The Salt Lake Tribune hired private detective to spy on me!

The Salt Lake Tribune hired private detective to spy on me! Fair Game

The Salt Lake Tribune hired Private Eye to spy me out!

They also had ex parte communication with the court. For those that should not know what that is: it is illegal and it means that the other party talks behind your back court to the court and the judge.

I found out about that per accident when I rolled up below internal court docket sheet on the court computer.

Lora Mengucci and the All-Search Inspection Company suddenly were mentioned on my case, the court docket sheet without that they ever filed an official appearance in my case. Tribune lawyer Michael Patrick O'Brien brought a blonde woman to the hearing, and I trust that was Lora Mengucci, the private investigator.

Judge Iwasaki seemed to be informed as who she was, only I wasn't.

Read details to that hearing and the case in the docketing statement of the case, that I post today. The corruption by the Tribune and the court is evident.

I don't know what they were hoping to find out about me by hiring a detective. The detective did not find anything out about me that was not posted already on ARS.

Just because these guys are above the law, doesn't mean that I am too. And, hello, should the Salt Lake Tribune not rather have hired the Private Detective before they published the maliciously defamatory article about me?

And here is the court docket sheet of the case that I allegedly never filed, yeah right! I scanned the docket sheet.

If it is true that the Tribune, their counsel and the court claimed to others that I never filed that case, then conspiracy against me is even more evident, as they apparently misinformed to avoid that people learn the truth about the case, to prevent that others can join the case as plaintiff and to prevent that a professional trained attorney may assist me fighting the case.

Barbara Schwarz

Below is the very own court docket:

3RD- DISTRICT COURT - SALT LAKE COURT SALT LAKE COUNTY,

STATE OF UT

BARBARA SCHWARZ : CASE HISTORY

Plaintiff, :

vs. : Case No: 030912398 MI

SALT LAKE TRIBUNE : Judge:, GLENN K. IWASAKI Defendant. : Date: Oct. 14, 2003

...' ..

PAR TY ADDED

Defendant - VERN ANDERSON

*private* *private*

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - NANCY CONWAY

*private* *private*

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - RICK EGAN

*private* *private*

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - TIM FITZPATRICK *private* *private*

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - BILL LONG

*private* *private*

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - MEDIA NEWS GROUP *private* *private*

Represented ~by: MICHAEL PATRICK O'BRIEN

Defendant - LORI POST

Page 1 ~

Case No: 030912398

Date: Oct. 14, 2003

PARTY ADDED.

*private* *private*

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - SALT LAKE TRIBUNE

*private* *private*

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - WILLIAM DEAN SINGLETON *private* *private*

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - CHRISTOPHER SMITH

*private* *private*

Represented by: MICHAEL PATRICK O'BRIEN

Payor - ALL-SEARCH & INPECTION (sic) INC *private* *private*

Payor - JONES WALDO HOLBROOK & MCDONOU

*private* *private*

Payor - LORA MENGUCCI *private* *private*

Plaintiff - BARBARA SCHWARZ

*private* *private* SALT LAKE CITY, UT 84111

Page 2 (last) ~

3RD DISTRICT COURT - SALT LAKE,

SALT LAKE COUNTY, STATE OF UTAH BARBARA SCHWARZ vs. SALT LAKE TRIBUNE

CASE NUMBER 030912398 Miscellaneous

CURRENT ASSIGNED JUDGE

GLENN K. IWASAKI

PARTIES

Plaintiff - BARBARA SCHWARZ

SALT LAKE CITY, UT 84111

Defendant - SALT LAKE TRIBUNE

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - MEDIA NEWS GROUP

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - WILLIAM DEAN SINGLETON

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - NANCY CONWAY

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - BILL LONG

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - VERN ANDERSON

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - TIM FITZPATRICK

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - CHRISTOPHER SMITH

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - LORI POST

Represented by: MICHAEL PATRICK O'BRIEN

Defendant - RICK EGAN

Represented by: MICHAEL PATRICK O'BRIEN ACCOUNT SUMMARY

TOTAL REVENUE Amount Due: 65.00

Amount Paid: 65.00 Credit: 0.00

Printed: 11/24/03 09:29:16 Page 1

CASE NUMBER 030912398 Miscellaneous

Balance: 0.00

REVENUE DETAIL - TYPE: COpy FEE Amount Due: 5.75 Amount Paid: 5.75

Amount Credit: 0.00 Balance: 0.00

REVENUE DETAIL - TYPE: COpy FEE Amount Due: 0.50 Amount Paid: 0.50

Amount Credit: 0.00 Balance: 0.00

REVENUE DETAIL - TYPE: COpy FEE

Amount Due: 0.75 Amount Paid: 0.75 Amount Credit: 0.00 Balance: 0.00

REVENUE DETAIL - TYPE: VIDEO TAPE COpy

Amount Due: 15.00 Amount Paid: 15.00 Amount Credit: 0.00 Balance: 0.00

REVENUE DETAIL - TYPE: COpy FEE

Amount Due: 12.25 Amount Paid: 12.25 Amount Credit: 0.00 Balance. 0.00

REVENUE DETAIL - TYPE: VIDEO TAPE COpy Amount Due: 30.00 Amount Paid: 30.00

Amount Credit: 0.00 Balance: 0.00

REVENUE DETAIL - TYPE: COpy FEE

Amount Due: 0.50 Amount Paid: 0.50 Amount Credit: 0.00 Balance: 0.00

REVENUE DETAIL - TYPE: COpy FEE

Amount Due: 0.25 Amount Paid: 0.25 Amount Credit: 0.00

Printed: 11/24/03 09:29:17 Page 2

--- CASE NUMBER 030912398 Miscellaneous

Balance: 0.00

CASE NOTE

PROCEEDINGS 'J~

06-02-03 Case filed by larieh

06-02-03 Judge IWASAKI assigned.

06-02-03 Filed: Affidavit of Impecuniosity

06-02-03 Filed: Complaint for Injunctive Relief

06-09-03 Filed: Motion to protest being not treated equally with other plaintiffs before the Court (NO MAILING CERTIFICATE EX PARE (sic) COMMUNICATION)

06-11-03 Filed: NOTE: Answer filed previous from Rick & Carla Egan dated 6/6/2003 should have been filed in the divorce action in case 004701717

06-16-03 Filed: Motion to protest Court administrative corruption on docket sheet and motion to correct the docket sheet

06-19-03 Fee Account created Total Due: 5.75

06-19-03 COpy FEE Payment Received: 5.75 06-20-03 Filed: Defendants Answer

SALT LAKE TRIBUNE MEDIA NEWS GROUP NANCY CONWAY BILL LONG

VERN ANDERSON

TIM FITZPATRICK LORI POST RICK EGAN

06-30-03 Filed: Motion to protest docket sheet entry that my motion to protest was ex parte communication

06-30-03 Filed: Plaintiff's motion to defendants request to clarify nature of her claims (see answer of defendants, page two, 2nd para)

07-21-03 Filed: Motion to dismiss an/or for summary judgment

07-21-03 Filed: Memorandum in support of motion to dismiss and/or for summary judgment

07-21-03 Filed: Affidavit of Christopher smith (sic)

07-21-03 Filed: Ex parte application to file over-length memorandum in support of motion to dismiss and/or for summary judgment

07-22-03 Filed order: Order on ex parte application to file overlength memorandum in support of motion to dismiss and/or for summary judgment

Judge giwasaki

Signed July 22, 2003

07-23-03 Fee Account created Total Due: 0.50

07-23-03 COpy FEE Payment Received: 0.50

Printed: 11/24/03 09:29:17 Page 3

CASE NUMBER 030912398 Miscellaneous

08-08-03 Filed: Response motion by plaintiff Barbara Schwarz to Defendants' motion and memorandum to dismiss and/or for summary judgment

08-08-03 Filed: Affidavit of Barbara Schwarz in response to affidavit of reporter Christopher Smith

08-14-03 Fee Account created Total Due: 0.75

08-14-03 COpy FEE Payment Received: 0.75 08-20-03 Filed: Reply Memorandum in Support of Motion to Dismiss and/or For Summary Judgment

08-20-03 Filed: Notice to Submit for Decision (DEFENDANTS' MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT)

08-25-03 Filed: Response motion of plaintiff Barbara Schwarz to reply memo of defendant

08-25-03 Filed: Request for jury trial

08-26-03 Filed: Defendant's Motion to strike

08-26-03 Filed: Memorandum in support of motion to strike 08-28-03 Filed: Objection to defendants' motion to strike

08-29-03 Filed: Reply memorandum in support of motion to strike

08-29-03 Filed: NOTICE TO SUBMIT FOR DECISION (DEFENDANTS' MOTION TO STRIKE)

09-05-03 LAW AND MOTION scheduled on September 29, 2003 at 10:00 AM in

Fourth Floor - W44 with Judge IWASAKI.

09-11-03 Filed: Motion by plaintiff Barbara Schwarz to disregard and strike defendants' hand delivered letter of September 9, 2003, and all attachments

09-12-03 Filed: Memorandum in opposition to plaintiff's motion to "disregard and strike defendants' hand-delivered letter of September 9, 2003 and all attachments"

09-15-03 Filed: Motion by plaintiff Barbara Schwarz in response to defendants' memorandum to plaintiff's motion to disregard and strike

09-16-03 Filed: NOTICE TO SUBMIT FOR DECISION (plaintiff's motion to "disregard and strike defendants' hand-delivered letter of September 9, 2003 and all attachments")

09-29-03 Minute Entry - Minutes for Law and Motion Judge: GLENN K. IWASAKI Clerk: janetmb PRESENT

Plaintiff(s): BARBARA SCHWARZ

Defendant's Attorney(s): MICHAEL PATRICK O'BRIEN Video

Tape Number: 9:58

HEARING

TAPE: 9:58 On record

Printed: 11/24/03 09:29:21 Page 4

CASE NUMBER 030912398 Miscellaneous

This case comes before the Court for oral agument re: Defendants' Motion to Dismiss or Summary Judgment and Defendants' Motion to strike.

The petitioner is present and pro se. The defendants are represented by Michael Patrick O'Brien.

Based upon the representation of Mr. O'Brien and Ms. Schwarz, Court orders the following:

1) Motion for Summary Judgment is granted.

2) Mr. O'Brien is directed to prepare the appropriate order. 3) Court declines to revoke Ms. Schwarz's fee waiver.

10-01-03 Filed: Request for free transript of the September 29,2003 hearing before Judge Iwasaki (NO ORDER ATTACHED FOR COURTS CONSIDERATION) FOR TAPE ONLY

10-01-03 Fee Account created Total Due: 15.00

10-01-03 VIDEO TAPE COpy Payment Received: 15.00

10-02-03 Filed: Letter and attachments from Michael Patrick O'Brien 10-03-03 Filed: Plaintiff's Objection to proposed order of defendants, and motion to Judge Iwasaki to recuse himself from the case as being biased

10-06-03 Filed: Defendants' memorandum in opposition to plaintiff's "objection to proposed order of defendants, and motion to Judge Iwasaki to recuse himself from the case as being baised (dated 10/3/2003)"

10-08-03 Filed: Response Motion to Defendants' Memo in Opposition to Plaintiff's Objection to Proposed Order of Defendants, and Motion to Judge Iwasaki to Recuse Himself From the Case as Being Biased

10-08-03 Filed: Affidavit of Barbara Schwarz in Support of My Motion to Recuse Judge Iwasaki

10-08-03 Fee Account created Total Due: 12.25

10-08-03 COpy FEE Payment Received: 12.25

10-09-03 Filed: Amended Affidavit of Barbara Schwarz in Support of My Motion to Disqualify Judge Iwasaki

10-10-03 Filed: Defendants' objection to plaintiff's recusal affidavits

10-10-03 Filed: NOTICE TO SUBMIT FOR DECISION (defendants proposed order granting def motion to dismiss and/or for summary judgment)

10-14-03 Filed: Plaintiff's Response motion by plaintiff in opposition to defendants' objection to plaintiff's recusal affidavits

10-14-03 Filed: certificate of good Faith of my motion in opposition to plaintiff's objection to proposed order of defendants, and motion to Judge Iwasaki to recuse himself from the case as being biased

10-15-03 Filed order: Minute Entry-Plaintiff's Motion to Recuse is referred to Presiding Judge Peuler for a decision.

Judge giwasaki

Signed October 15, 2003

10-21-03 Minute Entry - MINUTE ENTRY AND ORDER Judge: GLENN K. IWASAKI Clerk: mauriem

Printed: 11/24/03 09:29:26 Page 5

CASE NUMBER 030912398 Miscellaneous

Plaintiff filed a motion to disqualify Judge Iwasaki under Rule 63(b), Utah rules of civil Procedure. The Primary basis for her motion is that she does not agree with Judge Iwasaki's rulings in the case. This is not legally sufficient under Rule 63(b). Any motion filed must have a certificate that it is filed in good faith with a supporting affidavit setting for the facts to show bias prejudice or conflict of interest. This plaintiff has failed to do. The Motion to Disqualify Judge Iwasaki is denied. This entry constitutes the court's order.

10-23-03 Filed order: Minute Entry-After Associate Presiding Judge Berrett denied the motion to recuse, Court now denies plaintiff's objections to defendants proposed order granting defendants' motion to dismiss and/or for summary judgment Judge giwasaki

Signed October 23, 2003

11-04-03 Fee Account created Total Due: 30.00

11-04-03 VIDEO TAPE COpy Payment Received: 30.00

11-06-03 Filed: Request to Judge Iwasaki to clarify the status of this case

11-13-03 Filed: Minute Entry-Court does not understand the need for any clarification and signs the submitted order on Nov. 13, 2003.

11-13-03 Filed order: Order Granting Defendants' Motion to Dismiss and/or for Summary Judgment and Resolving Motions to Strike Judge G. Iwasaki

Signed November 13, 2003

11-18-03 Fee Account created Total Due: 0.50

11-18-03 COpy FEE Payment Received: 0.50 11-24-03 Filed: Notice of Appeal

11-24-03 Filed: Affidavit of Impecuniosity

11-24-03 Fee Account created Total Due: 0.25

11-24-03 COpy FEE Payment Received: 0.25

printed: 11/24/03 09:29:26 Page 6 (last)

End of the docket sheet of the allegedly non-existing case.

