform the United States authorities of violation of its laws, a right of National citizenship, In re Quarles and Butler, 158 U.S. 532 (1895).

VII. Comity Maintained

Defendants fear the comity of our Federalism will be disrupted by this Court hearing the instant complaint, and cite to the case of Younger v. Harris, 401 U.S. 37 (1971), wherein considerations of comity and equity doctrine commanded the District Court to dismiss suit, and were considered by the Supreme as conjoined doctrines, and Middlesex Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423 (1982), where the doctrine (“abstention”) was extended to civil suits brought in good faith by a state to enforce its statutes. Middlesex is misapplied by defendant. In that case the appellant clearly had adequate remedy for his federal complaint in administrative proceeding. The facts of this case are that rather than disturbing comity, plaintiff’s complaint illustrates the strength and wisdom of our Federalist system in defense of a National citizen’s federal rights in concurrent state forum proceedings.

Rather than bring its complaint against plaintiff in a fair and adequate forum, the State of Indiana elected to contrive a complaint under its child dependency statute against plaintiff. A State agent submitted perjured complaint to the MCJC, with no expectation of securing a valid determination, but rather relying on the deficiency inherent in the State’s juvenile court system to deprive plaintiff of any possibility to succeed on the merits of his case in the pendant trial.

Defendants characterize plaintiff’s federal complaint as a “collateral attack” on the state dependency proceeding. That comparison to Younger presupposes that plaintiff seeks dismissal of their dependency complaint without reaching adjudication on the live controversy. This is not an accurate assessment. Plaintiff contends that the State forum, particularly its employment of a statutorily biased trier of fact and law, is inadequate to hear their complaint, and their complaint is one that will define materially the nature of plaintiff’s separate and unequal status to his peers by law, and that inequality is, in scope, much wider than the instant relief sought by the State.

It is indubitable that the subject matter of this case is one in which inflames the deepest emotions in the body politic. Apart from considerations of prosecutorial duty carried by the Hon. Judge Marilyn Moores which create inherent bias, the judge is subject to re-election to her position, or lobbying the municipal government for funding,¹² and being the Jurist to establish plaintiff’s rights, if that be the result, would likely route her from office by the body politic, or impair her relationship with the Municipal authority. Aspects of the case have now reached the attention, in various media venues, of nearly one percent of the adult American population.

Comity is maintained in this suit, as the State judicial forum has identical interest to this Court in defending plaintiff’s national rights, and would reach identical conclusions, were its forum adequate, to those of this Court on the federal question in concurrent jurisdiction.

VIII. Burford Abstention Not Applicable

Defendants have invited this court to abstain from the case at Bar based upon a set of variegated responses built around a central theme of “concern [in Burford ] to prevent federal courts from bypassing a state administrative scheme and resolving issues of state law and policy that are committed in the first instance to expert administrative resolution”, Pub. Serv. Co. of N.H. v. Patch, 167 F.3d 15, 24 (1st Cir. 1998), by pointing out that the State of Indiana’s “legislature has enacted an interlocking statutory scheme governing CHINs”, A.P. v. Porter County Office of Family and Children, 734 N.E.2d 1107, 1112 (Ind. App. 2000).

Subsequent precedent to Burford v. Sun Oil Co., 319 U.S. 315 (1943) in the Circuits is largely one of rebuttal to attempts at expanding the scope of the Supreme’s decision, applying it “only in narrowly circumscribed situations where deference to a state’s administrative processes for the determination of complex, policy laden, state law issues would serve a significant local interest and would render federal court review inappropriate.” Fragoso v. Lopez, 991 F.2d 878, 882 (1st Cir. 1993). The district court’s recurrent problem in exercising concurrent jurisdiction over claims arising from the Texas oil and gas fields was one in which “[i]f all district courts of this state had jurisdiction of such matters, different courts of equal dignity might reach different and conflicting conclusions as to the same rule”, Burford v. Sun Oil Co., and the near exclusively state law subject matter of the cases brought to the district bar.

Defendants have cited to Moore v. Sims, 442 U.S. 415 (1976), as supporting abstention in the case at Bar. It is clear the subject matter was properly before the district court in that case; rather, with respect to equity doctrine, the material finding of the Supreme in Moore is “in th[at] case the state authorities’ conduct evinced no bad faith”, and the pregnant negative is that the court would be compelled to exercise its jurisdiction in conformance with the recognized exceptions to equitable discretion if there had been evidence of bad faith.

IX. Preclusion Not Applicable

Affidavit Concerning Preclusion is incorporated herein (Plaint.Evid.Bk.2, 1).

Plaintiff has fairly raised his federal claims in the pendant State proceeding, “[t]he case of Government Employees v. Windsor, 353 U.S. 364, is not to be read as meaning that a party must litigate his federal claims in the state courts, but only that he must inform those courts what his federal claims are, so that the state statute may be construed ‘in light of’ those claims’“, England v. Medical Examiners, 375 U.S. 411 (1964).

