STATE OF NEW MEXICO
COUNTY OF BERNALILLO
IN THE SECOND JUDICIAL DISTRICT COURT
ZACHERY BINGHAM
Plaintiff,
No. CV-2008-12023 consolidated with
v. No. CV-2008-12146
DAVID DERRINGER,
Defendant,
DERRINGER’S RESPONSE IN OPPOSITION TO BINGHAM’S REQUEST
FOR ENTRY OF RULE 1-041 ORDERS UPON WITHDRAWAL
OF CERTAIN DERRINGER CLAIMS
COMES NOW David Derringer representing himself Pro-Se with Derringer’s Response in Opposition to Bingham’s Request For Entry of Rule 1-041 Orders Upon Withdrawal Of Certain Derringer Claims.
The entire premise of this pleading, if it were only to request a formal withdrawal of some of the Derringer claims is “mute” for the reason that in the Deposition of September 9, 2010, with Judge Huling present, Derringer did withdraw “loss of income”, “emotional distress and mental anguish” and requested of this Court that Derringer be allowed to file a formal pleading to that effect. Judge Huling, at that time, directed Derringer to state the withdrawal in the record of the Deposition and clearly stated that in doing so “on court record” that was all that was needed, and no further pleadings need apply. Bingham and Kalm do not come to this court except with “dirty hands” for this pleading is simply tailored not to gain some formal withdrawal, but to inundate the court record and bias this Judge incessantly with additional bogus information, slandering remarks against Derringer and other “inappropriate” and “scandalous” material”, “accusations”, and “allegations” unfounded and unsupported, and with “outside information” that this court cannot make decisions in other cases or use other cases to render a decision about the matters in this case. Matter of Charge of Judicial Misconduct or Disability, 39 F.3d 374, 309, US App. DC 97 “Judge in adversarial judicial proceeding...who reaches outside of record to decide case defiles process.” Clearly Derringer is not receiving either fairness or justice here, as no American has to endure and tolerate this type of “terrorism” and mis-use of the court system by attorney Thomas Kalm and Zachary Bingham. Congress never intended the Court systems to be used to destroy lives, persecute, destroy foundations of society, destroy rights of privacy, and other “gang” tactics by all attorneys attacking Pro-Se parties from different suits, to use their ruses, intimidation, false information, and inundation of the records with slander to defeat a party in legal litigation.
The “abuse” and “terrorism” here has progressed into blatant “fraud” and “criminal extortion” by Bingham, attorney Kalm and the conspiracy of Kalm with Marchiondo. In the beginning, on November 11, 2008 Derringer called the APD to retrieve his stolen vehicle Jeep from Zachary Bingham, and later filed a Civil Suit CV-2008-12146. Without knowledge by David Derringer, prior to that filing, Zachary Bingham filed a Civil Suit CV-2008-12023, and the courts later consolidated these two suits. It was always a quandary to figure out why Bingham had sued Derringer when Bingham had defrauded Derringer and New Mexico Motor Vehicle Department (MVD) to get another copy of the title to the Jeep Bingham had previously legally signed to David Derringer, and gave legal ownership to David Derringer on September 25, 2008, while at the same time transferring the free and clear Title to Derringer’s traded vehicle M35A2 to his own name; thus effectively keeping both vehicles of the trade agreement, by lying to MVD saying his “title was lost”, to gain another title to Bingham’s Jeep and thus having “all” of the assets of the trade, with Derringer having nothing. In a latest pleading to the court dated September 3, 2010, Zachary Bingham and his co-conspirator attorney Thomas Kalm make it clear to the court that they mis-used the Civil Court in “fraud” to “avoid” the criminal prosecution by APD. Page 7 Line 6 “Zach had to file suit to avoid arrest and resolve the issue civilly to satisfy APD”. Accordingly, defrauding the Civil Courts to stop criminal courts is a criminal act of court fraud, and mis-use of the courts. Martinez v. Winner, 771 F.2d 424 opinion modified on denial of rehearing 778 F.2d 553, cert granted, vacated. In the action of Bingham v. Derringer/Derringer v. Bingham, the Court Ordered a “free” mediation by court Order of August 5, 2010 [as part of Settlement Week Program 2010] (Exhibit A) for Bingham and Derringer to go to the offices of William Marchiondo to act as mediator to see if the case could be settled under Local Rule LR2-602, (Exhibit B “copy of LR2-602 Settlement Facilitation Program attached”) wherein it is stipulated in (M) that no settlement facilitator will receive any compensation. Additionally, under the Second Judicial District Court “Settlement Facilitation Program” (Exhibit C) it is made clear in #6 Compensation shall not be required for any settlement facilitator for a settlement conference conducted as part of ‘Settlement Week’”. It was clear in the two Marchiondo letters of August 12, 2010, no payment from Derringer was required. (Exhibits D [2 letters]) On September 27, 2010 attorney Thomas Kalm sends Judge Huling a personal letter with copy to David Derringer, with a copy of Order to be signed “Order Holding David Derringer in Contempt of Court” (Exhibits E) which “threatens David Derringer under duress and criminal extortion that he will be illegally jailed at BCDC if David Derringer does not pay an amount not due to William Marchiondo, (attorney Thomas Kalm’s friend and co-conspirator in the mediation of August 27, 2010). In this “proposed Order”, attempts were made to force Derringer under threat of incarceration to pay amounts of money to another for personal gain that are not owed. Jones ET UX v. Alfred H. Mayer Co. ET AL, certiorari to the United States Court of Appeals for the Eighth Circuit, No. 645. These acts are criminal extortion, fraud to the courts and mis-use of threats, intimidation and “obstruction of justice” to persecute a Pro-Se party and instill fear and use “terrorism” because David Derringer, in the mediation of August 27, 2010, did not submit to the cussing, threats, intimidation, gestapo and Italian Mafia tactics of William Marchiondo to make a “settlement” for Zachary Bingham that was attempted to be forced on David Derringer in the settlement conference on August 27, 2010. In “retaliation” William Marchiondo made a nasty report to the court to assist attorney Kalm, his friend, to bias the Judge, and win this case against a Pro-Se party.