(Notice was Appeal was filed by me.)

Barbara Schwarz

From: BarbaralovesMarty@excite.com (Barbara Schwarz)
Subject: Corruption in my case against the Salt Lake Tribune!
Date: 12 Dec 2003 09:53:31 -0800
Message-ID: <4c418fa.0312120953.1a21bb8@posting.google.com>

Read about the corruption in the case that I filed against the Salt Lake Tribune. This is only the docketing statement, not the brief. The brief is due 40 days after the clerks file the index, and often they take their time to do that.

Barbara Schwarz,

335 East Broadway, Apt. 401,

Salt Lake City, Utah 84111

IN THE UTAH SUPREME COURT

BARBARA SCHWARZ,

PLAINTIFF/APPELLANT, APPELLATE CASE NO: 2003981

THIRD DISTRICT COURT

v. CASE NO: 030912398 MI

SALT LAKE TRIBUNE, MEDIA NEWS DOCKETING STATEMENT

GROUP, PUBLISHER WILLIAM DEAN

SINGLETON, CHIEF EDITOR NANCY

CONWAY, INTERIM EDITOR BILL LONG,

EDITORIAL PAGE EDITOR VERN

ANDERSON, MANAGING EDITOR TIM

FITZPATRICK, REPORTER CHRISTOPHER

SMITH, PHOTO EDITOR LORI POST,

PHOTOGAPHER CHRIS EGAN,

DEFENDANTS/APPELLEES,

Pursuant to Rule 9, Utah Rules of Appellate Procedure, appellant submits this docketing statement.

1. This appeal is from final orders of the Third District Court of Utah, judge Glenn Iwasaki and associate presiding judge Barrett.

2. The Utah Court of Appeals has jurisdiction over the case pursuant to Utah Code Ann. paragraph 78-2a-3 (2) (h) (1996), and the Utah Supreme Court has jurisdiction pursuant to 78-2-2(3) (j) (1996).

I appealed the case to the Utah Court of Appeals. With date of December 1, 2003, I received an order on this appeal, signed by Paulette Stagg, mailing certificate of same day, signed by deputy clerk Janet Alexander. Despite clerk Stagg made a decision on my case, but she did not assign any file number. She transferred my appeal to the Utah Supreme Court because the appeal would be taken from an order/judgment not involving domestic relations, a case upon which the Utah Court of Appeal would have no jurisdiction according to Utah Code Ann. Paragraph 78-2-2(3) (j) (1996). She informed that Utah Supreme Court would assign the appeal case number.

I disagree with the transferal because the Utah Court of Appeals has jurisdiction over this case. Reporter Smith came to the apartment house in which I live, photographer came in my apartment, and the Tribune reported about my alleged life, which includes also domestic matters.

It rather appears that the Utah Court of Appeals is picking and choosing unlawfully what kind of cases they want to rule on and dump those they don't want upon the Supreme Court. It also appears that they want to illegally deny one appeal level to me. Accordingly, I ask the Supreme Court to transfer the appeal back to the Utah Court of Appeals. I filed a seperate motion hereto, same day as this docketing statement.

3. a) The final judgment or orders appealed were entered on October 21, 2003 (judge Barrett's decision about my motion to recuse judge Iwasaki), October 23, 2003 and November 13, 2003, minute entry and order by judge Iwasaki. b) The Notice of appeal was filed on November, 24, 2003. c) Date of motions filed and date of motions disposed are listed on the docket sheet of the Third District Court. (See copy of Third District Court docket sheet attached as exhibit.)

4. I am not an inmate, and I don't invoke rule 4(f).

5. This appeal is not from an order in a multiple party or multiple claim case in which the judgment has been certified as a final judgment by the trail court.

6. This is no criminal case but a civil case.

7. Issues on appeal:

a) Deception and fraud, actual malice, defamation, and libel by the Salt Lake Tribune ("Tribune"), the defendants. Their reporter Christopher Smith promised in writing, and verbally, to write about a completely different subject and not about my private life. (See my affidavit of August 8, 2003 and the exhibits, the letter and the e-mails that Smith mailed to me, in which he promised to write a completely different article and leaving my private life out of it. This affidavit is attached to this docketing statement.) Smith informed me that he would write about how my cases have resulted in an unusual ruling by the federal government on how and when public information may be released, which may have broad implications for the free press and members of the public. He informed me that the article would NOT be about my private life, and he wrote, that he knows that I value my privacy. I never would have gone to meet Smith, if I would have known that he lied conscienceless and outrageously me. He also lied that he would be investigative reporter. He did not investigate anything, not who filed most FOIA requests, not if anybody at all burdened the government with requests, not the FOIA fee frauds by the federal employees, not the conspiracy by federal workers against me and also against other requesters and reporters, nor anything else. The Tribune is not pro free press as far as other members of the free press are concerned, and the Tribune is not the side of their readers and the citizens otherwise the Tribune would have published the story Smith had promised me to write. The Tribune just wanted a sensational selling story to which they made the controversy up and concealed the true controversy. Privacy violations, malicious defamation and falsehoods were their tools.

b)The agreement we had was that I provide data about the federal government and my requests, the fraudulent fees and how my rights are being denied by arbitrary governmental workers, and he would write how other people and the press are also affected by that. That agreement was broken, which is breach of agreement and contract.

c) I was tricked into an interview, to provide information and have my photos taken, which is deception and also fraud. Tribune had no authority to use a photo of mine in that particular article that was published on May 11, 2003.

d) Tribune published malicious defamatory article that is wrong in sting and gist. The publication was excessive. (The article is attached to my affidavit of August 8, 2003.)

e) Even the headline is maliciously defamatory, wrong in sting and gist and absolutely misleading. I did not "overload" the U.S. government with thousands of FOIA requests. I just filed a few hundreds, and most agencies received over a period of several years in average only a few requests from me. Famous reporters (not of the Salt Lake Tribune) filed thousands of requests, and nobody claimed that they overloaded the FOIA system and the government. The Salt Lake Tribune should have checked the FOIA logs of the agencies, contacted prominent FOIA reporters, instead publishing outrageous falsehoods.

f) The Tribune defendants are guilty of abuse of my identity on the front page, the Sunday edition of the paper, and also in their on-line edition. My name, photo, personality, activities, twisted and false data pertaining to my private life, also unauthorized information about my private life was published to attract more readers to make business for the Tribune.

g) Tribune printed libel and insults, e.g. citing me as "FOIA terrorist", which is no opinion anymore, but libel per se.

h) Tribune article also otherwise cites me incoherently, out of context to ridicule me, harass me, shame me and make people hate and avoid me.

i) The article is incoherent. It is one of the most confusing and incoherent articles I ever read. The article is a completely unprofessional piece, and many people don't know what to think of it, except that it was written to cause me harm and to maliciously defame me, ridicule me, harass me, shame me and make people hate and avoid me. There are Internet postings by people which wrote that "their head exploded" by reading the Tribune article about me. That is also no compliment for Smith, and the Tribune, and their style of incoherent writing.

j) Tribune is guilty of emotional abuse. The article made its way around the country and in governmental files. Other newspapers picked the story and the falsehoods up and distributed those further. Reporter Smith is the weird one, who fabricated things and twisted facts similar as reporter Jayson Blair from the New York Times did. The "News of the Weird" reporter, Chuck Shepherd, (a reporter who has troubles keeping publishing dates straight and referred to the Tribune article as of May 5, 2003 instead of May 11, 2003, or he published deliberately a wrong date of the article to mislead the column readers) cited from this Tribune article that is wrong in sting and gist and defames my state of mind and more in his column. Apparently hundreds of newspapers printed the column and distributed the lies originated by the Tribune. The article is all over the Internet and still strongly cited and referred to these days. Bases upon the maliciously false information that the Tribune provided, I also was voted "kook of the month" on the Internet by cruel people that are similarly unprofessional as the Tribune defendants, their counsel and also Shepherd.

k) The Tribune is guilty of outrageous violation of my privacy, referring 150.000 households that read the Tribune on Sundays, and even more on line, to an abusive Internet newsgroup, that has my home address against my will in their headlines. Smith mentioned that my life is in danger. The Tribune nevertheless provided all those 150.000 households, and even more readers on line with twisted and false details about my life, and also where to find me in the flesh. Those are matters that those people did not need to know. It is a serious violation of my privacy rights.

l) Important data to my FOIA requests, the fee fraud of the Department of Veterans Affair, background data, and the fact that no justice was applied to my legal cases, were completely withheld by the Tribune to mislead the readers.

m) The facts of the dispute, the true controversy with the government, their fraud, conspiracy and other lawlessness were concealed, despite Tribune reporter knew what was going on.

n) The Tribune made unauthorized use of my photo in that particular article. They are guilty of copyright violation.

o) They deliberately used a doctored photo or used the worst shot of hundred for the article to make me look as bad as their malicious defamatory article about me.

p) They are guilty of theft of approximately a hundred photos and negatives which the Tribune doesn't return to me, despite several times requested. (Photographer Rick Egan invaded my apartment to take the pictures. Smith had informed me they would NOT write about my private life, but would want to publish a photo of my files, which was another blatant lie. That makes the invasion in my apartment to take the photos another a violation of the law and my constitutional rights.)

q) Tribune is guilty of not having published any correction, any redaction, not even a letter to the editor. (I am good enough to fill a huge article on their Sunday front page, but not good enough to get a correction or letter to the editor printed!)

r) Tribune and the court are guilty of conspiring against me. There is information on the Internet, Usenet, that the Tribune, but also the Third District Court, misinformed others that I would have never filed a court case versus the Salt Lake Tribune. In other words, court and defendants conspired against me and are lying to others. I concluded that the just mentioned lied, to make me appear to be the liar, to harm my credibility even more and to prevent that others can join my case as co-plaintiffs, or to prevent that I, who can't afford to hire an attorney, can get legal help from an attorney who might be interested in fighting the case against the Tribune.

s) Having provoked this litigation, and more. Read about the unconstitutional actions and lawless actions by the Third District court below and in the summary.

7. a. Issue on appeal: libel

Determinative law: Utah Code 56-9-501.

Utah Code 45-2-2 (1) "Libel" means a malicious defamation, expressed either by printing or by signs or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt and ridicule.

A person is guilty of libel if he intentionally and with malicious intent injures another or procures to publish any libel. Utah Code Ann. Paragraph 76-9-502 (2001).

The statute also provides that malice may be presumed from act of making the libel. An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown. 76-9-503 (1).

Standard of review

The Minnesota Supreme Court held: "We hold that a private individual may recover actual damages for a defamatory publication upon proof that the defendant knew or in the exercise of reasonable care should have known that the defamatory statement was false. The conduct of defamation defendants will be judged on whether the conduct was that of a reasonable person under the circumstances." Jadwin v. Minneapolis Star & Tribune Co, 367 N.W.2d 476, 491 (Minn. 1985). Other cases follow that opinion. See Ledoux v. Northwest Publications, Inc, 521 N.W.2d 59, 67 (Minn. App. 1994), Janklow v. Newsweek, Inc., 759 F2d 644, 648 (8th Cir. 1985), cert.den., 479 U.S. 883 (1987) ("Libel, by definition, consists of publication of a false and unprivileged fact.")

Tribune reporter Smith and the other defendants know that the article about me is false in sting and gist, false and twisted in many details and that the article is defamatory.

7. b. Issue on appeal: malicious defamation

Determinative law

Utah Code 76-9-404, Criminal Defamation, Utah Code 76-9-03, (1) (2) (3), Presumption of Malice.

Standard of review

To establish her claim for defamation, the plaintiff must demonstrate that 1) the defendant published the statements; 2) the statements were false; 3) the statements were not subject to privilege; 4) the statements were published with the requisite degree of fault; and 5) the statements resulted in damages. West v. Thomson Newspapers, 872 P.2d 999, 1007-08 (Utah 1994).

I did that, and I established a prima facie case.

A statement is defamatory if it impeaches an individual's honesty, integrity, virtue, or reputation and thereby exposes the individual to public hatred, contempt or ridicule. U.C.A. 1953, 45-2-2-(1), Mast v. Overson, 971 P2d 928. (Utah 1998).

Statement is defamatory if it tends to injure plaintiff in his trade, profession, or community standing or lower his estimation of community. Claude v. Thomason, 942, F.Supp. 635. See also Anthony distributors, Inc., v. Miller Brewing Co., 942 F. Supp 1567 (Fla. 1996) and Colodny v. Iverson, Yoakum, Papiano & Hatch, 936 F.Supp. 917 (FLA 1996).

Under Nevada law, statement is "defamatory" when under any reasonable definition, such charges would tend to lower the subject in the estimation of the community and to excite derogatory opinions against him... Flowers v. Carville, 112 F. Supp.2d 1202 (Nev. 2000). See also Klagsbrun v. Valad Harabonim of Greater Monsey, 53 F.Supp. 2d 732 (NJ 1999) and Schuler v. McGrath-Hill Companies, Inc., 989 F.Supp 1377 (NM 1997).

The fault element of a defamation claim may be based either on negligence or actual malice. � Samuels v. Tschechtelin, 763 A.2d, 209,135, Md App. 483. "Actual malice is established when plaintiffs shows, by clear and convincing evidence, that defendant published the allegedly defamatory statement either with reckless disregard for its truth or with actual knowledge of its falsity.

I did that clearly with my affidavit filed August 8, 2003, and exhibits attached as convincing evidence.

Statement is "defamatory" under Colorado law if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons form associating and dealing with him. Restatement (Second) of Torts, paragraph 559;

Brown v. O'Bannon, 84 F. Supp.2d 116 (Colo 2000); see also Brammer-Hoelter v. Twin Peaks Charter Academy, 81 F.Supp.2n 1090; Miles v. Nat'l Enquirer, Inc., 38F. Supp.2d 1226, (Colo 1999) and Miles v. Ramsey, 31 F.Supp.2nd 869, (Colo 1998).

