STATE OF MINNESOTA DISTRICT

COURT

COUNTY OF RAMSEY SECOND JUDICIAL

DISTRICT

City of Maplewood
Plaintiff,
v.

Evelyn C. Wallace, et al
Defendants
Case type: Quiet Title
Court file #62-C4-06-
010365
Judge: Joanne Smith

PLEASE TAKE NOTICE that on August 21, 2007 before the honorable Judge

Joanne Smith at 11:00 AM at the Ramsey County Courthouse, 15 West Kellogg, St. Paul,

Minnesota, in Courtroom 1530, Defendant Nancy C. Lazryan will move the court as

follows:

1. For an Order to Amend Findings in its July 13, 2007 Order denying

Lazaryan’s Motion for Default, pursuant to Rule 59 and Rule 60.02(f) of

the Minn. Rules of Civ. Proc., and/or alternatively:

2. For an Order giving Lazaryan leave to supplement/amend her responsive

pleading by adding her Counterclaim, pursuant to Rules 13.01, 13.06 and

15.04 of the Minn. Rules of Civ. Proc., and/or alternatively:

3. To Remove Judge Joanne Smith for Bias and/or Mental Disability, pursuant to

Rules 63.01, 63.02 and 63.03 of the Minn. Rules of Civ. Proc.
 MOTION TO AMEND FINDINGS

On May 21, 2007, multiple Motions were brought before the court. Lazaryan sole

Motion before that court on May 21, 2007 was a Motion for DEFAULT. In this court’s

Order, the court states:

“Kayser also brought a motion to dismiss Plaintiff’s Complaint and is requesting a

default judgment against Plaintiff. Defendant Nancy Lazaryan has brought a
motion to dismiss and requests a default judgment. In their motions to dismiss,
Defendants argue that the Court should dismiss Plaintiff’s Complaint based upon
the arguments already raised and addressed by Defendant Evelyn Wallace’s
attorney. The Court’s ruling applies equally as well to these Defendants.” (page
13 of this court’s Memorandum, dated July 13, 2007.)

The court also found: “Defendants Kayser and Lazaryan both have also brought

motions to compel and for sanctions.” (page 14).

On May 21, 2007, neither Lazaryan nor Kayser had brought Motions to Dismiss.

Lazaryan never brought a motion to compel or a motion for sanctions. These findings by

the court are unsupported by the record.

The court, on page 14 of said Memorandum, finds, “Pursuant to Minn. R. Civ. P.

15.01, that Defendants missed the 20-day deadline under the rule….Because the deadline

was missed, a party must obtain permission from the opposing party, or the moving party

must obtain leave of the Court to serve and file the amended Counterclaim.”

Minn. R. Civ. P. 15.01 states, “A party may amend a pleading once as a matter of

course at any time before a responsive pleading is served or, if the pleading is one to

which no responsive pleading is permitted and the action has not been placed upon the

trial calendar, the party may so amend it at any time within 20 days after it is served.
Otherwise a party may amend a pleading only by leave of court or by written consent of

the adverse party; and leave shall be freely given when justice so requires…” The court

misstates the law by requiring Lazaryan to get leave of the court to file the amended

Counterclaim. In fact, the law states leave of the court is necessary to amend pleadings.

Thus, the so stated finding by the court is unsupported by the law.

As well, the court failed to address the arguments made by Lazaryan concerning

the operation of Rule 13.01 of the M.R.C.P. Under rule 13.01, Lazaryan has the right to

serve a counterclaim, at a time other than with her responsive pleading. See the law as

follows:

“Rule 13.01 of the M.R.C.P.

A pleading shall state as a counterclaim any claim which at the time of
serving the pleading the pleader has against any opposing party, if it arises
out of the transaction that is the subject matter of the opposing party’s
claim and does not require for its adjudication the presence of third parties
over whom the court cannot acquire jurisdiction, except that such a claim
need not be so stated if, at the time the action was commenced, the claim
was the subject of another pending action.” (emphasis added)

When a party argues the facts and the law, it is upon the court to address those
arguments in complete findings of fact and conclusions of law. See the law as follows:

