IN THE CHANCERY COURT OF JACKSON COUNTY, MISSISSIPPI

 

ISRAEL BRIGGS, Movant, v. Seantay Jackson, Respondent.

Civil Action No.: 30CH1:-cv-01968-MAM

 

NOTICE OF SPECIAL APPEARANCE, MOTION TO RECUSE, QUASH & DISMISS

 

Israel J. Briggs

7851 Ulysses Dr.

Moss Point, MS 39562

Telephone: (228) 369-3411

 

PRO SE

 

Pursuant to Rule 12(b)(2),(4),(5),(6), Rule 41(b) of the Mississippi Rules of Civil Procedure (“MRCP”) and the US Constitution, Movant Israel Briggs moves to quash Respondent’s summons and service and dismiss with prejudice all claims asserted against him in Respondent’s Petition. Doc. 14. 

Notice of Special Appearance

Movant makes notice of intent to make special appearance at the 22 January 2021 hearing for the sole purpose of testing the notion of the Court having personal jurisdiction over him and whether or not process and service was sufficient and nothing.  Movant objects to being compelled under threat of sanction or confinement to give any testimony or present any evidence or take any act in further of the trying of Respondent’s petition.  Any manifestly erroneous adjudication may be remedied in accordance with Rule 5 of M.R.A.P. by interlocutory appeal.

 

Summary

The Respondent’s summons and service must be quashed and claims must be dismissed.  Process is insufficient due to the Clerk issuing two conflicting summonses for a single complaint, the opposing counsel’s failure to serve summonses on Movant 30 days prior to scheduled hearing, and the process server’s serving on Movant two conflicting summonses with a single copy of complaint.  Movant is entitled to equal protection of the State’s required fundamental procedural fairness for those facing the deprivation of life, liberty, or property, pursuant to the US Constitution 5th and 14th.  These defects of process and process of service invalidate this Court’s personal jurisdiction over Movant which would make any judgment, decree or order (final or temporary) invalid and their enforcement an act of deprivation of Movant’s US Constitutional rights.  Furthermore, the Respondent fails to make any claim for which she is entitled relief.

 

Citation of Authorities

RULE 1. SCOPE OF RULES

 

“These rules govern procedure in the circuit courts, chancery courts, and county courts in all suits of a civil nature, whether cognizable as cases at law or in equity, subject to certain limitations enumerated in Rule 81; however, even those enumerated proceedings are still subject to these rules where no statute applicable to the proceedings provides otherwise or sets forth procedures inconsistent with these rules. These rules shall be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action”;

 

RULE 4. SUMMONS

(a) Summons: Issuance. Upon filing of the complaint, the clerk shall forthwith issue a summons.;

 

RULE 12. DEFENSES AND OBJECTIONS

 

 (b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

. . .

(4) Insufficiency of process

(5) Insufficiency of service of process

. . .

No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.;

 

Rains, 731 So.2d at 1195 (finding that the defendant preserved insufficiency of process as an affirmative defense by asserting it in the initial pleadings and in the answer); 

 

Heard v. Remy, 937 So.2d 939 (Miss. 2006) (finding that even though the defendant did not specifically use the phrases “insufficiency of process” or “insufficiency of service of process,” his Rule 4(h) defense was sufficiently set forth and preserved in the initial responsive pleadings); 

 

Young v. Huron Smith Oil Co., 564 So.2d 36 (Miss. 1990) (holding that the defendant waived insufficient service of process as an affirmative defense by failing to assert it in a timely manner pursuant to M.R.C.P. 12). ;

 

Once the responsive pleadings have been filed, a party’s failure to plead a Rule 4(h) objection by filing a Rule 12(b)(4) or (5) defense constitutes waiver. Heard, 937 So.2d at 941.;

 

[A] moving party has a choice of making a M.R.C.P. 4(h) objection to process by filing a M.R.C.P. 12(b)(4) or (5) motion prior to filing a responsive pleading; by asserting other general affirmative defenses; or by filing them simultaneously therewith. The M.R.C.P. 4(h) defense is waived only after the filing of an answer or affirmative defenses if the defense is not asserted prior to or simultaneously within the answer. See Rains, 731 So.2d at 1195;

 

RULE 81. APPLICABILITY OF RULES

 

“(a) Applicability in General. These rules apply to all civil proceedings but are subject to limited applicability in the following actions which are generally governed by statutory procedures.”

