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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------X BRIAN BURKE

:

Docket #09 Civ. 3291(JGK)(DF)

Plaintiff

:

-v-

:

 

:

NOTICE OF

:

MOTION

Metropolitan Transportation Authority/

:

NYC Transit Authority & Public

:

Employment Relations Board &

:

NY Attorney General Andrew M. Cuomo

:

Defendants,

:

---------------------------------------------------------X

PLEASE TAKE NOTICE, upon the annexed Af rmation/

Declaration of Plaintiff Brian Burke

dated June 15, 2009

and the Exhibits and Memorandum of Law and all other pleadings and

proceedings herein, Plaintiff Brian Burke will move on August 27, 2009 before the

Honorable John G. Koetl, Judge of the Southern District of New York at 500 Pearl

Street, New York NY , or as soon thereafter as counsel pro se may be heard, for an

order pursuant to Rules 11 and 56(f) of the Federal Rules of Civil Procedure

Dated June 15, 2009

Brian Burke pro-se 145 East 23rd Street New York, NY 10010 (212) 614-8515 briantburke@gmail.com

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------X BRIAN BURKE

:

Docket #09 Civ. 3291(JGK)(DF)

Plaintiff

:

OPPOSITION &

-v-

:

 

:

Cross-motion

:

Af rmation

Metropolitan Transportation Authority/

:

NYC Transit Authority & Public

:

Employment Relations Board &

:

NY Attorney General Andrew M. Cuomo

:

Defendants,

:

---------------------------------------------------------X

Plaintiff Brian Burke,

Preliminary Statement

,pro

se, hereby af rms and states

under penalty of perjury:Plaintiff requests the Court deem this Opposition for both

Authority 12(b)6 motions.

"The general rule is that an unconstitutional statute, though having the form and the

name of law, is in reality no law, but is wholly void and ineffective for any purpose

since unconstitutionality dates from the time of its enactment and not merely from

the date of the decision so branding it; an unconstitutional law, in legal

contemplation, is as inoperative as if it had never been passed

An

unconstitutional law is void." (16 Am. Jur. 2d, Sec. 178).

"Rosa Parks and Martin Luther King did not concede that it was illegal to violate

segregation laws, and workers need not concede that it is illegal to violate

unconstitutional strike bans like New York s Taylor law.

"When the transit workers struck, they were exercising their most basic labor right:

the right to quit work. Nobody denies that this right is guaranteed by the Thirteenth

Amendment to the U.S. Constitution, which prohibits slavery and involuntary

servitude. But employers argue that the amendment guarantees only the individual

right to quit in isolation from other workers. This argument misses the whole point of

the right to quit, which is—according to the Supreme Court—to give workers the

“power below” and employers the “incentive above to relieve a harsh overlordship or unwholesome conditions of work.” Obviously, most workers cannot obtain any power just by quitting on their own. As CIO general counsel Lee Pressman explained more than a half-century ago: “The simple fact is that the right of individual workers to quit their jobs has meaning only when they may quit in concert, so that in their quitting or in their threat to quit they have a real bargaining strength.” Ellen Dannin "Protecting labor law means protecting democracy"

The head of the Executive Branch of New York State, an attorney and the boss of

the Authority by Counsel, believes the "Taylor Law" to be unconstitutional. See

attached article.

SEVENTH AMENDMENT DEAD

The Authority, by counsel, in it's continual, unremitting, satanic, seditionist,

actionable attack on the foundation document a million citizens gave their life, ten

million their blood and hundreds of millions their toil must be sanctioned under

Fed. R. Civ. P. 11. Counsel's "Death of a Thousand Cuts" for our revered

Constitution, to which Plaintiff proudly pledged, under oath, to defend against all

enemies, foreign and domestic, without reservation, deserves disbarment. Their

open de ance of our mutual boss, David A. Paterson, would cause termination of

Plaintiff and will go unremarked by Counsel.

HOLOCAUST DENIAL

The Authority by Counsel contends, in its straw man argument, that Gesetz zum

Schutze des deutschen Blutes und der deutschen Ehre, often called

Blutschutzgesetz, and Reichsbürgergesetz, a.k.a. Nuremberg Laws are current

German Law, as they were originally upheld by German Courts and must never be

revisited, AS A MATTER OF LAW. Logic would stipulate their exultation of the

satanic/criminal genocide of millions of innocent humans. This construction, THE

DEATH OF REMEDY AND CONSTITUTIONAL REVIEW, also serves their interest.