“Practice by district judge of announcing decision and requesting

prevailing party to prepare findings of fact and conclusions of law which
are adopted nearly word-for-word in support of courts previously
announced decision is disapproved because fair compliance with Rule 52
(a) requires trial court to find facts on every material issue, including
relevant subsidiary issue and to state separately its conclusions
thereon with clarity. EEOC v Federal Reserve Bank (1983, CA4) 698
F2d 633, 30 BNA FEP Cas 1137, 30 CCH EPD ¶ 33269, 12 Fed Rules
Evid Serv 279, 35 FR Serv 2d 976, revd on other grounds 467 US 867, 81
L Ed 2d 718, 104 S Ct 2794, 35 BNA FEP Cas 1, 34 CCH EPD ¶ 34445,
39 FR Serv 2d 301;

Fair compliance with Rule 52(a) requiring trial court to find facts specially
and state separately its conclusions of law thereon is mandatory; findings
of fact on every material issue are statutory requirement. Kweskin v
Finkelstein (1955, CA7 Ill) 223 F2d 677.
 Fair compliance with Rule 52(a) requires trial court to find facts on
every material issue, including relevant subsidiary issues and to state
separately its conclusions thereon with clarity. Kruger v Purcel (1962,
CA3 VI) 300 F2d 830, 5 FR Serv 2d 802”
The court (also on page 13) finds, “It should be noted that the Court has

thoroughly reviewed Defendants’ Amended Counterclaim, and of the twenty-four counts,

it appears that only two have to do with this Quiet Title action and the property which is

the subject of that action. Therefore, if permission from the Court had been sought, it

would have been denied on that basis.”

The Quiet Title action before this court was commenced because of Lazaryan and

Jonathan Kayser’s actions of July 13, 2006, in which they posted the property, which is

the subject matter of this case, with “no trespassing signs”.

Plaintiff, in their formal criminal complaint against Lazaryan and Jonathan

Kayser, for the posting of the signs on July 13, 2006, as well as in open, public city

council meetings, described the property that was posted with the “no trespassing” signs

as “2516 Linwood”.

Accordingly, Lazaryan in her Amended Counterclaim, refers to the property by

the same description that the Plaintiff refers to the property, “2516 Linwood”.

“2516 Linwood” was the proper description of the property, prior to 1995, when

the City began asserting an interest in the approximately 2/3 southern portion of 2516

Linwood.

“2516 Linwood” has ALWAYS been private property. Plaintiff’s assertion, in the

formal complaint and at open, public city council meetings, that Lazaryan and Jonathan

Kayser were posting “no trespassing signs” on “2516 Linwood” is a declaration against

interest, made by the city. It is a “declaration against interest” because 2516 Linwood has
only been private property, never a “public park”.

This court found that, “only two of counts in Lazaryan’s Amended Counterclaim

have to do with this Quiet Title action and the property that is the subject matter of this

action.”

On July 13, 2006, Lazaryan was on the property, that is the subject matter of this

lawsuit, and posted said property with “no trespassing” signs. Twenty-two of the twenty-

four counts brought by Lazaryan have to do with the actions of Plaintiff, made against

Lazaryan, on July 13, 2006, while Lazaryan was on the property that is the subject matter

of this lawsuit.

If this court does not amend this so stated finding, then what property is the

subject matter of this lawsuit? The evidence upon the record does not support the finding

by the court, that, only two counts of Lazaryan’s Amended Counterclaim have to do with

the property that is the subject mater of this lawsuit .

The court finds, on page 8, “Subsequent to this motion being heard by the Court,

on June 27, 2007, the court received from Mr. Kantrud a certified City of Maplewood

Resolution Ratifying Actions Taken and Approving Further Action.” The court made the

finding that the resolution adopted by the Maplewood City Council (on June 11, 2007)

renders the issue raised by Defendant Wallace now moot. (Said issue being that the city

council is required, by M.S. Sec. 412.221 to authorize lawsuits that are commenced in the

name of the city.)

The action of this court, considering “evidence outside the record”…said evidence

being the June 27, 2007 ex parte communication from Mr. Kantrud to the court, is a gross

violation of the Defendants’ secured right of due process. This court was wholly absent
jurisdiction to consider the ex parte communication from Mr. Kantrud. Plaintiff, upon

creating the “resolution” could have moved the court for a re-hearing, in which the

Defendants would have been given the full opportunity to argue against this “evidence”.

Plaintiff, instead, unlawfully communicated with the court and this court used evidence,

outside the court record, to make its findings.