…

“(3) proceedings pursuant to the Youth Court Law and the Family Court Law;”

…

“(d) Procedure in Certain Actions and Matters. The special rules of procedure set forth in this paragraph shall apply to the actions and matters enumerated in subparagraphs (1) and (2) hereof and shall control to the extent they may be in conflict with any other provision of these rules.”

…

“(1) The following actions and matters shall be triable 30 days after completion of service of process in any manner other than by publication or 30 days after the first publication where process is by publication, to-wit: adoption; correction of birth certificate; alteration of name; termination of parental rights; paternity; legitimation; uniform reciprocal enforcement of support; determination of heirship; partition; probate of will in solemn form; caveat against probate of will; will contest; will construction; child custody actions; child support actions; and establishment of grandparents’ visitation.

(2) The following actions and matters shall be triable 7 days after completion of service of process in any manner other than by publication or 30 days after the first publication where process is by publication, to wit: removal of disabilities of minority; temporary relief in divorce, separate maintenance, child custody, or child support matters; modification or enforcement of custody, support, and alimony judgments; contempt; and estate matters and wards’ business in which notice is required but the time for notice is not prescribed by statute or by subparagraph (1) above.”

 

Rule 81(d)(6) provides that as to any temporary hearing in a pending action for divorce, separate maintenance, child custody or support, notice in the manner prescribed by Rule 5(b) shall be sufficient, provided the defendant/respondent has already been summoned to answer.;

 

“The rules which govern service of process should be `applied in a manner that will best effectuate their purpose of giving the defendant adequate notice.'” Johnson, 952 So.2d at 160 (Graves, J., dissenting) (citing Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988)).(emphasis added)

 

“[u]ntimely service of process is insufficient service of process.” Heard v. Remy, 937 So.2d 939, 942 (Miss. 2006). (emphasis added);

 

• 93-9-5 – Application of Uniform Law on Paternity

“Sections 93-9-1 through 93-9-49 apply to all cases of birth out of lawful matrimony as defined in Section 93-9-7.”;

 

• 93-9-7 – Obligations of father

“The father of a child which is or may be born out of lawful matrimony is liable to the same extent as the father of a child born of lawful matrimony, whether or not the child is born alive, for the reasonable expense of the mother’s pregnancy and confinement, and for the education, necessary support and maintenance, and medical and funeral expenses of the child.”

…

“(1) Paternity may be determined upon the petition of the mother, or father, the child or any public authority chargeable by law with the support of the child; […]” ;

 

The Mississippi Supreme Court “Yet, a paternity action is not the most convenient or appropriate forum for determining the best interests of the child where custody actions are arranged to effectively and exhaustively address the issue. The best interests of the minor child at the heart of this action was best addressed in the divorce proceeding or in a separate custody action, not in the paternity action.” See Griffith v. Pell, 881 So. 2d 184 (Miss. 2004) (Rutland v. Pridgen, 493 So. 2d 952, 954 (Miss. 1986) ) (Affirming the Court of Appeals’ holding that a best interest determination is inappropriate for paternity suits.);

 

Furthermore, upon acknowledging the child as his own, the father has an equal claim, with the mother, to the parental and custodial rights to the child. Citing Smith v. Watson, 425 So. 2d 1033 N. Hand, Jr., Mississippi Divorce, Alimony and Child Custody 271 (1981).;

 

• 93-9-28 Voluntary paternity acknowledgement

“(1)When such form has been completed according to the established procedure and the signatures of both the mother and father have been notarized, then such voluntary acknowledgement shall constitute a full determination of the legal parentage of the child.”