Bingham and attorney Kalm have “increased” their filings to this court [recall that attorney Kalm is “pro-bono” by his own admission] without court permission pursuant against the Order of the Court of September 9, 2010 that stated: (3) No additional motions shall be filed by either party without leave of the Court. And: During the deposition on court record Judge Huling stated: on “Page 52 lines 4, 5, and 6: “I don’t want anything else filed without leave of the court at this point”. Judge Huling did also state at that same time in the Deposition of September 9, 2010, that David Derringer has a right for “opportunity to be heard” and can respond to all of the filings of Bingham and attorney Kalm. This “inundation” of the court requiring Derringer’s time and resources to file responses take away valuable time and money that is to be used solely at this late date to prepare for a trial on the merits on October 25, 2010, wherein today is October 6, 2010. If sanctions are not levied against Bingham and Kalm for this behavior against court Orders and against Rule 11, this court has no definition except to exhaust a pro-se party and force Derringer’s submission to the “terrorism” of attorneys that have no fear of sanctions, disbarment, or repercussions from the courts, no matter how much they violate Orders, abuse the system and persecute litigants without any “discipline” by either the Judges or the New Mexico Disciplinary Board (that is shown to do nothing but “protect” errant and unethical attorneys). Bingham and Kalm now numerous time defied this court’s orders, saturating this court record with mis-information of Derringer, other third parties and other law suits, so as to bias and prejudice this Judge prior to trial of this instant case and also with other court cases involving Derringer, settled and not settled; but all having nothing to do with this matter and which cannot be used to make any decision about the facts in this case. Bingham and Kalm have “attacked”, “terrorized”, “threatened”, “intimidated”, “slandered”, “maligned”, “made false accusations”, “made false representations”, made false allegations”, “made false and misleading information part of this court’s record”, and other outrageous, fictitious, outlandish, scandalous, inflammatory remarks, innuendoes, false claims, against Derringer, third parties not subject to or part of this suit, and simply “will not stop” as the court simply allows Derringer to be “terrorized” and slandered in “ABUSE OF PRIVILEGE” without stepping in to control, punish, sanction, or otherwise muzzle an out-of-control attorney Thomas Kalm with his “smoke and mirrors”, also doing indeed “criminal acts” against Derringer of fraud, slander, extortion, harassment, and “attorney terrorism” well outside of the Code of Professional Conduct, without redress. Kleiner v. First National Bank of Atlanta, 751 F.2d 1193. This is not a Salem, Massachusetts “witch hunt” here for Derringer by the Judicial system of government, and if it is, that is disgusting for American Judges to defeat the United States in such a manner. Matter of Davis, 40BR 163 The deceit and gross and negligent mis-representation here is extreme. Sims v. Craig, 96 Nm 33, 627 P.2d 875 (1981); Kevlik v. Goldstein, 724 F.2d 844. Bingham and Kalm’s conduct is intentionally fraudulent and misleading against Derringer to serve the purpose to inundate this court’s record with “untruths” so as to bias this judge, and to saturate this court record for the other “gang” members of attorneys opposing Derringer in other suits can then attempt to use this “mis-information” and slander in their own suits to defeat Derringer by mis-use of other courts. Sachs v. Board of Trustees, Etc. 89 NM 712, 557 P.2d 1170 91984). This “abuse of process” and gang techniques of many attorneys to attack the same litigant in other suits by use of each other’s defamation and abuse of the system is deplorable that any justice can simply stand by and watch this happen to a litigant. Farmer’s Gin Company et al v. J.A. Ward et al, No. 7322 Supreme Court of New Mexico January 27, 1964. “An abuse of process arises when there has been a perversion of court processes to accomplish some end with the process was not intended by law to accomplish, or which compels the party against whom it has been used to do some collateral thing which he could not legally and regularly be compelled to do.” Pimentel v. Houk, 101 Cal. App.2d 884, 226 P.2d 739.
SLANDER AND MIS-INFORMATION IN COURT RECORD AGAINST COURT ORDERS MEANT FOR BIAS, PREJUDICE AND DEFAMATION IN “ABUSE OF PRIVILEGE” BY ATTORNEY THOMAS KALM
1) In this court record, it is now clearly shown that this “case” has moved from the merits of Bingham v. Derringer and Derringer v. Bingham in a “breach of contract” suit involving facts and evidence as to Bingham’s breach of contract and fraud; to a “takeover” by attorney Kalm to win this case in an ego based rage, to keep a Pro-Se party from defeating an attorney in court. This encompasses now pleadings not meant to further the facts of the case, but deliberate fraud, slander, mud slinging, attacking third parties, seeking money unfounded, persecuting Derringer for representing himself Pro-Se, violating Derringer’s rights under Constitution and state and federal statutes, attempts to mis-use the courts and biased case laws to prevent due process and equal protection, persecuting Derringer’s living conditions and way of life, inundating the court records with lies about Derringer and mis-representations, attempting to bias and prejudice the judge against Derringer, attempting to subvert the judge and attempted to conspire to precipitate violations of Oath and Constitution, and defying and ignoring all of the court’s orders not to include any cases outside of this case and to leave Derringer’s family, friends and relationships alone.
