United States District Court For The District of Columbia November 26th, 2017 Julian Marcus Raven ) plaintiff ) ) v. ) Hon. Judge McFadden ) #17-‐cv-‐01240-‐TNM Kim Sajet, Richard Kurin Et Al. ) defendants )
Motion: Opposition to Defendants’ Motion To Dismiss Table of Contents1 -‐Motion in Opposition: Numbered Pages 1-‐160 -‐Memorandum of Law: (1)-‐(9)(9 Pages) -‐Index: (1)-‐(7)(7 pages) -‐Table: Integral, Intrinsic & Of Public Record Documents: (1 page) -‐Letter: Director Kim Sajet’s Denial to Bishop Jackson: (2 pages) -‐Letter: Appeal to the Smithsonian Board of Regents: (1)-‐(5)(5 Pages) -‐Letter: Dr. Richard Kurin’s in Response to Appeal: (1 page) -‐Letter: Response to Dr. Richard Kurin (4 pages) -‐Application: Trump Portrait to the Smithsonian: Pages(8)-‐(19)(12 Pages) -‐Email: Smithsonian Affiliate Rockwell Museum Official Complaint to Dir. Closter: 20-‐21(2 pages) -‐Email: Smithsonian Affiliate Rockwell Museum Director Kristin Swain 22-‐24(3 Pages) -‐Letters of Support 1-‐12: 1. Congressman Tom Reed, 2. Senator Tom O’Mara, 3. Assemblyman Chris Friend, 4. New York GOP Director Ed Cox, 5. GOP Chairman Sempolinski, 6. Council Woman Nanette Moss, 7. Elmira Mayor Mandell, 8. GOP Chair R. Strange, 9. GOP Chair Cady, 10. Talk Radio Host Frank Acomb, 11. GOP Chair S. King, 12. Art Collectors Gates/Davis, -‐Affidavit of Service: Attorney Marina Utgoff Braswell 1 Pages after page 160 are not numbered consecutively. The sections after page 160 have their original numbers.
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United States District Court For The District of Columbia November 26th, 2017 Julian Marcus Raven ) plaintiff ) ) v. ) Hon. Judge McFadden ) #17-‐cv-‐01240-‐TNM Kim Sajet, Richard Kurin Et Al. ) defendants )
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Motion: Opposition to Defendants’ Motion To Dismiss
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To the honorable Judge McFadden, in the interest of Justice, plaintiff ‘pro se’ Julian
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Marcus Raven, motions the court to immediately DENY Defendants’ Motion to
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Dismiss Plaintiff’s Amended Complaint that is before the Court for the following
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reasons:
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Please find attached Plaintiff’s Memorandum of Law and Authorities in support of
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this motion to DENY Defendant’s Motion to Dismiss on multiple grounds.
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The premise upon which Defendants construct their Memorandum of Law in
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support of Defendants’ Motion to Dismiss is ‘fatally flawed.’
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Defendants selectively leave out essential factual claims. Steering clear from these
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essential facts allows Defendants to create their theory for their defense that is
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‘fatally flawed.’
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Defendants’ arguments create the illusion that Defendants executed their duties
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lawfully and reasonably and that Plaintiff is just wrong, has no rights and is suing
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Defendants because Plaintiff is upset because Plaintiff simply disagreed with
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Defendants supposed lawfully procedurally formulated, lawfully executed and
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lawfully recorded opinion and thus Plaintiff’s action in Defendants opinion, is
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“wrong on all counts!”(MTD Page 1) Nothing could be further from the truth.
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As a professional artist, Plaintiff deals with arbitrary rejection in the “liberal art
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world” on a continual basis. The actions of Defendants resemble the “liberal art
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world,” but with the addition of a palpable political “anti-‐Trump” animus and not
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the actions of federal officers within a lawfully constituted Government entity in the
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form of a “trust instrumentality,” obedient to the ‘Rule of Law’ and undergirded by
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the Constitutional restraints of the 1st and 5th Amendments to the U.S. Constitution
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that, “Congress shall make no law…abridging the freedom of speech,” and that, “no
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person….shall be deprived of life, liberty and property without the due process of
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law.”
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This case is about the personal, political, anti-‐Trump animus of Defendant Sajet, who
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used Defendant’s position of power as an officer of the Federal Government as an
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employee of the Smithsonian Institution, and Director of the National Portrait
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Gallery, to personally participate in the unprecedented, anti-‐Trump hostility
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sweeping the nation and especially in “liberal” controlled institutions in Politics, the
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Media, Hollywood, the Music Industry, Academia and the Art world.
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Defendant Sajet’s anti-‐Trump, political animus is the root cause of the unlawful
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actions that led to the Constitutional deprivations and violations at the heart of
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Plaintiff’s claims. Defendant Kurin joined Defendant Sajet by ‘concurring’ in writing
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with Defendant Sajet’s unlawful actions, making Defendant Kurin equally liable for
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Defendant Sajet's unlawful actions.
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Defendant Kurin proceeded to construct a parallel unlawful scheme in Defendant
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Kurin’s efforts to deny and avoid processing Plaintiff’s appeal lawfully, and then
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arbitrarily rejecting the portrait without a single citation of any lawfully established
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Smithsonian standards or procedures.
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Both Defendants have acted as mini-‐tyrant kings in their own kingdoms where they
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make up their own rules. The conduct of Defendants is everything our Nation
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fought against in the Revolutionary war of 1776. The actions of Defendants
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resemble the written charges against the tyrant King George, in the Declaration of
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Independence in that Defendants have: “…refused his Assent to Laws, the most
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wholesome and necessary for the public good.…In every stage of these Oppressions
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We have Petitioned for Redress in the most humble terms: Our repeated Petitions
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have been answered only by repeated injury. A Prince, whose character is thus
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marked by every act which may define a Tyrant, is unfit to be the ruler of a free
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people.” -‐The Declaration of Independence
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The very Constitution of the United States was created to protect citizens from the
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whims and usurpations of personal, political, agenda driven individuals, devoid of
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the duty of care, devoid of the duty to serve and who abuse their positions of power
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and authority to enforce their own personal agenda with arbitrary rules and biased
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decision making, in their efforts to deprive the People of the United States of their
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duly appointed rights, lawful benefits and privileges of citizenship and in this case
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also as beneficiaries of The Last Will and Testament of James Smithson.
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“To prove this, let Facts be submitted to a candid world.” -‐Declaration of
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Independence
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Defendants Motion to Dismiss Based on the Federal Rules of Civil Procedure
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and Other Issues
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1. Motion to Dismiss-‐ Rule 12 b(1)-‐ Lack of subject matter jurisdiction
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2. Motion to Dismiss-‐ Rule 12b(4)-‐ Insufficient Process
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3. Motion to Dismiss-‐ Rule 12b(5)-‐ Insufficient Service of Process
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4. Motion to Dismiss-‐ Rule 12b(6)-‐ Failure to state a claim
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5. Qualified Immunity.
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6. Lack of Jurisdiction -‐ FTCA Claims
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Undisputed Facts:
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The undisputed facts in Plaintiff’s Amended Complaint are accurate and true.
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Defendants have selected only the facts that correspond to their legal theory and in
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effect have created ‘straw man’ arguments with those facts to distract from
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Defendants’ unlawful and egregious actions. Plaintiff will address both the
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distortions of fact and the facts omitted by defendants:
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Government Speech Theory is the Fatal Flaw
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Defendants argue that the display of portraiture in this case constitutes ‘government
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speech.’ This is the fatal flaw in Defendant’s argument. The Smithsonian
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Institution is a ‘trust instrumentality’, and nothing more. The fatal flaw is
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attributing governmental powers and functions to an instrumentality that it does
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not possess, as Plaintiff will demonstrate below. Defendants have built their entire
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argument on this premise. The Motion to Dismiss based on Rule 12b(1) is
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predicated on this legal theory. Disprove Defendants’ theory as to Smithsonian
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status and their exhaustive argument comes crashing down, as the foundation is
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utterly defective.
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MOTION TO DISMISS Rule 12 b(1) Jurisdictional Challenge
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“A plaintiff has the burden of proving that subject matter jurisdiction
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exists. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999). When a
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defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), ‘the
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district court is to regard the pleadings as mere evidence on the issue, and may
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consider evidence outside the pleadings without converting the proceeding to one
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for summary judgment.’ " Id. (quoting Richmond, Fredericksburg & Potomac R.R. Co.
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v. United States, 945 F.2d 765, 768 (4th Cir.1991)). The district court should grant
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the Rule 12(b)(1) motion to dismiss "only if the material jurisdictional facts are not
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in dispute and the moving party is entitled to prevail as a matter of law." Id.
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In order to resolve this dispute, an important distinction must be drawn between
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the evidence a court may consider in reviewing a Rule 12(b)(1) motion to dismiss,
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as opposed to a Rule 12(b)(6) motion to dismiss. Where a motion to dismiss under
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Rule 12(b)(1) presents a factual challenge to the court's jurisdiction, a court need
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not assume that all facts alleged in the complaint are true.[3] Richmond,
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Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th
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Cir.1991) ("In determining 611*611 whether jurisdiction exists, the district court is
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to regard the pleadings' allegations as mere evidence on the issue, and may consider
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evidence outside the pleadings without converting the proceeding to one for
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summary judgment."); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891
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(3d Cir.1977) ("In short, no presumptive truthfulness attaches to plaintiff's
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allegations, and the existence of disputed material facts will not preclude the trial
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court from evaluating for itself the merits of jurisdictional claims."); 5B Charles Alan
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Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (3d ed. 2004)
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("[O]nce a factual attack is made on the federal court's subject matter jurisdiction,
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the district judge is not obliged to accept the plaintiff's allegations as true. . . .").
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Moreover, a court may consider matters outside the pleadings in deciding whether
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it has jurisdiction. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999)("When
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a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), the
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district court . . . may consider evidence outside the pleadings without converting
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the proceeding to one for summary judgment.") (internal citation omitted).”
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CHESAPEAKE BAY FOUNDATION, INC., et al.,v.SEVERSTAL SPARROWS POINT,
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LLC, et al., 794 F.Supp.2d 602 (2011)
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Argument Establishing Subject Matter Jurisdiction Defeating Rule 12b(1)
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Defendants challenge the Court’s jurisdiction over this case in two ways:
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1: Government Entity ‘Status’, that based on Defendants’ theory of entity ‘status’,
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Plaintiff’s claims lack a Constitutional basis for injuries suffered. Defendants’ theory
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contends in the instant case that the Federal Government, through the Smithsonian
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Institution, through the actions of Defendant’s Sajet and Kurin was and is
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acting/acts as speaker, and that being the case, constitutional constraints do not
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apply.
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Since Defendants contend that Constitutional constraints do not apply, Defendants
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thus contend Plaintiff’s 1st and 5th Amendment claims of authoritarian abuse of
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government power, expressed in arbitrary, capricious, deliberate, willful, unlawful
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actions, expressing a hostile personal ‘anti-‐Trump’ political viewpoint-‐
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discriminating animus, manifest in Defendant Sajet’s hasty actions, failure to consult
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the Chief Curator, ignoring all established legal Smithsonian ethics, standards,
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procedures, Federal laws on impartiality, fiduciary duties and obligations etc. etc.
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cannot possibly be unlawful, illegal or tyrannical, but are simply acceptable official
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government actions because the Constitution simply does not apply in the instant
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case, because Defendant Sajet’s actions constitute ‘government speech’ according to
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Defendants’ theory of ‘entity.’
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Defendants admit that the Administrative Procedure Act (APA) exists to address
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some of these unlawful actions, which Defendants do not deny they committed and
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even seemingly, tacitly admit to doing, but since the Smithsonian Institution is not
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subject to the APA, government officials at the Smithsonian are a special
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‘constitutionally exempt’ breed of Government and are thus given a pass each time
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they act as tyrants.
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The good news is that Defendants’ theory of Government ‘entity’ is bogus, and as
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such, Plaintiff will show that Defendants are liable for the egregious Constitutional
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1st and 5th Amendment violations, by clearly demonstrating that the Smithsonian
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Institution, a Government ‘trust instrumentality’ is liable for Constitutional
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constraints and protections and does not and cannot speak for the Federal
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Government as Defendants hope.
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2. And since Defendants’ theory claims the Constitution does not apply anywhere,
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that Plaintiff has no rights at all, in any part of this case, Plaintiff’s claims to ‘injuries
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in fact’ cannot be supported, thus do not and cannot have standing. “The irreducible
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constitutional minimum of standing…” regarding the nature of the injury suffered by
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plaintiff. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (U.S. 1992)
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Since Plaintiff will show how the Constitution does apply in the instant case and
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thus is the necessary basis for standing for Plaintiff’s injuries in fact suffered,
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judgement, relief and monetary damages, to redress Plaintiff’s injuries are
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demanded by law.
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As the challenge to The Rule 12b(1) Motion to Dismiss is defeated, the grounds for
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the rule 12b(6) for failure to state a claim to which relief can be granted also fails,
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collapsing like dominoes.
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Federal Instrumentalities Are Subject to Constitutional Constraints of the 1st &
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5th Amendments To the U.S. Constitution Defeating Rule 12b(1) Jurisdictional
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challenge.
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Defendants’ (page 9 para2) contention and challenge to Plaintiff to present a
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‘preponderance of evidence’ demonstrating jurisdiction or face mandatory
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dismissal, is gladly accepted and presented below.
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The Smithsonian Institution’s Legal History and Status
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“James Smithson, esquire, of London, in the Kingdom of Great Britain, having by his
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last will and testament given the whole of his property to the United States of
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America, to found at Washington, under the name of the "Smithsonian Institution,"
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an establishment for the increase and diffusion of knowledge among men; and the
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United States having, by an act of Congress, received said property and accepted
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said trust; Therefore, For the faithful execution of said trust, according to the will of
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the liberal and enlightened donor; (Bold added)
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Be it Enacted By the Senate and House of Representatives of the United States of
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America in Congress assembled. That the President and Vice-‐President of the
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United States, the Secretary of State, the Secretary of the Treasury, the Secretary of
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War, the Secretary of the Navy, the Postmaster-‐General, the Attorney-‐General, the
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Chief Justice, and the Commissioner of the Patent Office of the United States; and the
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mayor of the city of Washington, during the time for which they shall hold their
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respective offices, and such other persons as they may elect honorary members, be,
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and they are hereby constituted, an "establishment," by the name of the
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"Smithsonian Institution," for the increase and diffusion of knowledge among
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men; and by that name shall be known and have perpetual succession, with the
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powers, limitations, and restrictions, hereinafter contained, and no other.”
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Smithsonian Act of Congress, 1846 (Bold added) 20 U.S. Code § 41, 42, 43…
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Smithsonian Institution Entity Definition
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From the very beginning of the establishment of the Smithsonian Institution, it is
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evident that the government needed to be held in check to prevent it from exceeding
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its mandate as ‘trustee’ in the administration of the vast fortune entrusted to it.
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There must have been good reason at the institution’s inception, that the first
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Smithsonian Secretary Joseph Henry, a private sector employee and non-‐politician
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was compelled to make the declaration about the nature of the museum part of the
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original charter, since government ‘overreach’ and ‘creep’ is always a problem of
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government. The misunderstanding about the ‘National’ character of the
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Smithsonian was already a problem. Un-‐checked, that misplaced compositional
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notion would lead to where we are today, in the instant case.
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‘Programme of Organization.’-‐ Joseph Henry, The First Secretary of the
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Smithsonian Institution, 1847
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“1. Will of Smithson. The property is bequeathed to the United States of America, ‘to
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found at Washington, under the name of the Smithsonian Institution, an
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establishment for the increase and diffusion of knowledge among men.’
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2. The bequest is for the benefit of mankind. The Government of the United States
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is merely a trustee to carry out the design of the testator.(Bold added.)
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3. The institution is not a national establishment as is frequently supposed,
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but the establishment of an individual, to bear and perpetuate his name. (Bold
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added.)
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4. The objects of the institution are-‐ 1st to increase, and 2nd to, diffuse knowledge
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among men.
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5. These two objects should not be confounded with one another. The first is to
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increase the existing stock of knowledge by the addition of new truths; and the
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second, is to disseminate knowledge, thus increased, among men.
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6. The will makes no restriction in favor of any particular kind of knowledge; hence
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all branches are entitled to a share of attention.
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7. Knowledge can be increased by different methods of facilitating and promoting
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the discovery of new truths; and can be most efficiently diffused among men by
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means of the press….”
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On December 13th, 1847, “The Board of Regents (comprised at that time of the
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President, the Vice President, the Chief Justice, 3 members of Congress, 3 members
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of the House of Representatives…etc.), adopts Secretary Joseph Henry's Programme
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of Organization of the Smithsonian Institution.” This Day In Smithsonian History,
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Smithsonian Archives, (Bold added.)
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https://siarchives.si.edu/history/this-‐day-‐smithsonian-‐history/december
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If there was any group of people who knew what the Smithsonian Institution’s legal
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composition was within the Federal Government, it was those governmental
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officials, alive at that time who were part of its establishing. These government
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officials also were the first ‘Regents’ of the Smithsonian, and so when they ‘adopt’
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Secretary Henry’s ‘Programme of Organization’ on December 13th, 1847, they all
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knew what it meant, and thus they all agreed with its contents.
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“SEC 3. And be it further enacted, That the business of the said Institution shall be
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conducted at the City of Washington by a board of regents, by the name of regents of
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the "Smithsonian Institution," to be composed of the Vice-‐President of the United
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States, the Chief Justice of the United States, and the Mayor of the City of
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Washington, during the time for which they shall hold their respective offices; three
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members of the Senate, and three members of the House of
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Representatives;…”Smithsonian Act of Congress. 1846
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Limits of Smithsonian Power Defined in the Congressional Act of 1846.
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“…they are hereby constituted, an "establishment," by the name of the "Smithsonian
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Institution," for the increase and diffusion of knowledge among men; and by that
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name shall be known and have perpetual succession, with the powers, limitations,
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and restrictions, hereinafter contained, and no other.” (Bold added). Sec.1,
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Smithsonian Act 1846
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Everything is to fulfill the Will of the Testator James Smithson not the
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Government’s will!
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“Sec 9. And be it further enacted, That of any other moneys which have accrued, or
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shall hereafter accrue, as interest upon the said Smithsonian fund, not herein
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appropriated, or not required for the purposes herein provided, the said managers
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are hereby authorized to make such disposal as they shall deem best suited for the
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promotion of the purpose of the testator, any thing herein contained to the
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contrary notwithstanding.” Smithsonian Act, 1846
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The Federal Government cannot and may not inject itself into the private Will and
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Testament held in trust. It can only act according to the laws of equity regarding the
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functions, authorities and powers of trustees and no more. The Federal mandate in
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the Act of Congress is silent as to any role of the Federal Government beyond the
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role of trustee.
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Establishment of the Smithsonian National Portrait Gallery
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“(a) There is established in the Smithsonian Institution a bureau which shall be
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known as the National Portrait Gallery. The functions of such bureau shall be those
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1
authorized by this subchapter. The use for the purposes of the Gallery of any part of
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the building transferred to the Smithsonian Institution (bold added) pursuant
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to the Act of March 28, 1958 (72 Stat. 68), is authorized. (b) The Gallery shall
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function as a free public museum for the exhibition and study of portraiture and
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statuary depicting men and women who have made significant contributions to the
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history, development, and culture of the people of the United States and of the
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artists who created such portraiture and statuary.” National Portrait Gallery
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Establishment 20 USC 75b (Bold added.)
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“The Smithsonian Institution is a trust instrumentality of the United States…
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The Smithsonian Institution is considered unique in the Federal establishment. The
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Smithsonian is not an executive branch agency and does not exercise regulatory
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powers, except over its own buildings and grounds. Thus, courts have held that the
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Smithsonian is not an agency or authority of the Government (bold added) as
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those terms are used in certain laws applicable to executive branch agencies such as
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the Privacy Act, the Administrative Procedure Act, the Freedom of Information Act,
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and the Federal Advisory Committee Act.” Smithsonian Website.
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https://www.si.edu/ogc/legalhistory
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“Chief Justice Taft, speaking as Chancellor of the Smithsonian Board of Regents,
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also asserted, ‘that the Smithsonian Institution is not, and never has been
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considered a government bureau. It is a private institution under the
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guardianship of the Government.’ (Bold added.) Taft, ‘The Smithsonian
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Institution—Parent of American Science’ 16, quoted in Memorandum for Peter
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Powers, General Counsel, the Smithsonian Institution, from Leon Ulman, Deputy
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Assistant Attorney General, Office of Legal Counsel at 8 (Feb. 19, 1976) (‘Ulman
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Memorandum’)” https://www.justice.gov/file/24096/download
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The Status of the Smithsonian Institution Under the Federal Property and
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Administration Services Act. June 30, 1988, Deputy Assistant Attorney
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General, Douglas W. Kmiec(DEPARTMENT OF JUSTICE)
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“…Moreover, this Office has opined that the Smithsonian is not an ‘agency’ within
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the meaning of the Administrative Procedure Act, the Freedom of Information Act,
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the Federal Advisory Committee Act, or the Privacy Act. See Ulman Opinion. In
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reaching that conclusion, we observed that the Smithsonian ‘performs none of the
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purely operational functions of government which have been given such significant
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weight in determinations of agency status in other cases’ and that ‘it plays no part in
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the process of administration, regulation, and government.’ Id. at 10” Immunity Of
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Smithsonian Institution from State insurance Laws, Deputy Assistant Attorney
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General, Randall D. Moss, April 25, 1997(DEPARTMENT OF JUSTICE)
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https://www.justice.gov/file/19821/download
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Defendant's Government ‘Entity’ Theory Failure
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There is no question that the Smithsonian Institution is a government ‘entity’. The
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question is what type of ‘entity’ is the Smithsonian Institution and what powers and
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authorities does it bear?
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“15 U.S. Code § 6602 -‐ Definitions
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(3)GOVERNMENT ENTITY
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The term ‘government entity’ means an agency, instrumentality, or other entity of
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Federal, State, or local government (including multijurisdictional agencies,
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instrumentalities, and entities).”
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https://www.law.cornell.edu/uscode/text/15/6602
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Instrumentality
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“An instrumentality is an organization created by or pursuant to
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state(federal(added)) statute and operated for public purposes. Generally, an
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instrumentality performs governmental functions, but does not have the full powers
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of a government, such as police authority, taxation and eminent domain…”
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https://www.irs.gov/government-‐entities/federal-‐state-‐local-‐
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governments/government-‐entities-‐and-‐their-‐federal-‐tax-‐obligations
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Just because the Smithsonian Institution is a Government ‘entity’ as argued by
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Defendants, does not mean that the ‘entity’ is a sovereign arm of the Government
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that speaks for or as the Government. The Smithsonian is neither executive,
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legislative nor judicial in nature. The Smithsonian, though an entity, is not
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considered and agency under the Administrative Procedure Act. The Smithsonian is
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a trust ‘instrumentality’ entity and that is all.
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Comparing the Establishment of Government Entities
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Defendants have gone to great length to establish their theory that a Government
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instrumentality exercises ‘Government Speech’ as a National Federal Establishment
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or Agency. We read, for example, in the language of the Congressional Act that
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formed the National Endowments for the Arts (NEA) the following: “AN ACT To
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provide for the establishment of the National Foundation on the Arts and the
11
Humanities to promote progress and scholarship in the humanities and the arts in
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the United States, and for other purposes.”(Bold added.) National Foundation on
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the Arts and the Humanities Act of 1965 (P.L. 89-‐209).
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Please notice, in striking contrast, the language used in the establishment of the
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Smithsonian Institution and the National Portrait Gallery; “Be it Enacted By the
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Senate and House of Representatives of the United States of America in Congress
18
assembled. That the President and Vice-‐President of the United States, the
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Secretary of State, the Secretary of the Treasury, the Secretary of War, the Secretary
20
of the Navy, the Postmaster-‐General, the Attorney-‐General, the Chief Justice, and the
21
Commissioner of the Patent Office of the United States; and the mayor of the city of
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Washington, during the time for which they shall hold their respective offices,
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and such other persons as they may elect honorary members, be, and they are
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hereby constituted, an "establishment," by the name of the "Smithsonian
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1
Institution," for the increase and diffusion of knowledge among men;…”
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-‐Smithsonian Act of 1846.
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Notice that the Institution is established upon the individuals as citizens while
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‘…they shall hold their respective offices…’ or who happen to hold ‘offices’ who ever
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they may be at the time. The establishment does not happen upon the Federal
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Government but upon individuals who happen to be part of the Federal Government
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and who happen to hold important titles. But as can be seen, elected ‘honorary
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members’ also constitute the establishment as is seen in the Board of Regents (there
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were 6, today 9) members of the public who are not government officials in any
11
way. “…together with six other persons, other than members of Congress, two of
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whom shall be members of the national institute in the City of Washington, and
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resident in the said city; and the other four thereof shall be inhabitants of States, and
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no two of them of the same State…” SEC 3 Smithsonian Act 1846.
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As can be seen, the Smithsonian Trustees are comprised of officers of the executive,
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judicial and legislative branches of government and members of the public, they are
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all citizens and beneficiaries of the trust. The Trustees do not exercise their
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governmental mandates and constituted authority when they function as The Board
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of Regents. In fact, they should leave their governmental powers, duties and robes
21
at the door when they sit down as simply trustees of the private will of an
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individual, James Smithson and nothing more.
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To illustrate, imagine for a moment, that the Vice President, the Chief Justice and a
2
few members of Congress happen to attend the same church in D.C. and also sit on
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the Board of Trustees of that church. Does the fact that they all are government
4
officials suddenly turn the board into a government entity? Or is it as argued by
5
Plaintiff, that their individual official status should have no influence on their duty as
6
trustees? Thus, the board of that church and the board at the Smithsonian has
7
nothing to do with the government, other than in the case of the Smithsonian, the
8
Government is guardian over the trust property. The board of trustees of a specific
9
trust exist for the purpose of that specific trust and that is it.
10
11
Now imagine that the Pastor of that church, employed by the church and hired by
12
the trustees, who happen to have jobs as elected government officials imagines that
13
he now speaks for and as the government? After a Sunday sermon, the Pastor now
14
replies to complaints about his sermon in that he now speaks for the government
15
and is thus above all criticism or accountability for his actions, his speech is now
16
government speech! On a side note, Smithsonian trustees, members of the Board of
17
Regents, bear their fiduciary duties, without pay, as appointed ‘volunteers’ of sorts.
18
19
Imagine the conflict arising out of the removal of the boundaries of the ‘Separation
20
of Powers’ of the executive, judicial and legislative branches. In fact, what
21
Defendants are arguing is precisely that, that inside the Smithsonian Institution, a
22
whole new governmental entity has been created where officers of the Executive,
23
Legislative and Judicial branches and members of the public constitute a synergy of
19
1
the People and Government into a new political ‘entity’ that acts and speaks
2
autonomously as or for the Federal Government or even something else.
3
4
It is the same for the six (now 9) members of the public, who are also Smithsonian
5
Trustees and members of the Board of Regents, these unelected yet professionally
6
qualified private citizens, do not suddenly take on governmental executive powers
7
upon functioning as trustees of a private trust, they simply carry out their duty as
8
trustees of the will of a private individual as in any other private trust or non-‐profit
9
organization.
10
11
Decisions by vote made by the Board of Regents require a quorum of 8 Trustees. It is
12
unthinkable that unelected members of the public sector, acting as Trustees of a
13
private trust, can vote in a quorum, and in essence, act as the Federal Government
14
and thus exercise ‘Government Speech’ powers, which can only be derived from the
15
voting citizenry!
16
17
Further stretching Defendants’ theory of ‘Government Speech’ into the absurd, is the
18
fact that the employees, assistants and/or officers ‘hired’ to assist the Trustees in
19
fulfilling the mandate of the trust, by mandate in the Congressional Act of 1846, also
20
exercise this executive governmental power of ‘Government Speech’ in all the
21
decisions they make, no matter how arbitrary, as in the instant case.
22
23
Defendants Sajet and Kurin are merely un-‐elected private citizens who function
24
within the Federal Government, only as far as acting solely as trustee delegates or
20
1
functional fiduciaries, to carry out the will of a private individual. Defendants get
2
their paycheck from the Federal Government, guaranteeing constitutional
3
protections to the trust participating citizenry.
4
5
Since the establishment of the Smithsonian Institution happened by an Act of
6
Congress and not by private citizens, the full protections of the Constitution are
7
firmly in place to prevent government corruption and abuse.
8
9
Establishment of the Smithsonian National Portrait Gallery
10
& Government Speech
11
12
The establishment for the Smithsonian National Portrait Gallery is also revealing:
13
“(a) There is established in the Smithsonian Institution a bureau which shall be
14
known as the National Portrait Gallery. The functions of such bureau shall be those
15
authorized by this subchapter. The use for the purposes of the Gallery of any part of
16
the building transferred to the Smithsonian Institution(bold added) pursuant to
17
the Act of March 28, 1958 (72 Stat. 68), is authorized. (b) The Gallery shall function
18
as a free public museum for the exhibition and study of portraiture and statuary
19
depicting men and women who have made significant contributions to the history,
20
development, and culture of the people of the United States and of the artists who
21
created such portraiture and statuary.” 20 USC 75b
22
23
Although the term ‘National’ is used in the name of the gallery, the establishment is
24
created as part of, or within the Smithsonian Institution, not as an independent
21
1
National establishment like the NEA. It is established as a ‘bureau’ or branch or
2
department of the Smithsonian, like all of the many other departments within the
3
Smithsonian Institution. The Smithsonian National Portrait Gallery is now, upon its
4
establishment, subject to the Will of James Smithson, not a government objective.
5
The controlling mandate of the Smithsonian National Portrait Gallery is the Last Will
6
and Testament of a private individual, accepted in trust by the Federal government
7
for the ‘increase and diffusion of knowledge,’ and that is it!
8
9
Since the Smithsonian is not a ‘National Establishment,’ the Smithsonian or its
10
trustees or officers or employees do not and cannot speak or act as one. It can and
11
must only speak and act according to the trust mandate contained in the Will of
12
Smithson and enacted in Congress in 1846, ‘…an establishment for the increase and
13
diffusion of knowledge…’ and no other.
14
15
Another contrast, for example, the National Endowment for the Arts (NEA) is a
16
National Federal Government Agency, subject to innumerable congressional acts to
17
which the Smithsonian Institution is not subject. For example, the Administrative
18
Procedure Act, of 1946; “… All information about the NEA required to be
19
published in the Federal Register may be accessed at www.arts.gov. This Act also
20
requires agencies to accept public comments on their rules “by electronic means.” …
21
22
“Finally, the E-‐Government Act requires, to the extent practicable, that agencies
23
ensure that a publicly accessible Federal Government Web site contains electronic
24
dockets for rulemakings under the Administrative Procedure Act of 1946 (5 U.S.C.
22
1
551 et seq.). Under this Act, an electronic docket consists of all submissions under
2
section 553(c) of title 5, United States Code; and all other materials that by agency
3
rule or practice are included in the rulemaking docket under section 553(c) of title
4
5, United States Code, whether or not submitted electronically. The Web
5
site https://www.regulations.gov contains electronic dockets for the NEA's
6
rulemakings under the Administrative Procedure Act of 1946.” Federal Register.
7
https://www.federalregister.gov/documents/2017/06/15/2017-‐
8
12071/implementing-‐the-‐federal-‐civil-‐penalties-‐adjustment-‐act-‐improvements-‐act-‐
9
of-‐2015
10
11
The NEA’s website address is www.arts.gov in comparison to the Smithsonian sites
12
which are either .com, .edu or .org and in this case the National Portrait Gallery is
13
www.npg.si.edu, not .gov!
14
Defendants’ adamant claim, in the instant case, presented by the Department of
15
Justice, that the Smithsonian Institution is a Federal ‘entity,’ with the powers of an
16
executive or legislative federal ‘agency’ and yet it is only an instrumentality, is a
17
misrepresentation! Claiming the ‘entity,’ in this case, speaks for the government, is a
18
serious overreach of the executive branch of the government. Unrestrained
19
government ‘creep’ due to the passage of time and the drifting from the institution’s
20
founding Congressional enactment and the blurring of founding values and charters,
21
is further proof of the malaise of a bloated institution, which has lost sight of its
22
Congressional mandate.
23
23
1
Dismissing Plaintiff’s complaint in support of Defendants’ invented legal theory by
2
the Court in this case, would in effect change the meaning of the Congressional Act
3
of 1846, and create new legislation redefining the very legal nature of the entire
4
Smithsonian Institution.
5
6
This issue may need an interlocutory decision based upon 28 U.S. Code § 1292, since
7
the case law precedent is non-‐existent in specifically supporting either side of the
8
arguments as it relates specifically to a determination of the status of the
9
Smithsonian National Portrait Gallery by the Courts.
10
11
The government in relation to the Smithsonian Institution is neither acting as
12
Sovereign nor as Patron of the Arts, but is “merely a Trustee.” Programme of
13
Organization 1847.
14
15
Smithsonian Status in Summum, Walker, PETA & Pulphus
16
17
The official ‘level’ or ‘status’ of government involvement and authority in the instant
18
case is classified under the title of ‘trust instrumentality,’ with which Defendants
19
agree. And as such, the question now arises, are Federal instrumentalities endowed
20
with the authority to speak as the Federal Government, exempting them from 1st
21
and 5th Amendment constitutional constraints?
22
Looking at the ‘Government Speech’ cases in (Summum, Walker, PETA & Pulphus)
23
cited by Defendants in the Motion to Dismiss, in an attempt to bolster their legal
24
theory, are actually beneficial to Plaintiff and prejudicial to Defendants.
24
1
The fundamental differences in Summum, Walker, PETA & Pulphus with the
2
instant case is firstly the status or nature of each of the government entities in those
3
respective cases. The entities in Summum, Walker, PETA & Pulphus are: two
4
municipal governments, one state government and Congress. All of those ‘entities’
5
are everything governmentally that the Smithsonian Institution is not.
6
The fatal flaw in Defendants’ theory of government ‘entity’ is equating a personal
7
and private trust/non-‐profit, where the government’s role is merely acting as a
8
‘trustee,’ with duly elected sovereign governmental representations of the voting
9
citizenry. The public mandate expressed by the People in lawful vote, is the source
10
of the authority, mandate and power of ‘Government Speech’. ‘Government speech’
11
does not proceed from the private will and testament of one single, individual
12
foreigner, who was not even a citizen of the United States. James Smithson was
13
without even the legal standing necessary to vote in these United States, thus he was
14
unable to give any power to any governmental ‘entity’ to speak in any way, shape or
15
form, except by will and trust.
16
“But, as a general matter, when the government speaks it is entitled to promote a
17
program, to espouse a policy, or to take a position. In doing so, it represents its
18
citizens and it carries out its duties on their behalf.” Walker v. Tex. Div., Sons of
19
Confederate Veterans, Inc., 135 S.Ct. 2239, 2246 (U.S. 2015)
20
“This does not mean that there are no restraints on government speech. For
21
example, government speech must comport with the Establishment Clause. The
22
involvement of public officials in advocacy may be limited by law, regulation, or
23
practice. And of course, a government entity is ultimately "accountable to the
25
1
electorate and the political process for its advocacy." Southworth, 529 U. S., at 235.
2
"If the citizenry objects, newly elected officials later could espouse some
3
different or contrary position." Ibid. Pleasant Grove City v. Summum, 555 U.S.
4
460, 5-‐6 (U.S. 2009)
5
Government entities with ‘Government Speech’ powers must be replaceable by
6
elections, so the citizens can replace the individuals and their policies expressed in
7
‘Government Speech,’ if they disagree with the ‘Government Speech’. Smithsonian
8
trustees and their assistants do not qualify for ‘Government Speech’ powers under
9
this condition since they cannot be voted out!
10
Examples of Other Government Instrumentalities and Application of the First
11
and Fifth Amendment
12
Of particular interest is the comparison of Walker and another Supreme Court
13
decision in LEBRON V. NATIONAL RAILROAD PASSENGER CORPORATION 513
14
U.S. 374 (1995). What is striking at first, is the apparent contradiction in the
15
rulings. In Walker, we have the issue of government-‐controlled space on car license
16
plates, available for private expression, by special order of private license plates,
17
paid for by private citizens. The court held that the State could discriminate against
18
a license plate design, of which the State did not approve. The 1st Amendment did
19
not come into play, since the Court held that the government was exercising
20
‘Government Speech,’ which entitled it to decide against the design, and deny the
21
application. Plaintiff accepts the Walker decision only for the sake of Plaintiff’s
22
argument.
26
1
In Walker, the 5-‐4 decision was viewed with great concern by the four dissenting
2
Justices, Alito, Roberts, Scalia and Kennedy, who contend that this decision was a
3
serious error in abridging the freedom of speech, with which Plaintiff agrees: “The
4
Court's decision passes off private speech as government speech and, in doing so,
5
establishes a precedent that threatens private speech that government finds
6
displeasing.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct.
