IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| Randy Holkesvig, |
| Plaintiff and Appellant, |
| vs. Supreme Court No. 20120356 |
| Grand Forks Co. No. 18-10-C-00362 |
| Christine Moore, |
| Defendant and Appellee. |
APPEAL FROM MEMORANDUM DECISION AND ORDER
DATED AUGUST 23, 2012
IN DISTRICT COURT, GRAND FORKS COUNTY, NORTH DAKOTA
NORTHEAST CENTRAL JUDICIAL DISTRICT
THE HONORABLE LAWRENCE E. JAHNKE, PRESIDING
BRIEF OF PLAINTIFF AND APPALLENT
RANDY HOLKESVIG
| Randy Holkesvig |
| P.O. Box 82 |
| Fargo, ND 58107-0082 |
| Cell # 701-430-0914 |
| TABLE OF CONTENTS |
| Page. |
| TABLE OF AUTHORITIES.. ii |
| STATEMENT OF ISSUES.... 1 |
| STATEMENT OF THE CASE.... 2 |
| STATEMENT OF THE FACTS.. 5 |
| LAW AND ARGUMENT.. 6 |
| CONCLUSION.. 36 |
| CERTIFICATE OF COMPLIANCE.... 37 |
i
| TABLE OF AUTHORITIES | ||
| CASE LAW: Page. | ||
| Federal: | ||
| Alcorta v. State of Texas, 355 U.S. 28 (1957) 13 | ||
| Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252, (1986).... 32 | ||
| Berger v. United States, | ||
| 255 U.S. 22, 31, 36, 35, 41 S.Ct. 230, 233, 234, 65 L.Ed. 481 (1927)... 34 | ||
| Crosby v. Buchanan, 90 U.S. 420, 454 (1875).... 10 | ||
| In re Murchison, 349 U.S. 133, 136 (1955).... 14 | ||
| Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct.1019 (1938).. 29 | ||
| Liljeberg v. Health Services Acquisition Corp., | ||
| 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) 29 | ||
| Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803) 13 | ||
| Mooney v. Holohan, 294 U.S. 103 (1935). 13 | ||
| Napue v. Illinois, 360 U.S. 264 (1959). 13 | ||
| Nudd v. Burrows (1875), 91 US 426 23 Led 286, 290.. 30 | ||
| Pyle v. State of Kansas, 317 U.S. 213 (1942). 13 | ||
| North Dakota: | ||
| Baier v. Hampton, 440 N.W.2d 712, 715 (N.D.1989).. 14, 36 | ||
| Brakke v. Brakke, 525 N.W.2d 687, 689 (N.D.1994)... 28 | ||
| Buzzell v. Libi, 340 N.W.2d 36, 42 (N.D.1983).. 12 | ||
| Crawford v. Crawford, 524 N.W.2d 833 (N.D.1994).... 34 | ||
| Danzl v. Heidinger, 2004 ND 74, ¶ ¶ 7-10, 677 N.W.2d 924.. 20 | ||
ii | ||
| Delzer v. United Bank, 527 N.W.2d 650, 656 n. 4 (N.D. 1995) (Delzer III)... 30 | ||
| Disciplinary Bd. v. Lamont, 1997 ND 63, ¶¶ 16-19, 561 N.W.2d 650... 31 | ||
| Eggl v. Fleetguard, Inc., 1998 ND 166, ¶ 3, 583 N.W.2d 812. 29 | ||
| First Nat'l Bank of Crosby v. Bjorgen, 389 N.W.2d 789, 794-796 (N.D.1986) 29 | ||
| Galloway v. Galloway, 281 N.W.2d 804, 806 (N.D.1979). 29 | ||
| Grandbois and Grandbois, Inc. v. City of Watford City, | ||
| 2004 ND 162, ¶ 20, 685 N.W.2d 129... 26 | ||
| Hamilton v. Hamilton, 410 N.W.2d 508, 515 (N.D.1987). 27 | ||
| Hamilton v. Hamilton, 410 N.W.2d at 518 28 | ||
| Harger v. Harger, 2002 ND 76, ¶ 14, 644 N.W.2d 182. 31 | ||
| Harwood v. Harwood, 283 N.W.2d 144, 145 (N.D.1979).. 12 | ||
| Hefty v. Aldrich, 220 N.W.2d 840, 846 (N.D.1974).... 26, 27 | ||
| Helmers v. Sortino, 545 N.W.2d 796, 799 (N.D. 1996). 8, 29 | ||
| In re Braun, 145 N.W.2d 482, 484 (N.D.1966)... 27 | ||
| In re Braun, 145 N.W.2d at 484.. 28 | ||
| In re Braun, 145 N.W.2d at 484-85.. 28 | ||
| In re Disciplinary Action Against McDonald, | ||
| 2000 ND 87, ¶¶ 13-14, 609 N.W.2d 418... 31 | ||
| In re Estate of Jensen, 162 N.W.2d 861, 875-876 (N.D.1968) 36 | ||
| In re Estate of Jensen, 162 N.W.2d 861, 876 (N.D. 1968). 29 | ||
| In re Kaiser, 484 N.W.2d 102, 108-109 (N.D. 1992).... 32 | ||
| Jorgenson v. Ratajczak, 1999 ND 65, ¶ 26, 592 N.W.2d 527. 31 | ||
| Judicial Conduct Comm'n v. Hoffman, 1999 ND 122, ¶ 5, 595 N.W.2d 592.. 14 | ||
iii | ||
| Kjonaas v. Kjonaas, 1999 ND 50, ¶ 19, 590 N.W.2d 440.. 31 | ||
| Larson v. Baer, 418 N.W.2d 282, 290 (N.D. 1988).. 32 | ||
| Matter of Contempt of Grajedas, 515 N.W.2d 444, 452 (N.D.1994) 23 | ||
| Matter of Estate of Risovi, 429 N.W.2d 404, 406-407 n. 3 (N.D.1988) 14, 29 | ||
| Matter of Maragos, 285 N.W.2d 541, 545 (N.D.1979).. 11 | ||
| Matter of Walton, 251 N.W.2d 762, 763 (N.D.1977).... 11 | ||
| Neubauer v. Neubauer, 524 N.W.2d 593, 595 (N.D. 1994).... 28 | ||
| Perdue v. Sherman, 246 N.W.2d 491, 496 (N.D.1976). 28 | ||
| Peterson v. Peterson, 555 N.W.2d 359, 361 (N.D.1996).... 28 | ||
| Peterson, 555 N.W.2d at 362. 28 | ||
| Peterson v. Zerr, 477 N.W.2d 230, 235 (N.D. 1991) 20 | ||
| Sanderson v. Walsh County, 2006 ND 83, ¶ 13, 712 N.W.2d 842. 8 | ||
| Sanderson v. Walsh County, 2006 ND 83, ¶¶ 13, 17-18, 712 N.W.2d 842 29 | ||
| Sargent County Bank v. Wentworth, 500 N.W.2d 862, 880 (N.D. 1993)... 13 | ||
| Sargent County Bank, 500 N.W.2d at 877-880... 29 | ||
| Schneider v. Schaaf, 1999 ND 235, ¶16, 603 N.W.2d 869 26 | ||
| Smith v. City of Grand Forks, 478 N.W.2d 370, 371 (N.D. 1991). 8 | ||
| State ex rel. Spaeth v. Meiers, 403 N.W.2d 392, 394 (N.D. 1987)... 23 | ||
| State v. Anderson, 427 N.W.2d 316, 320 (N.D.1988)... 14 | ||
| State v. Dachtler, 318 N.W.2d 769, 773 (N.D.1982) 13 | ||
| State v. Hilling, 219 N.W.2d 164 (N.D.1974) 32 | ||
| State v. One Black 1989 Cadillac, 522 N.W.2d 457 (N.D. 1994) 30 | ||
iv | ||
| State v. Perbix, 349 N.W.2d 403, 405 (N.D.1984)... 13 | ||
| Verry v. Murphy, 163 N.W.2d 721, 731-733 (N.D.1968).. 25 | ||
| Westchem Agricultural Chemicals, Inc. v. Engel, 300 N.W.2d 856 (N.D.1980).. 20 | ||
| Windsor v. McVeigh (1876), 93 US 276 23 Led 914, 918. 30 | ||
| Other: | ||
| Cone v. Harris (Okl.1924), 230 P. 721 723 30 | ||
| Johnson v. Cash Store, 116 Wn. App. 833, 841, 68 P.3d 1099 (2003).. 17 | ||
| CONSTITUTION, RULES, STATUTES, OTHER | ||
| Constitution: | ||
| 6th Amendment to the US Constitution 13 | ||
| 14th Amendment of the US Constitution.. 3, 13, 14, 25 | ||
| Article 1, Section 21 of the ND Constitution 13, 14, 15 | ||
| Article VI, Clause 3 of the US Constitution... 22 | ||
| Article XI, Section 4 of the ND Constitution. 22 | ||
| ND Article I Declaration of Rights, §'s 4, 5, 8, 9, 11, 12, 15, and 21. 3 | ||
| ND Constitution Declaration of Rights under Article 1, Section 15. 29 | ||
| N.D. Const. art. VI, § 6.. 6 | ||
| N.D. Const. art. VI, § 8.. 6 | ||
| N.D. Const. art. XI, § 26... 23 | ||
| Rules: | ||
| N.D. Code Jud. Conduct 2A, 3B(5) 14, 34 | ||
| N.D. Code Jud. Conduct 3(C) 14 | ||
v | ||
| N.D. Code Jud. Conduct 3E(1)(a).. 14, 34 | ||
| N.D.R.App.P. 4(a) 6 | ||
| N.D.R.Civ.P. 4. 7, 8, 13 | ||
| N.D.R.Civ.P. 11.... 3, 4 | ||
| N.D.R.Civ.P. Rule 12(a)... 28 | ||
| N.D.R.Civ.P. 33(b)... 9 | ||
| N.D.R.Civ.P. 54(e)(2).... 4 | ||
| N.D.R.Civ.P. 58(a)(d).. 18 | ||
| [N.D.R.Civ.P.] Rule 60(b) 35 | ||
| N.D.R.Civ.P. 60(b)(iii) 27 | ||
| N.D.R.Civ.P. 60(b)(6). 26, 27 | ||
