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952 F.Supp. 647
Daniel J. McCANN, Plaintiff,
Ronnie GREENWAY, et al., Defendants.
United States District Court,
Jan. 15, 1997.
Daniel J. McCann, Golden City, MO, pro se. Jeremiah (Jay) Nixon, Missouri
Attorney General, Jefferson City,
MO, Richard S. Scott, Lamar, MO, Harold F. Glass, Springfield, MO, for defendants.
MEMORANDUM OPINION AND ORDER
WHIPPLE, District Judge. Pending before the Court is the motion of Defendants
Greenway, Percy, Winslow, and Missouri Division of Family Services ("DFS")
and the motion of Defendants James Bickel and his law firm, Russell, Brown,
Bickel & Breckenridge to dismiss this action, among other grounds, pursuant
to Federal Rule of Civil Procedure 12(b)(6) for Plaintiff Daniel J. McCann's
failure to state a claim upon which relief can be granted. The twenty-five-page
complaint in this action poses a number of problems, including the fact that
over half of those pages merely list excerpts from various legal authorities,
the relevance of which are not explained. Essentially, however, Mr. McCann
appears to be suing everybody involved in a recent state court action in which
Mr. McCann was divested of custody of his child or children for their conspiracy
in the matter. His main complaint is that the state court did not have jurisdiction
over the custody dispute because the court flew a "maritime flag of war",
which invested the court with admiralty jurisdiction to the exclusion of its
lawful jurisdiction over family law disputes.
Defendants Greenway, Percy, Winslow, and DFS are a juvenile officer for the
Circuit Court of Vernon County, two employees of DFS, and DFS itself, all of
whom were involved in the custody hearing. Defendants James Bickel and his
law firm, Russell, Brown, Bickel & Breckenridge represented Jalene McCann,
Plaintiff's ex-wife, at the hearing on a motion for modification. Separately,
these Defendants raise a number of solid grounds on which to dismiss, all of
which could be addressed through reasoned (if ultimately unconvincing) argument.
Mr. McCann, however, has chosen a different route. In nearly identical motions
opposing Defendants' motions, Mr. McCann asks for declaratory relief and summary
judgment, "refuses" Defendants' motions and briefs, "refuses" the
term "pro se" being attached to him, realleges that Defendants were
part of a fraud and conspiracy to deny him his constitutional rights at his
hearing, and claims that Defendants's silence in the face of these deprivations
controverted their oaths of office, which, naturally, rendered those oaths
perjured. The actual deprivation of constitutional rights is best left to Mr.
McCann's own prose: 7. The Defendants witnessed the use of an "American
maritime flag of war" in the court room to establish the jurisdiction
in the bar as a war sanctuary, under the American "War Powers Act".
8. This flag is of stars and stripes with gold fringe, and or gold or yellow
rope or braid, or gold eagle on top of the flag pole, placed in the bar to
deprive the proper parties in the bar, to any action of and not limited to,
the deprivation of all U.S. Constitutional rights. This "maritime flag
of War", is used with "intent" [which is proper element to establish "perjury
of oath"], as the proper authorities have not charged, anyone of the defendants
titled above, to date, with the "Deprivation of rights under color of
law" or the "policy and custom" at [title 42 U.S.C.A. 1983,
chapter 21, at notes 319 and 337], with "intent" of the high standards
that all officers of the court enjoy, and did "fraud" the court of
its immunity from any objections or charges that may arise by the proper party
who's rights were violated.
* * * * * *
10) The "necessary element", being the "maritime flag of war",
is with the "knowledge" (title 42 U.S.C.A. 1986) of the Defendant
judge andor court. The judge upon entering the court is responsible as the "fiduciary" of
the court, to control the "color of law" of the court. The plaintiff
has requested of the judge to "replace" the "America war flag" with
an "American flag of peace"..... 11) The sovereignty that the plaintiff
is declaring is under "the American flag of peace" of "the United
States of America".
* * * * * *
18) Policies and customs, have changed because one citizen stood up for the
truth and what was right. The "maritime flag"--abuse--will be tested
by this case..... McCann Br. in Opp'n to Defs. Greenway, Percy, Winslow and
DFS's Mot. to Dismiss (all capital letters in original; language in brackets
in original); see also McCann Br. in Opp'n to Defs. James Bickel and Russell,
Brown, Bickel & Breckenridge's Mot. to Dismiss (identical language in parts
with negligible variations in others). To drive home the point, Mr. McCann
has pasted on the front page of each of his motions a flag sticker which apparently
represents the American flag of peace, it being without the offending fringe.