7
2239, 2254 (U.S. 2015)
8
9
“Unfortunately, the Court's decision categorizes private speech as government
10
speech and thus strips it of all First Amendment protection. The Court holds that all
11
the privately created messages on the many specialty plates issued by the State of
12
Texas convey a government message rather than the message of the motorist
13
displaying the plate. Can this possibly be correct?” Walker v. Tex. Div., Sons of
14
Confederate Veterans, Inc., 135 S.Ct. 2239, 2255 (U.S. 2015)
15
In LeBron, we have the case at first, of a contested government-‐controlled space on
16
the huge ‘Spectacular’ advertising screen in Penn Station in New York City,
17
belonging to AMTRAK. Once the space was determined to actually belong to the
18
Federal Government, violations of 1st and 5th Amendment rights were invoked in the
19
denial by AMTRAK of a paid private political ad. The Court determined ,“We hold
20
that where, as here, the Government creates a corporation by special law, for the
21
furtherance of governmental objectives, and retains for itself permanent authority
22
to appoint a majority of the directors of that corporation, the corporation is part of
27
1
the Government for purposes of the First Amendment.” LeBron v. National
2
Railroad Passenger Corporation, 513 U.S. 374, 400 (U.S. 1995)
3
4
Both government entities are treated differently regarding the ‘sale’ of space to
5
private citizens for speech purposes. In Walker, it is ‘government speech’, in
6
LeBron, it is protected private speech. Why the difference? The difference is due to
7
the status or nature of the government ‘entity’ within which the speech happens.
8
The Court held in LeBron: “Facing the question of Amtrak's status for the first time,
9
we conclude that it is an agency or instrumentality of the United States for the
10
purpose of individual rights guaranteed against the Government by the
11
Constitution.” LeBron v. National Railroad Passenger Corporation, 513 U.S. 374,
12
394 (U.S. 1995) The Court did not even consider the government controlled space
13
in LeBron, and what was shown on it, to be ‘Government Speech,’ and rightly so.
14
In contrast we can see the Sovereign and lawfully elected government of the State of
15
Texas is the ‘entity’ that exercises government speech in Walker; “If the Texas
16
Department of Motor Vehicles Board approves the design, the State will make it
17
available for display on vehicles registered in Texas. ” Walker v. Tex. Div., Sons of
18
Confederate Veterans, Inc., 135 S.Ct. 2239, (U.S. 2015)
19
20
Defendants assert, the Smithsonian Institution, a government ‘trust instrumentality’
21
is a comparable ‘entity’ to the Sovereign State of Texas, having the same powers of
22
‘Government Speech’ as the duly elected state government ‘entity’. Plaintiff rather
23
sides with the Supreme Court, in determining the Smithsonian as it truly is, a
24
“…(trust) instrumentality of the United States for the purpose of individual rights
28
1
guaranteed against the Government by the Constitution.” LeBron v. National
2
Railroad Passenger Corporation, 513 U.S. 374, 394 (U.S. 1995)
3
4
Interestingly, the similarities with the instant case and LeBron are noteworthy.
5
Plaintiff in LeBron filed suit on 1st & 5th Amendment free speech grounds.
6
“LeBron then filed suit against Amtrak and TDI, claiming, inter alia, that the refusal
7
to place his advertisement on the Spectacular had violated his First and Fifth
8
Amendment rights. After expedited discovery, the District Court ruled that Amtrak,
9
because of its close ties to the Federal Government, was a Government actor, at least
10
for First Amendment purposes, and that its rejection of LeBron’s proposed
11
advertisement as unsuitable for display in Penn Station had violated the First
12
Amendment.” LeBron v. National Railroad Passenger Corporation, 513 U.S. 374,
13
377 (U.S. 1995)
14
In principal, both cases are regarding the showing of a political image/images,
15
created/owned/paid for by a private citizen/artist in, or on, government-‐controlled
16
public space. As a for-‐profit corporation, AMTRAK charged plaintiff in LeBron for
17
use of the space. Although the Smithsonian is a ‘non-‐profit,’ the access to space by
18
private individuals sometimes, apparently operates in a similar way. In Plaintiff’s
19
Amended Complaint, Plaintiff cites the account of Actor Bill Cosby paying
20
$716,000.00 to cover the expenses for an exhibition of his personal collection of art,
21
to boost its value in the Smithsonian African American Museum. Amended
22
Complaint page 49 lines 20-‐24
29
1
In both cases, Plaintiffs alleges 1st and 5th Amendment violations. The decision in
2
LeBron was: “We hold that where, as here, the Government creates a corporation by
3
special law, for the furtherance of governmental objectives, and retains for itself
4
permanent authority to appoint a majority of the directors of that corporation, the
5
corporation is part of the Government for purposes of the First Amendment. We
6
express no opinion as to whether Amtrak's refusal to display LeBron’s
7
advertisement violated that Amendment, but leave it to the Court of Appeals to
8
decide that. The judgment of the Court of Appeals is reversed, and the case is
9
remanded for further proceedings consistent with this opinion.
10
It is so ordered.”
11
LeBron v. National Railroad Passenger Corporation, 513 U.S. 374, 400 (U.S.
12
1995)
13
Even though the Smithsonian is a government ‘entity’ in the form of a ‘trust
14
instrumentality,’ it does not rise to the level of the Congressional mandate of even
15
AMTRAK. It is similar in that the Government established the Smithsonian
16
Institution by ‘special law’ in the Smithsonian Act of 1846, but the objective was that
17
of a private will and testament, not as in the case of AMTRAK “…for the furtherance
18
of governmental objectives…” ibid.
19
The LeBron case arrives (as if), from beneath, from an argument ‘against’ Amtrak
20
being part of the government at all, and thus not liable for the protection of rights
21
guaranteed by the Constitution; verses this present case, in which Defendants argue
22
from above, assigning un-‐constituted powers to a government ‘trust’
30
1
instrumentality. Plaintiff in LeBron prevailed in the Supreme Court on the
2
application of the ‘instrumentality’ definition, thus establishing grounds for
3
Plaintiff’s 1st & 5th Amendment claims against Amtrak.
4
5
Thus, it is perfectly clear, that the Smithsonian Institution has very, very low
6
Government entity status, regardless of the imagined status argued by Defendants,
7
in their efforts to defend and exonerate the unconstitutional actions of Defendants.
8
As AMTRAK was deemed responsible for Constitutional protections, and AMTRAK
9
ranks slightly higher, as having been created with a ‘governmental objective’, though
10
both remain ‘instrumentalities,’ it is a stretch to imagine that the Smithsonian
11
Institution would exercise ‘Government Speech,’ when AMTRAK does not! It is a
12
stretch to think that AMTRAK is liable for Constitutional protections, and the
13
Smithsonian is not!
14
15
Viewpoint Discrimination in LeBron
16
On remand to the U.S. Court of Appeals Second Circuit, where LeBron was now
17
considered in the light of the 1st Amendment, LeBron’s claims of ‘viewpoint’
18
discrimination failed. “Although Amtrak does not maintain a written policy with
19
respect to the Spectacular, its practice is clear; it has never opened the Spectacular
20
for anything except purely commercial advertising.” LeBron v. National R.R.
21
Passenger (amtrak), 69 F.3d 650, 656 (2d Cir. 1995)
22
Here is the perfect example where Plaintiff’s 1st Amendment ‘viewpoint’ violations
23
stands and LeBron fails. Plaintiff’s claims in the instant case of ‘viewpoint’ violations
31
1
are predicated on the fact the National Portrait Gallery had made it a practice of
2
exhibiting political campaign art, whereas AMTRAK had never shown political ads
3
on the Spectacular screen at Penn Station, only “purely commercial advertising”
4
(ibid).
5
Defendants are in serious error to even argue as they have done, in a seemingly
6
desperate and ill-‐informed attempt to protect the Smithsonian Institution from the
7
unlawful, unconstitutional actions of its officers. “The Constitution constrains
8
governmental action ‘by whatever instruments or in whatever modes that action
9
may be taken.’ Ex parte Virginia, 100 U.S. 339, 346 347 (1880).” LeBron v. National
10
Railroad Passenger Corporation, 513 U.S. 374, 392 (U.S. 1995)
11
12
Forum Analysis
13
Having Established Constitutional Grounds For This Present Legal Action
14
An Analysis of the Type of Forum is Appropriate
15
16
“Where restrictions on free speech rights are concerned, the type of forum dictates
17
the nature of the permissible restriction. In a quintessential public forum, typically
18
described as public streets and parks, ‘members of the public retain strong free
19
speech rights.’ Pleasant Grove City, Utah v. Summum, ___ U.S. ___, 129 S.ct. 1125, 1132
20
(2009). Content-‐based restrictions in such forums may be imposed only if the
21
restrictions are necessary to serve a compelling government interest. Id. (citing
22
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)). In addition,
23
the government may enforce reasonable time, place, and manner restrictions which
24
(1) are unrelated to speech content; (2) are narrowly tailored to serve a significant
32
1
governmental interest; and (3) allow alternative ways of communicating the same
2
information. Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 280 (3d Cir. 2004). The
3
government may create designated public forums by deliberately opening
4
government property to the public for that purpose, in which case such forums are
5
subject to the same restrictions as the quintessential public forum. Pleasant Grove,
6
129 S.ct. at 1125, 1132 (citation omitted).
7
Alternatively, the government may create a limited forum, which is ‘limited to use
8
by certain groups or dedicated solely to the discussion of certain subjects.’ Pleasant
9
Grove, 129 S.Ct. at 1132 (citation omitted). The government may impose restrictions
10
on speech in a limited public forum, as long as the restrictions are reasonable and
11
viewpoint neutral. Id. ( citing Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-‐
12
07 (2001)). Our court of appeals has stated that, in a limited public forum, "content-‐
13
based restraints are permitted, so long as they are designed to confine the `forum to
14
the limited and legitimate purposes for which it was created.' " Eichenlaub, 385 F.3d
15
at 280 ( quoting Rosenberger v. Rector Visitors of the Univ. of Va., 515 U.S. 819,
16
829 (1995)). Thus, ‘under contemporary public forum jurisprudence, a designated
17
(as opposed to traditional) forum is reviewed under a sliding standard that allows
18
for content-‐related regulation so long as the content is tied to the limitations that
19
frame the scope of the designation, and so long as the regulation is neutral as to
20
viewpoint within the subject matter of that content.’ Eichenlaub v. Township of
21
Indiana, 385 F.3d 274, 281 (3d Cir. 2004). Viewpoint-‐based restrictions, however,
22
‘violate the First Amendment regardless of whether they also serve some valid time,
33
1
place, manner interest.’ Monteiro, 436 F.3d at 404.” Galena v. Leone, 711 F.
2
Supp.2d 440, 11-‐13 (W.D. Pa. 2010)
3
Courts in this Circuit generally follow three steps in assessing a First Amendment
4
challenge: "first, determining whether the First Amendment protects the speech at
5
issue, then identifying the nature of the forum, and finally assessing whether the . . .
6
justifications for restricting . . . speech `satisfy the requisite standard.' " Mahoney v.
7
Doe, 642 F.3d 1112, 1116 (D.C. Cir. 2011) (quoting Cornelius v. NAACP Legal Def.
8
Educ. Fund, Inc., 473 U.S. 788, 797 (1985)).
9
Answer v. District of Columbia, 07-‐cv-‐1495 (RCL). (D.D.C. Jul. 21, 2011)
10
The first step here is undisputed. "[S]igns are a form of expression protected by the
11
Free Speech Clause. . . ." City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994). That is
12
particularly true given the subject of the signs plaintiffs seek to post — political
13
opinions on public issues such as war and racial profiling. Snyder, 131 S.Ct. at
14
1211 ("[S]peech on public issues occupies the `highest rung of the hierarchy of First
15
Amendment values' and is entitled to special protection." (quoting Connick v.
16
Myers, 461 U.S. 138, 145 (1983)); City of Ladue, 512 U.S. at 54
17
Answer v. District of Columbia, 07-‐cv-‐1495 (RCL). (D.D.C. Jul. 21, 2011)
18
The second step is to determine the nature of the forum in which the protected
19
speech occurs. This is slightly more complicated than the first step, but it still raises
20
no serious doubt. The "lamppost[s] and appurtenances" referenced by the
21
regulations, 24 D.C.M.R. § 108.1, are government property. Public forum doctrine
22
"divides government property into three categories for purposes of First
34
1
Amendment analysis." Oberwetter v. Hilliard, 639 F.3d 545, 551 (D.C. Cir. 2011).
2
One category is the traditional public forum, which encompasses public areas that
3
have "by long tradition or by government fiat . . . been devoted to assembly and
4
debate." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,
5
45 (1983). A second category is the limited public forum or designated public
6
forum, which comprises "public property which the State has opened for use by the
7
public as a place for expressive activity." Id. Answer v. District of Columbia, 07-‐cv-‐
8
1495 (RCL). (D.D.C. Jul. 21, 2011)
9
10
Lamb’s Chapel is Conclusive
11
“…Nor is there any indication in the record before us that the application to exhibit
12
the particular (Trump Portrait (added)) film series involved here was, or would
13
have been, denied for any reason other than the fact that the presentation would
14
have been from a religious (Or politically conservative pro-‐Trump (added))
15
perspective. In our view, denial on that basis was plainly invalid under our holding
16
in Cornelius, supra, at 806, that "[al]though a speaker may be excluded from a
17
nonpublic forum if he wishes to address a topic not encompassed within the
18
purpose of the forum . . . or if he is not a member of the class of speakers for
19
whose special benefit the forum was created, … the government violates the
20
First Amendment when it denies access to a speaker solely to suppress the
21
point of view he espouses on an otherwise includible subject."(Bold added.)
22
Lamb's Chapel v. Center Moriches Sch. Dist, 508 U.S. 384, 393-‐94 (U.S. 1993)
35
1
Second Circuit Appeals Court Forum Precedent
2
After the Supreme Court remanded LeBron, cited above, back to the United States
3
Court of Appeals, Second Circuit, the Court decided the case and considered the
4
Forum question. The Court concluded that the “Spectacular is not a public forum;
5
most likely, it is a nonpublic forum, or perhaps it is a limited public forum opened
6
for purely commercial speech.” LeBron v. National R.R. Passenger (amtrak), 69
7
F.3d 650, 656 (2d Cir. 1995) This Judicial guidance is sufficient for establishing
8
precedent in the instant case.
9
The forum conditions are always the same in all cases. That is, they must be
10
"viewpoint-‐neutral and reasonable in relation to the forum's purpose." Ibid.
11
“Although Amtrak does not maintain a written policy with respect to the
12
Spectacular, its practice is clear; it has never opened the Spectacular for anything
13
except purely commercial advertising. See Air Line Pilots Ass'n, 45 F.3d at 1154 ("a
14
court must examine the actual policy — as gleaned from the consistent practice with
15
regard to various speakers — to determine whether a state intended to create a
16
designated public forum"); cf. AIDS Action Comm. v. Massachusetts Bay Transp.
17
Auth., 42 F.3d 1, 10-‐12 (1st Cir. 1994) (prohibiting advertisements concerning use of
18
condoms pursuant to written policy prohibiting sexually explicit advertisements
19
constituted "discrimination in the application of supposedly neutral standards"
20
when other sexually explicit advertisements had been allowed).”
21
LeBron v. National R.R. Passenger (amtrak), 69 F.3d 650, 656 (2d Cir. 1995)
36
1
“In light of Amtrak's undisputed practice with respect to the Spectacular, therefore,
2
we conclude that the Spectacular is not a public forum; most likely, it is a nonpublic
3
forum, or perhaps it is a limited public forum opened for purely commercial
4
speech. See Calash v. City of Bridgeport, 788 F.2d 80, 83-‐84 (2d Cir. 1986) (sports
5
arena opened only to civic, charitable, and nonprofit groups either a nonpublic
6
forum or a limited public forum not required to accommodate other members of
7
general public).
8
Accordingly, Amtrak's policy of excluding noncommercial advertisements from the
9
Spectacular will be upheld so long as the policy is "viewpoint-‐neutral and
10
reasonable in relation to the forum's purpose." Calash, 788 F.2d at 84; see also
11
Cornelius, 473 U.S. at 806 ("Control over access to a nonpublic forum can be based
12
on subject matter and speaker identity so long as the distinctions drawn are
13
reasonable in light of the purpose served by the forum and are viewpoint neutral.").”
14
LeBron v. National R.R. Passenger (amtrak), 69 F.3d 650, 656 (2d Cir. 1995)
15
16
The Will of Smithson is Quintessential Protected Private Free Speech
17
18
Plaintiff’s free speech rights, as beneficiary and citizen are primarily contained in
19
the Will of Smithson in that the ‘increase and diffusion of knowledge’ can only occur
20
through communication, which is speech. One could argue that one can personally
21
increase in knowledge in silence, in isolation like a hermit and never tell anybody,
37
1
never write anything down etc. and thus there would be no speech, no
2
communication with another. But no one would know that there was an ‘increase’
3
of knowledge unless one would communicate the new knowledge to others who
4
would benefit from that increase, which is the purpose of the Will of Smithson, and
5
thus communication through words, language and pictures(art) must occur to
6
‘increase’ knowledge, which are now forms of protected speech, since the
7
government is involved. And then, there is the obvious speech clause in the will,
8
which is the ‘diffusion’, or the amplification, dissemination and transmission of the
9
then increased knowledge ‘among men.’
10
The will of Smithson can only be accomplished in and through a multitude of forms
11
of free speech. To submit such a private ‘will’, which is totally dependent on the
12
exercise of free speech in order to be accomplished, in trust to any government,
13
which history tells us are always disposed to infringe upon the free speech of its
14
citizens, thus in America’s case, the reason for the existence of the Bill of Rights and
15
especially the 1st Amendment to the Constitution, would be academic suicide if the
16
speech mandate in the Will of Smithson were not protected by the constitutional
17
restraints of the 1st Amendment. Un-‐restrained government, and constitutionally
18
unrestrained government officials, would seize the funds, abandon the will of the
19
testator, use the money for governmental objects and claim the institution as its
20
own, for its own ‘Government Speech’ as claimed in the instant case!
21
The government is prohibited from ‘abridging the freedom of speech’ at the
22
Smithsonian Institution, by claiming imaginary overreaching governmental status,
23
as Defendants contend. The Will of Smithson specifically calls for the ‘increase of
38
1
knowledge,’ and any attempt by the government to arbitrarily prohibit, restrict or
2
interfere with the purpose of the Will of Smithson, is a violation of the will and thus
3
of the 1st and 5th Amendment to the U.S. Constitution. The ‘Programme of
4
Organization’ by Joseph Henry, the first Smithsonian Secretary, specifically says;
5
“4. The objects of the institution are-‐ 1st to increase, and 2nd to, diffuse knowledge
6
among men.
7
5. These two objects should not be confounded with one another. The first is to
8
increase the existing stock of knowledge by the addition of new truths; and the
9
second, is to disseminate knowledge, thus increased, among men.
10
6. The will makes no restriction in favor of any particular kind of knowledge;
11
hence all branches are entitled to a share of attention.” Programme of
12
Organization, 1847
13
14
There is absolutely no room for any form of, or claim to, ‘Government Speech’ in this
15
founding charter and program for the Smithsonian Institution. Any claims of
16
‘Government Speech’ by Smithsonian employees to escape lawful prosecution after
17
silencing private protected speech by private citizens and beneficiaries are in
18
violation of the 1st Amendment to the U.S. Constitution: “Congress shall make no law
19
… abridging the freedom of speech,…” the Will of James Smithson and the
20
Congressional Smithsonian Act of 1846 and the Programme of Organization.
21
“…The Government of the United States is merely a trustee to carry out the design of
22
the testator. 3. The institution is not a national establishment as is frequently
23
supposed…” Smithsonian ‘Programme of Organization’, 1847
24
39
1
Private Free Speech Expressed in The Private Will of Smithson Under
2
Government Care Creates by Default Wherever the Will is Administered a Free
3
Speech Forum Protected by the 1st Amendment to the Constitution
4
5
Clearly, the Will of Smithson is quintessential private free speech operating under
6
the care and trust of the government. As a result, and by extension, the free speech
7
mandate creates the free speech forum in which the mandate is fulfilled. This forum
8
is a free speech forum where government cannot and does not speak. The forum
9
thus created is for the free exercise of the private will, which is private speech,
10
which is free speech, since it is administered by the Government as Trustee, thus by
11
default, a free speech forum protected by the 1st and 5th Amendments to the U.S.
12
Constitution is created.
13
14
Defendants’ arguments are seriously in error!
15
16
Smithsonian National Portrait Gallery is a Designated or Limited Public Forum
17
“(a) There is established in the Smithsonian Institution a bureau which shall be
18
known as the National Portrait Gallery. The functions of such bureau shall be those
19
authorized by this subchapter. The use for the purposes of the Gallery of any part of
20
the building transferred to the Smithsonian Institution (bold added) pursuant
21
to the Act of March 28, 1958 (72 Stat. 68), is authorized. (b) The Gallery shall
22
function as a free public museum for the exhibition and study of portraiture and
40
1
statuary depicting men and women who have made significant contributions to the
2
history, development, and culture of the people of the United States and of the
3
artists who created such portraiture and statuary.” 20 USC 75b
4
5
“…free public museum…” The fact that the gallery was established to be ‘free’ is
6
indicative of certain truths about the institution. It has to be ‘free’ since it belongs to
7
the ‘People of the United States’ and to charge an admission to ‘the People’ to access
8
their ‘property’ bequeathed to ‘the People’ by James Smithson a private person
9
would be outrageous. Thus access to the public ‘property’ is free.
10
11
This free access to ‘public’ property also gives insight into the type of forum the
12
museum was created to be. A “…free public museum for the exhibition and study
13
of portraiture and statuary…” Starting with the plain reading of the written purpose
14
of the Smithsonian National Portrait Gallery, it makes no mention of who can or
15
cannot ‘exhibit’ and ‘study’ the art.
16
17
The museum was created for artistic, historical and pictorial public speech in the
18
form of two-‐dimensional portraiture and three-‐dimensional statuary, by the artists
19
who create the art for the People of the United States, about significant members of
20
the People of the United States. The establishment states no government objective.
21
The portraits and statues are not determined to be creations of the government or
22
by government-‐commissioned artists, specifically communicating a ‘Government’
23
message. The written purpose is just an extension of the private speech expressed
24
in the will, for the ‘increase and diffusion of knowledge,’ thus the space was
41
1
designated for ‘exhibition’ that would be the ‘diffusion’ and the ‘study’ of
2
portraiture, which would ‘increase’ the knowledge of art, of the individuals
3
represented in the portraits, and of the artists who created them.
4
5
Members of the ‘People of the United States’ are to be the subjects of the museum,
6
including government officials, because they are firstly, part of the ‘People,’ not
7
because they are part of the government. The artists, also members of ‘the People,’
8
are also to have their place in the museum. We read: ‘depicting men and women…
9
and of the artists who created such…’
10
11
Thus, the Smithsonian National Portrait Gallery is a public museum created for ‘The
12
People of the United States,’ to be comprised of images of ‘The People of the United
13
States,’ created by the ‘People of the United States,’ and cared for by the Trustee (the
14
United States Congress), comprised of representatives of the ‘People of the United
15
States.’
16
17
The Smithsonian is thus a public speech forum and not a government speech forum.
18
Since it is stewarded by the Trustees, it is thus a ‘limited’ or a ‘designated’ public
19
forum for speech purposes, controlled by the will of a private individual, for ‘the
20
People of the United States.’ The trustees have fiduciary responsibilities to ensure
21
the Will of Smithson is carried out, and the specific reasonable standards and
22
procedures for the National Portrait Gallery are followed. Thus the parameters of
23
the speech, expressed for a multitude of different purposes, is determined by the
24
administration of written standards and procedures established by the Board of
42
1
Regents and the Portrait Gallery Commission of 1962, by the museum’s curators and
2
directors.
3
Smithsonian Procedure for Beneficiary Participation
4
“Smithsonian Institution Frequently Asked Questions online: Q “I would like to
5
donate an object to the Smithsonian Institution. What should I do?
6
Smithsonian Institution FAQ answer: “The Smithsonian acquires thousands of
7
objects and specimens each year for its collection holdings through donation,
8
bequest, purchase, exchange, and field collecting. The Institution accepts only
9
items that truly fill a gap in the collections and then only after careful
10
consideration by museum curators and directors. Because of this rigorous
11
selection ‘process’, the Smithsonian adds to its collections only a tiny percentage of
12
what it is offered.” https://www.si.edu/FAQs -‐ Amended Complaint. (Please note:
13
Since this lawsuit was filed, the entire answer to this question has been changed,
14
removing all of the elements that relate to the instant case.)
15
(Please also note: Since the filing of this lawsuit, the Smithsonian has completely
16
changed the answer to this question, removing all of the relevant elements in the
17
answer that specifically relate to this case. Furthermore, in Senator Grassley’s
18
scathing letter to the Chancellor of the Smithsonian Board Of Regents, Chief Justice
19
John Roberts, regarding the corruption at the Smithsonian in 2007, Senator Grassley
20
specifically addresses the issue of changing the rules to avoid the charges…(Another
21
issue to be uncovered under discovery.))
43
1
Free Speech Activity Acknowledged, Defended and Promoted in the
2
Smithsonian National Portrait Gallery By the Smithsonian Secretary
3
“…We are dealing with this issue of free speech and rights of free speech and
4
protection, protection of individuals and allowing for free speech…” Speech on
5
Censorship Town Hall, LA: Smithsonian Secretary Wayne Clough
6
https://www.youtube.com/watch?v=auWM8QXGtuQ (See at minute 3:25)
7
‘Government Speech’ is never mentioned as a defense for the actions of the
8
Smithsonian!
9
The Secretary was discussing the controversial homosexually-‐themed ‘portrait’
10
show Hide/Seek at the Smithsonian National Portrait Gallery (Please see
11
Smithsonian video https://www.youtube.com/watch?v=L4Qn7mrH_qI), with the
12
inclusion of homo-‐erotic art, some of which were not even portraits of significant
13
individuals. Are we to conclude that Government was speaking, as Defendants
14
contend, when displaying the images of nude, sexually-‐aroused men in a public
15
steam bath? Or, are we to conclude that the speech is private speech, in a private
16
institution, which is a designated forum administered by the Government?
17
The controversy at the National Portrait Gallery was over a video by artist David
18
Wojnarowicz, "Fire In My Belly," which was removed by the Smithsonian Secretary,
19
because of protests by the Catholic League’s Bill Donahue, who objected to the
20
exhibition in the Smithsonian National Portrait Gallery because of sacrilegious ‘anti-‐
21
Christian’ imagery on the tax payers dime, even though that specific exhibit was
22
funded by private organizations and individuals.
44
1
Was the video also government speech as Defendant’s contend? Or is the National
2
Portrait Gallery a designated public forum?
3
National Endowments for the Arts Standards vs. Smithsonian Standards
4
The government’s position regarding homo-‐erotic content can be seen in NEA v.
5
Finley: “Congress also enacted an amendment providing that no NEA funds ‘may be
6
used to promote, disseminate, or produce materials which in the judgment of [the
7
NEA] may be considered obscene, including but not limited to, depictions of
8
sadomasochism, homoeroticism, the sexual exploitation of children, or individuals
9
engaged in sex acts and which, when taken as a whole, do not have serious literary,
10
artistic, political, or scientific value.’ Department of the Interior and Related
11
Agencies Appropriations
12
Act, 1990, Pub.L. 101-‐121, 103 Stat. 738, 738-‐742.” National Endowment for the
13
Arts v. Finley, 524 U.S. 569, 575 (U.S. 1998)
14
The NEA standards were clear: "No payment shall be made under this section except
15
upon application therefor which is submitted to the National Endowment for the
16
Arts in accordance with regulations issued and procedures established by the
17
Chairperson. In establishing such regulations and procedures, the Chairperson shall
18
ensure that —
19
‘(1) artistic excellence and artistic merit are the criteria by which applications are
20
judged, taking into consideration general standards of decency and respect for the
21
diverse beliefs and values of the American public.’ "
22
National Endowment for the Arts v. Finley, 524 U.S. 569, 590 (U.S. 1998)
45
1
In contrast, Defendant Sajet, the Director of the Smithsonian, said in Defendant’s
2
letter of denial to Bishop E. W. Jackson: “There is no ‘moral test’ for people to be
3
accepted into the National Portrait Gallery, …”
4
So, how could the Congressionally-‐established Smithsonian Institution
5
‘promote…homoeroticism’ (ibid), when at the same time, the Congressionally-‐
6
established NEA forbade such? The only explanation can be as Justice Scalia opined:
7
“…there is no constitutional issue here because government art subsidies fall within
8
a zone of activity free from First Amendment restraints. The Government calls
9
attention to the roles of government-‐as-‐speaker and government-‐as-‐buyer, in which
10
the government is of course entitled to engage in viewpoint discrimination:
11
National Endowment for the Arts v. Finley, 524 U.S. 569, 610-‐11 (U.S. 1998)
12
Active Government ‘art subsidies’ are controlling and determining of Government
13
Speech verses passive Federal Tax appropriations ($700+ MILLION a year), of which
14
the Smithsonian secures from the taxpayer, with no moral accountability.
15
The NEA and the Smithsonian are completely different governmental entities as
16
established above. The Smithsonian Institution does not fulfill the role as
17
‘government as speaker.’
18
The Smithsonian Institution’s Secretary, Wayne Clough, went on a coast to coast, PR
19
media campaign, to explain to the art world why he had pulled the 4 minute video,
20
viewed as sacrilegious by some. He also explained why he had left the rest of the
21
104 ‘homosexually’ themed works of art intact in the exhibition. “Our objective is to
22
be as inclusive as we can…” Wayne Clough, Town Hall, LA
46
1
“People should understand that this was a unique situation: It was an exhibit that
2
no other museum that had been approached was willing to do. We took it on
3
because we thought it was an important topic. It was mounted and came up at the
4
time of a very contentious election cycle. So that’s where my engineering
5
background comes in: I can do the math here. The possibility of this ever
6
happening again is extremely remote.” Wayne Clough, Smithsonian Secretary,
7
https://www.huffingtonpost.com/lee-‐rosenbaum/smithsonian-‐clough-‐
8
interview_b_811261.html
9
The Smithsonian Secretary clearly describes the National Portrait Gallery as a public
10
exhibition forum that outside organizations can ‘approach’ with their desire to show
11
certain specific exhibitions. Upon accepting the offer to show the exhibit, with the
12
specific ‘homosexual’ theme, the National Portrait Gallery becomes a ‘designated
13
forum’ for that subject matter in that space. The Smithsonian in this case was the
14
only museum to accept the exhibit, out of a host of other museums that refused to
15
show the exhibit. The controversy started after the show went public. Then, after
16
the show at the Smithsonian, the show went on the road across the country, as an
17
independent exhibit apart from the Smithsonian.
18
“HIDE/SEEK: Difference and Desire in American Portraiture was originally organized
19
by the National Portrait Gallery, Smithsonian Institution, and has been reorganized
20
by the Brooklyn Museum and the Tacoma Art Museum. The original presentation
21
was co-‐curated by David C. Ward, National Portrait Gallery, and Jonathan D. Katz,
22
director of the doctoral program in visual studies at the State University of New
23
York at Buffalo. The Brooklyn Museum presentation is coordinated by Tricia
47
1
Laughlin Bloom, Project Curator.”
2
https://www.brooklynmuseum.org/exhibitions/hide_seek/
3
Funding for the Hide/Seek exhibition came from private foundations and private
4
individuals.
5
“The exhibition has been made possible by The Calamus Foundation with the
6
leadership contributions of Donald A. Capoccia and Tommie L. Pegues, and The
7
Andy Warhol Foundation for the Visual Arts. Additional significant support is
8
provided by many generous friends of the National Portrait Gallery, including the
9
John Burton Harter Charitable Trust, E*TRADE, Ella Foshay, Vornado/Charles E.
10
Smith, the Wyeth Foundation for American Art, Catherine V. Dawson, Robby Browne
11
and Madison Cumnock, The Durst Organization, Ashton Hawkins and Johnnie
12
Moore, The Robert Mapplethorpe Foundation, Occasions Caterers, the David
13
Schwartz Foundation, Frank J. Sciame, Jonathan Sheffer and Christopher Barley, and
14
Jon Stryker.
15
“Hide/Seek: Difference and Desire in American Portraiture” is supported by an
16
indemnity from the Federal Council on the Arts and the Humanities.
17
A 304-‐page catalog titled Hide/Seek: Difference and Desire in American Portraiture,
18
will be published by Smithsonian Books and distributed by Random House.
19
Authored by the exhibition curators, it will be on sale for $45.”
20
http://newsdesk.si.edu/releases/national-‐portrait-‐gallery-‐presents-‐
21
hideseek-‐difference-‐and-‐desire-‐american-‐portraiture-‐0
48
1
Participation of Private Citizen Beneficiaries in the Smithsonian Free Speech
2
Forum
3
Media Interviews with private individuals who have shown or donated their art to
4
the Smithsonian clearly show how the private individuals initiated the process
5
based upon some personal benefit, desire, or motivation that they had. Since the
6
Smithsonian is a public trust, whose sole purpose is for the benefit of the public,
7
then it is understandable why they were permitted or accepted for the fulfillment of
8
their own desires.
9
10
Tony Podesta: ‘We wanted’ to do something for art and for democrats…(why he
11
gave the copy of the Obama ‘Hope’ poster to the Smithsonian National Portrait
12
Gallery.)
13
“WASHINGTON (AP) — After amassing a private collection of African-‐American Art
14
over four decades, Bill Cosby and his wife Camille plan to showcase their holdings
15
for the first time in an exhibition planned at the Smithsonian Institution”
16
https://www.usatoday.com/story/life/people/2014/09/15/bill-‐cosbys-‐art-‐
17
collection-‐to-‐show-‐at-‐smithsonian/15684931/-‐
18
Amended Complaint
19
20
The Smithsonian Institution is Simply a Private Trust
21
22
5. MTD page 3. By mischaracterizing the nature of the Smithsonian, and attributing
23
executive or legislative ‘agency’ status to it, and giving lip service to the stated fact
49
1
that the Smithsonian is a ‘trust,’ Defendants have applied a theory of ‘entity’ status,
2
which dissolves the fundamental rights of beneficiary participation in the will of the
3
testator, James Smithson (which is the sole basis for the trust, thus the very reason
4
for the existence of the Smithsonian Institution).
5
6
Defendants only mention the word ‘trust’ twice in their entire argument, in
7
combination with ‘instrumentality,’ and never once mention the word ‘will,’
8
‘fiduciary’ or ‘beneficiary’. This deliberate evasion of dealing with the fact that the
9
Smithsonian is a ‘trust’ and nothing more, invalidates their defense, and gives ‘straw
10
man’ characteristics to their argument.
11
12
Trusts have trustees and beneficiaries, but title to trust property is not held by the
13
trust as with a corporation. The title to trust property is equitably held by the
14
trustees and the beneficiaries for whom the trust exclusively exists, not the Federal
15
Government. Beneficiaries hold equitable title to trust property; beneficiaries thus
16
have property rights accessible through the terms of the will that is administered by
17
the trustees.
18
19
Defendants argue against nearly a thousand years of established historic precedent
20
in Equity and Common Law dating back to the earliest historical documents
21
concerning property rights, including ‘guardianships,’ an ancient form of trustee
22
management, contained in the Magna Carta of 1215. To ignore the solemn and
23
sacred duty of the execution of trusts is an affront on the vast body of historical
24
equity and common law governing the execution of trusts and the duties of trustees.
50
1
1st Amendment free speech rights and 5th Amendment rights of ‘due process of law’
2
and ‘equal protection under the law’ all apply to the Smithsonian as a private trust
3
(run by the government, as trustee), when dealing with trust beneficiaries, the
4
American People. Defendants argue that silencing and discriminating against the
5
speech of a beneficiary participant of the will of James Smithson is lawful in their
6
theory of entity status.
7
8
The concept of the fiduciary duties of loyalty, the duty of care, the duty to disclose
9
etc., are foreign to Defendants, who fail to understand why it would be a normal
10
expectation for a trust beneficiary to receive ‘all’ the help necessary and the legally-‐
11
binding fiduciary duty to both answer Plaintiff’s letter, and to further instruct
12
Plaintiff if requested by plaintiff, as to any other options he could use in seeking
13
relief. The opportunity was denied Plaintiff, since Defendant Kurin refused
14
Plaintiff’s appeal, and refused to answer Plaintiff’s letter addressed to Defendant
15
Kurin. The Federal Tort Claims Act, is the remedy available for grievances for
16
‘negligence’, which is the criteria for qualifying under the FTCA, which constitutes
17
violations of the fiduciary ‘duty of care’.
18
19
The Sacred Fiduciary Duty in the Face of ‘Disintegrating Erosion’
20
21
Every time Defendants mention, or name the name ‘Smithsonian,’ they are invoking
22
the will and trust of Mr. James Smithson. And yet, as with this entire case,
23
Defendants immediately depart from said reality into an imaginary construct that
24
permits and condones all of the unlawful conduct committed by Defendant’s Sajet
51
1
and Kurin. This ‘no man’s land,’ legal scenario is at the root of the systemic issues
2
and problems at the Smithsonian Institution manifest in the actions of Defendants.
3
That is because the very Trustees have drifted from their responsibilities as
4
fiduciaries and surrendered power, dropped the reins, and gave over control to the
5
Smithsonian employees. This is not only Plaintiff’s opinion, but also the official
6
conclusion in the IRC report:
7
“The root cause of the Smithsonian’s current problems can be found in failures of
8
governance and management. The governance structure of the Institution is
9
antiquated and in need of reform. The relationship between the Board of Regents
10
and Mr. Small, as Secretary, was contrary to effective oversight. At a time when
11
organizations are expected to operate with increasing transparency, the operation
12
of the Smithsonian, and especially the actions of Mr. Small and those who reported
13
directly to him, had become increasingly secretive. Mr. Small created an
14
imperialistic and insular culture in the Office of the Secretary in which the Secretary,
15
rather than the Board, dominated the setting of policy and strategic direction for the
16
Smithsonian. The Board of Regents allowed this culture to prevail by failing to
17
provide badly needed oversight of Mr. Small and the operations of the Smithsonian.
18
The Board did not look behind the tightly controlled data provided by Mr. Small.