The finding by the court, that, “The resolution adopted by the Maplewood City

Council renders the issue raised by Defendant Wallace now moot,” must, as a matter of

law, be amended because said finding is based upon facts not properly upon the court

record.

As such, this court must now amend its findings, without “interference” by the

Plaintiff’s improperly brought “evidence”. The court must make findings that reflect the

record of properly brought evidence. Failure of the court to amend its findings to reflect

the actual court record of properly brought evidence, is a violation of the Defendants’

right of due process, secured by the Minnesota and United States constitutions.

The court, by law, cannot consider the ex parte communication received from Mr.

Kantrud on June 27, 2007. Absent this so stated communication, the court is restrained to

look only upon the facts, properly admitted and upon the record.

As such, the City of Maplewood is not a proper Plaintiff in this action. Chad

Lemmons cannot represent a Plaintiff that has failed to take the necessary steps to invoke

the jurisdiction of the court.

Accordingly, Chad Lemmons was without authority of law to invoke the

jurisdiction of the court on May 21, 2007, when he purportedly represented the interests

of the City of Maplewood. By law, there was no “Plaintiff City of Maplewood” properly
before the court on May 21, 2007. The Maplewood City Council, on or before May 21,

2007, had not passed a resolution authorizing this action.

The City of Maplewood had been properly served Lazaryan’s Counterclaim and

Amended Counterclaim. Lemmons, who was absent the authority of law to respond to

said Counterclaims, responded by letter to Lazaryan. This so stated response by

Lemmons is moot, as Lemmons had no authority of law to respond to Lazaryan.

Accordingly, the City of Maplewood failed to properly respond to Lazaryan’s

Counterclaim and/or Amended Counterclaim. Lazaryan should be granted her Default.

Lazaryan moves this court to make “proper, lawful findings of fact”; findings of

fact that reflect the record of the evidence that is properly before the court.

MOTION FOR LEAVE TO AMEND RESPONSIVE PLEADING TO INCLUDE

AMENDED COUNTERCLAIM

In the alternative, if this court refuses to amend its findings to comply with the

properly admitted evidence upon the record, Lazaryan moves this court for leave to

Amend her Responsive Pleading to include her Amended Counterclaim.

As fully argued in the previous pages, Lazaryan, on July 13, 2006, was posting

“no trespassing” signs on the property that is the subject matter of this lawsuit. In fact, it

was Lazaryan’s actions on July 13, 2006, that compelled Plaintiff to bring this action for

Quiet Title.

On July 13, 2006, Plaintiff took Lazaryan’s person, and without placing her under

arrest, transported her to the Ramsey county jail. Plaintiff then proceeded to prosecute

Lazaryan, originally, for “disorderly conduct”, and then later changed the charge to

“public nuisance”. These charges were brought against Lazaryan for Lazaryan posting the
property, that is the subject matter of this lawsuit, with “no trespassing” signs.

As previously argued, the City of Maplewood, in their criminal complaint was

required to prove an interest in the property, or face malicious prosecution charges from

Lazaryan.

The criminal matter was finally adjudicated at the end of December 2006.

Lazaryan moved the district court to dismiss the charges, based upon the property being

“private property” (and, thereby not a “public park). The City of Maplewood failed to

answer Lazaryan’s Motion to dismiss and the criminal action against Lazaryan was

dismissed. The City of Maplewood did not appeal the dismissal of the charges, a

dismissal based upon the fact that the property was private property.

In Lazaryan’s Response to Plaintiff’s Amended Summons and Complaint,

Lazaryan argues that issue of the ownership of the property was to be determined in the

pending criminal action. Thereby, Lazaryan reserved her right, under Rule 13.01, to bring

her Counterclaim at a time other than in her Responsive pleadings.

Subsequent to the final determination by the Ramsey county district court, that the

criminal matter against Lazaryan was dismissed because the property was private

property, Plaintiff failed to appeal the determination by the district court. After the time

tolled for Plaintiff to appeal the determination that criminal charges were dismissed

because the property was private property, Lazaryan brought her Counterclaim and

Amended Counterclaim.