2) Attorney Kalm is an “opportunist” like a coyote. Kalm’s methodology is not unlike when a chicken gets hurt in the pen the other chickens kill it by pecking it to death. In a quote from Winston Churchill, 1898: "In one respect a cavalry charge is very like ordinary life. So long as you are all right, firmly in your saddle, your horse in hand, and well armed, lots of enemies will give you wide berth. But as soon as you have lost a stirrup, have a rein cut, have dropped your weapon, are wounded, or your horse is wounded, then is the moment when from all quarters enemies rush upon you". Derringer is homeless and perceived prey for the unscrupulous predation of Thomas Kalm and Zachary Bingham. According to Kalm, Derringer has no right to fight back, so “orders” to stop Derringer from litigation take away the playing field except for Kalm’s use.
3) This case is only about a breach of a written and legal binding contract for the trade of two vehicles and repairs to one between Zachary Bingham and David Derringer. This matter is not a trial on David Derringer’s life, family, friends, or relationships, not a trial on how much sun tan or what clothes Derringer wears, whom he knows, or what Derringer does with each minute of his time, not a trial on Derringer’s personality or beliefs, not a trial on Derringer’s marital status, not a trial on Derringer’s mental ability, and not a trial on whether or not Derringer can represent himself Pro-Se in a court of the United States as mandated under the US Code Title 42 Section 1981(a) and Constitution.
4) Attorney Kalm has resorted to an onslaught of defamation of Derringer’s character, mis-information as to the facts and litigation of other suits by and against Derringer, to bias this court, and to seek destruction of Derringer at any time thereafter in any court of law, and to ruin Derringer’s life, relationships and future function in society. To this end, attorney Kalm has sought out and conspired and conferred with other attorneys in opposition against Derringer in other suits and “formulated” a plan to stop Derringer from ever using the courts of the United States so as to win this instant case and to attempt to prevent any further suits against both Bingham and attorney Kalm, wherein Kalm knows he is liable personally for some of the damage he is causing against Derringer at the present time. In re Rexplore Inc. Securities Litigation, 685 F. Supp. 1132 “ND Cal. 1988. Kalm hopes that if he can convince a Judge to violate his/her oath and conduct treason and sedition against the Constitution to bar Derringer from the courts, he will protect himself and become a “hero” in attorney circles for stopping a Pro-Se person from use of the United States Court system. This methodology is “both criminal harassment” and illegal abuse of the court systems, defeating any claim of “immunity” by an attorney as well as “abuse of privilege” to slander someone in the court record and claim it was necessary in the functioning of the case itself. Hail v. Hollywood Credit Clothing Company, DC Municipal app. 147 A.2d 866.; Bookout v. Griffin, 97 NM 336, 639 P.2d 1190 (1982).; Spellens. V. Spellens, 49 Cal.2d 210, 317 P.2d 613.
WHAT THIS LAW SUIT IS ABOUT
1. BREACH OF CONTRACT:
1) Bingham made a legal, written and binding contract to trade vehicles and do extreme repairs on the vehicle traded to Derringer with a deadline on delivery.
2) Both parties voluntarily traded signed titles as function of the written contract that was sold “as is where is” with no clauses for recission or redemption.
3) Derringer honored his portion of the contract in entirety by signing over the free and clear title to the Derringer vehicle and giving Bingham complete legal access to possession of the Derringer vehicle.
4) Bingham never performed on his written contract to make any repairs to the vehicle traded to Derringer, and at all times kept physical possession of the Derringer vehicle gained in the trade.
5) Bingham then after the trade and written contract defrauded Derringer by defrauding MVD to lie to MVD that he had “lost” his title already signed over to Derringer, and thus by fraud obtained another title to the traded vehicle to Derringer and “stole back” the vehicle, leaving Derringer with nothing of value; then admittedly sued Derringer just to “avoid” the criminal prosecution by APD.
6) CRIMINAL FRAUD AGAINST DERRINGER AND MVD, AND GRAND LARCENY AGAINST DERRINGER IN STEALING BACK A VEHICLE VALUED AT $1,800.00
7) Bingham defrauded Derringer by defrauding MVD to lie to MVD that he had “lost” his title already signed over to Derringer, and thus by fraud obtained another title to the traded vehicle to Derringer and “stole back” the vehicle, leaving Derringer with nothing of value.
8) Bingham has lied to APD and to this court that he defrauded Derringer and MVD because of claims that the Derringer vehicle had a “lien” against it and was unavailable, but Bingham has never produced any document or tangible evidence that any encumbrance was on the Derringer vehicle, and in fact obtained a title to the Derringer vehicle in his own name without any claims of lien or encumbrances; thus having “unfounded” claims that his own motives for the fraud against Derringer and MVD were founded in lies.
9) APD sought to criminally prosecute Bingham for his grand larceny of stealing back Derringer’s vehicle obtained in the trade and for fraud against Derringer and additional fraud against the New Mexico MVD, but attorney Kalm lied to APD that the Derringer vehicle was “encumbered” and that Bingham would sue Derringer in civil court.
10) Bingham sued Derringer in civil court in fraud to “avoid” the criminal prosecution of APD, and in so committed criminal fraud against the civil court. Bingham then seeks to discredit Derringer and prevent Derringer from litigating so as to defeat the civil suit of Derringer and thus avoid the criminal prosecution by APD.
11) Bingham admits in his September 3, 2010 Motion for Rule 11 Sanctions Including Civil Contempt page 7 paragraph 1 that: “Zack had to file suit to avoid arrest and resolve the issue civilly to satisfy APD”. The key word here obviously is “AVOID”.
THERE ARE NO DOCUMENTS OR SUBSTANTIVE PROOF FROM ANYONE SAVE THE “OPINION” OF JAYME MOORE IN AN AFFIDAVIT THAT THERE WAS EVER ANY LIEN ON THE TRADED DERRINGER VEHICLE BECAUSE NO LIEN EVER HAS EXISTED OR BEEN FILED ANYWHERE
1) No lien was ever filed against the Derringer vehicle known as the “M35A2 ‘deuce’ military vehicle” with county, MVD or any court, and no court ever awarded the Derringer vehicle to any party as part of a settlement of any Judgement.