19
Nor did it engage in the active inquiry of Mr. Small and Smithsonian management
20
that would have alerted the Board to problems.”
21
https://www.si.edu/content/governance/pdf/IRC_report.pdf -‐ Page 2
22
23
52
1
The Opinion of Judge Cardozo Regarding Fiduciary Duty
2
3
“Many forms of conduct permissible in a workaday world for those acting at arm's
4
length, are forbidden to those bound by fiduciary ties. A trustee is held to something
5
stricter than the morals of the market place. Not honesty alone, but the punctilio
6
of an honor the most sensitive, is then the standard of behavior (bold added).
7
As to this there has developed a tradition that is unbending and inveterate.
8
Uncompromising rigidity has been the attitude of courts of equity when petitioned
9
to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of
10
particular exceptions ( Wendt v. Fischer, 243 N.Y. 439, 444). Only thus has the level
11
of conduct for fiduciaries been kept at a level higher than that trodden by the crowd.
12
It will not consciously be lowered by any judgment of this court.”
13
Meinhard v. Salmon, 249 N.Y. 458, 464 (N.Y. 1928)
14
“ The powers of a trustee are not personal to any particular trustee but, rather, are
15
inherent in the office of trustee…” Moeller v. Superior Court, 16 Cal.4th 1124,
16
1131 (Cal. 1997)
17
18
The will of Smithson named the ‘United States’ as primary beneficiary, and
19
mankind in general, as extended beneficiaries. Who or what is the ‘United States’?
20
“We the People of the United States…” -‐Preamble to the United States Constitution
21
Not a thing, not the government, not Congress, not the House and not the President,
22
but ‘We the People’ constitute the United States. “ A trust is a fiduciary relationship
53
1
with respect to property in which the person holding legal title to the property —
2
the trustee — has an equitable obligation to manage the property for the benefit of
3
another-‐ the beneficiary. ” Moeller v. Superior Court, 16 Cal.4th 1124, 1133 (Cal.
4
1997) The Smithson Will does not say who will run the institution, nor does it say
5
who cannot participate in it. The bequest was a ‘gift’ to the American People, for the
6
“increase and diffusion of knowledge among men.”
7
8
Breach of Fiduciary Duty Constitutes Violations Of the 5th Amendment ‘Due
9
Process of Law’
10
11
Just because the Smithsonian Institution is a ‘unique’ governmental anomaly does
12
not exempt the Smithsonian Institution and its employees from the constraints of
13
the Constitution or the laws of equity.
14
By accepting the fiduciary duties attached to the role of trustee, the Federal
15
Government enshrouded those fiduciary duties underneath the protections afforded
16
the public by the United States Constitution and the Bill of Rights.
17
18
Fiduciary duty became a constitutionally protected function of the Smithsonian
19
Institution. Defendants cannot pretend that there was a window in the side of the
20
deal to accept Smithson’s bequest, which allowed the government to hold their
21
fiduciary duties outside the constraints of the Constitution. Violating sacred
22
fiduciary duties, in the role as trustee by the Federal Government, violates the U.S.
23
Constitution, and especially the 5th Amendment ‘due process of law,’ with respect to
24
the deprivation of property. The minute the Smithsonian Institution deprives one of
54
1
its beneficiaries of their rights of participation in the Will of James Smithson, they
2
have deprived the beneficiary of their lawful property, as in the instant case.
3
4
Trusts are Relationships
5
6
Participation in the will of Smithson was not limited to the government. The
7
government was merely a trustee of the will, who took on the responsibility to
8
create an ‘…establishment for the increase and diffusion knowledge,’ which is still in
9
effect and ongoing.
10
11
Beneficiaries are the essence of the Smithson will, not just passive recipients, but
12
active participants, since the will is open-‐ended, and not specific as to who does
13
what. Congress, in becoming trustee, facilitates the performance of the will.
14
Beneficiaries, the American People, participate actively and passively in the
15
‘increase and diffusion of knowledge’. Beneficiaries actively participate by donation,
16
bequests and loans to the museum; the museum participates by acquisition and
17
swaps in order to acquire artifacts.
18
“Portraits were among the earliest art works that the Smithsonian acquired in the
19
1840’s, and were displayed alongside other art works at the Institution for the next
20
century. In 1919, interested citizens began active lobbying (bold added) for a
21
separate gallery devoted to American portraiture.” National Portrait Gallery
22
https://siarchives.si.edu/history/national-‐portrait-‐gallery
23
55
1
Here it can be seen that ‘interested citizens’ were the genesis of the portrait gallery.
2
They began ‘active’ lobbying for ‘a separate gallery…’ Thus, proof of active
3
beneficiary participation and direction from the beneficiaries in the ‘increase and
4
diffusion of knowledge.’
5
6
Trustees have established rules, ethics, procedures and standards by which the trust
7
functions and by and through which Beneficiaries can participate. Trust
8
Beneficiaries, the American People, hold equitable title to Smithson’s property, thus
9
a clearly established property right to the Smithsonian Property. Trustees
10
adjudicate the will and determine reasonable standards of participation.
11
12
“The Smithsonian Institution is a public trust whose mission is the increase and
13
diffusion of knowledge. The Smithsonian was established by the United States
14
Congress to carry out the fiduciary responsibility assumed by the United States in
15
accepting the bequest of James Smithson to create the Smithsonian Institution…
16
We are accountable to the general public as well as to the Smithsonian’s multiple
17
stakeholders in carrying out this responsibility. We recognize that the public
18
interest is paramount… Serving the Smithsonian is a privilege and those who
19
work on its behalf have a responsibility to maintain the highest standards of
20
honesty, integrity, professionalism, and loyalty to the Institution.”
21
-‐Smithsonian Statement Of Values and Code of Ethics, 2007
22
23
“A fiduciary duty is the highest standard of care. The person who has a fiduciary
24
duty is called the fiduciary, and the person to whom he owes the duty, is typically
56
1
referred to as the principal or the beneficiary. If an individual breaches the fiduciary
2
duties, he or she would need to account for the ill-‐gotten profit. His or her
3
beneficiaries are entitled to damages, even if they suffered no harm.
4
Fiduciary duties exist to encourage specialization and induce people to enter into a
5
fiduciary relationship. By imposing these duties, the law reduces the risk of abuse of
6
a beneficiary by the fiduciary. As a result, potential beneficiaries can have greater
7
confidence in seeking out a fiduciary.” Cornell Law School, Fiduciary Duty,
8
https://www.law.cornell.edu/wex/fiduciary_duty
9
10
When Smithsonian fiduciary duties are willfully violated without the ‘due process of
11
law’ by Federal trust officers, because of personal animus, personal agendas and
12
political bias, trust officers deprive trust beneficiaries of their property rights
13
without the ‘due process of law’ and, as in the instant case, they deprive citizens
14
their rights under the United States Constitution.
15
16
The Right to Benefit from the Property as Specified in the Trust
17
18
“WHAT IS A TRUST? A trust is a legal relationship in which one person (or qualified
19
trust company) (trustee) holds property for the benefit of another (beneficiary). The
20
property can be any kind of real or personal property-‐-‐money, real estate, stocks,
21
bonds, collections, business interests, personal possessions and automobiles. It is
22
often established by one person for the benefit himself or of another. In those cases,
23
it generally involves at least three people: the grantor (the person who creates the
57
1
trust, also known as the settlor or donor), the trustee (who holds and manages the
2
property for the benefit of the grantor and others), and one or more beneficiaries
3
(who are entitled to the benefits). It may be helpful to think of a trust as a contract
4
between the grantor and the trustee. The grantor makes certain property available
5
to the trustee, for certain purposes. The trustee (who often receives a fee) agrees to
6
manage the property in the way specified. Putting property in trust transfers it from
7
your personal ownership to the trustee who holds the property for you. The trustee
8
has legal title to the trust property. For most purposes, the law looks at these assets
9
as if they were now owned by the trustee. For example, many trusts have separate
10
taxpayer identification numbers. But trustees are not the full owners of the
11
property. Trustees have a legal duty to use the property as provided in the trust
12
agreement and permitted by law. The beneficiaries retain what is known as
13
equitable title, the right to benefit from the property as specified in the trust.”
14
15
https://www.americanbar.org/content/dam/aba/migrated/publiced/practic
16
al/books/wills/chapter_4.authcheckdam.pdf
17
Smithsonian Employees Are Specifically Trustee Delegates.
18
19
Smithsonian Trust employees are merely Trustee Delegates or Functional
20
Fiduciaries who also happen to be Federal employees. They are not elected, and thus
21
they do not speak for the Government. Smithsonian Trustees and their officers
22
speak for the Testator James Smithson, in carrying out Smithson’s Last Will and
23
Testament, which the People of the United States receive as beneficiaries, which is
24
administered by the Federal Government in trust.
58
1
“SEC. 7. And be it further enacted, That the secretary of the board of regents shall
2
take charge of' the building and property of said institution, and shall, under their
3
direction, make a fair and accurate record of all their proceedings, to be
4
preserved in said institution; and the said secretary shall also discharge the duties
5
of librarian and of keeper of the museum, and may, with the consent of the board
6
of regents, employ assistants; and the said officers shall receive for their services
7
such sum as may be allowed by the board of regents, to be paid semi-‐annually on the
8
first day of January and July; and the said officers shall be removable by the
9
board of regents (bold added), whenever, in their judgment, the interests of the
10
institution require any of the said officers to be changed.” -‐Smithsonian Act of
11
Congress 1846
12
(Smithsonian assistants can be fired by the regents, they are not appointed or
13
elected…. simply hired.)
14
15
IRC REPORT TO THE BOARD OF REGENTS
16
17
“Governance and Applicable Fiduciary Duties”
18
“The structure, organization, management and oversight of the Smithsonian were
19
established by federal statute in 1846, providing that the Board of Regents shall be
20
the governing body. The Board has the responsibility for appointing the Secretary,
21
who is charged with managing the operations of the Smithsonian.
22
23
Unlike the vast majority of nonprofit organizations whose governance is informed
24
by applicable state statutes and common law of fiduciary duties, there is no
59
1
developed body of federal common law setting forth the duties and obligations of
2
the Board. Nonetheless, it is clear that the Regents are fiduciaries of the
3
Smithsonian. First, the Regents are trustees charged with managing the original
4
Smithson trust for the benefit of the American people.7
5
Second, the Regents are analogous to directors of a nonprofit organization and
6
therefore must fulfill the fiduciary duties of directors. While trustees and directors
7
are both subject to duties of loyalty and care, the trustee is expected to satisfy a
8
higher standard with respect to both duties.8 The fiduciary duties of the Regents are
9
spelled out clearly in Smithsonian Directive 150:
10
11
The Board of Regents bears the responsibility to the United States as trustee in
12
carrying out the Smithsonian bequest in the execution of the trust for which it was
13
appointed. The primary obligation of the Board of Regents is to manage the
14
resources of the Institution for the benefit of all mankind.9
15
16
The standards applied to the Regents derive from trust law:
17
18
A trust is a fiduciary relationship whereby a trustee holds and administers property
19
for stated purposes on behalf of named beneficiaries. A trustee who holds legal title
20
to trust property can use that property only in accordance with trust purposes to
21
serve trust beneficiaries. In addition, a trustee must exercise prudent oversight of
22
trust assets, keep strict accounts, make every effort to further trust purposes,
23
and account for stewardship of the trust to all proper authorities.
24
(Foot Notes copied below relate to the previous page.)
60
1
6 20 U.S.C. §§ 41-‐67.
2
7A trustee has a “fiduciary relationship with respect to property, subjecting the
3
person by whom the title to the property is held to equitable duties to deal with the
4
property for the benefit of another.”
5
RESTATEMENT (SECOND) OF TRUSTS 2 (1957)
6
8 See George B. Bogert & George T. Bogert, THE LAW OF TRUSTS AND TRUSTEES
7
§394 (Rev. 2d 1994) (higher standard of care and stricter duty of loyalty generally
8
imposed upon trustees under trust law than on trustees or directors under
9
nonprofit corporation statutes)
10
9 SMITHSONIAN DIRECTIVE 150, Smithsonian Institution Origins, Governance, and
11
Relationship to the Federal Government (April 16, 1996), attached as Exhibit 3.
12
The duties required of one in such a fiduciary capacity are well established in the
13
law. The duty of care generally describes the level of attention required of a director
14
in all matters related to the organization.11 This duty of care is perhaps more
15
accurately described as a “duty to be informed.” A director has the responsibility
16
to become informed about an issue before making a business decision relating
17
to the issue (bold added). 12 A director will fulfill the duty of care if, prior to
18
making a decision, he or she seeks out and considers all material information
19
reasonably available to him or her. To fulfill the duty of care, the directors
20
should follow deliberate procedures and consult with appropriate
21
committees, officers or employees of the organization or other outside experts
22
in making corporate decisions (bold added). This often means going beyond what
23
is provided to the board by in-‐house staff, including consulting with outside experts,
24
talking directly to, and questioning, employees with knowledge of the facts and,
61
1
above all, asking thoughtful and probing questions. Board members may not simply
2
rely on the word of senior management without further inquiry.
3
4
The duty of loyalty requires a director to act in the interest of the entity rather than
5
in the personal interest of the director or some other person or organization.13
6
More importantly, the duty of loyalty encompasses an obligation of directors
7
and key employees with financial or other decision-‐making authority to avoid
8
conflicts of interest. For a director, a violation of this duty may result in
9
personal liability for a breach of fiduciary duty. For the organization, such a
10
breach may allow a court to void the corporate transaction in which a conflict
11
was present (bold added). 14 There have been no allegations, nor are the IRC
12
aware of any evidence whatsoever, that any Regent violated this duty of loyalty.
13
14
These duties of care and loyalty are heightened for the Regents due to their status as
15
trustees of the Smithsonian trust. In short, Regents owe the highest possible
16
fiduciary duty to the Smithsonian and the American people.” -‐IRC REPORT
17
https://www.si.edu/content/governance/pdf/IRC_report.pdf Pages 28-‐30
18
19
(Copied footnotes)
20
10 Id. 11 See 3A William Meade Fletcher, FLETCHER CYCLOPEDIA OF THE LAW OF
21
CORP. § 1029 (duty of care requires that directors perform their obligations with a
22
minimum standard of care) 12 See id. § 1034.80 (director’s failure to make a
23
reasonable inquiry may constitute breach of duty of care). 13 See id. § 837.60
24
62
1
Government Creep
2
To think that then President Andrew Jackson, or the U.S. Congress, back in 1846, had
3
in mind the creation of an institution, to be under Federal control and in ‘trust’, that
4
would have been un-‐constrained by the Constitution and the Bill Of Rights, is
5
absurd. The establishment of the Smithsonian happened on the heels of the
6
Revolution, just 70 years after the signing of the Declaration of Independence and
7
the writing of the U.S. Constitution. The evidence of former British rule would have
8
been ever present at that time, palpable and evident reminders of tyranny and
9
abuse at the hands of an un-‐accountable tyrannical Sovereign, drunk on imperial
10
power.
11
It is obvious this very present awareness of the dangers of government tyranny,
12
overreach, and government creep lingered powerfully in the minds and hearts of the
13
first generation of Americans who at that time, began to live as free men under the
14
glorious Constitutional liberty and its reasonable and lawful constraints.
15
16
The establishment of the Smithsonian Institution was no different. Funded by a
17
private bequest, willed to the American People, by a British subject no less, and
18
accepted in trust by Congress. The Smithsonian had its ‘status’ clearly defined by
19
the first Secretary as a protection against misuse and abuse. (Please see the
20
‘Programme of Organization’)
21
22
The notion that the newly established Constitutional Republic would consent to
23
accepting a small fortune in trust for the American People, that could easily
24
disappear and be unaccounted for because of all manner of well-‐intentioned
63
1
programs, without extending the protections of the Constitution and the Bill of
2
Rights to the beneficiaries defies belief. That the government acting as trustee
3
would wall off participation in the Will of Smithson by the beneficiaries, the
4
American People, suddenly claiming Sovereign or ‘Patron of the arts’ ‘Government
5
Speech’ powers over the private moneys and private will defies belief. What ripe
6
and fertile ground that would have been for all manner of un-‐accountable mischief
7
and tyranny to take place!
8
The unelected ‘status’ of the trustees and their subsequent assistants, Federal
9
employees, now operating behind an impregnable wall of Constitutional
10
unaccountability, would have pulled off a remarkable heist (if true), due to the
11
enormous scale of the bequest. Beneficiaries (if that were the case), were left to, or
12
better said, permitted to, just peer from a distance over the massive governmental
13
wall at ‘their’ sparkling pile of over 100,000 gold Sovereigns1, under the care of
14
salivating officials pacing back and forth, gleefully rubbing and folding their hands!
15
16
Sufficient Factual Matter -‐ Rule 12b(6)
17
“Defendants also move to dismiss the Plaintiffs' action under Federal Rule of Civil
18
Procedure 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6) of the
19
Federal Rules of Civil Procedure, "a complaint must contain sufficient factual matter,
20
accepted as true, to `state a claim to relief that is plausible on its face.' " Ashcroft v.
21
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(quoting Bell
22
Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 1 The property of James Smithson arrived in the U.S. Treasury in the form of gold coins. 100,000 gold sovereigns. 2 “We hold that where, as here, the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the 64 Government for purposes of the First Amendment. We express no opinion as to whether
1
(2007)). Generally, when ruling on a 12(b)(6) motion, the court assumes that the
2
facts alleged in the complaint are true and draws all reasonable factual inferences in
3
the nonmoving party's favor. Edwards v. City of Goldsboro,178 F.3d 231, 244 (4th
4
Cir. 1999). A complaint need not provide "detailed factual allegations," but it must
5
"provide the grounds of [the plaintiff's] entitlement to relief" with "more than labels
6
and conclusions" or "a formulaic recitation of the elements of a cause of
7
action." Twombly, 550 U.S. at 555, 127 S.Ct. 1955
8
6. MTD Page 4:
9
Just because the Supreme Court discourages new causes of action under Bivens, it
10
does not mean they are prohibited. It simply means, use other appropriate
11
remedies, but in the interest of justice, as in the instant case, where no other
12
remedies exist, a clear candidate for Bivens has arrived. It is the same as the
13
‘disfavored’ argument, disfavored does not mean prohibited. Until Congress creates
14
an equivalent for 42-‐USC §1983, Bivens will and must suffice to hold government
15
officials personally accountable for Constitutional violations.
16
17
Defendant’s ‘straw man’ argument regarding the court weighing in on the subjective
18
content of the painting in question as a ‘special factor’ is a red herring. Plaintiff has
19
requested official, reasonable consideration according to the lawful Smithsonian
20
standards of portraiture acceptance within the controlling will of James Smithson,
21
according to the ‘due process of law.’ There are no ‘special’ factors in this, as
22
Defendants would like to imagine, just the ‘due process of law.’
23
65
1
Plaintiff’s ‘Motion for the Service of Process,’ based on Rule FRCP 4 : “(3) By a
2
Marshal or Someone specially appointed. At the plaintiff's request, the court may
3
order that service be made by a United States marshal or deputy marshal or by a
4
person specially appointed by the court. The court must so order (bold added) if
5
the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. §1915 or as a
6
seaman under 28 U.S.C. §1916,” is before the Court and was docketed on October
7
10th, 2017, within the 120 days of filing of the instant case at the District Court for
8
the District of Columbia. It is the Court’s role to order the Service of Process for ‘pro
9
se’ plaintiff, who have been granted ‘forma paupuris.’ When this is ordered, the
10
Motion to Dismiss for Rule 12b 4 and 5 for the failure of the ‘Service of Process’
11
cause as moot.
12
13
14
Defendant’s Stale Bread Theory
15
16
Defendants contend that since the Inauguration is over, Plaintiff’s application for the
17
Inauguration is mooted, since relief specific to that event cannot be granted! This is
18
ridiculous. Plaintiff never confined the application just to the Inauguration of 2017;
19
that was just the beginning! In fact, had the portrait been properly and lawfully
20
considered and properly exhibited as a result, the next step in the life of the painting
21
was up for grabs. Maybe the Trump portrait would have been donated to the
22
Smithsonian? Maybe it would have been acquired? Maybe it would have had its
23
exhibition extended due to the vast numbers of supporters of President Trump filing
24
through the museum to see the portrait upon their visits to Washington D.C.? Maybe
66
1
of course, the revenue stream created would be good motivation for an extended
2
stay? Obviously, questions and answers for now left in limbo.
3
4
Please remember, we are dealing with a gallery whose sole purpose is being a
5
National, historic, pictorial archive for the ‘increase and diffusion of knowledge’.
6
There is no expiration date, like on a loaf of bread, for historic artifacts! In fact, the
7
passage of time only increases the historical value and significance of an artifact. So
8
there can be no time limit on the relevance of a historical work of art that captures a
9
dramatic and unprecedented political historical event. That is what makes historic
10
art so unique and valuable, since it is an artistically documented ‘snap-‐shot’ of a
11
historic moment, that anchors the events pictorially for all who see and remember
12
for generations to come. May the Court notice the deprivation caused to the
13
American People when American history is edited and revised for personal, hostile,
14
political agendas.
15
16
Also Plaintiff, on December 1st, 2016, had called Defendant Sajet to gather
17
information as to the options available in the application process. Questions would
18
have included duration of the initial exhibition, lending procedures, acquisition
19
procedures, etc. None of these questions were even asked or answered since
20
Defendant, when returning the phone call to Plaintiff, immediately refused the
21
painting; and the arbitrary 11-‐minute argument ensued.
22
23
Donald Trump is still President, and will be for the foreseeable future. The tribute in
24
the historic National archive of pictorial arts can still be recorded and celebrated at
67
1
any time! January 20th, 2018, 2019, 2020 etc., would be fitting dates to
2
commemorate and pay tribute to President Trump’s historic win, thus one of many
3
future dates in which the portrait should be hung. However, regardless of the date,
4
the relief sought for due consideration, and the portrait’s subsequent acceptance,
5
allows for the historic portrait to be hung at any time in the future, since it is a
6
record of history in the past.
7
As for the FTCA claims, Plaintiff has already motioned the Court for either an order
8
of transfer the FTCA portion back to the Smithsonian or for leave to withdraw the
9
FTCA portion of the case, so Plaintiff can file it appropriately with the Smithsonian.
10
Plaintiff found a case in support of his motion that will be argued at the end of this
11
response.
12
13
Unchallenged Allegations Construed Favorably to the Pleader
14
15
“In passing on a motion to dismiss, whether on the ground of lack of jurisdiction
16
over the subject matter or for failure to state a cause of action, unchallenged
17
allegations of the complaint should be construed favorably to the pleader. Scheuer
18
v. Rhodes, 416 U.S. at 236,94 S.Ct. at 1686. The complaint should not be dismissed
19
unless it is beyond doubt that the plaintiff can prove no set of facts, which would
20
entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-‐46, 78 S.Ct. 99, 101-‐02, 2
21
L.Ed.2d 80 (1957).” -‐Hamlet v. U.S, 873 F.2d 1414, 1416 (Fed. Cir. 1989)
22
23
68
1
Defendant’s Partial Record of the Facts
2
4. MTD page 2: By ignoring the political animus of Defendants’ actions and
3
sanitizing Defendants’ egregious Constitution violating actions, Defendants imagine
4
their actions were lawful and proper, guaranteeing them ‘qualified immunity’. It is a
5
jury who must determine if there was politically-‐motivated view-‐point-‐
6
discriminating animus or not; at which point, the jury must decide if Defendants are
7
protected by ‘Qualified Immunity.’
8
9
MTD page 5: Defendants start by accepting ‘all’ of Plaintiff’s factual allegations as
10
true, since the record of facts were not rebutted as false, and Defendants selectively
11
tell the story without the key details about the anti-‐Trump, political animus and bias
12
experience at the Rockwell Museum in Corning, New York. So then, at the hands of
13
Defendants, all the facts are accepted as true. By stating acceptance of ‘all’ factual
14
allegations as true, and yet failing to refute the claims of personal, political animus at
15
the hands of Defendants, Defendants have conceded and admitted the charge of
16
political, anti-‐Trump bias and animus; in effect Defendants have pled guilty to this
17
charge.
18
Defendants edit out critical factual details concerning the official complaint filed
19
against the Smithsonian Affiliate, the Rockwell Museum, with Smithsonian Director
20
of Affiliations, Harold Closter.
21
22
Regarding the Appeal, Plaintiff appealed to the Board of Regents, at the direction of
23
Defendant Sajet, whose final, arbitrary and ‘due-‐process-‐of law-‐violating’ statement
69
1
forcefully declared: “I am the Director of the Smithsonian National Portrait Gallery,
2
your application will go no further, you can appeal my decision all you want.”
3
Defendants continue to create ‘straw man’ arguments: “Plaintiff alleges that the
4
Portrait Gallery’s failure to consider his Trump Portrait for display violates his First
5
Amendment right to engage in ‘political free speech’ and consisted in view-‐point
6
discrimination.” Defendants’ thus argue that the unlawful, 1st Amendment ‘free-‐
7
speech-‐violating’ actions that happened during a biased, impartial and politically-‐
8
motivated, anti-‐Trump, personally opinionated, hasty, arbitrary Smithsonian
9
procedure ‘due-‐process-‐of-‐law-‐ignoring” 11 minute phone call to Plaintiff by
10
Defendant Sajet was all just part of the Smithsonian’s failure to consider Plaintiff’s
11
Trump portrait for display?
12
13
It was not the ‘failure to consider the Trump Portrait for display,’ but the arbitrary,
14
and politically discriminatory manner of its so called ‘consideration’. It was
15
Defendants who had created the political free speech forum by accepting and
16
showing the political campaign Obama ‘Hope’ poster for the 2009 and 2013
17
Inauguration of President Obama, from Washington Democrat, political lobbyist
18
Tony Podesta, who said he wanted to ‘do something for art and for Democrats,’ by
19
donating the ‘Hope’ poster for display during the historic inauguration of President
20
Elect Obama.
21
22
The egregious ‘viewpoint’ discrimination happened in the midst of the argument on
23
the phone call from Defendant Sajet to Plaintiff regarding the fact that the
24
Smithsonian accepted and displayed a political campaign poster, not created from
70
1
life, but falsely claimed by Defendant Sajet to have been, of a liberal Democratic
2
Presidential candidate Barrack Obama, who then insisted that rejection was justified
3
because the Trump Portrait was ‘too political’ and ‘too pro Trump,’ compared to the
4
political, pro-‐Obama campaign poster! ‘View point’ neutrality is the Constitutional
5
standard; if some political art is accepted and displayed, then all political art is
6
acceptable and permitted. Defendant Sajet’s ‘anti-‐Trump’ politics were then clearly
7
revealed on the Smithsonian National Portrait Director’s twitter page!
8
9
Regarding the FTCA, Plaintiff exhausted every step Plaintiff knew of at the time.
10
Defendants fail to recognize the personal, emotional and mental anguish Plaintiff
11
was experiencing. Defendant Sajet’s arbitrary actions left Plaintiff ‘stunned and
12
silenced,’ and yes, it was the ‘fault’ of Defendants to have failed Plaintiff again, in
13
assisting Plaintiff in the journey towards justice and relief. Or, is it the role of
14
officials in government-‐run institutions, involving fine art and artists, to
15
intentionally trample their way through the lives of the artists by deliberately and
16
arbitrarily depriving them of their rights, and after bludgeoning them, knocking
17
their lights out, stand there mocking them because they have the nerve to think the
18
government should help them find the door! The notion of ‘Government of the
19
people, by the people, for the people,’ spoken by Abraham Lincoln has, in this case,
20
perished from the earth.
21
22
Once Defendant Kurin, the Smithsonian Provost, refused to answer Plaintiff’s
23
questions and response in writing by letter (written to Defendant Kurin in reply to
24
Plaintiff’s appeal), Plaintiff had exhausted every remedy made available to him.
71
1
1st Amendment Free Speech ‘Viewpoint Discrimination’ in a Government Run
2
Free Speech Forum
3
“When the government targets not subject matter, but particular views taken by
4
speakers on a subject, the violation of the First Amendment is all the more blatant.
5
See R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992). Viewpoint discrimination is thus
6
an egregious form of content discrimination (bold added). The government
7
must abstain from regulating speech when the specific motivating ideology or the
8
opinion or perspective of the speaker is the rationale for the restriction. See Perry
9
Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46 (1983).” -‐Rosenberger v.
10
Rector and Visitors of Univ. of Va, 515 U.S. 819, 829 (U.S. 1995)
11
“ The principle that has emerged from our cases ‘is that the First Amendment
12
forbids the government to regulate speech in ways that favor some viewpoints or
13
ideas at the expense of others.’ City Council of Los Angeles v. Taxpayers for
14
Vincent, 466 U.S. 789, 804(1984).” -‐Lamb's Chapel v. Center Moriches Sch. Dist,
15
508 U.S. 384, 394 (U.S. 1993)
16
17
Viewpoint Discrimination
18
"If there is any fixed star in our constitutional constellation, it is that no official, high
19
or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or
20
other matters of opinion. . . ." West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624,
21
642 (1943). In keeping with that principle, the First Amendment bars government
22
officials from censoring works said to be "offensive," Texas v. Johnson, 491 U.S. 397,
72
1
414 (1989), "sacrilegious," Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 531 (1952),
2
"morally improper," Hannegan v. Esquire, 327 U.S. 146, 149 (1946), or even
3
"dangerous," Regan v. Taxation with Representation of Washington, 461 U.S. 540,
4
548 (1983). ‘If there is a bedrock principle underlying the First Amendment, it is
5
that the government may not prohibit the expression of an idea simply because
6
society finds the idea itself offensive or disagreeable.’ Texas v. Johnson, 491 U.S. at
7
414.” -‐Brooklyn Institute of Arts v. City of New York, (e.d.n.y. 1999), 64 F.
8
Supp.2d 184, 198 (E.D.N.Y. 1999
9
Defendant Sajet’s egregious 1st and 5th Amendment violations and deprivations
10
happened on December 1st, 2016 at 11:23 a.m, when Defendant personally called
11
Plaintiff’s cell phone. (A detailed account is contained in the Amended Complaint
12
pages 24 and onwards.) By disqualifying and objecting to the Trump Portrait as ‘not
13
from life’, Plaintiff challenged Defendant Sajet, since the objection was totally
14
arbitrary. Defendant Sajet was obviously caught off guard and caught in a lie.
15
Defendant Sajet, obviously not liking the scenario, began to aggressively ‘dig in’ and
16
insist the truth was as Defendant falsely stated. The Obama ‘Hope’ poster, accepted
17
and exhibited for two President Obama inaugurations, in the National Portrait
18
Gallery, was not created from life. It was simply a photo-‐shopped and posterized
19
photo by AP photographer Mannie Friedman, copied from the Internet, by artist
20
Shepherd Fairey. (Plaintiff is intimately acquainted with the story of the Obama
21
‘Hope’ poster.)
22
Defendant Sajet forcefully insisted the Obama poster was created from life, which
23
was patently false. An argument erupted. Defendant Sajet did not retreat to
73
1
research and confirm her position, rather raised her voice to Plaintiff’s utter
2
surprise! Here, only a few minutes into a phone call from the Director of the
3
Smithsonian National Portrait Gallery, Plaintiff was involved in a verbal, heated
4
dispute; this was disturbing!
5
After loudly and forcefully insisting that Defendant Sajet was right, Defendant Sajet
6
rapidly shifted to another objection, since Plaintiff was not moved by the false
7
claims about the Obama ‘Hope’ poster and since Plaintiff knew the truth about the
8
creation of the ‘Hope’ poster.
9
‘Too pro-‐Trump” Defendant Sajet now objected. Again Plaintiff could not believe
10
what Plaintiff was hearing. On the heals of defending false claims about the pro-‐
11
Obama ‘Hope’ poster, Defendant Sajet objected to the Trump portrait as ‘too pro-‐
12
Trump’. This is clearly a content-‐based objection, which is based on the ‘viewpoint’.
13
Defendant insisted that as viewpoint ‘more neutral’ would have been more suitable,
14
thus objecting to the content/viewpoint, that was symbolic, personal, patriotic,
15
political, Presidential, Electoral, etc. Defendant Sajet, at the beginning of the call,
16
had alluded to the ‘eagle and the American flag’ in a negative tone, thus a tacit
17
objection started the conversation, setting the context for the objections to follow.
18
As Defendant Sajet objected to the content of the painting, Defendant Sajet was
19
forced to justify the presence of the ‘George Washington’ Lansdowne portrait at the
20
NPG. Out of no where, Defendant began to defend the National Portrait Gallery for
21
having the Lansdowne portrait? Obviously, Defendant knew that the objections
22
given to the Plaintiff were arbitrary and hypocritical. Defendant Sajet began the
23
justification for the presence of the Lansdowne painting, which is not a ‘traditional’
74
1
head and shoulders portrait, but a full-‐body painting with a fully-‐developed
2
background, layered in symbolism in order to pacify Defendant’s guilty conscience,
3
in refusing the Trump portrait, which turns out to be another example of viewpoint
4
discrimination. Again, here was a clear objection to the Trump portraits content,
5
because it caused Defendant to rationalize the double standard and hypocrisy of
6
Defendant’s position. Plaintiff at the time wondered why Defendant repeatedly
7
mentioned the Lansdowne portrait whilst objecting to the content of the Trump
8
portrait?
9
For the Qualified Immunity argument later to be addressed, this guilty conduct is
10
evidence that Defendant knew she was breaking the law by violating the lawful
11
standards that permitted the presence of the Lansdowne portrait. Yet, Defendant
12
Sajet violates that lawful process, by denying another painting, containing a
13
similarly-‐developed, symbolic background. Defendant knew exactly that
14
Defendant’s content/viewpoint objection was unlawful, and thus violated both
15
Plaintiff’s 1st Amendment free speech rights, and the 5th Amendment’s ‘due process
16
of law’.
17
In the same way, at the outset of Defendant’s phone call to Plaintiff, Defendant
18
Sajet’s objection to the size of the painting as being ‘too big’, was also a violation of
19
lawfully established procedure, hence the violation of the ‘due process of law.’ This
20
objection was not immediately content-‐based, but pre-‐textual, by objecting to the
21
physical size, in order to reject the content. There are no size restriction guidelines
22
at the Smithsonian (like in Defendant’s cited case in Pulphus). In Pulphus, a clear
23
written ‘size’ standard existed and was exceeded by Plaintiff, Pulphus, in that case.
75
1
Pulphus’s painting was required to conform to the size; by correcting the size of the
2
decorative frame, the painting then qualified.
3
4
In the instant case, Defendant Sajet invented an arbitrary scale standard to
5
arbitrarily object to the content. But then, as Plaintiff objected to the arbitrariness
6
of the objection to the size of the portrait, Defendant Sajet quickly and apologetically
7
retracted the invented objection, evidencing a conscious knowledge of the lack of an
8
existing lawful standard to support the arbitrary objection. The fact that for the
9
2013 Presidential Inauguration two huge portraits of President Obama were
10
exhibited as part of the festivities celebrating President Obama’s win obviously
11
played a part in triggering guilt in Defendant Sajet.
12
13
Rapidly and apologetically retracting the arbitrary, personally-‐invented sizing
14
standard of acceptance by Defendant Sajet, evinces a consciousness of guilt and
15
triggered by the knowledge of the law within Defendant. Defendant ‘knew’
16
Defendant’s action was unlawful and untenable, and thus retracted the objection
17
right at the beginning of the argument in hopes of not giving grounds for
18
prosecution for Defendant’s unlawful conduct.
19
20
The next objection immediately followed the ‘not from life’ objection. Defendant
21
now objected to the portrait as ‘too political’; again objecting to the content, thus the
22
viewpoint. Since Defendants had accepted and exhibited the pro-‐Obama and pro-‐
76
1
Clinton political campaign posters/art, Defendants had opened the limited or
2
designated public forum up to political, campaign-‐related art, as a specific ‘Political
3
Campaign’ category of art, and for use during Presidential Inaugurations as in 2009,
4
and 2013.
5
6
Viewpoint Discrimination & ‘Practice’ in LeBron v. AMTRAK
7
On remand to the U.S. Court of Appeals, Second Circuit, from the Supreme Court2;
8
where LeBron was now considered in the light of the 1st Amendment, LeBron’s
9
claims of ‘viewpoint’ discrimination failed. “Although Amtrak does not maintain a
10
written policy with respect to the Spectacular, its practice is clear(bold added); it
11
has never opened the Spectacular for anything except purely commercial
12
advertising.” LeBron v. National R.R. Passenger (amtrak), 69 F.3d 650, 656 (2d
13
Cir. 1995)
14
Here is the perfect example of where Plaintiff’s 1st Amendment ‘viewpoint’
15
violations stand and LeBron fails. Plaintiff’s claims, in the instant case of ‘viewpoint’
16
violations, are predicated on the fact that the National Portrait Gallery had made it a
17
practice of exhibiting from a liberal, Democrat ‘viewpoint’ (political campaign art), 2 “We hold that where, as here, the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment. We express no opinion as to whether Amtrak's refusal to display LeBron’s advertisement violated that Amendment, but leave it to the Court of Appeals to decide that. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.” LeBron v. National Railroad Passenger Corporation, 513 U.S. 374, 400 (U.S. 1995)
77
1
whereas AMTRAK had never shown political ads on the ‘Spectacular’ screen at Penn
2
Station, only ‘purely commercial advertising’ (ibid).
3
4
Defendant Sajet’s arbitrary objection that the Trump portrait was ‘too political’ and
5
the Obama ‘HOPE’ poster was not, is a clear case of viewpoint discrimination,
6
violating the law of ‘viewpoint neutrality.’