| N.D.R.Civ.P. 60(b)(vi)... 26, 27, 28, 33 | ||
| N.D.R.Civ.P. 69(a). 19, 22 | ||
| N.D.R.Prof.Conduct 3.3(a)(1)(3) 31 | ||
| N.D.R.Prof.Conduct 3.4(a).... 31 | ||
| N.D.R.Prof.Conduct 8.4(a)(b)(c)(d)(f)(g).. 31 | ||
| N.D.R.Prof.Conduct 8.4(c).... 10 | ||
| Statutes: | ||
| N.D.C.C. § 1-01-23 18, 21 | ||
| N.D.C.C. § 1-02-15. 17 | ||
| N.D.C.C. § 9-03-08. 26 | ||
| N.D.C.C. § 9-10-02 10, 26 | ||
vi | ||
| N.D.C.C. § 9-10-03.... 10, 11, 26 | ||
| N.D.C.C. § 9-10-04. 11 | ||
| N.D.C.C. § 12.1-10-02.1... 31 | ||
| N.D.C.C. § 12.1-11-01(1), (3) and (4).. 11 | ||
| N.D.C.C. § 12.1-11-02(1), (2)(a)(b)(c)(e) and (3).... 12 | ||
| N.D.C.C. § 12.1-11-04(1). 12 | ||
| N.D.C.C. § 14-02-05(4).... 33 | ||
| N.D.C.C. § 27-05-06. 6 | ||
| N.D.C.C. § 27-08.1-02... 17, 18, 21, 22 | ||
| N.D.C.C. § 27-13-01(6).... 31 | ||
| N.D.C.C. § 28-21.... 29 | ||
| N.D.C.C. § 28-26-01(2)... 4, 20, 25, 32 | ||
| N.D.C.C. § 28-26-31 3, 20 | ||
| N.D.C.C. § 28-27-01. 6 | ||
| N.D.C.C. § 28-27-02. 6 | ||
| N.D.C.C. § 31-01-09... 13, 23 | ||
| Other: | ||
| 7 J. Moore, Federal Practice ¶ 60.19, at 225-26 (2d ed. 1985) 36 | ||
| 18 USC Chapter 83, Postal Service, US Code Sections 1701 and 1702.. 2 | ||
| 42 U.S.C. § 1983 25 | ||
| Jones on Evidence, 2d Ed., Vol. 1, Sec. 92, pp. 156-157... 25 | ||
| ND Aspirations of Professionalism and Civility Preamble 11 | ||
vii | ||
| Wright & Miller, Federal Practice and Procedure, Section 2864, p. 213; | ||
| Wright & Miller, "special showing," under subsection 6... 27 | ||
viii
STATEMENT OF ISSUES
Page.
I. Did Judge Medd at any time violate my constitutional rights, abuse his
discretions with bias or prejudice that affected his ruling and denial of
my Stay of Execution dated 8-31-11? 6
II. Was there a conflict of interest with Judge Jahnke regarding prejudice,
bias or impartiality when he issued his Memorandum Decision & Order
dated 8-23-12 denying my Motion to Void/Vacate Judgment?... 35
1
STATEMENT OF THE CASE
¶3. On 1-28-10 I filed a small claim lawsuit against Christine Moore based on the
fact that she inflicted intentional harm and personal injury to me. She blatantly lied in
her complaints and claims that were made to Law Enforcement Officials which caused
direct financial harm to me and mental anguish that resulted in 2 arrests in 2008. If
Moore did not lie and steal mail in 2007, and if she did not place 7 harassing and
unwanted calls, there would not have been any charges filed against me. When Moore
harassed and threatened me she committed disorderly conduct. She stole mail which
violated interception of correspondence. She stole $10.00 memorial donation money.
She obstructed USPS delivery of a 12-22-07 letter that violated 18 USC Chapter 83,
Postal Service, US Code Sections 1701 and 1702. Moore libeled and slandered me
with unsubstantiated claims and accusations found in various Law Enforcement reports
thru the State's Odyssey program that is open for public viewing. Moore's deceptive
behavior, lies and denials was the direct cause of action for my lawsuit being filed.
Moore knowingly, willingly, intentionally lied in every voluntary statement or written
document that she gave to Law Enforcement. Moore's 2-14-08 Affidavit Petition for a
DCRO contains lies while Moore committed perjury on 3-11-08 while obtaining an
illegal DCRO. This abhorrent behavior by Moore is ignored by Law Enforcement and
the GF DA's Officials in 2008, who in part suborned perjured statements and false
claims from Moore that was used for 2 arrests in 2008. Moore's lies and deceptive
accusations are found in every GF Sheriff's report that Deputies Smith and Grove wrote
and filed in 2008, including reports by other Law Enforcement Officials between the
2
dates of 12-22-07 and 6-5-08. The State intentionally violated my equal protection
under the 14th Amendment of the US Constitution by this subornation. Judicial abuse
of discretion issues along with bias and prejudicial rulings occurred by Judge Clapp
and Magistrate Vigeland in 2008 and by Judge Medd from 2010-2012 and now by
Judge Jahnke in 2012. All of them have ignored Moore's lies, denials and statute
violations and my due process rights. Moore's 3-11-08 testimony contradicted her
previous statements that she gave to Smith and Grove from 12-22-07 to 2-15-08.
Moore's inconsistencies becomes a very serious legal issue when combined with the
exculpatory evidence that the State illegally withheld. The District Court ignores
every aspect of substantive and procedural due process. They gave Moore unfettered
protection in 2008 and in 2010-2011 Medd simply handed Moore witness immunity
to protect her lies from 2008. My due process under the 14th Amendment of the US
Constitution was abused and violated which caused irreparable harm to me. This
reckless judicial behavior and abuse of due process has in part violated the ND Article
I Declaration of Rights, §'s 4, 5, 8, 9, 11, 12, 15, and 21. Every Judge has ignored the
truth and all evidentiary facts while Moore's credibility issues certainly conflicts and
contradicts the definition of what qualifies as a "reasonable person."
¶4. On 11-17-10 a summary judgment was granted to the Defendant using witness
immunity. Attorney's fees were denied at the time. However, Judge Medd was biased
and prejudicial to me. Moore's Attorney Shannon Uglem filed for Attorney's fees
using N.D.C.C. § 28-26-31 and N.D.R.Civ.P. 11 from Index #19, p.5. Uglem did
not cite a case. Medd gave a wink and nod to Uglem in Index #30 that "my pleadings
3
are not necessarily untrue...p.6," and that N.D.R.CIV.P. 11 "requires a separate motion,"
and the "Court may consider such request if appropriately made." All that Uglem had
to do was fill in the blank and pad his expense account and file it within 21 days. Lo
and behold Uglem files a new Affidavit on 12-3-10, Index #'s 32-34, claiming his
Attorney's fees are now $150.00 per hour and he's now using N.D.R.Civ.P. 54(e)(2)
and N.D.C.C. § 28-26-01(2) for attorney's fees awards. Subsequent filings, objections,
Supreme Court remand order, etc...were quickly filed. New orders were issued by
Medd on 3-15-11, Index #'s 54-57. Medd is now using N.D.R.Civ.P.54(e)(2) and
N.D.C.C. § 28-26-01(2) in Index#56, claiming I did not cite a case or relevant law to
support my case. Medd is now claiming that my lawsuit was "frivolous," based on the
"voluminous and repetitious filings of the Plaintiff." The true facts, briefs, and exhibits
I submitted prior to Medd's 3-15-11 claims, clearly indicates his bias and prejudice.