Under that flag is the caption:
Incorporation Case No. 96-50380CV-SW-1
"Motion to Dismiss"
for "fraud" F.R.C.P. 9(b) and F.R.C.P. 12(b)(6) failed claim "motion",
under the jurisdiction of the American flag of peace of the "United States
of America" no jurisdiction of maritime or war will be allowed in this
case incorporated case no. 96-5038-CV-SW-1. [FN1]
FN1. Mr. McCann must have the same legal advisor as the plaintiff in Leverenz
v. Torluemlu, 1996 WL 341468, No. 96 C 2886 (N.D.Ill. June 17, 1996) (remarking
upon the "bizarre" pleading entitled "Motion: Notice of Refusal
for Fraud, Pursuant to F.R.C.P. Rule 9(b), Rule 10(a), and Rule 12(b)(1, 2,
3, 4, 5, 6, 7,) This case is under the jurisdiction of the American Flag of
Peace (Title 4 USC 1) of the United States of America. No Admiralty or Maritime
jurisdiction will be allowed in the jurisdiction of this case.").
McCann Br. in Opp'n to Defs. Greenway, Percy, Winslow and DFS's Mot. to Dismiss
(all capital letters in original); see also McCann Br. in Opp'n to Defs. James
Bickel and Russell, Brown, Bickel & Breckenridge's Mot. to Dismiss (identical
language in parts with negligible variations in others). Mr. McCann feels that
the fringed flag in some way restricted the state court's jurisdiction to hold
a custody hearing that disadvantaged him. He stakes his suit against these
Defendants upon such a claim, because this is his sole argument against dismissal.
STANDARD FOR MOTION TO DISMISS
"In considering a motion to dismiss, we must assume that all the facts
alleged in the complaint are true. The complaint must be liberally construed
in the light most favorable to the plaintiff. A Rule 12(b)(6) motion to dismiss
a complaint should not be granted unless it appears beyond a doubt that the
plaintiff can prove no set of facts which would entitle the plaintiff to relief." Coleman
v. Watt, 40 F.3d 255, 258 (8th Cir.1994) (citations omitted). Pro se complaints
are entitled to a liberal construction. Edgington v. Missouri Dept. of Corrections,
52 F.3d 777, 779 (8th Cir.1995).
The issue before the Court is whether action taken by a state court during
a child custody hearing while the court's flag is adorned with gold fringe
idly hanging or a gold eagle vigilantly peering atop the flagpole somehow violates
a litigant's rights under United States Constitution, and whether the Defendants,
various child welfare workers,the state child welfare agency, the adverse litigant's
counsel and his law firm, are liable for sitting mute without protest or action
to cure. Before issuing its ruling, the Court must disclose that its courtroom
and chambers each sport an American flag with gold fringe and a gold eagle
atop the respective flagpoles. The Court declines to recuse itself, however,
for reasons that become obvious below. Other Courts have considered Mr. McCann's
argument or arguments similar in nature or effect. Those courts have labeled
the position as "frivolous", [FN2] "totally frivolous",
[FN3] "preposterous", [FN4] and "a ... really unintelligible
assertion[ ]". [FN5] This Court agrees. But in the interest of killing
this argument for good, and to facilitate appellate review, the Court will
examine the law of the flag.
FN2. United States v. Greenstreet, 912 F.Supp. 224, 229 (N.D.Tex.1996) (rejecting
argument that a federal court is limited to admiralty jurisdiction because
it displays a fringed flag).
FN3. Vella v. McCammon, 671 F.Supp. 1128, 1129 (S.D.Tex.1987) (rejecting argument
that a federal court lacks jurisdiction to impose penalties for civil and criminal
contempt because its flag is fringed).
FN4. Commonwealth v. Appel, 438 Pa.Super. 214, 652 A.2d 341, 343 (1994) (rejecting
argument that a fringed flag in a state courtroom conferred on the court admiralty
or maritime jurisdiction).
FN5. Leverenz v. Torluemlu, 1996 WL 272538, at *1 & n. 3 (N.D.Ill. May
20, 1996) (noting, where the complaint named as defendants a judge, a state
attorney general, a doctor, several police officers from different communities,
and 600 unnamed John and Jane Does, that "[s]ome idea of what is to come
is provided by this legend that Leverenz attachesto his "Complaint" heading:
[P] This case is under the jurisdiction of the American flag of peace of the
United States of America. No flags of war will serve this case jurisdiction.").
The Court recognizes that standard practice in the Eighth Circuit is to refrain
from citing unpublished opinions, see Plan for Publication of Opinions, reprinted
inEighth Circuit Rules and Procedures, Missouri Rules of Court: State and Federal
(West 1996), unless "no published opinion would serve as well", National
Auto. Dealers & Assocs. Retirement Trust v. Arbeitman, 89 F.3d 496, 502
(8th Cir.1996). The Leverenz court's colorful use of language fits the exception.
See also supra note 1 (quoting a later motion in the Leverenz case as "bizarre").
