American state law (except Louisiana) and federal law is based on the “common law” system. This approach to jurisprudence does not require the extensive and precise codified law (“statute”) that the Roman civil law system necessitates, because the statutes are interpreted according to past judicial order (“precedents”) in a specific fashion. The European civil law systems do not rely on precedents, and necessitate extensive statute to achieve the same ends as the common law systems.

In my lawsuit, the precedents entered in the Indiana Supreme and Appellate courts are the binding precedents on matters of state-law question. For example, in the initial proceeding, I brought suit against the City of Indianapolis for monetary damages based on the “pattern and practices” of the Marion County Office of Family and Children (“MCOFC”). The Municipality (City of Indianapolis) responded in its Motion for Judgment on the Pleadings that the MCOFC is not a municipal agency, but rather a State agency, and cited to a precedent of the Indiana Supreme Court that I did not uncover in my legal research. State agencies are immune from suit. There is no federal question involved (and thus no appeal to the U.S. Supreme Court), because determination of whether an agency is municipal or state is solely a question of state law.

All state courts can hear both state and federal claims. For example, both the Indiana State Constitution and the United States Constitution provide the right to a jury trial in a criminal proceeding. The issue could be raised (if one was deprived that right in some fashion) either under state law or federal law (the term ‘law” is inclusive of the constitutional provisions) in any of the state trial courts, appellate courts, or Supreme Court. Appeal to the U.S. Supreme Court would be limited to questions arising under the Federal constitution, as the various States are sovereign and entitled to interpretation of their own laws.

United States Supreme Court cases are cited in the format Blue v. Pink, 500 U.S. 100.. Seventh Circuit Court of Appeals precedent is directly binding on the Southern District Court where my civil rights challenge is being heard. It can be identified by “7th Cir.” in the citation to the case. Indiana Court of appeals cases can be identified by “Ind. App.” in the citation. Federal statutes are in the format of the law my case is brought under, 42 U.S.C. § 1983. This is Title 42 of the United States Code, Chapter 1983. In our common law system, not only the text of the statute is important, but the derivation of authority and intent of the statute. Thus, contrary to what I expected, one Indiana statute (captioned in the format of “IC 31-34-11-1” or similar) reads on its face that the standard of evidence in termination of parental rights hearings is “preponderance of evidence”, but a U.S. Supreme Court decision found that “due process of law” required that standard to be “beyond a reasonable doubt”, thus the statute’s true stipulation does not correspond to the language of the statute.

Some particular topics to understand the State’s Motion for Dismissal follow.

Following ratification of the U.S. Constitution, the first eight amendments were ratified as well. These are called the “Bill of Rights”, and include:

• First Amendment, right to freedom of speech, association, and religion
  
• Second Amendment, right to bear arms
  
• Third Amendment, freedom from quartering of soldiers
  
• Fourth Amendment, freedom from unreasonable search and seizure
  
• Fifth Amendment, right to “due process of law”
  
• Sixth Amendment, right to jury trial in criminal proceedings
  
• Seventh Amendment, right to jury trial in federal civil proceedings
  
• Eight Amendment, freedom from cruel and unusual punishment

The Ninth Amendment made clear that rights not listed in the Bill of Rights are still rights of the people, and the Tenth Amendment specified that powers not reserved to the federal government explicitly (as the federal government is one of “limited powers” rather than being sovereign) were reserved to the States or the people.

The U.S. Constitution forbid suits against states by citizens of other states, but was not explicit in forbidding suits against a state by its own citizens. Sovereign governments are historically considered immune to suits unless they consent to be sued. Because of this uncertainty, the states passed the Eleventh Amendment which forbid suits against the states by their own citizens. At the enactment of the Bill of Rights, these protections applied only to federal laws, and not laws of the various states. It was considered adequate as the Bill of Rights was drawn from the constitutions of the various state constitutions in effect at that time. However, the Eleventh Amendment provided no means for judicial review of some state statutes (for example, in a State that did not consent to suit by statute in its own courts, and denied right to appeal of a final judgment).

