IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
James R. Blackston
Bradley W. Barber
PLAINTIFFS,
vs. - - - - - - - - - - - - - - - - - - - - - - - - - - Case No. 99-A-295-N
State of Alabama, et. al.;
Circuit Judge Richard Dorrough,
Frank Gregory,
Bob Maddox,
DEFENDANTS.
Response to Defendant's Motion to Dismiss
Comes now plaintiffs Blackston and Barber and responds to the defendant's Motion to Dismiss filed on 23 June, 1999. In support of the above, plaintiffs state as follows:
1. The plaintiff's complaint states a federal claim upon which relief can be granted, based on a clear and present harm to the plaintiff's exercise of free speech. Blackston v. Alabama, 30 F.3d 117, (11th Cir. 1994)
2. The plaintiff's complaint states a federal claim upon which relief can be granted, based on the defendants willful attempts to preclude the plaintiffs from recording the Committee's activities. Blackston v. Alabama, 30 F.3d 117, (11th Cir. 1994)
3. This Court has jurisdiction in this case, pursuant to 28 U.S.C. § 1331.
4. The plaintiff's complaint states a federal claim upon which relief can be granted, based upon the defendant's willful failure to include Blackston in the Alabama Supreme Court's Advisory Committee on Child Support Guidelines Updates, (Committee,) a violation of the 1994 "Release and Settlement Agreement," (Consent Decree,) paragraph six (6), Blackston v. Alabama, 30 F.3d 117, (11th Cir. 1994).
5. The Committee is an arm of the State of Alabama and all defendants act under color of state law.
6. The facts alleged in the complaint show a deprivation of first amendment rights to free speech and certain rights enumerated under a Consent Decree. Blackston v. Alabama, 30 F.3d 117, (11th Cir. 1994)
7. The defendants continue a previously adjudicated and illegal "policy" of excluding the plaintiffs from knowledge about the Committee based on "content-neutral" associations and viewpoints. Blackston v. Alabama, 30 F.3d 117, (11th Cir. 1994)
8. For claims under 42 U.S.C. §1983, the defendants are not immune under the Eleventh Amendment - the defendants waived their rights to any immunity in paragraph nine (9) of the Consent Decree. Harbert Int'l Inc. v. James, 157 F.3d 1271, (11th Cir. 1998.)
9. For claims under 42 U.S.C. §1983, the defendants are not immune under sovereign immunity - the defendants waived their rights to any immunity in paragraph nine (9) of the Consent Decree. Harbert Int'l Inc. v. James, 157 F.3d 1271, (11th Cir. 1998.)
10. For claims under 42 U.S.C. §1983, the defendants are not immune under legislative immunity - the defendants waived their rights to any immunity in paragraph nine (9) of the Consent Decree. Harbert Int'l Inc. v. James, 157 F.3d 1271, (11th Cir. 1998.)
11. For claims under 42 U.S.C. §1983, the defendants are not immune under qualified immunity - the defendants waived their rights to any immunity in paragraph nine (9) of the Consent Decree. Blackston v. Alabama, 30 F.3d 117, n.1 (11th Cir. 1994.)
12. In Blackston v. Alabama, 30 F.3d 117 (11th Cir. 1994,) defendant Judge Dorrough's actions touched on expressive conduct protected by the Free Speech Clause of the First Amendment.
13. In Blackston v. Alabama, 30 F.3d 117 (11th Cir. 1994,) defendant Judge Dorrough's actions may be regarded as a "time, place, and manner" restriction on expressive conduct.
14. The defendants misappropriated federal funds pursuant to The Family Support Act of 1988 (P.L. 100-485.), plaintiff Blackston has standing to sue under P.L. 100-485.
15. Plaintiff Blackston has a vested interest and standing, as a member of the Committee, to insure federal funds are properly allocated for the child support update process. E.F. Hutton & Co., Inc. v. Hadley, 901 F.2d at 984.
16. The plaintiffs are entitled to injunctive relief, Harbert Int'l Inc. v. James, 157 F.3d 1271, (11th Cir. 1998.)
17. The complaint states a cause of action against the defendants under the Alabama Constitution, Article I,§§ 4, 6, 13, 22, 25, 35 and Article IV §95. This Court should exercise it supplemental jurisdiction over the state law claims. The state law claims are intrinsically intertwined and run parallel to the federal law claims.
18. The complaint states a claim for relief against the defendants under the U.S. Constitution, Article I, § 10 (Obligations of Contracts).
19. The defendants must submit to clearly established law enumerated in Blackston v. Alabama, 30 F.3d 117, (11th Cir. 1994) and the ensuing Consent Decree, approved by the Middle District Court of Alabama.
20. In support of this motion, plaintiffs submit an amended Complaint to include additional facts and a memorandum brief attached hereto.
21. The defendant's Motion to Dismiss is laboriously frivolous and immaterial and creates unnecessary costs and delay.
22. Plaintiffs Blackston and Barber moves the court for an order to show cause, citing the precise provision of the Decree that the defendants allegedly disobeyed. (Consent Decree, paragraph 6, 9 & 10.)
23. Plaintiffs Blackston and Barber moves this Honorable Court to include the First Amendment claims and any other or further relief the plaintiffs may be entitled.
Respectfully submitted this the 8th day of July 1999.
______________________________
James R. Blackston
______________________________
Bradley W. Barber
National Congress for Fathers and Children
Birmingham, Alabama Branch
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