Under D.C. law, certain anecdotes about behavior of conservative political leader, including statements that, in response to perceived betrayal by third party, leader "snapped," erupted in a "volcano of screaming," "frothed at the mouth," and "sent derogatory letter... " were reasonably capable of defamatory meaning, and thus supported leader's claim of defamation, because statement arguably made leader appear highly volative, irrational, unsound, and otherwise odious, infamous or ridiculous. Weyrich v. New Republic Inc., 235 F.3d , 617.

That politican wasn't even called a "terrorist" nor was he falsely accused of having "overloaded" the entire federal government, but I was.

7. c. Issue on appeal: actual malice and negligence

Determinative law and Standard of review

The U.S. Supreme Court defines "actual malice" as making a statement with knowledge that is was false or with reckless disregard whether it was false or not. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct (1964).

Actual malice may be proven by evidence of ill-will of personal hostility on the part of the declarant; it may also be proven by a showing that the declarant published the defamatory statement with knowledge that it was false; with reckless disregard for the truth or with a high degree of awareness of its probable falsity. Dobson v. Harris, 521 S.E.2d 710 (N.C. App.1999). See also Talley v. Whio TV-7, 722 N.E.2nd 103, 131 Ohio App.3d 164, and Delta Air Lines, Inc., v. Norris, 949, S.W. 2d 422;

In Seegmiller v. KSL, Inc., 626 P2d 968, (Utah 1981), the Utah Supreme Court reversed and remanded a summary judgment decision in favor of KSL.

I am no public person, I did not seek the attention of the media, and reporter Smith contacted me, not I him. He informed me that he found out about me by accident. He reported false and twisted information about me in reckless disregard of the truth.

The Utah Supreme Court cited in Seegmiller v. KSL another court opinion, St. Armant v. Thompson, 390 U.S. 727, 20 L Ed. 2nd 262, 88 S.Ct 1323 (1968), in which the court precisely defined the term "reckless disregard for the truth", as incorporated in the "actual malice" statement. The court stated: Reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for the truth or falsity and demonstrates actual malice. [390 U.S. at 731.]

Tribune reporter Smith e-mailed me not just once that federal employees are lazy and find any excuse not to come to work. He knew that they conspired against me and denied my rights and even defrauded me. Nevertheless, he wrote his article in reckless disregard of the truth to advance his own career in D.C. amongst those federal employees. My guess is that he covered for federal employees, despite that he knows that they don't want to do their jobs and are engaged in unlawful even criminal conduct, as he is located in District of Columbia and figured that if he writes the truth about them and me in that article, that they will not grant him any interviews in other matters in the future. He trashed me because he has no backbone, is unethical and howls with the wolves.

In Seegmiller v. KSL, the Utah Supreme Court concurred with Comment g to paragraph 580 B of Restatement (Second) of Torts which sets forth the evidentiary standards to be employed in determining how negligence is to be proven in a defamation action brought by private figures. That Comment provides in part: Putting the question in terms of conduct is to ask whether the defendant acted reasonably in checking on the truth of falsity or defamatory character of the communication before publishing it.

In my case, Tribune reporter Smith did not do his homework, did not check the FOIA logs of the agencies, did not contact the reporter(s) that indeed filed many more requests than I did, did not investigate if the fees that the government fabricated were a fraud, did not check if adequate laws were applied to any lawsuit of mine, did not made truthful research about my private life and never should have put that in the article in the first place. He acted with outrageous negligence and knew that he published falsehoods when he wrote that defamatory maliciously article and libeled me. The Tribune wrongfully accused me of having overloaded the federal government, which can be compared to criminal activity. They also named me a "FOIA terrorist", but oddly did not name the prominent reporters that filed so many more requests than I did, "terrorists".

In Seegmiller v. KSL, the Utah Supreme Court ruled that indeed, allegations of criminal conduct, being particular damaging to a reputation, have historically been treated as slanderous per se under common law. A statement is defamatory if it impeaches an individual's honesty, integrity, virtue, or reputation and thereby exposes the individual to public hatred, contempt or ridicule.

Some of the Tribune statements are so defamatory that they are considered defamation per se and I, as the plaintiff don't even have to prove that the statements harmed my reputation. Claiming that I am a "FOIA-terrorist" and "overloaded" the entire U.S. government, and "strained" the federal FOIA system, is defamation per se.

7. d. Issue on appeal: false light

Determinative law and Standard of review

"A false light claim is 'closely allied' with an action for defamation, and the same consideration apply to each. Stien, 944 P.2d at 380 (Utah).

Truth is not a defense that Tribune can claim, because the article is wrongful in sting and gist and even in the headline. Claiming that I am the most prolific requester of FOIA requests and not others, claiming that I overloaded the system, while I didn't, are not insignificant inaccuracies. My defamation and invasion of privacy (false light) claims don't fail because there is a genuine dispute about the substantial truth of the statements in the article.

In analyzing false light privacy claims, Utah follows the Restatement section 625E, which states as follows:

one who gives publicity to a matter concerning another that places the other

before the public in a false light is subject to liability to the other for invasion

of his privacy, if a) the false light in which the other was placed would be highly offensive to a reasonable person b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Russell v. Thompson Newspaper, Inc. 842 P.2d 896, 907 (Utah 1992).

There can't be any doubt that the Tribune is guilty on both counts. The article is extremely offensive and even calls me a "terrorist" and otherwise wrongfully portrays me completely out of character. There can't be any doubt that the Salt Lake Tribune article is an outrageous violation of my rights.

Section 652A of the Restatement (Second) of Torts says:

one who invades the right of privacy of another is subject to liability for the resulting harm to the interest of the other.

The right of privacy is invaded by a) unreasonable intrusion upon the seclusion of another as stated in paragraph 652B; or b) appropriation of the other's name or likeness, as stated in paragraph 652C; or c) unreasonable publicity given to the other's private life, as stated in paragraphs 652D; or d) publicity that unreasonably places the other in a false light before the public, as states in paragraph 652E.

7. e. Issue on appeal: invasion into privacy, abuse of privacy

Determinative law and Standard of review

An intrusion takes place when a reporter intrudes, physically or otherwise, upon a person's "private space" or affairs.

As the reporter and the photographer contacted me under false promises, them entering in my private space, my apartment house, and the photographer in my apartment, is an intrusion, an invasion into my privacy.

"Private place" is defined in the Utah Code as a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, 76-9-401 (1).

The four areas of privacy law are: Appropriation of name and likeness; Intrusion upon an individual's solitude; Publication of private information about an individual; Publishing material that puts an individual in a false light.

Utah Code 45-3-1 through 45-3-5, Abuse of Personal Identity and Title 76-9-401, 402, 403 and 406, Offenses against Privacy.

Public disclosure of private and embarrassing facts: most troublesome of the invasion of privacy claims are the publication about the private life of a person when the publication would be both highly offensive and embarrassing to a reasonable person and not of legitimate public concern.

Tribune is also guilty on this count. Reporter Smith ridiculed my private life with false, twisted and embarrassing statements and the public had no need to know that. The Tribune also published a direct link to an Internet newsgroup, which has my home address against my expressed wishes in their headlines. That is an outrageous violation of my privacy since any Salt Lake Tribune reader and any criminal can come right to my apartment!

See also Prosser, Privacy, 48 Calif. L.Rev. 383, 389 (1960). Right of privacy is beautifully defined as "to be let alone."

The tort of invasion of privacy includes four separate causes of action: intrusion of the plaintiff's seclusion of private affairs; public disclosure of embarrassing private facts; publicly placing plaintiff in a false light; and appropriation of plaintiff's name or likeness for defendant's advantage. Nemani v. St. Louis University, 33 S.W. 3d 184.

The Tribune is guilty of all FOUR causes.

Utah cases analyzing the invasion of privacy tort have adopted the restatement (Second) of Torts, also called "Restatement", paragraph 652D says:

one who gives publicity to a matter concerning the private life of another is

subject to liability to the other for invasion of privacy, if the matter publicized

is of a kind that a) would be highly offensive to a reasonable person, b) is

not of legitimate concern to the public.

In Seegmiller v. KSL, 626 P.2d 968, the Utah Supreme Court wrote: "We are persuaded that the necessary degree of fault which must be shown in a defamation action brought by a 'private individual' against the media is negligence. The need to provide the media with a margin for error is most clear and compelling in cases involving constitutional sense involving public officials and public figures. The requirement of actual malice in the constitutional sense provides that margin for error which permits the freest flow of information likely to be of importance in deciding matters of public import, without extinguishing all protection for reputational interests. But an appropriate reduction of the motivation for self-censorship, and the promotion of full-blown discussion of public issues does not require the same "breathing space" when a private individual is the plaintiff, esp. when the latitude which the media enjoys may be expanded in matters of public concern by qualified privilege. � On the other hand, we recognize that the integrity of an individual's reputation is essential to his standing in society, in his vocation, and even his family. It may indeed be indispensable to one's sense of self-worth. The dignity of virtually every human being depends in part upon his right to be known as the person he truly is. For centuries it has been recognized that an assault upon a person's character may be far more damaging and long lasting than an assault upon his person. Indeed, freedom from false attacks on one's personality may be viewed as at least as essential to ordered liberty as freedom from physical abuse. � It follows that there are compelling reasons for distinguishing between the degree of protection afforded public officials and public figures on the one hand and private individuals on the other. Private citizens are involuntary news figures. They have little public opportunity to rebut effectively, or indeed at all, false charges. A retraction may not reach the same group that heard or saw the initial publication, and, in any event, a retraction may have less meaning and be published in a fashion less likely to draw the same attention as the initial release. Furthermore, information concerning public officials and public figures is more likely to be relevant in the decision-making process of self-government, and it may be assumed that one who forsakes the anonymity of private life and enters the limelight of the public arena is prepared to engage in full blown discussion of public issues with the attendant personal risks. Such assumption is appropriate with respect to a private figure. � As Justice Powell stated in Gertz v. Robert Welch, supra: He has not accepted public office or assumed an 'influential role in ordering society'. Curtis Publishing Co. v. Butts, 388 U.S., at 164 (Warren, C.J., concurring in result). He has relinquished no part of this interest in the protection of his own good name, and consequently he has more compelling call on the courts for redress of injury inflicted by defamatory falsehood. [418 U.S. at 345.] � In balacing the interest that the state has in protecting reputational interests of private figures against the diminution of the tendency to self-censorship, we conclude that it would be inappropriate to strike the balance in favor of an actual malice test, thereby relieving the media from acting with due care and permitting it to inflict uncompensable injury on private individuals, irrespective of negligent conduct. In our view negligence test best accommododates the competing interests. The duty of the press to act with reasonable care towards private individuals is not unduly burdensome and should not result in inappropriate self-censorship. Society has no interest in the dissemination of statements which are false and which could have prevented through the exercise of reasonable care. The standard of due care requires only that the media personnel act as reasonably prudent persons in the industry would act to ascertain the truth."

In Time, Inc. c. Hill, 385 U.S. 374, justice Brennan said: "'The right to privacy', in which they eloquently argued that the 'excesses' of the press in 'overstepping in every direction the obvious bounds of propriety and of decency' made it essential that the law recognize a right to privacy, distinct from traditional remedies for defamation, to protect private individuals against the unjustifiable infliction of mental pain and distress. A distinct right of privacy is now recognized as 'common-law' right or by statute, in at least 35 States. Its exact scope varies in the respective jurisdictions. It is, simply stated, the right to be let alone; to live one's life as one chooses, free from assault, intrusion or invasion except as they can be justified by the clear needs of community living under a government of law. As Mr. Justice Brandeis said in his famous dissent in Ohlmstead v. United States, 277 U.S. 438, 478 (1928), the right of privacy is the 'most comprehensive of rights and the right most valued by civilized men... ' The courts may not and must not permit either public or private action that censors or inhibits the press. But part of this responsibility is to preserve values and procedures which assure the ordinary citizen that the press is not above the reach of the law � that its special prerogatives, granted because of its special and vital functions, are reasonably equated with its needs in the performance of these functions. For this court totally to immunize the press � whether forthrightly or by subtle indirection � in areas far beyond the needs of news, comments on public persons and events, discussion of public issues and the like would be no service to freedom of press, but an invitation to public hostility to that freedom. This Court cannot and should not refuse to permit under state law the private citizen who is aggrieved by the type of assault which we have here and which is not within the special protected core of the First Amendment to recover compensatory damages for recklessly inflicted invasion of his rights."

7. f. Issue on appeal: abuse of image and personal identity

Determinative law

Abuse of Personal Identity Act, Utah Code 45-3-2; Utah Code 76-9-407 (2), 45-3-4, Cause of action for abuse � remedies; 45-3-5(1)(a)(b) (2), Action against publisher � grounds, remedies.

Standard of review

The Tribune is a business. They sell papers. Publishing my photo, information about my private life as sensation on their front page, means selling papers to primitive readers that seek yellow journalism. They did not compensate me with a cent. Reporter Smith lied to me that he would write an article that could prey loose information that the federal government withheld from me. The article that was published is evidence that he lied. He knew that instead of supporting me, people would ridicule or hate me. He has not written the promised balanced and correct article, but used my photo, my image, my life, information about my activities, in a completely different article, in a malicious defamatory article. That is clearly abuse of personal identity.

Utah Code 45-3-4 says an individual, whose personal identity has been abused under Section 45-3-3 of this act, may bring an action against a person who caused the publication of the advertisement, and is entitled to injunctive relief, damages alleged and proven, exemplary damages, and reasonable attorney's fees and costs.

Free speech must be balanced, however, against the values protected by law of defamation, invasion of privacy, and abuse of personal identity, Cox v. Hatch, 761 P2d 556, 558 (Utah 1988).

7. g. Issue on appeal: publication of falsehoods, no retraction or letter to editor published

Determinative law: Utah Code 45-2-1. Retraction by newspapers

Standard of review:

The Tribune failed to print any retraction, any correction, and any letter of editor. On May 12, 2003, I provided the Tribune publisher, the Tribune editors, reporter Smith, all of the defendants, and others, approximately 40 Tribune employees with the information that the article is wrong in sting and gist and contains numerous falsehoods. I asked for a correction. I e-mailed the information to them and also personally delivered a copy to their Salt Lake City headquarter. - Christopher Smith apparently was also informed by another reporter, a FOIA specialist, that not I, but that he and other famous reporters filed most FOIA requests, but that did not move the Tribune to correct their falsehoods. (See my affidavit of August 8, 2003.)