Medd's Index #54 is biased and prejudicial to me because Index #'s 1, 24, 44 and 52
contains evidence that proves a trial/new trial is warranted. Medd's Index #55 is biased
and prejudicial because of a highly illegal ex-part communication violation that was
committed by Dan Gaustad and Judge Wickham Corwin on 4-22-10. An email was
sent to Corwin prior to the 4-23-10 hearing indicating they wanted a protective order
and no oral argument. No email was ever sent to me. I was unaware of it at the 4-23-10
hearing. Gaustad blatantly lied in the 4-23-10 court transcripts. He brought one +17
page copy to court and he gave it to Corwin. I received nothing and Corwin quickly
granted it and ignored my comments. This illegal behavior corrupted the judicial and
administrative process while the ND Supreme Court Justices ignored it. This ruling by
4
Medd is highly illegal, immoral and unethical. Medd was fully aware of disgusting
events from 4-23-10. In fact, Medd's Index #56 now conveniently matches Uglem's
Index #'s 32-34 attorney's fees and statute claims. Medd's personal comments from
Index #30 clearly indicates judicial abuse of discretion. It is an embarrassment to justice
for this to happen. Medd made numerous errors with wrong names, speculative
assumptions and outright lies in that ruling he issued. I filed an appeal on 4-12-11,
Index #61. My Appeal Brief and Appendix was submitted on 5-2-11. My reply brief was
submitted on 7-2-11. The ND Supreme Court hearing was held on 9-13-11. On 10-18-11
the ND Supreme Court issued their opinion. My Petition For Rehearing was submitted on
10-31-11. The ND Supreme Court denied it on 11-15-11. I filed a Writ of Certiorari with
the U.S. Supreme Court on 1-11-12 and it was denied on 3-19-12. On 4-11-12 I filed a
Petition For Rehearing and on 5-14-12 it was denied. When a U.S. Supreme Court
Appeal is filed 99% get rejected on the spot because of technical reasons, errors in
filings, conflicting State Law v. Federal Law, records violations or brief errors, etc...
The remaining 1% of cases left are then weeded out or dismissed, while a selected few
of this 1% gets accepted. No reason was ever given to me as to why my 2 US appeals
were denied. On 7-30-12 I filed a Motion to Void/Vacate Judgment with the GF District
Court. Judge Medd recused himself on 8-6-12. On 8-23-12 Judge Jahnke issued a
Memorandum Decision & Order denying my motion. I filed my appeal on 9-21-12.
STATEMENT OF FACTS
¶5. New evidentiary issues surfaced that involved a writ of execution that occurred
between 7-21-11 and 9-15-11 and AFTER my ND Supreme Court appeal was filed on
5
4-12-11. Medd was biased and prejudicial to me throughout this whole process by
ignoring the truth that started in Index #1 on 1-28-10, and ended with his recusal from
Index #102 on 8-6-12. Several legal and moral issues were ignored by Medd while his
personal bias, prejudice and abuse continued to build with special, extra favoritism and
financial benefits towards Moore and Uglem as the case moved forward. It culminated
with his Order Denying "Defendant's" Motion For Stay of Execution on 8-31-11. I
filed a Motion To Void/Vacate Judgment on 7-30-12. Medd recused himself on 8-6-12
and he signed and dated that recusal as 10-24-10. On 8-23-12 Judge Jahnke issued a
Memorandum Decision & Order denying my motion. I filed my appeal on 9-21-12.
This is NOT a re-litigation issue. The GF Co. District Court had jurisdiction to hear my
Motion from 7-30-12 under N.D. Const. art. VI, § 8 and N.D.C.C. § 27-05-06. My appeal
is timely under N.D.R.App.P. 4(a). The ND Supreme Court has jurisdiction under N.D.
Const. art. VI, § 6 and N.D.C.C. §'s 28-27-01 and/or 28-27-02.
LAW AND ARGUMENT
Issue I. Did Judge Medd at any time violate my constitutional rights,
abuse his discretions with bias or prejudice that affected his ruling
and denial of my Stay of Execution dated 8-31-11?
¶6. At no such time between 7-21-11 and 9-15-11, Index #'s 74-94, was I ever aware
that money was taken out of my savings account thru a levy or writ of execution by
Uglem and Trail County Sheriff Mike Crocker. Uglem, Medd and the ND Supreme
Court Justices were all aware that my savings account was raided by Uglem/Crocker on
8-5-11. I wasn't aware of it until 3-22-12. Crocker NEVER informed me that he seized
6
possession of my savings account when he served me the writ of execution papers on
8-8-11 and took $6,294.50. Crocker just handed me the papers, Index #77, and said I
had to respond within 10 days. I responded on 8-15-11, Index #79. I didn't know what a
Writ of Execution was. I was not aware of it at the 9-13-11 ND Supreme Court hearing.
Uglem never said a word about it in his Response, Index #83 or at the 9-13-11 hearing.
The secrecy surrounding all of these events exposes the ongoing corruption in Grand
Forks and Trail Counties.
¶7. My appeal brief and reply brief were already finalized by 7-2-11. Everything that
occurred between 7-21-11 and 9-15-11 by Uglem, Crocker and Medd was done with a
hidden agenda and purpose to deceive the truth by not properly notifying me under
N.D.R.Civ.P. 4. No summons was ever issued and no warrant was ever served on me.
No discovery orders were issued. No District Court filings were ever sent to me on
7-21-11 or 8-26-11. No Sheriff's documents were ever sent or served on me other than
the Writ of Execution on 8-8-11. Medd never issued an Order to pay Attorney's
fees/costs within 30 days. Index #'s 27, 39, 65, and 82 proves Uglem has sent me email
notices, yet NO email notices were sent to me by Uglem between 7-21-11 and 8-15-11.
I'm in the middle of harvest. Uglem knew I would not be able to get to my P.O. Box in
Fargo in a timely fashion and check on mail deliveries. I filed a Stay of Execution on
8-15-11, Index #80. Uglem quickly responded on 8-16-11, Index #83. Uglem deceived
me with his deceptive response because he made no comment about the money taken
from my savings account on 8-5-11. No email, no phone call, no notice, no affidavit of
service, no certified mailings, no legal, valid service of process occurred by Uglem
7
between 7-21-11 and 8-15-11. No warrant and no summons was ever served on me by
Crocker. I clearly indicated in Index #80 that no payment would be made until the
Supreme Court heard/ruled on the pending appeal matters on 9-13-11.
¶8. I filed a Motion to Void/Vacate Judgment on 7-30-12 because Uglem committed
fraud/deceit upon the Court. Once money was already in Uglem's possession, Medd
was certainly going to rule in his favor on 8-31-11. It's perfectly clear there was illegal
games being played by Medd and Uglem. The set up by Medd occurred in his 11-17-10
ruling while Uglem simply reset the table for Medd's 3-15-11 ruling. The lack of
integrity, morality and honesty by Uglem and Medd is obvious because there was no
certificate or affidavit of service notices sent to me by Uglem or the Court for
Index #'s 74, 77, 86, 87 and 88. Valid service of process under N.D.R.Civ.P. 4 is
necessary for a court to acquire personal jurisdiction over a defendant.
Sanderson v. Walsh County, 2006 ND 83, ¶ 13, 712 N.W.2d 842;
Helmers v. Sortino, 545 N.W.2d 796, 799 (N.D. 1996). Uglem did not properly serve
me and the court therefore did not have personal or subject matter jurisdiction to act on
8-31-11. Smith v. City of Grand Forks, 478 N.W.2d 370, 371 (N.D. 1991). It is settled
law that without a valid service of process, any judgment is void because the court lacks
personal jurisdiction. Medd allowed Uglem to commit fraud and/or deceit upon the court.
This kind of behavior is highly illegal, immoral and unethical. Crocker's costs were
additional expenses that was done with the intent and purpose to cause additional harm
to me. Crocker and his Deputy Tony Earnst blatantly lied in 2010 about Moore's
harassing call that showed up on my caller ID on 1-23-08 at 5:34 PM. Index #90 was sent
8
to me and I replied to it by Index #92. Once the money was in Crocker's possession,
Medd knew about it from Index #86 and naturally he was going to deny me my Stay of
Execution despite having no jurisdiction because of my appeal that was already filed on
4-12-11 and finalized on 7-2-11. How do I read or understand the levy/writ of execution
and process if documents were intentionally withheld by Crocker. Documents were not
properly served on me by Uglem, Crocker, the GF District Court and Trail County
Court. The original judgment did not include "sheriff's costs," and no notice of service
regarding incidents between 7-21-11 and 9-15-11 incidents. On 3-22-12 I realized
money was taken from my savings account on 8-5-11. On 3-28-12 I obtained copies of
Index #'s 74, 77, 86, 87, 88 from the GF Courthouse.
¶9. Uglem filed upwards of 6 different documents off the record using the small claims
case or emails that are found in my previous {Appeal Brief, p. 26-32} and also in that
{Appendix where no "Index #" is listed}. Uglem blacked out phone numbers to cover
up Moore's calls that I allege she made or received from various Law Enforcement
Officials. I have documented 3 incoming calls to Moore by the GF Sheriff's Officials
who called her twice on 2-1-08 and another call was made on 2-12-08. Uglem did not
properly answer my interrogatories from Index #29, and he did not properly submit it
to the court. He violated the interrogatory rules under N.D.R.Civ.P. 33(b) and sanctions
or contempt of court should have been applied against Uglem while Medd ignored it.
Uglem set a hearing for 10-20-10 while Judge Medd set a hearing date for 10-18-10 and
no notice was ever sent to me. Medd sent out a personal reply letter to both of us dated
10-20-10 stating his displeasure that a 10-18-10 hearing was set and no one appeared,
9
Index #28. The reason why I didn't appear was because I was NEVER properly notified
by Uglem from his email dated 10-18-10 at 1:07 PM, from the 5-2-11 {App.p.44-45.}
In a court of conscience, deliberate concealment is equivalent to deliberate falsehood.
