On February 8, 2007, the complaint of neglect against me brought by the State of Indiana -- that I am an unfit parent because I am a “pedophile” -- was closed. The Court held an ex parte conference which excluded me and permitted a plan by the state child welfare agency to deprive me of a trial on the complaint, and to move that complaint into the custody hearing of my divorce. Custody hearings are decided without a standard of proof, where the neglect proceeding required the state to prove their case by a “preponderance of the evidence”. They could not do this because their theory isn’t sound.

I filed my timely notice to the Court that I am appealing today. Because the State refused to prosecute their case -- never produced evidence I was entitled to, never produced their witnesses, forced the trial court into FIVE continuances over fifteen months -- at the end, I lacked “standing”. There was no more any “live, justiciable” controversy between us. There was only me -- strenuously objecting that they should present their case -- and them -- abusing the process.

I also filed a constitutional challenge in the divorce proceeding. My argument is that the custody statute -- with no standard of proof -- encouraged the actions of the state. It will be hard to deny that I am right; on the face of it, THEY FUCKED ME OUT OF A TRIAL. The statutes will face “strict scrutiny” -- a level of judicial review no statute can survive. Statutes subject to this level must be “narrowly tailored” -- because to reach that level, the very basic essential and fundamental liberties we possess must be violated, and when the deprivation is so severe -- the state must narrowly tailor its legislation to achieve its purposes and must do so in the least restrictive manner possible.

An example: say after an arcade closes at 10:00 pm, and for a couple hours afterwards, a group of people hang around making noise and littering. So the county / state / whatever passes a law that says “no loitering”. They’ll get away with it, because no essential liberty is violated. But if the law said “no loitering by black people”, it would be subject to strict scrutiny because equal protection on the basis of race is an essential liberty (Thirteenth Amendment). And the law is not narrowly tailored -- it could forbid loitering between the hours of 10:00 pm and a couple hours afterwards. It could forbid loitering to everyone.

So I have made the following argument in my constitutional challenge in the divorce proceeding. It will be heard, because unlike the neglect proceeding -- WHERE THEY COULD FUCK ME OUT OF A TRIAL -- the divorce judge eventually has to enter a judgment for or against me. My argument on the “narrowly-tailored prong” is this:

“There are more nuanced things the state could have done to prevent exploitation of a vulnerable group without sweeping so broadly with respect to a fundamental right. For example, the legislature could have allowed Mr. Brown a hearing on the two years of accumulated evidence introduced by IDCS against him. The legislature could have provided a remedy for unlawful acts to deprive Mr. Brown of rights committed under the statutes. The legislature could have prevented the state from forcing the dissolution of Mr. Brown’s marriage under the statutes. The legislature could have prevented the statutes from being used to deprive Mr. Brown of his right to petition the national Congress or call into radio talk shows."

The two years of evidence stands against me in the divorce proceeding. The “remedy” is allowing me to cross-examine the witness I alleged perjured herself. I will get to do so in the divorce trial. The rights violation that will subject ALL of the statutes I am challenging (divorce custody, divorce visitation, and three components of the neglect statutes) is as follows -- and it is mind-blowing, hasn’t happened since 1875 (text from my brief) (MCJC is the juvenile court, the case was subsequently transferred by the state supreme court to superior court):

“Mr. Brown was forbidden by a gag order entered during a hearing in this case held against a Federal stay on August 17, 2005, to the right to petition the national Congress on a matter affecting his right.

H.R. 4472, introduced into the 109th Congress on December 8, 2005, granted immunity (Sec. 130) to suit to a private defendant, The National Center, in then-pending litigation of Mr. Brown’s, Kevin Brown v. State of Indiana, et al., 1:05-CV-1585-RLY-VSS (S.D. Ind. 2005), and that lawsuit was filed seven weeks before the Bill on October 20, 2005. Congress subsequently passed that Bill into public law, July 7, 2006, Public Law No. 109-248, 42 U.S.C. § 5791(d) (2006). Mr. Brown held a right to appeal of the dismissal to the Seventh Circuit Court of Appeals until his notice period, Fed. R. App. P. 4(a)(1)(A), expired July 20, 2006, app. p. 30, after enactment of the public law, and the appeal was thereby mooted while live for Congressional extension of absolute immunity to the private defendant. The gag order remained in effect until August 19, 2006, pursuant to I.C. § 31-32-13-6 (1997).

The MCJC refused a request in writing to explain the gag order, app. p. 31 4. The Federal lawsuit was filed on the docket of the neglect proceeding by [my counsel] at a pretrial conference for counsel held October 20, 2005 to raise and preclude Mr. Brown’s constitutional claims to the District Court. The gag order read:

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED Father Kevin Brown is to immediately cease and desist publishing, disseminating, discussing, (other than with his attorney), or in any other manner whatsoever communicating to anyone or anything the name of his minor child in relationship to or in connection with this proceeding"

and:

"the name of said child and the proceedings and records of this case, as they relate to him are confidential"

The gag order was entered against a Federal stay, 28 U.S.C. § 1446 (d) (1994). Mr. Brown had attempted a civil rights removal from the state forum to the district court. The notice was filed October 1, 2005, on the state trial court’s docket pursuant to 28 U.S.C. § 1446 (a), app. p. 33, and properly serviced to all parties. [My counsel], Mr. Brown’s counsel, provided an additional four copies of the notice with both the district and state trial court’s clerk seal affixed at the August 17, 2005 hearing when it became apparent that the trial court intended to defy the stay. Removal does not require return of service by statute as it is not an independent cause of action. If there were questions of insufficient service, they were properly addressed in motion to the district court, 28 U.S.C. § 1447 (c) (1996), and they were not. It was not a hearing set for the matter under IC § 31-32-13-2 (1997), as the trial court ordered Mr. Brown to show cause for contempt, Court’s Entry of August 19, 2005. Mr. Brown exhausted his remedy when the MCJC denied his motion to vacate the order, app. p. 42 12.

The unconstitutional statutes challenged directly fostered and encouraged the actions of the state that resulted in Mr. Brown’s injury.”

They thought the laws did not apply to them. I have suffered dearly the past two years from these criminal’s actions, and reckoning day has come -- it is on appeal. I haven’t eaten in a few days from the anxiety -- it’s always bad before filing deadlines.

love,

kevin brown
Indianapolis, indiana