considered. The Amended Complaint also attempts to add new "Defendant-Principals" to the defendants in Case No. 81-1345 in which the federal judges and the Clerk of court are defendants. The newly named defendants are Peter T. Cenarrusa, the Idaho Secretary of State, and two companies who bond the employees and public officials of Idaho for a total of $ 4 million, the United Pacific Insurance Company and Safeco Insurance Company of America. Also identified as defendants were any and all other insurance carriers who might subsequently be discovered to be liable on the bonds of Idaho public officials.
The Amended Complaint alleges that the Secretary of State is guilty of various federal crimes, including treason as proscribed by 18 U.S.C. § 2381, because he allegedly violated certain provisions of the Civil Rights Act, to wit, 42 U.S.C. § 1983 (Civil Action for Deprivation of Rights); § 1985 (Conspiracy to Interfere with Civil Rights); and § 1986 (Action for Neglect to Prevent Conspiracy). Violations of such statutes do not constitute treason which consists of making war against the United States or adhering to its enemies. 18 U.S.C. § 2381.
Plaintiffs' allegation of treason is farcical.
In substance the theory of plaintiffs' amended complaint is that the Secretary of State of Idaho has not taken the proper official oath, is thus acting in excess of his authority, and is therefore prohibited from supervising elections under Idaho's election laws. This theory is deficient in law because the oath taken by the Secretary of State complies with the United States Constitution and with the Idaho statute to the extent that it is valid. In 1963 the Idaho legislature provided that officials and employees in the State of Idaho must take a statutory oath (1) to support the Constitution of the United States and the Constitution and laws of Idaho, and (2) in addition to take a so-called "loyalty and test oath." The oath to support the Constitutions of the United States and Idaho and its laws was held to be valid, but the loyalty and test oath features were determined to be unconstitutional, by a three-judge federal court in Heckler v. Shepard, 243 F. Supp. 841 (D.C.Idaho 1965).
The court's judgment declared that the loyalty oath features of the statute violated the due process requirements of the Fourteenth Amendment and issued an injunction prohibiting enforcement of that portion of the oath held unconstitutional by the court's decision. Plaintiffs' Amended Complaint now filed in 81-1345 is principally based on a refusal to recognize the controlling effect of the federal court's decision in Heckler.
Plaintiffs' Amended Complaint asserts that the reliance placed by the Secretary of State upon the Heckler injunction is improper. This court disagrees with that theory. The decision in Heckler v. Shepard is controlling and it appears from the exhibits to the Amended Complaint itself that P. T. Cenarrusa, on the 20th day of December 1978, took a valid and adequate oath to "support the Constitution of the United States, and the Constitution and laws of the State of Idaho (and to) ... faithfully discharge all the duties of the office of Secretary of State of the State of Idaho for (the) four year term effective January 1, 1979." (Exhibit A). This oath complies with the United States Constitution, Article VI, Clause 3, which provides "all executive ... officers, both of the United States and of the several states, shall be bound by oath or affirmation to support this Constitution ..." The oath also complies with the valid part of the Idaho statute, I.C. 59-401 that remained after the decision in Heckler. It thus appears from the face of the Amended Complaint that plaintiffs' entire theory is unsound, not supported by law, contrary to the controlling decision in Heckler v. Shepard and fails to state a cause of action against Cenarrusa upon which relief can be granted. Because the asserted liability of the insurance carriers identified in the Amended Complaint is premised wholly on the contention that the officials covered by the bonds issued by the carriers are in default, the absence of any of those officials as defendants herein makes recovery against the carriers impossible. On the court's own motion, the Amended Complaint is therefore dismissed with prejudice
as to the defendants identified therein.
(2) The second document filed is a Motion for a Stay of the Elections in Idaho set for May 25th. The basis for the motion was the same untenable theory alleged in the Amended Complaint. This motion was denied by a separate order of this court entered on May 24, 1982.
Also included with the filings were the third and fourth documents: (3) a "Demand for Martial Law in Idaho addressed to the President of the United States" and (4) a communique to "All Voters of Idaho, and Media." This demand and communique are further exemplifications of the same false theory alleged in the Amended Complaint and referred to above. While these two documents are filed with the papers in this case, they are neither pleadings nor relevant to any pleadings filed herein and are therefore stricken as surplusage.
(5) A fifth document entitled "Motion to Assign a New and Honest Judge" was addressed to the Chief Judge of the Court of Appeals and has been referred to him for consideration.