Crosby v. Buchanan, 90 U.S. 420, 454 (1875). Uglem's version of the material facts
seriously conflicts with Holkesvig's version of material facts. Ulgem and Moore's
version is so unreasonable, improbable, inconsistent and contradictory, that it is truly
unworthy of any credence or belief. Holkesvig's version is reasonable, highly probable,
consistent with true facts that is highly relevant to all issues in dispute that is found
in his evidentiary material in the Docket sheet. Moore and Uglem suppressed the truth
with the intent to deceive and mislead the truth. Their misconduct and deceptive acts is
amply corroborated by credible evidence.
¶10. Why does Medd turn a blind eye to justice on the deceptive acts by Uglem and
Moore? This is a bad faith qualification that would disqualify Uglem from collecting
any and all attorney's fees. Uglem's deceitful acts from 7-21-11 to 9-13-11 obviously
violated N.D.R.Prof.Conduct 8.4(c) by engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation that reflects adversely on the lawyer's fitness as a
lawyer. In N.D.C.C. § 9-10-02, a deceit within the meaning of N.D.C.C. § 9-10-03 is
defined as: 1. The suggestion as a fact of that which is not true by one who does not
believe it to be true; 2. The assertion as a fact of that which is not true by one who has
no reasonable ground for believing it to be true; 3. The suppression of a fact by one
who is bound to disclose it, or who gives information of other facts which are likely to
mislead for want of communication of that fact; or 4. A promise made without any
10
intention of performing. Also under the N.D.C.C. § 9-10-03, Damages for deceit is
defined as: One who willfully deceives another with intent to induce that person to alter
that person's position to that person's injury or risk is liable for any damage which that
person thereby suffers. Under N.D.C.C. § 9-10-04. Intent to defraud - Presumption:
"One who practices a deceit with intent to defraud the public or a particular class of
persons is deemed to have intended to defraud every individual in that class who actually
is misled by the deceit." Uglem "blacked out" Moore's Qwest phone records. He did not
submit all of her Qwest phone records. He refused to identify phone names and numbers.
He refused to properly answer interrogatory questions. Uglem lied and deceived the
Court. Uglem was then rewarded with attorney's fees/costs despite the fact that evidence
clearly points to deceptive practices and untrue pleadings. Moore violated the Affidavit
Oath in her 2-14-08 Petition for a DRCO and she violated the Oath she took on 3-11-08.
I expected Moore to tell the truth and she lied and the State ignored it. When Uglem
violated his Oath, Medd violated his Judicial Oath and ignored it and the public trust was
forever lost. Matter of Maragos, 285 N.W.2d 541, 545 (N.D.1979). Uglem's deliberate
denials, false claims and misleading statements that he made to the Court and what he
said in his briefs are clearly "contrary to accepted standards of honesty, justice, or
morality." Matter of Walton, 251 N.W.2d 762, 763 (N.D.1977). Uglem clearly violated
the ND Aspirations of Professionalism and Civility Preamble, several Statutes and Civil
Rules under N.D.R.Prof. Conduct and N.D.R.Civ.P. as I have indicated in this appeal and
my prior appeal and in related documents. Moore and Uglem committed perjury under
N.D.C.C. § 12.1-11-01(1), (3) and (4). They intentionally gave false statements by
11
violating N.D.C.C. § 12.1-11-02(1), (2)(a)(b)(c)(e) and (3). Their deception clearly
violated N.D.C.C. § 12.1-11-04(1) and it was ignored with repugnancy by Medd thru his
biased and prejudicial rulings.
¶11. My appeal was filed on 4-12-11. There was no jurisdiction for Medd to act on
pending that appeal. Medd issued an Order Denying "Defendant's" Motion For Stay of
Execution on 8-31-11, Index #91. I told Medd in Index #79 that he had no jurisdiction,
paragraphs 5 and 21-29. Thus, any Order issued by Medd because of "no jurisdiction,"
becomes void. No proper service of documents was issued to me on 7-21-11, 8-5-11,
8-26-11 and 9-1-11. Jurisdiction of the ND Supreme Court attaches upon the filing of
the appeal and generally the trial court has no further jurisdiction in the matter.
Buzzell v. Libi, 340 N.W.2d 36, 42 (N.D.1983). This attachment of jurisdiction applies
to the entire cause of action, not just to the specific order or judgment appealed from.
An order entered by the trial court after an appeal has been filed is ordinarily void for
lack of jurisdiction. Harwood v. Harwood, 283 N.W.2d 144, 145 (N.D.1979). When
Uglem served the Writ to the Trail County Court on 7-21-11, do I not also have the
right to be properly served a copy of it on 7-21-11? Don't I have the right to be notified
that Crocker seized my savings account on 8-5-11? Why did Crocker serve me the writ
on 8-8-11 AFTER he already seized money on 8-5-11 while my ND Supreme Court
appeal was pending? Did the Trail County Court have personal or subject matter
jurisdiction in this case? Did they serve me any documents on 7-21-11 or 8-5-11? If Trail
County Court has no jurisdiction over GF District Court or if Medd had no jurisdiction
pending my ND Supreme Court appeal that was filed on 4-12-11, then the writ has to be
12
void and the judgment dismissed and all money returned back to me because Medd
abused his discretion while Uglem never properly notified me. Improper notifications
by Uglem, Crocker and the GF and Trail County Courts severely lacks due diligence
and due process. The spirit and intent of N.D.R.Civ.P. 4 that is needed for proper service,
was obviously lacking and the Register of Actions clearly indicates their motives,
purpose and intent. A violation of the Rules of Judicial Conduct by Medd can result in
the reversal of a judgment. Our judicial system has to maintain an appearance of
propriety. Sargent County Bank v. Wentworth, 500 N.W.2d 862, 880 (N.D. 1993).
¶12. Medd violated N.D.C.C. § 31-01-09, my 6th Amendment to the US Constitution,
and Article 1, Section 21 of the ND Constitution, by giving Moore "witness immunity"
on 11-17-10, Index #30, and on 3-15-11, Index #56. By law, the State is not required to
grant immunity to defense witnesses. State v. Perbix, 349 N.W.2d 403, 405 (N.D.1984);
State v. Dachtler, 318 N.W.2d 769, 773 (N.D.1982). A defendant CANNOT compel the
State to grant them immunity. The constitutional question is established by Chief Justice
Marshall in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). When the reliability
of a given witness may well be determinative of guilt or innocence, nondisclosure of
immunity deal with witness violates Due Process. Napue v. Illinois, 360 U.S. 264 (1959).
A conviction obtained through use of false evidence, known to be such by representatives
of the State, must fall under the Fourteenth Amendment.
Mooney v. Holohan, 294 U.S. 103 (1935); Pyle v. State of Kansas, 317 U.S. 213 (1942).
The same result obtains when the State, although not soliciting false evidence, allows it to
go uncorrected when it appears. Alcorta v. State of Texas, 355 U.S. 28 (1957). The due
13
process clause under the 14th Amendment of the US Constitution entitles parties in civil
matters to an impartial, neutral and disinterested tribunal.
State v. Anderson, 427 N.W.2d 316, 320 (N.D.1988). A judge shall disqualify himself
or herself in a proceeding in which the judge's impartiality might reasonably be
questioned. Baier v. Hampton, 440 N.W.2d 712, 715 (N.D.1989). Medd technically
gave legal advice to Uglem on 11-17-10, Index #30 which obviously violated N.D.
Code Jud. Conduct 2A, 3B(5) and 3E(1)(a).
Judicial Conduct Comm'n v. Hoffman, 1999 ND 122, ¶ 5, 595 N.W.2d 592. The Code
mandates that a judge shall avoid impropriety and the appearance of impropriety.
The Rules of Judicial Conduct disqualify a judge who has personal knowledge of
disputed evidentiary facts, (aka Gaustad-Corwin protective order) from Index #55,
and Medd's ruling violated N.D. Code Jud. Conduct 3(C). This is mandatory, not mere
guidelines. Matter of Estate of Risovi, 429 N.W.2d 404, 406-407 n. 3 (N.D.1988). In
Risovi, the ND Supreme Court ruled that orders entered by a judge who should have
recused himself under Rule 3(C) were void. A fair trial in a fair tribunal is a basic
requirement of due process. In re Murchison, 349 U.S. 133, 136 (1955). Medd ignored
everything I said in Index #79. Medd previously abused his discretions in Index #37,
pages 17-22 when he illegally granted witness immunity to Moore, and in Index #52,
paragraphs 17, 24 and 25. Medd should have recused himself on 11-17-10 not only for
his bias and prejudice against me, but also for his favoritism and sympathetic views to
Moore regarding the GF Co. Crim. Case No. 18-07-K-02878 from December 2008. The
immunity Medd granted clearly violates Article 1, Section 21 of the Declaration of Rights
14
in the ND Constitution, which states; "No special privileges or immunities shall ever be
granted which may not be altered, revoked or repealed by the legislative assembly; nor
shall any citizen or class of citizens be granted privileges or immunities which upon the
same terms shall not be granted to all citizens." The witness immunity grant by Medd
to a defendant in a civil matter sets a very dangerous precedent for the State.