Plaintiff has forestalled any conclusion that he has elected not to return to the District Court by making on the state record an explicit reservation to the disposition of the entire case by the state courts, by filing his federal claims in the pendant state proceeding captioned to the District Court, prior to separate service of the federal complaint.

Choice of a federal forum for the hearing and decision of plaintiff’s federal constitutional claims is a right of plaintiff, and duty of the district court, and abstention cannot be ordered on grounds of giving state courts the first opportunity to vindicate the federal claim, McNeese v. Board of Education, 373 U.S. 668 (1963), Wisconsin v. Constantineau, 400 U.S. 433, at 437 (1971).

X. Pullman Abstention Unwarranted

Defendants invite order of this Court to abstain based on principles of comity and federalism established in Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941), and to extend that decision to outright dismissal. Abstention on Pullman grounds is inappropriate, as the State of Indiana’s Supreme and this Court have previously and adequately certified state law questions, Brownsburg Area Patrons Affecting Change, et al. v. Patricia Baldwin, Prosecuting Attorney, (7th Cir. 1998), and federal practice encourages certification to avoid protracted, expensive litigation frequently associated with Pullman abstention, 19 Charles A. Wright, et al., Federal Practice and Procedure § 4507, at 177-78 (2d ed. 1996). The Supreme Court of Indiana permits certification to its court under Indiana Rule of Appellate Procedure 15(O). ¹³ XI. Dismissal Of Indiana State Supreme Court Justices

Plaintiff has brought suit against the Hon. Justices of the Indiana State
Supreme Court, in their official and ministerial capacities, under the equitable doctrine established in Ex Parte Young, http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=209&invol=123 (1908) (Amended Complaint, 20). Plaintiff has suffered harm in fact by the publication of a Code of Judicial Canon which does not apply to judiciary holding office in Article I courts, by virtue of good faith complaint of misconduct, made by plaintiff against the Hon. Judge Marilyn Moores, MCJC (Plaint.Evid. 2 and 7), and made based on study by plaintiff of that Court’s published code and supporting documents. Whatever the merit of plaintiff’s analysis of liability with respect to defendants, it is now clearly disruptive to comity with respect to defendant’s assertion of an abstention defense, and plaintiff prays defendants be dismissed in accordance to plaintiff’s Fed.R.Civ.P. 41(a)(2) motion with prejudice, no costs paid.

XII. Consent to Suit

The State of Indiana’s Governor Mitch Daniels is enjoined in suit, in his official capacity, for prospective injunctive relief to correct the hostile environment created by the State of Indiana when it established a policy of utilizing Federal Title IV-B or IV-E funds ("Social Security Act") to deny political rights to a suspect class of State citizens, or without rational basis to discriminate against those individuals, by seizing their minor dependents. The Medicaid Act contains no comprehensive set of remedies, and the Eleventh Amendment does not prevent Medicaid beneficiaries from seeking prospective injunctive relief against state officials in a federal court, Mo. Child Care Ass'n v. Cross, 294 F.3d 1034, 1038 (8th Cir. 2002) (concluding "that the [Child Welfare Act of 1980, Title IV-E of the Social Security Act] does not reflect any intent to limit Ex parte Young actions"), Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 99 (1984) (“the Eleventh Amendment and the principle of state sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of § 5 of the Fourteenth Amendment”), Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (“based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, operated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment”). Relief sought by plaintiff is appropriate under the Eleventh Amendment. Plaintiff does not seek damages, and prospective relief may require expenditure of state funds, Milliken v. Bradley, 433 U.S. 267 (1977).

XIII. Federal Injury From Unconstitutional State Juvenile Law

Plaintiff has not reserved federal questions to the Supreme, in the pendant State proceeding, from consideration by this Court. Plaintiff’s actionable cause is that the State of Indiana’s juvenile statute has, and continues, to

A. deprive plaintiff, by denying due process of law, guaranteed to plaintiff as a National citizen by the Fourteenth Amendment, to the fundamental rights of family association, established at law by Troxel v. Granville, 530 US 57 (2000), marital privacy, established at law by Griswold v. Connecticut, 381 U.S. 479 (1965), reproductive privacy, ¹⁴ established at law by Roe v. Wade, 410 U.S. 113, 167-169 (1973), or freedom from servitude, Thirteenth Amendment,¹⁵ all constitutional provisions which are explicitly created obligations of the State of Indiana, or

B. deprive plaintiff of fundamental right of family association, marital privacy, reproductive privacy, or freedom from servitude without due process of law guaranteed to plaintiff as a National citizen by the Fourteenth Amendment, and incorporated to the State of Indiana, and claim to which is not tied in the pendant State proceeding to a specific provision within the Bill of Rights, or