2) Neither Jayme Moore and Tumbleweed Auction Company or any other entity ever filed any claim of lien against the Derringer trade vehicle known as the “deuce” and MVD did give Zachary Bingham free and clear title transfer of that vehicle from David Derringer to Zachary Bingham showing that there was no encumbrance.
3) At the time claimed of Tumbleweed selling the deuce (March, 2010) without a title to some unknown party, Zachary Bingham had been the legal owner of the “deuce” for a period of at least 1 ½ years since September 25, 2008, and it is unlawful for a company to sell a vehicle without a title when a free and clear title does exist as did in this matter.
ATTORNEY KALM’S UNFITNESS TO PRACTICE LAW AND LIES AND DISREGARD FOR THE ORDERS OF THE COURT
1) Attorney Kalm has engaged in a rampant attack in court record of David Derringer; Derringer’s life, family, relationships, clothing, and intelligence. This encompasses an extreme number of pleadings meant to bias and prejudice the judge against Derringer and against Pro-Se parties, as well as attempting to bring in much information and mis-information in “selective” excerpts from other cases meant to defame Derringer and to ruin the merits of this case by use of other cases not at all related to the facts and issues of this matter.
2) In the process Kalm has pumped up and spent extreme hours for his client, as well as wasting extreme hours and expenses of this court on frivolous mis-information and slander to attempt to ensure that Kalm does not lose a case to a Pro-Se party. Recall that Kalm has stated in court record he is “pro-bono” and cannot ever attempt to ask this court for “attorney fees”.
3) Kalm has lied first to this court that his client has had to spend tremendous amounts of money in defending against Derringer, wherein most of this money is claimed to be spent by Kalm in multiple depositions, extreme numbers of frivolous pleadings and other time-consuming Kalm activities of attempting to involve third parties that know nothing of this suit, but are meant to ruin Derringer’s life. Attorney Kalm then goes on court record in the hearing of August 27, 2010, again in the hearing of September 9, 2010, and in the court record of “Derringer’s Deposition” of September 9, 2010 Page 48, Line 4 [“It’s a pro-bono case for me”] that he represents Zachary Bingham “pro-bono” and thus cannot claim any attorney fees against either Bingham or claim to ask this court for any attorney fees against David Derringer. Thus, Kalm continually lies to this court of both the cost and that he is entitled to “attorney fees”. Kalm’s seeking money is why he wants to entwine and entangle third parties that have nothing to do with this matter in his insistent “joinder” of other parties or anyone Derringer could know, meet, or associate with so as to steal money from others, while also seeking his main motive of ruining Derringer’s life.
4) Kalm has lied to the face of this court in stating he did not cuss at Derringer in the Deposition of September 30, 2009, and yet comes out in court pleadings, a “discussion” of why he cussed at Derringer, with a bogus claim alleging that Derringer might be armed and the cussing and aggression of Kalm was “in his own defense”.
5) Kalm and Bingham have been given court Orders not to further attempt to bias and prejudice the judge, and have been ordered not to ever again include other court cases regarding Derringer in the pleadings, and have been Ordered three time to not ask or pursue Derringer’s marital status; each time Kalm ignores the court’s orders and inundates the court records with other Court cases regarding Derringer to bias this court, asks to deprive Derringer’s rights to due process and equal protection under law, and permeates this court with mis-information of Derringer’s marital status, personality, living conditions, and other defamation of Derringer; with claims that he can pursue harassing Derringer with both immunity and “privilege” to do this to Derringer as long as it is in the court record.
6) No American should tolerate, and no court should allow this criminal harassment of a litigant, and clearly, if Derringer had an attorney representing him, instead of being Pro-Se, the court would have put a stop to this abuse and persecution of Derringer long before now, and Kalm would not be doing this abuse if Derringer had an attorney representing him.
7) Attorney Kalm now multiple times seeks “attorney fees” from this court against Derringer, when he had stated on court record that he is “pro-bono” and seeks to “join” additional parties with the mis-information simply that they may have “deep pockets” for him to attack and steal their money.
8) Kalm is simply manipulating this court for his own devices of ego, power and a vindictive persecution of his hatred for David Derringer and other pro-se parties.
ATTORNEY KALM ATTEMPTS TO PORTRAY DERRINGER AS SOME “LOOSE CANNON” THAT HAS LITIGATED IN MANY STATE AND FEDERAL COURTS, BUT HAS NEVER WON A CASE AND THUS ALL OF HIS LITIGATION IS “FRIVOLOUS”
1) Attorney Kalm mis-represents to this court that Derringer has been a “serial litigator” and has never won a case, and thus should be stopped from use of the United States Court system.
2) Attorney Kalm knows that Derringer can now prove the “abuse of process” wherein the only reason Bingham and Kalm sued Derringer is to AVOID the criminal prosecution by the Albuquerque Police Department against Zachary Bingham for grand larceny of a motor vehicle, and criminal fraud against David Derringer and the New Mexico Motor Vehicle Department. So Kalm wants Derringer stopped unable to litigate.
3) Attorney Kalm deliberately ignores to this court the many “wins” by Pro-Se David Derringer in Albuquerque Metropolitan Courts, New Mexico state “district courts”, and the “win” by David Derringer against the State Engineer of New Mexico “Derringer v. Thomas Turney” in a New Mexico State Engineer’s Petition for Writ of Certiorari in the New Mexico Supreme Court No. 27,127. Derringer has also won in several United States District Court cases in the 10th Circuit, the United States Bankruptcy Court, the Bankruptcy Appellate Panel, and in the US Court of Appeals for the 10th Circuit.