Lazaryan has a right, under M.R.C.P. 13.01 to bring her counterclaim, if the claim

before this court was the subject of another pending action. If Lazaryan’s Motion to

Dismiss had not been granted by the district court, Lazaryan would have sought a writ of
prohibition against this court, restraining the court from hearing the matter (of ownership

of the property), that was properly before another judge, in the criminal case against

Lazaryan.

Plaintiff has agreed that the property that Lazaryan was posting was “private

property”. Plaintiff’s actions of not responding to Lazaryan’s Motion to Dismiss (based

upon the fact the property is private property), and Plaintiff’s failure to appeal the

dismissal of the criminal charges are prima facia evidence of the “declaration against

interest” the Plaintiff has made concerning ownership of the property that is the subject

matter of this lawsuit.

As such, pursuant to Rule 13.01 of the M.R.C.P. this court should grant

Lazaryan’s Motion to Amend her Responsive Pleadings to include Lazaryan’s Amended

Counterclaim.

NOTICE TO REMOVE JUDGE FOR BIAS and/or MENTAL DISABILITY

In the alternative, if this court denies either or both of Lazaryan’s previous two

Motions, Lazaryan, pursuant to Rule 63 of the M.R.C.P., makes the following argument:

Minn. R. Civ. P. 63.03 provides that a judge may not be removed “except upon an

affirmative showing of prejudice on the part of the judge.” Generally, this prejudice must

arise from an extrajudicial source prompting the judge to make a decision based on

knowledge acquired outside the judge’s participation in the case. In re Estate of Lange,

398 N.W.2d 569, 573 (Minn. App. 1986). But “pervasive bias” is an exception to the

“extrajudicial source” rule, which occurs when the bias stems from events at trial that are

“so extreme as to display [a] clear inability to render fair judgment.” Liteky v. United

States, 510 U.S. 540, 551, 114 S. Ct. 1147, 1155 (1994) (quotation omitted).
AFFIRMATIVE SHOWING OF “PERVASIVE BIAS” or MENTAL DISABILITY

The actions of Judge Joanne Smith in this case are clearly against logic and the

facts on the record.

FACTS UPON THE RECORD

a. Lazaryan posted the property, that is the subject matter of this case, with “no

trespassing signs” on July 13, 2006, and then again on May 23, 2007.

b. Lazaryan has served and filed a Counterclaim and Amended Counterclaim against

the Plaintiff. Twenty-two of the counts in Lazaryan’s Amended Counterclaim concern the

actions of Plaintiff in response to Lazaryan posting the property with “no trespassing”

signs on July 13, 2006.

c. Plaintiff moved the court and was granted a TRO and temporary injunction, based

upon Lazaryan’s actions of posting “no trespassing” signs on the property.

d. In Judge Smith’s Order of July 16, 2007, granting the temporary restraining order,

Judge Smith states in part:

“Defendant Lazaryan previously posted “no trespassing” signs at the park

July 13, 2006. In that matter, the City of Maplewood charged her with
criminal trespass. The charge was later amended to public nuisance and
subsequently dismissed by the Honorable Michael Fetsch, with no
objection from the Maplewood City Attorney.” (page 5)

e. On July 13, 2007, Judge Smith made a finding in her Order, concerning

Lazaryan’s Amended Counterclaim. Judge Smith states:

concerning Lazaryan’s Amended Counterclaim:, “of the twenty-four

counts, it appears that only two have to do with this Quiet Title action and
the property which is the subject of that action.”

Judge Smith actions are clearly against logic and the facts on the
record:

It is against logic and the facts on the record to issue a TRO and temporary
 injunction against Lazaryan for posting signs on the property, and then to
rule that the property in twenty-two counts of Lazaryan’s Amended
Counterclaim (counts based upon Lazaryan being forcibly removed from
the same property for her action of posting signs) is not the very same
property of this lawsuit.

The property that is the subject matter of this lawsuit is the property that
Lazaryan was posting in July of 2006. Twenty-two counts of Lazaryan’s
Amended Counterclaim concern the actions taken by Plaintiff, against
Lazaryan, concerning the ownership issues of said property.

Chad Lemmons, attorney for Plaintiff, argued that twenty-two counts in

Lazaryan’s Amended Counterclaim have nothing to do with the property
that is the subject matter of this lawsuit. In fact, Judge Smith’s “finding”
is a mere parroting of the argument presented by the Plaintiff.

f. Plaintiff moved the court and was granted a TRO and temporary injunction, based

upon Lazaryan’s actions of posting “no trespassing” signs on the property. At the hearing

for the temporary injunction, Lazaryan objected, arguing that the Plaintiff had failed to

post a bond for either the TRO or temporary injunction.

g. Judge Smith issued both orders, without requiring the Plaintiff to post a bond.