In deciding whether a reasonable fact finder could conclude that a statement expressed or implied a verifiably false fact about a plaintiff alleging defamation, the court must consider the statement in context. Weyrich v. New Republic, Inc. 235 F.3d 617

7. h. Issue on appeal: deception and theft my deception

Determinative law and Standard of review

Unauthorized reproduction of professional photographs will generally violate the Copyright Act. 17 U.S.C.A, paragraph 107.

The Tribune had no right to publish my photo. It was violation of the Copyright Act.

The photos were obtained under deception, by the Tribune. The photographer came to my apartment to take photos of me, and he left me in the belief that the Tribune would write a very different article. Smith had e-mailed me that they want to photograph my files. (See his e-mail attached to my affidavit.) I pulled the files out and put them on display, which was hard work. No photo with my files ever was published. There was no need for the photographer to come to my apartment as the Tribune was not interested in my files, but just in me, the private individual, that they shamelessly trashed on their front page.

Theft by deception is a violation of Utah Code Ann. Paragraph 76-6-1102 (2) (Supp 2000). The theft by deception statute provides: A person commits theft if he obtains or exercises control over property of another by deception and with a purpose to deprive him thereof. "Purpose to deprive" means to have the conscious object: a) to withhold property permanently or so for extended a period or to use under such circumstances that a substantial portion of its economic value, or of the use and benefit thereof would be lost, or c) to dispose of the property under circumstances, that make it unlikely that the owner will recover it. Utah Code Ann. paragraph 76-6-401 (3).

Fact is that the Tribune made approximately 100 photos of me under deception, I want the photos and the negatives back, and Tribune doesn't return them. Counsel ignored the entire issue in his memoranda and answer to complaint. That is fraud; that is theft by deception.

7. i. Issue on appeal: fraud

Determinative law

Utah Code 31A-36-113 (1) (2); 61-1-1 (2) (3)

Standard of review

An action for fraud lies where there are false representations by the defendant and reliance thereon by plaintiff to his damage. Semenov v. Hill, 982 F2d 578 (1999 Utah).

Fraud is a false representation of an existing material fact made knowingly or recklessly Debry v. Noble, 899 P2d 428 (Utah 1995).

Tribune reporter Smith told me that he would write a very different article than he did. He made knowingly and recklessly a false representation of an existing material fact, which was to trick me into interview and photo session, by lying that he would not write about my private life but other issues.

7. j. Issue on appeal: Breach of contract and agreement, broken promise and fault

Determinative law and Standard of review

A person may be liable for breach of contract if the complaining party can prove the existence of an agreement, breach of agreement... Ultracuts ltd. V. Wal-Mart Store, Inc, 33 S.W3rd, 343 ARK 224 (NY 2000).

Utah Code 78-27-37 (2) "Fault" means any actionable breach of legal duty, act, omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all its degrees...

I certainly can claim breach of contract, breach of agreement, broken promise and fault. t. See my affidavit of August 8, 2003, and the exhibits, the letter and the e-mails that Smith mailed to me, promising to write a completely different article and leaving my private life out of it.

7. k. Issue on appeal: theft by deception of approximately 100 times my image, photos and never returned; Violation of copyright.

Determinative law

Unauthorized reproduction of professional photographs will generally violate the Corpyright Act. 17 U.S.C.A, paragraph 107.

Utah Code 76-6-405 (1), Theft by deception; 39-6-98, Theft � wrongful conversion; 77-37-3 (f) Bill of Rights, victim has right of her property returned.

Standard of review

Defendants violated also the U.S. Constitution, the Fifth Amendment. It grants people property, which shall be not taken without just compensation. My image, my looks are my property, so are the approximately 100 photos that the Tribune photographer took under deception and fraud, and which they don't return to me.

There can be also only one reason why they don't return photos with my image. The defendants want to misuse them farther.

7. l. Issue on appeal: misappropriation, Tribune had no right to publish my photo in that particular article.

Determinative law and Standard of review

Misappropriation is the unauthorized use of a person's name, photograph, likeness, voice or endorsement. Publishing a photo without permission is misappropriation.

Tribune had only permission to publish photo of me in an article about how federal government denies other citizens and members of press their rights for FOIA records using my cases, and for NO OTHER ARTICLE. Smith never wrote that article that he promised me he would write. The use of the photo in the article, to which I never agreed, is misappropriation.

7. m. Issue on appeal: I am private person, no public figure, no limited public figure, no vortex public figure.

Determinative law and Standard of review

In Gertz v. Welch, 418 U.S. at 344, 94 S.Ct. at 3009, 41 L.Ed.2nd at 808, the U.S. Supreme Court held that private individuals were more vulnerable to injury, and therefore the state interest in protecting them was correspondingly greater.

The Utah Supreme Court wrote: "It is plain that the plaintiff in this case is not a public official. Nor does he fit the definition of a public figure." And "... general criteria for defining that term were established in Gertz v. Robert Welch, 418 U.S. 323, 41 Led.2d 789, 94 S.Ct. 2997 (1997). The court stated: Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public attention, are properly classified as public figures... . Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. Most commonly, those classified as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. [Id. at 342, 345].

Counsel of defendants, O'Brien, claimed in the lower instance that I would be a "limited public figure" to win his case for the Tribune. However, media cannot generate a controversy and then label a formerly "private" person ensnared in the controversy as a "limited public figure" or "vortex public figure". In libel cases, court have generally rejected such "bootstrapping" of a private person into a limited public figure, a change of status that would alter the standards of fault in favor of media defendants.

A plaintiff cannot be made public merely by the defendant's actions. This was further illustrated by the U.S. Supreme Court decision in Hutchinson v. Proxmire, 443 U.S. 111. Ronald Hutchinson was a researcher who has received $ 500,000 in grants from the Department of Defense and NASA "to study stress in monkeys". Senator William Proxmire perceived that was waste of federal funds (sounds like a huge waste of tax payers money also in my view, but anyway) and he gave his "Golden Fleece" award to Hutchinson's funding agency. Hutchinson complained that he is subjected to public derision and sued for libel. The Supreme Court said that Hutchison was not a public figure because his work was of limited interest and was not controversial until Proxmire's award made it so. Hutchinson had not voluntary thrust himself into the public eye to influence others. (Wouldn't probably be a good idea, because most people will consider such kind of research a waste of tax papers money, but anyway.)

This and similar cases illustrate what has come to be labeled as "bootstrapping". It occurs when media defendants attaches (or bootstrap) themselves onto the protection of the actual malice standard by pointing to media, including their own coverage, as evidence that the plaintiff is a public figure. The Supreme Court said: "Clearly, those charged with defamation cannot, by their own conduct, create their own defense my making the claimant a public figure." (Made me suspect, that if I would be in the $ 500. 0000 business of researching monkeys, that I would have won my case in a heartbeat.)

However, I did not voluntary thrust myself into the public eye to influence others. All I did was asking the federal government for records and that as a private individual, and after they did not conduct lawful searches as required under the FOIA statutes and withheld records, I filed some civil cases, also as a private citizen and certainly not to get any media attention.

O'Brien claimed absolute privilege, but there is no absolute privilege. Reportage of public proceedings must be "fair and true" otherwise defamatory publication is no longer privileged.

The Utah Supreme Court stated in Seegmiller v. KSL, that Seegmiller did not occupy a position of "persuasive power and influence", nor did he thrust himself to the forefront of a public controversy. On the contrary, he was plucked by the defendants from the anonymity of his life and thrust against his will into the limelight. � Same happened with me. Tribune reporter Smith informed me that he found out about me per accident by researching another case. He informed me also that a governmental employee asked him how he found out about me, and he published that the Church of Scientology speaker told him that they would not know who I am. (See my affidavit of August 8, 2003.) That is not fame, and that is not the life of a public figure. I am a private person, and the Tribune had no right to ridicule my private life and to shame me on their front page, publishing a defamatory and malicious article about me with many deliberate falsehoods and purpose to misinform the public.

The U.S. Supreme Court has established some guidelines on who constitutes a public figure:

1) Involuntary Public Figure: become public figure through no purposeful action of their own, including those who have become especially prominent in the affairs of society;

2) Always Public Figures: those who occupy position of such persuasive power and influence that they are deemed public figures for all purposes;

3) Public Figures on Specific Issues: "those who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." Gertz v. Welch, Inc., 418 U.S. 323, 345 (1974.)

I don't fit in any of these categories.

7. n. Issue on appeal: defendants are not entitled to privilege, as falsehoods, defamation and actual malice are not covered under the Utah or U.S. Constitution or other laws.

Determinative law: Utah Code 76-9-505, Libelous matter not privileged.

Standard of review

Case law generally holds that communications that are otherwise privileged lose their privilege if the statement is excessively published, that is, published to more than the scope of the privilege requires to effectuate its purpose. Brehany v. Nordstrom, Inc, 812 P2.d 49, 58 (Utah 1991) (stating that the "plaintiff can show abuse of the privilege by proving that... the publication of the defamatory material extended beyond those who have a legally justified reason for receiving it"). See also Sullivan v. Birmingham, 416 N.E.2d (Mass. Ct. App. 1981); Vahlsing Christina Corp v. Stanley, 487 A2d 264 (Me. 1985); 50 A. Jur. 2d Libel and Slander paragraph 299 (1995).

The Tribune article about me was on their Sunday front page, (they have more readers on Sundays) and published it to 150.000 households and even more readers on-line. They all did not need to know details (also not false and twisted details) about my private life, nor needed they to know where I live. Tribune can't claim privilege as article and statements were excessively published.

The Utah and U.S. Constitution does not protect speech that is false, intended to harm, aimed at private citizens, or otherwise defamatory. As justice Brennan wrote for the Court in Garrison, [T]he use of the known lie as a tool is at once at odd with the premise of democratic government and with the orderly manner in which economic, social or political change is to be effected. Calculated falsehood falls into that class of utterances which are... of such slight social value as a step to truth that any benefit that might derived from them is clearly outweighed by the social interest in order and morality, 379 U.S. at 75, 85 S.Ct. 209, (quoting Chaplinsky v. New Hamshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 Led. 1031 (1942).

"The quality of our society depends upon the honor of its citizens, we are required to abide by proscriptions of society with honor if we are to continue as a civil society. To ignore this obligation of citizenship is to tear the fabric that holds us together, and ultimately risks, not preserves, the freedom we celebrate. If defendant in this instance did intentional publish the statements attributed to him, knowing that they were false or that he had no basis upon which to believe they were not false, his behavior must be corrected. I.M.L v. State of Utah, 61 P3d 1038 (Utah 2002.) The First Amendment was never intented to protect intentional falsehood levied against innocent, private persons. Lies serve no good purpose, serve no valid public purpose and have no protected status in our public disclosure. One who knowingly lies for the expressed purpose of doing harm to another, as did the defendants in this instance, cannot claim the protection of the Constitution for volitional breach of social contract." I.M.L, v. State of Utah (20010159).

By publishing maliciously defamatory article about me that is wrong in sting and gist, defendants violated the Ninth Amendment. This Amendment is about the enumeration in the Constitution of certain rights shall be not construed to deny or disparage others retained by the people. One of these rights is being left alone, having privacy. The word privacy is not in the Bill of Rights but the U.S. Supreme Court has ruled through a variety of amendments that people have a fundamental right to privacy. The Tribune had no business to spill twisted, out of context or false private information about me to 150.000 households and even more readers on-line and to provide those people with a direct link to my home address.

Furthermore, defendants violated following of my U.S. constitutional rights:

The First Amendment that protects rights to communicate ideas, concepts, thoughts, beliefs and artistic impressions, but not malicious defamation, libel, invasion into privacy, violation of privacy by a newpaper against a private citizen. � The Tribune cited me incoherently and out of context. This is also a violation of my right for free speech.

Defendants abused the First Amendment by having published defamatory and malicious article about me.

Defendants and their counsel also abused the First Amendment trying to deny to me access to the court; the right to petition to the court for a redress of grievances by asking the court to deny that access upon my inability to pay the court fees and by not filing my motions and unconstitutionally controlling my motions into not filing them. That is also a violation of my Fourteenth Amendment rights.

Those activities are evidence of the outrageous double moral by the Tribune defendants and their counsel. They claim constitutional protection of their free speech, even for their actual malice and defamation, but same time they try to deny all my constitutional rights, even those of access to the courts.

The Tribune tries to come away by citing the First Amendment, the "right to speak freely and the right to refrain from speaking at all." I never would have sued the Tribune if they would have chosen not to write about me at all, but as they have chosen to write about me, and that on their front page, they have to be held accountable that their right to speak freely violated rights of mine, including constitutional rights. They did not use their First Amendment rights honestly and ethically, but in a harmful, actual malicious article, that is wrong in sting and gist and violates my rights of privacy, security and defames me outrageously.

Tribune counsel misinformed the trial court that I did not claim any constitutional violations of my rights. I did so, in my complaint, page 2. I claimed that the Tribune violated following of my constitutional rights: Utah Constitution, Article 1, Right to protect property (my photos); Private property for public use (using maliciously defamatory story about me and my photo to entertain but also mislead people that buy their paper) without compensation for me; Section 25, Rights retained by people; Section 27, fundamental rights (to live in peace, to be not defamed, to protect my privacy).

Private party may recover damages caused by publication of defamatory material upon lesser showing of fault than that which must be made by a public official or public figure which must be made by public official or public official even where subject of communication is one of legitimate public concern; to recover, private party need only demonstrate by preponderance derance of evidence that defendant acted in grossly irresponsible manner... Mahoney v. State, 665 N.Y.S.2n 691, 236 A.D.2d 37. See also Dobson v. Harris, 530 S.E.2n 829, 352, NC 77.

To state a defamation claim based on implied statements plaintiff must show that a reasonable juror could conclude that the alleged defamatory implications constituted probably false assertions of facts. � Doods v. American Broadcasting Co., 145 F3d 1053 (Cal 1998).