4) In the case of David Derringer against the State Engineer of New Mexico in the New Mexico Court of Appeals No. 21,059 “Derringer v. Thomas Turney”, Derringer won against the New Mexico State Engineer’s Petition for Writ of Certiorari in the New Mexico Supreme Court No. 27,127. Derringer won this matter against the New Mexico State Engineer’s and set the case law standard, never before established, that forced the mandated hearing to be held by the New Mexico State Engineer for all water use applications. This was regarding Derringer’s New Mexico state water appropriation application #4615 and #4615-Amended. Clearly, Derringer’s law suits have both law and substance.
5) This court could instantly look up New Mexico Court of Appeals Case No. 21,059 and the decision of the New Mexico Supreme Court No. 27,127 to establish this as “fact”. Clearly, if Derringer can win against several attorneys representing the State of New Mexico, Derringer can also win this case against attorney Thomas Kalm, and Derringer’s suits are not “frivolous”.
6) It needs to be addressed in retrospect, that attorney Kalm cites State of New Mexico et al. v. George Welsh New Mexico Court of Appeals No. 7888 in “comparison” to Derringer wherein Welsh was unjustly “restrained” by Judge Brennan for suits and for disqualification of justices deemed “unfit” on June 29, 1983. Welsh sought also to disqualify Judge Brennan. Later after stopped and guilty of cocaine, methamphetamine and other drug possession, abuse, Judge Brennan Resigned in 2004. Ex-Judge Brennan then dominates the paper numerous times in domestic abuse on Oct. 10, 2008. It was found that Judge Brennan had been on cocaine, marijuana and other drugs since the 1960's and yet gave seminars and held judicial conferences for “other citizens” to stay off drugs, as well as convicting others for drug abuse. Undeniably, George Welsh Pro-Se knew of the inability of Judge Brennan to be up to the standards required for a “judge” in 1983, wherein the Judicial community and the public now know of the seriousness of Judge Brennan’s addiction and unfitness to be a judge or practice law. But Welsh was persecuted just as Derringer.
7) Attorney Kalm then cites the illegal “injunction” by Judge Fitch against Derringer to stop litigation that involved protection of himself for doing unconstitutional and abusive acts against Derringer and Derringer’s wife at the time Susan Nevitt, as a “standard” as to why Derringer must be further restrained. Judicial Standards recommended Judge Fitch’s removal from the bench on Feb. 11, 2005 due to his wrecking a state car accident while on his way under cocaine and “tequila” to help preside over the New Mexico Supreme Court. In fraud, Judge Fitch “resigned” in 2005 just before he was taken off of the bench, in order to steal his retirement from the public of New Mexico as a state employee. Judge Pope, whom denied Derringer a trial in CV-02-19 and stole over $400,000.00 worth of real property from Derringer, admitted in May , 2006 that his failure to come to a criminal trial was because he was drunk.
8) Clearly, “Welsh” knew of the corruption of justices in New Mexico and took direct legal action against this matter, and the judicial community “covered up” its indiscretions, by laying blame on a Pro-Se party and illegally depriving further use of the courts in a “conspiracy against rights” under the guise of Rule 11 and “protection of the public” from litigation by a pro-se party.
9) Undeniably, the “protection of the public” is to allow use of the courts by any citizen, due process and equal protection of the law, even if this litigation exposes the corruption and injustices of the New Mexico judicial system and the alcohol and drug abuse of some of the justices.
10) The Code of Professional Conduct prohibits attorney Kalm from subjecting David Derringer to harassment, ridicule, persecution, and abuse in pleadings wherein a lawyer is to use the law’s procedures only for legitimate purposes and not to harass and intimidate others. In this instance, the mis-information, attempts to bias and prejudice a judge, intent to coerce a judge to violate Oath and commit sedition and treason to the Constitution fall under incitement for public corruption, and violate the Code of Professional Conduct Rule 16-804(A)(B)(C)(D)(F)(G) and (H).
11) The “scandalous” material that is not at all accurate is placed in the court record by Kalm is a severe abuse of privilege of pleadings, wherein the courts were never intended to be used to defame, slander and persecute a litigant.
THIS COURT HAS NO JURISDICTION OR JUDICIAL CAPACITY TO ENTERTAIN THE ATTEMPTS OF PUBLIC CORRUPTION AGAINST DERRINGER, TO “ENJOIN” DERRINGER IN THE STATE OF NEW MEXICO FROM ANY FURTHER USE OF THE COURTS
1) Clearly, this court knows why the United States is set up with a “separation of powers” of the Executive, Judicial and Legislative branches of government, so that one person or governmental agency cannot become a dictator and over-rule the other branches of government and thus render the Constitution and statutes ineffective. “The Constitution of the State of New Mexico commands that “the powers of the government of this state are divided into three distinct departments, the legislative, the executive, and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others.” The “yardstick” is the Constitution and statutes enacted by Congress and the New Mexico state Legislature that “control” the actions of the courts, preventing persecution and deprivation against a United States Citizen.
2) A “district court judge” came to office by “swearing to God” to obey the Constitution, the statutes of both state and federal government, and to honor and obey the power of justice to both the rich and poor equally. (The poor being Pro-Se parties). Title 28 Section 453 -Oaths of justices and judges-“Each justice or judge of the United States shall take the following Oath or affirmation before performing the duties of his office; “I, ____, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as ___under the Constitution and laws of the United States. So help me God.”; In re Aquinda, 241 F.3d 194 “Presumption exists that a judge will put personal beliefs aside and rule according to the laws as enacted, as required by his or her Oath. 28 USCA 455(a)”. The State of New Mexico also makes each Judge “swear to God” under Oath to: Oath taken by Judge ____: “I, Judge ___, do solemnly swear that I will support the Constitution of the United States and the Constitution and laws of the State of New Mexico, and that I will faithfully and impartially discharge the duties of the office of Judge on which I am about to enter, to the best of my ability, SO HELP ME GOD.”
