EXHIBIT B BRIEF IN SUPPORT OF MOTION TO VOID JUDGMENT PURSUANT TO RULE 60

EXHIBIT B

BRIEF IN SUPPORT OF MOTION TO VOID JUDGMENT PURSUANT TO RULE 60 (b) (4), VIOLATION OF THE FEDERAL CONSTITUTION, THE POWERS OF AND RIGHTS GUARANTEED THEREIN, AND VIOLATION OF FEDERAL AND STATE LAW

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BRIEF IN SUPPORT OF MOTION TO VOID JUDGMENT PURSUANT TO RULE 60 (b) (4), VIOLATION OF THE FEDERAL CONSTITUTION, THE POWERS OF AND RIGHTS GUARANTEED THEREIN, AND VIOLATION OF FEDERAL AND STATE LAW

1. That which is stated herein and stated in the Plaintiff s Motion is based in and supported by the National Constitution, fact and law, and can be demonstrated and proven before any Constitutional court of proper jurisdiction and jury of ordinary Citizens. Unfortunately, Plaintiff has observed virtually all courts which have heard cases involving what the courts refer to as “pro se” litigants, who are, in fact, American Citizens, dismiss all those cases before they ever reach a jury. The judges dismiss the cases, based on some pretext, usually unconstitutional, rob and deny the Citizens of the precious Constitutional Right to trial by jury, thus denying the Constitution, the powers of and the Rights guaranteed therein, and due process. “Conduct of trail judges must be measured by standards of fairness and impartiality.” Greener v. Green, 460 F. 2d. 1279 (U. S. Ct. App.). “A judge must maintain a high standard of judicial performance with emphasis upon conducting litigation with scrupulous fairness and impartiality.” Pfizer, Inc. v. Lord, F. 2d 532, cert. Denied 92 S. Ct. 2411, 406 U.S. 976. It is obvious by the court order that there was no “high standards of judicial performance” or “scrupulous fairness and impartiality.” Judge Brack told Plaintiff that he would be very sensitive to her disability, but this order demonstrates absolute lack of sensitivity. The order denies the Constitution, Plaintiff’s guaranteed Rights, due process, federal law and exonerates Defandant from wrongdoing and crimes committed against Plaintiff, which is totally devoid of any ”sensitivity”, and demonstrates contempt for the law, the Constitution and for Plaintiff.

2. Plaintiff questions why the courts, created in and responsible to the Constitution, are so reluctant to uphold the Constitution and the Rights of the American People, secured therein, and are fearful of Citizens who advocate their Constitutional Rights. “Rights can only be take away by due process in accordance with the Constitution.” Hale v. Henkle, 201 U.S., 43 at 74. It is obvious that Rights guaranteed by the Constitution, which guarantees due process, cannot be taken away or denied by due process guaranteed in the Constitution, yet that is what this court did, by court order. That court proceedings must be within Constitutional provisions has been forcefully established by the Supreme Court. See: Smith v. U.S., 360 U.S. 1; Muskrat v. United States, 219 U.S., 346. The People’s Courts discriminate against the Citizens and overly fawn upon the often incompetent and Constitutionally defiant attorneys. Since the actions of the federal courts and governments of this Nation and State of New Mexico, as well as the actions of and ruling from this court, demonstrate that these public servants have forgotten their duties to the People, pursuant to the National Constitution and oaths taken thereto, or know their duties, but disregard them, Plaintiff, by the actions of this Court and government, in the instant case, Defendant, is forced to remind them of their duties to the People, their duties to protect her Constitutionally guaranteed Rights, which were denied by this Court and the Defendant, and obey the Law of the Land. As widely and loudly “professed” by government of these united States, all States and divisions thereof, the Constitution is the law of the land. As such, it must be observed, respected and followed as the law of the land. All laws created by Congress for the American Citizens must be Constitutionally compliant and in agreement therewith, or they are null and void, with no force or effect, whatsoever, upon American Citizens, in the instant case, Plaintiff. “All laws which are repugnant to the Constitution are null and void.” Marbury v. Madison, 5 U.S. 137, 174, 176.; “A legislative act contrary to the Constitution is not law.” Carter v. Carter Coal Co., 298 U.S. 238. A law that “impinges upon a fundamental Right explicitly or implicitly secured by the Constitution is presumptively unconstitutional.” Mobile v. Bolden, 446 U.S., 55, 76; Harris v. McRay, 448 U. S., 297, 312.