7
8
The Constitutional Right to be Free From Political ‘Viewpoint’ Discrimination’
9
10
Plaintiff’s First Amendment ‘viewpoint’ free speech discrimination claims also fits
11
under the ‘equal protection’ clause of the 5th Amendment ‘Due process of law’ –
12
That was the bases for the Bivens Actions landmark decision in Davis v. Passman.
13
14
“If the case is different in a meaningful way from previous Bivens cases decided by
15
this Court, then the context is new.” Ziglar v. Abbasi, No. 15-‐1358 (U.S. Jun. 19,
16
2017) Although Plaintiff’s First Amendment claims in the instant case may create a
17
new context, Plaintiff’s 5th Amendment Claims, especially the 2nd, count regarding
18
the ‘equal protection under the law’ is not a new context.
19
20
Viewpoint Discrimination and the 5th Amendment
21
22
Violations of the Fifth Amendment’s ‘equal protection’ clause have already been
23
established as a valid cause of action for a Bivens Action against federal officers:
24
“The equal protection component of the Due Process Clause thus confers on
78
1
petitioner a federal constitutional right to be free from gender
2
discrimination…(bold added).” Davis v. Passman, 442 U.S. 228, 235 (U.S. 1979)
3
The Court in Passman could have easily written what was stated above without the
4
qualifying term ‘gender,’ in that it is discrimination of any kind that is the
5
constitutional violation of the equal protection clause. In the instant case, that
6
‘being free from discrimination’ would also include the right to be from personal
7
animus, expressed as personal, political, anti-‐Trump ‘Viewpoint discrimination’.
8
9
“The Fifth Amendment provides that "[n]o person shall be . . . deprived of life,
10
liberty, or property, without due process of law . . . ." In numerous decisions, this
11
Court "has held that the Due Process Clause of the Fifth Amendment forbids the
12
Federal Government to deny equal protection of the laws. E. g., Hampton v. Mow Sun
13
Wong, 426 U.S. 88, 100 (1976); Buckley v. Valeo, 424 U.S. 1,
14
93 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2
15
(1975); Bolling v. Sharpe, 347 U.S. 497, 500 (1954)." Vance v. Bradley, 440 U.S. 93,
16
95 n. 1 (1979).” Davis v. Passman, 442 U.S. 228, 234 (U.S. 1979)
17
“It is equally clear, and the en banc Court of Appeals so held, that the Fifth
18
Amendment confers on petitioner a constitutional right to be free from illegal
19
discrimination.” -‐Davis v. Passman, 442 U.S. 228, 236 (U.S. 1979)
20 21 22 23
79
1
‘Class of One’ Equal Protection Under The Law
2
3
Defendants argue that Plaintiff does not qualify for equal protection under the law
4
because Plaintiff ‘fails to allege that similarly situated individuals were treated
5
differently than he was…’ and yet, Plaintiff clearly cites four individuals in the
6
Amended Complaint who were treated very differently, because ‘they’ had their art
7
accepted, hung and celebrated in the Smithsonian Institution. They are: Bill Cosby,
8
Tony Podesta and Ian and Annette Cummings.
9
10
Examining the ‘Similarly Situated’ conditions are critical to establishing an ‘equal
11
protection claim.’
12
13
Plaintiff was ‘Similarly Situated’
14
15
1. Plaintiff is a U.S. Citizen and Beneficiary of the Will of James Smithson like Bill
16
Cosby, (Page 49, lines 20-‐24 Amended Complaint), Tony Podesta and Ian &
17
Annette Cummings.
18
2. Plaintiff possesses title and ownership to a historic, victorious Presidential
19
campaign-‐related portrait, like Podesta’s ‘Hope’ portrait.
20
3. Plaintiff similarly wanted to do something for art and Republicans, like Podesta
21
wanted to do for art and Democrats in the 2009 Presidential Inauguration.
22
(Amended Complaint p.3, line 11-‐14)
80
1
4. Plaintiff similarly wanted to show his art at the Smithsonian in concert with the
2
2017 Inauguration festivities for the President of the United States, in the People’s
3
portrait gallery, in the People’s Capitol, Washington D.C.
4
5. Plaintiff similarly approached the Smithsonian National Portrait Gallery offering
5
his huge, Trump portrait on loan for the Presidential Inauguration, like billionaires
6
Ian and Annette Cummings did for the 2013 Presidential Inauguration, when their
7
two, huge, Chuck Close, Obama portraits were hung alongside Tony Podesta’s
8
donated ‘Hope’ poster by Shepherd Fairey. (Page 27, lines 20-‐26 Amended
9
Complaint.)
10
6. Billionaires Ian and Annette Cumming’s offer was accepted; Plaintiff’s was
11
rejected as “too big.”
12
13
Plaintiff though, does partially concede to Defendant’s contention as to not being
14
completely ‘similarly situated’ with those mentioned, in that the Plaintiff:
15
1. Is not a rich and famous Hollywood celebrity. (Bill Cosby)
16
2. Is not married to any members of the board at the Smithsonian Institution. (Bill
17
Cosby)
18
3. Is not personal friends with the Director of any museum at the Smithsonian
19
Institution. (Bill Cosby)
20
4. Is not at all affluent (in fact is a financial ‘pauper,’ in the instant case), never having
21
made any huge, medium or a even tiny ‘financial donations,’ ‘charitable
22
contributions’ or ‘gifts,’ nor has had any other involvement with the Smithsonian
23
Institution, for the purpose of purchasing ‘special’ status and submission approvals,
81
1
as part of a special/ influential group at the Smithsonian Institution. (Cosby,
2
Podesta, Cummings)
3
5. Is not an influential member of a political party. (Tony Podesta)
4
5. Is not a powerful, Washington political lobbyist/insider with filial connections
5
(John Podesta) to the highest echelons of the liberal Democratic Party political
6
power structure, namely Bill and Hillary Clinton. (Tony Podesta)
7
6. Is not a billionaire! (Ian Cummings)
8
7. Is not under investigation by the Federal Bureau of Investigations.
9
(Cosby/Podesta)
10
8. Is not a liberal Democrat. (Cosby, Podesta, Cummings)
11
12
‘Class of One’
13
14
“To qualify for “class of one” equal protection, an individual must first show that he
15
or she was treated differently from similarly situated persons and that the different
16
treatment was intentional and had no rational basis. Then, the individual must
17
show that this differential treatment flows from an illegitimate animus, rather than
18
from coincidence, chance, or a permissible governmental classification.
19
20
There are some exceptions to the “class of one” doctrine. For example, the doctrine
21
does not apply in the public employment context. Furthermore, an individual is
22
only entitled to “class of one” equal protection doctrine if he was intentionally
23
singled out because of his membership in the class. In other words, he cannot
24
simply be a random victim of governmental incompetence.”
82
1
https://www.law.cornell.edu/wex/equal_protection
2
3
Plaintiff’s entire case, claims (from the first interaction with Smithsonian Affiliate,
4
the Rockwell Museum in Corning, New York), that Plaintiff was ‘singled out because
5
of his membership in a particular political class,’ and suffered political, view-‐point
6
discrimination as a Trump supporter, Trump artist, conservative and Republican
7
party-‐member. Plaintiff’s official complaint to the Smithsonian Affiliations Director,
8
Harold Closter, was based upon the Rockwell Museum Director, Kirstin Swain and
9
Smithsonian Executive Liaison Patty Campbell’s obvious refusal to assist Plaintiff
10
because of intentional political discrimination.
11
12
This context of political discrimination was the environment in which the
13
Defendants, in the instant case, would intentionally discriminate against Plaintiff
14
because of Plaintiff’s political beliefs and membership in a particular group, that of
15
Trump supporters. Defendants intentionally ignore this context of discrimination,
16
which allows them to imagine that Defendant’s behaved rationally and lawfully as
17
they exercised their duties. Nothing could be further from the truth.
18
19
‘Rational Basis’
20
(Definition) ‘Rational’, adjective
21
•
: based on facts or reason and not on emotions or feelings
22
•
: having the ability to reason or think about things clearly
23
-‐Webster’s Dictionary
83
1
Defendants wish to have the Court believe that the Defendants acted rationally and
2
“…did not think plaintiff’s portrait was appropriate for display,” because they said
3
so! (Page 3, Motion to Dismiss.)
4
(Definition) ‘Appropriate’, adjective
5
•
6
: suitable or fitting for a particular purpose, person, occasion, etc. -‐Dictionary.com
7
Such a statement coming from Defendants without qualification is everything the
8
instant case is about, unlawful, vague, invented, constitution-‐violating, federal-‐
9
institutional-‐arbitrariness. (Please note: Defendant’s again fail to cite any official
10
written standards. If “appropriate” (ibid.) is not defined or qualified, it is as vague
11
and arbitrary as telling your daughter her skirt is not appropriate because it is too
12
short, without telling her why and then defining the appropriate and acceptable
13
length, which is then the standard. If not, a parent can arbitrarily change the
14
definition of appropriateness on a daily basis, with no rationale, leaving the girl
15
totally confused, angry and frustrated.
16
17
Defendants’ statement contradicts reason, by creating an arbitrary standard, which
18
is totally subjective. ‘Appropriate,’ by definition, is a standard, determining whether
19
something is ‘suitable or fitting for a particular purpose, occasion etc…’ In the
20
instant case, the consideration was for the most recognized, presidential, political
21
campaign-‐inspired-‐and-‐themed, hand-‐painted portrait of the then candidate, Donald
22
Trump, who was victorious, and became President Elect. Said portrait was to be
23
considered for exhibition and study in a portrait gallery, specifically dealing with
84
1
portraits of Americans who had “made a significant contribution to American
2
history, development and culture.” Said gallery has the practice of hanging
3
presidential, politically-‐inspired, campaign art, by grassroots artist, for presidential
4
inaugural festivities. To claim, as Defendants do, that the portrait was not
5
“appropriate” or was not fitting or suitable for the occasion, defies belief, unless of
6
course, there was some legitimate violation of a binding, opaque, written standard.
7
8
It is clear that the portrait did not violate any written standards, was totally
9
appropriate, and the only reason why the portrait was rejected was because of
10
personal, political animus on behalf of the gallery officials, in this case, Defendants
11
Sajet and Kurin.
12
13
The Rational Test
14
15
If Defendants had said: “Defendants did not think Plaintiff’s portrait was
16
appropriate for display, because it violates these Smithsonian standards:…x…y. and
17
z,” then the statement would be rational. Without basing this conclusion on any
18
legally established, Smithsonian Institution standards, which are subject to the
19
Constitutional constraints of the ‘Due process of law’, Defendants have vindicated
20
Plaintiff’s arbitrariness claims. Defendants’ refusal to make a record in support of
21
this vague, now cited, ‘appropriateness’ standard, which by all accounts Defendants’
22
have invented, again defeats Defendants’ claim of being rational. By all accounts,
23
Defendants’ personal, political animus is hidden now behind vague claims to
24
reasonableness, which are then self-‐defeated by obfuscation, since they willfully
85
1
refused to write anything down (which is required by written statute and is both
2
reasonable and rational official conduct), according to Smithsonian Standards,
3
procedures and ethics, (which is required by the ‘due process of law’).
4
5
‘Personal, political animus’ permeates throughout this case, and is the basis for the
6
arbitrary, unlawful, standard-‐distorting, procedure-‐ignoring, hostile, manipulative
7
and 1st and 5th Amendment violations committed by Defendants. Being intentionally
8
singled out as a member of a certain group as a Trump supporter will be proven in
9
this case by a preponderance of evidence at trial. The evidence presented thus far in
10
the claims in the Amended Complaint clearly paint a picture of political animus
11
directed at Plaintiff (and there is an abundance of evidence to be presented at trial
12
that will convince a rational and reasonable jury of such claims).
13
14
Thus as it can be clearly ascertained from the facts presented, that Plaintiff was
15
entitled to his Constitutional right of the 5th Amendment’s ‘equal protection under
16
the law.’
17
18
National Portrait Gallery’s On Going ‘Practice’ is Binding
19
As can be seen by the ruling above in LeBron, at the Court of Appeals, it was the on-‐
20
going ‘practice’ of AMTRAK to not allow political, non-‐commercial advertisements,
21
(which determined that there were no grounds for LeBron to have his political ad
22
displayed), and thus ‘viewpoint’ discrimination could not occur.
86
1
In the instant case, the situation is reversed, in that it is the on-‐going ‘practice’ at the
2
National Portrait Gallery to acquire and exhibit political campaign art, as
3
demonstrated by the acquisition and exhibition of both the Hillary Clinton campaign
4
art and the Obama ‘Hope’ poster, created by grass roots activist artists, not officially
5
involved in the various campaigns.
6
Thus having Plaintiff’s political campaign-‐related portrait lawfully considered,
7
accepted, studied and exhibited in the Smithsonian, as part of the ongoing ‘practice’
8
in the National Portrait Gallery to acquire, study and exhibit for historical purposes
9
political, Presidential, campaign art, guarantees Plaintiff’s Trump portrait to receive
10
all, due, procedural considerations and participation, as established by on-‐going
11
institutional ‘practice’.
12
Denial of Plaintiff’s Trump portrait, in the light of the on going ‘practice,’ could only
13
happen as the result of multiple, similar campaign-‐art related pieces being
14
submitted simultaneously, and for the same purpose. If there was no need for
15
multiple pieces relating to then President Elect Trump, then one piece would suffice,
16
as the historical record would require. In the absence of multiple pieces in
17
submission, the one and only Presidential campaign art, the Trump portrait, in the
18
instant case, would by virtue of the on going ‘practice,’ unreservedly qualify.
19
Thus, denial of Plaintiff’s participation, as it relates to the ‘practice’ of the institution,
20
constitutes 1st Amendment free speech ‘viewpoint’ discrimination.
21
87
1
Violation of Congressional Statute 20 USC 75b
2
The whole point of the collection at the Smithsonian National Portrait Gallery is
3
American history. Defendant Sajet deliberately refused to consider the history, in
4
violation of the law contained in the Congressional mandate in 20 USC 75b, by
5
deliberately failing to follow Smithsonian standards and procedures concerning
6
historic research, both surrounding, and captured in, the historic ‘pro-‐Trump’
7
painting, because Defendant wanted to control the narrative, and do everything to
8
diminish President Trump’s historic triumph, due to Defendant’s, anti-‐Trump,
9
political animus. Defendants knew exactly what they were doing concerning the
10
historic content and Defendants manifest complete disregard to American History,
11
choosing their own political agenda above the accurate and honest preservation of
12
the American historical record.
13
The Trump portrait is a presidential, political campaign, work of art/portrait used
14
through out the 2015-‐16 Presidential Campaign. Since a limited, or designated
15
public forum must be ‘viewpoint neutral,’ according to the category that has been
16
accepted, (once the ‘political’ art category had been established and exhibited), ‘all’
17
political campaign art must be permitted regardless of its content ‘viewpoint’.
18
Controlling Guidelines
19
By examining the controlling guidelines/standards at the National Portrait Gallery, a
20
reasonably jury will deduce that there is no standard or guideline-‐based reason the
21
Trump portrait should have been rejected. The Trump portrait did not violate any
22
established ‘guidelines’ of acceptance at the National Portrait Gallery. The Trump
88
1
portrait’s rejection by Defendant Sajet was clearly motivated by personal, political
2
animus.
3
Defendant Sajet’s final authoritarian declaration to Plaintiff reveals the depth of the
4
hostile, anti-‐Trump animus (determined at any cost), to keep out anything
5
historically ‘pro Trump’ from Defendant’s Gallery. Defendant wanted to control the
6
historical narrative and block, revise and edit any positive, creative, fine art
7
historical painting that would record and communicate the incredible,
8
unprecedented, historic and victorious election story now and for future
9
generations of Americans, especially our children’s children!
10
Defendant Sajet assertively declared: “I am the Director of the National Portrait
11
Gallery, your application will go no further, you can appeal it all you want!” In
12
simple terms, Defendant Sajet was saying that Defendant was all powerful and
13
above the law, protected by absolute immunity and nothing the common, powerless
14
and insignificant Plaintiff would or could ever do would change the outcome of
15
Defendant’s decision, because Defendant was ‘god’ in the Smithsonian National
16
Portrait Gallery. Constitutional rights could not affect the outcome; Plaintiff had no
17
civil rights; that no Bill of Rights could protect Plaintiff; and that no laws, rules,
18
standards, guidelines or appeals could change Defendant’s authoritarian and
19
absolute final decision. This is Defendant’s revelation, admission and unrestrained
20
proclamation that Defendant is a tyrant!
21
The fact that Defendant Sajet uses the official National Portrait Gallery Director’s
22
Twitter page to promote Defendant’s anti-‐Trump animus, by posting an anti-‐Trump
23
article on the 20th of January 2017, the day of the Presidential Inauguration, and
89
1
photos of Defendant’s Sajet as part of the anti-‐Trump women’s protest march on the
2
21st of January in Washington D.C., is self-‐incriminating evidence. The fact that not
3
even a single positive post about President Trump can be found on the account (not
4
even a trace of the Trump ‘apple tossing photo,’ that was exhibited for the
5
Inauguration by Defendant), confirms that there was a pretext in Defendant’s
6
rejection of Plaintiff’s Trump portrait, and it was motivated by personal, political
7
anti-‐Trump animus.
8
Thus the portrait of anti-‐Trump animus is complete; it paints a clear picture with
9
the totality of Defendant’s actions surrounding the Presidential Inauguration of
10
2016/17 of Donald J. Trump, in the instant case.
11
12
Controlling Guidelines Comparison
13
A comparison of the actions of Defendants, with the controlling institutional
14
guidelines and Defendant Sajet’s own words, illuminates Defendant Sajet’s actions
15
as unlawful violations of established, lawful guidelines, and thus violations of the 1st
16
and 5th Amendment to the United States Constitution.
17
(Again, please remember the primary controlling institutional standard is for the
18
“increase and diffusion of knowledge”) -‐Smithson Will
19
“The Gallery shall function as a free public museum for the exhibition and study of
20
portraiture and statuary depicting men and women who have made significant
21
contributions to the history, development, and culture of the people of the United
22
States...” 20 USC 75b
90
1
“The Smithsonian Board of Regents appointed the first National Portrait Gallery
2
Commission in 1963, which defined two main objectives for the Gallery based on
3
its congressional mandate: acquisition and exhibition of portraits and statuary of
4
those who have made significant contributions to the history, development, and
5
culture of the United States; and establishment of the gallery as a research center for
6
American biography, iconography, and history. To carry out the first objective, the
7
commission established guidelines for accepting portraits: that works must be
8
the best likeness possible; original portraits from life, if possible; and that all
9
exhibitions of permanent collection portraits should be of Presidents and First
10
Ladies, and subjects who have been dead for at least ten years. Thus, the standards
11
for accepting portraits varied considerably from other galleries. Even today, in
12
every instance, the historical significance of the subject is judged before the
13
artistic merit of the portrait, or the prominence of the artist.” (Bold added.)
14
https://siarchives.si.edu/history/national-‐portrait-‐gallery
15
“There is no ‘moral test’ for people to be accepted into the National Portrait Gallery,
16
instead we try to draw attention to those who have made significant impact on
17
American history and culture, and that includes the accomplished and the
18
reprehensible. We recognize Sanger’s advocacy on behalf of women’s health and
19
education whilst acknowledging her sometimes deplorable beliefs.
20
The most admirable aspects of American culture are that we attempt to
21
acknowledge past mistakes, engage in open and civilized discourse, and set a
22
path towards a better future. Removing those people from the Portrait Gallery
23
who have been less than perfect would deprive future generations of valuable
91
1
lessons concerning personal ambition and achievement on one hand, and human
2
imperfection and fallibility on the other (bold added).” Signed Kim Sajet, Director
3
-‐Letter of Denial to Bishop Jackson
4
5
5th Amendment Deprivations Without the Due Process of Law
6
7
“The Fifth Amendment, in the field of federal activity, and the Fourteenth, as
8
respects state action, do not prohibit governmental regulation for the public
9
welfare. They merely condition the exertion of the admitted power, by securing that
10
the end shall be accomplished by methods consistent with due process. And the
11
guaranty of due process, as has often been held, demands only that the law shall not
12
be unreasonable, arbitrary or capricious, and that the means selected shall have a
13
real and substantial relation to the object sought to be attained.”
14
Nebbia v. New York, 291 U.S. 502, 525 (U.S. 1934)
15
“Because the right to procedural due process is "absolute" in the sense that it does
16
not depend upon the merits of a claimant's substantive assertions, and because of
17
the importance to organized society that procedural due process be observed,
18
see Boddie v. Connecticut, 401 U.S. 371, 375 (1971); Anti-‐Fascist
19
Committee v. McGrath, 341 U.S., at 171-‐172” -‐Carey v. Piphus, 435 U.S. 247, 266
20
(U.S. 1978)
21 22
92
1
“NO GOOD”, Smithsonian National Portrait Gallery Director Kim Sajet
2
Defendant Sajet’s final objection during the eleven-‐minute phone call to Plaintiff was
3
also a lawless violation of Smithsonian standards, constituting a violation of the 5th
4
Amendment due process of law, by the fact that the violation of a clearly written
5
standard was the basis for the deprivation of Plaintiff’s property rights. Defendant
6
now insulted Plaintiff and the Trump portrait as being ‘no good,’ regarding the
7
artistic merit (willfully stabbing at core of the artist’s ability and skill with
8
Defendant’s words), as Defendant groped for further justification for the arbitrary
9
rejection.
10
Plaintiff’s painting has been seen by tens of thousands of people from New York to
11
L.A.. Even the harshest critics, those objecting to the Trump subject matter; left
12
wing artists, (including Yosi Sergant, the inspiration and patron behind the Obama
13
HOPE poster and Whitehouse liaison for the Arts under President Obama); Black
14
Lives Matter protesters; Bernie Sanders supporters and many others, ever
15
questioned the artistic merit. The Trump portrait was always commended for its
16
artistic merit and excellence.
17
The fact that the existence of the Trump cartoon, a small pen and ink cartoon sketch
18
(mocking Trump as Icarus falling from the sky with paper money flying around,
19
depicting Trump’s financial failures), is part of the Smithsonian collection, is
20
evidence that “…the historical significance of the subject is judged before the artistic
21
merit of the portrait …” 1962 Commission standards!
93
1
At the National Endowment for the Arts, ‘artistic merit’ is a standard of acceptance,
2
at the Smithsonian it is not. The Smithsonian written ‘guidelines’ clearly say:
3
“The Smithsonian Board of Regents appointed the first National Portrait Gallery
4
Commission in 1963, which defined two main objectives for the Gallery based on
5
its congressional mandate….Thus, the standards for accepting portraits varied
6
considerably from other galleries. Even today, in every instance, the historical
7
significance of the subject is judged before the artistic merit of the portrait, or
8
the prominence of the artist (bold added).” -‐1962 National Portrait Gallery
9
Commission.
10
“There is created the National Portrait Gallery Commission. The number, manner of
11
appointment and tenure of the members of the Commission shall be such as the
12
Board may from time to time prescribe. The Board may delegate to the Commission
13
any function of the Gallery or any function of the Board with respect to the Gallery.
14
The Board may make rules and regulations for the conduct of the affairs of the
15
Commission and the operation of the Gallery, and to the extent and under such
16
limitations as the Board deems advisable, the Board may delegate to the
17
Commission the power to make such rules and regulations.” 20 USC 75c
18
19
In the instant case, the artistic merit was judged as ‘no good’ without even seeing
20
the original 7x15’ (8x16’ with decorative frame) acrylic on stretched canvas, and
21
without even a prior historic consideration as required by statute. The clear
22
egregious, deliberate and hostile violation of the 5th Amendment’s ‘due process of
94
1
law’ is obvious, as the written statutory procedure for acceptance was completely
2
ignored!
3
4
Standards, Standards, Standards
5
‘Items That Truly Fill a Gap’: One of the Ways the ‘Increase of Knowledge’
6
Happens at the Smithsonian Through Citizen Beneficiary Participation
7
Simply put, if the item offered ‘fills a gap’ in the bank of knowledge that requires the
8
increase, it is then ‘carefully considered by museum and curators’ through a
9
‘rigorous selection process’.
10
Smithsonian Institution Frequently Asked Questions online: Q “I would like to
11
donate an object to the Smithsonian Institution. What should I do?
12
Smithsonian Institution FAQ answer: “The Smithsonian acquires thousands of
13
objects and specimens each year for its collection holdings through donation,
14
bequest, purchase, exchange, and field collecting. The Institution accepts only
15
items that truly fill a gap in the collections and then only after careful
16
consideration by museum curators and directors. Because of this rigorous
17
selection ‘process’, the Smithsonian adds to its collections only a tiny percentage of
18
what it is offered.” https://www.si.edu/FAQs -‐ Amended Complaint
95
1
As can be seen clearly from the procedure presented to citizen beneficiaries desiring
2
to participate in the Will of Smithson, the goal is to ‘fill the gap’ in the knowledge
3
bank.
4
5
Defendant’s ‘Government Speech’ Argument Benefits Plaintiff
6
7
Defendants’ arguments in favor of their ‘Government Speech’ theory, using
8
Summum, Walker, PETA & Pulphus, and their ensuing efforts to undermine
9
Plaintiff’s 5th Amendment claims with straw man arguments, end up establishing
10
Plaintiff’s 5th Amendment claims by citing Summum, Walker, PETA & Pulphus.
11
Even though the Smithsonian Institution is not a government entity like the
12
governments in Summum, Walker, PETA & Pulphus as established above, and
13
even though the Smithsonian is not subject to the Administrative Procedure Act, the
14
Smithsonian is still subject, as a Federal ‘trust instrumentality’ to the ‘due process of
15
law’ clause in the Bill of Rights. The ‘due process of law’ protection in the
16
‘deprivation of life, liberty and property…’ ensures that any action depriving any
17
citizen of a clearly established right or benefit, by any government official requires
18
that all ‘due process of laws’ regarding established standards, procedures and ethics
19
must as a matter of law be obeyed as they are written, thus demonstrating the
20
legality of the deprivation.
21
No provision exists exempting Federal employees in the Smithsonian Institution
22
from obedience and adherence to written established standards and procedures in
96
1
any Federal institution, thus the reason for the ‘due process of law’ which is the
2
protection for citizens from the arbitrary, partial and biased actions of powerful
3
officials who, because of personal political agendas use their position to arbitrarily
4
violate the will of the People and the Constitution of the United States.
5
Plaintiff’s 5th Amendment claims rest primarily on the refusal of Defendants to abide
6
by the lawful standards and procedures that should guide the decision-‐making
7
process for beneficiary participation and portraiture acceptance in the Smithsonian
8
Institution. Without repeating the details, which are clearly described in the
9
Amended Complaint, it is ‘as clear as day,’ that Defendants could not cite the
10
Smithsonian standards, since the standards would contradict their arbitrary, biased
11
and personal politically-‐motivated opposition to Plaintiff’s application.
12
13
The Portrait of the 5th Amendment’s ‘Due Process of Law’
14
What Summum, Walker, PETA & Pulphus establish in favor of Plaintiff’s case is
15
simply the right way government officials should function when it comes to abiding
16
by lawful written standards, procedures and the processes for considering art or
17
any application for a benefit that is denied by the government for that matter.
18
Defendants would have the court believe that the actions of Defendants (regarding
19
their actions), were lawfully and procedurally on equal par with the actions of the
20
officials in Summum, Walker, PETA & Pulphus. Nothing could be further from the
21
truth. The propriety and decency of government, when it functions lawfully, is a
22
blessing secured for the People. When standards and procedures are violated
97
1
because of personal animus, political agendas and the abuse of power, it is
2
government at its worst, as in Plaintiff’s case.
3
The lengths to which the applications and submissions cited in Summum, Walker,
4
PETA & Pulphus were considered and processed, paint a dramatically different
5
picture of the ‘due process of law,’ compared with the instant case.
6
The cited cases speak of written and specific rules, standards, factors, statutes and
7
suitability guidelines. The decisions were explained to the applicant upon denial,
8
usually in writing. There were community considerations, public input, written
9
official input, consideration according to written standards, board meetings and the
10
like. At every step, procedure was followed to ensure a legally-‐sufficient decision
11
that would stand. And in each case, the government’s decisions stood because of the
12
strict adherence to the ‘due process of law,’ which undergirded their decisions.
13
Below are citations of the standards and procedures followed in Summum, Walker,
14
PETA & Pulphus:
15
16
Summum Standards
17
“The City denied the requests and explained that its practice was to limit
18
monuments in the Park to those that ‘either (1) directly relate to the history of
19
Pleasant Grove, or (2) were donated by groups with longstanding ties to the
20
Pleasant Grove community (bold added).’ ” Pleasant Grove City v. Summum, 555
21
U.S. 460, 2 (U.S. 2009)
22
98
1
“The following year, the City passed a resolution putting this policy into
2
writing. The resolution also mentioned other criteria, such as safety and
3
esthetics (bold added).” Pleasant Grove City v. Summum, 555 U.S. 460, 2-‐3 (U.S.
4
2009)
5
6
“Government decision makers select the monuments that portray what they view as
7
appropriate for the place in question, taking into account such content-‐based
8
factors as esthetics, history, and local culture (bold added). The monuments that
9
are accepted, therefore, are (appropriate). ” Pleasant Grove City v. Summum, 555 U.S.
10
460, 9 (U.S. 2009)
11
12
“In the wake of the controversy generated in 1876 when the city turned down a
13
donated monument to honor Daniel Webster, the city adopted rules governing the
14
acceptance of artwork for permanent placement in city (bold added) parks,
15
requiring, among other things, that ‘any proposed gift of art had to be viewed either
16
in its finished condition or as a model before acceptance.’ Brief for City of New York
17
as Amicus Curiae 4-‐5 (hereinafter NYC Brief). Across the country, ‘municipalities
18
generally exercise editorial control over donated monuments through prior
19
submission requirements, design input, requested modifications, written
20
criteria, and legislative approvals of specific content proposals (bold added).’
21
IMLA Brief 21.” -‐Pleasant Grove City v. Summum, 555 U.S. 460, 9 (U.S. 2009)
22
23
99
1
Walker Standards
2
Third, the Board “may create new specialty license plates on its own initiative or on
3
receipt of an application from a” nonprofit entity seeking to sponsor a specialty
4
plate. Tex. Transp. Code Ann. §§ 504.801(a), (b). A nonprofit must include in its
5
application “a draft design of the specialty license plate.” 43 Tex. Admin. Code §
6
217.45(i)(2)(C). And Texas law vests in the Board authority to approve or to
7
disapprove an application. See § 217.45(i)(7). The relevant statute says that the
8
Board “may refuse to create a ,new specialty license plate” for a number of reasons,
9
for example, “if the design might be offensive to any member of the public ... or
10
for any other reason established by rule.” Tex. Transp. Code Ann. § 504.801(c)...”
11
Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 2244-‐45
12
(U.S. 2015)
13
14
“In 2010, SCV renewed its application before the Board. The Board invited public
15
comment on its website and at an open meeting. After considering the responses,
16
including a number of letters sent by elected officials who opposed the
17
proposal, the Board voted unanimously against issuing the plate.” Walker v. Tex.
18
Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 2245 (U.S. 2015)
19
(In the instant case, numerous public officials supported the showing of the Trump
20
Portrait with official letters and yet their support was completely ignored by the
21
Smithsonian Institution. (added.))
100
1
“The Board explained that it had found “it necessary to deny th[e] plate design
2
application, specifically the confederate flag portion of the design, because
3
public comments ha[d] shown that many members of the general public find the
4
design offensive, and because such comments are reasonable.” App. 64. The Board
5
added “that a significant portion of the public associate the confederate flag with
6
organizations advocating expressions of hate directed toward people or groups
7
that is demeaning to those people or groups.” Id., at 65.”
8
Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 2245 (U.S.
9
2015)
10
11
PETA Standards
12
“The written announcement stated that "Party Animals" would showcase the
13
"whimsical and imaginative side of the Nation's Capital" and that the
14
Commission was looking "for artwork that is dynamic and invites discovery,"
15
"original and creative," "durable" and "safe." The Commission would not "allow
16
direct advertising of any product, service, a company name, or social
17
disrespect," and would impose "restrictions against slogans and inappropriate
18
images." All designs were "subject to the Selection Committee's decision."
19
People for Ethical Treat, Animals v. Gittens, 414 F.3d 23, 25-‐26 (D.C. Cir. 2005)
20
101
1
“The written announcement also stated that the Arts Commission "reserves the
2
right of design approval" and would own the decorated donkey or
3
elephant.” People for Ethical Treat, Animals v. Gittens, 414 F.3d 23, 26 (D.C. Cir. 2005)
4
5
6
“The Commission rejected this design. According to an affidavit of its executive
7
director, PETA's proposal was "a political billboard, not art, and unlike any
8
other design submission, it sought merely to promote a single issue and was
9
not an artistic expression consistent with the goals, spirit and theme of the art
10
project. The Party Animals arts project was designed to be festive and whimsical,
11
reach a broad based general audience and foster an atmosphere of enjoyment
12
and amusement. PETA's proposed fifth design did not complement these goals, and
13
indeed was contrary to the Party Animals' expressive, economic, aesthetic, and civic
14
purpose." People for Ethical Treat, Animals v. Gittens, 414 F.3d 23, 26 (D.C. Cir.
15
2005)
16
17
Pulphus Standards
18
Members of Congress are free to establish their own methods for judging
19
submissions and selecting a winner, but all submitted art must conform to
20
particular "Suitability Guidelines" promulgated by the House Office Building
21
Commission (HOBC), which is composed of the Speaker and the majority and
22
minority leaders of the House.
102
1
Pulphus v. Ayers, Civil Action No. 17-‐310 (JDB) (D.D.C. Apr. 14, 2017)
2
“The winning art must be sponsored by the House member representing the district,
3
who must sign a form indicating that he or she approves of the artwork's
4
content and wishes it to represent the district.” Pulphus v. Ayers, Civil Action No. 17-‐
5
310 (JDB) (D.D.C. Apr. 14, 2017)
6
7
The competition is governed by rules promulgated by the HOBC. See
8
generally 2016 Rules & Regulations. The suitability guidelines that regulate the
9
content of the displayed artwork prohibit works "depicting subjects of
10
contemporary political controversy" or those of a "sensationalistic or gruesome
11
nature." Id. at B-‐2. All artwork must be reviewed by a panel of experts chaired
12
by the Architect of the Capitol (AOC) before it may be displayed; artists sign a
13
form acknowledging that the AOC panel has final say regarding suitability
14
Pulphus v. Ayers, Civil Action No. 17-‐310 (JDB) (D.D.C. Apr. 14, 2017)
15
“In any event, a question was raised at this time about Untitled #1's size; the
16
painting was measured, determined to be the appropriate size, and the painting
17
was officially accepted to represent Clay's district. Ringenberg Decl. ¶¶ 5-‐6; Clay
18
Decl. ¶ 11.” Pulphus v. Ayers, Civil Action No. 17-‐310 (JDB) (D.D.C. Apr. 14, 2017)
19
20
“On June 2, 2016, the panel convened by the AOC to review the 2016 submissions
21
conducted an inventory of all the art collected in the art intake room, and pulled
22
aside any work that appeared to exceed the sizing guidelines—some 25 pieces,
23
including, once again, Untitled #1. See Cohen Decl. ¶ 5, Ex. 1. Untitled #1 was
103
1
identified as having an oversized frame, and the painting was returned to Clay's
2
office in order for adjustments to be made.”
3
Pulphus v. Ayers, Civil Action No. 17-‐310 (JDB) (D.D.C. Apr. 14, 2017)
4
5
The Portrait of Political Animus And Its Effect on the ‘Due Process of Law’.
6
In shocking contrast to the Portrait of the ‘Due Process of Law’ are the actions of
7
Defendant’s Sajet and Kurin; they are shocking since Defendants claim their actions
8
were lawful. Where the instant case is similar to Summum, Walker, PETA &
9
Pulphus, is that the Smithsonian National Portrait Gallery has written, reasonable
10
legally-‐constituted, binding standards and procedures establishing the ‘due process
11
of law’ in the processing of trust beneficiary participation for portraiture
12
considerations in the National Portrait Gallery.
13
Defendant Sajet’s actions were motivated by personal, political, anti-‐trump animus,
14
were rushed, and delivered by an intentionally hostile, personal, one-‐to-‐one phone
15
call, that was made ‘off the record,’ so that no one could know what was said.
16
Defendant Sajet refused to follow procedure and consult with the Chief Art Curator
17
Brandon Brame Fortune prior to making the hasty decision, less than 24 hours after
18
the application was submitted. Defendant Sajet violated Plaintiff’s First
19
Amendment free political speech, Constitutional rights by discriminating against
20
Plaintiff’s political viewpoint. Defendant Sajet invented standards, misrepresented
21
standards, argued with Plaintiff in defense of falsely-‐created standards and false
22
information, arbitrarily objected to the artistic merit of Plaintiff’s portrait (having
104
1
never seen the original), ignored established Smithsonian written procedures, tried
2
to intimidate Plaintiff by a proclamation of Defendant’s power and authority, denied
3
and ignored Plaintiff’s lawful appeal, cited tradition over written, lawful standards,
4
and concurred secretly without a lawful, documented, procedurally-‐controlled
5
consideration and final determination, according to the 5th Amendment’s ‘due
6
process of law’. Furthermore, Defendants denied Plaintiff ‘equal protection under
7
the law,’ having accepted portraits from others who were both rich and famous, who
8
gave huge financial donations, or who were politically and powerfully connected to
9
the Democratic party. Defendant Sajet clearly portrays Defendant’s anti-‐Trump bias
10
by using the official National Portrait Gallery Director’s Twitter page to express
11
Defendant’s anti-‐Trump bias, in violation of written Smithsonian and Federal laws
12
regarding political activity and impartiality.