3) The Constitution of the United States and Bill of Rights, and the New Mexico Constitution; patterned after the US Constitution clearly states: Constitution of the State of New Mexico Article II Bill of Rights Section 4: Inherent rights-“All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, and acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness.”
4) Title 42 Section 1981(a)-Equal rights under the law (a)”Statement of equal rights- All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exaction of every kind, and to no other.”
5) “US Constitution 14th Amendment Section 3-No person shall be an...elector..or hold any office, under the United States, or under any State, who, having previously taken an oath,... as a judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
6) Title 18 Section 241 provides:
“If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised same”.
1) Title 18 Section 242 provides:
Whoever, under color of law, statute, ordinance, regulation, or custom willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, ..than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned..”
1) US v. Guest, US Ga. 1966, 86 S.Ct. 1170, 383 US 745, 16 L.Ed.2d 239 “This section (Title 18 Section 241) pertaining to conspiracy against rights of citizens encompasses due process and equal protection clauses of USCA Constitution Amendment 14 and is not unconstitutionally vague.”
2) A District Court judge’s “jurisdiction and judicial capacity and authority” is in reality quite limited. A Judge cannot entertain facts or merits of a case in which the judge is not the “fact finder/adjudicator”, and cannot restrain anyone but a party from any action, and cannot restrain the public in general from any actions. Allen v. McClellan, 77 N.M. 801, 427 P.2d 677 (1967) A Judge cannot use “Rule 11" to either sanction or dismiss any case unless that case is before the particular judge, and already filed so as to gain that assignment. In other words, there is no judge that can deny filing, prior to being assigned to a case, and Rule 11 does not extend any judicial authority to either circumvent or defeat any statute or Constitutional provision, nor does it extend any authority or jurisdiction to any possible future suit, whether or not the parties are the same or different. In short, just because a party wins a suit, does not foreclose the Defendant or Plaintiff that lost that suit from suing the same party at a different time over a different matter.
3) This court is bound by the “supremacy clause” that defeats any contemplation of Ordering Derringer not to again litigate in the State of New Mexico. Nor can it order Derringer to be subject to “approval” of a suit before filing by the very jurisdiction and judicial capacity of a Judge, wherein a Judge has no “jurisdiction or judicial capacity” of any particular case until that case is assigned to him/her as the fact finder, which only happens after filing. Accordingly, to subject Derringer to some arbitrary judge to “approve” a Complaint before filing subjects Derringer to a “dictatorship judge” of one person that may not like Derringer, defeating due process and equal protection of the laws at all times by deprivation of filing any legal document in any United States Court. “Rule 11" then, without either jurisdiction or authority by any particular judge, would simply be used to single out David Derringer to persecute and punish the exercise of Derringer’s Constitutional rights and statutory rights “to sue” under Title 42 Section 1981(a), and prohibits Derringer due process and equal protection and to circumvent the Constitution, Congress and exercise a “tyranny” of power to overcome the two separate powers of the Executive and the Legislative branches of government.
4) For the court record; What would happen here is that some “arbitrary judge” would order only verbally his employee/subservient court clerk not to physically accept any court paper from David Derringer, and yet not make that a “written” order, thus illegally obstructing Derringer from “appeal” of such a “verbal” judge decision, and defeat by force Derringer’s use of the courts, that could not be legally identified or pursued in any higher court or authority due to the hiding of this means of obstruction of justice dictatorship by only “word of mouth”. This means is “public corruption” on the highest level, but hard to prove to any authority such as the Department of Justice. Federalist No. 47 by James Madison, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.. In order to form correct ideas on this important subject it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.” This clearly entails violations of the Supremacy Clause. On June 6, 2005, the United States Supreme Court ruled that.. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail...” in Gonzales v. Raich, No. 03-1454 SEE United States v. Colorado Supreme Court, No. 98-1081, 10th USCA, where the court upheld that “ the [rule] violated the Supremacy Clause by attempting to regulate an area of federal law controlled. Dismissing the need to characterize the rule as either procedural or ethical, the court stated, ‘for purposes of determining whether [the rule] violates the Supremacy Clause, it matters not at all what the Board or Baylson choose to call it. What matters is whether the substance of [the rule] actually conflicts or is incompatible with federal law.’ The [rule] “does not suddenly become consistent with Fed. R. Civ. P. 17 as a state rule of professional conduct” “The Court held that the rule’s judicial approval requirement violated the Supremacy Clause because it was incompatible with the federal rules of criminal procedure”. In the same manner, for this court to foreclose any court filing without “approval” from a judge not legally assigned to the case produces a criminal use of power to act as a “conspiracy against rights” under US Code Title 18 Section 241, and a “deprivation of rights under color of law” within the meaning of US Code Title 18 Section 242, and mis-use of ‘rule 11' to persecute the Plaintiff for exercising his Constitutional and statutory rights to protect his personal property and to prevent illegal larceny, fraud use to constitute illegal seizure, and perjury and mis-use of the civil courts to circumvent the criminal court prosecution of APD.
5) Derringer entered into the “mediation” with the court’s Order with only the understanding that such mediation would be fair and impartial, and without cost. In the mediation with Marchiondo, whose reputation proceeds him as a forceful friend of Attorney Kalm, Derringer was asked repeated questions about issues not in this court, federal court cases and other “unrelated cases” to this matter, cussed, intimidated and threatened, as the reputed Mafia mob tactics that reputation holds. Kalm now comes to this court seeking “debtor’s prison” [constituting criminal extortion] to imprison Derringer if Derringer does not pay Marchiando his hourly rate, despite the mediation being for free. In essence, thus, Kalm seeks criminal ransom and extortion, of threats of incarceration if Derringer does not pay his friend Marchiondo. These criminal acts of “obstruction of justice” and “intimidation” are known by this court. Attorney Thomas Kalm should be sanctioned severely, reported to law enforcement and the disciplinary board and banned from legal representation activity in the Second Judicial District Court in sanctions. The “requests” of Bingham and attorney Kalm are blatant violations of “cruel and unusual punishment” under the 13th Amendment against Derringer wherein this court does not have jurisdiction or judicial authority to “jail” Derringer to force in extortion, Derringer to pay an attorney fees that were previously waived in a court ordered Mediation. With this atrocity of request from attorney Kalm, Kalm also seeks as much money as he can in claimed attorney fees by inundating this court with pleadings at the last hour to pump up his hours, when Kalm cannot claim any attorney fees, having repeatedly on court record proclaimed to be representing Zachary Bingham “pro-bono”.