…

“The name of the father shall be entered on the certificate of birth upon receipt of the completed voluntary acknowledgement.”;

 

• 93-15-107. Involuntary termination of parental rights;  commencement of proceedings;  parties;  summons

“(1)(a) Involuntary termination of parental rights proceedings are commenced upon the filing of a petition under this chapter.  […]”

…

“(b) The proceeding shall be triable, either in term time or vacation, thirty (30) days after personal service of process to any necessary party or, for a necessary party whose address is unknown after diligent search, thirty (30) days after the date of the first publication of service of process by publication that complies with the Mississippi Rules of Civil Procedure.”;

 

• 93-5-24. Custody order;  access to information

“(6) Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.

(7) There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.”;

 

Fundamental Rights are rights that are so “implicit in the concept of ordered liberty” that “neither liberty nor justice would exist if they were sacrificed.” See Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S. Ct. 149, 152, 82 L. Ed. 288 (1937); McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc).;

 

The Supreme Court has recognized that fundamental rights include those guaranteed by the Bill of Rights as well as certain liberty, associational and privacy interests implicit in the due process clause and the penumbra of constitutional rights. See Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2267; Paul v. Davis, 424 U.S. 693, 712-13, 96 S. Ct. 1155, 1166, 47 L. Ed. 2d 405 (1976).;

 

These special “liberty” interests include “the rights to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, and to bodily integrity.” Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2267;

 

The United States Supreme Court has recognized the right of parents to be and active and integral part of their children’s lives as “perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court.” Troxel v. Granville, 530 U.S. 57 (U.S. 2000);

The familial right of association is based on the “concept of liberty in the Fourteenth Amendment.” see Kraft v. Jacka, 872 F.2d 862, 871 (9th Cir. 1989) (basing protection of intimate associational rights on the fourteenth amendment); IDK, Inc. v. Clark County, 836 F.2d 1185, 1192 (9th Cir. 1988) (same); cf. Swank v. Smart, 898 F.2d 1247, 1252 (7th Cir.) (stating intimate associational rights not protected by the first amendment), cert. denied, 112 L. Ed. 2d 113, 111 S. Ct. 147 (1990).;

 

The Fourteenth Amendment embodies three different protections: (1) a procedural due process protection requiring the state to provide individuals with some type of process before depriving them of their life, liberty, or property; (2) a substantive due process protection, which protects individuals from arbitrary acts that deprive them of life, liberty, or property; and (3) an incorporation of specific protections afforded by the Bill of Rights against the states. See Miller v. Campbell County, 945 F.2d 348, 352 (10th Cir. 1991), cert. denied, 117 L. Ed. 2d 419, 112 S. Ct. 1174 (1992).;

 

The court must weigh the individual interests to determine whether the conduct of the governmental actor constituted an undue burden on a parent’s associational rights. See Hodgson, 110 S. Ct. at 2943 (familial privacy interests protected against undue state interference);

 

Roberts, 468 U.S. at 617-18 (“choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State”);

 

A Fundamental right may only be limited in circumstances where the government’s interest in a specific matter of public importance outweighs the individual’s fundamental right, and where the limitation on the fundamental right is as narrow as possible for achievement of an important governmental goal. In classic fourteenth amendment liberty analysis, a determination that a party’s constitutional rights have been violated requires “a balancing [of] liberty interests against the relevant state interests.” Youngberg v. Romeo, 457 U.S. 307, 321, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982).;

 

This balancing of interests has been applied in cases involving intimate association rights. See Winston ex rel. Winston v. Children & Youth Servs., 948 F.2d 1380, 1391 (3d Cir. 1991), cert. denied, 119 L. Ed. 2d 225, 112 S. Ct. 2303 (1992); Arnold, 880 F.2d at 313; Franz, 791 F. Supp. at 833; Aristotle P. v. Johnson, 721 F. Supp. 1002, 1010 (N.D. Ill. 1989); Whitcomb v. Jefferson County Dep’t of Social Servs., 685 F. Supp. 745, 747 (D. Colo. 1987).;

