Team Kimberlin Post of the Day

One of the problems Team Kimberlin never overcame in any of their pro se lawfare cases was that pro se litigants may be allowed a bit of procedural slack, but in the end, they still have follow the rules of civil procedure and the rules of evidence. Nine years ago today, I put up a post pointing out some of Bill Schmalfeldt’s misunderstandings about the first peace order case filed against him. The post was titled Uh, No, That’s Not What Happens.

* * * * *

Bill Schmalfeldt seems woefully misinformed about what goes on in either a motion hearing or an appeal.frr201310060107Z

First of all, let’s consider a hearing on a motion, specifically a motion to modify a standing order of a court, a peace order in this case. Since there has been a final judgment in the case, the legal doctrine of res judicata prevents either side from relitigating the court’s previous findings. Those findings must be taken as a given, so, no, neither side gets to tell the judge that he got the facts wrong. The court may permit either side to introduce new evidence that bears on whether or not the order should be changed because of new circumstances, but the initial findings of fact stand. The court may listen to oral argument about how the law bears on any new circumstances.

Now, let’s look at what happens in an appeal. Since my appeal was from the District Court to the Circuit Court, I was entitled to a trial de novo. That meant that I was able to introduce new evidence, and I did. I showed the court how Schmalfeldt’s harassing behavior had gone on and on in order demonstrate that he was likely to continue. My appeal was to a higher trial court; any further appeal is to an appellate court.

Except in the few cases where they have original jurisdiction and function as trial courts, appellate courts don’t try the facts. They deal strictly with questions of law. If the Court of Appeals takes his case, Schmalfeldt will be stuck with the facts as they are shown in the trial court record. No new evidence is admissible. Schmalfeldt must argue that given the facts of the case—including the fact that he engaged in harassing me—the law was misapplied in issuing a peace order.

I believe Schmalfeldt’s part in the upcoming hearing on his motion to modify the peace order is that of a pro se litigant. While the judge will probably cut him some slack, Schmalfeldt will still be held to the court’s rules. I suspect he will fill that role as a bumbling incompetent who becomes frustrated when the court doesn’t want to play by the Cabin Boy’s rules.

I believe my part in the hearing will be as a party represented by counsel. I expect that the hardest thing for me to do will be to maintain a decent level of decorum rather that laughing at the show.


… and the Judge wasn’t going to look at the twenty seven eight-by-ten color glossy pictures twenty-four alleged perjuries in the answer with the circles and arrows and a paragraph on the back of each one explaining what each one was to be used as evidence against us.

* * * * *

Of course, he didn’t pay attention.

And of course, nothing proceeded as the Cabin Boy™ had hallucinated.

Leave a Reply