6) The violations requested by Bingham and Kalm clearly fall, if at all approved, in the realm of blatant violations of the Supremacy Clause and meant for “cruel and unusual punishment” and “oppression” and “tyranny” against Derringer. Stoneking v. Bank of America, 132 NM 79, 43 P. 3d 1089. “Under Article VI of the Constitution, the laws of the United States “shall be the supreme law of the land..any thing in the Constitution or laws of any State to the contrary notwithstanding”. US Constitution Article VI Cl.2 “The Supremacy Clause prohibits the application of state laws which conflict with federal laws.” Home Mortgage Bank v. Ryan, 986 F.2d 372, 375 (10th Cir. 1993).” Hence, under the “Supremacy Clause” of the United States Constitution Article VI, no judge can make any order that forecloses on any citizen suing any party, at any time and cannot “jail” any citizen in a “debtor’s prison” until extortion payment is made to an attorney that already waived such payment. All of these “requests” by Bingham and Kalm fall in the category of sanctionable offenses, criminal offenses, obstruction of justice, intimidation and extortion. If any citizen is placed in a position of “mediation” where he will be persecuted and punished if he does not settle in a way preferable to the opposition and then under threat of jail, forced to pay money and slandered; “mediation” becomes synonymous with oppression and tyranny.
7) “Where the state is not in compliance with the federal regulations because of judicial constructions that circumvent or undermine the legislative intentions of the act, a new question arises as to the legitimacy of the state’s participation in the federal program. If justices in New Mexico conduct orders to prevent use of the United States court in violation of US Code Title 42 Section 1981(a) for any party without some arbitrary judges” approval” and against Constitution, in complete violation of Oath, the State of New Mexico becomes conducting sedition, treason, and is seceding from the union to attempt to make case law to overwhelm Constitution and federal rights and “appoint” some judge to make a decision as to whether or not a citizen can actually file in a court of law. In determining whether federal law preempts state law, we assess whether the state law actually conflicts with the federal law or interferes with the purpose of the federal law. See Ray v. Atl. Richfield Co., 435 U.S. 151, 158, 98 S. Ct. 988, 55 L. Ed. 2d 179 (1978). Because federal regulations and laws cannot infringe upon the Constitutional rights of United States Citizens, it can be presumed that those rights are protected under the federal mandates. If the state is going to make rules or practice procedures by a state judge ordering a citizen not to file complaints, pleadings, responses and any other legal paper without prior approval of some court judge not even assigned to the case, which deny those inherent Constitutional, and federal statutory rights of any citizen “to sue”, then the state actions become void, and this issue prevails over any other under consideration. And where the Constitution of the state or the state statutory laws are subverted through similar means, of “justices” making illegal and un-Constitutional “case law”, the people have no duty to perform unless under threat or coercion by further illegitimate means in order to protect their very lives.
8) In this matter Bingham and Kalm intend to circumvent their criminal fraud against Derringer and the MVD and grand larceny criminal prosecution by APD by keeping Derringer from legal litigation, and to prevent Derringer from suing attorney Kalm as a person acting outside of any law and Code of Professional Conduct in the future. No court can prevent such a suit until assigned a future suit, and protect attorney Kalm by “dismissal under Rule 11" with claims that such a suit is “frivolous”. Upon which appeal could be taken under “abuse of discretion”.
9) Derringer nor any other citizen should be persecuted in this manner under the 13th Amendment, as it is clear none of Kalm’s outrageous pleadings would be tolerated if Derringer were represented by an attorney.
10) This court has a duty to take action against Bingham and Kalm, to stop this unethical and criminal harassment by mis-use of the courts, sanctions should be awarded to Derringer and all of the scandalous, heinous, mis-information, slander, and defamation against Derringer should be stricken from the court record in the numerous pleadings by Bingham and Kalm.
11) Kalm being self-proclaimed as “pro-bono” for Zachary Bingham in open court of August 27, 2010 and again in the recorded deposition of September 9, 2010 of David Derringer, cannot seek, obtain, or request any attorney fees for himself or for his dear friend attorney Marchiondo.