13
14
An Example of a Letter of Denial Written By Defendant Sajet
15
Rule 12b(6)
16
“…In addition to integral and authentic exhibits, on a 12(b)(6) motion the court
17
"may properly take judicial notice of matters of public record." Philips v. Pitt Cnty.
18
Mem'l Hosp., 572 F.3d 176, 180 (4th Cir.2009).” CHESAPEAKE BAY FOUNDATION,
19
INC., et al. v. SEVERSTAL SPARROWS POINT, LLC, et al., 794 F.Supp.2d 602
20
(2011)
21
22
(May the Court please take notice of the attached letter marked ‘Bishop Jackson’
23
written by Defendant Sajet in Defendant’s official capacity, as a matter of ‘public
105
1
record’ for the purposes of establishing Plaintiff’s 5th Amendment ‘due process of
2
law’ violations by Defendant Sajet.)
3
As can clearly be seen, by the mere existence of the letter, Defendant Sajet, when not
4
motivated by personal ‘anti-‐Trump’ political animus, can respond officially and in
5
writing to an official request as required by the ‘due process of law.’
6
7
Defendant Sajet gives the reasons why Defendant denies the request made by
8
Bishop Jackson, including a petition consisting of 15000 plus signatures from the
9
People/citizens/trust beneficiaries and the support of a host of Pastors and
10
Congressmen, to remove the bust of Margaret Sanger.
11
“There is no ‘moral test’ for people to be accepted into the National Portrait Gallery,
12
instead we try to draw attention to those who have made significant impact on
13
American history and culture, and that includes the accomplished and the
14
reprehensible. We recognize Sanger’s advocacy on behalf of women’s health and
15
education whilst acknowledging her sometimes deplorable beliefs.
16
17
The most admirable aspects of American culture are that we attempt to
18
acknowledge past mistakes, engage in open and civilized discourse, and set a path
19
towards a better future. Removing those people from the Portrait Gallery who have
20
been less than perfect would deprive future generations of valuable lessons
21
concerning personal ambition and achievement on one hand, and human
22
imperfection and fallibility on the other.” Signed Kim Sajet, Director
23
106
1
In Defendant’s letter of denial to Bishop Jackson, one cannot but be amazed at the
2
level of bias and hypocrisy evinced in Defendant’s rejection of the Trump Portrait,
3
the whole basis for the instant case. Why did Defendant not write a similar
4
response to Plaintiff indicating the ‘reasons’ in the light of the ‘moral’ test cited by
5
Defendant Sajet? It is stunning to read: “Removing those people from the Portrait
6
Gallery who have been less than perfect would deprive future generations of
7
valuable lessons concerning personal ambition and achievement on one hand, and
8
human imperfection and fallibility on the other.” Does this explanation not utterly
9
condemn the actions of Defendant Sajet? Does this statement not apply perfectly to
10
President Trump? Donald Trump’s Presidential story and achievement is one of the
11
most remarkable stories in American history! Does the fact that Defendants’
12
rejection of the historically significant and relevant 2015/16 historic election
13
campaign Trump portrait not “…deprive future generations of valuable lessons
14
concerning personal ambition and achievement on one hand and human
15
imperfection and fallibility on the other?” ibid
16
17
Defendants could not write a similar letter of denial on the record, as a matter of the
18
‘due process of law’ to Plaintiff’s application to show the historic, Presidential
19
Trump Portrait, because Defendants had no legitimate Smithsonian Institution-‐
20
based standards to cite as reasons to deny the application. That is why Defendants
21
had to violate the law in order to accomplish their hostile, anti-‐Trump, political
22
agenda. The Trump Portrait qualified in every way. Whether or not President
23
Trump is viewed as ‘accomplished or reprehensible,’ the President’s historic story,
24
contained in the Trump Portrait, captures the historic election like no other image,
107
1
being the most recognized campaign/Presidential hand-‐painted fine art portrait in
2
existence.
3
4
Defendants rather chose a small, outdated photo from 1989 with no election-‐related
5
Presidential, historical significance. There are millions of photos of Donald Trump
6
out there, but there is only one Presidential campaign-‐related, hand-‐painted
7
portrait by a professional artist from the 2015-‐16 victorious Presidential campaign!
8
And the Smithsonian National Portrait Gallery said ‘NO’!
9
10
Defendant Kurin’s Violation of the 1st Amendment & 5th Amendment’s
11
Deprivations without the ‘Due Process of Law’
12
13
Vicarious Liability
14
Defendant Kurin, Defendant Sajet’s superior, ‘concurred’ with everything Defendant
15
Sajet said and did in writing, in Defendant Kurin’s letter to Plaintiff. (Please see
16
attached Letter.) In doing so, Defendant Kurin became liable for Defendant Sajet’s
17
1st and 5th Amendment violations. Here the theory of ‘respondeat superior’ or
18
‘vicarious liability’ is not in force by default, but by willful, written, official
19
agreement.
20
21
“The Fifth Amendment, in the field of federal activity, and the Fourteenth, as
22
respects state action, do not prohibit governmental regulation for the public
23
welfare. They merely condition the exertion of the admitted power, by securing that
24
the end shall be accomplished by methods consistent with due process. And the
108
1
guaranty of due process, as has often been held, demands only that the law shall not
2
be unreasonable, arbitrary or capricious, and that the means selected shall have a
3
real and substantial relation to the object sought to be attained.”
4
Nebbia v. New York, 291 U.S. 502, 525 (U.S. 1934)
5
“In almost every setting where important decisions turn on questions of fact, due
6
process requires an opportunity to confront and cross-‐examine adverse
7
witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269 (U.S. 1970)
8
9
Defendants claim, that Defendant Kurin’s letter, in response to Plaintiff’s lawful
10
appeal, qualified as minimum due process of law, is untenable, and yet sufficient
11
admission by Defendants, to establish that Plaintiff was deserving of the ‘due
12
process of law.’ Deliberately avoiding the Constitutional responsibility to lawfully
13
hear an appeal for redress against arbitrary and capricious constitutional 1st & 5th
14
Amendment violations by a Federal employee (who happens to be the Director of
15
the Smithsonian National Portrait Gallery), by ignoring the appeal and the
16
deliberately failing to respond to the plain language of the written appeal, has no
17
resemblance to the ‘due process of law.’
18
19
Adherence to the ‘due process of law’ would: abide by constituted and established
20
standards and procedures, acknowledge the appeal, consider the written claims,
21
charges and contents of the appeal, and provide a way (by a hearing), to satisfy the
22
appeal based upon the written standards and procedures in the Smithsonian.
23
Deliberately circumnavigating Plaintiff’s intentions in the ‘Letter of Appeal,’ is a
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1
violation of the ‘due process of law’ by a government official to whom the ‘letter of
2
appeal’ was directed for adjudication by the Smithsonian Board of Regents.
3
4
Defendant Kurin, by citing ‘recent tradition,’ as reason to ignore written
5
Smithsonian standards and procedures, is not the ‘minimum due process of law,’ as
6
Defendant’s claim, but resembles biblical pharisaism: “For you ignore God’s law and
7
hold to the tradition of men.” Clearly the canker at the route of Defendant Kurin’s
8
actions is the violation of the ‘Due process of law,’ by choosing ‘recent tradition’ over
9
established standards.
10
Concurring privately, without a written record of the discussion between
11
Defendant’s Sajet and Kurin, creates suspicion as to: their motives, the truthfulness
12
as it pertains to the contents of the conversation, and how the application of lawful
13
Smithsonian standards and procedures were used to reach their conclusions, since
14
the shadow of secrecy is cast over the entire affair. The whole reason why we have
15
a Constitution with the 5th and 14th Amendment is to compel government officials to
16
follow written, lawful procedure in all of their interactions with the citizenry, thus
17
ensuring a lawfully-‐documented chain of events, that create an intelligible record of
18
the events, that then can be used to determine any disagreements that may develop
19
as a result.
20
Secret deliberations and undisclosed conclusions is everything the 5th Amendment
21
‘Due process of law’ was designed to restrain and prohibit. Defendants’ actions in
22
this regard are an affront and clear violation of the 5th Amendment ‘due process of
23
law,’ since it is clear that not a single, lawful procedure was followed or even cited
24
by Defendants in defense of their unlawful actions.
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1
Reasonable Officers
2
Reasonable officers would have sided immediately with and stood behind the ‘due
3
process of law,’ upon receipt of the charge from the Board of Regents, to ‘respond’ to
4
Plaintiff’s appeal; ensuring firstly, that the citizen beneficiary (that being the
5
Plaintiff, in the instant case), was Defendant Kurin’s primary responsibility (to
6
extend the lawful fiduciary duty of care and the protections of the Constitution
7
guaranteeing Plaintiff all Plaintiff’s rights and protections).
8
Reasonable officers would have demonstrated how Plaintiff’s offer to show his
9
Trump Portrait did not satisfy the will of Smithson for the ‘Increase and Diffusion’ of
10
knowledge. Reasonable officers would had taken the time accordingly to apply
11
Smithsonian standards and shown in writing how Plaintiff’s offer failed to ‘increase’
12
the existing stock of knowledge. Then reasonable officers, having done the historic
13
research, in concert with the Chief Curator Brandon Fortune, would have shown in
14
writing how the Trump portrait failed the clearly established Congressional
15
mandate in 20 USC 75b and the other Smithsonian standards of portraiture
16
acceptance. Reasonable officers would have written down their decision and thus
17
followed the ‘due process of law,’ and thus would not have willfully violated
18
Plaintiff’s 5th Amendment ‘Due process of law’.
19
20
For the Defendants to assert that the American People have no rights as
21
beneficiaries who hold equitable title to the trust is deeply disturbing.
22
23
If Plaintiff had ‘no rights’ of application or participation, then why was the
24
application submitted by the Director of Affiliations Harold Closter? If there were
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1
no rights of participation by Plaintiff, then why did Defendant Sajet bother to call
2
Plaintiff? Why not just ignore Plaintiff, or maybe send Plaintiff a letter saying,
3
‘Thank you, but you have no rights and no grounds for participation in the
4
Smithsonian Institution,” or “The Smithsonian is not open to participation by the
5
public,” instead of making an unlawful, arbitrary, contradictory, dishonest, off the
6
record eleven minute phone call? Why was Defendant Kurin obligated to respond
7
to Plaintiff’s letter at the direction of the Board of Regents regarding Plaintiff’s
8
appeal, even though Defendant Kurin completely ignored the fact that the letter was
9
a ‘Letter of Appeal’?
10
11
When an official deliberately ignores the plain reading of the English language and
12
the plain factual content of a serious letter of appeal by a grieved citizen beneficiary,
13
what does that indicate? Plaintiff sent eighteen ‘Appeal’ hard copies, forty-‐four
14
pages in length, to each member of the Board of Regents, plus eighteen 15x30”
15
copies of the Trump-‐portrait print; yet Defendant Kurin deliberately ignores
16
Plaintiff’s Constitutional right to redress grievances via Plaintiff’s lawful appeal.
17
18
Standing Rule 12b(1)
19
Concrete Interests & Personal Benefit & Injuries in Fact
20
Plaintiff’s emotional injuries of mental anguish, frustration, anger, and the feeling of
21
powerlessness at having ones rights violated, by being silenced by the federal
22
government and its officers, were clearly described in Plaintiff’s Amended
23
Complaint.
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1
Plaintiff’s injuries are real and Plaintiff has lived with them now for nearly a year
2
without relief. Defendants’ lack of humility and contrition in their failure and
3
refusal to admit to their unlawful actions, expressed in their seemingly desperate
4
legal defense, is further injury to Plaintiff.
5
Defendants have ‘dug in deep,’ in their continued efforts to defend the indefensible
6
at any cost, further evincing their ‘white-‐knuckled’ grip on the blinding and
7
corrupting influence of misappropriated government power and authority.
8
Defendants continue in their efforts to vindicate Plaintiff’s claims, yet Defendants do
9
not demonstrate a shred of the duty of care or the duty of loyalty to the Constitution,
10
the Bill of Rights or the Will of James Smithson.
11
Concrete Benefits Deprived By Defendants’ Actions
12
Plaintiff is a citizen beneficiary of the Will of James Smithson, a Congressionally
13
established right, created in the Smithsonian Act of 1846, codified in 20 USC§41,
14
which is Plaintiff’s equitable property right, under the protection of the 5th
15
Amendment to the United States Constitution. As a citizen beneficiary, Plaintiff has
16
the right to participate in the Will of Smithson for the ‘increase and diffusion of
17
knowledge’.
18
19
To participate in the ‘increase and diffusion of knowledge,’ in the fine arts (since
20
Plaintiff is an artist), Plaintiff has procedural rights to the ‘due process of law’
21
regarding artistic participation, application and exhibition and/or deprivation of
22
such in, and by, the standards and procedures established by the Smithsonian
113
1
Trustees, the Board of Regents, to secure Plaintiff’s citizen beneficiary participation
2
in the trust mandate.
3
Plaintiff is a professional artist whose concrete benefit in the participation in the
4
Smithsonian National Portrait Gallery mandate is a right by Congressional decree.
5
Both for the ‘exhibition and study’ of Plaintiff’s historic, Trump portrait, and by
6
having Plaintiff’s personal, art story depicted in the Smithsonian Institution.
7
“(b) The Gallery shall function as a free public museum for the exhibition and study
8
of portraiture and statuary depicting men and women who have made significant
9
contributions to the history, development, and culture of the people of the United
10
States...” 20 USC 75b
11
“…and of the artists (italics added) who created such portraiture and statuary.” 20
12
USC 75b
13
Having one’s portrait exhibited and studied at the People’s museum, the National
14
Portrait Gallery, would be a great honor and would have a great impact on Plaintiff’s
15
career and on the value of the Plaintiff’s painting.
16
The rights to participate in the Will of James Smithson as a citizen trust beneficiary
17
has been clearly established. Deprivation of this legal entitlement and real benefit
18
without the due process of law is a violation of 5th Amendment.
19
The stated benefit for an Artist of having one’s personal profile as an artist
20
promoted and studied at the National Portrait Gallery would have had an
21
incalculable impact, positive effect and benefit on the career of the Artist.
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1
Depriving Plaintiff of Plaintiff’s rights of participation in the Will of James Smithson
2
in the ‘increase and diffusion of knowledge’ by Plaintiff’s contribution of Plaintiff’s
3
Trump portrait, via the application process, for consideration and in the exhibition
4
and study of Plaintiff’s art and story of an Artist, without the ‘due process of law,’
5
constitutes a deprivation of the 5th Amendment ‘due process of law’.
6
The Will of Smithson makes no restriction as to who can or cannot participate or
7
contribute to the ‘increase and diffusion of knowledge.’
8
The Will of Smithson is held in ‘Trust’ by the Government, who is ‘merely a trustee’
9
on behalf of the citizen beneficiaries. The role of the citizen beneficiaries is to
10
‘benefit’ and partake of the ‘property,’ by contributing to the intention of the will,
11
either actively or passively. It is open ended; the will of Smithson is wide open to
12
increase by all manner of citizen beneficiary participation.
13
The American People are the beneficiaries of the property of James Smithson held in
14
trust by the Government. ‘The Smithsonian... is owned by the American people.”
15
The Board Of Regents Report of the Regents Advisory Panel
16
Plaintiff is a citizen beneficiary with equitable property rights to the property of
17
James Smithson. Plaintiff has participatory rights, which is Plaintiff’s personal
18
benefit in the terms of the Will of James Smithson, to be able to ‘increase and diffuse
19
knowledge’.
20
Plaintiff’s ‘property’ rights are guaranteed and protected by Common Law and the
21
U.S. Constitution. Plaintiff’s property is held in ‘trust’ by the U.S. Government and
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1
enshrouded by the U.S. Constitution and the Bill of Rights. The Constitution and the
2
Bill of Rights exist to protect Plaintiff from the unlawful deprivations of the trust
3
benefits, abuse of power, abuse of mandate, abuse of personal viewpoints, abuse of
4
political beliefs, and the abuse of purpose expressed in a Last Will and Testament of
5
a private individual, as in the instant case, from the government’s role as ‘trustee’ of
6
the will of Smithson and thus the protection from the corruption and deprivation of
7
Plaintiff’s ‘property’ and ‘property’ rights. These rights are protected in the 5th
8
Amendment clause; ‘ No person…shall be deprived of life, liberty and property
9
without the due process of law,’ and the ‘equal protection under the law.’
10
How do these Rights Operate in the Smithsonian? ‘Items that truly fill a gap’;
11
one of the ways the ‘Increase of knowledge’ happens at the Smithsonian
12
through Citizen Beneficiary Participation
13
Simply put, if the item offered ‘fills a gap’ in the bank of knowledge that requires
14
increase, it is then ‘carefully considered by museum and curators’ through a
15
‘rigorous selection process’.
16
Smithsonian Institution Frequently Asked Questions online: Q “I would like to
17
donate an object to the Smithsonian Institution. What should I do?
18
Smithsonian Institution FAQ answer: “The Smithsonian acquires thousands of
19
objects and specimens each year for its collection holdings through donation,
20
bequest, purchase, exchange, and field collecting. The Institution accepts only
21
items that truly fill a gap in the collections and then only after careful
22
consideration by museum curators and directors. Because of this rigorous
116
1
selection ‘process’, the Smithsonian adds to its collections only a tiny percentage of
2
what it is offered.” https://www.si.edu/FAQs -‐ Amended Complaint
3
As can be seen clearly from the procedure presented to citizen beneficiaries desiring
4
to participate in the Will of Smithson, the goal is to ‘fill the gap’ in the knowledge
5
bank.
6
Rights Of Participation
7
Defendants assert that “Members of the public have no right (bold added) under the
8
5th Amendment, to have any particular piece of work considered by the portrait
9
gallery, to participate in the Portrait Gallery’s consideration process, or to appeal a
10
decision made by the Portrait Gallery…” MTD page 3.
11
12
Defendants’ incredible argument denying Plaintiff’s rights, is predicated upon
13
Defendants refusing to acknowledge the implications of the trust status of the
14
Smithsonian, and Defendant’s legal theory of government entity ‘status’. Since
15
Defendants have concluded erroneously that their theory is fact, they have
16
subsequently trampled Plaintiff’s rights, by ignoring the egregious conduct and
17
subsequent heated argument with Plaintiff, during the arbitrary phone call from
18
Director Sajet. It seems incredible that Defendants did not even deny Plaintiff’s
19
claims!
20
21
Why then, if Plaintiff had no right to apply to have Plaintiff’s Trump portrait
22
considered, did the application warrant even a response from Defendants?
23
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1
Concrete Injury
2
1) Injury in Fact: “an invasion of a legally protected interest which is (a) concrete
3
and particularized and (b) actual or imminent, not conjectural or hypothetical.”
4
Kerchner v. Obama, 2009 U.S. Dist. LEXIS 97546 (D.N.J. Oct. 20, 2009)”
5
6
“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist (bold
7
added). See Black’s Law Dictionary 479 (9th ed. 2009)”
8
https://www.dataprivacymonitor.com/online-‐privacy/concrete-‐and-‐
9
particularized-‐what-‐the-‐supreme-‐courts-‐spokeo-‐ruling-‐may-‐mean-‐for-‐
10
privacy-‐class-‐actions-‐and-‐big-‐data-‐the-‐first-‐in-‐a-‐series/
11
The only way Defendant’s can avoid defending against the charges of the violations
12
to the 1st and 5th Amendments, is to create an imaginary theory of governmental
13
entity, where in the Constitution does not apply. In that imaginary, unconstitutional
14
world, Defendants alone can deny Plaintiff all rights of: free speech, the due process
15
of law, equal protection under the law, or anything else for that matter. Defendants,
16
in effect, have created a legal theory in which government officials can be tyrants
17
and get away with it.
18
“It is common ground that the respondent organizations can assert the standing of
19
their members. To establish the concrete and particularized injury that standing
20
requires, respondents point to their members' recreational interests in the National
21
Forests. While generalized harm to the forest or the environment will not alone
22
support standing, if that harm in fact affects the recreational or even the mere
23
esthetic interests of the Plaintiff that will suffice (bold added). Sierra
118
1
Club v. Morton, 405 U. S. 727, 734-‐736 (1972).” -‐Summers v. Earth Island Institute,
2
555 U.S. 488, 5 (U.S. 2009)
3
4
Since a “harm in fact affects the recreational or even the mere esthetic interests of
5
the Plaintiff that will suffice” ibid, is sufficient for establishing a concrete injury,
6
thus creating standing, Plaintiff’s injuries, in fact, are well within the “concrete and
7
particularized” ibid requirement.
8
9
Plaintiff’s arguments have already defeated Defendants’ government entity theory,
10
bringing the United States Constitution into place, where the Constitution can
11
function as it was designed: to prohibit, expose and punish tyrants.
12
13
1st Amendment ‘Free Speech’ Injuries
14
“Courts generally agree that the loss of First Amendment rights constitutes
15
irreparable harm. See, e.g., Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C.
16
Cir. 2009) (noting that "loss of [First Amendment] freedoms, 'for even minimal
17
periods of time, unquestionably constitutes irreparable injury'"(Bold added.)
18
(quoting Elrod v. Burns, 427 U.S. 347, 373-‐74 (1976))).” Pulphus v. Ayers, Civil
19
Action No. 17-‐310 (JDB) (D.D.C. Apr. 14, 2017)
20
21
22
119
1
Ignored Opaque Standards
2
Defendants acted arbitrarily and discriminatorily by circumnavigating the opaque
3
Smithsonian Standards for portraiture acceptance, in violation of the ‘due process of
4
law’. If, as the Supreme Court said, “Under the First and Fifth Amendments,
5
speakers are protected from arbitrary and discriminatory enforcement of vague
6
standards, (See NAACP v. Button, 371 U.S. 415, 432-‐433 (1963). ” -‐National
7
Endowment for the Arts v. Finley, 524 U.S. 569, 588 (U.S. 1998)),
8
how much more are speakers protected from arbitrary and discriminatory actions
9
in the face of opaque standards, which Defendants completely ignored?
10
11
Breach of Fiduciary Duty in the Will of James Smithson is a 5th Amendment
12
Deprivation of ‘Property’ Rights Without the Due Process of Law, Constituting
13
an Injury in Fact.
14
15
It is without a doubt, one of the most grave, lofty and sacred of responsibilities, to
16
administer the Last Will and Testament of a deceased person. The testator’s final
17
wishes, left behind on earth, in the form of a will, and of legal property, for the
18
benefit of those designated in the will and testament, entrusted to trustees, are
19
clearly established, and clearly violated by Defendants, in the instant case.
20
Defendant’s unlawfully denied Plaintiff’s application, without due consideration to
21
the Will of James Smithson, as to the implications that Plaintiff, and the painting,
22
would have on the fulfillment of the will (‘an establishment for the increase and
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1
diffusion of knowledge’) -‐ Smithson Will, and the participation therein, as the over
2
arching and controlling principle of guidance in all Smithsonian institution
3
decisions, is a brazen and egregious breach of fiduciary duty.
4
5
Plaintiff’s application was publically supported, by multiple, duly elected
6
governmental representatives of the People, upwards of 200,000 voting citizen
7
constituents, from upstate New York. The elected representatives were saying they
8
agreed that the Trump Portrait should be included in the ‘institution for the increase
9
and diffusion of knowledge,’ by the portrait’s exhibition and study during the
10
Inauguration of President Donald Trump. Their representative opinions spoke on
11
behalf of upwards of 200,000 beneficiaries of the Will of James Smithson, and their
12
duly elected, representative opinions were not even considered by Defendants in
13
Defendants refusal of the Trump portrait. This is an egregious breach of fiduciary
14
duty in the administration of the Will and Trust of James Smithson.
15
16
Elected Officials & Elected Representatives of Upward of 200,000
17
Constituents/Trust Beneficiaries Endorsed the 20 Page Trump Portrait
18
Application Including Smithson Trustee, Congressman Tom Reed.
19
Congressman Tom Reed
20
New York Senator Tom O’Mara
21
New York Assemblyman Friend
22
Elmira Mayor Dan Mandell
23
New York Chemung County Legislator Joe Brennan
121
1
Elmira City Council Woman Nannette Moss
2
New York Republican Party Chairman Ed Cox
3
4
The Court must force compliance with the Will of James Smithson!
5
In the private sector breaches of fiduciary duty are treated with the utmost severity
6
by the Courts. When the Federal Government accepts the role of Trustee and
7
Fiduciary of private property, are we to imagine that the responsibility is dissolved?
8
Are we now to imagine that the government, now having accepted fiduciary duty
9
and responsibility, is not clothed with Constitutional protections?
10
Or, as New York Appeals Court Judge Cardozo admonished: “Many forms of conduct
11
permissible in a workaday world for those acting at arm's length, are forbidden to
12
those bound by fiduciary ties. A trustee is held to something stricter than the
13
morals of the market place. Not honesty alone, but the punctilio of an honor the
14
most sensitive, is then the standard of behavior. As to this there has developed a
15
tradition that is unbending and inveterate. Uncompromising rigidity has been the
16
attitude of courts of equity when petitioned to undermine the rule of undivided
17
loyalty by the "disintegrating erosion" of particular exceptions
18
( Wendt v. Fischer, 243 N.Y. 439, 444). Only thus has the level of conduct for
19
fiduciaries been kept at a level higher than that trodden by the crowd. It will not
20
consciously be lowered by any judgment of this court.”(Bold added.)
21
Meinhard v. Salmon, 249 N.Y. 458, 464 (N.Y. 1928)
122
1
Judge Cardozo described the ‘punctilio of honor’ as the high banner of fiduciary
2
duty, high above the ‘workaday world’. Are we to imagine that government
3
involvement as fiduciary would reduce the high responsibility to beneath that of the
4
‘workaday world,’ as Defendants’ actions and arguments demonstrate? Or rather,
5
should we not conclude, that Government involvement should raise the lofty banner
6
even higher than the Cardozo standard and description, because of the weight of -‐
7
responsibility added, by the parallel and compounded trust of governmental power
8
given, and entrusted by the People?
9
10
The Smithsonian Institution is a prime example of the ‘disintegrating erosion’
11
common to institutions as time passes. The IRC Report, cited in the Amended
12
Complaint, detailed that fiduciary duty is alien to the Board of Regents, in the
13
report’s conclusion, back in 2007. Nothing has changed since; unless the Court, in
14
the instant case, acts to uphold the Court’s role, in compelling fiduciary fidelity in
15
trustees, Defendant’s will continue their betrayal of their fiduciary and
16
Constitutional duties.
17
18
Federal breaches of fiduciary duty, committed by Federal trustee delegates, violate
19
fiduciary law, and in so doing, violate the 5th Amendment ‘due process of law,’ since
20
the breach off fiduciary duty constitutes ‘deprivations of property rights,’ legally
21
entitled to beneficiaries, in the instant case, Plaintiff Julian Marcus Raven.
22
123
1
2)Injury Caused Directly or Fairly Traceable By Defendants
2
3
“…. there must be a causal connection between the injury and the conduct
4
complained of — the injury has to be "fairly . . . trace[able] to the challenged action
5
of the defendant, and not . . . th[e] result [of] the independent action of some third
6
party not before the court." Simon v. Eastern K. Welfare Rights Organization, 426 U.S.
7
26, 41-‐42 (1976). -‐Simon v. Eastern Ky. Welfare Rights Org, 426 U.S. 26, 41-‐42
8
(U.S. 1976)
9
10
“But the government argues—briefly, and without much concrete discussion—that
11
neither Pulphus nor Clay have standing because their injury is not "fairly traceable"
12
to the named defendant,” -‐Pulphus v. Ayers, Civil Action No. 17-‐310 (JDB) (D.D.C.
13
Apr. 14, 2017)
14
15
In stark contrast, in the instant case, Plaintiff’s concrete claims of concrete injuries,
16
in fact are immediately and directly traceable to Defendant’s Sajet and Kurin. This is
17
an indisputable fact establishing standing.
18
19
3) Injuries Likely to be Redressed by the Relief Sought
20 21 22
“Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Id., at 38, 43. -‐Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (U.S. 1992)
23
“When the suit is one challenging the legality of government action or inaction, the
24
nature and extent of facts that must be averred (at the summary judgment stage) or
124
1
proved (at the trial stage) in order to establish standing depend considerably upon
2
whether the plaintiff is himself an object of the action (or forgone action) at
3
issue. If he is, there is ordinarily little question that the action or inaction
4
has caused him injury, and that a judgment preventing or requiring the action
5
will redress it (bold added). -‐Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62
6
(U.S. 1992)
7
In light of Plaintiff’s above cited arguments and citations, it is clear that Plaintiff
8
suffered concrete injuries in fact and emotional injuries at the hands of Defendants
9
Sajet and Kurin. Thus, minimum standards for standing are marvelously
10
established!
11
12
Motivation-‐Anti-‐Trump Political Animus & Bivens Action
13
14
All the cases cited by Defendants, in support of their ‘Government Speech’ theory,
15
involve clearly established, written standards, and the violation of these standards.
16
Those cases are completely void from any accusation of any animus on the part of
17
the Defendants. The submissions, in those cases, simply failed the written standards
18
or suitability tests.
19
20
A Cardinal Difference Between Defendant’s Cited Cases And Plaintiff’s Case
21
In every case cited, applications were always between individuals/groups and
22
unidentified representatives, who followed procedure, followed the standards, and
125
1
then denied plaintiffs, based upon Plaintiff’s failing to meet the official standards of
2
acceptance.
3
4
Written responses were made of record, even further opportunities to re-‐apply, as
5
in Pulphus, to try to cure the application’s deficiencies. There were no accusations
6
of personal animus manifested by the defendants, just disagreements and claims of
7
violations regarding the official denials.
8
9
In Plaintiff’s case, there is great evidence of personal, political animus towards
10
Plaintiff and his viewpoint. Evidence must be allowed to be presented, and
11
discovery completed, to prove the state of mind of Defendant Sajet, at the time of the
12
unlawful actions and the following actions. The fact that the Director personally
13
called Plaintiff, with the speed and manner in which Defendant did, raises the
14
question about intent. By all accounts, Defendant Sajet’s actions were premeditated
15
and retaliatory against Plaintiff.
16
17
From the outset, and the rejection of the Trump Painting in the Rockwell Museum,
18
Plaintiff did file an official complaint to the head of Smithsonian Affiliations, Harold
19
Closter. That complaint detailed the anti-‐conservative and anti-‐Trump bias already
20
evidenced in the Rockwell Museum. The question Plaintiff often asks is: What did
21
Director Closter say to Director Sajet? Did Closter forward the email containing the
22
official complaint against Director Swain and the Smithsonian Liaison? Plaintiff had
23
a ‘sinking feeling’ inside, when that possibility was present. It created the dread of
24
some kind of retaliation from the Director of the Smithsonian.
126
1
Motive Test
2
“In upholding the district court's denial of defendant's judgment as a matter of law,
3
the court noted the speed (bold added) with which the defendant ejected the
4
plaintiff from the meeting, defendant's failure to consult fellow council
5
members (bold added)or seek a compromise, and defendant's failure to follow
6
established procedure (bold added). Id. at 405. The Third Circuit concluded that
7
these factors constituted evidence by which a reasonable jury could view
8
defendant's behavior as "motivated by anger and personal animosity(bold
9
added), rather than a desire to maintain smooth operation of the meeting." Id. The
10
district court also relied on "the history between the parties" to find a disputed issue
11
of fact as to whether the defendant engaged in viewpoint discrimination. Id. at 403
12
(quoting Monteiro v. City of Elizabeth, No. 01-‐1844, at 22-‐23 (D.N.J. Nov. 12, 2003)).”
13
-‐Mobley v. Tarlini, 641 F. Supp.2d 430, 440 (E.D. Pa. 2009)
14
“In the instant case, taking Plaintiff's allegations as true, the Court must deny
15
Defendant's 12(c) motion in order to allow factual development of whether
16
Defendant engaged in viewpoint-‐based discrimination or acted out of hostility or
17
political opposition to Plaintiff. Plaintiff alleges that he was "singled out" by
18
Defendant because of both the content of his speech and his viewpoint, that
19
Defendant acted "arbitrarily and capriciously," and that Defendant did not treat any
20
of the other council speakers in the same fashion as Plaintiff. (Compl. ¶¶ 7, 8, 10.)”
21
-‐Mobley v. Tarlini, 641 F. Supp.2d 430, 440-‐41 (E.D. Pa. 2009)
22
127
1
Bivens Remedy Must Be Permitted for Redress of Constitutional Violations
2
3
3. MTD Page 2: Plaintiff has clearly stated valid legal claims upon which relief
4
requested in the Amended Complaint must be granted. The Supreme Court’s
5
Ziglar/Abassi decision, establishes the boundaries to the Bivens Action remedy, and
6
eliminates the grounds for disqualifying claims against the Federal Government.
7
The examples below are just some of the dramatic differences in Ziglar/Abassi.
8
“(b) The special factors here indicate that Congress, not the courts, should decide
9
whether a damages action should be allowed. With regard to the Executive Officials,
10
a Bivens action…is not designed to hold officers responsible for acts of their
11
subordinates.” see Iqbal, supra, at 676. Ziglar v. Abbasi, No. 15-‐1358 (U.S. Jun.
12
19, 2017)
13
“Considering the relevant special factors here, a Bivens-‐type remedy should not be
14
extended to the claims challenging the confinement conditions imposed on
15
respondents pursuant to the formal policy adopted by the Executive Officials in the
16
wake of the September 11 attacks. ” Ziglar v. Abbasi, No. 15-‐1358 (U.S. Jun. 19,
17
2017)
18
“The proper balance in situations like this, between deterring constitutional
19
violations and freeing high officials to make the lawful decisions necessary to
20
protect the Nation in times of great peril, is one for the Congress to undertake, not
21
the Judiciary. The Second Circuit thus erred in allowing respondents' detention
22
policy claims to proceed under Bivens. Pp. 17-‐23. Ziglar v. Abbasi, No. 15-‐1358
23
(U.S. Jun. 19, 2017)”
128
1
“Those claims bear little resemblance to the three Bivens claims the Court has
2
approved in the past: a claim against FBI agents for handcuffing a man in his own
3
home without a warrant; a claim against a Congressman for firing his female
4
secretary; and a claim against prison officials for failure to treat an inmate's
5
asthma.” (…’and claims against the Smithsonian National Portrait Gallery’s Director
6
for ‘viewpoint’ discrimination’ (added for effect to show similarity of the kind of
7
cases.)) -‐Ziglar v. Abbasi, No. 15-‐1358 (U.S. Jun. 19, 2017)
8
There is absolutely no comparison with the claims in Ziglar and Plaintiff’s claims.
9
Plaintiff’s claims are exactly what the Bivens remedy was created for, and such
10
remedies are especially valid in the interest of justice, since there are no other
11
remedies available for Plaintiff’s 1st and 5th Amendment claims.
12
13
No Special Factors Counseling Hesitation
14
Defendants argue at length that special factors, in Abassi, Bush and Wilkie, etc.,
15
are the basis for ‘counseling hesitation’ in the instant case. And yet, the best special
16
factor argument Defendants produce, is to resurrect their ‘straw man,’ through
17
which they assert, that a Bivens action will: “pull the judiciary into micro-‐managing
18
selection decisions made by the Smithsonian museums. This is yet another special
19
factor counseling hesitation…” (MTD pg. 27, para. 3) This is nonsense; Bivens will
20
simply compel Smithsonian Museums and their employees to do their jobs without
21
partiality, by enforcing compliance with all lawfully constituted written rules,
22
standards, procedures and ethics. What a seemingly novel concept, in the instant
23
case!
129
1
“Bivens, 403 U.S., at 396, holds that in appropriate circumstances a federal district
2
court may provide relief in damages for the violation of constitutional rights if there
3
are "no special factors counseling hesitation in the absence of affirmative action by
4
Congress." See Butz v. Economou, 438 U.S., at 504.” Davis v. Passman, 442 U.S.
5
228, 245 (U.S. 1979)
6
7
Bivens not FTCA or APA for Violations of the Constitution by Federal Officers
8
“Holding that plaintiffs, "[i]n the absence of a contrary expression from Congress, . . .
9
shall have an action under FTCA against the United States as well as a Bivens action
10
against the individual officials alleged to have infringed their constitutional rights"
11
DENSON v. U.S, 574 F.3d 1318 (11th Cir. 2009) “Holding that the Federal Tort
12
Claims Act does not preclude actions for violation of rights under the Constitution.”
13
-‐STEWART v. EVANS, 275 F.3d 1126 (D.C. Cir. 2002)
14
15
Jury Trials in Bivens Actions Not in FTCA Case
16
The nature of the instant case, involving the People’s Gallery, the Smithsonian
17
Institution’s National Portrait Gallery, demands a jury try the facts. The FTCA does
18
not permit jury trials, thus the FTCA is inadequate. “Holding that an FTCA plaintiff
19
has no right to a jury (bold added). ” -‐BURITICA v. U.S., (N.D.Cal. 1998), 8 F.
20
Supp.2d 1188 (N.D. Cal. 1998). The FTCA remedy does not address constitutional
21
violations, thus cannot redress Plaintiff’s constitutional claims. Bivens Actions
22
permit punitive damages to be awarded, where as the FTCA does not. The deterrent
23
effect of punitive damages awarded against individual officers acts as a restraint
130
1
against similar violations taking place in the future, when personal accountability is
2
established.
