Motion to add the AOC as a defendant

 THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION                                                                                                                                                                   Civil Action No. 5:11-CV-352-H

DONNA PILCH,                                      Plaintiff, v.         LORRIN FREEMAN,                                     Defendant.

MEMORANDUM IN SUPPORT OF MOTION TO ADD A DEFENDANT Feb. R. Civ. P. 19 and 20

I.                  STATEMENT OF FACTS

Per North Carolina General Statute §7A-343, the Director of the Administrative Office of the Courts is responsible for administrative systems and controls, making recommendations for the improvement of the judicial department, and prescribing uniform forms and records to be used in the officers of the clerks of superior court.

The “ACIS” criminal computer system allows court clerks to act in excess of their jurisdiction by changing case status from disposed back to pending and then setting new court dates. Once a new court date is set, the Court does not mail notification of the new date to the defendant. Therefore, a defendant can miss a court date for good cause. When the defendant misses the court date, he can be unlawfully and unconstitutionally ordered arrested by Wake superior court clerk Lorrin Freeman and charged excessive bail, violating the 4^th and 8^th amendment of the U.S. Constitution. This is what happened to Pilch.

The ACIS system also records all court dates as “jury trials” which obstructs justice because defendants do not know and are not informed whether they are going to court for a regular court appearance or for a jury trial. And, the N.C. Office of the Courts has not created a lawful certificate of service to inform defendants about jury trials. This violates the 14^th amendment right to due process.

The constitutional defects of the ACIS criminal computer system (which does not differentiate between court dates and jury trial dates) and which court clerks have been using to tamper with Plaintiff’s case status in excess of their jurisdiction is partly due to Kennedy’s failure to perform his duties which are clearly outlined in North Carolina General Statute §7A-343, which is included as an Exhibit.

In addition, Kennedy is partly responsible for failing to create a court form in compliance with North Carolina General Statute §15A-606 which mandates that all defendants demand or waive probable cause hearings. Because the Wake Court is not honoring this statute, the harm/”injury in fact” is that many innocent defendants’ are being forced into jury trials in the Wake Superior Court without ever having had a probable cause hearing.

Per State v. Hudson, 295 N.C. 427, 430 (1978), probable cause hearing is supposed to ensure that defendant will not be unjustifiably put to the trouble and expense of trial if there is no probable cause.

Kennedy is also responsible for failing to correct the constitutional defects in several court forms as shown by the attached exhibit.

Lorrin Freeman is responsible for Wake court clerks acting in excess of their jurisdiction. Kennedy is responsible for failing to set controls over the ACIS computer system to prevent clerks’ from acting in excess of their jurisdiction. Freeman and Kennedy should have been working together to ensure that court forms and the ACIS system is in compliance with North Carolina Statutes and the state and federal constitutions per their duties prescribed by law. Freeman and Kennedy should have been working together to ensure that court forms were in compliance with state law and the state and federal constitutions.

1. II.               JURISDICTION

Plaintiff has standing to sue because she was and is directly harmed (“injured in fact”) by Kennedy’s failure to create a court document in compliance with North Carolina General Statute §15A-606, which requires that all defendants demand or waive probable cause hearings. Plaintiff was also harmed by the lack of control over the ACIS computer system, which allowed a court clerk to change her case from disposed back to pending on 12/31/09 unlawfully as no proceeding occurred that day. Plaintiff was injured in fact when the court clerk set a new court date of 2/22/10 for Plaintiff but did not inform her of it. Plaintiff was then ordered arrested by superior court clerk Lorrin Freeman. Plaintiff was “injured in fact” when court clerk Sandra Meyer charged her for someone else’s DWI with costs in excess of what is prescribed by law on August 3, 2010. The economic injury is directly traceable to both Freeman and Kennedy and redressable with punitive damages.

The state auditor’s June 2011 performance audit revealed over $100 million in mismanaged funds by the N.C. Administrative Office of the Courts, indicating there is a serious problem with internal accounting and controls.

The purpose of §1983 is to deter public officials from using the badge of their authority to violate persons’ constitutional rights and to provide compensation and other relief to victims of constitutional deprivations. Carey v. Piphus, 435, US 247, 253 (1978).