Judge Smith actions that are clearly against the law and are an
affirmative showing of bias:

The law is clear, and as a judge, Judge Smith is required to know the law.
Lazaryan even noticed Judge Smith of the law, yet Judge Smith ignored
the law. See the law as follows:
“M.R.C.P. 65.03 Security
(a) No temporary restraining order or temporary injunction shall be
granted except upon the giving of security by the applicant, in such
sum as the court deems proper, for the payment of such costs and
damages as may be incurred or suffered by any party who is found
to have been wrongfully enjoined or restrained.”

h. On May 21, 2007, Lazaryan brought a Motion for Default at a hearing before

Judge Smith. There were multiple other motions by other parties, yet this was the only

Motion brought by Lazaryan.

i. On July 13, 2007, Judge Smith issued her Order concerning said hearing. Judge

Smith finds, “Defendant Nancy Lazaryan has brought a motion to dismiss and requests a

default judgment.” (page 13) “Defendants Kayser and Lazaryan both have also brought

motions to compel and for sanctions.” (page 14).

Judge Smith actions are clearly against logic and the facts on the

record:

Lazaryan had brought only a motion for default.

It is clear that Judge Smith is unable to determine what parties are bringing
what motions.

By her actions, Judge Smith has proven that she has no concept of either
the property that is involved in this case, or of the parties that are
involved.

She is clearly biased, or does not have the mental capacity to handle this
case.

j. On May 21, 2007, a hearing, upon multiple motions was heard before Judge

Smith. Defendant Wallace, through her attorney, argued that the Maplewood City

Council had failed to comply with M.S. Sec. 412.221, in that the council had not

approved the lawsuit.

k. The Maplewood City Council, since the commencement of this lawsuit in October

of 2006, has been repeatedly noticed, by various Defendants, that it would be necessary,

under the law, for the council to approve the lawsuit.

l. On June 11, 2007, after the May 21, 2007 hearing, whereby Defendant Wallace

moved to dismiss based upon Plaintiff’s noncompliance with M.S. Sec. 412.221, the

Maplewood City Council passed a resolution which states, in part, “That the Maplewood

City Council does hereby approve of the ongoing efforts to quiet title to the property
known as Applewood Park and specifically authorizes the use of the courts to settle the

matter”.

m. On June 27, 2007, Judge Smith received ex parte communication from Mr.

Kantrud (city attorney for Maplewood). Said ex parte communication contained the

above-mentioned resolution. It is unknown what other information and/or arguments

were contained within said ex parte communication.

n. In Judge Smith’s July 13, 2007 Order (page 8), Judge Smith acknowledges the ex

parte communication with the Plaintiff, and then makes a ruling against Defendant

Wallace, based upon the ex parte communication.

o. On July 31, 2007 Lazaryan sent, pursuant to Rule 115.11 of the M.R.G.P, Judge

Smith (and the other parties) a letter requesting reconsideration of Judge Smith’s July 13,

2007 Order. In said letter, Lazaryan argued the actions of Judge Smith accepting and

considering the “new evidence” of the Plaintiff (the resolution), without a motion for re-

hearing by the Plaintiff, was a violation of the Defendants’ secured right of due process.

p. Judge Smith denied Lazaryan’s request for permission for a motion to reconsider.

Judge Smith actions are clearly against the law and are an affirmative
showing of bias:

When a judge shows favoritism to one party, that is a clear showing of

bias.

And, when a judge acts completely outside the law, violating a defendant’s
due process rights, so that the plaintiff no longer needs to obey the rules of
procedure, that judge must be removed from the bench.

Such are the actions of Judge Smith. Judge Smith clearly violated
Defendants secured right to due process when she accepted ex parte
communication from the Plaintiff, after the hearing, and used said
communication to make her ruling against the Defendants.

Defendant Lazaryan noticed Judge Smith of her violations of Defendants’

secured due process rights, in Lazaryan’s letter requesting permission to
 bring a motion to reconsider. Lazaryan’s letter was, in fact, a demand that
Judge Smith comply with the law. Judge Smith refused.