3
4
Defendant’s ‘Entity’ Theory the Basis for Denying Constitution Constraints
5
6
To argue as Defendants have, against the use of Bivens, in the interest of
7
Constitutional Justice for the redress of Constitutional torts, especially when dealing
8
with one of the brightest stars in our ‘Constitutional Constellation,’ the ‘freedom of
9
speech’ clause, is a contradiction of the role of the Department of Justice as
10
defenders of the Constitution!
11
12
To argue as Defendants have, admitting that the Administrative Procedure Act was
13
designed to redress ‘arbitrary and capricious or not supported by a record’
14
(MTDpage27 para2) actions committed by government officials, seem to tacitly
15
confess to Plaintiff’s claims. Defendants seem to admit guilt, because Defendants are
16
over confident that Bivens will not apply, and thus no remedy exists to redress
17
Plaintiff’s Constitutional grievances, since the Smithsonian is not liable under the
18
APA. This is outrageous, coming from the Department of Justice, within the context
19
of a Constitutional legal system, specifically designed to redress Constitutional torts.
20
21
“The fact that it (APA) (added) does not cover the Smithsonian museums does not
22
mean that a Bivens claim should be created,” can only be argued within Defendants’
23
theory of Smithsonian ‘entity’ status, where Constitutional constraints do not exist,
24
which is Defendants’ ‘Fatal Flaw’ at the base of Defendants entire argument.
131
1
“We approach this inquiry on the basis of established law. ‘[I]t is . . . well settled that
2
where legal rights have been invaded, and a federal statute provides for a general
3
right to sue for such invasion, federal courts may use any available remedy to make
4
good the wrong done.’ Bell v. Hood, 327 U.S., at 684. Bivens, 403 U.S., at 396” -‐Davis
5
v. Passman, 442 U.S. 228, 245 (U.S. 1979)
6 7
Bivens Remedy and the Preeminent First Amendment
8
9
“Bivens established that the victims of a constitutional violation by a federal agent
10
have a right to recover damages against the official in federal court despite the
11
absence of any statute conferring such a right.” -‐Carlson, v. Green, 446 U.S. 14, 18
12
(U.S. 1980)
13
To argue that, just because Bivens has sufficed as the appropriate remedy where no
14
others existed, in the 4th, 5th and 8th Amendment cases, and not yet in the 1st
15
Amendment, as justification to disqualify the preeminent First Amendment, is
16
patently absurd.
17
18
The whole point of Bivens was to right the egregious 4th Amendment Constitutional
19
violations committed Federal Agents, and was not limited to the 4th Amendment, as
20
can be seen by subsequent and various Amendment cases. How much more must
21
Bivens apply: “When the government targets not subject matter, but particular
22
views taken by speakers on a subject, the violation of the First Amendment is all the
23
more blatant. See R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992). Viewpoint
132
1
discrimination is thus an egregious form of content discrimination (bold
2
added). The government must abstain from regulating speech when the specific
3
motivating ideology or the opinion or perspective of the speaker is the rationale for
4
the restriction. See Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37,
5
46 (1983).” ? -‐Rosenberger v. Rector and Visitors of Univ. of Va, 515 U.S. 819,
6
829 (U.S. 1995)
7
8
Bivens Remedy And the Fifth Amendment
9
10
Plaintiff’s three arguments regarding the 5th Amendment deprivations in the instant
11
case are:
12
1. Deprivation of Plaintiff’s property rights were the result of deliberate, willful and
13
reckless disregard to the ‘due process of law’ requiring the adherence to lawful
14
Smithsonian rules, standards and written procedures in the processing of Plaintiff’s
15
application. The intentional results were an arbitrary and unlawful rejection and
16
denial to be accomplished at any cost, due to Defendants being blinded by their anti-‐
17
Trump animus, thus the violation of the 5th Amendment ‘due process of law’
18
occurred.
19
2. Under the ‘Equal Protection Clause’ of the 5th Amendment ‘due process of law,’
20
Plaintiff had the right to be free from viewpoint ‘discrimination’. “The equal
21
protection component of the Due Process Clause thus confers on petitioner a federal
22
constitutional right to be free from gender discrimination…(bold added).” -‐Davis v.
23
Passman, 442 U.S. 228, 235 (U.S. 1979)
133
1
3. That breach of fiduciary duty, by federal fiduciary agents of a private trust, under
2
the guardianship of the government, in the deprivation of property belonging to
3
citizen beneficiaries, constitutes 5th Amendment ‘due process of law’ violations.
4
Defendants’ Actions Do Not Qualify For Immunity
5
“In light of these concerns, the Court has held that qualified immunity protects "all
6
but the plainly incompetent or those who knowingly violate the
7
law." Malley v. Briggs, 475 U. S. 335, 341 (1986). To determine whether a given
8
officer falls into either of those two categories, a court must ask whether it would
9
have been clear to a reasonable officer that the alleged conduct "was unlawful in the
10
situation he confronted." Saucier, supra, at 202. If so, then the defendant officer
11
must have been either incompetent or else a knowing violator of the law, and thus
12
not entitled to qualified immunity.” Ziglar v. Abbasi, No. 15-1358 (U.S. Jun. 19, 2017)
13
14
Defendants’ claim for ‘qualified immunity,’ creates the illusion that Defendants are
15
just simple, lawful, innocent, low-‐level employees, who did nothing wrong.
16
Defendants claim that their actions do not even rise to the level, of say government
17
painters, who may have accidentally painted a room the wrong color, who would be
18
ignorant of their legal obligations. Defendants cite Harlow v. Fitzgerald: “Qualified
19
immunity protects government officials ‘from liability for civil damages insofar as
20
their conduct does not violate clearly established statutory or constitutional rights
21
of which a reasonable person would have known.’ ” We are not dealing with
22
reasonable Defendants; we are dealing with personal, anti-‐Trump, political animus,
134
1
undergirding Defendant’s arbitrary and unlawful actions. None of Defendant Sajet
2
or Kurin’s actions can be explained away as the actions of reasonable persons.
3
The instant case is not dealing with reasonable errors or mistakes made by officials
4
conducting official business, but willful and hostile efforts, that may even prove to
5
be conspiratorial upon discovery, to deprive Plaintiff of Plaintiff’s Constitutional
6
rights. Defendant Sajet, in the letter to Bishop Jackson, lays out Defendant’s
7
knowledge of free speech at the National Portrait Gallery.
8
In Defendant Sajet’s letter denying Bishop Jackson’s petition, Margaret Sanger’s
9
“Deplorable,” ibid. racist beliefs, are defended and explained away as simply
10
“human imperfection and fallibility” ibid. . The supposed, complete lack of any
11
moral standards at the National Portrait Gallery for acceptance, should be an open
12
door for any candidate, any speech, including President Donald Trump. But rather
13
than follow constituted written standards, Defendant Sajet follows unwritten,
14
arbitrary standards, that are vague because they are not specific, because they are
15
unwritten as to morality and thus are a doorway for any person to be accepted, no
16
matter how “deplorable” ibid. as long as they fit Defendant’s ideology.
17
18
Defendants’ Declaration of Free Speech at the National Portrait Gallery
19
“ “There is no ‘moral test’ for people to be accepted into the National Portrait
20
Gallery, instead we try to draw attention to those who have made significant
21
impact on American history and culture, and that includes the accomplished
135
1
and the reprehensible. We recognize Sanger’s advocacy on behalf of women’s
2
health and education whilst acknowledging her sometimes-‐deplorable beliefs.
3
4
The most admirable aspects of American culture are that we attempt to
5
acknowledge past mistakes, engage in open and civilized discourse, and set a
6
path towards a better future. Removing those people from the Portrait Gallery
7
who have been less than perfect would deprive future generations of valuable
8
lessons concerning personal ambition and achievement on one hand, and human
9
imperfection and fallibility on the other.” Signed Kim Sajet, Director” (Bold
10
added.) -‐Letter of Denial to Bishop Jackson
11
For Defendants to argue that the Smithsonian’s Director of the National Portrait
12
Gallery and the Smithsonian Institution’s Provost would have been either ignorant,
13
confused, unclear or uncertain at the time of their conduct, stating: “[their] conduct
14
did not violate clearly established statutory or constitutional rights of which a
15
reasonable person would have known.” ibid., defies belief.
16
We are not dealing with a single, isolated, solitary, momentary or accidental lapse of
17
reason. We are dealing with the eleven-‐minute phone call that was deliberate,
18
hostile, calculated, personal, political and permeated with anti-‐Trump animus,
19
directed at Plaintiff and Plaintiff’s portrait. Defendants Sajet and Kurin had nine
20
days between that phone call and the letter written by Defendant Kurin on the 9th of
21
December, to research and correct the actions of Defendant Sajet. Defendant Kurin
22
agrees with Defendant Sajet, and then continues the calculated, unlawful cover-‐up
136
1
and arbitrary denial of Plaintiff’s appeal and application, without even citing any
2
established rules, guidelines or standards. Defendant Sajet had plenty of time to
3
reflect on Defendant’s actions and call or write to Plaintiff to correct the unlawful
4
actions or maybe even to apologize for Defendant’s animus and to process the
5
application lawfully.
6
Free Speech is at the core of the Smithsonian Institution and National Portrait
7
Gallery. Secretary Wayne Clough’s declaration of the free speech forum and
8
protections at the National Portrait Gallery is the known standard: “…We are
9
dealing with this issue of free speech and rights of free speech and protection,
10
protection of individuals and allowing for free speech…”(Bold added.)
11
Smithsonian Secretary’s Speech on Censorship Town Hall, LA: Smithsonian
12
Secretary Wayne Clough -‐https://www.youtube.com/watch?v=auWM8QXGtuQ
13
(See at minute 3:25).
14
Testing for Qualified Immunity
15
“In Saucier, 533 U. S. 194, this Court mandated a two-‐step sequence for resolving
16
government officials' qualified immunity claims. First, a court must decide whether
17
the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown
18
(see Rules 50, 56) make out a violation of a constitutional right. 533 U. S., at 201.
19
Second, if the plaintiff has satisfied this first step, the court must decide whether the
20
right at issue was "clearly established" at the time of defendant's alleged
21
misconduct. Ibid. Qualified immunity is applicable unless the official's conduct
22
violated a clearly established constitutional right. Anderson, supra, at 640.” …
137
1
“This experience supports our present determination that a mandatory, two-‐step
2
rule for resolving all qualified immunity claims should not be retained.” -‐Pearson v.
3
Callahan, 555 U.S. 223, 9 (U.S. 2009)
4
5
“On reconsidering the procedure required in Saucier, we conclude that, while the
6
sequence set forth there is often appropriate, it should no longer be regarded as
7
mandatory. The judges of the district courts and the courts of appeals should be
8
permitted to exercise their sound discretion in deciding which of the two prongs of
9
the qualified immunity analysis should be addressed first in light of the
10
circumstances in the particular case at hand.” -‐Pearson v. Callahan, 555 U.S. 223,
11
10-‐11 (U.S. 2009)
12
“Nor do we think that allowing the lower courts to exercise their discretion with
13
respect to the Saucier procedure will spawn "a new cottage industry of litigation . . .
14
over the standards for deciding whether to reach the merits in a given case." Brief
15
for Nat. Assn. of Counties et al. as Amici Curiae 29, 30. It does not appear that such a
16
"cottage industry" developed prior to Saucier, and we see no reason why our
17
decision today should produce such a result.” -‐Pearson v. Callahan, 555 U.S. 223,
18
18 (U.S. 2009)
19
There can be no doubt that the instant case passes the Saucier 2 step test in that:
20
1. The facts alleged clearly constitute a violation of the 1st and 5th Amendments to
21
the Constitution and 2. The law was clearly established at the time.
22
138
1
Clearly Established at the Time
2
Defendants have failed to claim or show any evidence to prove that Defendants
3
performed their discretionary functions objectively, lawfully and reasonably. They
4
have the burden to prove they acted lawfully and reasonably. They cannot hide
5
behind qualified immunity; they must prove they qualify! And they have failed to do
6
so.
7
“Reliance on the objective reasonableness of an official's conduct, as measured
8
by reference to clearly established law, should avoid excessive disruption of
9
government and permit the resolution of many insubstantial claims on summary
10
judgment. On summary judgment, the judge appropriately may determine, not only
11
the currently applicable law, but whether that law was clearly established at the
12
time an action occurred. If the law at that time was not clearly established, an
13
official could not reasonably be expected to anticipate subsequent legal
14
developments, nor could he fairly be said to "know" that the law forbade
15
conduct not previously identified as unlawful. Until this threshold immunity
16
question is resolved, discovery should not be allowed. If the law was clearly
17
established, the immunity defense ordinarily should fail, since a reasonably
18
competent public official should know the law governing his conduct.
19
Nevertheless, if the official pleading the defense claims extraordinary circumstances
20
and can prove that he neither knew nor should have known of the relevant legal
21
standard, the defense should be sustained. But again, the defense would turn
22
primarily on objective factors.” (Bold added.) -‐Harlow v. Fitzgerald, 457 U.S. 800,
23
818-‐19 (U.S. 1982)
139
1
Defendant Sajet knew exactly what the law required at the time, as indicated by the
2
final authoritarian statement: “I am the Director of the Smithsonian National
3
Portrait Gallery, your application will go no further, you can appeal my decision all
4
you want.” Defendant Sajet was not asserting Defendant’s lawful conduct and
5
reasonable actions according to ‘the due process of law,’ as un-‐appealable because
6
of its lawfulness, but out of irrational hubris, claiming to be above the law, and was
7
thus untouchable, giving Defendant the authority and power to indiscriminately,
8
deliberately and arbitrarily trample on Plaintiff’s rights, to which Plaintiff, in
9
Defendant’s mind, had no chance of redress!
10
The state of the Law at the time, regarding 1st and 5th Amendment case law, is
11
exhaustive when it comes to settled ‘viewpoint discrimination,’ and the ‘deprivation
12
of…property without the due process of law,’ and the ‘equal protection under the
13
law’. Defendant’s actions spanned nine days. If there was any doubt, Defendants
14
had plenty of time to lawfully fulfill their duties, and they did not!
15
16
Defendant Sajet’s Hesitation Evidence of Consciousness of Wrongdoing
17
Defendant Sajet’s hesitation, and rapid apologetic change of direction in Defendant
18
Sajet’s opening objection, as to the scale of the Trump portrait as ‘too big,’ based on
19
an invented standard by Defendant, was the initial violation of the ‘due process of
20
law’. Defendant immediately knew, at that moment, that Defendant was breaking
21
the law; Defendant should have stopped there, and lawfully processed the
22
application. Instead, Defendant did not stop and continued to get challenged and
140
1
thus the argument ensued. From that moment onwards, everything Defendant
2
argued was arbitrary, illegal, false and both willfully and recklessly violating of
3
Plaintiff’s Constitutional rights.
4
“By defining the limits of qualified immunity essentially in objective terms, we
5
provide no license to lawless conduct. The public interest in deterrence of unlawful
6
conduct and in compensation of victims remains protected by a test that focuses on
7
the objective legal reasonableness of an official's acts. Where an official could be
8
expected to know that certain conduct would violate statutory or constitutional
9
rights, he should be made to hesitate; and a person who suffers injury caused
10
by such conduct may have a cause of action (bold added). But where an official's
11
duties legitimately require action in which clearly established rights are not
12
implicated, the public interest may be better served by action taken "with
13
independence and without fear of consequences." Pierson v. Ray, 386 U. S. 547,
14
554 (1967). -‐Harlow v. Fitzgerald, 457 U.S. 800, 819 (U.S. 1982)
15
Defendant Sajet’s political animus against Plaintiff and Plaintiff’s political viewpoint,
16
as part of a group as a ‘Trump supporter,’ and also expressed in his painting of
17
Donald Trump, is the motivating factor for the unlawful Constitution-‐violating
18
actions manifest in the eleven minute phone call made directly to Plaintiff by
19
Defendant Sajet. The actions of Defendant Sajet, in the instant case, mirrors the
20
components of the actions of Defendant in Monteiro v. City of Elizabeth 436 F.3d
21
397 (3rd Cir 2006), decided by the United States Court of Appeals, Third Circuit:
141
1
“The speed with which she determined to eject Monteiro from the meeting, her
2
failure to consult her fellow council members or to negotiate any compromise,
3
and her failure to follow any established procedure could be viewed by a
4
reasonable jury as evidence that Perkins-‐Auguste's behavior was emotionally
5
charged and motivated by anger and personal animosity, rather than a desire to
6
maintain smooth operation of the meeting. Despite the calm in the meeting room
7
after the recess, Perkins-‐Auguste persisted in having Monteiro removed, in
8
handcuffs, against his will.”(Bold added.) -‐Monteiro v. City of Elizabeth, 436 F.3d
9
397, 405 (3d Cir. 2006)
10
The similarities in the steps taken by Defendant Sajet, identified by Plaintiff in the
11
Amended Complaint, are remarkable and substantial in establishing the plausibility
12
of Plaintiff’s claims that political animus was the motivating factor in Defendant
13
Sajet’s behavior! In Plaintiff’s amended complaint, identical elements such as the
14
speed/haste of Defendant’s actions, Defendant’s failure to consult the Chief Curator
15
Fortune3 and failure to follow established procedure, ‘could be viewed by a
16
reasonable jury as evidence’ that Defendant Sajet’s ‘behavior was emotionally
17
charged and motivated by anger and personal animosity, rather than a desire’ to
18
fulfill the Will of James Smithson.
19
20
3 “Curatorial freedom of expression, expertise, and authority are critical to a flourishing museum. “ Board of Regents, Report of the Regents Advisory panel
“The Institution accepts only items that truly fill a gap in the collections and then only after careful consideration by museum curators and directors. Because of this rigorous selection ‘process’, the Smithsonian adds to its collections only a tiny percentage of what it is offered.” Smithsonian FAQs https://www.si.edu/FAQs ; Amended Complaint
142
1
‘Motive is a Question of Fact That Must Be Decided by the Jury’
2
“Although qualified immunity is a question of law determined by the Court, when
3
qualified immunity depends on disputed issues of fact, those issues must be
4
determined by the jury. See Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132
5
L.Ed.2d 238 (1995) (qualified immunity may turn on disputed issues of fact); Karnes
6
v. Skrutski, 62 F.3d 485, 491 (3d Cir. 1995) ("While the qualified immunity defense is
7
frequently determined by courts as a matter of law, a jury should decide disputed
8
factual issues relevant to that determination."). Motive is a question of fact that
9
must be decided by the jury (bold added), which has the opportunity to hear the
10
explanations of both parties in the courtroom and observe their demeanor. See
11
Mitchell v. Forsyth, 472 U.S. 511, 529, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)
12
(improper intent is a pure question of fact); Walker v. Horn, 286 F.3d 705, 710 (3d
13
Cir. 2002).
14
Monteiro adduced sufficient evidence at trial from which a reasonable jury could
15
conclude that Perkins-‐Auguste acted with a motive to suppress Monteiro's speech
16
based upon his opposition to the budget.” -‐Monteiro v. City of Elizabeth, 436 F.3d
17
397, 405 (3d Cir. 2006)
18
19
Plaintiff’s eleven-‐minute, contentious debate, and at times heated argument with
20
Defendant Sajet, was not because Plaintiff was in disagreement with the lawful
21
standards being cited and applied by Defendant Sajet. Plaintiff was totally shocked
22
at the manner of the phone call from the very outset, coming from the Director of
23
the National Portrait Gallery. Plaintiff's hope, that perhaps the call was one of
143
1
genuine interest in displaying the Trump portrait, immediately evaporated upon
2
hearing the arbitrary objections and intentional oppositional-‐tone from Defendant
3
Sajet.
4
5
Plaintiff was shocked by Defendant Sajet’s disposition in the call, which blindsided
6
Plaintiff into a defensive posture. Each successive objection was worse than the
7
previous one. The crux of the heated argument was the false statements Defendant
8
Sajet was saying about the creation of the Shepherd Fairey Obama ‘Hope’ poster.
9
Plaintiff, knowing the story accurately and intimately, firmly disagreed with false
10
statements by Defendant Sajet, who would not ‘back down’ regarding the false
11
information. Defendant Sajet concocted a version of the facts that corresponded
12
with Defendant’s partial citation of a Smithsonian standard as a pretext to rejecting
13
Plaintiff’s portrait. Plaintiff repeatedly informed Defendant that Defendant was in
14
error and that the information was false, but Defendant Sajet insisted without
15
retreat.
16
Defendant Sajet insisted the ‘Hope’ poster had been created from life by artist
17
Shepherd Fairey. This is false. Shepherd Fairey was convicted for various crimes
18
regarding the use of the photo of Barack Obama taken by Manny Friedman, an AP
19
photographer, for the ‘Hope’ poster. It is common knowledge, yet Defendant Sajet
20
adamantly insisted it was just as Defendant said it was, in order to justify rejecting
21
the Trump portrait as not having been created from life. Defendants’ version of the
22
facts are totally false in support of Defendant Sajet’s unlawful deprivation of
23
Plaintiff’s rights of participation.
24
144
1
This heated exchange now jumped to the successive arbitrary objections, where
2
Plaintiff’s disbelief was only exacerbated. Plaintiff made Defendant Sajet well aware
3
that the ‘Hope’ poster was a political campaign poster and by Defendant denying the
4
Trump portrait as ‘too political,’ Defendant created a completely arbitrary and
5
unreasonable double standard. The fact that the effect of the phone call left Plaintiff
6
‘stunned and silenced’ for two days, speaks volumes, as to the chilling and silencing
7
of speech caused by Defendant Sajet’s actions.
8
9
This phone call lasted eleven, long minutes, as Plaintiff did his best to defend himself
10
against the animus of Defendant Sajet, which was nothing but shocking.
11
12
Disputed Facts Still To Uncover to Confirm Defendant’s Political Animus
13
14
1. What did Director Closter, Smithsonian Affiliate Director email to Defendant
15
Sajet?
16
2. Did Dir. Closter email the Trump Portrait application and the official Rockwell
17
complaint for political anti-‐Trump bias?
18
3. What did Dir. Closter say in the email? Did he mention the Rockwell complaint to
19
Defendant? Did he voice his opinion? Did he use words that set the stage for
20
politically motivated retaliatory viewpoint discrimination?
21
4. Why was Plaintiff told by Defendant’s assistant, that the Director was not
22
available, or even in that day, only to have Defendant call Plaintiff minutes later?
23
5. What transpired, to have provoked such an obvious and swift politically-‐
24
motivated phone call to Plaintiff?
145
1
6. What was the motivation behind the eleven-‐minute phone call that rapidly
2
descended into a heated argument with Defendant Sajet, the Director of The
3
Smithsonian National Portrait Gallery? What animus did Defendant bear in
4
responding to Plaintiff’s reasonable objections to Defendant’s arbitrary objections,
5
with such a rapid escalation of disagreement leading to an argument only a couple
6
of minutes into the phone call? Is it Smithsonian procedure for the Director to
7
personally call and argue with the applicant in denying their application?
8
7. Was it that, upon discovering from the assistant, that Plaintiff had called, that
9
Defendant eagerly and hastily made the decision to call Plaintiff to give him a ‘piece
10
of her mind,’ as was the feeling Plaintiff experience during the call, thus revealing
11
Defendant’s animus?
12
8. Did Defendant Sajet eagerly make the call, knowing that Defendant would enjoy
13
denying the ‘pro-‐Trump’ Plaintiff’s application because of Defendant’s publicly
14
tweeted anti-‐Trump political viewpoint?
15
9. Was Defendant Sajet’s anger ‘fired up’ at receiving Director Closter’s email,
16
containing the Trump Portrait application, and the Rockwell complaint (being
17
actively and politically opposed to Plaintiff’s political viewpoint and support of then
18
President Elect Trump), relishing the opportunity to shoot it down with a deliberate
19
and willful denial of Plaintiff’s application, without any regard to Plaintiff’s First and
20
Fifth Amendment rights, as part of Defendant’s personal protest against President
21
Elect Trump and his supporters, evidenced by Defendant’s marched and protest
22
against then newly-‐inaugurated President Trump on January the 21st, 2017 at the
23
‘Women’s March D.C.’ against the newly inaugurated President? Why did Defendant
24
publically promote her anti-‐Trump tweets on the official Director’s twitter page in
146
1
violation of Smithsonian policy regarding political involvement of Smithsonian
2
employees?
3
10. Did Defendant recklessly, deliberately, knowingly, willfully and arbitrarily
4
ignore and deprive Plaintiff’s 5th Amendment rights to the ‘due process of law’ and
5
Smithsonian procedures, believing that since Defendant had ‘immunity’ that
6
Defendant could get away with anything? Does defendant believe as her final
7
statement reveals, that as the Director of the Smithsonian Institution, Defendant
8
Sajet can get away with anything?
9
11. Did Defendant Sajet’s final, taunting statement reveal Defendant’s hostile,
10
authoritarian anti-‐Trump viewpoint-‐discrimination, since Defendant invoked all of
11
her power and authority as the ‘Director of the National Portrait Gallery,
12
summoning all of Defendant’s powers to deny Plaintiff his application?
13
12. Did Defendant Sajet’s final statement reveal Defendant’s inability to legitimately
14
and legally, according to official Smithsonian standards and procedures, according
15
to the due process of law, deny Plaintiff his application, so the last desperate resort
16
was the invocation of all of Defendant’s power and authority as the only means to
17
deny Plaintiff?
18
13. Did Defendant Sajet’s final statement, ‘You can appeal my decision all you
19
want...’ reveal Defendant’s knowledge of the law regarding ‘immunity’ from suit for
20
federal officers and Defendant’s flaunting of such, believing that federal immunity
21
was a license to abuse the Constitutional rights of Plaintiff in the belief the
22
Defendant could do and say anything, get away with it, and thus was untouchable?
23
14. Did Defendant Sajet’s final statement, ‘You can appeal my decision all you
24
want…’ reveal Defendant’s contempt for the rule of law, and indifference towards
147
1
Plaintiff’s rights, since Defendant apparently believed that no matter what appeal
2
Plaintiff made, Defendant had the final word and thus Defendant Sajet believed she
3
above the law?
4
15. What did Defendant Sajet tell Defendant Kurin?
5
16. Did Defendant Sajet tell Defendant Kurin the truth?
6
17. Did Defendant Sajet fabricate an account of the eleven-‐minute phone call to
7
exonerate herself and condemn Plaintiff?
8
18. Did Defendant Kurin ‘concur’ with false information? Why was the conversation
9
not made a matter of public record? Why was it not written down according to
10
Smithsonian standards and code of ethics?
11
19. Did Defendant Kurin agree with Defendant’s anti Trump political bias?
12
20. Did Defendants Sajet and Kurin conspire to deprive Plaintiff of his lawful
13
participation, ‘Due process of law’ and First and Fifth Amendment rights, by creating
14
a false narrative?
15
21. Did Defendant Sajet & Kurin willfully and knowingly break the law?
16
22. Why did Defendant Kurin ignore Plaintiff’s legal appeal against Defendant
17
Sajet’s unlawful actions? Why did Defendant Kurin refuse to acknowledge Plaintiff’s
18
letter as an appeal for relief addressed to the Board of Regents?
19
23. Why was Defendant Kurin not interested to hear both sides of the story to get to
20
the truth? Why was Plaintiff refused the opportunity to be heard and present his
21
case against Defendant Sajet?
22
24. Why did Defendant Kurin ignore the Smithsonian standards of portraiture
23
acceptance?
148
1
25. Why did Defendant Kurin ignore Smithsonian procedures and processes for the
2
consideration, acceptance and rejection of a portrait?
3
26. Why did Defendant use a ‘long planned event’ as an excuse to deny and deprive
4
plaintiff his lawful appeal, lawful consideration of Plaintiff’s application and
5
Plaintiff’s ‘due process of law’?
6
27. Why was the hanging of one, single, small, old, dated, irrelevant, 1989 business-‐
7
related photo of Donald Trump considered a ‘long planned event,’ superseding the
8
2013 precedent, in which three portraits of Barrack Obama were hung for President
9
Obama’s inauguration?
10
28. Why was ‘recent tradition’ considered lawful, and on what statutory basis was
11
this procedure used as opposed to adhering to Smithsonian Standards of portraiture
12
acceptance?
13
29. What legal Smithsonian procedural justification is there for ignoring lawful
14
Smithsonian procedures in the light of ‘recent tradition’? What is the point of having
15
written legal, lawful Smithsonian standards, procedures and ethics?
16
30. What Smithsonian standard, procedure or due process of law is there for
17
deliberately failing to disclose, in writing, the reasons Defendant Kurin secretly
18
‘concurred’ with Defendant Sajet?
19
31. Why did Defendant Kurin refuse to answer Plaintiffs reply to Defendant Kurin’s
20
letter?
21
32. Why was Plaintiff never treated respectfully as a beneficiary of the Will of James
22
Smithson, and the duty to disclose not obeyed?
23
33. Why was Plaintiff refused 5th Amendment rights of the ‘due process of law’ as a
24
U.S. Citizen and beneficiary of the Will of James Smithson?
149
1
34. Why did Defendant Sajet emphatically object to the size of the painting, as being
2
‘too big,’ since there were no Smithsonian standards regarding size, but upon being
3
challenged by Plaintiff, changed her mind and apologized?
4
35. Why did Defendant Sajet partially cite, mischaracterize and falsely apply the
5
Smithsonian standard about portraits having to be ‘created from life’ and omit the
6
rest of the written standard that says ‘if possible’?
7
36. Why did Defendant Sajet emphatically insist Defendant was right and begin to
8
argue with Plaintiff regarding this issue? Why did Defendant not refer to the official
9
written standard and read from it?
10
37. Did the fact that Defendant Sajet never called Plaintiff back about Defendant
11
Sajet partially citing a standard indicate Defendant knew she was wrong but did not
12
care less about being accurate according to the ‘Due process of law’? Did Defendant
13
Sajet review the contents of the conversation after the incident in light of the
14
dispute and in the light of Smithsonian standards, procedures and ethics?
15
38. Why did Defendant Sajet not research and consult with Chief Curator Fortune
16
when Smithsonian Standards and procedures require consultation?
17
39. Why was the chief curator’s opinion not part of the Director’s opinion?
18
40. Why did Defendant Sajet object to the content (Bald eagle/American flag) of
19
the Trump-‐painting in the light of the similar, symbolic content contained in the
20
George Washington Lansdowne portrait, and why did Defendant Sajet keep
21
justifying her opinion by appealing to the Washington Portrait?
22
41. Why did Defendant’s Sajet object to the painting as being ‘Too pro-‐Trump.’?
23
42. How can something be ‘too’ pro-‐anything, when the purpose of a portrait of an
24
individual is all about being ‘pro’ the individual?
150
1
43. Why did Defendant Sajet not travel to see the 8x16’ original painting, to make
2
the final determination, since the photos in the application are tiny (a mere few
3
square inches), compared to the 100 square foot size of the Trump Portrait?
4
44. Since the Smithsonian admits, “The Smithsonian... is owned by the American
5
people.” The Board Of Regents Report of the Regents Advisory Panel., how come
6
the fact that duly-‐elected governmental representatives of upwards of 200,000 (two
7
hundred-‐thousand people), who have seen the painting or reproductions thereof,
8
and who thus officially endorsed the application to the Smithsonian, were not even
9
considered as significant and authoritative by Defendants Sajet and Kurin?
10
45. How does the fact that Smithsonian portrait standards for acceptance place
11
historic significance above artistic merit and yet Defendant Sajet rejects the portrait
12
since in her personal opinion it was ‘no good’ completely denying the paintings
13
historic relevance as the most recognized painting from the 2015/16 Presidential
14
race?
15
16
Motion to Withdraw FTCA Claims
17
18
Plaintiff has a motion pending with the court regarding the FTCA claims. Upon filing
19
the Amended Complaint, Plaintiff did learn that in order to satisfy the jurisdictional
20
requirements for the Court, the exhaustion of administrative remedies had to take
21
place. A six month filing time must have elapsed and subsequent denial by the
22
Smithsonian and a sum certain dollar amount had to be part of the FTCA claim made
23
to the Smithsonian in order for there to be subject matter jurisdiction. 28 U.S.C. §
24
2401(b). 28 C.F.R. § 14.2(a)
151
1
Plaintiff realized that accordingly the FTCA portion of Plaintiff’s claims were
2
deficient and requested the Court to withdraw the FTCA portion of the complaint.
3
4
Plaintiff later discovered in VAIL v. DISTRICT OF COLUMBIA, et al., CIV. A. No. 86–
5
1718. June 2, 1988.WL 63069 that according to Rule 41;
6
“Although plaintiff has never specified the Federal Rule or Rules upon which he
7
relied in his motion to withdraw the negligence claim, the only Rule that would have
8
allowed him to do so is Fed.R.Civ.P. 41(a)(2). Rule 41(a)(2) provides that, once the
9
defendant has filed an answer or a summary judgment motion, or if the parties have
10
stipulated to dismissal, “an action shall not be dismissed at the plaintiff’s instance
11
save upon order of the court and upon such terms and conditions as the court
12
deems proper.... Unless otherwise specified in the order, a dismissal under this
13
paragraph is without prejudice.”5 This language points up two implicit points about
14
plaintiff’s “withdrawal” of his negligence claim.
15
16
“Footnote:
17
5 The Court is aware of some older decisions holding that Rule 41(a) permits
18
dismissal only of entire lawsuits, not individual claims or parties. See, e.g., Harvey
19
Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105 (2d Cir.), cert. denied, 345
20
U.S. 964 (1953); Etablissements Neyrpic v. Elmer C. Gardner, Inc., 175 F.Supp. 355
21
(S.D.Tex.1959). The clear trend, and the majority rule, is that a plaintiff may use
22
Rule 41(a) to dismiss particular claims. See generally 9 C.A. Wright & A. Miller,
23
Federal Practice and Procedure: Civil § 2362 (1971 and Supp.1987); see also Johnson
24
Chemical Co., Inc. v. Home Care Products, 823 F.2d 28 (2d Cir.1987) (limiting Harvey
152
1
Aluminum to its “extreme facts”). Although the United States Court of Appeals for
2
the District of Columbia has not explicitly decided the issue, it has implicitly
3
approved the use of Rule 41(a) as a means for partial dismissal of a case. See,
4
e.g., Siegel v. Mazda Motor Corp., 835 F.2d 1475, 1477 n. 1 (D.C.Cir.1987); see also,
5
e.g., LaGon v. Barry, 658 F.Supp. 55 (D.D.C.1987).”(Bold added.)
6
7
Thus in the interest of Justice, since Bivens and FTCA actions may run
8
simultaneously or concurrently, “Holding that FTCA and Bivens remedies were
9
"parallel, complementary causes of action" and that the availability of the former did
10
not preempt the latter” WILKIE v. ROBBINS, 551 U.S. 537 (2007) “Holding that
11
plaintiffs, "[i]n the absence of a contrary expression from Congress, . . . shall have an
12
action under FTCA against the United States as well as a Bivens action against the
13
individual officials alleged to have infringed their constitutional rights"”DENSON v.
14
U.S, 574 F.3d 1318 (11th Cir. 2009) “Holding that Bivens remedy was available to
15
the respondent, who alleged that federal prison officials violated his Eighth
16
Amendment rights, even though the allegations could also support a suit under the
17
Federal Tort Claims Act”HAMMONS v. NORFOLK SOUTHERN CORP, 156 F.3d 701
18
(6th Cir. 1998)
19
20
Plaintiff had motioned the Court to withdraw the FTCA portion of the complaint so
21
as to cure its deficiencies, allowing the Bivens Action to continue. Plaintiff had filed
22
the motion to withdraw the FTCA portion prior to Defendants having answered the
23
complaint, so the motion rests upon Rule 41(a) as defined above in footnote 5.
24
153
1
Plaintiff requests the Court to grant Plaintiff’s motion to partially withdraw the
2
FTCA portion of the Amended Complaint and to categorically DENY Defendant’s
3
Motion to Dismiss.
4
5
6
Defendants’ Motion to Dismiss Must be Denied!
7
8
“In reviewing a motion to dismiss, all factual allegations must be accepted as true,
9
and the Complaint must be construed in Plaintiffs’ favor to determine whether,
10
under any reasonable reading of the Complaint, Plaintiffs may be entitled to relief.
11
Nationwide Life Ins. Co. v. Commonwealth Land Title Ins. Co., 579 F.3d 304, 307
12
(3rd Cir. 2009). Defendant’s motion to dismiss Plaintiffs’ Case 2:09-‐cv-‐04607-‐MMB
13
Document 25 Filed 02/01/2010 Page 11 of 56 3 Complaint under Rule 12 (b)(6)
14
must be denied if the Complaint contains sufficient factual matter to state a claim
15
that is plausible on its face. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3rd Cir.
16
2009) citing Ashcroft v. Iqbal, U.S. , 129 S. Ct. 1937, 1949 (2009). In assessing a
17
motion to dismiss in terms of a Complaint that alleges the deprivation of
18
constitutional rights, a court should not “inquire whether the plaintiffs will
19
ultimately prevail, only whether they are entitled to offer evidence to support their
20
claims.” Langford v. City of Atlantic City, 235 F.3d 845, 847 (3rd Cir. 2000) quoting,
21
Nami v. Fauver, 82 F.3d 63, 65 (3rd Cir. 1996) (Emphasis added). Thus, if a
22
complaint alleges sufficient facts giving rise to a plausible claim for the deprivation
23
of constitutional rights, the motion must be denied, and Plaintiffs must be given the
154
1
opportunity to offer evidence in support of their claims.” Free Speech Coalition
2
Inc, et al. v The Honorable Eric Holder, Jr. Civil Action No. 2:09-‐4607
3
4
5
“… In deciding a motion for judgment on the pleadings under Rule 12(c), the court
6
uses the same standard as when deciding a motion to dismiss under Rule
7
12(b)(6). Nesmith, 2004 WL 253524, at *3 (citing Constitution Bank v. DiMarco, 815
8
F.Supp. 154, 157 (E.D.Pa. 1993)). Thus, the motion will be granted only when it is
9
certain that no relief could be granted under any set of facts that could be proved by
10
the plaintiff. Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 189 (3d Cir.