BINGHAM’S ADMONISHMENT AGAINST DERRINGER FOR MAKING
SETTLEMENT OFFER TO END THIS FRAUD BY BINGHAM
Bingham biases this court that Derringer is making a settlement offer in this court that is “improper” use of the previous mediation conferences. Bingham “lies” to this court. The “mediation” twice was not successful, despite Kalm’s lies that “we were close to settlement”. Derringer does not attempt to enter into record anything from the two mediation settlement conferences, but simply responds to the “offer of settlement” during the Derringer Deposition of September 9, 2010 that happened in this court. The Deposition will clearly show that attorney Kalm stated in front of Judge Huling that a settlement might be possible, and then at the end of the deposition pages 53-55 stated that Bingham would offer $800.00 to settle, that was not accepted by David Derringer because Bingham has stolen a vehicle from Derringer of value of $1,800.00 and cost Derringer two years of litigation trying to regain simply what he had before the fraud of Bingham against Derringer and the MVD. Kalm then offered $1,000.00 and Derringer stated in Deposition that he would take no less than the $1,800.00 value of the vehicle. Attorney Kalm at the end suggested that they might bring $1,800.00 cash to the trial to settle before trial; and Derringer agreed with the stipulation of certain writing in the Order of dismissal. Kalm left the Deposition stating that they would think about it. Derringer then realized the conniving and possible scenario of the likelihood of losing the “cash” with some ploy of attorney Kalm and Bingham so properly wrote a letter, that was entered into this court so that this court could be aware that this matter could and should have been settled by Bingham two years ago by paying Derringer his value of the stolen vehicle by Bingham, and the necessity to pay Derringer with a “certified check” so that “some third person” would not “relieve” Derringer of the “cash” before or just after he left the courthouse. Clearly, if this court reads the “court record” in the Deposition of September 9, 2010, it is clear that Derringer did not do anything related to settlement discussions of either mediation, but responded in statements to the “agreement” possibility of Bingham bringing “cash” to the trial to settle for an amount of $1,800.00 wherein Derringer realized that “cash” was not a good idea. There is thus no violation of Rule 11-408 here, but simply an addition to an already discussed matter of court record on Deposition pages 53-55 in the court record of September 9, 2010. Bingham and Kalm simply want this litigation to go on endlessly so that they can continue to harass and persecute David Derringer and attempt to keep Derringer from legal use of the United States Court system. This is criminal under US Code Title 18 Section 241 and 242 as well as obstruction of justice under US Code Title 18 Section 1503. Countless pages are being sent to this court to defame Derringer and Bingham has spent much time in pleadings attempting to “hold the trial” with Judge Huling with what they want to say and force documents into court that are all objected to by Derringer. Kalm believes that he can win this case before it ever goes to trial on the merits by saturating the record with bogus allegations against Derringer and “what they want read of their position”. This does not constitute a “fair trial” for Derringer. Derringer has the right to the same “opportunity to be heard” as Bingham.
WHEREFORE, this court is dutifully and legally bound by Canon, the Code of Judicial Conduct, the criminal statutes of New Mexico enacted by Legislature to punish, sanction, and direct law enforcement to stop the criminal activities going on by Zachary Bingham and attorney Kalm with his co-conspiracy with William Marchiondo. Tyus v. Martinez, 106 Supreme Court 1787, 475 US 1138, 90 L.Ed.2d 333 on remand 800 F.2d 230 “A judge is not only entitled, but also has a duty to take all lawful measures reasonably necessary to prevent the occurrence of a crime in his courtroom.”
This court is also bound to punish, sanction and seek discipline for an attorney Kalm seeking to deprive due process and equal protection by “coercing” a state Judge to violate Oath and “permanently” keep a US Citizen from litigation in any court in the United States constituting attempts to “obstruct justice”. US v. Baum, 32 F. Supp.2d 642 “SCNY 1999 Obstruction statute is intended to prevent the obstruction of the administration of justice in any court of the United States, corruptly by threats of force.” 18 USCA 1503(a). This court is also dutifully bound to stop the “abuse of privilege, abuse of process, and the ‘terrorism’ and conspiracy that is transpiring to defame Derringer and set up a bogus court record for other unscrupulous attorneys to use and refer to in other cases, as illegally and “corruptly” attorney Kalm is doing in this one to bias and prejudice the Judge and try to “win” a case by corruptly saturating the court with pleadings of “their position” right before a trial on the merits, and by depriving Derringer use of the United States Courts, in a total unfitness to practice law and a sham on the mandates of the Code of Professional Conduct. US v. Kanchanalak, 37 F. Supp.2d 1 “Statute defining “corruptly”, as “acting with an improper purpose, personally influencing another, including making a false, misleading statement, or withholding, concealing, altering, or destroying a document or other information.” Attorney Kalm and Bingham cannot attempt to use “mob” and “gang” tactics against Derringer in this case based upon what other attorneys have told them, and in appreciation defame Derringer and gives erroneous and inflammatory information to the other attorneys. Accordingly, Bingham cannot have Orders that have already been entered into the court record by Judge Huling personally and by David Derringer under Oath in court recorded Deposition, as these contentions are “mute”. Derringer cannot be forced to enter “depositions” of persons not present for cross examination, and such inundation of these “deposition documents” to bias the court with information forced into record just before trial is “unscrupulous”. Sanctions against both Bingham and Kalm are warranted if ever they are, and Derringer cannot be continually “terrorized” without redress in this court, and denied all sanctions while Kalm runs this court rampantly. Neither Zachary Bingham nor attorney Thomas Kalm can ever ask for or receive attorney fees for Kalm, as Kalm has stated numerous times that he is “pro-bono”, and cannot gain fees for any reason. [SEE: September 9, 2010 Deposition of David Derringer page 48 line 4] Derringer cannot legally be “permanently enjoined” from use of the New Mexico or United States Court system of government in any ‘future’ for redress of torts and blatant fraud and stealing of Derringer’s personal property by Bingham or others in the future. Attorneys have and should be disbarred from inciting “public corruption” against rights of citizens to ever ask a court for an “injunction” against exercising rights under Constitution, US Code Title 42 Section 1981(a) and US Code Title 42 Section 1982 and persecution under the 13th Amendment of “singling out” a citizen for “cruel and unusual punishment”.
Respectfully submitted by: ________________________________________________
David Derringer Pro-Se Box 1205, Albuquerque, New Mexico 87103
CERTIFICATE OF SERVICE 10-6-2010
I hereby certify that I hand delivered a copy of this pleading to:
Second Judicial District Court
400 Lomas NW
Albuquerque, New Mexico 87102
I further certify that I mailed first class a copy of this pleading to:
Atty. of record Thomas Kalm
8617 Las Camas, NE
Albuquerque, New Mexico 87111