3. Case law cannot be substituted for law, but rather, used in support of law, and that law must be based in and compliant with the Constitution to be valid. Case law is only a person’s interpretation of law, and “interpretation” of law is not authorized by the Constitution. Case law not based on a Constitutionally compliant law or case law that denies and opposes the powers of and Rights guaranteed in the Constitution, especially the Bill of Rights, is null and void, without force or effect whatsoever, and any court which uses Constitutionally non-compliant law or case law to support a ruling from that court denies the Constitution, provides no due process, as did this Court with its ruling, forfeits any claimed jurisdiction, and the ruling is null and void, without force or effect upon an American Citizen, in the instant case, Garcia. “A judgment entered in violation of due process is void.” World Wide Volkswagon V. Woodsen, 444 U.S., 286, 291; National Bank v. Wiley, 195 U. S., 257; Pennoyer v. Neff, 95 U.S., 714. “If the Bill of Rights is not complied with, the court no longer has jurisdiction to proceed. The judgment…pronounced by a court without jurisdiction is void.” Johnson v.Zerbst, 304 U.S., 458, 468.

4. Nowhere in the Constitution is it stated that the government, the States or divisions thereof are sovereign and exempt, held harmless or exonerated, or can be held so, by the courts, for wrongdoing and crimes committed against American Citizens, in the instant case, Plaintiff, or Citizens of New Mexico, namely, Plaintiff. No American government can declare itself sovereign and exempt itself from wrongdoing against Citizens, and no court has any Constitutional authority to do so for any government or division thereof, in the instant case, Defendant, and cannot use laws or case law opposed to and not in agreement with the Constitution to do so. If this were to be done, then that government and that court commits treason, as did this court. All laws must be in agreement with the Constitution and any law(s) not in agreement with the Constitution are null and void, as is non-compliant case law. “An unconstitutional law cannot operate to supercede any existing, valid law; indeed, insofar as a statute runs counter to the fundamental law of the land, it is superceded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” 16 Am. Jur 2d, 177, late Am Jur 2d, 256.

5. As stated, interpretation of law is not delegated or authorized by the Constitution, and Courts have no Constitutional authorization to create or change law. Since Courts have no authority to create law, they have no authority to exempt any government or division thereof, in the instant case, Defendant, from laws that prohibit wrongdoing to American Citizens, in the instant case, Plaintiff. The law cannot be interpreted beyond the language of the law, and neither added to nor deleted from. Laws must be specific, and must exist to be enforced. “If it is law, it will be found in the books; if it is not to be found there, it is not law.” Boyd v. U.S., 116 U.S., 616. In referring to law, a Supreme Court case reads: “…it is the established rule not to extend their provisions by implication beyond the clear import of the language used, or to enlarge their operation so as to embrace matters not specifically pointed out. In case of doubt, they are construed most strongly against the government and in favor of the Citizen.” Gould v. Gould, 245 U.S., 151 at 153. This court denied the Constitution, by court order, and no Constitutional Article or Amendment authorizes this Court to do so. Watson v. Memphis 375 U. S., 526; 10 L. Ed 529; 83, held that when a court violates the unambiguous language of the Constitution, fraud is perpetrated and no one is bound to obey it. This Court, by court order, including, but not limited to, has done the following: (A) denied the Constitution; (B) used case law and aspects of case law that are not in agreement with the Constitution, oppose and deny the powers of and Rights guaranteed in the Constitution, as bases for the ruling; (C) opposed federal law designed to protect the American Citizen, in the instant case, Plaintiff; (D) held harmless, exonerated and exempted government, in the instant case, Defendant, from wrongdoing and crimes committed against Plaintiff, an American Citizen and Citizen of New Mexico, which wrongdoing was overturned by the State Personnel Board, ignored by this court.