11
1998). The Court must accept as true all well-‐pleaded allegations in the complaint
12
and draw all reasonable inferences therefrom in favor of the nonmoving
13
party. Consol. Rail Corp. v. Portlight Inc., 188 F.3d 93, 94 (3d Cir. 1999).
14
Similarly, as in a 12(b)(6) motion, the Court may look only to the facts alleged in the
15
pleadings and any attachments. See Jordan v. Fox, Rothschild, O'Brien Frankel, 20
16
F.3d 1250, 1261 (3d Cir. 1994) (discussing the 12(b)(6) standard); Hayes v. Cmty.
17
Gen. Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir. 1991) (discussing the 12(c)
18
standard). ” MOBLEY v. TARLINI•641 F.Supp.2d 430, 437 (E.D. Pa. 2009)
19
20
“…We may affirm the district court's dismissal only if it appears beyond doubt that
21
the Plaintiffs can prove no set of facts in support of their claim that would entitle
22
them to relief.”
23
Flood v. New Hanover County, 125 F.3d 249, 251 (4th Cir. 1997)
155
1
RULE 12b(1)
2
Plaintiff has exhaustively argued the case for the correct and legal ‘entity’ status of
3
the Smithsonian Institution. As a result jurisdiction for the Court was established
4
for Constitutional claims.
5
Thus Defendants Rule 12b(1) Motion to dismiss must be DENIED!
6
7
RULE 12B(6)
8
Defendants argue that Plaintiff cannot ‘state a claim upon which relief can be
9
granted’ has been soundly refuted. Plaintiff’s claims are absolutely plausible. The
10
abundance of factual matter bolstering the claim’s plausibility was not even
11
contested, debated or refuted by Defendants!
12
13
Plaintiff has thus exhaustively established Plaintiff’s claims as ‘plausible’ from a
14
multitude of angles satisfying “a complaint must contain sufficient factual matter,
15
accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v.
16
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)
17
18
Any reasonable person can deduce, based upon the present claims and the factual
19
matter presented, that Plaintiff has absolutely stated a claim, satisfying the facial
20
plausibility requirement standard.
21
Thus Defendant’s RULE 12B(6) Motion to Dismiss must be DENIED!
22
23
24
156
1
RULE 12B(4,5)
2
Plaintiff’s ‘Motion for the Service of Process’ based on RULE 4 (3) “…By a Marshal or
3
Someone Specially Appointed. At the plaintiff's request, the court may(Bold added.)
4
order that service be made by a United States marshal or deputy marshal or by a
5
person specially appointed by the court. The court must so order(Bold added.) if
6
the plaintiff is authorized to proceed in forma paupuris under 28 U.S.C. §1915 or as
7
a seaman under 28 U.S.C. §1916.” is before the Court and was docketed on October
8
10th, 2017, within the 120 days of filing of the instant case at the District Court for
9
the District of Columbia. It is the Court’s role to order the Service of Process for a
10
‘pro se’ plaintiff who has been granted ‘forma paupuris’. Plaintiff has also motioned
11
the Court for an update on the ‘Status’ of the Motion since receiving Defendant’s
12
Motion to Dismiss based on Rule12b(4,5).
13
Plaintiff ‘pro se’ Julian Marcus Raven, having been granted ‘Forma paupuris’ motions
14
the Court to grant Plaintiff’s Motion for Service of Process thus establishing personal
15
jurisdiction over Defendants Sajet and Kurin.
16
Thus Defendant’s RULE 12b(4,5) Motions to Dismiss must be DENIED!
17
18
Conclusion
19
20
Artist and Plaintiff ‘Pro se’ Julian Marcus Raven has painted a complete picture of
21
the truth for the Court.
22
23
1. The Smithsonian Institution has been defined as to its true ‘entity’ status
24
establishing subject matter jurisdiction concerning Constitutional claims.
157
1
2. The National Portrait Gallery is either a limited of designated public forum where
2
speech must be viewpoint neutral.
3
3. Having established Constitutional grounds, Mr. Raven has accurately described
4
his legitimate and plausible claims with sufficient factual material substantiating
5
Plaintiff’s claims of violations of Plaintiff’s 1st and 5th Amendment rights, upon which
6
relief can and must be granted.
7
8
4. Plaintiff has established standing by satisfying the 3 step test by proving Plaintiff
9
suffered injuries in fact.
10
11
5. Plaintiff’s injuries in fact established standing for Constitutional claims against
12
Federal Officers Sajet and Kurin.
13
14
6. The only judicial remedy available for redressing Constitutional claims against
15
Federal Officers is a Bivens Action.
16
17
7. Plaintiff’s claims under the 1st and 5th Amendments resemble the characteristics
18
of previous Bivens Actions, since the instant case does not contain special factors
19
counseling hesitation, just egregious violations of the Constitution by Federal
20
Officers.
21
22
8. The specific Bivens ‘DNA’ match is the right to be free from viewpoint
23
‘discrimination’ under the 5th Amendment’s ‘due process of law’ and ‘equal
24
protection under the law’ clauses.
158
1
9. Defendants’ hostile anti-‐Trump political animus disqualifies Defendants from
2
immunity since the decision to grant immunity as a matter of law cannot occur since
3
Plaintiff’s animus claim is a disputed fact that only a jury can decide after trial.
4
5
10. Personal subject matter jurisdiction will be established as soon as the Court
6
grants Plaintiff’s Motion of Service of Process as required by the Federal Rule of Civil
7
Procedure 4(3).
8
9
11. Plaintiff’s FTCA motion is also before the Court awaiting the Federal Rule of Civil
10
Procedure 41 ruling to withdraw the FTCA portion of the Amended Complaint so as
11
to cure its deficiencies.
12
13
Thus Defendants’ Motion to Dismiss must be DENIED on ALL counts!
14
15 16 17 18 19 20
I, Julian Marcus Raven, Plaintiff in the above case, on the 28th of November, 2017, hereby declare that to the best of my knowledge and belief, the information herein is true, correct and complete. Julian Raven
21 22
159
Memorandum of Law and Table of Authorities
Case Law 1. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) 2. AIDS Action Comm. v. Massachusetts Bay Transp. Auth., 42 F.3d 1, 10-‐12 (1st Cir. 1994) 3. Answer v. District of Columbia, 07-‐cv-‐1495 (RCL). (D.D.C. Jul. 21, 2011) 4. Anti-‐Fascist Committee v. McGrath, 341 U.S., at 171-‐172(1971) 5. Barna v. Bd. of Sch. Dirs. of the Panther Valley Sch. Dist., 3:12-‐CV-‐638 (M.D. Pa. Oct. 15, 2013) 6. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) 7. Bell v. Hood, 327 U.S., at 684 8. Boddie v. Connecticut, 401 U.S. 371, 375 (1971) 9. Bolling v. Sharpe, 347 U.S. 497, 500 (1954) 10. Brooklyn Institute of Arts v. City of New York, (e.d.n.y. 1999), 64 F. Supp.2d 184, 198 (E.D.N.Y. 1999 11. Buckley v. Valeo, 424 U.S. 1, 93 (1976) 12. BURITICA v. U.S., (N.D.Cal. 1998), 8 F. Supp.2d 1188 (N.D. Cal. 1998) 13. Calash v. City of Bridgeport, 788 F.2d 80, 83-‐84 (2d Cir. 1986) 14. Carey v. Piphus, 435 U.S. 247, 266 (U.S. 1978) 15. CHESAPEAKE BAY FOUNDATION, INC., et al.,v.SEVERSTAL SPARROWS POINT, LLC, et al., 794 F.Supp.2d 602 (2011)
1
16. City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994) 17. Conley v. Gibson, 355 U.S. 41, 45-‐46, 78 S.Ct. 99, 101-‐02, 2 L.Ed.2d 80 (1957) 18. Connick v. Myers, 461 U.S. 138, 145 (1983) 19. Consol. Rail Corp. v. Portlight Inc., 188 F.3d 93, 94 (3d Cir. 1999) 20. Constitution Bank v. DiMarco, 815 F.Supp. 154, 157 (E.D.Pa. 1993) 21. Cornelius v. NAACP Legal Def. Educ. Fund, Inc., 473 U.S. 788, 797 (1985) 22. Davis v. Passman, 442 U.S. 228, 235 (U.S. 1979) 23. DENSON v. U.S, 574 F.3d 1318 (11th Cir. 2009) 24. Edwards v. City of Goldsboro,178 F.3d 231, 244 (4th Cir. 1999) 25. Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 280 (3d Cir. 2004) 26. Elrod v. Burns, 427 U.S. 347, 373-‐74 (1976) 27. Etablissements Neyrpic v. Elmer C. Gardner, Inc., 175 F.Supp. 355 (S.D.Tex.1959) 28. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999). 29. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3rd Cir. 2009) 30. Free Speech Coalition Inc, et al. v The Honorable Eric Holder, Jr. Civil Action No. 2:09-‐4607 31. Galena v. Leone, 711 F. Supp.2d 440, 11-‐13 (W.D. Pa. 2010) 32. Goldberg v. Kelly, 397 U.S. 254, 269 (U.S. 1970) 33. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-‐07 (2001) 34. Hamlet v. U.S, 873 F.2d 1414, 1416 (Fed. Cir. 1989) 35. HAMMONS v. NORFOLK SOUTHERN CORP, 156 F.3d 701 (6th Cir. 1998) 36. Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976)
2
37. Hannegan v. Esquire, 327 U.S. 146, 149 (1946) 38. Harlow v. Fitzgerald, 457 U.S. 800, 818-‐19 (U.S. 1982) 39. Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105 (2d Cir.) 40. Hayes v. Cmty. Gen. Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir. 1991) 41. In Saucier, 533 U. S. 194 42. Johnson Chemical Co., Inc. v. Home Care Products, 823 F.2d 28 (2d Cir.1987) 43. Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) 44. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 531 (1952) 45. Karnes v. Skrutski, 62 F.3d 485, 491 (3d Cir. 1995) 46. Kerchner v. Obama, 2009 U.S. Dist. LEXIS 97546 (D.N.J. Oct. 20, 2009) 47. LaGon v. Barry, 658 F.Supp. 55 (D.D.C.1987). 48. Lamb's Chapel v. Center Moriches Sch. Dist, 508 U.S. 384, 393-‐94 (U.S. 1993) 49. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3rd Cir. 2000) 50. LeBron v. National R.R. Passenger (amtrak), 69 F.3d 650, 656 (2d Cir. 1995) 51. LEBRON V. NATIONAL RAILROAD PASSENGER CORPORATION 513 U.S. 374 (1995). 52. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (U.S. 1992) 53. Mahoney v. Doe, 642 F.3d 1112, 1116 (D.C. Cir. 2011) 54. Malley v. Briggs, 475 U. S. 335, 341 (1986). 55. Meinhard v. Salmon, 249 N.Y. 458, 464 (N.Y. 1928) 56. Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) 57. Mitchell v. Forsyth, 472 U.S. 511, 529, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) 58. Mobley v. Tarlini, 641 F. Supp.2d 430, 440 (E.D. Pa. 2009)
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59. Moeller v. Superior Court, 16 Cal.4th 1124, 1131 (Cal. 1997) 60. Monteiro v. City of Elizabeth 436 F.3d 397 (3rd Cir 2006) 61. Monteiro v. City of Elizabeth, No. 01-‐1844, at 22-‐23 (D.N.J. Nov. 12, 2003) 62. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977) 63. NAACP v. Button, 371 U.S. 415, 432-‐433 (1963) 64. Nami v. Fauver, 82 F.3d 63, 65 (3rd Cir. 1996) 65. National Endowment for the Arts v. Finley, 524 U.S. 569, 575 (U.S. 1998) 66. Nationwide Life Ins. Co. v. Commonwealth Land Title Ins. Co., 579 F.3d 304, 307 (3rd Cir. 2009) 67. Nebbia v. New York, 291 U.S. 502, 525 (U.S. 1934) 68. Oberwetter v. Hilliard, 639 F.3d 545, 551 (D.C. Cir. 2011). 69. Pearson v. Callahan, 555 U.S. 223, 6-‐7 (U.S. 2009) 70. People for Ethical Treat, Animals v. Gittens, 414 F.3d 23, 25-‐26 (D.C. Cir. 2005) 71. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) 72. Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir.2009).” 73. Pierson v. Ray, 386 U. S. 547, 554 (1967) 74. Pleasant Grove City v. Summum, 555 U.S. 460, 5-‐6 (U.S. 2009) 75. Pulphus v. Ayers, Civil Action No. 17-‐310 (JDB) (D.D.C. Apr. 14, 2017) 76. R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992) 77. Regan v. Taxation with Representation of Washington, 461 U.S. 540, 548 (1983)
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78. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991)). 79. Rosenberger v. Rector and Visitors of Univ. of Va, 515 U.S. 819, 829 (U.S. 1995) 80. Scheuer v. Rhodes, 416 U.S. at 236,94 S.Ct. at 1686. 81. Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994) 82. Siegel v. Mazda Motor Corp., 835 F.2d 1475, 1477 n. 1 (D.C.Cir.1987) 83. Sierra Club v. Morton, 405 U. S. 727, 734-‐736 (1972) 84. Simon v. Eastern K. Welfare Rights Organization, 426 U.S. 26, 41-‐42 (1976) 85. STEWART v. EVANS, 275 F.3d 1126 (D.C. Cir. 2002) 86. Summers v. Earth Island Institute, 555 U.S. 488, 5 (U.S. 2009) 87. Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 189 (3d Cir. 1998) 88. Texas v. Johnson, 491 U.S. 397, 414 (1989) 89. VAIL v. DISTRICT OF COLUMBIA, et al., CIV. A. No. 86–1718. June 2, 1988.WL 63069 90. Vance v. Bradley, 440 U.S. 93, 95 n. 1 (1979) 91. Walker v. Horn, 286 F.3d 705, 710 (3d Cir. 2002) 92. Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 2246 (U.S. 2015) 93. Wendt v. Fischer, 243 N.Y. 439, 444 94. West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943) 95. WILKIE v. ROBBINS, 551 U.S. 537 (2007)
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96. Wright & A. Miller, Federal Practice and Procedure: Civil § 2362 (1971 and Supp.1987); 97. Ziglar v. Abbasi, No. 15-‐1358 (U.S. Jun. 19, 2017) Statutory Law 1. The United States Constitution 2. The Bill of Rights 3. The Declaration of Independence 4. Rules of Civil Procedure 4(3), 12 b(1,4,5,6) 5. Administrative Procedure Act 1946 6. Smithsonian Act of Congress 1846 20 U.S. Code § 41, 42, 43-‐67 7. National Portrait Gallery Establishment 20 USC 75b 8. 15 U.S. Code § 6602 – Definitions 9. National Foundation on the Arts and the Humanities Act of 1965 (P.L. 89-‐ 209) 10. Department of the Interior and Related Agencies Appropriations Act, 1990, Pub.L. 101-‐121, 103 Stat. 738, 738-‐742 11. 42-‐USC §1983 12. 28 U.S.C. §1915, 28 U.S.C. §1916
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Table of Authorities 1. Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (3d ed. 2004) 2. ‘Programme of Organization.’-‐ Joseph Henry, The First Secretary of the Smithsonian Institution, 1847 3. This Day In Smithsonian History, Smithsonian Archives 4. Smithsonian Website. https://www.si.edu/ogc/legalhistory 5. Deputy Assistant Attorney General, Douglas W. Kmiec(DEPARTMENT OF JUSTICE) 6. Deputy Assistant Attorney General, Randall D. Moss, April 25, 1997(DEPARTMENT OF JUSTICE) 7. https://www.law.cornell.edu/uscode/text/15/6602 8. Federal Register. https://www.federalregister.gov/documents/2017/06/15/2017-‐ 12071/implementing-‐the-‐federal-‐civil-‐penalties-‐adjustment-‐act-‐ improvements-‐act-‐of-‐2015 9. www.arts.gov National Endowments for the Arts 10. www.npg.si.edu National Portrait Gallery 11. https://www.si.edu/FAQs Smithsonian Frequently Asked Questions 12. Speech on Censorship Town Hall, LA: Smithsonian Secretary Wayne Clough https://www.youtube.com/watch?v=auWM8QXGtuQ
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13. Hide/Seek Smithsonian National Portrait Gallery Show Video: Smithsonian video https://www.youtube.com/watch?v=L4Qn7mrH_qI) 14. Director Sajet’s Letter to Bishop E.W. Jackson 15. Wayne Clough, Smithsonian Secretary, https://www.huffingtonpost.com/lee-‐rosenbaum/smithsonian-‐clough-‐ interview_b_811261.html 16. Hide/Seek Art Show https://www.brooklynmuseum.org/exhibitions/hide_seek/ 17. Smithsonian News Desk: http://newsdesk.si.edu/releases/national-‐portrait-‐ gallery-‐presents-‐hideseek-‐difference-‐and-‐desire-‐american-‐portraiture-‐0 18. BillCosbyArticle:https://www.usatoday.com/story/life/people/2014/09/15 /bill-‐cosbys-‐art-‐collection-‐to-‐show-‐at-‐smithsonian/15684931/ 19. Magna Carta of 1215. 20. Smithsonian Governance Article: https://www.si.edu/content/governance/pdf/IRC_report.pdf -‐ Page 2 21. National Portrait Gallery https://siarchives.si.edu/history/national-‐portrait-‐ gallery 22. .Smithsonian Statement Of Values and Code of Ethics, 2007 23. Cornell Law School, Fiduciary Duty, https://www.law.cornell.edu/wex/fiduciary_duty 24. The American Bar: https://www.americanbar.org/content/dam/aba/migrated/publiced/practi cal/books/wills/chapter_4.authcheckdam.pdf
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25. RESTATEMENT (SECOND) OF TRUSTS 2 (1957) 26. George B. Bogert & George T. Bogert, THE LAW OF TRUSTS AND TRUSTEES §394 (Rev. 2d 1994) 27. SMITHSONIAN DIRECTIVE 150-‐ Smithsonian Institution Origins, Governance, and Relationship to the Federal Government (April 16, 1996), 28. IRC REPORT https://www.si.edu/content/governance/pdf/IRC_report.pdf Pages 28-‐30 29. William Meade Fletcher, FLETCHER CYCLOPEDIA OF THE LAW OF CORP. § 1029 30. https://www.law.cornell.edu/wex/equal_protection 31. 1962 National Portrait Gallery Commission: https://siarchives.si.edu/history/national-‐portrait-‐gallery 32. The Board Of Regents Report of the Regents Advisory Panel 33. Black’s Law Dictionary 479 (9th ed. 2009) 34.
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INDEX Motion: Opposition to Defendants Motion To Dismiss INTRODUCTION Page 1-‐4: Introduction Page 4: Defendants Motion to Dismiss Based on the Federal Rules of Civil Procedure and Other Issues Page 4: Undisputed Facts ENTITY STATUS AND GOVERNMENT SPEECH Page 5: Government Speech Theory is the Fatal Flaw Page 5: MOTION TO DISMISS Rule 12 b(1) Jurisdictional Challenge Page 7: Argument Establishing Subject Matter Jurisdiction Defeating Rule 12b(1) Page 9: Federal Instrumentalities Are Subject to Constitutional Constraints of the 1st & 5th Amendments To the U.S. Constitution Defeating Rule 12b(1) Jurisdictional challenge. Page 9: The Smithsonian Institution’s Legal History and Status Page 10: Smithsonian Institution Entity Definition Page 11: ‘Programme of Organization.’-‐ Joseph Henry, The First Secretary of the Smithsonian Institution, 1847 Page 12: Limits of Smithsonian Power Defined in the Congressional Act of 1846. Page 13: Everything is to fulfill the Will of the Testator James Smithson not the Government’s will! Page 13: Establishment of the Smithsonian National Portrait Gallery
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Page 16: Defendants’ Government ‘Entity’ Theory Failure Page 16: Instrumentality Page 17: Comparing the Establishment of Government Entities Page 21: Establishment of the Smithsonian National Portrait Gallery & Government Speech Page 24: Smithsonian Status in Summum, Walker, PETA & Pulphus Page 26: Examples of Other Government Instrumentalities and Application of the First and Fifth Amendment Page 31: Viewpoint Discrimination in LeBron FORUM ANALYSIS Page 32: Forum Analysis-‐ Having Established Constitutional Grounds For This Present Legal Action An Analysis of the Type of Forum is Appropriate Page 35: Lamb’s Chapel is Conclusive Page 36: Second Circuit Appeals Court Forum Precedent Page 37: The Will of Smithson is Quintessential Protected Private Free Speech Page 40: Private Free Speech Expressed in The Private Will of Smithson Under Government Care Creates by Default where ever the Will is administered a Free Speech Forum Protected by the 1st Amendment to the Constitution Page 40: Smithsonian National Portrait Gallery is a Designated or Limited Public Forum Page 43: Smithsonian Procedure for Beneficiary Participation
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Page 44: Free Speech Activity Acknowledged, Defended and Promoted in the Smithsonian National Portrait Gallery By the Smithsonian Secretary Page 45: National Endowments for the Arts Standards vs. Smithsonian Standards Page 49: Participation of Private Citizen Beneficiaries in the Smithsonian Free Speech Forum TRUST INSTRUMENTALITY Page 49: The Smithsonian Institution is Simply a Private Trust Page 51: The Sacred Fiduciary Duty in the Face of ‘Disintegrating Erosion’ Page 53: The Opinion of Judge Cardozo Regarding Fiduciary Duty Page 54: Breach of Fiduciary Duty Constitutes Violations Of the 5th Amendment ‘Due Process of Law’ Page 55: Trusts are Relationships Page 57: The Right to Benefit from the Property as Specified in the Trust Page 59: IRC REPORT TO THE BOARD OF REGENTS Page 59: “Governance and Applicable Fiduciary Duties” Page 63: Government Creep Page 64: Sufficient Factual Matter – Rule 12b(6) Page 66: Defendant’s Stale Bread Theory Page 68: Unchallenged Allegations Construed Favorably to the Pleader Page 69: Defendant’s Partial Record of the Facts
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VIEWPOINT DISCRIMINATION Page 72: 1st Amendment Free Speech ‘Viewpoint Discrimination’ in a Government Run Free Speech Forum Page 72: View Point Discrimination Page 77: Viewpoint Discrimination & ‘Practice’ in LeBron v. AMTRAK Page 78: The Constitutional Right to be Free From Political ‘Viewpoint’ Discrimination’ Page 78: Viewpoint Discrimination and the 5th Amendment EQUAL PROTECTION UNDER THE LAW Page 80: ‘Class of One’ Equal Protection Under The Law Page 80: Plaintiff was ‘Similarly Situated Page 82: ‘Class of One’ Page 83: ‘Rational Basis’ Page 85: The Rational Test Page 86: National Portrait Gallery’s On Going ‘Practice’ is Binding Page 88: Violation of Congressional Statute 20 USC 75b Page 88: Controlling Guidelines Page 90: Controlling Guidelines Comparison 5TH AMENDMENT VIOLATIONS Page 92: 5th Amendment Deprivations Without the Due Process of Law Page 93: “NO GOOD”, Smithsonian National Portrait Gallery Director Kim Sajet
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Page 95: Standards, Standards, Standards Page 95: ‘Items that truly fill a gap’; one of the ways the ‘Increase of knowledge’ happens at the Smithsonian through Citizen Beneficiary Participation Page 96: Defendant’s ‘Government Speech’ Argument Benefits Plaintiff Page 97: The Portrait of the 5th Amendment’s ‘Due Process of Law’ Page 98: Summun Standards Page 99: Walker Standards Page 101: PETA Standards Page 102: Pulphus Standards Page 104: The Portrait of Political Animus And Its Effect on the ‘Due Process of Law’ Page 105: An Example of a Letter of Denial Written By Defendant Sajet Page 108: Defendant Kurin’s Violation of the 1st Amendment & 5th Amendment’s Deprivations without the ‘Due Process of Law’ Page 108: Vicarious Liability Page111: Reasonable Officers STANDING ON SOLID GROUND Page 112: Standing Rule 12b(1) Concrete Interests & Personal Benefit & Injuries in Fact Page 113: Concrete Benefits Deprived By Defendants’ Actions Page 116: How do these Rights Operate in the Smithsonian? ‘Items that truly fill a gap’; one of the ways the ‘Increase of knowledge’ happens at the Smithsonian through Citizen Beneficiary Participation
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Page 117: Rights Of Participation Page 118: Concrete Injury Page 119: 1st Amendment ‘Free Speech’ Injuries Page 120: Ignored Opaque Standards Page 120: Breach of Fiduciary Duty in the Will of James Smithson is a 5th Amendment Deprivation of ‘Property’ rights without the Due process of Law, Constituting an Injury in Fact. Page 121: Elected Officials & Elected Representatives of upward of 200,000 Constituents/Trust Beneficiaries Endorsed the 20 Page Trump Portrait Application including Smithson Trustee, Congressman Tom Reed. Page 123: Injury Caused Directly By Defendants or Fairly Traceable page 124: Injuries Likely to be Redressed by the Relief Sought Page 125: Motivation-‐Anti-‐Trump Political Animus & Bivens Action Page 126: A Cardinal Difference Between Defendant’s Cited Cases And Plaintiff’s Case Page 127: Motive Test BIVENS ACTION Page 128: Bivens Remedy Must Be Permitted for Redress of Constitutional Violations Page 129: No Special Factors Counseling Hesitation Page 130: Bivens not FTCA or APA for Violations of the Constitution by Federal Officers
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Page 130: Jury Trials in Bivens Actions Not in FTCA Case Page 131: Defendant’s ‘Entity’ Theory the basis for Denying Constitution Constraints Page 132: Bivens Remedy And The Preeminent First Amendment Page 133: Bivens Remedy And the Fifth Amendment NOT QUALIFIED FOR IMMUNITY Page 134: Defendant’s Actions Do Not Qualify For Immunity Page 135: Defendant’s Declaration of Free Speech at the National Portrait Gallery Page 137: Testing for Qualified Immunity Page 138: Clearly Established at the Time Page 140 Defendant Sajet’s Hesitation Evidence of Consciousness of Wrongdoing Page 143: ‘Motive is a question of fact that must be decided by the jury’ Page 145: Disputed Facts Still To Uncover to Confirm Defendant’s Political Animus FTCA Page 151: Motion to Withdraw FTCA Claims MOTION TO DISMISS MUST BE DENIED Page 154: Defendants’ Motion To Dismiss Must Be Denied! CONCLUSION Page 158: Conclusion
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Integral And Intrinsic Documents Relating to the Amended Complaint 1. Official Letter of denial of petition to Bishop Jackson from Director Kim Sajet. 2. Letter of Appeal including others related documents addressed and sent to the Smithsonian Board of Regents by Julian Raven. 3. Official Letter in response to Julian Raven’s ‘Letter of Appeal’ to the Smithsonian Board of Regents, from Dr. Richard Kurin. 4. Letter by Julian Raven in response to Dr. Richard Kurin’s letter. 5. Original Application to the Smithsonian National Portrait Gallery. 6. Letter and complaint to Smithsonian Affiliations Director Harold Closter. 7. Email to Rockwell Museum Director Kristin Swain. 8. Letters of Recommendation from Elected New York state Officials in support of the Trump portrait ‘Unafraid and Unashamed’ by Julian Raven.
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Julian Marcus Raven 2524 County Route 60 Elmira, New York 14901 December 7th 2016 SMITHSONIAN NATIONAL PORTRAIT GALLERY PORTRAIT DECISION APPEAL Office of the Regents Smithsonian Institution 1000 Jefferson Drive SW #113 Washington, D.C. 20560 To The Board Of Regents Of The Smithsonian Institution CC: Chief Justice John G. Roberts, Jr.; CC: Vice President Elect Mike Pence; CC: Vice President Joseph R. Biden, Jr.; CC: Senator John Boozman; CC: Senator Patrick J. Leahy; CC: Senator David Perdue; CC: Representative Xavier Becerra; CC: Representative Tom Cole; CC: Representative Sam Johnson; CC: Barbara M. Barrett CC: Steve Case; CC: John Fahey; CC: Shirley Ann Jackson; CC: Robert P. Kogod CC: Risa J. Lavizzo-Mourey; CC: Michael M. Lynton; CC: John W. McCarter, Jr. CC: David M. Rubenstein Porter N. Wilkinson, CC: Chief Of Staff To The Regents, Rachel Parker, CC: Deputy Chief of Staff to the Regents CC: Smithsonian Legal Counsel Department P.O. Box 37012, Washington, DC 20013-7012 CC: Director Kim Sajet Smithsonian National Portrait Gallery Your Eminent Members Of The Board Of Regents Of The Smithsonian Institution, My name is Julian Raven, artist and painter of the Trump Portrait ‘Unafraid And Unashamed’. It is with the most pressing urgency that I am writing you due to the fast approaching inauguration of President Elect Donald J. Trump on January 20th, 2017. The reason for the urgency is my intention of showing my painting as a historic tribute to Mr. Trump’s unprecedented election campaign at the National Portrait Gallery. Due to the purpose of the National Portrait Gallery to be a pictorial record of individuals who have “…made significant contributions to the history, development, and culture of the people of the United States, and of the artists who created such portraiture and statuary." i It is without question that an artistic, pictorial record must be made at the National Portrait Gallery that embodies, captures and expresses this most remarkable presidential election campaign because of its unquestionable contribution to our remarkable American history!
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There will be many portraits painted of President Elect Trump, there are many portraits of Mr. Donald Trump as a private citizen from before the campaign, but there is only one positive proTrump portrait/painting of note and recognition. The painting was created by a private citizen of these United States, back in the summer/fall of 2015. It embodies the candidate, vision, passions, desires, hopes, symbols, patriotism, faith and will of the American people by graphically and prophetically depicting Mr. Donald J. Trump as the man who would become the 45th President of the United States in a dramatic composition whose narrative embodies our most cherished and sacred aspirations as Americans. This historic creative journey began back on July the 9th 2015, when most people considered Mr. Trump’s candidacy to be a joke! The details of the journey are attached as part of the application that I sent to the Director of The National Portrait Gallery, Kim Sajet. Due to the unfortunate response to my application from Director Sajet I have written this appeal at her prompting, since Director Sajet’s final words to me were, ‘Your application will go no further, I am the director and you can appeal it all you want.’ This very surprising and disturbing personal phone call from Director Sajet took place on December the 1st, 2016 at 11:34 A.M. and it lasted for 11 minutes.ii Without any cordial, polite, official, formal, educated, substantive or even procedurally accurate written decision or response from the Director of the National Portrait Gallery to my 20 plus page application that was forwarded to her by the Director Of The Affiliations Department Harold Closter, my application was rejected! The application included official letters of recommendation from New York elected representatives of over 200,000 citizens; Congressman Tom Reed, Senator Tom O’Mara, GOP chairs, Elmira Mayor Mandell, Councilwoman Moss and others including radio host Frank Acomb and Art Collectors Davis/Gates. Director Sajet embarked on an undocumentediii, unofficial, biased and personally opinionated rejection of my painting. One would think that the very standards for acceptance of portraits established by Congress in 1963 would be at the forefront of Director Sajet’s objections? It would also seem appropriate that a work of art such as mine be examined in person due to its scale. The director’s first objection was about the painting’s size! My protestations at the arbitrariness of her objection produced an eventual backtracking and apology from the director! Nowhere in the established standards by Congress for acceptance for a painting was scale ever mentioned! But due to the personally biased opinion that was rendered by Director Sajet, scale was her first mistake! The size, nearly 7x15 foot painting (7” x 8’ x 16’ and nearly 300lbs in weight in its beautiful decorative red, white and blue frame) is part of the Trump narrative in the portrait, which obviously Director Sajet cared little for! As an artist who paints huge paintings in my 6000 square foot studio in upstate New York and who has always enjoyed Donald Trump’s propensity for doing things ‘YUGE!’, our personalities coincided! ‘YUGE’ was to become part of the historic campaign and part of many of Mr. Trump’s comments. He became the master of ‘YUGE’, his lifestyle, his architectural exploits, his plane and ultimately his campaign can be described as ‘YUGE!’. Thus a portrait/painting that appropriately expresses Mr. Trump’s personality would by nature be ‘YUGE’! Since the experience of seeing the huge (105 sq. ft. surface area.) painting in person cannot in any way be appreciated through highly reduced and compressed digital images of only a few square inches on an iPhone or comparatively small computer screens, an informed, honest and objective decision should be made after seeing the painting in person, one would think?
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The many, many, incredible personal responses to the painting testify to this reality. As the artist, I have had the privilege to watch this happen across the country from NY to LA and throughout the 2015-2016 election campaign. I have been moved by the way in which the painting produced so many powerful and positive emotional responses. Even by those who did not like Mr. Trump, obviously not all of them, but I received so many positive compliments even from Bernie Sander’s supporters, Black Lives Matter protesters, democrats and independents. To note the respect the painting has commanded I share this other story. Over the past 7 months a 12x25 foot vinyl copy of the painting has hung on the front of my art studio, which is located in a low income, highly democratic area. And although the banner and I were initially threatened, 7 months later the banner remains intact! Art has the power to transcend the typical political discourse, producing positive dialogue and understanding. The positive, visionary hope filled image of the portrait inspires people, commands respect and educates since it is layered with symbolic imagery that tell our American story! Our Nation is in need of healing and restoration. My painting is a tool that has accomplished that, in the many conversations I have had and to the degree that it has been seen across this country. The painting’s destiny to continue this work now rests in your hands. With this appeal, I am requesting that the Board Of Regents issue an immediate ‘stay of judgment’ in the hasty and biased rejection of my application by Director Sajet. I hereby petition that your Eminencies give an honest and thoughtful consideration to the remarkable and historic story that accompanies the painting. That non-biased and artistic opinions be given to the dramatic nature of the manner of inspiration and spiritual depth through which I was inspired to paint the painting. Also the nearly 600 hours of at times agonizing artistic struggle in the execution of the painting be included in the consideration. Consideration must be given to the resulting effect and the life transforming power upon my personal life as an artist, patriot, political activist and newborn citizen of my new home, the United States of America. I request that consideration be given to the totally unique nature of the painting, since it is not a stylistic reproduction of any other portrait or artistic period. It is unique, and I can testify to that, having been to all of the major museums in England, France, Holland, Spain and New York and personally seen a great number of the worlds most acclaimed artworks, as well as having studied the history of art. I request that thoughtful and respectful consideration be given to the letters of support by elected representatives and others who have personally witnessed this story in one degree or another. Also, that the historic journey and the way the image of the painting was woven into the fabric of this historic presidential campaign be weighed in this process.iv Finally, that based upon the standards for acceptance for portraits to be accepted into the National Portrait Gallery and because the Congress of The United States has decreed; “…the standards for accepting portraits varied considerably from other galleries. Even today, in every instance, the historical significance of the subject is judged before the artistic merit of the portrait, or the prominence of the artist.”v, that this standard be applied to my painting. Since personal bias can affect one’s judgment, if the predetermined Congressional standards are ignored in these matters of historic artistic determination, we must remember that this process was established for the sole purpose of securing a historical and pictorial archive of our American story for this or any other particular time in our history. And if yourselves or any other individual can find a portrait that better represents, captures and embodies the dramatic election campaign of now President Elect Donald J. Trump then by all means I will accept the
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determination of the Board Of Regents in that selection. Most Eminent members of the Board Of Regents, you have been entrusted as civil servants with a grave, honorable and patriotic duty to most accurately and truthfully tell our story to our children and to our children’s children! Please do not hesitate to contact me with any questions. And please consider this appeal also as an open invitation to my art studio in Elmira, New York to personally experience the Trump Portrait and Painting ‘Unafraid And Unashamed’ to assist in making your final decision Please be considerate of the fact that January 20th, 2017 is fast approaching and it would be most fitting to pictorially and artistically celebrate and coincide with this historic inauguration of the 45th president Of The United States, President Elect Donald J. Trump, by having my portrait on display in the National Portrait Gallery. The National Portrait Gallery established precedent for this type of tribute and event on January the 17th, 2009 when the grassroots produced Obama ‘Hope’ poster by Yosi Sergant and artist Shepherd Fairey was displayed just in time for then President Elect Barack Obama’s historic election campaign! Yours sincerely, Julian Raven
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PLEASE FIND ATTACHED: Smithsonian Application Letters Of Recommendation The Press Release The Radio Interview Link Various emails
FOOTNOTES: i http://siarchives.si.edu/history/national-‐portrait-‐gallery ii
iii Personally I would tend to believe that the phone call record exists somewhere in
the NSA or some other data and intelligence recording facility! iv www.thetrumpportrait.com v http://siarchives.si.edu/history/national-‐portrait-‐gallery
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Smithsonian Institution Dr. Richard Kurin Acting Provost/Under Secretary for Museums & Research
December 9, 2016 Mr. Julian Marcus Raven 2524 County Route 60 Elmira NY 14901 Dear Mr. Raven: We appreciate receiving your letter of December 7 to the Smithsonian’s Board of Regents, regarding your proposal to exhibit your portrait of President-elect Trump at the National Portrait Gallery. The Board has referred your letter to me for a response. Consistent with recent tradition, the Gallery has long planned to hang a portrait of the President-elect before his Inauguration. A portrait of Mr. Trump from the National Portrait Gallery’s collection will be on display at the Gallery beginning January 13, 2017. The decision about whether to acquire or display a work of art at the National Portrait Gallery rests in the first instance with that museum’s director, curators and historians. I have spoken with Kim Sajet, director of the National Portrait Gallery, and concur with her decision to decline your offer and continue with the museum’s plan to display a portrait of Mr. Trump from our collections. Thank you for your interest in the Smithsonian and the National Portrait Gallery. Sincerely,
Smithsonian Castle on the National Mall 1000 Jefferson Drive, SW, Art Room 219 MRC 040 PO Box 37012 Washington DC 20013-7012 (202) 633-5240 Telephone (202) 357-7031 Fax kurin@si.edu Email
Julian Marcus Raven 2524 County Route 60 Elmira, New York, 14901 December 11th, 2016 607-215-8711
Dr. Richard Kurin, Acting Provost and Under Secretary For Museums & Research Smithsonian Castle on the National Mall 1000 Jefferson Drive, SW, Art Room 219 MRC 040 PO Box 37012 Washington D.C. 20013-7012 (202) 633-5240 (202) 357-7031 Fax Kurin@si.edu
Dear Dr. Kurin, I did receive your letter emailed to me late on Friday the 9th of December 2016 in the afternoon. Below you will find my response. Please find your comments in red, mine are in black. “We appreciate receiving your letter of December 7 to the Smithsonian’s Board of Regents,” It was not just a letter, but a letter of “Appeal” consisting of over 20 pages in length and in response to the arbitrary, biased and procedurally illegal objections to my painting by Director Kim Sajet, which are clearly laid out in the appeal and Press Release. My primary email version was sent to the Chief Of Staff Wilkinson with the request that it be forwarded to each member of the board. Is this email of yours a response from each member of the board? Are you speaking in the capacity as an appointed member by Congress to express such a sweeping opinion? Or was my request to forward the ‘Letter of Appeal’ ignored and given to you for a response? It seems strange to me that again in such a short amount of time, by someone not addressed in the email and in such a short and vague manner my formal appeal was not attended to by the right persons, since addressing any of the information directly in the appeal was not included in your letter! For your information, hard copies are on their way to each member of the Board of Regents so that they can attend to this matter as they were appointed. All of this has come about because Director Kim Sajet failed to give due consideration and due process to my application to the National Portrait Gallery as documented. “…regarding your proposal to exhibit your portrait of President-elect Trump at the National Portrait Gallery. The Board has referred your letter to me for a response.” This reply is another hasty attempt to continue to deny me my rights as a member of the American Citizenry to a fair hearing and redress in the matter of my grievances that has been presented before each esteemed member of The Board Of Regents. It is another insult both to the founder of the Smithsonian Mr. James Smithson whose dying wish, was that an institution bearing his name be established for the ‘increase and diffusion of knowledge.’ and to the clearly stated standards of consideration established by congress in 1963. Nearly at every step of this application process so far, has been met with a disposition that shows complete and utter disregard, indifference and a willful dereliction of duty regarding the expressed Will Of The People, in this case expressed by the official support of my application to the Smithsonian National Portrait Gallery by elected New York representatives of over 200,000 people! There seems to be a continual effort to refuse my application before it has been evaluated by the Congress established ‘process’ that should be guided by established principles that should be honored and followed! It behooves me that this ‘process’ is continually alluded to and at the same time the ‘process’ is continually ignored?