Judge Smith’s actions are a violation of the Minnesota Code of Judicial

Conduct, which states, in part:
“Canon 3(A)(7) A judge shall accord to every person who has a
legal interest in a proceeding, or person's lawyer, the right to be
heard according to law. A judge shall not initiate, permit or
consider ex parte communications, or consider other
communications made to the judge outside the presence of the
parties concerning a pending or impending proceeding, except
that:
(a) Where circumstances require, ex parte communications for
scheduling, administrative purposes or emergencies that do not
deal with substantive matters or issues on the merits are
authorized; provided:
(i) the judge reasonably believes that no party will gain a
procedural or tactical advantage as a result of the ex parte
communication, and
(ii) the judge makes provision promptly to notify all
other parties of the substance of the ex parte communication
and allows an opportunity to respond.

The ex parte communication between Judge Smith and the Plaintiff dealt
with substantive matters and issues on the merits. Judge Smith allowed
said ex parte communication, and used said ex parte communication in
making her ruling. Judge Smith did not notice the Defendants of said ex
parte communication and allowed no opportunity for the Defendants to
respond.

q. Judge Smith has had communication with at least one other judge, concerning the

matters involved in this case. Judge Cleary of the Ramsey county district court sent

Judge Smith communication, concerning this case, in an attempt to bias Judge Smith.

Judge Smith actions that are clearly against the law and are an
affirmative showing of bias:

Judge Smith’s actions are a violation of Canon 3(A)(7) of the Minnesota

Code of Judicial Conduct.

Judge Smith failed to inform Defendants of the ex parte communication

between herself and Judge Cleary. The ex parte communication between
Judge Smith and the Judge Cleary dealt with substantive matters and
issues on the merits. Judge Smith allowed said ex parte communication.
Judge Smith did not notice the Defendants of said ex parte communication
 and allowed no opportunity for the Defendants to respond.

r. On or about August 5, 2007 Lazaryan received in the mail an Order from Judge

Smith. Said Order states in part:

a. “2. That the Amended Scheduling Order is hereby incorporated by

reference.

Dated this 21 day of August 2007.”

b. “2. This case is hereby placed on the standard jury trial calendar….

11. If necessary, at the conclusion of the pre-trial/settlement conference, a

date certain may be set during the three week trial block
commencing February 4, 2007 and ending February 22, 2007.
The estimated length of trial is 1-2 days. A jury trial has not been
requested and fees have not been paid.”

Judge Smith is unable to comprehend the simple concepts of TIME.

The Order Lazaryan received, on or about August 5, 2007 is dated, by

Judge Smith, for August 21, 2007. Judge Smith orders the matter placed
on the standard jury trial calendar, but then states a jury trial has not been
requested. In then, apparently, according to her Order, the trial has already
commenced, back in February of 2007.

The case before the court is complicated. It is fully apparent by the actions
of Judge Smith that she is unable to properly issue a scheduling order,
much less handle the intricate details of this case.

s. Judge Smith has a pattern of abusing the rights of the Citizens that appear before

her.

It is common knowledge that Lazaryan is active in the reform of the judicial branch

through legislation that was introduced through her state representative and state senator.

Judge Smith is the topic of many conversations with the legislators, including, but not

limited to State v. Hudspeth, 535 N.W. 2d 292 (Minn. 1995), where it is reported that

during a criminal proceeding Judge Smith communicated with jurors outside the presence
of the defendant, in violation of the defendant’s right to be present. And, in the case of

Cich v. Cich, 428 N.W. 2d 446 (Minn. App. 1988), Judge Smith was found to have

abused her discretion by issuing an order that was “clearly erroneous and against logic

and the facts on the record.”

ARGUMENT

The case before Judge Smith involves multiple parties, over the course of many

years.

Chad Lemmons, the purported attorney for the purported Plaintiff, has admitted in

open court, to altering deeds concerning the property that is the subject matter of this

case. Chad Lemmons is a key witness in the case, yet he is the attorney for the Plaintiff.

Lemmons moved and was granted a protective order. In Lemmons motion, Lemmons

sought protection from the court so that current and former members of the Kelly Fawcett

law firm would not be required to testify. Lemmons is a member of the Kelly Fawcett

law firm, as is Patrick Kelly, another key witness. Current Ramsey county Judge Bastian

is also a key witness in this case.