¶13. I filed my claim affidavit 1-28-10 and enclosed all of the proper legal forms. I
filed my affidavit of mailing by certified mail on 2-1-10. All of the legal documents and
forms that Moore needed for her legal reply was included. Index #'s 1-5. Moore refused
2 USPS notices to pick it up.
¶14. The Register of Actions Index #1 clearly indicates that my "Claim Affidavit" was
lawfully filed in District Court and legally mailed to Moore on 1-28-10. Moore refused
the 1st USPS notice to pick it up on 1-29-10. The 2nd USPS notice was made on 2-6-10.
It was sent certified Priority mail with restricted delivery, with a USPS tracking number.
Moore knowingly, willingly and intentionally ignored both USPS notices while her time
to file a formal reply was eroding. Notice dates were written on Moore's envelope by a
Northwood Postal employee. Instead of waiting for the package to be returned back to
me, I retook possession of it on 2-9-10 and immediately went to the GF Sheriff's Office
and had them serve Moore on 2-10-10. On 2-9-10 Moore tried to block my 1-28-10
lawsuit by obstructing justice when she filed a DCRO against me in GF Co. Case No.
18-10-C-00254. Magistrate Thelan quickly denied it. Thelan was also the Judicial
Officer assigned to Deputy Smith's case, GF Co. Case No. 18-10-S-00058. No Judicial
Officer was named in the Welte-Larson cases, as GF Co. Nos. 18-10-S-00061 and 60
15
were erased and the records were destroyed on 2-17-11. Vigeland and Thelan are the
only GF Judicial Officers who hear small claims cases. Moore's behavior between
1-29-10 and 2-9-10 clearly indicates she received guidance and assistance from State
officials. Moore had no way of knowing that the 1-28-10 package I sent to her was a
small claims lawsuit. Someone within the GF District Court Clerk's Office, DA's
Office or GF Sheriff's Office, illegally notified Moore that my package contains a
lawsuit. If Moore thought this document was just another reply letter from me, she
would have picked it up on 1-29-10 and taken it to the GF Sheriff's Office and claim
I was stalking her. Moore didn't do that. We'll never know what Moore said in her
DCRO from 2-9-10 because Thelan denied it and the record was conveniently
destroyed on 2-17-11, after I filed a motion on 1-4-11, Index #44. Moore has NEVER
given a legal or valid excuse as to why she refused to pick up my document. Moore's
deception and her delays in giving an answer within 20 days were willfully and
knowingly negligent on her part, not mine. She wasn't sick or out of town on vacation.
¶15. It is NOT an excusable act for Uglem to move it up to District Court after the
small claims 20 day period expired. Moore's deceptive behavior from 2-9-10 clearly
indicates that the move up to district court was unjustified. Moore's blatant lies, false
claims and failure and refusal to pick up the document between 1-29-10 and 2-9-10,
obviously points to an ulterior motive to first try and block it, and when that failed, they
moved it up to District Court. It should have been declined by Medd. Medd and Judge
Clapp had ulterior motives to allow it to be moved up to District Court in order to cause
direct financial harm to me by giving Uglem a "blank check policy" and an opportunity
16
to "pad his expense account." When the time is right, Medd would simply ignore the
truth and justice, issue a frivolous ruling by giving Moore witness immunity and grant
a summary judgment and reward Uglem with excessive attorney's fees/costs.
¶16. My small claims lawsuit was filed to keep costs down and to avoid attorney's
fees. Clapp & Medd had a choice to dismiss my case on the onset of my filing or deny
Uglem his moving it up to District Court within the 20 day period. They failed on both
matters. A party must show that the neglect was actually excused by some factor and
that it was not the result of mere failure to act.
Johnson v. Cash Store, 116 Wn. App. 833, 841, 68 P.3d 1099 (2003). Twenty days
from 1-28-10 is 2-17-10. Defendant's Removal To District Court, Index #7, was
signed and dated by Uglem on 2-26-10. Reduce 3 days for mailing (2-23-10) and it
was still illegal for Uglem to move it. Index #'s 1-13. Computation of time states in
part, under N.D.C.C. § 1-02-15; "The time in which any act provided by law is to be
done is computed by excluding the first day and including the last, unless the last is
a holiday, and then it also is excluded."
¶17. N.D.C.C. § 27-08.1-02, Commencement of action-Claim affidavit states in part:
"If within twenty days of service of the affidavit and form, the court has not received a
request for a hearing or an election to remove to district court, or if the defendant
indicates that a hearing is not requested, a hearing will not be scheduled and judgment
may be entered against the defendant by default." A judgment by default should have
been issued by Judge Medd and I should have been awarded $10,000.00 because no
action and no response were made by Moore or Uglem within this 20 day period. There
17
was no harm or legal delays on 2-9-10 when I picked up the lawsuit and had the GF
Sheriff's Officials served Moore on 2-10-10. The definition of actual notice is defined
in N.D.C.C. § 1-01-23; "Actual notice shall consist in express information of a fact."
Moore already had prior knowledge BEFORE 2-10-10 thru illegal means by applying
for a DCRO on 2-9-10. The chain of events linking my lawsuit was NOT broken.
Moore/Uglem did NOT indicate that she attempted to pick it up. If Moore did NOT
make any attempt to pick it up within 15 days it would have been sent back to me.
Moore NEVER signed it as "refused" and she NEVER initialed it. Moore had prior
knowledge as soon as 1-29-10 when Deputy Smith received/opened his package.
Moore had "actual notice consisting in express information of fact," thus my claim
affidavit from 1-28-10 started counting the 20 day window on 1-29-10 and it expired
on 2-17-10. Uglem's last day to move it was 2-23-10, and he signed and dated his
removal on 2-26-10, Index #7. Medd chose to ignore all of these legal facts because
he was too focused on "witness immunity and running up attorney's fees." Uglem and
the Clerk of GF Court also violated N.D.R.Civ.P. 58(a)(d) because improper Notice of
Entry and/or Amended Judgment were not properly filed within the 30 day or 10 day
period as required by this rule in Index #'s 46, 48, 50, 58, 64, 65, 74, 77, 86, 87 and 88.
¶18. N.D.C.C. § 27-08.1-02, Commencement of action - Claim affidavit, states;
"Actions in the small claims court are commenced whenever any person executes and
files with the court a claim affidavit, and causes the affidavit to be served by a person
of legal age, not a party to or interested in the action, on the defendant or mails it to
the defendant by certified mail along with a form upon which the defendant "must
18
indicate," whether a hearing is requested and whether the defendant elects to remove the
action to district court." It appears my Claim Affidavit was commenced on 1-28-10.
I do NOT believe Uglem or Moore legally indicated in the "small claims form 3
provided," that they wanted a hearing or move it up to district court. I NEVER
received any legal copy of the "actual small claims copy form 3, 4 or 5." Uglem filed
a separate document in Index #7, to move it up to District Court. We are using small
claims rules, not civil rules. Uglem clearly violated this particular statute. On
4-1-10 Judge Clapp assigned Medd, Index #11. I have had serious ethical, moral and
legal problems with Clapp that dates back to her July 1999 blatant lies, her judicial
abuse on 6-5-08 and currently in my post-conviction relief matters. Moore's small claim
"form 3, 4, and 5" were NOT properly served back to the Plaintiff as required in the
small claims forms. These "forms" NEVER appear in Uglem's Answer from
Index #'s 7, 8 or 9 and it NEVER was filed in the small claims case. Moore NEVER
signed her "Answer," and Moore NEVER "dated her Answer," so do Moore's lies,
denials and deception, continue thru Uglem?
¶19. Under N.D.R.Civ.P. 69(a) Execution, states in part: "(a) Money Judgment;
Applicable Procedure. "The procedure on execution and in proceedings supplementary
to and in aid of judgment or execution, must accord with the statutes of this state."
Statutes were obviously violated by Uglem, Medd, and Moore.
¶20. Uglem and Moore violated several statutes as indicated in this brief and in my
prior appeal brief, reply brief and petition for rehearing. Uglem's deception and intent
from July-Sept 2011 was obvious. Attorney's fees, in part, were illegal because of his
19
prior deceptive lies and outrageous behavior. Medd's subsequent rulings giving Uglem
attorney's fees using different statutes and rules, clearly violates N.D.C.C. § 28-26-31.
Westchem Agricultural Chemicals, Inc. v. Engel, 300 N.W.2d 856 (N.D.1980). Medd's
ruling does not comply with this particular statute and he obviously abused his
discretion. Peterson v. Zerr, 477 N.W.2d 230, 235 (N.D. 1991). The ND Supreme Court
further stated that the "intent of N.D.C.C. § 28-26-01(2) is to deter the pursuit of wholly
groundless and meritless claims, not to punish in artful drafting." This was filed as a
small claims lawsuit, it should have stayed in small claims environment.
Danzl v. Heidinger, 2004 ND 74, ¶ ¶ 7-10, 677 N.W.2d 924. Medd obviously displayed
bias, prejudice and impartiality to me by clearly stating in Index #30, that "Holkesvig's
pleadings are not necessarily untrue," to now being "frivolous" in Index #56.