The United States Code provides that "[t]he flag of the United States
shall be thirteen horizontal stripes, alternate red and white; and the union
of the flag shall be forty-eight stars, white in a blue field", 4 U.S.C.
s 1, with one star added for each additional state, 4 U.S.C. s 2. In the 1920s,
Army Regulation 260-10 required troops in the field to fly flags with a yellow
silk fringe. See 34 Op.Att'y Gen. 483, 484-85 (1925). The Adjutant General
of the Army believed that [t]he War Department ... knows of no law which either
requires or prohibits the placing of a fringe on the flag of the United States.
No Act of Congress or Executive order has been found bearing on the question.
In flag manufacture a fringe is not considered to be a part of the flag, and
it is without heraldic significance. In the common use of the word it is a
fringe and not a border. Ancient custom sanctions the use of fringe on the
regimental colors and standards, but there seems to be no good reason or precedent
for its use on other flags. Id. at 485 (quoting an untitled circular of the
Adjutant General dated Mar. 28, 1924). The United States Attorney General concurred,
noting that the presence of a fringe on the flag "can not be said to constitute
an unauthorized addition to the design prescribed by statute". Id. The
President may, however, determine whether the Army or Navy display or remove
fringes from their flags or standards. Id. at 485-86. The latest effective
executive order, signed by President Eisenhower, himself a military man, did
not address this issue. See Executive Order No. 10834, 24 Fed.Reg. 6865 (1959),
reprinted in 4 U.S.C.A. s 1 notes (1985). Therefore, Mr. McCann's claims against
the above-listed Defendants must be dismissed because his factual predicate
is incorrect as a matter of law. Even if the Army or Navy do display United
States flags surrounded by yellow fringe, the presence of yellow fringe does
not necessarily turn every such flag into a flag of war. Far from it: in the
words of the Adjutant General of the Army, "[i]n flag manufacture a fringe
is not considered to be a part of the flag, and it is without heraldic significance." 34
Op.Att'y Gen. at 485. If fringe attached to the flag is of no heraldic significance,
the same is true a fortiori of an eagle gracing the flagpole.
Nor are the fringe or the eagle of any legal significance. Even were Mr. McCann
to prove that yellow fringe or a flagpole eagle converted the state court's
United States flag to a maritime flag of war, the Court cannot fathom how
the display of a maritime war flag could limit the state court's jurisdiction
to take his child away from him. Jurisdiction is a matter of law, statute,
and constitution, not a child's game wherein one's power is magnified or
diminished by the display of some magic talisman. [FN6]
FN6. Cf. Moeller v. D'Arrigo, 163 F.R.D. 489, 491 & n. 1 (E.D.Va.1995)
(dismissing as frivolous a motion alleging that state court had no jurisdiction
over ongoing probate proceeding because it "display[ed] the federal and
state military flags" such that "Admiralty jurisdiction prevail[ed]" in
the state court, and rejecting notion that federal district courts have
jurisdiction over matters arising under natural law when they fly a flag
of the United States).
Because Mr. McCann offers no other reason why the state court lacked jurisdiction
to hear the custody dispute, "it appears beyond a doubt that [Mr. McCann]
can prove no set of facts which would entitle the plaintiff to relief." Coleman
v. Watt, 40 F.3d at 258 (citations omitted). Consequently, his claims against
the above-listed Defendants must be dismissed. Furthermore, Mr. McCann is hereby
warned that the Court will reward future frivolous arguments with monetary
sanctions. This warning will serve as notice to Mr. McCann regarding his behavior
in all the cases he has before this Court. Finally, to ensure that the remaining
defendants are not similarly harassed by Mr. McCann, the Court will require
him to file a pleading, within two weeks from this order, setting out with
particularity his claims against each remaining defendant and a short citation
to the legal authority supporting each claim. Failure to do so will result
in the dismissal of each defendant against whom Mr. McCann cannot provide a
nonfrivolous ground for relief.
For the reasons given above, it is hereby ORDERED that the motions of Defendants
Greenway, Percy, Winslow, Missouri Division of Family Services, James Bickel,
and the law firm Russell, Brown, Bickel & Breckenridge are GRANTED and
these Defendants are hereby DISMISSED from this action WITH PREJUDICE. It is
further ORDERED that Plaintiff McCann's motions for declaratory relief and
summary judgment against these Defendants are DENIED. It is further ORDERED
that within two weeks of the date of this order, Plaintiff shall file a pleading
setting out with particularity his claims against each remaining defendant
and a short citation to legal authority supporting each claim. Failure to do
so will result in dismissal of each defendant for whom Mr. McCann cannot provide
a nonfrivolous ground for relief. It is finally ORDERED that a true copy of
this order be sent by certified mail to Mr. McCann at the address given on
to Tax Protestor Exhibit