PENAL LAWS OF IRELAND

The Authority contends that the following laws, which apply to Plaintiff, are

Constitutional and in effect and not subject to review, as they were upheld by the

House of Lords: Exclusion of Catholics from most public of ces (since 1607), Ban on intermarriage with Protestants;

Catholics barred from holding rearms or serving in the armed forces

Bar from membership in either the Parliament of Ireland or the Parliament of Great Britain from 1652; rescinded 1662-1691; renewed 1691-1829.

Disenfranchising Act 1728, exclusion from voting until 1793;

Exclusion from the legal professions and the judiciary;

Education Act 1695 - ban on foreign education;

Bar to Catholics entering Trinity College Dublin;

On a death by a Catholic, his legatee could bene t by conversion to the Church of Ireland;

Popery Act- Catholic inheritances of land were to be equally subdivided between all an owner's sons with the exception that if the eldest son and heir converted to Protestantism that he would become the one and only tenant of estate and portions for other children not to exceed one third of the estate. This "Gavelkind" system had previously been abolished by 1600.

Ban on converting from Protestantism to Roman Catholicism on pain of Praemunire: forfeiting all property estates and legacy to the monarch of the time and remaining in prison at monarchs pleasure. In addition, forfeiting monarchs protection. No injury however atrocious could have any action brought against it or any reparation for such.

Ban on Catholics buying land under a lease of more than 31 years; repealed 1778.

Ban on custody of orphans being granted to Catholics on pain of 500 pounds that was to be donated to the Blue Coat hospital in Dublin.

Ban on Catholics inheriting Protestant land

Prohibition on Catholics owning a horse valued at over £5 (in order to keep horses suitable for military activity out of the majority's hands)

Roman Catholic lay priests had to register to preach under the Registration Act 1704, but seminary priests and Bishops were not able to do so until the 1770s.

When allowed, new Catholic churches were to be built from wood, not stone, and away from main roads.

'No person of the popish religion shall publicly or in private houses teach school, or instruct youth in learning within this realm' upon pain of twenty pounds ne and three months in prison for every such offence. Repealed in 1782. [2]

Any and all rewards not paid by the crown for alerting authorities of offences to be levied upon the Catholic populace within parish and county.

The legislation devised for the Irish Catholics in that evil time was described by

Edmond Burke as "a machine as well tted for the oppression, impoverishment, and degradation of a people, and the debasement in them of human nature itself, as ever proceeded from the perverted ingenuity of man".

CHINESE EXCLUSION ACT

Mr. Ching Wah Chin esq. has a First Amendment right to believe and ght for the

idea that U. S. Statutes at Large, Vol. XXII, p. 58 ff. a.k.a. Forty Seventh Congress

Sess. I Chap 126 a.k.a. The Chinese Exclusion Acts of 1882 and 1892 are in effect

and Constitutional as, admittedly, they were upheld by the courts. Justice Harlan "I think it follows that the children of Chinese born in this country do not, ipso facto, become citizens of the United States unless the Fourteenth Amendment overrides both treaty and statute. Does it bear that construction, or rather is it not the proper construction that all persons born in the United States of parents permanently residing here and susceptible of becoming citizens, and not prevented therefrom by treaty or statute, are citizens, and not otherwise

But the Chinese, under their form of government, the treaties and statutes, cannot become citizens, nor acquire a permanent home here, no matter what the length of their stay may be. Wharton Con.Laws, § 1."

Plaintiff requests of the Court that those with standing be allowed to seek review

and not have case be dismissed AS A MATTER OF LAW.

SLAVERY UPHELD

Dred Scott v. Sandford, 60 U.S. (How. 19) 393 (1857) is Defendant by Counsel's

favorite case due to the admitted upholding of the abomination of Human Chattel.

According to the Court "We think they [people of African ancestry] are not [citizens], and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United [T]he legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument"

If Authority by Counsel's "Do as thou wilt is the whole of the law" (A. Crowley)

philosophy and pathetic straw man attacks on the Constitution a.k.a. the United

States were upheld REMEDY AND THE CONSTITUTION WOULD BE AT END.