¶21. My claims were NOT FRIVOLOUS because every claim I made is supported
with evidentiary facts. Judge Medd abused his discretions because he CANNOT find or
back up his claims that a "complete absence of actual facts or law, was missing and/or
that a reasonable person could not have expected that a court would render judgment
in my favor." Medd ignored Moore's January '08 Qwest phone records that was a
genuine issue of material fact in dispute. Moore claims under Oath on 3-11-08 that I
called her on 1-3-08, and this blatant lies is found in Smith's 1-31-08 report along with
32 other lies. Moore's Qwest records clearly indicates she initiated the 1-3-08 call
while 3 reply letter to Moore on 1-4-08 and 1-6-08 and 1-25-08 clearly indicates her
calls from 1-2-08,1-3-08 and 1-24-08 were all harassing and unwanted and qualifies
as harassment and/or disorderly conduct. Moore, Smith, Uglem, Medd and others have
20
all lied about Moore's 7 harassing calls, stolen mail and stolen money. Medd obviously
abused his discretion because evidentiary facts exist that proves Moore and/or Uglem
have repeatedly lied to and deceived the Court in 2008 and 2010/2011, and all of my
claims are truthful, valid and constitutionally sound. So why would Medd ignore the
truth and issue frivolous rulings that is NOT supported by the weight of evidence? No
evidence exists that I called and spoke to Moore on my dime on 1-3-08 or at any
point from 1-22-07 thru 2-13-08.
¶22. Attorney's fees are not allowed in small claims. According to this small claims
website, www.ndcourts.gov/court/forms/selfrep/clerksmanual.pdf, under Small Claims
page 28, paragraph (6) states in part that: "Once a claim affidavit is filed, it must be
served upon the opposing party who is then given 20 days from date of service to
respond." My "claim affidavit" was filed on 1-28-10, Index #1. The "date of service"
to Moore on 2-10-10 does not start the 20 day window because on 2-9-10 Moore tried
to obstruct justice by trying to get a DCRO filed against me to prevent me from filing
my lawsuit against her. The State and the GF Sheriff's officials have absolutely no right
to search thru small claims filings and "inform a defendant NOT to pick up a legal
document." So now we have conflicting legal issues and statute disputes and numerous
due process violations that raises serious doubt to the truthfulness of Medd, Moore and
Uglem. Does a 20 day reply window start when a "claim affidavit was filed and mailed
on 1-28-10," or "does it start on the date of service on 2-10-10," or "does it start with the
commencement of action dated 1-28-10, N.D.C.C. § 27-08.1-02," or "does actual notice
start on 1-29-10, N.D.C.C. § 1-01-23," and where does Moore's 2-9-10 DCRO fit in?
21
Small Claims Reply Forms 3, 4 and 5 were NEVER legally sent to me by Uglem as
required and indicated by small claims rules from the back page of Form 3. This
egregious error clearly indicates Uglem violated N.D.C.C. § 27-08.1-02 and
N.D.R.Civ.P. 69(a). His writ of execution documents were not properly sent or
distributed to me. The awarding of attorney's fees were illegal and it should be
nullified because Uglem committed fraud/deceit upon the court
¶23. Medd obviously ignored Moore's 1-3-08 Qwest records that should have
invalidated his summary judgment. No jurisdiction of the District Court occurred in
Medd's 8-31-11 Order. Medd could not legally defeat a summary judgment so he
handed Moore witness immunity that was illegal, immoral and unethical. The due
process clause does NOT require defense witness immunity to be ordered whenever it
seems it is patently unfair to grant it.
¶24. Granting immunity is a function of the "Executive Branch," and Article XI,
Section 4 of the ND Constitution lacks the word "executive" from the text. The
"Executive Branch" is not required to take the "Oath of Office," or uphold either the
US Constitution or the ND Constitution. Article VI, Clause 3 of the US Constitution
clearly states, "...all "executive" and Judicial Officers, both of the United States and of
the several States, shall be bound by Oath or affirmation, to support this Constitution."
If "no Oath" exists, there is "no defacto officer" unless there is a "dejure office." The
power to immunize a witness vests exclusively with the "executive branch." When the
judiciary acts to substitute its own personal and biased judgment for a judgment where
NO prosecutors and NO Attorney General were ever contacted by Uglem to get witness
22
immunity, it obviously undertakes and undermines the balancing of the judicial powers
and public trust that is legally necessary to grant witness immunity, and it clearly
violates the separation of powers doctrine, under the N.D. Const. art. XI, § 26. The
legislative, executive and judicial branches are coequal branches of government, and
each branch is supreme in its own sphere.
State ex rel. Spaeth v. Meiers, 403 N.W.2d 392, 394 (N.D. 1987). N.D.C.C. § 31-01-09
clearly requires approval by a prosecutor and/or Attorney General. What Medd did is
obviously contrary to the legal requirements of law and justice, and he clearly abused
his discretion. The district court engaged in discriminatory use of witness immunity to
gain a tactical advantage which tainted this and railroaded this case from the start.
¶25. Medd abused his discretion twice by giving Moore witness immunity on 11-17-10
and on 3-15-11. Medd was protecting the ongoing conspiracy, collusion and corruption
incidents in the Welte, Larson, Smith and Grove cases which violated my due process
and my right to a fair and impartial hearing. Witness immunity was NOT lawfully
obtained because there was NO Prosecutorial and NO Attorney General approval of
"witness immunity." Matter of Contempt of Grajedas, 515 N.W.2d 444, 452 (N.D.1994).
What Statute did Medd use to grant Moore "witness immunity" from Index #'s 30 and
56? What Medd should have said was, "Moore lied in '08, '10 and '11. We gave Moore
witness immunity to protect the GF DA's and Sheriff's Office while they ignored every
statute violation by Moore in '08 and/or by Uglem in 2010/2011."
¶26. In North Dakota, small claims court is a division of district court where cases
may be heard that involve recovery of money or cancellation of any agreement
23
involving material fraud, deception, misrepresentation or false promise. An individual
may bring a small claims suit for the recovery of money. I filed this case in small claims
to keep costs down and to keep attorney's out of it.
¶27. When Uglem moved it up to civil court the case then must be proven by a
"preponderance of the evidence." This means that the person who filed the lawsuit,
(plaintiff), must provide enough evidence to show that the defendant he or she is suing
actually committed the acts in question and that the defendant's actions or negligence
resulted in the alleged damages. In a civil suit the aggrieved party can seek economic
and non-economic reparations. Economic damages can include medical expenses, other
out-of-pocket expenses, loss of income, and the like. Non-economic damages are
intended to provide compensation for pain and suffering. In some cases, where the
wrongdoing was intentional or malicious, the court may also order punitive damages.
Punitive damages in a civil suit are intended to punish the defendant and deter them and
others from committing similar acts in the future. Judge Medd complains that I filed
"voluminous and repetitious filings." Index #56. I had to in order to "provide enough
evidence for a civil lawsuit."
¶28. The existence of actual malice by Moore was shown in many ways. As a general
rule, any competent evidence, either direct or circumstantial, that I submitted in regards
to the 2 arrests in 2008 may be shown. It proved beyond any reasonable doubt that
Moore lied and the State got what they wanted. This includes Moore's 7 threatening and
harassing calls and her prior or subsequent defamations, lies and false claims. It includes
her voluntary statements she gave to various Law Enforcement Officials, stolen mail,
24
stolen memorial money, her 3-11-08 court testimony and her 2-14-08 Affidavit petition,
etc...and all of it clearly indicates the existence of deep resentment, ill will, hatred,
and/or hostility that is directed at me. Evidence clearly shows a reckless disregard for
my due process rights not only by Law Enforcement and the GF DA's Office in 2008,
but also by Medd with his biased and prejudicial rulings. Medd gave Uglem the keys to
the back door by granting attorney's fees thru illegal means while ignoring Moore's lies.
¶29. Medd gave Uglem a do-over and mulligan with his ruling from Index #56. Uglem
stated that N.D.C.C. § 28-26-01(2) applies to the "reasonable person standard," from
his Supreme Court Appellee Brief, paragraph 21. If true, then no reasonable person
could read my briefs and supporting evidentiary material and walk away and say that
Moore did not lie. It is one blatant lie after another blatant lie by Moore that is ignored
with repugnancy by Uglem and by the District Court. This style of abusive misconduct
is exactly why due process is afforded under the 14th Amendment of the US
Constitution, which may bring a 42 U.S.C. § 1983 claim.
¶30. This conclusion is based upon the rule that the ND Supreme Court recognized
in Verry v. Murphy, 163 N.W.2d 721, 731-733 (N.D.1968) (quoting Jones on Evidence,
2d Ed., Vol. 1, Sec. 92, pp. 156-157): "Where evidence has been introduced affording
legitimate inferences going to establish the ultimate fact that the evidence is designed
to prove, and the party to be affected by the proof, with an opportunity to do so, fails
to deny or explain such facts, they may well be taken as admitted with all the effect
afforded by the inferences." Under North Dakota law, "[f]raud and deceit require
misrepresentation of facts, suppression of facts, misleading another, or promising
25
without intending to perform,"...under N.D.C.C. §§ 9-03-08 and 9-10-02, "[P]roof of
actual damage proximately caused by the misrepresentation or nondisclosure is an
essential element of a tort action for fraud and deceit."