 

Arnold, 880 F.2d at 312 (right protected against “unjustified interference” from the government). If the action of the court or governmental actor constitutes an unreasonable intrusion into the associational right it is not allowed and will not be constitutionally tolerated.;

 

The Court expressly held that the interest of a parent, who has temporarily lost custody of his child, in avoiding elimination of his “rights ever to visit, communicate with, or regain custody of the child” is important enough to entitle him to the procedural protections mandated by the Due Process Clause. See Santosky v. Kramer, 455 U.S. at 749, 753-54;

 

The Supreme Court recognizes that a father’s relationship with his children is such a right. Justice Marshall, speaking for a unanimous Supreme Court, stated “a [once] married father who is separated or divorced from the mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 434 U.S. 246, 255-56, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978);

 

The Court took for granted that the interest of a divorced father in the preservation of his visitation rights is a “liberty interest” sufficient to trigger the application of procedural due process doctrine.;

 

The freedom of intimate association is a substantive due process right, as is its subset, the familial right of association. See Miller v. Campbell County, 945 F.2d 348, 352 (10th Cir. 1991), cert. denied, 117 L. Ed. 2d 419, 112 S. Ct. 1174 (1992).;

 

• 32.1-257. Virginia Code 1950, Amend. Filing birth certificates; from whom required; signatures of parents.

“the name of the father shall not be entered on the certificate of birth without a sworn acknowledgment of paternity, executed subsequent to the birth of the child, of both the mother and of the person to be named as the father.”;

 

• 63.2-1914. Virginia Code 1950, Amend. Hospital paternity establishment programs.

“Hospitals shall send the original acknowledgment of paternity containing the social security numbers, if available, of both parents, with the information required by Article 2 (§ 32.1-257 et seq.) of Chapter 7 of Title 32.1, to the State Registrar of Vital Records so that the birth certificate issued includes the name of the legal father of the child.”;

 

The Mississippi Supreme Court has found that natural parents are entitled to custody of his or her child, stating, 

“The parent has abandoned the child;

The conduct of the parent is so immoral as to be detrimental to the child; or

The parent is unfit mentally or otherwise to have custody.

Absent clear proof of one of the above circumstances, the natural parent is entitled to custody of his or her child.” Rutland v. Pridgen, 493 So.2d 952, 954 (Miss. 1986); McKee v. Flynt, 630 So.2d 44, 47 (Miss. 1993).( Rutland v. Pridgen, 493 So. 2d 952, 954 (Miss. 1986)).

• Recusal of Chancellor

The Movant objects to this Chancellor presiding over this case.  This Chancellor has also been appointed to preside over a separate case involving Movant.  Information from this other case gives this Chancellor personal knowledge of evidence that is outside the of this case that can prejudice Movant.  Also, Movant has also moved for recusal of this Chancellor in that other case which is currently pending hearing.  For the reasons outlined in the other case’s Motion for Recusal and the above, the Movant moves that this Chancellor be recused from this case as well.

• Lack of Personal Jurisdiction

Due to insufficient process and service of process, has yet to establish personal jurisdiction of Movant necessary to try this action.

• Respondent’s process of service is defective and insufficient

The Respondent has erroneously served a Rule 4 summons and a Rule 81 summons upon the Movant resulting in insufficient notice.  These two forms of summons es conflict with each other as one requires an answer and no appearance while the other requires appearance but no answer.  The Movant is entitled under the U.S. Constitution to procedural due process which includes accurate defect free service of process that gives sufficient or fair notice of what the law requires.  The Clerk’s issuance of summonses under these conflicting M.R.C.P. Rules is convoluted and deprives Movant of a fair notice of what the law requires.  Furthermore the process server served upon Movant only served on copy of the compliant rather than a copy for each summons as prescribed in MRCP Rule 4.