I trust that no judge, attorney, juror or other person wants to be called a "FOIA-terrorist" or wants to be wrongfully labeled as kook that overloaded the entire and mightiest federal government in the world, the U.S. government and want to be publicly abused, as I was and still are, by others, over the defamatory article.

For defense of privilege, to apply action for slander and libel, good faith an interest to be upheld, a statement properly limited in its scope, a proper occasion and publication to proper persons must be all established, and absence of any or one of these constitutent elements will, as general rule prevent defendant form relying on privilege. � Dominy v. Shumpert, 510 S.E. 2d 81, 25 GA App. 500 (GA 1998). See also Uema v. Nippon Ex. Hawaii, Inc., 26F.Supp2d 1241 (HAWAII 1998); Harding v. Rosewell, 22 F.Supp.2d 806, (ILL 1998); Dawson v. NY Life Ins., 932 F. Supp 1509 (NY 1996); Ransom v. Baltimore County, 111 F.Supp 2d704 (MD 2000); Stokes v. CBS, 25 F.Supp2d 992 (MINN 1998); Cooke v. Equitable Life Assur. Soc. of U.S., 723 A.2d 723.

Privilege can't be claimed in case of actual malice and it can't be abused; and the Tribune is guilty on all counts.

In deciding whether a statement is capable of sustaining a defamatory meaning the guilding principle is the statement's tendency to injure in the eyes of its audience when viewed in context in which it was made. � Mast vs. Overson, 971 P2d 928 (Ut.App.1998).

In deciding whether a statement is defamatory, the relevant audience is neither an individual with peculiar views, nor a majority of society at large, but rather a substantial and respectable minority. - Id.

A "respectable minority" enjoyed that Tribune article in the Google newsgroups. Those abusive people hailed the article, and some of their scornful, harassing, insulting, abusive and malicious postings are attached. (See my affidavit of August 8, 2003 and the exhibits.)

There is no absolute privilege from liability under speech clause of First Amendment for defamatory statements... U.S.C.A. Const. Amendment. 1 � Richmond v. Thompson, 922 P2d 1345, 130, Wash.2d 368 (Wash 1996).

As a general rule, alleged defamatory communications that are otherwise privileged lose their privilege if the statement is published to more persons than the scope of privilege required to effectuate its purpose. DeBry v. Godbe, 992 P.2d 979 (UT. 1999).

The Tribune had no right to make twisted, incoherent and false private information about me available to 150.000 households and even more readers on line. They did not need to know about my private life at all and neither the address where I live.

Under Minnesota law, qualified privilege against defamation claim may be lost if abused. Ewald v. Wal-Mart Stores Inc., 139 F.3d 619 (MINN 1998). The Tribune is abusing the qualified privilege and the other privileges. They are using the privileges to come away with acting above the laws and my constitutional rights.

Under New York law, if a defamatory communication is conditionally privileged, the plaintiff may nonetheless prevail by establishing that it was published excessively, that is, it was made to persons with an insufficient interest in it for it to warrant protection, or that it was made with "malice". Restatement (Second) of Torts, paragraph 604.

Konikoff v. Prudential Ins. Co. of America, 234 F 3d 92 (NY 2000). That applies to my case. The article was maliciously false, and it was published on the front page of the Sunday, Mothers Day edition, because on Sunday and holidays, the Tribune has more readers. It was also on their on-line edition. The article was published excessively. The false data, the twisted and private information was made unconstitutionally and lawlessly available to just about anybody, especially in my home state, but also on-line, hundred thousands, possibly millions of people, which didn't need to know.

"Privilege" protects those who make otherwise defamatory statements from legal libality.- Price v. Armour, 945 P.2d 1251 (Utah). - This means that "privilege" is abused by those that like to defame others claiming non-responsibility. That is exactly what the defendants are doing.

Under Pennsylvania law, any alleged defamatory statements by a psychologist were not privileged; psychologist provided neither authority for nor scope of alleged privilege. Gardiner v. Mercyhurst College, 942 F.Supp 1050 (PA 1995).

To be privileged, alleged defamatory statement must be made upon a proper occasion, for a proper motive, and based upon resonable or probable cause. � French v. Eagle Nursing Home Inc., 973 F.Supp .870. See also Mike v. Ron Saxon Ford, Inc. 960 F.Supp 1395 (MINN 1997).

The Tribune can't claim a proper occasion, a proper motive, reasonable or probable cause for their maliciously defamatory article.

In determining whether defamatory statement is privileged under First Amendment, trail statement is one of opinion relating to matters of public concern which does not court must determine whether contain a provable false factual connotation, or which cannot reasonably be interpreted as stating actual facts about an individual. U.S.C.A. Const. Amendment. In determining whether alleged defamatory statement is privileged under First Amendment, relevant considerations include phrasing of statement context in which it appears, medium through which it is disseminated, circumstances surrounding its publication and a determination of whether statement implies existence of undisclosed facts, which support it. U.S.C.A. Constit. Amendment 1-Id. See also Johnson v. Schmitz, 199 F.Supp. 2d 90 (Conn 2000).

Many publishers that claimed "absolute privilege" in defamation, libel, slander, privacy cases did not come away with it. Rockwood Bank v. Gaia, 17 F.3d 833 (Mo 1999). See also L.C. v. Major League Baseball Ass'n, 148 L.Ed2d 120 (OK 2000); Arenal v. City of Punta Gorda, 932 F.Supp. (FLA 1996); Bogosian v. Board of Educ of Community School District, 73F. Supp.2d 949 (ILL 1999); Dawson v. NY Life Ins. Co., 932 F.Supp.1509 (ILL 1999); Stokes v. CBS Inc., 25 F.Supp2d 992; Goodman Herron v. Advanced Nav & Positioning Corp, 940 F Supp2nd 281 (OR 1996) and Burke v. Green, 963 F2d. 1119 (CO 1998).

7. o. Issue on appeal: I am entitled to damages under the law.

Determinative law: Utah Code 76-9-406, injunctive relief against privacy offenses - damages.

Standard of review

Private individual may recover damages from publisher of defamation, falsehood as compensation for actual injury upon showing that publisher knew or should have known that defamatory statement was false. See also Wal-Mart Store v. Lane, 31 S.W.3d 282 (TX 2000) and Dolcefino v. Turner, 987 S.W.2d 100 (TX 1998).

Under Chapadeau standard, a private person may recover from defamation when the defendant has acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties. Khan v. NY Times Inc., 710 N.Y.S.2d 41, 269 AD2d 74.

A Restaurant operator, a private figure, was not required to prove malice in part of newspaper that published article about him to recover actual damages for defamation. Englezos v. Newspress and Gazette Co., 980 S.W. 2nd 25 (MO 1998).

(According to what other people tell me, I am not better known than a restaurant operator.)

7. p. Issue on appeal: dismissal of case and/or summary judgment was not appropriate. I established prima facie case.

Determinative law

Utah Code 76-8-502 (1) (2), 76-8-503; Utah Rule of Civil Procedure, rule 52 e, Federal Rule of Civil Procedure, rule 56 c.

Judicial Code, Title 78, Capter 25, Evidence; 78-25-2, Statute as evidence; 78-25-7; Certificate of acknowledgement as evidence; 78-25-15, Filing of affidavit.

Standard of review

The Utah Supreme Court reversed summary judgment in Direct Import Buyer's Ass'n v. KSL, 538 P.2d 1040 (1975) in favor for the defendants on the grounds that a disputed issue of fact as to the defendant's malice existed. Without discussion of the point, the court's opinion was premised on the proposition that the case involved defamation of character and a conditional privilege. The court, in that context, stated that the appropriate standard of malice to be applied to overcome the privilege was "an improper motive such a desire to do harm or that the defendant did not honestly believe his statements to be true or that the publication was excessive." 538 P2d at 1042.

An impartial court will not dismiss a defamation action merely because a plaintiff has already a bad reputation. Schiavone Construction Co., v. Time, Inc., 646 F.Supp. 1511, 1516 (D.N.J. 1986), rev'd, 847 F2d.1069, 1072-73 (3rd Cir. 1988). Finklea, 742 S.W.2d at 516. ("[E]ven the public outcast's remaining good reputation is entitled to protection.)

I have no bad reputation, but Tribune defendants and their counsel try all they can to make one for me.

I proved with my affidavit and the exhibits that Tribune reporter Christopher Smith knew that he did not publish the truth about me and my matters. Smith did not state in his affidavit that any of my claims about him in my affidavit are false.

A grant of summary judgment is reviewed for correctness. Oxendine v. Overturf, 1999 Utah, F2d.417. The grant denial "of a motion to dismiss is a question of law (that) we review for correctness, giving no deference of the trial court." Krouse v. Bower, 2d.P.3d 89, (Utah 2001), State v. Horrocks, 2001 Ut. App 4, P10, 17 P.3d 1145. "We view the facts and all reasonable interferences drawn... in the light most favorable to the non-moving party. DCM Inv. Corp. v. Pinecrest, 2001 Utah 91, 34P.3d 785, Lovendahl, 2002 Utah 133 at P11, Nelson v. Salt Lake City, 1919 P2d 568, 591 (Utah 1996) and Stevensen v. Goodson, 924 P.2d 339, 342 (Utah 1996).

"We review the district court's grant of summary judgment de novo, viewing 'the evidence and draw[ing] reasonable inferences therefrom in the light most favorable to the nonmoving party'". Murphree v. U.S. Bank of Utah, 01-4106, citing Simms v. Oklahoma ex rel. Department of Mental Health & Substance Abuse Serives, 165 F3d. 1321, 1326 (10th Cir. 1999).

Fact is that judge Iwasaki did not view the facts of my case in any favorable light. He unlawfully ignored them.

When our review "requirers us to examine statutory language, we look first to the plain meaning of the statute. Young v. Salt Lake City School District, 2002 Utah 64 P.10, 52 P.3d 1230.

Judge Iwasaki did not look at ANY statute when he heard my case and kicked it out. He applied only his own and the Tribune's private laws, which say I am not equal under the law with others.

The grant of a motion to dismiss is likewise a matter of law, which the appellate court reviews for correctness. Thimmes v. Utah State University, 2001 Utah App. 93, P4, 22P.3d 257, 258.

The appeal court has to do this in this case as well as we are all equal under the law.

"We review the grant or denial of summary judgment de novo, applying the same standards as the district court." Habermehl v. Potter, 153 F3d 1137, 1138 (10th Cir. 1998). Thus, "[s]ummary judgment is appropriate (only) if the evidence before the court, when viewed in the light most favorable to the nonmoving party, demonstrates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." Id. At 1139, see also Rule 56 c, Federal Rule of Civil Procedure.

Summary judgment is only appropriate when no genuine issue of material facts exist and the moving party is entitled to judgment as a matter of law. Hill v. Allred, 2001 Utah 16, P12, 28 P.3d 1271, see Peterson v. Coca-Cola USA, 2002 UT 42, P7 48P.3d 94. See also Utah Rules of Civil Procedure 65 (c). The trial courts resolution of the legal issues is accorded no deference since entitlement to summary judgment is a question of law. Hill, 2001 UT. 16 at P12.

When a court decides a motion for summary judgment, rule 52 of Utah Rules of Civil Procedure is applicable. It states that the court shall... issue a brief written statement on the grounds for its decision... when the motion is based on more than one ground.

That isn't the case in the unprofessional lawless and unconstitutional order that O'Brien provided and that Iwasaki signed. They cited NO grounds and NO laws. Accordingly, the appeal court has to determine whether the trial court erred in applying the governing law and whether the motion to dismiss granted was completely inappropriate under Restatement of Torts (Second) that I had listed in my motion. I made specific facts showing that there is a genuine issue for a trial pursuant to Utah Rule Civil Procedure, Rule 56 (e), and I supported my claims with an affidavit and exhibits, the correspondence with reporter Smith prior to the article and other documents. The case was absolutely not completely, fully and fairly litigated as requirement before granting summary judgment. The affidavit that the defendant Chris Smith wrote on July 18, 2003, and filed around July 21, 2003, did not support their motion for summary judgment in any way. Smith stated in his ridiculous and insignificant affidavit that copies of the e-mail communication between himself and I would be attached to defendants' motion in support of their motion to dismiss and/or summary judgment. But he did not state with one word that my claims against him and the Tribune would be false. Smith filed that affidavit to mislead the court (and Iwasaki apparently had nothing against being misled) that the e-mail attached to the motion would be all there was. I proved that there was much more correspondence, also handwritten letter by Smith promising me to write a completely different article than he did later. As the Smith affidavit did not support motion to dismiss/or summary judgment, summary judgment or dismissal should have never been granted by the trial court. Therefore, the Smith affidavit is a document with misleading (false) statements, pursuant to Utah Code 76-8-502 (1) (2) and 76-8-503.

As motion for summary judgment/motion for dismissal was absolutely inappropriately granted, the case must be remanded to the trail court for jury trail.

7. q. Issue on appeal: ex parte communication between defendants, judge, counsel and other parties and conspiracy.

I noticed that Tribune counsel Patrick Michael O'Brien came with a blonde woman to the hearing, who appeared not to be an attorney. I had the impression that judge Iwasaki knew who she was. After the hearing on June 29, 2003, I checked the "Case History" of case, the court docket sheet of case 030912398 MI on the internal court computer and found to my surprise following added as "parties" to my case, which are: All-Search & Inpection (sic) Inc. and Lora Mengucci. Those names don't appear in any of O'Brien's motions, pleadings or other filings to the courts. They never filed any formal and official paper that they entered my case. This is my case, and I was not informed why the All-Search Inspection Inc. and Ms. Mengucci made an appearance in my case. It is outrageous! However, they must have had (through the Tribune and O'Brien) ex parte communication with the court, otherwise their names would not appear on the docket sheet of the court.

When I suspected O'Brien earlier on of having ex parte communication with the court, he exploded in one of his motions in my face and called me "paranoid". The internal court docket sheet however confirms, that the forbidden ex parte communication took place.

The court apparently agreed and participated in the ex parte communication, and judge Iwasaki did not reject the ex parte communication with the Tribune, their counsel, that inspection company and Ms. Mengucci.