4. There is no delegated power of Sovereignty or immunity in the Constitution to any division of government, in the instant case, Defendant, with good reason. America “set up government by the consent of the governed and the Bill of Rights denies those in power and legal opportunity to coerce that consent.” West Virginia State Board of Education v. Barnette, 319 U.S., 624. The power of government is delegated by the Constitution and the People, and our founding fathers and the People were and are not foolish enough to delegate sovereignty and immunity to the government that “serves” the People. Were this to be so, then that government, as sovereign, would have dictatorial powers since it would be immune and held exempt from wrongdoing it commits against the People, and bear absolutely no responsibility to the People, which is antithetical to the intentions of our founding fathers. To have done so by those who wanted to guarantee “freedom” for the People through the Constitution, would have, instead, created slavery to a sovereign, immune and tyrannical government, without recourse, which this Court is duty bound to protect us from. Plaintiff does not believe that the former is the Court’s intention by its ruling, thus, moves the Court to reverse it.

5. Plaintiff is before the Court demanding her Constitutional Rights be honored and upheld, which this Court has failed to do, by court order. One aspect of this is the Constitution and the powers of and the Rights therein denied to Plaintiff by this Court. Another aspect, included within the total denial of the Constitution is due process and equal protection under the law. Another was to accept valid evidence that she had been terminated improperly and returned to duty, by the ruling of the State Personnel Board in overturning Defendant’s firing of Plaintiff. Plaintiff was fired while on FMLA, which is prohibited by federal law, yet ignored by this Court. Another is to be heard by competent courts of law on such matters, which courts honor and uphold the law of the land and Garcia’s Rights therein, pursuant to the oath taken by the presiding judge. Still another is that under due process, denied by this Court, Plaintiff receive trial by jury, which is her Constitutionally-guaranteed Right, and not have the case disposed of by a judge who denies the very law of the land. Further, Plaintiff has the Right to present evidence and have it considered by the jury, not the judge who denied the Constitution and most-likely never read her evidence, which is fully based in fact and law. Still further, Plaintiff made charges against Defendant her pleadings, which were not rebutted, with particularity, by Defendant in its responsive pleadings, thus, pursuant to FRCP 8(D), Defendant admits to her charges; yet the same judge who denied the Constitution, by order, took no notice of Defendant’s failure to rebut.

6. Since the Constitution is the law of the land, all public officers, including federal judges, have taken oaths to the Constitution. “But whenever the judicial body is called into play, it is responsible directly to the fundamental law and no other authority can intervene to force or authorize the judicial body to disregard it.” Yakus v. U.S., 321 U.S.. pg. 468. No federal judge is authorized to deny the Constitution, as did Brack, and all are directly responsible to it. The Constitution upholds the Rights of American Citizens. American Citizens are Sovereign in this Nation. An enemy of America (The People) is one who wants to harm or destroy America, (The People), denies and defies the law of the land and harms the Sovereign by denying her Rights, in the instant case, Plaintiff, and especially, even more so, a public officer or federal judge, as Brack did with his order. Treason is defined, in part, as adhering to the enemy and giving aid and comfort to the enemy, who is one who harms the Sovereign and opposes, denies or defies the Constitution. A public officer or judge who denies the Constitution and harms the American Citizen by denying that Citizen her Rights guaranteed in the Constitution, as Brack did to Plaintiff, gives aid and comfort to the enemy and commits treason. An enemy who harms the government harms the People, since the government is the servant of and direct representative of the People, charged with upholding their Rights, and serves the People pursuant to the Constitution and oaths taken thereto.