• Respondent’s process is defective and insufficient

The Respondent has erroneously deprived Movant of procedural due process by serving upon him summons to appear for a hearing that was scheduled 10 days from Movant being served.  Outside of the Respondent serving upon Movant an inapplicable Rule 4 summon, the matters at issue are subject to Rule 81 of the M.R.C.P. and are only triable 30 days after service of summons is completed.  The Respondent’s claim cannot be tried on January 22, 2021 without egregiously prejudicing Movant by allowing him only 10 days to prepare for this hearing contrary to the 30 days of preparation afforded to every other citizen of the State of Mississippi.  

• Alternatively, Respondent has failed to state a claim for which relief can be granted

 The relief for the Respondent’s claims cannot be granted as a matter of law.  Due to insufficient service of process and insufficient process none of the Respondent’s claims can be granted relief at the January 22, 2021.

Furthermore, the Respondent’s prayer for relief to have this Court affirmatively adjudicate the Movant as the natural father of the children is frivolous when that has already been determine pursuant MS statute via voluntary acknowledgment. 

As the natural father of the children, the Movant is entitled to equal rights of the children, as does the natural mother, including the right to legal and physical custody.  Thus, pursuant to MS state law and the US Constitution, the parties both currently enjoy joint legal and joint physical custody.  There is currently no MS statute that requires the mother of a bastard to have the right of sole custody adjudicatively awarded order for such custody to be recognized under law.  In the case of  two natural parents of a child, it can also be said that there is currently no MS statute that requires two natural parents of a child to have the right of joint custody adjudicatively awarded in order for such custody to be recognized under law.  Similarly, a child whose citizenship is established by being born in this country, does not need to be judiciously awarded the right to attend public schools.

As there is no State or federal statute in place to modify this unalienable right to custody of their children by natural parents, the Respondent’s only path to sole custody is through her petitioning for the termination of Movant’s custodial rights pursuant to the applicable state statute.  This statute is derived from the need of the State to protect its interest in investigating and prosecuting child abuse cases. To ensure a person’s familial association rights protected under the US Constitution has not been violated in this factual setting, a court must weigh two factors: the state’s interests in investigating reports of child abuse, and the parent’s interests in his familial right of association. A court initially examines these factors objectively, that is, outside of the facts or subjective positions of the parties. A court may intrude on the fundamental right to parent only where the intrusion makes sense on an objective basis. Preventing a child from being injured or killed objectively is the kind of governmental interest which warrants intrusion into a fundamental right.

The Respondent has made no claims or presented any evidence to overcome the presumption that the Movant is a fit parent nor any argument that the termination of Movant’s parental rights are in the best interest of the children or of the State of Mississippi nor has the State ruled as such.

Even if somehow the Respondent’s claim upon scrutiny of this Court were to survive this Rule 12(b)(6) Motion for Dismissal, by way of prioritizing colloquial precedent over Federal caselaw, statutes, international and even Constitutional law, through the process of appeal, eventual those claims would be crushed under the weight of the higher courts’ scrutiny.

 

Conclusion

 

For the foregoing reasons, Movant Israel Briggs respectfully requests the Court recuse this Chancellor, quash the summons and service and DISMISS WITH PREJUDICE all claims against Mr. Briggs. 

Respectfully submitted,

 

Israel Jordan Briggs

7851 Ulysses Dr.

Moss Point, Mississippi 39562

T: 228-369-3411

E: Omegasred@gmail.com

Pro Se

 

CERTIFICATE OF SERVICE

 

I hereby certify that I have this date served a copy of this MOTION TO RECUSE OF CHANCELLOR, STAY & VACATE (mec 141), by sending a copy of same via receipt verifying electronic means.

 

This the 19th  day of January, 2021.

Movant

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