After the Civil War, the Thirteenth (freedom from slavery and servitude except as punishment for crime), Fourteenth (equal protection of laws and requirement that state laws conform to “due process of law”), and Fifteenth (freedom to vote for black citizens) Amendments were ratified by the various states. The Fourteenth Amendment’s § 5 is called the “Enforcement Clause” and allows Congress to enact laws providing for the enforcement of the three amendments. Two such laws are 42 U.S.C. § 1943, allowing civil suit for civil rights violations, and 18 U.S.C. § 241 and 242, allowing federal criminal prosecution for conspiracies committed by state actors to deprive someone of rights.

Thus, the Bill of Rights is “incorporated” to the States by virtue of either the “due process of law” or “equal protection of law” clauses of the Fourteenth Amendment. The state can take away any right you have, including your right to life, provided that they do so in compliance with these requirements. Due process is not a concrete term; obviously, the requirements of a judicial proceeding to deprive one’s life are much higher than that required to enforce a parking ticket. There are two types of due process claims; “procedural” (such as the right to confront your accusers at trial) and “substantive”, those rights reserved to the people under the Ninth Amendment.

There are currently three non-enumerated substantive fundamental rights: freedom to reproductive privacy (Roe v. Wade), freedom to familial association, and freedom to marital privacy. The Third Amendment (quartering of soldiers) has not been incorporated to the States, as such a situation has not arisen since the Civil War, and the Supreme has not incorporated the Second Amendment (right to bear arms) to the states. Rights explicitly contained in the Bill of Rights that are denied a person based on Fourteenth Amendment “due process” violations are called “enumerated substantive due process rights violations”

Claims that an action or law violate the “equal protection” clause require two classes to be identified, and the purpose of the action or law is determined as to whether the state has a “compelling interest” in discriminating between the two classes (the standard of review for “suspect classes”, including at present race, gender, and religion) or whether the state has a “rational basis” to discriminate between the two classes (the standard of review for non-suspect classes, such as optometrists and opticians).

A last topic is the idea of “fundamental rights”. We have many rights, and they are not equal in importance. The most important right in a democratic society is freedom of thought, a right denied in totalitarian systems of government. The freedom to thought is so fundamental to our concept of government that it is not stated in the Bill of Rights; it literally pervades our Constitution. A suit brought under 42 U.S.C. § 1943 must allege violation of a fundamental right for the district court to have jurisdiction. Those rights include the First and Fourth Amendments. The Judge who is hearing my case has previously found that the right to familial association is a fundamental substantive due process right under U.S. Supreme and Seventh Circuit precedent.

The State’s argument concerning “substantive due process rubric” involves the fact that rather than a claim stating denial of First or Fourth Amendment right per se I have brought claim that the State has violated those rights via the Fourteenth Amendment (which are non-fundamental “substantive due process” rights). I believe the State’s comment is in error, and refers solely to the analysis of the right at trial (violation) rather than its applicability to State law under 42 U.S.C. § 1943. As an example, an unreasonable seizure (Fourth Amendment) analyzed under the amendment must be “unreasonable”, where its substantive counterpart (an unreasonable seizure without due process of law, applicable to the states by the Fourteenth Amendment) requires additionally that the motivation of the state actor to be established. The Fourteenth Amendment is expansive in nature; the Supreme has found that sexual assault of a state trial judge against an employee denied the employee the right to be free of such assault without “due process of law”, when obviously no due process of law would allow such an assault.

I believe the other arguments in the briefs will be comprehensible based on the text. The abbreviation “Am. Compl.” refers to my complaint, which initiated the federal action. The symbol “” indicates paragraph number. “Plaint.Evid.” refers to evidence in the trial by exhibit number. Footnotes are posted as a sub-thread to the documents. Federal judicial proceedings are governed by the Federal Rules of Civil Procedure, abbreviated as “Fed.R.Civ.P.” and the particular rule number. Federal motion practice on dismissal proceeds as follows. The defendant files a motion stating the grounds for dismissal, supported by a trial brief detailing their argument. All “well-pleaded” factual assertions made by the plaintiff in his initial complaint are considered founded by the Court for the purpose of entering judgment on the dismissal. The plaintiff can motion opposition to the dismissal motion, and support that opposition with a trial brief, or alternatively the plaintiff can “rest on his pleadings”. If the plaintiff opposes the defendant’s motion, the defendant is permitted a response to the response in opposition, and then the matter is considered “fully briefed” for the court.

You might notice that all parties have apparently consented to allowing “wikipedia” entries as a citable source.