7. In denying Plaintiff her Constitutional Rights, Brack denied due process, the Bill of Rights and all Constitutional Rights, which are essential elements in the American judicial system. Without these elements, there is no justice, no valid ruling, and that ruling is void. See: World Wide Volkswagon; National Bank; Pennoyer; Johnson.

8. No judge in the State of New Mexico was covered by valid surety bonds and thus could not discharge duties, and the Court is aware of these facts. Plaintiff now demands the Court void the judgment for lack of jurisdiction to aid and abet the state of anarchy active within the State Government of New Mexico, another Constitutional Right provided her under Sections 3 and 4 of the Fourteenth Amendment.

II. ISSUE: Did the Court Lack Jurisdiction to Aid and Abet Anarchy in the State of New Mexico?

1. A state of anarchy exists in the State Government of New Mexico about which the Court has detailed knowledge. See Tast v. Gaming Control Board, et al[1], CIV04-320/DJS: MEMORANDUM OF LAW EXPOSING AND OPPOSING THE STATE OF ANARCHY IN THE STATE OF NEW MEXICO, filed May 14, 2004.

2. The Fourteenth Amendment enacted laws, under specific power granted to the Congress, to prevent state and federal public officers from holding office after having taken an oath to support the Constitution of the United States and thereafter setting aside either state or federal laws, intentionally, with sufficient force and effect, by using the public office held to engage in or aid and abet insurrection. See 18 U.S.C. § 2384; In Re Charge to Grand Jury, 62 F. 828, which addresses aiding and abetting insurrection; Sections 3 and 4, Fourteenth Amendment, Const. U.S.

3. The Court possessed information that a state of anarchy exists in the State Government of New Mexico during times relevant.

4. When a judge, state or federal, engages intentionally in actions which dishonor the oath to support the Constitution of the United States, taken upon entering the office to which appointed or elected, he denies the power of the United States Constitution. Supra.

5. A person assigend duties as a judicial officer, addressed in Clause 3, Article VI, Constitution for the United States of America, who intentionally takes action contrary to Paragraphs 1 or 2 or 3, or 4 above, ceases to hold office in the worst case and lacks jurisdiction to act in the best case. Supra.

6. Any judgment rendered was without jurisdiction and void. Fed. R. Civ. P., Rule 60(b)(4).

The judicial officers assigned duties with the Court were provided sufficient information by Plaintiff for action within its statutory jurisdiction and chose, instead, to act beyond the jurisdiction granted the Congress by the Constitution for the United States of America. The action taken resulted in a judgment which aided and abetted the state of anarchy, engaged in by the persons holding office within the Government of New Mexico, which is a federal issue and which is intentionally contrary to Clause 3, Article VI, Constitution for the United States of America. Since the judicial officers assigned to hear and determine the case captioned acted without jurisdiction, the judgment is void under Rule 60(b)(4), and no statute of limitation attaches. The Court does have jurisdiction to settle the issue with finality by issuing an order to the Governor sufficient to end the anarchy within the State Government of New Mexico which Plaintiff urges the Court to do without delay.

The Court lacks jurisdiction, thus, authority, to aid and abet anarchy in the State Government of New Mexico and to deny the National Constitution.

Certificate of Service

I certify that on this ___ day of December, 2004, a true and correct copy of the foregoing Memorandum in Support of Motion to Void Judgment was sent by U.S. Mail, first class, postage prepaid to:

Mark Komer

Long, Pound & Komer, P.A.

P.O. Box 5098 – 2200 Brothers Road 87501

Santa Fe, New Mexico 87502

_______________________

Unnamed American Citizen

[1] Case was removed by government defendants from Eleventh Judicial District Court, New Mexico to this Court and later remanded. Case is before the Court on Motion to Reinstate because the State Government of New Mexico has clearly and decisively demonstrated that it cannot and will not enforce its own laws; and thereby, is extremely defective. Osborn v. Banks of the United States, 9 L. Ed. 728, 819.