“Consistent with recent tradition, the Gallery has long planned to hang a portrait of the President-elect before his Inauguration.” It has only been just over a month since Mr. Trump became President Elect, and you say the National Portrait Gallery has “long planned”; please supply me with documentation to that effect at your earliest convenience. With the dramatic win by Mr. Trump, one would have thought that this ‘long planned’ event would have been made public as soon as it was planned as obviously it indicates that the Smithsonian is excited about this historic event and its ability to ‘Increase and diffuse knowledge.’ Why would a “long planned” event involving showing an irrelevant and dated photo of Donald Trump justify completely ignoring a work of art that specifically deals with the election, like the Obama poster did? Why is it only now that the Smithsonian is announcing this after my application highlighted the NPG established precedent by showing the Obama poster on January 17th, 2009? Also, since the subsequent rejection of my historic portrait has come to light in the media, why since it was ‘long planned’ was it not mentioned before my application on the 1st Of December 2016? Ah yes, I get it, it must have been a great secret because of the surprise and suspense surrounding such an exciting ‘long planned’ event, since such a monumental and inspiring work of art, an old, 1989 photo of Donald Trump, to quote the Smithsonian press release, “tossing an apple in the air with his right hand” was going to go on show! Why would this ‘recent tradition’ be so prohibitive and rigid to even considering another portrait of Donald Trump that happens to be something that reflects the recent dramatic election rather than a photo from 1989, which is anything but relevant to the election? It is akin to you showing a photo of Donald Trump as a baby to commemorate this historic and unprecedented Presidential win that is pregnant with the massive potential increase and diffusion of pictorial knowledge! Since I imagine the ‘recent tradition’ alludes to the January 17th, 2009 showing of the election campaign Obama poster, why would not that same tradition demand a politically relevant work of art be shown like the Obama poster was? Why would the Smithsonian which ‘owns’ 8 Obama portraits, according to Director Sajet, be so closed to the idea of showing or even acquiring another Trump Portrait, thus increasing and diffusing pictorial knowledge? And why would it be so terrible to have 2 or more portraits on show at the same time for the inauguration for this most historic event? Why not show them all and include this undeniably prophetic, patriotic, symbolic and now historic portrait of now President Elect Donald J. Trump? “A portrait of Mr. Trump from the National Portrait Gallery’s collection will be on display at the Gallery beginning January 13, 2017.” So the Smithsonian NPG received and showed, whether by gift or by acquisition, a poster/portrait of then President Elect Obama back in 2009 before the inauguration of then another historic Presidential election and displayed such to commemorate and celebrate the massive increase and diffusion of pictorial knowledge, correct? And regardless of the questionable story behind the creation of the poster, one cannot deny its historicity and relevance to the Obama campaign and so rightly it should have been shown. It would have denied the art world a voice in sharing in that historic moment that so many millions of Americans celebrated. When it comes to my application to show an equally relevant and historic presidential campaign work of art, mine is denied. I an not offering my work as a gift or requiring that you purchase or even consider my work for purchase, it is simply to show the work for the inauguration. My painting may not have received the same degree of exposure that the Obama poster did and there are reasons for that. The same resistance to showing my work of art at the Smithsonian was experienced since the first day it was unveiled back on November 1st, 2015. The hostility and hatred in Academia, Hollywood, The Media and especially the Art World towards Mr. Trump is more than well documented and that attitude was also directed at my painting! But regardless of the ‘degree’ of recognition, there is no doubt to the objective and honest mind that the sole, relevant and recognized pro-Trump work of art, portrait and painting from the historic Trump campaign was my painting ‘Unafraid And Unashamed’! “The decision about whether to acquire or display a work of art at the National Portrait Gallery rests in the first instance with that museum’s director, curators and historians. I have spoken with Kim Sajet, director of the National Portrait Gallery, and concur with her decision to decline your offer and continue with the
museum’s plan to display a portrait of Mr. Trump from our collections. Thank you for your interest in the Smithsonian and the National Portrait Gallery, sincerely Richard Kurin.” Mr. Kurin, again without giving a substantive educated critique, with no historical commentary, no election relevance or significance, no consideration as to the “increase in knowledge’ that would come, no consideration of the Museum’s standards for acquiring/showing a portrait, you concur with Director Sajet in her unfounded and illegal objections to my application. If you were just a private gallery, you could be so arbitrary, but the Smithsonian National Portrait Gallery belongs to ‘We The People’ and so you ultimately work for us. And so it will be determined by the appointed representatives/members of the Board Of Regents who also work for ‘We The People’ of the United States of America to serve our interests in the creation of our pictorial historical narrative for us and for our children’s children to enjoy. “There is a process we go through when we acquire a work of art and it has to be decided by the museum’s curators and director, so it’s a process, and we really don’t need to go through such a process since we already have our own.” Linda St. Thomas http://www.mytwintiers.com/news/local-‐news/smithsonian-‐institution-‐rejects-‐elmira-‐artists-‐ trump-‐painting/617527260 Here the Smithsonian has taken another approach in its reasoning for the objection to my painting. Here the ‘process’ again is mentioned as binding and yet in my case it is ignored since the consensus seems to be that the Smithsonian has enough art relating to Donald Trump. Amazingly the Smithsonian spokeswoman said you ‘really don’t need to go through such a process because you already have enough art of your own?’ Where is the ‘increase and diffusion of knowledge’ in such a statement? The application ‘process’ is voided, ignored and bypassed because you have enough pictorial knowledge of Donald Trump from 20 years ago? This statement would indicate that the Smithsonian National Portrait Gallery only needs a few old paintings or photos of any subject and that is enough! Rejecting the idea that an INCREASE of new art, new photos, new portraits, new PICTORIAL KNOWLEDGE of historic figures and historic events are relevant and necessary to accurately tell our American story. It is like digging up an old photo of the Twin Towers from when they were built and showing that image alone to describe the horrors of the 911 terror attacks and of their destruction, willfully ignoring and censoring any image, this any pictorial knowledge that actually shows the attack, subsequent destruction, the chaos that ensued, the reconstruction and then ongoing yearly memorialization! My goodness, what type of an institution has the Smithsonian become? So now art submitted by the People to the Smithsonian Institution, the museum that belongs to the People for consideration for becoming part of the pictorial historical narrative of the American People during this historic election of Donald J. Trump is refused because you already have enough images? Amazing, with the spokeswoman’s comments the Smithsonian is now even barred from acquiring any more Trump related artwork since it has officially stated that it has enough! Wow, in Trump’s case 4 portraits are enough but in Obama’s case 8 portraits! But then again, precedent by acquisition would indicate that at least 8 Trump portraits would need to be acquired to be fair to the presidential collection? It is clear to me that Director Sajet’s original series of personal and unfounded objections, bypassed the requirement to have the consideration pass through the ‘process’. So in effect you and Director Sajet have agreed, that my painting is not even worthy of qualifying for the ‘process’, since neither of you have demonstrated in any way how my painting does not meet the standards for consideration and acquisition established by Congress. It has been refused regardless of the established criteria for such a refusal! I would accept such an arbitrary refusal from a private institution where there is no recourse or process of appeal. Where on a whim somebody because of personal taste, prejudice or utter dislike can refuse a work without the slightest consideration. But since the Smithsonian Institution belongs to the people of the United States, every consideration will be given to every possible avenue of application and appeal to ensure that every respect and every detail of due process is afforded me as determined by the laws that govern the United Stated Of America and its institutions.
“A portrait of Mr. Trump from the National Portrait Gallery’s collection will be on display at the Gallery beginning January 13, 2017.”
By failing to even consider my application, by failing to show my historic work of Art, which is directly related to the election of Donald J. Trump, the Smithsonian has in effect barred any relevant commemorative expression in the arts from taking place and has abdicated its responsibility to be an institution established for the ‘Increase And Diffusion of knowledge’. The Smithsonian rather seems to have become an irrelevant and dated museum, using dated material or old pictorial knowledge, where the increase and diffusion of knowledge has ceased, one of the Achilles heels of institutions built on archival knowledge. Some of the 60 plus million people who voted for Donald Trump, who will travel to D.C. for the inauguration and there after will have a 20 year old photo graph of Donald J. Trump “… tossing an apple up with his right hand.” to see at the Smithsonian! Wow! How intellectually stimulating, how enlightening and O my, how exciting! Mr. Kurin, in all honesty how many people do you think are going to go out of their way to see an old, dated and uninspiring photo of Donald Trump throwing an apple in the air? Just on a purely business level this decision seems to want to fail or keep people away!
Sincerely, Julian Raven
Julian Raven, Artist 714 Baldwin St., Elmira, New York, 14901 November 15th, 2016 607-‐215-‐8711 Executive Director, Kim Sajet The Smithsonian National Portrait Gallery CC: Chief Curator, Brandon Brame Fortune Curatorial Department 8th St NW & F St NW, Washington, DC 20001 CC: Kristin A. Swain, Executive Director Of The Rockwell Museum Of Art CC: Brian Lee Whisenhunt, Incoming Executive Director OF The Rockwell Museum Of Art CC: Patty Campbell, Smithsonian Liaison at the Rockwell Museum Of Art 111 Cedar St, Corning, NY 14830 Application To Show The Trump Portrait/Painting, ‘Unafraid And Unashamed’ By Artist Julian Raven at the Smithsonian National Portrait Gallery For The Inauguration of President Elect Donald J. Trump on January 20th, 2017.
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The Presidential Portrait/Painting has an incredible backstory of inspiration and creation, complex narrative told through layered symbolism and a historic grassroots campaign journey in support of President Elect Donald J. Trump. The painting is predictive in that it depicted Donald J. Trump as the 45th President of the United States of America, it was created in the summer of 2015. My name is Julian Raven; www.julianraven.com, I am a professional artist residing in Elmira, New York. With the historic election of Mr. Donald J. Trump, soon to be inaugurated as the 45th President of the United States of America, it is only fitting that at his inauguration, American art history and the art world be included. As the artist who painted the prophetic, symbolic, patriotic and historic Trump portrait/painting ‘Unafraid And Unashamed’ I respectfully submit my request, to have my work on show at the Smithsonian National Portrait Gallery for the presidential inauguration on January the 20th, 2017. The unique and compelling story of the massive, nearly 8x16 foot work of art in its final finished framed dimensions, must be told since it is the only painting to have been created at the beginning of the campaign back in the summer of 2015 by the grassroots and to have predicted the Trump Presidency and then to have been part of a historic grassroots political campaign. As an artist, I was inspired to create this portrait never having met Donald Trump. Alone and in my 6000 sq. ft. art studio in Elmira, New York, I spent nearly 600 hours wrestling with this monumental task. Never have I had such a powerful experience of inspiration and the subsequent burning and consuming desire to embark on such a project. It is the thing of artist’s dreams to have the level of spiritual intensity rest upon me as it did. “The mission of the National Portrait Gallery is to tell the story of America by portraying the people who shape the nation’s history, development and culture.” In harmony with this mission statement, there is no other individual on earth right now with the prominence, fame and historic impact like President Elect Trump and there is no other painting on earth that corresponds with this most significant time in human history! In 2009, the National Portrait Gallery established an important presidential campaign art precedent. With the showing of the Obama graphic ‘Hope And Change’ commissioned by Yosi Sergant and created by artist Shepherd Fairey on January the 17th, 2009, the relevant and pertinent historic work of art celebrated in parallel the inauguration of President Elect Barack Obama on January the 20th, 2009. http://face2face.si.edu/my_weblog/2009/01/now-‐on-‐view-‐portrait-‐of-‐barack-‐ obama-‐by-‐shepard-‐fairey.html Now on the heels of another unusual and totally unique Presidential election result, President Elect Donald J. Trump’s totally unprecedented election has its own historic work of art to celebrate his inauguration.
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The Trump Painting & Portrait ‘Unafraid And Unashamed’ story written on August 26th, 2016 “It began on July 9th, 2015. As I was looking intently at a photo of Donald Trump and listening to him speak, I hear the words 'Unafraid And Unashamed' ticker tape through my mind as the image of a Bald Eagle swooped down to snatch a falling American flag and flag pole. I began to find images of eagles online snatching fish out of the water to see if I could find the right posture and attitude I could see in the vision. At the time I was busy working on other projects in my studio. I went about my way, but the image did not leave my mind, it was seared onto the screen of my mind. It began to grow within, increasing in pressure as time passed, 'paint the Trump painting, Trump painting, Trump painting...' it was as if the image was saying to me, ‘get on with it’….the pressure continued to increase! On August 20th, I finally sat down at my computer to work on the image of the Trump Painting. I worked on creating an eagle from the images I found in July that was both snatching and screaming. My 13 year old daughter Victoria, came into my office and asked me what I was doing working on an eagle, since I had told no one what I was thinking. Also it was a departure from my recent abstract expressionist work! Victoria thought I was going to build a sculpture of the eagle, since at that time, I was working in steel. I told Victoria that I was working on a painting in my mind, without telling any details. Victoria left the room and then did an about face and said out of the blue, 'Dad, why don't you paint a painting of the Eagle and give it to Donald Trump so WHEN he becomes President he can hang it in the White House.' I was stunned by the utterance, out of the mouth of babes the spirit now spoke to me. I sat there staring at her innocent and beautiful face, I was amazed, speechless and in awe! She shrugged her shoulders and left the room! Victoria had no idea I was planning to paint a painting about Donald Trump, which included a Bald Eagle; somehow she connected the dots and spoke! The very next morning, August the 21st, I went to CNN online to see what Mr. Trump was saying that day. There was a video segment about a Time Magazine photo shoot at Trump Tower. I pressed play, as it was about a 'visitor' Trump had that morning at Trump Tower. Who was this visitor I wondered? Suddenly, as the video rolled, there on the screen, in front of me was a photo of Donald Trump standing in his office, that very morning with a Bald Eagle perched on his arm! I was stunned! I stared at the screen in disbelief. The lighting in the photo was very strong and it looked superimposed. I actually thought it was a hoax, a fake, a Photoshop of Donald Trump with a bald eagle. That somehow, someone knew what I was thinking about The Trump Painting and was fooling with me....I continued to stare at the screen in disbelief! I felt like a car had hit me, the jolt was so powerful, it really messed with my perception; I could not believe my eyes! WOW! WOW! WOW! I was dumbfounded by this staggering series of events! Think about it for a moment, for nearly six weeks I had been thinking daily about an image of Donald Trump's face staring out at me, a Bald Eagle rescuing symbolically the falling American flag, as I daily tried to compose the Trump Painting on the
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screen of my mind. This could have just been a good idea I had, painting a painting of Trump could be a smart move as an artist, it could be a 'big deal' for my career...But I was very busy working on other projects, steel sculpture in particular which was very exciting, more so than what was going on inside my head. But the image of the Trump Painting replayed itself daily in my mind. The internal pressure had eventually increased to the point where I had to sit down and start actually working on the elements in the Trump painting in the physical sense. So finally I am at my computer working on the Eagle, creating a snatching & screaming Eagle. This is the first day that I sat down to work on developing image, the only day since July 9th. Then out of nowhere my daughter Victoria engages me about the Eagle and then says what she said out of left field that very night. I knew then I had to paint the painting. And then, the very next morning, I see the photo of Donald Trump in his office with the Bald Eagle perched on his arm, then the video of the Bald Eagle sitting on his desk. Amazing! I nearly fell off my chair! There were 21 candidates running at that time on both sides, Republican and Democrat. Why was it that only Trump decided to take a picture with a Bald Eagle that morning? None of the other candidates took pictures with a Bald Eagle, as if this was some ritual that presidential candidates do when running for office. Even for Trump it was unusual. How many photos exist of Trump with an Eagle perched on his arm? Just one! If Trump was a collector of Eagles it would not be that odd, but on that day, August 21st, 2015 Donald Trump alone does a photo shoot with the Bald Eagle. People I think interpret unusual series of events as we seek to discover God's guidance, in our efforts into tap into and understand the plan for our lives and for our tomorrows, at least that is what I do. There are ideas, visions, plans etc. we can have within ourselves, that when they are confirmed on different levels from the outside without anyone knowing what is going on inside, it indicates to me an intervention from a Source greater than self since it is now out of our control. Could this all have been coincidence or is the Hand of Destiny really in control, was this a spiritual revelation indicating Trump would become the 45th President of the United States? Remember this was last year, 2015 when Trump was up against 16 other republican candidates! What does this all mean? What was Trump trying to say? Does this series of 'events' tell a story that is speaking of future events? Remember at that time Donald Trump was not being taken seriously. At that time and until this day Trump's candidacy has been mocked, ridiculed and 'expertly' explained as continually imploding by all manner of political professionals, commentators, experts in the media, talking heads on TV and radio pundits! Trump has defied political gravity; Trump won the Republican nomination and defeated 16 other professional and formidable political opponents and this he did as an outsider, businessman and political novice never having been elected! Trump's candidacy has been nothing but meteoric, historic and prophetic. This story of the inspiration and creation of the Trump painting 'Unafraid And Unashamed' speaks to that very fact and is a physical 'sign' that captures this historic presidential race like
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nothing else by painting a picture of the future. On this date August the 26th, 2016 the Trump painting which was completed last year in September 2015 so far has painted a remarkable picture of what we are seeing taking place right now. The contents of the painting, the symbols contained all point to Donald Trump as the next President of the United States of America! We will know on November the 8th, 2016. Please enjoy the rest of the story about the creation of the Trump Painting and how the inspiration of this painting opened up a door to a grassroots political campaign that has taken the artist, New Born citizen and Alternate New York Delegate Julian Raven from coast to coast.” Painting The Portrait Abstract expressionism has been one of my techniques in my personal search for the creative language that best expresses and captures the intensity and passion of my heart. The excitement, energy and joy the ‘Drip & Splash’ technique creates within me is exhilarating. But it is limited in its ability to convey detailed information. When considering how I was going to paint the Trump Portrait I considered my advanced ‘Drip & Splash’ technique. I had painted back in 2014 a 7-‐foot portrait of Alan Henning, the British cab driver murdered by ISIS in Syria, called ‘The Power Of Kindness’. This laid the groundwork for the Trump Portrait and I was close to painting the massive painting with drips of paint, but the details in my mind seemed to require grater clarity. The Henning portrait was extremely challenging, and very hard to control. So I rightly decided to pick up my brushes again and discover the challenges of using tiny brushes when one is used to throwing gallons of paint around! Ha-‐ha, it was like asking someone to paddle their canoe in a pond after white water rapids were their ‘thing’! I did not plan the painting other than I knew that the head would be full size, for me that was nearly 7 feet tall. I did not want the body since it was the face I saw in the photo, it was the expression of determination, and the stare of Trump saying I am going to get it done! I am tough, determined and ready to rescue America! The eagle had to be at least 8 feet; it ended up being 9 feet long approximately. It was a great challenge for me since I did not know exactly what I was going to paint, I trusted the spirit of inspiration to guide me and it did. I literally followed the impulses in my heart. I had waited to so long to start the painting that when that series of events came, I hade only begun to work on the eagle, creating a snatching screaming bird, there was nothing else. So the morning of the CNN video, I left my home and built the stretcher in my studio and began painting and did not stop until it was done. I could not stop myself. I worked the painting out on the canvas. That is probably why it took me so long because I redid portions of it over and over and over and over again! If x-‐rayed, the painting would look like a sketchbook! For nearly 6 weeks I was a different man. I could not interact with my family normally nor attend to household responsibilities. Thank God I have a patient and
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wonderful wife and family! I hardly slept, which caused me to drink unusual amounts of coffee to keep me awake. It was a totally consuming work. I did not see friends, or tell friends what I was doing, not even my mother knew what I was doing! Night and day I worked. It was brutally hot some days. Then, as the painting’s end was in sight, it was autumn and quite chilly. It was an experience that has changed my life forever! I tried to create a beautiful composition of fantastic lines. Carefully, I created interesting negative spaces and I was very careful not to pack the composition and lose its feeling of space. I wanted the painting’s style to be interesting to children; one that everyone could enjoy -‐ the artistically informed as well as the average person. This was one of the reasons I did not use the drip technique. My children and my wife were the only people who knew what I was doing for the two months that I ‘fell off the radar’. They were both my sounding board and my encouragement. The painting had to be a bold reflection of Trump in its scale, intensity, drama, energy and bold coloring. It developed into this cosmic global vision as seen from above. Donald Trump’s impact globally already speaks to the earth being used symbolically. It is dreamlike, even surreal as it speaks of the dream/vision of the fall and rescue of America under President Trump, but it also is a dream since it is set at the waking hour, the time of dreams, as the sun rises in the east. Even though painting is layered in Theistic symbolism, since I am a follower of Jesus Christ, and since I was inspired, I made sure it did not read as a religious painting. That type of imagery can distract and ‘pigeon hole’ the work into a sub category that then limits the amount of people who will enjoy it. Most of the elements in the painting are telling a story. Even Trump’s hair is a meteoric symbol that actually is not sitting on his head. This speaks to the ‘meteoric’ rise of Trump and his hair being such a feature of his personality. I even deliberately made the roots visible, since at the time there was so much debate as to whether his hair was real; the painting shows it being real! The long stretched flag developed from a simple falling flag to a fluttering, reversed, faded, frayed, torn flag (symbols in the tears.) on the right to a restored and new flag on the left under the wings of the Eagle. The flag is a time continuum or timeline. From its founding where the flag attached to the flag pole ropes that are cut off from the flag pole, the ropes which are symbols to the new stripes, stars and ink being pulled down from above and out and through Trump. The pensive, intense and determined look on Trumps face, and yet the Bald Eagle is screaming, sounding the alarm as if that is the cry of the eagle, the sprit of the land coming through Donald Trump. ‘Make America Great Again’ is a tough phrase to visualize in a simple image. I have made the falling fading flag that is rescued speak to that saying. It is the image of making America Great Again as the flag is restored. Mysteriously, the portrait with all of its intensity, smiles, revealing the ‘big hearted’ man behind the steely eyed stare. This is seen in the original more than in the reproductions. There is much more to the story and the interpretation of the symbolism, which I hope to share with you if you decide to honor my request to show the painting for the inauguration.
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The painting is in acrylics on stretched canvas. It is beautifully framed in a red, white and blue ornate decorative frame. The final dimensions are nearly 8x16 feet. It weighs about 250 lbs. It is ready to hang with French cleats and it has its own custom crate. Grassroots Campaign The reactions of people who have seen the actual painting have been a pleasure to watch and hear as an artist. Many people have seen the image of the painting and speak positively of it. But it is the experience of the scale of the portrait that evokes massive emotional responses. Some people virtually yell out loud, using expletives when they see it! The ‘OOs’ and ‘Ahhs’ are great when the painting is unveiled. The two most dramatic reactions were as follows. One man paced up and down in front of the painting rubbing his arms, as he exclaimed out loud how he had goose bumps all over his body. One woman, upon seeing the painting stood there silently. It was an awkward silence and a first since most people react out loud. This one woman stood there, stared silently and left. The artist thought she didn’t like the painting. Later she emailed the artist to apologize and explain how the painting left her speechless. She could not speak….That was a powerful reaction! From the snowy wilderness of the Iowa Caucuses to the pinnacle of political art shows in LA at Politicon 2016, The Trump Painting has been seen and enjoyed by thousands of people. The Trump Painting 'Unafraid And Unashamed' was seen at the 'Art Of Politics' Art Show along with the 'Hope And Change' painting, by artist Shepherd Fairey to provocative conservative street artist SABO. Here is the invitation from Yosi Sergant, inspiration and publicist of the Obama painting ‘Hope And Change’ by Shepherd Fairey. “Dear Julian, My name is Yosi Sergant. I am the former White House Arts Liaison and Dir. of Communications at the National Endowment for the Arts. I would love to invite you to participate in a group show I am producing at this years Politicon taking place in Pasadena, CA from June 24-‐26th (politicon.com). We expect about 5,000 attendees and the speakers/panelists include the likes of Sarah Palin, Anne Coulter, Glen Beck, James Carville, David Axelrod and the cast of the Daily Show… and many more. The show includes artists such as Shepard Fairey, Robbie Conal, Michael D’Antuono, T-‐Rock Moore, SABO, The Art Wing Conspiracy, Mear One, Illma Gore and a few others. It will be fantastic. We’d love to include Unafraid and Unashamed in the show. I look forward to hearing from you. Kind Regards, Yosi" The Trump Painting even traveled to Trump Tower in New York City where a copy proudly hangs in the Trump Campaign Headquarters since November 1st, 2015. Having been elected as an Alternate Delegate from New York, as a newborn American citizen, Julian Raven attended the Republican National Convention in Cleveland, 2016. As part of the New York delegation a copy of the Trump Painting was on display at the Cleveland Renaissance Hotel. It served as the backdrop for countless photos with many of the distinguished guests at the New York Delegation. Present at the New York delegation were former Speaker New Gingrich, Rudy
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Giuliani, Congressman Collins, Congressman Reed, GOP Chairman Ed Cox, Chemung County Chair Rodney Strange, Yates County Chairwoman Sandy King, Schuyler County Chair Lester Cady and many more. Julian Raven also boldly and proudly displayed a copy of The Trump Painting in the Public Square in the center of the anti Trump protests at the convention. The painting powerfully transcended the heated opposition to Trump, creating positive dialogue with Bernie Sander’s supporters and Black Lives Matter protesters who showed great respect for the painting even though they opposed Trump. It was common to hear, “I hate Trump, but I love the painting…” This was mission accomplished for the arts, as the painting was a tool for generating positive interaction. Even at the artist’s studio where at 25 foot vinyl version of the painting hangs it has been a tool for positive conversation. From a multitude of initial threats, the hostility was diffused and minds were changed concerning Trump. 6 months later the banner still hangs in a Democrat neighborhood proving the power of art to be an instrument of creative dialogue. Yosi Sergant, inspiration, patron and publicist of the Shepherd Fairey presidential poster even said about the Trump Painting And Portrait, that is was ‘visionary, positive and a hope filled work of art, even though being a self proclaimed ‘hard core leftist’ and not a fan of Donald Trump. The image of the Trump painting was also featured in the viral video (5 million Views) ‘The Trump Family I know’ produced by Trump Executive, Lynne Patton. It was also shown on screen during the Cleveland RNC convention. Julian Raven received acknowledgement and praise from politicians, the media and friends who saw the image at the RNC or on their television screens across the county, for that great achievement! The image of the Trump portrait/painting was to become the only work of art included in the RNC convention. By this inclusion at the RNC, the image of the painting became a part of American political history, another step in this remarkable ‘art history’ story. Please see video: https://www.c-‐span.org/video/?c4612500/trump-‐family-‐know-‐ video (Also see the massive media coverage at www.thetrumppainting.com Following the RNC in Cleveland, the Trump painting has been a continual fixture in Grassroots rallies in Elmira, New York. It also was part of RNC annual dinners, with high-‐ranking New York Republican sitting politicians being present; New York Senator Tom O’Mara, Chemung County Chairman Rodney Strange, Elmira Mayor Daniel Mandell, , Schuyler County Chairman Lester Cady, Yates County Chairwoman Sandy King, Assemblyman Friend, Assemblyman Palmesano and many other distinguished members of the Republican Party. Julian Raven would speak and explain some of the symbolism in the painting and receive standing ovations as a result! Now the next stage of this historic journey is upon us. The prophecy is fulfilled, Donald J. Trump will become the next President of the United States on January the 20th, 2017. Will the Smithsonian National Portrait Gallery be part of this story? That decision rests upon you.
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Attached are some of the official letters from elected representatives and important individuals who represent over 200,000 New York citizens and have spoken on their behalf by supporting the effort to have the Trump portrait and painting on show as a tribute and for the inauguration of the next President of the United States.
Obviously this work of art is a massive Trump supporter magnet. It will guarantee some of President Elect Trump’s 60 million supporters will have a place to visit to see the historic work of art! Sincerely appreciative of your time, Julian Raven
MEDIA: Some of the many stories. Please visit the Trump Painting website to see all of the images and media stories. Powerful Signs in the making of the ‘Unafraid And Unashamed’ https://www.youtube.com/watch?v=3MaAK31nDxU The Making of The Trump Painting/Portrait ‘Unafraid And Unashamed’ https://www.youtube.com/watch?v=H9xO_Fe3FOA November 1st, 2015 the beginning of the fine art grassroots campaign for Donald trump by Artist Julian Raven http://www.twcnews.com/nys/binghamton/news/2015/11/1/local-‐artist-‐unveils-‐ patriotic-‐painting-‐inspired-‐by-‐donald-‐trump.html Unwavering support, Mayor Mandell Recommendation http://www.mytwintiers.com/news/local-‐news/unafraid-‐and-‐unashamed-‐meet-‐ the-‐man-‐behind-‐the-‐trump-‐painting Beyond Rage And Anger To America, Vision Of Hope https://www.youtube.com/watch?v=LB3h7TNboJM Washington Free Beacon-‐ Culture-‐ Loyal Supporters. http://freebeacon.com/culture/immigrant-‐christian-‐abstract-‐expressionists-‐for-‐ trump/
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New York Times: Art Section: http://www.nytimes.com/2016/07/20/us/politics/california-‐staff-‐workers-‐ illness-‐republican-‐convention.html The only Pro-‐Trump painting to be included in the anti-‐Trump Huffington Post’s Art gallery ‘If This Art Could Vote’: http://ifthisartcouldvote.huffingtonpost.com/ Please see more at: www.thetrumppainting.com www.julianraven.com www.facebook.com/julianravenUSA www.twitter.com/julianmraven www.wordpress.com/julianraven CC: Senator O’Mara, New York CC: Congressmen Reed and Collins, New York CC: Mayor Mandell, Elmira, New York CC: Assemblymen Friend and Palmesano, New York CC: Chairmen/Chairwomen Cox, Strange, Cady, King and Sempolinski, New York CC: Chemung County Legislators, Kenneth J. Miller and Joe Brennan CC: Frank Acomb, Frankly Speaking Radio CC: Brad Davis & Andrea Gates, Art Collectors CC: Lynne Patton, Trump Org. Letters of recommendation attached. Some are still in production and will be forwarded when they arrive or I am still waiting on the original signed version.
The Trump Painting/Portrait ‘Unafraid And Unashamed’ by Julian Raven
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CHAIRMAN ENVIRONMENTAL CONSERVATION COMMITTEES AGRICULTURE BANKS CODES ENERGY AND TELECOMMUNICATIONS FINANCE INSURANCE INVESTIGATIONS& GOVERNMENT OPERATIONS IUDICIARY TRANSPORTATION
THE SENATE STATE OF NEW YORK
ROOM 307 LEGISLATIVE OFFICE BUILDING ALBANY. NEWYORK 12247 518) 455-2091 FAX. 1518) 426-6976
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333 E WATER STREET, SUITE 301 ELMIRA. NEW YORK 14901 (607) 735-9671 FAX. (6071 735-9675 E-MAIL onrnrunysena1e gov
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THOMAS F. O’MARA SENATOR 58TH DISTRICT
November 1 6. 201 6
Mr. .ltilian Raven
2524 (‘0. Rt. 60 I tlinira. New ‘ork 14002 Dear N’lr. Raven: I hank you br tiNs opportunity to express my strong support br your &iplicaition to the Smithsonian National Portrait Gallery to have your portrLlt of President—elect Donald trump. -i naIl-aid and nashallied. displayed at the (jul lery in eonjllnction ith the President—elect’s Inauguration in January. As your representative in the New York State Senate. I believe that your incredible work would be an appropriate and impactiul addition to the National Portrait Gallery’ during this time, and a truly’ patriotic tribute to our new President. I sincerely hope that the selection committee will give your work every consideration and if I can be ol an l’urther assistance or provide any additional thoughts. please don’t hesitate to contact me. It would he my pleasure to do so.
Sincerely.
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I homas F. (1 Mara N VS Senator. 5wl District
THE NEW YORK REPUBLICAN STATE COMMITTEE ED COX, CHAIRMAN November 28, 2016 Dear Mr. Raven, Thank you for the opportunity to express my strong support for your application to the Smithsonian National Portrait Gallery for your portrait of President-elect Donald J. Trump to be displayed at the gallery in conjunction with the January 20th inauguration. We were proud to have this piece prominently displayed at the New York delegation hotel during the 2016 Republican National Convention. Our status as the home state committee of the Republican nominee attracted several top national figures who had the opportunity to view this striking and memorable piece of political art. It has already been enjoyed and remarked upon by many, but its display at the inauguration by a New York artist would be an appropriate commendation for our President-elect. This honor would have a special significance given your position as an alternate delegate for Mr. Trump’s campaign at this year’s convention, and as a loyal member of the Republican Party. Please allow this communication to serve as my enthusiastic support for this endeavor. If anyone on the selection committee would like to speak to me further, please feel free to have them reach out to my office. We wish you the best of luck in this pursuit and look forward to seeing your piece again in Washington D.C. this January.
Sincerely,
Edward F. Cox Chairman
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Schuyler County Republican Committee Lester W. Cady 1268 Crans Rd Millport, NY 14864 607-481-1207 November 18, 2016 Julian Raven 2524 County Route 60 Elmira, NY 14902 Dear Mr. Raven, Thank you for this opportunity to express my strong support for your application to the Smithsonian National Portrait Gallery to have your portrait of President-‐elect Donald Trump “Unafraid and Unashamed”, displayed at the Gallery in conjunction with the President-‐elect’s Inauguration in January. As part of the Schuyler and State Republican Committee, my wife Cindy and I believe that your incredible work would be an appropriate and impactful addition to the National Portrait Gallery during this time and a truly patriotic tribute to our new President. It was a pleasure to get to know you and your work in Cleveland at the GOP National Convention, along with your generous display and time you gave to our Committee Fall Dinner event. I sincerely hope that the selection committee will give your work every consideration and if we can be of any further assistance or provide any additional thoughts, please don’t hesitate to contact us. It would be our pleasure to do so. Sincerely, Lester W. Cady, Schuyler County Republican Chairman
Joseph Sempolinski Chairman, Steuben County Republican Committee Mr. Julian Raven 2524 Co. Rt. 60 Elmira, NY 14902 Dear Mr. Raven, I write in regards to your application to the Smithsonian National Portrait Gallery to have your painting “Unafraid and Unashamed” displayed at the celebration for President-Elect Donald Trump’s inauguration. I hope that your application is received positively by the Gallery. I admire the passion and patriotism that you have displayed through your artwork and I hope that you will be able to share that art with the whole nation through this opportunity. I know that as a newly minted citizen this election has been of particular importance to you personally and I hope that your application is successful.
Sincerely,
Joseph Sempolinski Chairman, Steuben County Republican Committee