I came to the conclusion that Ms. Mengucci is a private eye, that she is connected to the All-Search and Inspection Inc., and that the Tribune hired them to spy on me. Defendants, their counsel, and the All-Search and Inspection Inc. had no right to ex parte communication with the court. As they are guilty of ex parte communication, I have to assume that their way of checking me out and putting me under surveillance was also unlawful.

The question is also why the Tribune did not hire a detective before they published the maliciously defamatory article about me on their front page. The private investigator should have checked the FOIA logs of the federal agencies. She would have found that the names of prominent reporters are on those much more often than mine, and that I did not overload und burdened the government, as the Tribune lied. She would have found that the $ 303 FOIA fees were criminally fabricated by federal employees to deny records to me; she would have found out that the government conspired against me to deny records to me; and that reporter Chris Smith was right in one point (which he just wrote to me privately but did not publish to cover for the employees as he needs them to advance his own career in the District of Columbia), that federal workers are lazy and don't want to work. And that might be one of the reasons they complain they are overworked and "overloaded". Smith informed me that federal workers do all to avoid coming to work. But on the other side, Smith knew that all along, and concealed the facts in his article.

Instead of just printing a correction of their falsehoods and instead of returning my photos to me, the Tribune certainly wasted a lot of money, for their incompetent, arrogant and above the law attorney and for the private investigator. They did not find anything criminal on me, because I am not criminal. Allowing ex parte communication as judge, and participating in it, is invisible treason.

Determinative law and Standard of review

Utah Code on Conspiracy, paragraph 76-4-201

Ex parte communication by the judge and his clerks violates Article V, Section 1 of the Utah Constitution, known as separation of powers provision.

Contacts by the judge with all three defendants, e.g. phone conversations or otherwise contacts constitutes violation of Canon 3 B(7) of Code of Judicial Conduct, which prohibits a judge from initiating ex parte communication concerning pending proceedings. Cannon 3 B (9) prohibits a judge from making any "non public comments that might substantially interfere with a fair trial or hearing. Cannon 3E (1) (a), requires a judge to enter a disqualification" in proceeding in which judge's impartiality might be reasonably questioned. � In re Young, 976 P.2d 581, 591 (Utah 1999), Utah Supreme Court found this judge guilty of ex parte communication, case no: 970032, filed August 27, 1999.

In re Inquiry concerning Judge David Young, Utah Supreme Court case 970032, the Utah Supreme Court ruled: "... judge Young committed 'conduct prejudicial to the administration of justice which brings a judicial office into disrepute.' Utah Const. Art. VIII paragraph 13(5); see also Utah Code Ann. Paragraph 78-7-28 (1)(e). The 'prejudicial conduct' ground (for disciplining a judge) requires (i) identifying the relevant 'unjudicial conduct' and (ii) assessing whether that conduct would appear to an objective observer to prejudice public esteem for the judicial office.' Worthen, 926P2d t 872. 'Prejudicial conduct' encompasses either unjudicial conduct committed in judicial capacity but without bad faith or willful misconduct committed in bad faith but not in a judicial capacity.' Id. At 871. 'Unjudicial conduct' and 'misconduct' are both defined as breach of the ethical canons contained in the Code of Judicial Conduct. Id at 870. Thus, prejudicial conduct occurs if a judge violates those canons while acting in a judicial

capacity, irrespective of her or his mental state at the time, or while not acting in a judicial capacity, willfully and in bad that violated the canons".

The Utah Supreme Court continued: "In view of its findings of fact concerning the subject phone call, the Commission determined that judge Young engaged in unjudicial conduct while acting in a judicial capacity. The Commission concluded that judge Young violated Canon 3B7, which provides in part that 'except as authorized by law, a judge shall neither initiate, nor consider and shall discourage, ex parte or other communications concerning a pending or impending proceedings. ... Canon 3B(7) prohibits a judge from engaging in unauthorized ex parte communication with attorneys involved in any pending proceedings, not just those over which the judge presides. Section 78-7-28 (1) of the Utah Code provides that a judge "may be removed from office, suspended, censured, involuntary retired, or publicly or privately reprimanded". The sanctions are listed n the order of declining severity. McCully, 942 P2d at 331."

Communication with court becomes impermissible "ex parte contact", when it is made to judge before whom proceeding is prending and when it concerns merits of cause. See In re Complaint of Thompson, 940 P.2d 512, 325, OR 467.

Crime of "conspiracy" entails an element not required by aiding and betting statute, an agreement between co-conspirators prior to concerted action, to violate the law, See State v. Gallatin, 682 P2d 105, 106, Idaho 564.

"Conspiracy" is an agreement between two or more persons for unlawful purpose. See Doyle v. State, 921 P2d 901, 112 Nev. 879.

Criminal agreement is gist of crime of "conspiracy", and conspiracy is complete when agreement is entered. See State v. Carrasco, 946 P2d 1975, 124 NM 65.

Element of "conspiracy" are: agreement to commit crimes, charged and an overt act by one of more parties in furtherance of conspiracy or to effect its purpose. See Hackney v. State, 874 P2d 810 (OK).

"Conspiracy to defraud" is fraud committed by two or more persons who share intent to defraud another. See DeBry v. Cascade Enterprises, 879 P2d 1353, (Utah).

7. r. Issue on appeal: jury trial denied.

Judge Iwasaki denied my constitutional right for jury trial. He denied my right of due process.

I proved following with my complaint, the affidavit and the exhibits:

- The libel, the actual malice, the defamation was published.

- The Tribune publication was about me.

- The material is false.

- The defendants were at fault.

Such a case deserves a jury trial, which Iwasaki unconstitutionally and in personal bias denied to me.

Determinative law: Utah Code, Title 78, Judicial Code 78-21-1, Utah Constitution, Article I, Section 10, U.S. Constitution, Amendment VII.

Standard of review

Christiansen v. Harris, 109 Utah 1, 163 P2d 314, 317 (1945) (stating that essentials of due process include fair opportunity to submit evidence, examine and cross examine witnesses.)

Right to fair trail incorporates the right to have trial presided over by a judge who was free from "bias" and "prejudice"; bias and prejudice means, amongst other things, undue favoritism towards one of the litigants. See U.S.C.A. Const. Amendment 6. � Wesley v. State, 916 P2d 793, 112 Nev. 503.

U.S. Supreme Court has held in Godinez v. Moran, 509 U.S. 389 (1993) that individuals are constitutionally entitled to represent themselves, but judge Iwasaki is so biased that he did not consider that I, the plaintiff, established prima facie case, and he ignored the law in my favor. In other words: I can't represent myself before a biased judge, as he won't look at the merits of the case.

Denying my right to a jury trial is bias and prejudice of judge Iwasaki, and he definitely favors all defendants of this case.

7. s. Issue on appeal: abuse of discretion, judge Iwasaki, judge Peuler and judge Berret biased towards me.

In his motion to dismiss/or for summary judgment, that became later the "law", O'Brien attacked that I filed a motion to the court complaining that my original complaint was not filed by the intake clerk and that I suspected conspiracy. (See the motion attached to the docketing statement.) He found that unqualified on my behalf. O'Brien finds anything I do to get my rights granted, unqualified and attacks it. He tried to deny access to the courts completely to me and alternatively wants an unconstitutional control of which of my motions the court should file and which not. He, the alleged pro-free speech advocate, is not pro free speech and constitutional access to the courts, as far as I am concerned.

On the early docket sheet of this case, my complaint that I filed on June 2, 2003, was not docketed as filed. It just mentioned that the "case" was filed but the filing of the complaint was concealed. I checked at random the court dockets of numerous other Third District court cases, also those of pro se plaintiffs and found to my surprise that on any other docket sheet but mine, the complaint was recorded as filed. My case was treated very differently than those of other litigants.

I insisted that my complaint was docketed as filed, which it later was, by judge Iwasaki's clerk Janet Banks. However she did that after June 9, 1003, after I had filed a motion of protest that the complaint was not docketed, and she backdated my complaint as filed on June 2, 3003. (See the early docket sheet that did not mention the complaint, both attached and compare with the current docket sheet.)

On June 9, 2003, when that happened, I did not know who the Tribune attorney was and to what law firm to serve a copy of the motion. The other clerk of judge Iwasaki, Luann H. accused me of "ex parte communication" because no mailing certificate would have been attached to my motion to correct the docket sheet. However, in same time, she filed a letter from somebody with name Rick Egan in my case file and recorded his letter on my docket sheet. This letter was no legal document at all, and did not mention my case or any case file number. It took me a while to get a copy from the court of this letter. The clerks did not make it easy to get hold of the nonsense paper they filed. This Rick Egan was apparently not the defendant, the photographer Rick Egan. This Egan was going through a divorce, and it was very clear that this letter had nothing to do with my case, and it had no mailing certificate attached to it. Judge Iwasaki's clerk Luann oddly did not accuse that man on ex parte communication or violation of the service rules. The Third District Court, the clerks and messed around with my case. Iwasaki and his clerks apparently know what ex parte communication is, blame me when it was none, but do it, bless it and participate in it, when it is done to confuse my case or when the Tribune, their Search and Inspection Company, Ms. Lora Mengucci and/or defendant's counsel talk behind my back to the judge.

According to Tribune counsel O'Brien, who is now the "law" in Utah, I have to swallow that all, and I have to agree to such outrageous behavior, conspiracy, ex parte communication and bias from a court that should treat everyone the same.

I reminded the court in the motion filed June 8, 2003, that it has to watch out for lawless clerks. Striking is also that on the same day, when the Tribune maliciously defamed me on their front page, on May 11, 2003, there was an article on page six about a Third District Court clerk who was investigated by the FBI of criminal conduct on her court job. That is the kind of story that should be on the front page, not the malicious article about my private life. Her name was not published by the Tribune. Nothing of the private life of the criminal clerk was made known by the Tribune, but my name and my private life was smeared and I got so much more exposure than the clerk who committed outrageous crimes.

The Hearing:

Judge Iwasaki did not say much during the hearing that I had before him on September 29, 2003. He stroke down one of my motions because the attorney of defendants, Patrick Michael O'Brien, claimed that I had no right to file that motion in response to his reply. However, the biased, hypocritical and unlawful attitude by judge Iwasaki and O'Brien became apparent, when O'Brien opened his speech with the words that he wants to talk about that case with a different approach. O'Brien suddenly came up with new allegations that he never had put in writing, to which I never had any possibility to prepare and respond to, and judge Iwasaki sat there and allowed it. If he would be an impartial judge, he would have stopped O'Brien right in his tracks and would have told him that he violates the court rules because I had no time to prepare myself for those new allegations. But O'Brien was allowed to present a new case, while my reply was stricken. Iwasaki held this hearing under the motto: people are not equally under the Constitution and the law, Tribune defendants and their shyster have all rights, but I, as the person that was violated by the Tribune, have none. He also titled that hearing: "Law and motion". (See the Third District Court docket sheet.) Oddly enough, he did not cite any law or any statute during the hearing but dismissed the case. My case was not dismissed based on any law or statute, but just based upon arbitrariness, conspiracy and bias.

O'Brien said to Iwasaki that he does not like to attack me. He certainly had a weird way of showing that, because his pleadings and speech went far beyond acceptable advocacy into the realm of improper, defamatory and malicious attacks. He did not tell the truth about the case and the activities of the Tribune against me. If he would not like to attack me, he should have advised his clients, the Tribune, to return the approximately 100 negatives and photos to me and to print a retraction. But he did not. It would have been really easy for the Tribune to settle the case.

During that hearing, O'Brien mentioned first time that I filed only hundreds and not thousands of FOIA requests. It is a fact that famous reporters filed thousands of FOIA requests, and it should have dawned upon judge Iwasaki that it was not me who "overloaded" the U.S. government, and that the Tribune article about me is wrong in sting and gist. But Iwasaki is no fair judge and has the attitude that I have no rights and the Tribune and their lawyer are the law and the Constitution and may do to me what they please. - I explained to judge Iwasaki during the hearing once more the essence of all my claims. I also mentioned to him again that reporter Chris Smith knew that he was not writing the truth about me, and that he even had information (Smith brought it up by himself) that my life is in danger. But that did not make Iwasaki to ask Smith to explain the details hereto. I came to the conclusion that Iwasaki does not consider my life worth a dime.

Judge Iwasaki said that the Tribune could voluntarily give me the (approximately 100) photos of my image back. � I don't need a judge to tell to a criminal business as the Tribune what they can do "voluntarily". They know what they can do "voluntarily". The Tribune needs a judge with character, ethics and backbone, who ORDERS them what to do. The Tribune of course has NOT returned the photos, because they are criminals and thieves and plan further criminal actions with those. The Tribune is above the law, judge Iwasaki knows it, but he did not correct the defendants. He probably fears that the Tribune retaliates and writes not favorable about him, as they wrote false about me. � Iwasaki said that according to the long affidavit that I wrote, that I feel strongly about the case, but nevertheless he did not grant me any rights, despite that he saw the exhibits to my affidavit, which prove my claims, and that the Tribune reporter Smith definitely just misled with his insignificant affidavit, but that Smith did not write anything under oath that proved me wrong.

Judge Iwasaki knew that Smith lied and tricked me in an interview and photo session by promising to write a completely different article and not about my private life. Iwasaki knew that the Tribune is guilty of actual malice, defamation, libel, outrageous violation of my privacy and that they even published in the article a direct link to my home address, but he had no word of critic for the Tribune. Iwasaki acted as he would be employed by the Tribune or their law firm but not like an impartial judge.

During the hearing, Tribune lawyer O'Brien complained to the judge that I posted in a newsgroup that he would need anger management. He wrote highly explosive pleadings and went far beyond how attorneys express their disagreements with the opposition. There is no doubt in my mind that he tried to get the judge making a ruling against me for having expressed that opinion. He complained to the judge, that everybody can log on the Internet and can read what I have posted about him. It was really striking that O'Brien, the so-called free-speech advocate, complains about me making use my freedom of speech. The Tribune published outrageous falsehoods and maliciously defamation about me on their front page to 150.000 households and even more readers on line, but that is all covered under "privilege" according to their hypocritical attorney. However, if I post my opinion about O'Brien to just a little news group on the net, I am the person who is blamed with wrong doing. Apparently O'Brien favors freedom of speech only if is favorable for himself, otherwise he seems very much opposed to freedom of speech.