C. deprive plaintiff of fundamental right of freedom of speech and association by virtue of the “chilling effect” of the State’s actions on those rights, Dombrowski v. Pfister, 380 U.S. 479 (1965), without due process of law guaranteed to plaintiff as a National citizen by the Fourteenth Amendment, and incorporated to the State of Indiana, or

D. deprive plaintiff of fundamental right guaranteed to plaintiff as a National citizen by the Fourteenth Amendment, without due process of law, by virtue of its clause guaranteeing equal protection of the law, in the absence of rational basis to discriminate, or

E. by forcing the dissolution of plaintiff’s marriage, or depriving plaintiff of
family association, by unwarranted seizure of a minor dependent, or deprivation of freedom of political speech or association, the State has undertaken “certain government actions that” are arbitrary in a constitutional sense, or that substantive
due process simpliciter protects individual liberty against “regardless of the fairness of the procedures used to implement them”, Daniels v. Williams, 474 U.S. 327, 331 (1986), or

F. deprive plaintiff of fundamental right in interfering with interstate commerce, by disrupting plaintiff’s theatrical production, in the absence of enumerated power.

Plaintiff has not contested the right of the State of Indiana to abrogate, with due process, any right save that to marital privacy, to physician privacy,¹⁶ freedom from conditions of servitude to the State by virtue of seeking “service recommendations” violating the thirteenth amendment in a civil proceeding, freedom from criminal sanction in a civil proceeding, freedom of family or political association or political speech without rational basis to abrogate that freedom, or freedom of thought. Plaintiff’s complaint clearly develops lawful abrogation of right in the context of due process analysis.

XIV. Ripeness

The State defendant has raised defense in ripeness doctrine, “a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all”, Texas v. United States, 523 U.S. 296, 300 (1998). The reasonable certainty of the occurrence of plaintiff failing on any defense, without regard to the merit of complaint brought against him, in the pendant state proceeding, and being subjected to MCOFC “service recommendations” (Plaintiff’s Evid. 38, p.10, Plaintiff’s Evid.Bk.2, 71, Amended Complaint, 82, 83, 89-95, 107-123) is sufficient to afford a basis for bringing a challenge, as this Court has sufficient facts before it to enable it to intelligently adjudicate the issues, Buckley v. Valeo, 424 U.S. 1, 113-118 (1976); Regional Rail Reorganization Act Cases, 419 U.S. 102, 138-148 (1974).

XV. Qualified Immunity or Respondeat Superior Inapplicable

A. Defendants [MCOFC Supervisor] and [MCOFC Caseworker] have deprived plaintiff of right (supra, “§ III (D)”) reincorporated). Plaintiff has suffered injury in fact by the color of law behavior of defendants (Plaint.Evid.Bk. 2, 69 and 70). Defendants suffer from an invidious animus against plaintiff’s “sexual orientation” (Amended Complaint 462) that is widely extant in American society.

B. (i) Defendants waived a defense of qualified immunity by failing to answer plaintiff’s complaint in a timely manner. Defendants [MCOFC Caseworker] and [MCOFC Supervisor] were served with complaint on October 26, 2005. Their answer pursuant to Fed.R.Civ.P. 6(a) was due on November 15, 2005. Defendants entered with counsel on November 16, 2005, and motioned this Court for enlargement. Plaintiff is entitled to entry of default judgment against defendant’s, and has motioned to continue to trial (Plaintiff’s Motion for Rule 55(a) and 55(c) Order, serviced November 21, 2005). Lawful behavior was sufficiently clear to defendants with respect to plaintiff’s complaint. District Court form OAO 440 (Rev. 10/93), “Summons in a Civil Action”, is clear on its face (“[i]f you fail to [reply by date], judgment by default will be taken against you for the relief demanded in the complaint”). Plaintiff did not grant prior permission to enlargement,¹⁷ or

(ii) Qualified immunity seeks to ensure that defendants “reasonably can anticipate when their conduct may give rise to liability,” Davis v. Scherer, 468 U.S. 183 at 195 (1984), by attaching liability only if “[t]he contours of the right [violated are] sufficiently clear that a reasonable official would understand that what he is doing violates that right”, Anderson v. Creighton, 483 U.S. 635 at 640 (1987). The Supreme has found that the courts must treat Court of Appeals decision as “relevant authority” that must be considered as part of qualified immunity enquiry, Elder v. Holloway, 510 U.S. 510, 516 (1994). The Seventh Circuit has held that “to the extent the defendants.…withheld material information, and nonetheless caused, or conspired to cause, [the minor dependent’s] removal from his home, they violated the Fourth Amendment”, Brokaw v. Mercer, 235 F.3d (7th Circ. 2000).

