"Amended Complaint West Chester Borough"
CHESTER COUNTY COURT OF COMMON PLEAS ___________________________________________ ALI WARIS : 2204 Westfield Court : Newtown Square PA 19073 : Plaintiff pro se : v. : Civil Case: 11-01625 BOROUGH OF WEST CHESTER, ET. AL. : 401 East Gay Street : West Chester, PA 19380 : Defendant : _____________________________________________ NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ON AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral and Information Service Chester County Bar Association 15 West Gay Street, West Chester, PA 19380 0 (610) 429-1500 CHESTER COUNTY COURT OF COMMON PLEAS ___________________________________________ ALI WARIS : 2204 Westfield Court : Newtown Square PA 19073 : Plaintiff pro se : v. : Civil Case: 11-01625 : BOROUGH OF WEST CHESTER : 401 East Gay Street : West Chester, PA 19380 : Amended Complaint Defendant : : COUNCIL BOROUGH OF WEST CHESTER : 401 East Gay Street : West Chester, PA 19380 : Defendant : : COMMONWEALTH OF PENNSYLVANIA : Administrative Offices of PA Courts Suite 1414 : 1515 Market Street,Philadelphia,PA19102 Defendant : __________________________________________ : 1 1. Under Article I, Section 11, of the Pennsylvania Constitution which allows suits against the Commonwealth, Plaintiff ALI WARIS, respectfully, requests this Honorable Court to pronounce as unconstitutional: [A] the Noise Ordinance of the Borough of West Chester, Chester County, PA, Exhibit “A”, and the [B] Commonwealth of Pennsylvania Statute, Title 18, § 5102. 2. The request for such declaration is based on Plaintiff’s standing and an actual controversy stemming from the Borough of West Chester’s refusal to repeal a highly repressive ordinance which unreasonably, and selectively, restricts any human sound with and without a megaphone. 3. Standing also stems from the fact that the Plaintiff has been continually victimized by the judicial corruption in the two neighboring courthouses and which is destroying the Courthouse of the County of his residence [Chester County]. 4. Finally, standing also is based on the fact that Plaintiff is often called on Jury duty which he cannot honestly discharge knowing the judicial networking at the Courthouse. 2 JURISDICTION AND VENUE 5. This Court has original jurisdiction of the matter under Article V, Section 5 (b) of the Pennsylvania Constitution. Venue is proper, Plaintiff is a resident of Chester County, Pa. Defendant West Chester Borough and its Council are also located in the Chester County, PA. PARTIES 6. Plaintiff Ali Waris is an adult U.S. Citizen and a resident of Chester County, PA, residing at 2204 Westfield Court, Newtown Square, PA 19073. 7. Defendant-Respondent West Chester Borough is a small township of 18,000 population located in Chester County, PA. The Borough is purportedly run by an elected Mayor and an elected Council. 8. Defendant West Chester Borough Council has been involved in enacting the oppressive Noise Ordinance which is out of line with the law of the land and which the Council has refused to rescind in response to Plaintiff’s petition. 9. Defendant Commonwealth of Pennsylvania is the State of Pennsylvania that must respond to the unconstitutionally vague Statue under Title 18, Section 5102. 3 FACTUAL BACKGROUND 10. Plaintiff is a U.S. Citizen and has been a resident of Pennsylvania for decades. 11. Article I, Section 7 of the Pennsylvania Constitution provides: “. . . The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject. . .” 12. In regulating freedom, the government often exceeds its authority resulting in the infringement of the rights guaranteed to its citizen by its Constitution. 13. Because a vigilant protection of freedom of speech is the linchpin of our social framework, its infringement can have serious repercussions and, therefore, must be promptly addressed. 14. In Plaintiff’s County of residence a toxic culture is creeping in at an alarming rate. The actors, who have come to control the local government, apparently, have initiated repressive measures stifling the articulation of their corrupt practices. 4 15. Speech that purports to expose wrongdoing by public officials occupies the highest rung of First Amendment protection.1 16. This petition is to redress such unconstitutional behavior of the local and the state government and to restore the fundamental freedom that is guaranteed by the U. S. and the Pennsylvania Constitution. STATE OF THE PENNSYLVANIA JUDICIARY 17. Plaintiff must provide an account of the state of Pennsylvania judiciary to demonstrate that public protest is the only alternative available to him given that other channels to control judicial corruption have either been corrupted or are ineffective. 18. In these United States, about 22 states elect their judges in some form. 19. Judicial elections have given rise to a robust judicial industry fueled by special interest. Hundreds of millions of 1 Baldassare v. New Jersey, 250 F.3d 188, 194 (3rd Cir. 2001). 