REINSTITUTION OF JIM CROW

The Authority's second favorite case is, of course, Plessy v. Ferguson, 163 U.S.

537 (1896). Homer Plessy and Dred Scott are possibly America's two greatest

citizens. They failed in attempting to seek constitutional remedy for themselves and

those similarly situated. William Rehnquist wrote a memo called "A Random

Thought on the Segregation Cases", when he was a law clerk in 1952, during early

deliberations that led to the Brown v. Board of Education decision. In his memo,

Rehnquist argued that "I realize that it is an unpopular and unhumanitarian

position, for which I have been excoriated by 'liberal' colleagues but I think Plessy

v. Ferguson was right and should be reaf rmed." He continued, "To the argument…

that a majority may not deprive a minority of its constitutional right, the answer must

be made that while this is sound in theory, in the long run it is the majority who will

determine what the constitutional rights of the minority are." The Authority laughs at

and mocks the attempt these two icon/heros made to free an honorable people.

The Authority demands, as of right (Divine Right of Kings?), to end Remedy, Access to Court and Jury, Constitutional Review, and by construction, the United States.

Marbury v. Madison OVERTURNED

The Authority demands that Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803) be overturned, if it is not already, in order to serve alleged Authority interests. It demand that the Court and Jury, AS A MATTER OF LAW, have no right to review constitutionality of "Taylor Law" and/or, by construction, any Law/Statute Vis-à-vis the Constitution of the United States, if that review does not serve 'Authority " interests. Their corrupt contention, that irrelevant common law trumps the Constitution. Engblom v. Carey, 677 F.2d 957, the rst case the MTA attempts to use under "POINT 1" involves the THIRD AMENDMENT AND A DIFFERENT STATUTE WITH NO MENTION OF TAYLOR LAW. Defendants demand that irrelevant case law, with different parties, different facts, different Amendments and different laws end remedy and Constitutional review. For most of the ten Amendments Plaintiff shows, or after discovery will show, are violated by the Taylor Law the Authority have supplied NO CASE LAW. The Authority's most corrupt/ illogical "argument" in history; wherein if any Court, under any set of facts, with any party, under any Amendment uphold any law then Res Judicata/Collateral Estoppel block constitutional remedy as a matter of law without discovery, hearing or jury. Plaintiff disputes this contention. Justice Ruth Bader Ginsberg, controlling Supreme Court Justice over the Second Circuit, on April 10, 2009 at Ohio State University Law Journal "Life on the Supreme Court' broadcast on CSPAN and available on line after the 50th minute stated the following; "With regard to Stare Decisis, we distinguish between statutory and Constitutional

tug of Stare

Decisis is considerably weaker when we're dealing with a decision under the

cases

if

we really got it wrong it is our responsibility to correct it

The

Constitution." http://www.c-spanarchives.org/library/index.php?

main_page=product_video_info&products_id=285214-1

NO PRE-MOTION CONFERENCE

Defendants have violated Judge Koeltl's Individual Practices in their panic to deny remedy.

Fed. R. Civ. P. 56(f) Discovery Request

Plaintiff requests, in order to defend any motion for Summary judgment, to be

allowed limited discovery. This would include limited interrogatories and/or

depositions under Rule 30(b)6 and/or Subpoena. Plaintiff requires access to

information, in the control of defendants, regarding MTA's actions as Plaintiff's

employer and actions to institute egregious and ruinous nes etc

in case Brian Burke v. Solomon Acosta & FasCore/Great West & MTA/NYC Transit

Authority, et al., No. 07 Civ. 9933 (S.D.N.Y. August 25, 2008) to have sole control

over Plaintiff's "Employee capital investments (401K, 457)" and to represent the

"MTA NYC Transit Authority" throughout case. In fact, the NYC Transit Authority

was represented by Mr. Chin[sic] allegedly, after the fact, after Plaintiff accused the

NYC Transit of default. Plaintiff's employer seems to be de ned, like the

Heisenberg uncertainty principle, only by the current legal interest of the Authority

Defendants. Plaintiff acknowledges this is not a tort case for reasons of legal

liability.