IX. Plaintiffs' Litigative Tactics
The plaintiffs' abuse of the court and its processes in these cases fully justifies that consideration be given to some future restraint of plaintiffs' litigious tendencies. Their misunderstanding of legal theories and procedures appears to be part of an ingrained obsession that does not respond to rational explanation or decision. In such cases courts are moved to take affirmative steps to protect and conserve their resources. The Supreme Court of Idaho after its experience with plaintiffs' abuse of the courts and legal procedures in that state found it necessary to prohibit plaintiffs from filing any pro se complaints without prior approval of the Supreme Court of Idaho. Eismann v. Miller, 101 Idaho 692, 619 P.2d 1145 (1980).
The United States Courts in the District of Columbia recently had a similar experience with a different litigant. In In Re Green, 215 U.S. App. D.C. 393, 669 F.2d 779 (D.C.Cir.1981), the Court of Appeals directed the District Court to enter an order enjoining pro se litigant Green from filing any action except with the prior consent of the District Court. See also Board of County Commissioners v. Howard, 640 P.2d 1128 (Colo.1982). Some such remedy may be necessary with plaintiffs as, in some respects, the abuse in this case based on the action of the court in 81-0654 is even worse than in Green because plaintiffs are directing their vituperative complaints, motions, notices, demands, etc., at the very judges who must decide their cases and who have absolute immunity from such civil suits. If plaintiffs continue such tactics, attempting to pick their judges and courts and to castigate and designate as a defendant every judge who rules against them on any matter, however small, some permanent restriction may be necessary and payment of attorney's fees may be required. However, for the time being, my decision is for the court to defer the imposition of such remedies until the next time, if there is a next time, that the plaintiffs resort to such serious abuse of the court and its processes.
As pro se complainants, appellants are entitled to have their lack of ability and knowledge of legal principles and procedures given sympathetic consideration, Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595, 30 L. Ed. 2d 652 (1972), and their complaint construed to do substantial justice. Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). Plaintiffs complain that their complaint has been unjustly characterized as a "joke by some." It is certainly no joke to this writer to be required to read, analyze and come to a decision on the 600 pages of pleadings, memoranda and exhibits that plaintiffs have set forth in 81-1345 and incorporated therein by reference.
It was impossible for the court to deal with the merits of plaintiffs' claims in 81-0654 that lie hidden beneath their barrage of disjointed allegations and mistaken legal theories that are levied against practically the entire government and large segments of its citizens and officials, most of whom to date seem to have disagreed with plaintiffs in some particular. Plaintiffs' incomprehensible and largely conclusory allegations, accusations and declarations so confuse their whole case, if they have one, that parties and courts were and are unable to consider it. Because of the lack of specificity, and the disjointed generalized allegations and declarations, it was impossible for any person to frame a responsive pleading to plaintiffs' complaint in No. 81-0654 and Judges Pratt and Johnson were thoroughly justified in ordering dismissal, without prejudice, with leave to amend.
As for the complaint in 81-1345, for reasons set forth above it is ordered dismissed with prejudice to plaintiffs for failure to state a claim upon which relief may be granted. Their case must be dismissed basically because the judges here designated as defendants were acting within their jurisdiction and have absolute immunity from any civil suit for damages or other civil relief. Such disposition of 81-1345 makes it unnecessary to rule upon (1) the compliance of the complaint with Rule 8(a) and (e), (2) plaintiffs' refusal to appear and prosecute their claim, and (3) whether the court was required to rule on plaintiffs' motions and complaints because of the numerous instances where it appears from the record that there was a failure on the part of plaintiffs to serve opposing counsel with process and pleadings.
The above may be considered as the court's findings of fact herein. It, therefore, follows as a conclusion of law that plaintiffs' Complaint and Amended Complaint with respect to the named and identifiable defendants must be dismissed with prejudice, that the complaint with respect to the remaining defendants is dismissed without prejudice, and that the demand upon the President for Martial Law in Idaho and the communique to "All Voters of Idaho and Media" be stricken as surplusage, for reasons above set forth.
An Order follows disposing of the case in accordance with the foregoing opinion.
On consideration of plaintiffs' complaint, amended complaint and all exhibits and matter incorporated therein by reference or referred to in the record, and the government's motion to dismiss, on the basis of the entire record, pleadings and proceedings herein, it is hereby
Ordered and Adjudged, that plaintiffs' complaint, and amended complaint, for reasons set forth in the foregoing MEMORANDUM OPINION, are
(1) with respect to defendants Johnson, Pratt, Bryant, Davey, Cenarrusa, the United Pacific Insurance Company, Safeco Insurance Company of America and the United States District Court for the District of Columbia, dismissed with prejudice for failure to state a claim upon which relief can be granted;
(2) with respect to the remaining defendants, and every other person designated or described by plaintiffs as a defendant and the 350 John Doe Persons Unknown, sua sponte dismissed without prejudice for failure to prosecute; and
(3) the Demand upon the President for Martial Law in Idaho and the Communique to "All Voters of Idaho and Media" are stricken as surplusage.