Plaintiff invokes jurisdiction of this Court per Title 42, section §1983. Per Monroe v. Pape (1961),   §1983 does not require victims of unconstitutional state action to exhaust state remedies that might be available to them before bringing suit under §1983.

Second, an official can act under color of law within the meaning of §1983 and be personally liable under this statute when he violates state law and commits acts that state law would not authorize or sanction. (State law requires that the U.S. Constitution be enforced).

Per section §1983, liability will attach if the defendant acted under color of state law, and the defendants’ actions deprived Plaintiff rights and privileges secured by the Constitution.  Both apply.

In Hafer v. Melo, 502 U.S. 21, 25-31 (1991), the U.S. Supreme Court held that State officers are subject to § 1983 liability for damages in their personal capacities, even when the conduct in question relates to their official duties.  The Supreme Court voted unanimously 8-0, upholding this right.

No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and they are bound to obey it. United States v. Lee (1882) and Buckles v. King County (Wash.) 1999.

CLAIM OF HARM

Using unlawful/fake court documents is unconstitutional because it violates the 4^th, 8^th and 14^th amendments of the U.S. Constitution. Failing to act to correct the undisputable evidence of crime is demonstrates callous indifference to the constitutional rights of a class of thousands throughout the state of North Carolina who were, are and will be similarly situated to Plaintiff.

Plaintiff, a marketing professional from New York, should not have had to perform Freeman and Kennedy’s duties to review the 500 plus misdemeanor criminal forms for compliance with state law and the state and federal constitutions. But she did, acting out of urgency for herself and the class of others who were, are, and will be similarly situated.

 The injury/harm caused by Kennedy is redressable with compensatory and punitive compensation. Plaintiff is a marketing professional from New York, whose market value has been $100,000.00 per year since 2006. Since August 3, 2010, Plantiff has devoted all of her time lobbying for corrections to North Carolina’s justice system. This is unpaid work and Plaintiff has lost time in vain.

Failure to enforce North Carolina General Statute §15A-606 has impacted Pilch and a numerous class of defendants throughout the state of North Carolina. By failing to provide a court form asking defendants to demand or waive probable cause hearings in district court, they are denied due process and speedy justice. And worse, innocent people are held hostage in the Wake County court for a year or two or even longer because continuances are unlimited without good cause shown.

Because the Administrative Office of the Courts constitutionally defective court forms and ACIS computer system impacts every defendant who ever was, is or will be accused of a misdemeanor or felony in the state of North Carolina, significant punitive damages are justified.

PRAYER FOR RELIEF

• Plaintiff seeks a judgment of $4 million in punitive damages from the North Carolina Administrative Office of the Courts.
• Plaintiff requests that this Court order urgent injunctive and financial relief for the class, including ordering correction of the constitutionally defective court forms and ACIS computer system.
• Plaintiff’s exhibits include a proposed Order for Injunctive Relief, which details which court forms need to be created, ordered to be used, and/or corrected by the N.C. Administrative Office of the Court to comply with state laws and the U.S. Constitution to provide justice and relief.

Respectfully submitted, 

_____________________

Donna Pilch, Prose                                                                                                                                                                                          

This is the 2^nd day of September, 2011.

TABLE OF EXHIBITS

Pilch v. Kennedy

1. North Carolina General Statute §7A-343: Duties of the Director of the Administrative Office of the Courts.
2. North Carolina General Statute §15A-606: Probable cause hearings required for all defendants.
3. Screenshot from nccourts.org website showing probable cause hearing document exists for juveniles, not adult defendants.
4. Computer print outs from Pilch’s Wake Court case, showing how court clerk Tonya Woodlief unlawfully changed Pilch’s case status from disposed back to pending on 12/31/09 when no proceeding occurred that day, and unlawfully certified that both pending and disposed case status was correct.
5. Receipt printed from the ACIS computer system showing Plaintiff was charged by court clerk Sandra Meyer and paid for someone else’s DWI conviction, with costs in excess of what is prescribed by law.
6. Page from N.C. Auditor’s report of $100 million in mismanaged funds by the N.C. AOC.
7. Report on misdemeanor criminal court forms on the NC Administrative Office of the Courts website which includes Excel spreadsheet analysis.