Postby fightingfor3 » Wed Jan 03, 2007 8:22 am
MOTION TO VOID FOR VAGUENESS
COMES NOW, ***, Sui Juris, free, Sovereign Natural Person and Family
Body, Actual Parent, and for minor offspring, Citizen of the state of
New Mexico, without accepting subject matter jurisdiction, to demand
the Court to Dismiss Judgment And Disposition As To ***Order dated
February 27, 2006.
FACT #1: Void for vagueness is a legal concept in American
Constitutional Law, whereby a statute is adjudged unconstitutional
when it is so vague that persons "of common intelligence must
necessarily guess at its meaning and differ as to its application," as
the United States Supreme Court articulated in Connally v General
Construction Co., 269 US 385, 391 (1926).
FACT #2: The Fourteenth Amendment, which includes Due Process
requires that a law be reasonably definite as to what persons and
conduct are covered as well as the punishment for any violation.
FACT #4: By not reasonably defining what persons and conduct are
covered as well as the punishment for any law the law is in violation
of Equal Protections under the Fourteenth Amendment, for it leaves the
deciding factor of what persons, what conduct, and the punishment up
to the arbitrary decision of officials in a case by case situation.
FACT #5: A statute is void for vagueness when: 1) it is unclear what
persons fall within its scope, 2) what conduct is forbidden, and/or 3)
what punishment may be imposed.
FACT #6: In determining whether a law is void for vagueness, courts
have imposed the following tests: 1) does the law give fair notice to
those persons subject to it? 2) does the law guard against arbitrary
and discriminatory enforcement? and 3) can the law be enforced with
sufficient "breathing room" for First Amendment rights?
FACT #7: Statute 32A-4-2(E)(2) Definitions of Child Abuse and
Neglect otherwise known as "(E)(2)" or "General Neglect" is just that,
so general and broad that it is not definitive and leaves many
different interpretations possible. (E)(2) has also been referred to
as the "catch all" of abuse and all neglect as just about any action
can be construed to fall under this definition.
FACT #8: §32A-4-2(E) E. "neglected child" means a child: (2) who
is without proper parental care and control or subsistence, education,
medical or other care or control necessary for the child's well-being
because of the faults or habits of the child's parent, guardian or
custodian or the failure or refusal of the parent, guardian or
custodian, when able to do so, to provide them.
FACT #9: What is "proper" parental care? What is "proper" control?
What is "subsistence"? What is "other care or control"? How is the
child's "well-being" defined? This statute is impermissibly and
unconstitutionally vague. Furthermore, this defective statute fails
to give me or any other reasonable person notice or warning of what is
or isn't in violation of this law.
FACT #10: At no time during the duration of this case have I been
told exactly what I have done to violate this Statute. This Statute
denies me of my constitutional right to due process by failing to
adequately instruct me as to what constitutes violation of the law.
How can I fairly defend myself if I am not even aware of what I have
done wrong?
FACT #11: The decisions made by Officials in their Official capacity
are arbitrary because this Statute is not clearly defined allowing
Officials to "pick and choose" who and what meets this statute as they
so see fit.
Law fails to meet requirements of due process clause if it is so
vague and standardless that it leaves public uncertain as to conduct
it prohibits or leaves judges and jurors free to decide, without any
legally fixed standards, what is prohibited and what is not in each
particular case. Giaccio v. State of Pennsylvania, 382 U.S. 399; 86
S.Ct. 518 (1966)
FACT #12: Every intrusion into the family bond by the STATE IS a
violation of the First Amendment, especially based on such a loose
fitting Statute such as this.
A parent's right to care and companionship of his or her children
are so fundamental, as to be guaranteed protection under the First,
Ninth, and Fourteenth Amendments of the United States Constitution.
324 A 2d 90; supra 129 NJ Super, at 489
Third, but related, where a vague statute "abut[s] upon sensitive
areas of basic First Amendment freedoms," 6 it "operates to inhibit
the exercise of [those] freedoms." Grayned v. City of Rockford, 408
U.S. 104 (1972)
A statute is also overbroad, however, if, even though it is clear
and precise, it prohibits constitutionally protected conduct. Aptheker
v. Secretary of State, 378 U.S. 500 , 508-509 (1964)
FACT #13: The Children's Code does not define punitive measures.
FACT #14: Absent due process the false imprisonment of a child far
surpasses excessive and unjust.
All laws should receive a sensible construction. General terms should
be so limited in their application as not to lead to injustice,
oppression, or an absurd consequence. It will always be presumed that
the legislature intended exceptions to its language which would avoid
results of this character. The reason of the law in such cases should
prevail over its letter. Rector, Etc., Of Holy Trinity Church v.
United States 143 U.S. 457; 12 S.Ct. 511 (1892)
FACT #15: Men of common intelligence cannot be required to guess at
the meaning of penal enactment. In determining whether penal statute
is invalid for uncertainty, courts must do their best to determine
whether vagueness is of such a character that men of common
intelligence must guess at its meaning. Where a statute is so vague as
to make criminal an innocent act, a conviction under it cannot be
sustained. Winters v. People of State of New York, 333 U.S. 507; 68
S.Ct. 665 (1948)
FACT #16: It is a basic principle of due process that an enactment
[435 U.S. 982, 986] is void for vagueness if its prohibitions are
not clearly defined. Vague laws offend several important values.
First, because we assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so
that he may act accordingly. Vague laws may trap the innocent by not
providing fair warning. Second, if arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit standards
for those who apply them. A vague law impermissibly delegates basic
policy matters to policemen, judges, and juries for resolution on an
ad hoc and subjective basis, with the attendant dangers of arbitrary
and discriminatory application. Sewell v. Georgia, 435 U.S. 982 (1978)
FACT #17: City of Mesquite v. Alladin's Castle, Inc., 455 U.S. 283
(1982): The Court of Appeals summarized the relevant authorities as
follows: "A law is void for vagueness if persons `of common
intelligence must necessarily guess at its meaning and differ as to
its application . . . .' Smith v. Goguen, 415 U.S. 566, 572 n. 8,
quoting Connally v. General Construction Co., 269 U.S. 385, 391 . See
generally Note, The Void-for-Vagueness Doctrine in the Supreme Court,
109 U. Pa. L. Rev. 67 (1960). The offense to due process lies in both
the nature and consequences of vagueness. First, vague laws do not
give individuals fair notice of the conduct proscribed. Papachristou
v. City of Jacksonville, 405 U.S. 156, 162 . Accord Grayned v. City of
Rockford, 408 U.S. 104, 108 & n. 3. Second, vague laws do not limit
the exercise of discretion by law enforcement officials; thus they
engender the possiblity of arbitrary and discriminatory enforcement.
Grayned v. City of Rockford, 408 U.S. at 108-09 & n. 4; Papachristou
v. City of Jacksonville, 405 U.S. at 168-70. Third, vague laws defeat
the intrinsic promise of, and frustrate the essence of, a
constitutional regime. We remain `a government of laws, and not of
men,' Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 163, only so long as
our laws remain clear." 630 F.2d, at 1037
WHEREFORE, ***, demands the Courts to:
A. Immediately dismiss this cause as Adjudication is prohibited by
the Fourteenth Amendment.
B. Immediately return the children, ***, *** to their biological
mother, ***.
"The liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That in essence is facism." Franklin Roosevelt
"Injustice anywhere is a threat to justice everywhere." Dr. Martin Luther King Jr.
I often hear that the Statutes defining neglect/abuse are too broad. Here is something that may be used to combat that: