Considered on Briefs January 12, 2015
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA. THE HONORABLE MARK BARNETT, Judge.
MARTY J. JACKLEY, Attorney General, KELLY MARNETTE, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
BRAD A. SCHREIBER, The Schreiber Law Firm, Prof., LLC, Pierre, South Dakota, Attorneys for defendant and appellant.
GILBERTSON, Chief Justice, and ZINTER and WILBUR, Justices, and KONENKAMP, Retired Justice, concur. KERN, Justice, not having been a member of the Court at the time this action was assigned to the Court, did not participate.
[¶1] Eugene Herman Paulson appeals his jury conviction on one count of threatening or intimidating a judicial officer, one count of offering a false instrument for filing, and one count of uttering simulated process. He appeals using the procedure outlined in State v. Korth, 2002 S.D. 101, ¶ ¶ 16 n.6, 17, 650 N.W.2d 528, 535 n.6 & 536. We affirm.
[¶2] Since 2001, Paulson has been a pro se party to various civil lawsuits involving a now-defunct business he once owned and operated. These criminal claims arose out of filings submitted by Paulson in 2008 (Case #08-54) and 2009 (Case #09-83) foreclosure actions, both brought in Roberts County, by Paulson's and the business's creditor, People's State Bank (Bank). Bank sought to recover collateralized machinery through foreclosure. The Honorable Tony Portra presided over the latter portion of both cases. Judge Portra sought the Supreme Court's assistance in dealing with a large number of Paulson's frivolous filings, including a phony judgment against another judge, produced under the heading of " Our One Supreme Court" --a body of Paulson's own creation we then described as " established outside the sovereign power of any state or the federal government." After we directed Paulson to show cause (Supreme Court Filing #26075) and received his response, we issued an order requiring Paulson to " pre-clear all documents" he wanted to file with the circuit court.
[¶3] The cases sat dormant for over a year, but on April 22, 2013, Paulson sought by letter to have attached documents under the heading of " Our One Supreme Court" filed with the circuit court. One of these documents was a " memorandum of law" signed by a " Jury Forman" of a " Seventh Amendment [J]ury" containing various alleged assertions of law. Some of these assertions were highlighted. These highlighted portions purported to show that judges have taken an oath to defend the Constitution of the United States, and judges who make unconstitutional decisions make " war[ ] against that Constitution" and are " guilty of treason and shall suffer death." These passages were followed by authorities allegedly supporting the constitutional existence of a " Seventh Amendment Jury's" ability to try facts in controversy independent of judicial oversight. The memorandum included an admonition that it " be considered by all persons, employed in any Government capacity, when requested to enforce any and all Judgments entered, presented ordered or directed by the (Peoples) OUR ONE SUPREME COURT." Submitted alongside the memo were orders signed by Paulson that allegedly voided the foreclosures. Paulson also submitted an " order to vacate void judgment" allegedly signed by thirteen people comprising a Seventh Amendment " jury/court" and by a fourteenth person titled " appointed justice." The document was affixed with a seal of " Our One Supreme Court -- Justices' Court -- United States of America."
[¶4] Judge Portra conveyed these documents to the Department of Criminal Investigation (DCI). A DCI search of Paulson's personal computer pursuant to a warrant uncovered Paulson's April 22, 2013 cover letter to Judge Portra and the " Seventh Amendment Jury" memorandum in substantially similar form as the one sent to Judge Portra. On September 20, 2013, a grand jury issued a superseding indictment charging Paulson with one count of threatening or intimidating a judicial officer, SDCL 22-11-15, one count of offering a false instrument for filing, SDCL 22-11-28.1, and one count of uttering simulated process, SDCL 22-12-5. The circuit court denied Paulson's motion to dismiss the indictment on separation of powers, legal justification, excuse, and venue grounds after a hearing on December 19, 2013. The matter was tried to a jury on February 10, 2014, which found Paulson guilty on all three counts. The court sentenced Paulson to a suspended execution of sentence on each count based on various conditions, including that Paulson serve 180 days in the state penitentiary on each of the three counts and that he could not file any documents in federal or state court that were not pre-cleared by the judge or that were " based upon 'Our One Supreme Court,' 'common law court,' '7th amendment grand jury,' 'people's supreme court,' or any other fictitious court, or fictitious judicial process."
[¶5] Paulson, on March 19, 2014, filed a document entitled " Notice of Dismissal of Attorney Mr. Schreiber." In it, he averred that " Mr. Schreiber has refused to represent Mr. Paulson in any way near what he has been requested to do." Counsel for Paulson, Brad Schreiber, attempted to withdraw prior to the filing of the notice of appeal on March 28, 2014. At a hearing on the withdrawal matter, the court suggested instead that Schreiber keep Paulson from violating the terms of his suspended execution by screening Paulson's arguments through the filing of a Korth brief. In order to assist his client in a difficult circumstance, Schreiber admitted he was going beyond the Korth restrictions set forth in State v. Arabie, 2003 S.D. 57, ¶ 11, 663 N.W.2d 250, 254-55 (per curiam), and State v. Bousum, 2003 S.D. 58, ¶ ¶ 8-9, 663 N.W.2d 257, 261, which prohibited counsel from briefing matters under Korth where he or she deems any of his or her client's claims non-frivolous or arguably meritorious. Schreiber argued that this case was distinguishable on the facts and that he could offer issues he deemed arguably meritorious in Paulson's Korth brief.
1. Section A Issues