5 dollars are invested by the private sector in their judicial candidates nationwide. 20. Prominent financers of judicial elections include the insurance industry, the healthcare industry, the Plaintiff’s Lawyers Association, the Trial Lawyers Association. 21. The Commonwealth of Pennsylvania is also one of the states which elects its judges. 22. Whereas, the majority of the elected judges are honest and hardworking, a significant number of them are corrupt. 23. Also, certain local attorney groups heavily finance judicial candidates’ campaigns with the expectation of favorable rulings from these candidates upon their election. 24. Unlawful expectations from the afore-mentioned judicial networking frequently materialize, to the detriment of the opposing litigants, giving rise to a growing toxic culture. 25. Despite the fact that such judicial corruption is known to the legislators, and the executive branch, no effective remedy to such immoral arrangements has been devised. 26. Apparently, the ‘calculated’ apathy of the legislative and the executive branches is also fueled by the same sinister forces which have nested in the judiciary. 6 27. Thus both the state judiciary committee members, and the elected executives, market their silence and ‘inaction’ to the same industries that shop at the judiciary. 28. The Pennsylvania Judicial Conduct Board, expected to oversee the state judiciary, has been a laughing stock in the media for cover-ups and inaction. Plaintiff’s Experience 29. Plaintiff’s standing to request the declaration stems from his victimization by the malignant network and the denial of Plaintiff’s request, by the Borough of West Chester, to rescind the challenged Ordinance which restricts public protest. The Delaware County Court Case 30. Plaintiff in 2005 filed a claim at the Delaware County Court of Common Pleas [Delco Court] See Waris v. Keystone Health Plan East [Case: 05-12718]. 31. In the said case, a number of Judges apparently worked for the Insurer and one of them, Judge Kathrynann Durham, fraudulently changed the dates to bar Plaintiff’s appeal. 7 32. Superior Court Judge, Jackie Shogun, who on information and belief was insurance industry’s candidate, directly or indirectly, conspired with Judge Durham to subvert the judicial proceedings in favor of Blue Cross. The Chester County Court’s Networking 33. As noted earlier, Plaintiff is a resident of Chester County which falls under the jurisdiction of the Chester County Court of Common Pleas [“Chesco Court”] located in the Borough of West Chester. 34. The toxic culture pervasive in the adjacent Delco Court is also a reality at the Chester County Court of Common Pleas. Apparently, certain law firms are hired for their proximity to specific Judges. 35. It appears, the judicial modus operandi in the Chesco Court is more or less the same as other corrupt courts: First, the defense hires a lawyer because of his or her proximity to the Judge. Second, the Judge manipulates the discovery in his agent’s favor. Third, a jury trial is avoided by granting summary judgment. Fourth, in the tainted Opinion, the Judge suppresses all facts and case law favorable to the opposing party and cites only the facts and laws that are favorable to 8 his agent’s client. Fifth, the judge then disallows the amendment of the complaint. 36. There may be obvious patterns of such networks but the Chesco court does not make the supposedly public information available to the public. Researchers, wanting to study the patterns of specific Judge’s ruling in favor of specific lawyers, are unable to carry out such studies. When Plaintiff attempted to study the patterns of unlawful dealings in the Chesco Court, he was stonewalled. Nagle’s Control of the Township 37. Judge Nagle has been politically active and apparently has influenced the local governments to buy the services of BUCKLEY BRION McGUIRE MORRIS & SOMMER LLP [“Buckley Firm”], the law firm that he founded and which is located at 118 West Market Street, West Chester, PA 19382, a few blocks from the Chesco Court[house]. 38. On information and belief, more than two decades ago, the Buckley Firm [then Nagle Firm] managed to get the position of Solicitor of the Borough which it has maintained since. Now the Buckley Firm essentially runs the Borough of West Chester in a de facto fashion leaving the elected Borough Council to perform only trivial functions. 9 39. In a recent request for information under the Commonwealth’s Right To Know Law [RTKL], inter alia, about the Borough’s relationship with the Buckley Firm, the Buckley Firm lied in the response, on behalf of the Borough, and filed misleading affidavits to suppress the information. 40. Plaintiff appealed to the State’s Office of Open Records. Fortunately, the State Officer caught the Borough’s lies and falsification and ordered the Borough to produce the information. 41. Within hours of the State’s Order, the Borough ‘found’ the documents lying around which the Solicitor and Borough’s secretary had testified to be non-existant. 