This case is a political powder keg.

Judge Edward J. Cleary, author of The Obligation to Report and Retaliatory

Ethics Complaints breached his own ethical constraints and sent ex parte communication

to Judge Smith in an attempt to influence Judge Smith in this case.

Whereas Lazaryan brings this Motion to Remove Judge Smith for Bias and/or

Mental Disability, the facts surrounding the Plaintiff’s influence in this case is actual

cause for great concern for the integrity of jurisprudence within the Ramsey county
district court.

Judge Smith has repeatedly violated the Minnesota Code of Judicial Conduct,

having ex parte communication with the Plaintiff, and at least one other judge of the

Ramsey county district court. Judge Smith’s conduct, in making rulings based upon

unsupported findings, and upon ex parte communication, is a violation of her oath of

office. Her actions have violated Defendants’ right of due process, secured by the

Minnesota and U.S. constitutions.

A district court judge’s lawful authority is limited by Article VI of the United

States Constitution, which provides, in pertinent part, that “This Constitution...shall be

the supreme Law of the Land; and the Judges in every State shall be bound thereby....[A]

ll executive and judicial Officers, both of the United States and of the several States, shall

be bound by Oath or Affirmation, to support this Constitution.”

Either Judge Smith is biased, or is suffering from a mental disability. Judge

Smith is unable to determine what parties are bringing what motions. She is unable to

ascertain what property is the subject matter of this lawsuit. Judge Smith is unable to

handle the concepts of time, as proven by her Amended Scheduling Order. She allowed

substantive ex parte communications with the Plaintiff, then she used said

communication in her rulings. She granted injunctive relief without requiring the Plaintiff

to post a bond, as proscribed by law.

Judge Smith, through her actions, has acted in a manner that is biased against the

Defendants, and has proven by her actions that she is not mentally capable to handle this

case. As a matter of law, she should be removed.

Our Supreme Court has ruled and has reaffirmed the principle that “justice must
satisfy the appearance of justice", Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038

(1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954).

Courts have repeatedly held that positive proof of the partiality of a judge is not a

requirement, only the appearance of partiality. Liljeberg v. Health Services Acquisition

Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias or

prejudice but its appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985)

Until such time that Lazaryan’s Motion to Remove Judge Smith for Bias and/or

mental disability is heard, considered, and finally adjudicated (by the appellate court, if

necessary), Judge Smith, as a matter of law, loses all power and authority over this case.

See as follows:

“The trial judge loses all power and authority over the case once a motion
for substitution is brought except to make those orders necessary to bring
about the change. People v Banks (4th Dist) 213 Ill App 3d 205, 156 Ill
Dec 955, 571 NE2d 935.”

PRAYER FOR RELIEF

Defendant Nancy Lazaryan hereby moves the court for an Order as follows:

1. Amending the court’s findings in its July 13, 2007 to reflect the facts and

evidence that are properly upon the court record, including, but not limited

to:

a. Finding that the Plaintiff, City of Maplewood failed to comply with

M.S. Sec. 412.221, and the action by Plaintiff is Dismissed.

b. Finding that Chad Lemmons was not authorized to represent the

Plaintiff, pursuant to M.S. Sec. 412.221, and thereby, the City of

Maplewood failed to respond the Lazaryan Amended Counterclaim.

 c. Finding that Rule 13.01 of the M.R.C.P. authorizes Lazaryan to bring

her Amended Counterclaim at a time other that in her responsive

pleadings.

d. Finding in favor of Lazaryan in her Motion for Default.

If the court denies Lazaryan’s Motion to Amend Findings, Lazaryan moves the court, in

the alternative, to grant an Order that:

a. Allows Lazaryan to Amend her responsive pleadings to include

Lazaryan’s Amended Counterclaim.

If the court denies either or both of these two motions, Lazaryan brings Notice of Bias

and/or Mental Disability of Judge before the court and demands a determination by the

court of Lazaryan’s Affirmative Showing of Bias or Mental Disability before the court

proceeds with this case.

Movant Lazaryan rests.

August 12, 2007

_____________________
Nancy C. Lazaryan, in propria persona, in summo jure
10734 West Lake Road
Rice, MN 56367