Defendant’s seizure of plaintiff’s son was warrantless, and unwarranted, and plaintiff has personal interest by virtue of that seizure’s impact on his fundamental right to family association. “In the context of removing a child from his home and family”, a “seizure is reasonable if it is pursuant to a court order, if it is supported by probable cause, or if it is justified by exigent circumstances, meaning that state officers ‘have reason to believe that life or limb is in immediate jeopardy.’“,Brokaw v. Mercer. The State of Indiana has produced its written evidence in response to plaintiff’s interrogatory in the pendant state proceeding (Plaint.Evid. 24). Defendant did not secure a written or verbal court order prior to effecting seizure (id, and Amended Complaint 444). Exigent circumstances were not present in the seizure of plaintiff’s minor dependent by defendant (Amended Complaint 445 and 446). Probable cause did not exist to effect the seizure by defendant.

(i) Plaintiff’s obscenity conviction does not rise to that level. Defendant knew the district Court had considered the very same issue and found that it did not create probable cause to believe plaintiff’s minor dependent was a CHINs (Plaint.Evid. 46, p.2), or

(ii) Defendant’s complaint against the plaintiff, brought in the pendant state proceeding, is not actionable cause under the statute plaintiff is alleged to have violated. Therefore, there can be no probable cause (supra, “§ I (B)”).

If probable cause or exigent circumstances had existed, the defendant was required by statute (IC 31-34-2-3) to complete the IFSSA form captioned “Taking Custody of a Child Without a Verbal or Written Court Order, Description of Circumstances”, and defendant did not (Plaint.Evid. 24, and Plaint.Evid.Bk. 2, Pgs. 95-96).

The law concerning perjury is sufficiently clear to preclude any belief of defendants that such behavior was lawful (Amended Complaint 452-453). They understood that their complaint did not hold probable cause to support detention of plaintiff’s minor dependent, and elected to submit perjured complaint to the MCJC in overt act furthering their conspiracy. The MCOFC supervisor knew fully these circumstances, and instructed, or approved, the caseworker submitting the perjured complaint to the MCJC. The complaint at issue is “Kevin Brown has given indication that he continues to support the sexual exploitation of minor children and [M.B.] is endangered in the home due to this support”, (Plaint.Evid. 26, p.2). Plaintiff’s wife did not state this to the defendant (Plaint.Evid. 28, p. 5, “Mrs. Brown agreed that there is no merit to the allegations”). In the media interview which instigated her seizure, plaintiff expressed opposition to sexual exploitation or molestation of children (Plaint.Evid. 8, p. 4, Li. 143-151). In that same interview plaintiff indicated that “[NAMBLA’s] membership roster is open to anyone”, “I’m not in the leadership of [NAMBLA’s] organization at all”, and “you know, there’s elements of their position that I disagree with”, (Plaint.Evid. 8, Pg. 3), and from the interview it is clear that opposition is to the organization’s “advocat[ing] the abolition of age of consent laws” (State’s brief supporting a motion to dismiss, pg. 7.). Defendant had listened to the interview prior to effecting seizure with IPD Detective Kurt Spivey, or FBI Agent Joe Rock. Defendant’s affidavit does not demonstrate any factual support for the complaint (Plaint.Evid. 28).

C. Plaintiff has proceeded on a civil conspiracy theory in suit, and such claim operates to extend, beyond the active wrongdoer, liability in tort to actors who have merely assisted, encouraged or planned the wrongdoer’s acts, Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503 (1994), Adcock v. Brakegate Ltd., 164 Ill. 2d 54, (1994). Respondeat superior is no defense in a civil conspiracy suit.

The decisions of the Supreme have upheld convictions under the criminal conspiracy statutes 18 U.S.C. § 241 or § 242 despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights, United States v. Guest, 383 U.S. 745, 759 n. 17 (1966) (prior cases established right of interstate travel, but later case was the first to address the deprivation of this right by private persons); United States v. Saylor, 322 U.S. 385 (1944) (prior cases established right to have legitimate vote counted, whereas later case involved dilution of legitimate votes through casting of fraudulent ballots); United States v. Classic, 313 U.S. 299, 321 -324 (1941) (prior cases established right to have vote counted in general election, whereas later case involved primary election).

Defendants are properly held to trial, and their defense of qualified immunity is unavailable for failure to respond to plaintiff’s complaint in a lawful and timely fashion, or by virtue of their violation of clearly established standards of conduct, and their defense of respondeat superior is unavailable in defense to complaint of their civil conspiracy, with specific intent and overt act, and plaintiff states claim against defendants.

XVI. Conclusion

This Court is firmly directed by the common law to refuse abstention, or other defense, and to find jurisdiction founded, and proceed to trial. Accordingly, on the basis of the evidence of record and the applicable law, plaintiff hereby requests this court to find defendant’s motion to dismiss without merit.

Respectfully submitted,

Kevin Brown
Pro Se Plaintiff
[CERTIFICATE OF SERVICE OMITTED]