IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
CASE NO. 0:12-CV-00028-HRW
JOHN DAVID KENNARD, PLAINTIFF
CITY OF ASHLAND, KENTUCKY, ET AL., DEFENDANTS
PLAINTIFF JOHN DAVID KENNARD'S
MEMORANDUM OF LAW IN SUPPORT OF HIS
MOTION FOR SUMMARY JUDGMENT
1. The Plaintiff, John David Kennard, submits this Memorandum of Law in support of his Motion for Summary Judgment. Based on the allegations of the Complaint and Amended Complaint filed herein, and on the responses of the Defendants City of Ashland, Kentucky, and County of Boyd, Kentucky, it is clear that the Plaintiff John David Kennard is entitled to summary judgment as a matter of law on his claims against the Defendants City of Ashland, Kentucky, and County of Boyd, Kentucky.
2. This case is on remand from the Sixth Circuit Court of Appeals, Case No. 13-5406, with instructions for this Court to consider the procedural due process claim clearly set out in the Plaintiff's Amended Complaint.
3. Defendant City of Ashland filed a Motion for Summary Judgment on November 6, 2013, to which this Motion is Answer and Countermotion.
I. OPERATIVE FACTS
4. The Court has been fully briefed on the facts of this case previously, but the Movant rehearses the facts under penalty of perjury relevant to the resolution of the Plaintiff's procedural due process claim forthwith:
(a) On March 7, 2012, the Plaintiff was driven out of his wholly-owned home by officers and employees of Defendant City of Ashland for inability to afford utilities, and the doors of his home drilled and padlocked by them.
(b) At the same time, Plaintiff's eight housecats, feline persons Abbie; her daughter Squeaky and son Max; Maggie; (female) Gray; (male) Fumey; and Sunny and his sister Claudia, neutered, fully-domesticated indoor animals, the Plaintiff's sole companions for seven years to that date, timid and terrified of strangers, were dragged by officers and employees of Defendant City of Ashland by their necks using clamping poles from under and behind furniture and appliances rodeo-style as they tried to hide, caged, and taken to Defendant County of Boyd's Animal Control Center, in routine coordination therebetween.
(c) The Plaintiff spoke with County of Boyd Animal Control Center Director Paul Helton by telephone on two occasions during the first week thereafter, informing him that said feline persons had been seized from the Plaintiff's home and that the Plaintiff could not afford the ransom demanded for them of $20 apiece during the first week amounting to $160 total, rising to $60 apiece thereafter amounting to $480 total, and they were shortly thereafter routinely killed.
(d) All of the foregoing acts of violence were committed in routine coordination by Defendants City of Ashland and County of Boyd against the Plaintiff and his companions in the complete absence of any charge, trial, conviction, sentence or court order.
(e) The Plaintiff discovered two days after his eviction and the seizure of his companions that the Defendant City of Ashland was at that very time taking Federal monies from the Department of Housing and Urban Development’s Homelessness Prevention and Rapid Rehousing Program, via the Kentucky Housing Corporation, to prevent such evictions; immediately inquired by telephone as to how the City of Ashland could both take such monies and simultaneously evict poor and misfortunate citizens for inability to afford utilities; and was told “That’s a different department”.
5. Defendants City of Ashland and County of Boyd working routinely together violated in the most brutal way the Plaintiff’s fundamental human rights to be secure in his home and property, rights recognized by the Fourth Amendment to our Federal Constitution, as well as his rights to correspondingly-substantive due process guaranteed by both the Fourth and Fifth Amendments before such fundamental rights be invaded, in particular the right to trial:
By “correspondingly-substantive due process” he means that such fundamental human rights can only be invaded on substantial proof (not Executive or administrative or Legislative presumption) of substantial injury (no mere misdemeanor can ever justify such invasion) in substantial procedure, to wit trial overseen by the independent Judiciary provided for in our Constitutions both Federal and State.
Defendants also deprived the Plaintiff in the most brutal and permanent way of his long-time companionship with his eight housecats Abbie, Squeaky, Max, Maggie, Gray, Fumey, Sunny and Claudia.
6. In previous pleading in this case, Defendant City of Ashland asserted that its "police powers" were superior to the Plaintiff's Fourth and Fifth Amendment rights, an obviously un-Consitutional doctrine since the very definition of those powers is those not denied to government by our Federal Constitution, or explicitly vested thereby solely in the Federal government, or retained by the people, and restricted by the Fourteenth Amendment to those powers analogous to the Federal but not explicitly and solely vested in the latter (see below).
In its Motion for Summary Justice of November 6th, 2013, Defendant City of Ashland shifts its ground and admits the applicability of the Fourth and Fifth Amendments to the instant and similar cases but asserts a doctrine of "minimal" fulfillment of any procedural requirements involved.
All powers and rights originally and ultimately reside in the people. Every governmental power is a partial or complete transfer of one or more powers or rights from the people to government, and every power or right of the people not so transferred is a restriction or limitation of the power of government. Our American Federal Constitutional (and lesser statutory) system restricts governmental powers to those explicitly placed in government, retaining all others in the people: This doctrine was explicitly established by the people in the interpretative articles of our Federal Constitution, the Ninth and Tenth Amendments, themselves amended by the Fourteenth Amendment, which extends the powers and rights of the people as Federal citizens, and therefore restrictions on Federal governmental powers, to the people as State citizens as well, and therefore extending the corresponding limitations on Federal powers to the powers of the States as well.
It can easily be seen that our fundamental Constitutional doctrine and statutes minimize governmental powers and maximize the powers and rights of the people.
And any doctrine of "minimization" of the powers and rights of the people entirely contradicts this fundamental doctrine of our Constitutional system.
Indeed, Defendant City of Ashland not only asserts an un-Constitutional maximization of its powers and minimization of the powers and rights of the people residing therein, but its assertion that the Fourth and Fifth Amendments do not require independent Judicial mediation before driving the poor out of their wholly-owned homes and killing their pets for inability to afford utilities amounts not just to minimization but nullification of the powers and rights of the people involved as well as the authority of the Judiciary.
7. Finally, justice delayed is justice denied: It has been twenty months since the Plaintiff filed the present simple Constitutional and tort case against Defendants City of Ashland and County of Boyd, during which time he has been homeless due to the violence practiced upon him and his companions by them.
8. For all of the foregoing reasons, the Plaintiff John David Kennard prays that this Court enters summary judgment in his favor against Defendants City of Ashland and County of Boyd on his claim for compensation due to their violations of his Constitutional right to be secure in his home and property and to due process and for related injuries, and grants the reliefs sought in his Amended Complaint.
[This is a little rough, but I thought I had thirty days to respond to the City of Ashland's Motion for Summary Judgment; got nervous and double-checked, and found I only had twenty-one; pulled an all-nighter Tuesday night before last (I'd already grasped the argument, and used the City's Motion and Memorandum as my models); spent Wednesday scraping up printout, mailers, postage, etc., through the kindness of friends; and filed last Thursday.
[In particular, the third paragraph of section 6 should read at the end "the Fourteenth Amendment, which extends the powers and rights of the people as Federal citizens to them as State citizens, and the corresponding limitations on Federal powers to State powers—and the States cannot delegate powers they do not have to inferior jurisdictions such as municipalities and counties.")]