Schneider v. Schaaf, 1999 ND 235, ¶16, 603 N.W.2d 869. N.D.C.C. § 9-10-03, damages
for deceit, provides: "[o]ne who willfully deceives another with intent to induce him to
alter his position to his injury or risk is liable for any damage which he thereby suffers."
Grandbois and Grandbois, Inc. v. City of Watford City,
2004 ND 162, ¶ 20, 685 N.W.2d 129.
¶31. So Uglem went out of the jurisdiction of the Grand Forks District Court and
went to Trail County District Court, filed documents with them on 7-21-11 and none
were filed with me. Then Sheriff Mike Crocker slips in and seized money from my
savings account on 8-5-11. Crocker then served me a writ on 8-8-11 and said I had to
reply within 10 days. Crocker did NOT tell me he took already money from my savings
account and he did NOT notify me of the 8-5-11 seizure copy he filed with the Court,
Index #86. I had no idea what a writ was or what they actually did until I discovered on
3-22-12 that my savings account was seized on 8-5-11.
¶32. The merits of this case and especially under exceptional or extraordinary
circumstances where a motion under N.D.R.Civ.P. 60(b)(6) was used in part to
void/vacate a judgment, requires justice. N.D.R.Civ.P. 60(b)(vi) can be used where the
grounds for vacating a judgment or order are within any of subdivisions (i) to (v), but
"something more" or "extraordinary" which justifies relief must be present.
Hefty v. Aldrich, 220 N.W.2d 840, 846 (N.D.1974). That subdivision of these rules
26
require a very special showing by the moving party. "In general, relief is given under
clause 6 in cases in which the judgment was obtained by the improper conduct of the
party in whose favor it was rendered or where the judgment resulted from the excusable
default of the party against whom it was directed under circumstances going beyond the
earlier clauses of the rule." Wright & Miller, Federal Practice and Procedure, Section
2864, p. 213; Wright & Miller, "special showing," under subsection 6.
Hefty v. Aldrich, supra, at 846.
¶33. Under N.D.R.Civ.P. 60(b)(iii) a court can set aside a judgment for fraud,
misrepresentation or other conduct of an adverse party. The court can also set aside a
judgment under N.D.R.Civ.P. 60(b)(vi) for any other reason justifying relief, and Rule
60(b)(6) provides an extraordinary procedure: "... an avenue for escape from the
judgment, unhampered by detailed restrictions, and the courts have used this clause in
a wide variety of situations." In re Braun, 145 N.W.2d 482, 484 (N.D.1966). What is
more repugnant to this States Judiciary and justice than having a witness repeatedly
lying in and out of court and to Law Enforcement in '08, then receiving illegal witness
immunity in '10 - '11 to protect the ongoing corruption, collusion, conspiracy and
cover up from selected officials in 2008? This selective persecution and abuse certainly
qualifies as a "special showing or an extraordinary procedure."
¶34. The inherent power of a court to vacate or otherwise grant relief from a judgment
in the interest of justice has long been recognized in this state.
Hamilton v. Hamilton, 410 N.W.2d 508, 515 (N.D.1987) (citing numerous earlier cases).
Rule 60(b) attempts to strike a proper balance between the conflicting principles that
27
litigation must be brought to an end and that justice should be done, and accordingly
N.D.R.Civ.P. 60(b)(vi) should be invoked only when extraordinary circumstances are
present. Peterson v. Peterson, 555 N.W.2d 359, 361 (N.D.1996). A motion under
N.D.R.Civ.P. 60(b)(vi) must be brought within a reasonable time.
Brakke v. Brakke, 525 N.W.2d 687, 689 (N.D.1994). What constitutes a reasonable
time is in the discretion of the trial court, keeping in mind the dictates of N.D.R.Civ.P.
Rule 12(a), and to have cases tried on the merits.
Perdue v. Sherman, 246 N.W.2d 491, 496 (N.D.1976). Medd issued an Order denying
my Motion for Stay of Execution on 8-31-11. It is generally held that a motion brought
within one year of the judgment falls within a "reasonable time" under the rule, and
these prompt motions for relief will be granted if justice requires it.
Neubauer v. Neubauer, 524 N.W.2d 593, 595 (N.D. 1994). N.D.R.Civ.P. 60(b)(vi) has
been broadly construed as a grant of ample power to a trial court to vacate a judgment
whenever that action is appropriate to accomplish justice.
Hamilton v. Hamilton, 410 N.W.2d at 518; In re Braun, 145 N.W.2d at 484. The rule
provides for relief when the movant demonstrates it would be manifestly unjust to
enforce a court order or judgment, and provides an escape from the judgment,
unhampered by detailed restrictions. In re Braun, 145 N.W.2d at 484-85. When a
judgment is so blatantly one-sided or so rankly unfair under the uncovered
circumstances that courts should not enforce it, N.D.R.Civ.P. 60(b)(vi) provides the
ultimate safety valve to avoid enforcement by vacating the judgment to accomplish
justice. Peterson, 555 N.W.2d at 362. Relief under N.D.R.CivP. 60(b)(vi) "is, by its very
28
nature, invoked to prevent hardship or injustice and thus is to be liberally construed and
applied."
¶35. The failure to follow the legal and proper procedure that is outlined in
N.D.C.C. § 28-21 violates the ND Constitution Declaration of Rights under Article 1,
Section 15. A violation of the Rules of Judicial Conduct by the judge who presides over
a case can result in the reversal of a judgment, even when the judge has no actual
knowledge of, or inadvertently overlooks, a disqualifying circumstance.
Liljeberg v. Health Services Acquisition Corp.,
486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988).
¶36. Subject matter jurisdiction by a District Court can be lost because; (1) improper
and/or invalid service of process, Helmers v. Sortino, 545 N.W.2d at 799;
Sanderson v. Walsh County, 2006 ND 83, ¶¶ 13, 17-18, 712 N.W.2d 842; (2) a Judgment
rendered in violation of Judicial Canon violations, due process, constitutional or statute
violations, will void/vacate judgment if it violates due process,
In re Estate of Jensen, 162 N.W.2d 861, 876 (N.D. 1968),
Sargent County Bank, 500 N.W.2d at 877-880,
First Nat'l Bank of Crosby v. Bjorgen, 389 N.W.2d 789, 794-796 (N.D.1986); (3) if the
court abuses its discretion, Galloway v. Galloway, 281 N.W.2d 804, 806 (N.D.1979);
(4) violation of due process, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct.1019 (1938);
(5) bias and/or prejudice by a Judge, Matter of Estate of Risovi, 429 N.W.2d at 407;(6) where service of process was NOT properly made,
Eggl v. Fleetguard, Inc., 1998 ND 166, ¶ 3, 583 N.W.2d 812; (7) where a summons,
29
warrant, affidavit of service, seizure and notification were not properly used,
State v. One Black 1989 Cadillac, 522 N.W.2d 457 (N.D. 1994); (8) a promise made
by Uglem regarding phone records and interrogatory answers without any intention
of performing it... can constitute deceit if there is no contract between the parties.
Delzer v. United Bank, 527 N.W.2d 650, 656 n. 4 (N.D. 1995) (Delzer III); (9) "fraud
destroys the validity of everything into which it enters,"
Nudd v. Burrows (1875), 91 US 426 23 Led 286, 290; "particularly when a judge
himself is a party to the fraud," Cone v. Harris (Okl.1924), 230 P. 721 723;
Windsor v. McVeigh (1876), 93 US 276 23 Led 914, 918; (10) Jurisdictional issues
were violated twice by Medd that invalidates his 8-31-11 Order. My 4-12-11 appeal
blocks Medd's Order. Index #'s 79, 80 requires jurisdiction. Index #'s 98-101
voids/vacates Judgment.
¶37. My motion to void/vacate judgment clearly points out the true facts of this case
that covers several incidents of statute violations, due process violations, judicial abuse
by the District Court, jurisdiction abuse and improper service of process violations. Why
was Uglem awarded attorney's fees/costs thru illegal means. Uglem blacked out names
and numbers in Moore's Qwest billing records and he did not identify names as I
requested in my interrogatories. This deceit was done to cover up incoming and outgoing
calls to or from Law Enforcement. Uglem's interrogatory answers were incomplete and
improper while several documents were not properly docketed with the District Court.
Uglem has NEVER proven his $150.00 per hour attorney's fees are truly legitimate.
Uglem emailed Peter Welte on 2-10-10 and reviewed a 30 page fax document. What
30
exactly did Uglem review and what did Welte and Uglem talk about? Uglem emailed
and called Ron Fischer on 3-10-10. Uglem received an email and call from Meredith
Larson in October 2010 and she told Uglem that I obtained Moore's January 2008 Qwest
phone records illegally by using a fake name. What lawyer fee does Uglem charge other
clients? His fee statement is full of frivolous and excessive charges. The excessive billing
hours of time and labor combined with prior acts of deception clearly indicates there
was obstruction by Uglem to pad his expenses and Moore's 2-9-10 actions certainly
indicates deception, and a Contempt of Court is defined as any act calculated to
embarrass, hinder, or obstruct a court in the administration of justice, or calculated to
lessen its authority or dignity.