The Salt Lake Tribune published an article about a young man with name Lake on January 8, 2003. O'Brien was cited and that he congratulated the dismissal of the charges against Lake, who defamed others as "town drunk", "slut" and came away with it. O'Brien praised that charges against Lake were dismissed. He stated publicly that he is pleased and remarked that the "Constitution is alive and well in Beaver County". However, on the other side of the coin, he tried to deny my access to the court, my right to file uncensored to the court, and my right to appeal, despite those are constitutional rights, and O'Brien, the hypocrite, has also a problem with me posting on the Internet.

By reading his pleadings and motions, anybody will get that he has troubles to control hostility towards me and that the way he treats me goes far beyond how attorneys usually oppose the other party. Judge Iwasaki looked at me as if I would be the sinner, and he did not point out the O'Brien double moral. Iwasaki apparently agreed that the Tribune has any right to write about me in their paper and on-line edition, any right to violate my privacy, smear me and publish outrageous falsehoods, that the Tribune is entitled to misinform their readers, and that all of that is "privileged".

If I would have published anywhere that O'Brien is the town drunk, a terrorist, or his wife or daughter a slut, my guess is, he would have sued me for libel and defamation. O'Brien made the impression on me being a school bully who likes to do bully others, and if somebody complains about him with some true words, he runs to the principal and blames the one he just bullied before. Judge Iwasaki made to me the impression of a principal who does not want to get in any conflict with the influential parents of the bully (that would be the Tribune and their law firm) with the result that the innocent and victim doesn't any help and the bullying can go on.

Iwasaki did not cite ANY law. He just threw my case out. He acted outrageously unconstitutional and lawless. Judges have to hold office during "good behavior". They have to know the law and to apply it. Judges also need to be checked and balanced.

Judge Iwasaki did not grant O'Brien his motion to deny my fee waiver to proceed without costs. O'Brien, anti-constitutional as I learned to know him, had devoted much of his motion for summary judgment or dismissal to deny to me access to the court. However, I came to the conclusion that judge Iwasaki did not revoke fee waiver out of his respect of the Utah and U.S. Constitution, any law or my rights, but that he did not deny the waiver to have the appeal court cover up for him, affirm his unconstitutional and unlawful actions to kick my case out. Iwasaki threatened also that if I file cases in future, that the court will consider denying my right to access to the court. In other words: whatever will hit me in future, I can't ask the court for relief as guaranteed by the Utah and the U.S. Constitution. It is completely corrupt and unconstitutional and reminds to slave "justice" before the Emancipation.

In the first draft of the proposed order, O'Brien, sleezy as he is, left out that the court did not revoke the fee waiver. O'Brien wanted me to sign that order in agreement to its content, but I gave him a deserved ear full. Judge Iwasaki was informed about that, but he still treated O'Brien as "God of the law", and declared, by signing the O'Brien order, all of O'Brien's unqualified above the law memorandum, except a revoked fee waiver, to be the law upon which either summary judgment or dismissal was granted (difference is not clear in Iwasaki's and O'Brien's books).

Judge Iwasaki ignored also my request for a free transcript. I informed him with a filing of October 3, 2003 (see docket sheet) that I can't afford to pay the court reporter and asked him for a free transcript as it is vital for the appeal. Unlawfully and unconstitutionally, Iwasaki did not rule on it.

Seems to me he does not want any written evidence around that shows how he holds his office, and his hearings, without citing any laws or statutes that support his decisions.

After the hearing, on October 3, 2003, I filed a motion to judge Iwasaki to recuse him from my case as being biased. I filed an affidavit to support my motion to disqualify judge Iwasaki on October 9, 2003. I filed an amended affidavit on October 9, 2003 (after I found out that there was ex parte communication between Tribune Counsel O'Brien, a inspection and search company, and a private eye). I filed on October 14, 2003, a response motion in opposition to defendant's objection to plaintiff's recusal affidavits, and also on October 14, 2003, a Certificate of Good Faith to support my motion in opposition to plaintiff's objection to proposed order of defendants, and a motion to judge Iwasaki to recuse himself from the case as being biased. (See docket sheet of this case and the just mentioned documents attached.)

One day after those papers were filed, judge Iwasaki, biased as he is, forwarded ONLY my motion to recuse him to presiding judge Peuler for a decision. He deliberately withheld the affidavits and the certificate of good faith. (See the docket sheet, and the order, minute entry of judge Iwasaki, attached to the exhibits of this docketing statement. I also filed an affidavit for the appeal court on this issue.) Judge Iwasaki is so biased towards me that he withheld the other documents that supported the motion to disqualify him.

Presiding judge Sandra Peuler shifted the matter to associate presiding judge William Barrett. I claim that she also is biased, knew about the set up to make me lose the case and conspire against me, but officially did not want to be a part of it, so she left it up to Barrett to deny my rights furthermore. Judge Peuler did not file any minute or other paper explaining why she did not make the decision on my motion to disqualify Iwasaki and why she handed the case to Barrett. Motions to disqualify judges are usually taken care of by the presiding judge and not the associate presiding judge.

Judge Barrett issued an order on October 21, 2003, claiming that my motion to disqualify judge Iwasaki under rule 63(b) would be legally insufficient, as I would have failed to file an affidavit to support the motion and a certificate that motion to recuse was filed in good faith. He denied my motion to disqualify Iwasaki based on corruption. On the very own court docket sheet, the court recorded that the affidavits and the Certificate of good faith WERE filed, the day before Iwasaki forwarded the motion to disqualify him to chief judge Peuler. Judges check their own court docket sheets and know what's on them. The docket sheet is their index about the cases. They all knew that the documents were filed, but they conspiratively LIED that they were not, to deny my right to an impartial judge and justice.

With date of October 23, 2003, two days after Barrett had filed his order, judge Iwasaki filed an order, mentioning that Barrett denied the motion to disqualify, and that he would now deny my objections to defendants proposed order granting defendant's motion to dismiss and/or for summary judgment. Oddly enough, he asked O'Brien to provide the order, despite that Iwasaki knew that O'Brien had filed his unconstitutional and above the law order already on October 2, 2003.

Iwasaki knew that I had filed affidavits and the Certificate of good faith, and he should have informed Barrett about it ( I bet that Peuler and Barrett knew, after all the filings were recorded on the court's docket sheet), but Iwasaki is a biased, above the law judge, so he did not. (See Utah Code Title 78, 78-5-121 through 78-5-128 about judges and their responsibility towards the docket.) However, also Barrett had a responsibility to check the court docket sheet of the case they are ruling on, and I bet he did, found the documents were filed and just lied that they were not.

Iwasaki asking O'Brien to provide the order again just should add to the confusion. O'Brien filed the exactly same order a few days later again. After that, nothing happened. On November 6, 2003, I filed a motion to Iwasaki to clarify the status of the case, reminded him that O'Brien filed the same order already twice, and Iwasaki played the uninformed in a minute entry on November 13, 2003. He stated he would not understand why I would ask for clarification. He signed defendants' order on November 13, 2003, and in order to deny my rights, I did not get a copy, but had to ask the court clerks to please copy me one and was charged for it. Not mailing me a copy of the decision is also unconstitutional, it says that I am not safe in my papers, and the purpose of not mailing me a copy can be only that I miss my due date to appeal.

The order, to which I objected earlier, and which Iwasaki signed, does not cite ANY law or statute. The order is completely unconstitutional and above the law. I have no clue upon which laws Iwasaki dismissed my case. All I know is that the laws, upon which he threw my case out do not exist, otherwise he would have cited them.

Iwasaki signed an order granting defendants' motion to dismiss and/or for summary judgment and resolving motions to strike. Iwasaki did not even clarify if the case was dismissed or if summary judgment was granted. That is sort of if a court would rule that the death row prisoner should die by hanging and electrical chair. The appeal court knows that cases are usually dismissed, if a court has no jurisdiction or if each claim that a plaintiff states, fails to state a claim upon which relief can be granted. But in my case against the Tribune, there was no doubt that the Third District Court had jurisdiction and that I stated plenty of claims, upon the court could and should have granted relief if Iwasaki would have applied the law. See Rule 12 (b) (6) of Utah Rules of Civil Procedure. Summary judgments (Rule 56 of Fed. R. of Civil Procedure) are granted if there is no genuine issue of material fact. However, I set forth that in my case there is no shortage of genuine issues and material facts and a genuine issue for trail. Utah Rules of Civ. Procedure, 56 (e).

The order that Iwasaki signed just mentioned that my case was dismissed/or summary granted pursuant to the memorandum of O'Brien. O'Brien's motions are filled with laws, statutes and case opinions that don't apply even remotely to the situation. His pleadings are filled with falsehoods and defamatory malicious defamation about me and my character. How can that be the law? Iwasaki basically ruled that the Tribune and their unqualified hostile attorney are the law, which is outrageous. If the job of a judge is not to look at any facts but automatically just grant the law firm with the most influence (and ex parte contacts) anything they want, we don't need judges. The average street person could have done just as "well" as judge Iwasaki.

O'Brien wrote the order and he flattered himself, by declaring everything he wrote in his rambling memo to be the law, including unconstitutionality, above the law attitude, case law that does not even apply to the case, falsehoods, insults, unfair attacks and defamation against me.

Judges have to obey to existing laws and can't just make their own laws. That would be dictatorship. I have a right to know under which statutes and laws the judges dismissed my case! This is blatant and flagrant and gross abuse of discretion. He applied wrong or better no legal standards by not considering the merits of the case and by dismissing my case without citing any statute or case law. A judge has ethical obligation to uphold the law.

Justice Jim Hannah of the Arkansas Supreme Court said recently that "the position of judge is a high calling, and it carries with it obligations not borne by the average person".

That sounds like a joke in my case. If an average person would have been picked right from the street, a construction worker, a house wife, a homeless, and told to be the judge in that case, they could have been not more unjust than the judges that ruled on this case. If judges anyway don't cite any laws but dismiss cases after their own private little agenda, tax payers don't have to pay them hundred thousands of Dollars, average people can do that too, and they perhaps agree to do that just for minimum wage rates.

Determinative law:

Judicial Code, Chapter 5, 785121, Docket to be kept � enumeration of entries required;

78-5-122 Docket entries � Prima facie evidence; 78-5-123 Docket index;

Utah Code of Judicial Conduct Annotated, Chapter 12, Rule of Professional Conduct, Cannon 1, 2, and 3. Utah Rule of Civil Procedure, Rule 65 (B) (d) (2) (A).

Canon 2A states that "a judge shall respect and comply with the law." Cannon 3B (2) requires a judge to a "apply the law". Not applying any laws, as in this case, is clearly gross abuse of judicial power.

Utah Code 78-8-103, Grounds for reprimand, 78-8-104, Criminal. � Utah Rule of Civil Procedure, abuse of discretion, Rule 65B (d) (2) (A), allows to direct the particular exercise of a lower court's judgment to correct the lower court's abuse of discretion.

Standard of review

See also Salt Lake Child & Family Therapy Clinic, Inc., v. Frederick, 890 P2d 1017, 1019-22 (Utah 1995). Indian Village Trading Post v. Inc. Bench, 929 P.2d 367, 370 (Utah Ct. App. 1996).

Judges Iwasaki and Barrett are very biased against me, they favored the defendants, and They did not fairly and impartially determine the issues and the law. Iwasaki granted summary judgment or dismissal to the defendants despite that there is no law that supported his biased decision. His is extreme bias and a deep seated antagonism against me. See Poulssen v. Frear, 946 P2d 738, 742, (Utah Court Appeals 1997),and (quoting Orderville Irrig Co. v. Glendale Irrig., Co, 17, Utah 2nd 282, 288, 409 Pd 61, 621 (1965).

A judgment will be termed an abuse of discretion if he adjudicator has failed to exercise sound, reasonable, and legal decision-making skills. See Wilton v. Seven Falls Co., 515 US 277 (1995) and Electric Co. v. Joiner, 522 US 136 (1997). An abuse of discretion may be manifest if the action of the judge... were "inherently unfair". See State v. Wright, 893 P2d 1113, 1120, Ut. Ct. App. 1995.

Judges Iwasaki and Barrett were that certainly to me by denying my rights bluntly, by conspiring against me and not even citing any law upon which Iwasaki threw my case out.

Claim for abuse of process requires two elements, (1) ulterior purpose and (2) act in use of process which is not proper in regular prosecution of lawsuit. See Procter & Gamble v. Haugen, 179 FDR, 622. � Under Utah law, whether there was abuse of process is to be determined as issue, independent from rightfulness or wrongfulness of prior steps in proceedings. See Keller v. Ray, Quinney & Nebeker, 896 F. Supp 1563, affirmed 78 F.3d 597.

However, in my case, the proceedings that judge Iwasaki and Berrett applied or did not apply are evidence for their abuse of discretion.

"Abuse of discretion" occurs when trail court's decision is not justified by and clearly against the evidence and reason. � See Lambert v. American Dream Homes Corp., 937 P2d 661. (OR). "Abuse of discretion" is a legal term reflecting opinion of an appellate court that trial court committed an error of law in the circumstances. See Vance v. District Court of Fremont County, 908 P.2d 1189.

"Abuse of discretion" occurs when there is no competent evidence in the record to support the decision. See Rumsford v. Public employees' Retirement Ass'n, 833 P.2d 614.

A trial court "abuses its discretion" when its decision is based on untenable grounds or reasons or if it makes a determination that is manisfestly unreasonable. See State v. Lusby, 18 P3d 625, 105 Wash. App. 257.

To establish "abuse of discretion", party must show that the trail court's determination on discretionary matter was manisfestly arbitrary, unreasonable, or unfair. See People v. Eggert, 923 P2d 230.

An "abuse of discretion" occurs when administrative agency has not acted in a manner required by the law. See New Mexico Regulation & Licensing Department v. Lujan, 979 P2d 744, 127 N.M. 233.