42. One would expect that the local newspaper would expose the dealings of the Borough. That, however, is not likely to happen because the only newspaper, The Daily Local News, apparently, is the direct beneficiary of the Borough; it gets the publication of the “Public Notices” and may be too small to make its ends meet without such benefit. 43. Evidently, the Chester County ‘wheelers and dealers’ have covered all their bases. 44. Public protest is therefore the only alterative left to the Plaintiff. 10 WEST CHESTER BOROUGH’S NOISE ORDINANCE 45. The Borough has enacted a Noise Ordinance [“Ordinance”] [Exhibit “A”] which unconstitutionally restricts free speech. Most likely it has been designed by the same corrupt operatives who are now nervously digging in their heels to not let the facts come out. 46. Recently, the Plaintiff wrote to the Borough Council and pointed out the unconstitutionality of the Ordinance and requested the Borough to repeal it. Plaintiff also supplied a copy of the case-law as enunciated by the U.S. Court of Appeals for the Third Circuit defining the parameters of free speech vis-à-vis government’s interest in regulating it. 47. On behalf of the Borough, the Buckley Firm in its letter of February 3, 2011, refused to repeal the Ordinance notwithstanding the fact that it is inconsistent with commonsense, specifically, with the law of the land. 48. Following are some of the highlights of the Noise Ordinance of the Borough of West Chester, Chapter 73, adopted by the Council on 3-19-1997 by Ord. No. 4-1997: 49. § 73-2 Defines ‘NOISE’ as: “Any sound emitted by a person, an appliance, equipment, an instrument, other device or animal.” 11 50. § 73-3 Prohibited Acts: “General prohibitions. It shall be unlawful for any person to make or cause to made a noise disturbance within the limits of the Borough of West Chester, except as otherwise permitted in this chapter.” Challenge: Facial Over-breadth and Vagueness 51. According to the §73-2 and §73-3 above, any human sound including normal conversation, even whispers, sneeze, cough, burp or fart, within the limits of the Borough, could violate the Ordinance. None of these humanly “emitted” sounds are listed under permitted sounds. Nor are the squeal of car brakes. Thus the wordings of the Ordinance are “inherently imprecise,” and therefore, “mathematical certainty is unattainable”2 Challenge: Substantive Due Process 52. Free speech is a general privilege that the Pennsylvania Constitution guarantees to all its citizens. This right can be taken away only under a Compelling Need Test. Given all other challenges discussed herein, the Ordinance fails the Compelling Needs Test and, therefore, violates Plaintiff’s substantive due process rights. Challenge: Equal Protection 2 Grayned v. City of Rockford, 408 U.S. 104, 109, [1972 ]. 12 53. Plaintiff is entitled to equal protection under the law which means the state should apply the law equally and should not discriminate between persons or class. 54. The Ordinance fails the equal protection test. §73-4, of the Ordinance lists certain noises which have been “exempted from the provisions” of the Ordinance: A. “Blasting”; B. “Band concerts, carnivals or other performances or similar activities, public or private sponsored and presented in any public or private space outdoors . . . “ E. “Noises created by organized school-related programs, activities, athletic and entertainment events or other public programs, activities or events. . .” So on and so forth. 55. Obviously, the only noise that the Borough does not like is the voice of bullhorns exposing the Borough’s toxic culture. Challenge: Restriction of Amplified Speech 56. The Ordinance specifically prohibits the use of “sound amplifiers or similar device which produces, reproduces or amplifies sound.” [See-§73-3(B)(1)]. 13 57. The Borough is oblivious of the law that amplified speech, such as through the use of bullhorns on the streets, is protected expression.3 Challenge: Failure to Provide Alternative 58. Conspicuous from its absence in the Ordinance are provision of any alternative avenues for the expression of Plaintiff’s protected speech. Also, an alternative is not enough “if the speaker is not permitted to reach the ‘intended audience.’”4 59. In conclusion, in light of the above tests, the Borough’s policy is not a time-place-manner regulation of public space and thus not narrowly tailored to protecting Borough’s legitimate interest. THE PENNSYLVANIA STATUTE 60. Pennsylvania Statute, Title 18, § 5102, [“Statute”] provides: 3 th Stokes v. City of Madison, 930 F.2d 1163, 1168-69 (7 Cir. 1991). 4 Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229 (9th Cir. 1990). 14 Obstructing or impeding the administration of justice by picketing. (a) Offense defined.