Harger v. Harger, 2002 ND 76, ¶ 14, 644 N.W.2d 182. I request attorney's fees under
Jorgenson v. Ratajczak, 1999 ND 65, ¶ 26, 592 N.W.2d 527;
Kjonaas v. Kjonaas, 1999 ND 50, ¶ 19, 590 N.W.2d 440 because Uglem intentionally
obstructed judicial proceedings under N.D.C.C. § 12.1-10-02.1 by failing to produce
exculpatory and discovery material and improperly answering interrogatories. No
proper notice regarding the 10-18-10 hearing now also includes jurisdiction abuse and
improper service from the events that occurred from 7-21-11 to 9-15-11 where Uglem
clearly violated N.D.R.Prof.Conduct 3.3(a)(1)(3), 3.4(a), and 8.4(a)(b)(c)(d)(f)(g).
In re Disciplinary Action Against McDonald, 2000 ND 87, ¶¶ 13-14, 609 N.W.2d 418.
A lawyer should never seek to mislead the judge by any artifice or false statement of fact
of law that falls under N.D.C.C. § 27-13-01(6).
Disciplinary Bd. v. Lamont, 1997 ND 63, ¶¶ 16-19, 561 N.W.2d 650;
31
In re Kaiser, 484 N.W.2d 102, 108-109 (N.D. 1992).
¶38. The District Court abused its discretion by violating N.D.C.C. § 28-26-01(2).
Larson v. Baer, 418 N.W.2d 282, 290 (N.D. 1988). Injustice has occurred to me because
it means something which is "obviously flawed and/or unfair" or "shocking to the
conscience." It means unfairness that is direct, obvious, and observable. A person is
denied due process when defects in the procedure employed might lead to a denial of
justice. State v. Hilling, 219 N.W.2d 164 (N.D.1974). The purpose of a summary
judgment is whether the evidence presents a sufficient disagreement to require a
submission to a jury or whether it is so one-sided that a party must prevail as a matter
of law. I did not fail to show that there is a genuine issue of material fact. A fact is
material if it might affect the outcome of the case and a factual dispute is genuine if
the evidence presented is such that a reasonable jury could return a verdict for the non-
moving party. A mere trace of evidence supporting the non-movant's position is
insufficient. Instead, the facts MUST generate evidence from which a jury could
reasonably find for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252, (1986).
¶39. Moore was NOT entitled to witness immunity because of malice. Moore did not
tell the truth concerning her 2-14-08 DCRO petition or when she was cross examined on
3-11-08 by John Goff. The State did NOT represent Moore at the 3-11-08 hearing.
Moore and Uglem continue to deceive, mislead and deny the truth that is found in
various documents listed in Index #'s 1-8, 12, 17, 24, 29, 36, 37, 52, 68, and 79. Their
deception and deceit in this case goes above and beyond the scope of what is legal,
32
moral and justified for a favorable ruling by the court. Ordinarily, determinations of
actual malice and abuse of qualified privileges are questions of fact for a jury to
determine. N.D.C.C. § 14-02-05(4) defines a privileged communication as one made
"[b]y a fair and true report, without malice, of a judicial, legislative, or other public
official proceeding, or of anything said in the course thereof." Moore's blatant lies
repeatedly shows up in every GF Sheriff's Deputy report, starting from 1-28-08 and
continuing thru 6-5-08. Moore's January 2008 Qwest phone record clearly indicates
she harassed me on 1-2-08 and 1-3-08. There simply is no proof that I placed a call on
my dime and spoke to Moore at any time from 12-22-07 to 2-13-08.
¶40. The summary judgment and witness immunity was illegally granted to Moore by
Medd thru Uglem that totally distorts and invalidates the judicial fact finding process.
My due process was obviously violated. Medd was protecting Moore in 2010-2012
while the GF DA's Office and Sheriff's Officials refused to filed disorderly conduct,
harassment charges, perjury charges, etc...for Moore's lies and false information she
gave to Law Enforcement. Medd refuses to acknowledge these facts. Medd refused to
follow the law and statute violations by Uglem and Moore.
¶41. This corruption, collusion, conspiracy and cover up is documented rather well by
me and everything I have said is backed up by evidence. It is impossible for me to get a
fair and impartial hearing Judge in the State of North Dakota. The duty and obligation of
the court is to do justice based on the true evidentiary facts of law, the US and ND
Constitution, applicable statutes and civil procedure rules. N.D.R.Civ.P. 60(b)(vi) is
available for just such a rare occasion and exceptional circumstance to serve justice.
33
Crawford v. Crawford, 524 N.W.2d 833 (N.D.1994). Res judicata can't be applied
because my Appeal Briefs and Appendix and Reply Brief were filed by 7-2-11. What
Uglem, Crocker and the District Courts including the ND Supreme Court did between
7-21-11 and 9-15-11, clearly points in the direction of serious due process violations.
I have filed upwards of +27 or more Judicial and Disciplinary complaints that were all
conveniently dismissed in several related cases. No valid or legal reason was ever given
to me as to why they were dismissed. When proper evidence exists that proves all +27
complaints were legitimate, the obvious conclusion points to collusion, conspiracy,
corruption and cover up by the State to cause as much financial harm to me as possible.
¶42. On 7-14-09 I submitted an 18 page complaint to Judge Medd concerning the abuse
and deception by Moore and various Officials within the GF Sheriff's Office and the
GF DA's Office. Medd clearly violated N.D. Code Jud. Conduct 2A, 3B(5) and 3E(1)(a)
because of his prior knowledge of this conspiracy, collusion, and cover up. Medd
replied to me on 7-16-09. A copy of that complaint to Judge Medd was filed in GF Co.
Case No. 18-10-C-294 on 6-22-10, Index #58, Exhibit 12, and Medd's reply is found in
Index #58, Exhibit 6, p.17. The July 2009 event occurred before I filed my 1-28-10
Moore lawsuit. Medd was obviously biased, impartial and prejudicial against me in
2010-2012 because of the formal complaint I filed in July 2009. The State is biased
and prejudicial against me for exposing the corruption, collusion, conspiracy and
cover up. Evidence has now been presented that indicates some extrajudicial source of
bias and/or partiality has occurred. Berger v. United States,
255 U.S. 22, 31, 36, 35, 41 S.Ct. 230, 234, 233, 65 L.Ed. 481 (1927). Medd received
34
and acknowledged my complaint from July 2009 because he was the presiding Judge
for District Court in Grand Forks County.
Issue II. Was there a conflict of interest with Judge Jahnke regarding prejudice,
bias or impartiality when he issued his Memorandum Decision &
Order dated 8-23-12 denying my Motion to Void/Vacate Judgment?
¶43. I believe Judge Jahnke presided in my ITV appearance in the 1st arrest from
2-27-08 in GF Co. Case No. 18-08-K-417. Jahnke presided in the ITV appearance in
the 2nd arrest in GF. Co. Case No. 18-08-K-714 on 4-14-08. Jahnke recused himself
thru Judge Medd in GF Co. Case Nos. 18-08-K-417 and 18-08-K-714 on 2-12-12
regarding my post-conviction relief. Jahnke recused himself in GF Co. Case Nos.
18-10-C-294, 295 and 296, Index #'s 11, 13, and 13. Jahnke quickly recused himself
in GF Co. Crim. Case No. 18-07-K-02878 on 1-16-08 after receiving a personal letter
from Heather Eastling on or about 1-15-08. Chris Moore is the mother to Eastling and
Jahnke should have recused himself instead of denying my motion on 8-23-12. Jahnke
ignored numerous relevant factors contrary to justice, due process, ND Statute and Civil
Rules violations, US and ND Constitutional violations, that is eloquently stated in part;
"The procedure provided by [N.D.R.Civ.P.] Rule 60(b) is not a substitute for an appeal;
the Rule should be liberally construed for the purpose of doing substantial justice;
whether, although the motion is made within the maximum time, if any, provided by the
Rule, the motion is made within a reasonable time; if relief is sought from a judgment of
dismissal where there has been no consideration of the merits, whether in the particular
case the interest of deciding cases on the merits outweighs the interest in orderly
procedure and in the finality of judgments, and whether there is merit in the defense or
35
claim, as the case may be and any other factor that is relevant to the justice of the
judgment under attack." In re Estate of Jensen, 162 N.W.2d 861, 875-876 (N.D.1968),
quoting 7 J. Moore, Federal Practice ¶ 60.19, at 225-26 (2d ed. 1985). A judge shall
disqualify himself in a proceeding in which the judge's impartiality might reasonably be
questioned. Baier v. Hampton, 440 N.W.2d at 715.
CONCLUSION
¶44. The Court should have realized improper service of process and no jurisdiction
from the events that occurred between 7-21-11 and 9-15-11. In the interests of justice
and due process, US and ND Constitutional and ND Statute violations did occur. My
motion to void/vacate judgment should be granted to me and all attorney's fees/costs
rewarded to Uglem, should be overturned and returned back to me with interest, and the
summary judgment should be overturned and vacated immediately. I request double
fees/costs for this appeal.
| Respectfully submitted this __ day of November, 2012. |
| Randy Holkesvig |
| P.O. Box 82 |
| Fargo, ND 58107-0082 |
| Cell # 701-430-0914 |