"Judicial discretion" is an equitable determination of what is just and proper under the circumstances, and it is abused if the action taken is arbitrary or capricious. See Alber v. Nolle, 645 P.2d 456, NM.

8. Summary of issues:

d) Tribune published malicious defamatory article that is wrong in sting and gist. The publication was excessive. (The article is attached to my affidavit of August 8, 2003.)

g) Tribune printed libel and insults, e.g. citing me as "FOIA terrorist", which is no opinion anymore, but libel per se.

h) Tribune article also otherwise cites me incoherently, out of context to ridicule me, harass me, shame me and make people hate and avoid me.

m) The facts of the dispute, the true controversy with the government, their fraud, conspiracy and other lawlessness were concealed, despite Tribune reporter knew what was going on.

n) The Tribune made unauthorized use of my photo in that particular article. They are guilty of copyright violation.

o) They deliberately used a doctored photo or used the worst shot of hundred for the article to make me look as bad as their malicious defamatory article about me.

s) Having provoked this litigation, and more. Read about the unconstitutional actions and lawless actions by the Third District court below and in the summary.

t) Third District Court, clerk and judges conspired against me, recorded no honest docket sheet, confused my docket sheet, tried to avoid docketing of my complaint, and according to Internet newsgroup postings Tribune and court misinformed others that I never have filed this case to mislead others who wanted information about the case or wanted to join the case.

u) Judge Iwasaki, judge Peuler and judge Barrett are biased towards me. Iwasaki covered up that I filed affidavit and certificate of good faith. Peuler recused herself without providing any reason and handing the case to above the law Barrett, which is her unlawful participation. If she would be not biased she would have ruled on the motion to disqualify Iwasaki or at least filed a minute why she decided not to. Barrett knew that I filed affidavit and certificate of good faith, so did Iwasaki and O'Brien. The documents are even recorded on their own court docket, and Barrett lied that I did not, to cover for biased and unqualified Iwasaki.

v) Iwasaki had ex parte communication with Tribune defendants, their attorney Michael Patrick O'Brien, a private investigator and her company, as also that was docketed on the internal court docket sheet.

w) Iwasaki did not cite any laws, statutes or case opinions when he dismissed his case. He did not even clarify if the case was dismissed or if summary judgment was granted. He signed an order that was proposed by O'Brien, in which he declared all of his rambling memo to support his motion to dismiss/or for summary judgment, including the insults, the defamation, the falsehoods, the laws that did not apply, to be the law.

x) He ignored my motion to grant me free transcript of hearing.

y) Iwasaki threatened during the hearing to deny to me access to the courts in any future case. The hearing was unconstitutional and abusive. He denied my constitutional right to a jury trail, despite that I documented my claims.

z) Summary judgment and/or dismissal were completely unlawfully applied. The final order/judgment of Iwasaki, as proposed by O'Brien, does not clarify if the case was dismissed or if summary judgment was granted.

9. Assignment. I appealed the case to the Utah Court of Appeals. With date of December 1, 2003, I received an order on this appeal, signed by Paulette Stagg, mailing certificate of same day signed by deputy clerk Janet Alexander. Despite clerk Stagg made a decision on my case, she did not assign any file number. She transferred my appeal to the Utah Supreme Court because the appeal would be taken from an order/judgment not involving domestic relations, a case upon which the Utah Court of Appeal would have no jurisdiction according to Utah Code Ann. Paragraph 78-2-2(3) (j) (1996). She informed that Utah Supreme Court would assign the appeal case number.

10. There is no related appeal.

11. Following papers are attached: a) and b) the final judgments upon which the appeal is taken: Minute entry by judge Iwasaki of October 15, 2003; (exhibit A); Minute entry of judge Barrett of October 21, 2003, (exhibit B); Minute entry by judge Iwasaki of October 23, 2003, (exhibit C); Order granting defendants' motion to dismiss/or for summary judgment and resolving motions to strike by judge Iwasaki of November 13, 2003, (exhibit D);

c) The Notice of Appeal, filed November 24, 2003, (exhibit E);

d) My affidavit filed August 8, 2003, (exhibit F);

e) My motion in response to defendants' motion to dismiss or alternatively summary judgment, filed August 8, 2003, (exhibit G);

f) Internal Third District Court case history of that case, (exhibit H);

g) My motion to object proposed order and to disqualify judge Iwasaki, (exhibit I);

h) My amended affidavit to disqualify judge Iwasaki, (exhibit J);

i) My Certificate of good faith, (exhibit K);

j) My response motion in opposition to defendants' objection to my recusal affidavits, (exhibit L);

k) Early June 2003 court docket sheet of the case, (exhibit M);

l) Current court docket sheet of the case, (exhibit N);

m) Motion to protest not being treated equally with other plaintiffs before the court. (exhibit O).

For all other motions filed in this case, please see original 030912398 MI court case file.

Dated this: December, 10, 2003 by Barbara Schwarz

Mailing certificate:

A copy of foregoing docketing statement was personally delivered to law firm Jones Waldo Holbrook & McDonough, 170 South Main Street, Ste. 1500, Salt Lake City, Utah, 84114, for defendants'attorney, Michael Patrick O'Brien.

Dated this: December, 11, 2003 by Barbara Schwarz

From: BarbaralovesMarty@excite.com (Barbara Schwarz)
Subject: Another affidavit...
Date: 13 Dec 2003 13:43:53 -0800
Message-ID: <4c418fa.0312131343.243bbaee@posting.google.com>

Barbara Schwarz, 335 East Broadway, Apt. 401, Salt Lake City, Utah 84111

IN THE UTAH SUPREME COURT

BARBARA SCHWARZ,

PLAINTIFF/APPELLANT, Appellant case no: 20030981 Third Court case no: 030912398 v.

SALT LAKE TRIBUNE, MEDIA NEWS GROUP, PUBLISHER WILLIAM DEAN SINGLETON, CHIEF EDITOR NANCY CONWAY, INTERIM EDITOR BILL LONG, EDITORIAL PAGE EDITOR VERN ANDERSON, MANAGING EDITOR TIM FITZPATRICK, REPORTER CHRISTOPHER SMITH, PHOTO EDITOR LORI POST, PHOTOGAPHER CHRIS EGAN,

DEFENDANTS/APPELLEES,

DECLARATION OF APPELLANT BARBARA SCHWARZ

I, Barbara Schwarz, plaintiff of Third District Court case 030912398 MI, and appellant of above captioned appeal, declare herewith under oath and penalty of perjury the following:

1. It is not true that I did not file an affidavit and no Certificate of good faith to support my motion to disqualify judge Iwasaki. The statement of associate presiding judge William W. Barrett, in his minute entry and order, dated and filed October 21, 2003, saying that I have failed to file a Certificate of good faith and failed to file an affidavit, is WRONG. That means that he denied my motion to disqualify judge Iwasaki based upon false information. 2. I filed on October 3, 2003 my Objection to proposed order and motion to disqualify judge Iwasaki. 3. I filed on October 8, 2003 my Response motion to defendants' memo in opposition to my objection to proposed order of defendants and motion to judge Iwasaki to recuse himself as being biased. 4. I filed on October 8, 2003 my Affidavit in support of my motion to disqualify judge Iwasaki. 5. On October 9, 2003, I found startling information on an internal court docket, called "history of case". It indicated ex parte communication between the defendants, the Salt Lake Tribune, their counsel Patrick Michael O'Brien, the All-search-and-Inspection Inc., and a woman with name Mengucci and the court on my case. Based upon this evidence, I filed on October 9, 2003 my Amended affidavit to support my motion to disqualify judge Iwasaki. 6. On October 14, 2003, I filed my response motion in opposition to defendants' objection to my recusal affidavits. 7. On October 14, 2003, I filed my Certificate of good faith. 8. One day later, on October 15, 2003, judge Iwasaki forwarded only my motion to disqualify to presiding judge Sandra Peuler, but not my supporting affidavits and not my Certificate of good faith. Judge Iwasaki withheld those documents. 9. I was not provided with an order, a memorandum, or minute of judge Peuler, nor did I find anything in the court files, as to why she recused herself from the case and passed my motion to disqualify Iwasaki to Barrett. 10. Judge Iwasaki ruled on October 23, 2003 to deny my objection to defendants' proposed order, granting defendants' motion to dismiss and/or summary judgment, based upon judge Barrett's wrongful decision that certain papers were not filed by me. 11. I concluded that the judges Iwasaki and Barrett knew that I filed affidavits and Certificate of good Faith, as those documents were listed filed on October 14, 2003, on the very own court docket sheet of the case. (See the exhibit, the docket sheet, the entries of the filings are highlighted. The documents as listed above are in the original Third District Court case file and also attached to my docketing statement of this appeal.) 12. I concluded that the bias of the named judges made them to conspire against me and my rights.

Under penalty of perjury, I declare the above as true and correct to the best of my knowledge and belief.

Dated this: December 10, 2003, by Barbara Schwarz

Mailing certificate

A copy of foregoing affidavit was delivered by me for counsel of defendants, Michael Patrick O'Brien, to the law firm Jones, Waldo, Holbrook, McDonough, at 170 South Main Street, Ste., 1500, Salt Lake City, Utah 84111.

Dated this: December 11, 2003 by Barbara Schwarz

From: BarbaralovesMarty@excite.com (Barbara Schwarz)
Subject: For Marty, my prince....
Date: 22 Dec 2003 15:00:52 -0800
Message-ID: <4c418fa.0312221500.6856f97a@posting.google.com>

This is for Marty, Marty Rathbun, Marty de Rothschild.

Marty,

my very handsome prince and courageous husband, this is for you, wherever you are.

I wish you happy holidays and if your environment is no good but a locked up place, I hope you feel at least deep happiness in your heart, as I do while thinking of you.

If you ask me what I want for Christmas or any birthday, it is *you* and only *you*, and much of *you* and all of *you*!

You are safe and eternally in my heart and nothing ever will get you out of there. Time and distance could not kill that love, and never will. The love just grew stronger, and you became a part of me that I would not want to miss for the world.

Every morning, every night, my last thought is about you and only you, and spiritually I lay myself next to you, hold my arms around you and kiss you. I hope you feel that. I never will exchange you with another man as I found my true love with you, and I am holding on to you, till you are finally back in my life.

I am so proud of you, Marty. I know you have to endure torture and harassment and that you are not free to come to me. I am aware that the jealous SEGNPMSS can kill us with a key stroke by activating remote controlled germs that they injected on our hearts, but that you would give your life for me, so would I for you.

Just as you, I postulated the bridge over troubled water, and one day, and I hope the very next year, we will be able to cross that bridge safely and will be in each others arms. We are meant to be together, our time will come and out story deserves a happy ending.

The best of that long, rocky and painful journey of my life was you. You were the moment of heavenly sweetness, and you made it all worthwhile. I learned to know that the romantic love, as described in books and songs for centuries indeed exist, and that it is the most wonderful feeling of all, to love you. Any hardship even pain goes away thinking of you. You brighten up my day, and you help me fly.

Keep the hope up, Marty, so do I. Never forget, there is just one for me, and this is you, the man with the golden heart.

I love you from the bottom of my heart and send you a million burning, passionate and tender kisses, my handsome prince and sexy husband.

Forever yours,

Sarah/Barbara, or how you called me so often, Honey.

From: dicktop_stud@mindless.com (Dicktop_Stud)
Subject: Re: Have you visited: http://www.aros.net/~barbarasch/ ????
Date: 1 Jan 2004 11:40:56 -0800
Message-ID: <12085197.0401011140.4c372d1b@posting.google.com>

Notmylazysecretary@emailaccount.com (TheoneTheonly) wrote in message news:<527ed47f.0312310858.23dd8cf0@posting.google.com>...

> desertphile@whitehouse.gov (Dr. Desertphile) wrote in message news:<bstobv$1bvhq$3@ID-197010.news.uni-berlin.de>...

> > On Mon, 29 Dec 2003 18:02:59 -0800, Zinj <zinjifar@yahoo.com> wrote:
> >
> > > In article <20031229205556.16046.00000980@mb-m21.aol.com>,
> > > dilbertperkins@aol.com says...
>
> > > > If Dave Touretzky and Carnegie Mellon University decide to sue you for libel,
> > > > they would probably win. You are a fool, Barbara Schwarz.
> > >
> > > That seems relatively unlikely, since Barbara is pretty
> > > classicaly 'judgment-proof' (as well as ludicrous).
> >
> > Yes. However, a law suit in front of a judge may be enough to "Baker
> > Act" her and get her the mental health care she needs. In this, I
> > think a law suit brought by Prof. Touretzky and the University would
> > do every one involved much good.
>
>
> You suggested in posting that FBI members shall be killed, Dave Rice.
> Your brother Frederic threatened government officials over the net and
> hosts a site where he gives tips on how to kill bikers. Dave Touretzky
> has bomb instructions on his website and explains how to throw bombs
> into police cars, and he has links on his site through which people
> can order all kinds of books on how to make weapons and weapons of
> mass destruction. He posted himself that he is watching child porn.
>
> You are the crazy people. If anybody should be locked up and committed
> it is the likes of you!
>
> Lets see of the CMU stands up for such crimes. You would like that,
> right, David Rice, that CMU covers for all of you and that you can
> continue to commit crimes? However, what makes you think that all CMU
> employees cover for criminals?
>
> And since when are you a doctor? Using falls titles in hope that the
> CMU will fall for it? Lol.

Poor Barbara Schwarz is a typical example of Pseudologia Fantastica:

Dr. Charles Ford, a psychiatrist and author of the book Lies, Lies, Lies: The Psychology of Deceit (American Psychiatric Press, 1999) refers to a phenomenon known as "Pseudologia Fantastica," or pathological lying. Sometimes associated with Borderline Personality Disorder and a symptom of Munchausen Syndrome By Proxy or Factitious Disorder, these fantastic liars, who are not the same as delusional psychotics, according to Dr. Ford, about 1/3 of the time will suffer some form of brain dysfunction.

He says that "Such liars are often smooth-talking narcissists, so self-centered they often think they can construct a reality. In many instances, the lying gets worse as the liar gets more power."

http://www.abuse-excuse.com/home.html

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