Defendant MTA

Stare Decisis

Plaintiff cannot, admittedly claim any case law throwing out the "Taylor Law" for Constitutional violations as it then WOULD ALREADY BE RULED UNCONSTITUTIONAL AND THIS CASE MOOT.

CONCLUSION

Plaintiff requests the Court sanction the Defendants for their violation of Individual

Practices and the attempt to deny remedy/jury. Plaintiff requests that the Court deny

12(b)6 Motion(s) or barring that, to allow discovery prior to decision and for all

such and further relief that this Court may deem just and appropriate. All Rights

Reserved Without Prejudice U.C.C. §1-308.

Dated June 15, 2009

Brian Burke pro-se 145 East 23rd Street New York, NY 10010 (212) 614-8515 briantburke@gmail.com

Legislative Gazette

6/15/09 5:16 PM

TWU lobbies for Taylor Law reform

By WILLIAM ENG Legislative Gazette Staff Writer Mon, May 22, 2006

ENG Legislative Gazette Staff Writer Mon, May 22, 2006 Members of Transit Worker Union Local 100

Members of Transit Worker Union Local 100 came to Albany last Tuesday and received bi-partisan support for their union and a number of bills they are lobbying for.

Senate Minority Leader David A. Paterson, D-Harlem, said, “In every movement there has to be changes” and pledged support to bills S.7880 and A.11227, which would amend the Taylor Law, which he called unconstitutional.

The TWU came under fire last December when its members decided to go on strike during contract negotiations, shutting down public transportation in New York City for 60 hours. Critics of the union say the strike was illegal because it violated the Taylor Law — a law that makes it illegal for public employees to strike in New York State.

The two bills, sponsored by Sen. Nicholas A. Spano, R,C,I- Yonkers and Assemblyman Adriano Espaillat, D,WF-Manhattan, would make two changes to the Taylor Law.

D,WF-Manhattan, would make two changes to the Taylor Law. First, employees would be able to file

First, employees would be able to file for injunctive relief to the Public Employee Relations Board if a judge finds that an employer had been conducting improper practices.

Second, if the board finds that the employer had conducted an act of extreme provocation that employer would have to reimburse up to 50 percent of penalty fees incurred by the employee.

Assembly Speaker Sheldon Silver, D,WF-Manhattan, asked union members to unite behind state Comptroller Alan Hevesi, Attorney General Eliot Spitzer, the Assembly majority members and behind union President Roger Toussaint. Silver said it was “time to take back this state.”

“We don’t need a King George, we don’t need a President George, and we don’t need a Governor George,” said Silver.

Toussaint, who served 4 1/2 days of his 11-day sentence for the illegal transit strike, told members that their lobby day was an opportunity to start the conversations they wanted.

“Together, united [we are] invincible,” said Toussaint. “We took a stand and took it on the chin. We are the TWU. We don’t care about jail time. We will never back down.”

He said the union needed to heal after what it went through in December, but said, “If you think they give a damn about you, you have to be living in la-la land.”

Toussaint said people would be telling the union’s story for the next 30 years “because [we] are ground zero of this struggle.”

Dennis Hughes, president of the New York State AFL-CIO, said labor relations would not be fair until the Taylor Law was amended, arguing that the law should “protect both sides.”

“We want employers to feel regret for not reaching agreement deadlines,” said Hughes. “Fair, adequate labor relations can be good for the state and citizens. I don’t want to see this law continue without reform.”

Assemblywoman Susan V. John, D-Rochester, chairwoman of the labor committee said, “New York works because TWU works.”

Legislative Gazette

6/15/09 5:16 PM

“United we stand, divided we fall,” John said. “Divided is when the bastards get you.” John continued to pump up the crowd but did not go as far as the TWU union members did. After she said, “If we have to,” the union members chanted in response, “Shut them down.” John finished her sentence saying, “We will do what we have to do.”

Assemblyman Joseph Saladino, R-Massapequa, said, “We in Albany are here for you. I stand for working people.” He said Republicans and Democrats should stop fighting each other and start fighting for working people.

In addition to amending the Taylor Law, union members are pushing for other bills that would improve safety for transit workers and modify their retirement benefits.

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