-- A person is guilty of a misdemeanor of the second degree if he intentionally interferes with, obstructs or impedes the administration of justice, or with the intent of influencing any judge, juror, witness or court officer in the discharge of his duty, pickets or parades in or near any building housing a court of this Commonwealth, or in or near a building or residence occupied by or used by such judge, juror, witness or court officer, or with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence. 61. In mature democracies, it is expected that the government acts in a way that is fair and reasonable when making decisions that affect private individuals and that its actions are not arbitrary. 62. Fairness and reasonableness hinges basically on adequate notice, hearing and impartiality. Thus sufficient notice must be given in order to apprise affected parties of the importance of the action, afford them an opportunity to present objections, and enable them to determine what is being proposed and what must be done to protect their interest. 63. The language of the Statute belies the aforementioned elements based on the following flaws: Challenge: Vagueness and Overbreadth 64. The Statute forbids picketing in terms “so vague that 15 men of common intelligence must necessarily guess at its meanings and differ at its application.”5 65. Failure to define the word “near” (in near the Courthouse) and “obstructs” renders the Statue unconstitutionally vague. 66. From the Statute it is not clear if picketing is also prohibited in front of the Courthouse when it happens to be against the judicial corruption inside the Courthouse. Challenge: Lack of Due Process 67. Our Constitutional protection of free speech and assembly is basic and fundamental which encompasses social protest important to the preservation of freedom of a democratic society. 68. Streets and parks “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”6 69. Once these liberties are taken from the citizens, procedural due process requires sufficient notice, hearing and 5 Connnally v. General Construction Co., 269 U. S. 385 (1926). 6 Hague v. C.I.O., 307 U.S. 496, 515 (1939). 16 impartiality. If the language of a Statute is vague and imprecise, it cannot be considered as having fulfilled the procedural due process requirements. 70. The objections on the Constitutionality of Ordinance and the Statute presented herein are not exhaustive but rather to put the Defendants on notice. Additional discussion will be provided as the case develops further. PUBLIC PROTEST: THE ONLY REMEDY TO JUDICIAL CORRUPTION 71. As discussed above, there is no effective remedy to counter the dark forces corrupting the judiciary. If the public is not organized and educated on the corrupt practices, so pervasive in our courts, the public at large will continue to be short-changed. 72. Rogue Judges such as Ronald Nagle, Kathrynann Durham, and Jackie Shogun, along with their corrupt gate-keepers, such as the members of the judiciary committee, can only be put on notice by massive protests. These thugs in combination are acting like the termite-colonies by destroying the world’s most beautiful judiciary developed over centuries. There is a compelling need to publicly expose and remove them from public offices to protect the decency of this Commonwealth. 73. Plaintiff was summoned as a juror at the Chesco Court last October. If he was to attend a trial at the Nagle Court, he would have 17 been confronted with the question whether to share his experience, relating to the Judge, with his fellow Jurors. REMEDY PRAYED WHEREFORE, the Plaintiff demands that, following a trial, judgment be entered on Plaintiff’s behalf, against the Defendants, granting the following relief: 1. The Noise Ordinance of the Borough of West Chester be held unconstitutional. 2. The Pa. Statute Title 18, Section 5102, be declared unconstitutionally imprecise and vague. 3. Plaintiff’s cost of this action including reasonable attorney’s fees, should he hire one during the course of this litigation since the Borough turned down Plaintiff’s request to rescind the Ordinance to avoid litigation; 4. Such further and additional relief as the Court may deem is appropriate. Respectfully submitted this 13th day of May, 2011. Ali Waris Ali Waris, Plaintiff pro se 2204 Westfield Court Newtown Square, PA 19073 Tel: 713-408-3936 18 VERIFICATION I, Ali Waris, verify the statements contained in the foregoing Complaint are, materially and substantially, true and correct to the best of my knowledge, understanding of the law, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. So help me God. Sd. Ali Waris County of Chester Ali Waris Date: May 13, 2011 Certificate of Service I, the undersigned, certify that I have electronically served a true and correct copy of the foregoing Amended Complaint on Kristin S. Camp, Counsel for the Defendant, and by First Class mail on Pennsylvania Attorney General on May 13, 20117. Sd. Ali Waris Ali Waris 7 Plaintiff will be filing a Motion for Default Judgment on Monday May 16, 2011, against the Defendant Commonwealth which has been served the original Complaint. 19 E x h i b i t “A” 20