Lakota Perspectives 

 

Petition to Supreme Ct

ertiorari to the Supreme Court

No. 10-10070 

 

__________________________________________________

 

  

In the

Supreme Court of the United States

 

 

__________________________________________________

 

 

JANIS SCHMIDT,

                                                                   Petitioner

 

v.

 

WARWICK PUBLIC SCHOOL DISTRICT #29, et al.

 

 

 

 

NORTH DAKOTA SUPREME COURT

 

Case No.  20100129 

__________________________________________________ 

 

PETITION FOR A WRIT OF CERTIORARI

 

 

 

__________________________________________________

 

 



Janis Schmidt

418 Griffin St.

Warwick, ND  58381

Pro se

701-294-2196

 

QUESTIONS PRESENTED

 

 

1.       Whether Schmidt’s Fifth and Fourteenth Amendment rights to due process and equal protection were denied when school administrators retaliated against Ms. Schmidt when she reported the rape of a Native American student as required by law?

 

2.       Whether schools and their agents are required to report a rape when it involves a Native American student and the rape occurred on an Indian reservation, and was the rape victim and the teacher who reported the rape to Social Services afforded due process and equal protection under the Fourteenth amendment when the rape issue was handled through the tribal court and not federal court, and the teacher was forced to agree to 5 Directives admitting that no rape had occurred and that she had committed an act of insubordination by reporting a rape?

 

 

3.       Whether Schmidt’s Ninth Amendment right not to be personally and professionally defamed by Defendants whose false statements about Schmidt resulted in her professional reputation was ruined beyond repair?

 

4.       Whether Schmidt’s Seventh Amendment right was violated by the court’s misinterpretation the statute that forbids Defendants from relying on ND unemployment compensation decisions as evidence in a separate action, for the purpose of dismissing my claims without a trial? 

 

5.    Whether Native Americans living on Indian reservations are considered citizens entitled to equal protection and due process as guaranteed under the Fourteenth Amendment?

 

 

 

 

LIST OF PARTIES

 

 

        All parties do not appear in the caption of the case on the cover page.  A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows:

 

1.       Warwick Public School District #29

 

2.       Charles Guthrie, superintendent

 

3.       Gene Riedinger, high school principal

 

4.       Shirley Tiokiason, aka Erickson, counselor

 

5.       Steve Michels, music teacher and NDEA representative

 

6.       Steve Jacobson, elementary principal kismissed by plaintiff.

 

7.       Larry Thiele, president of school board, dismissed by plaintiff.

 

8.       Bernadette Brown, school board member during 06-07 school year, dismissed by plaintiff.

 

9.       Kay Gravdahl, school board member, dismissed by plaintiff.

 

10.     Donna Christofferson,  school board member during 06-07 school year, dismissed by plaintiff.

 

11.     Johnnie Mckelvey, school board member during 06-07 school year, dismissed by plaintiff.



 

TABLE OF CONTENTS

 

Questions Presented …………………………………………………………. I

 

List of Parties ………………………………………………………………….. ii

 

Table of Contents …………………………………………………………….. iii

 

Index to Appendices …………………………………………………………. iii

 

Table of Authorities Cited ………………………………………………….. vi

 

Opinions ……………………………………………………………………….. viii

 

Jurisdiction ……………………………………………………………………. viii

 

Constitutional and Statutory Provisions Involved ……………………. ix

 

Statement of the Case ………………………………………………………. 1

 

Reasons for Granting the Petition ……………………………………….. 4

 

Conclusion ……………………………………………………………………. 38

 

Proof of Service ………………………………………………………………. 39

  

 

 

TABLE OF AUTHORITIES CITED

 

 

CASES

 

Worchester v. Georgia, 1832……………………………………………………………. 5

 

 

STATUTES  AND  RULES

 

Federal

PL 94-142, Students with Disabilities ……………………………………………….. 9

20 U.S.C. 1415, I.E.P. Special education …………………………………………… 8

42 U.S.C. 1983, conspiracy against rights .. 8, 9, 13, 14, 15, 17, 18, 19, 22, 24, 26, 28

73 U.S.C. 1506, Evidence tampering ……………………………………………  12, 14

 

State

 

Criminal

NDCC 12.1-02-02, culpability …………………………………………………. 7, 8, 14

NDCC 12.1-03-01, False information to law enforcement ………………  8

NDCC 12.1-06-01, Criminal attempt …………………………………………….. 8

NDCC 12.1-06-02, Criminal facilitation …………………………………….. 8, 15, 27

NDCC 12.1-06-04, Criminal conspiracy …….. 8, 9, 13, 14, 15, 19, 22, 24, 27

NDCC 12.1-09-01, Tampering with witness…………………………………. 27

NDCC 12.1-09-03, Tampering with evidence ……………………………….27

NDCC 12.1-11-02, False statements ………………………………………….27

NDCC 12.1-11-04, falsification affected outcome …………………………. 27

NDCC 12.1-15-01, Criminal defamation ……………………………………. 7, 8, 20

NDCC 12.1-17-06. Criminal coercion ……………………………………….. 7, 8

NDCC 12.1-08-03, Hindering law enforcement ……………………………….. 8, 9

NDCC 12.1-09-01, Tampering with witness ……………………………………. 8, 9

NDCC 12.1-09-03, Tampering with evidence …………………………………..  13

NDCC 12.1-11-01, Perjury ………………………………………………………….. 10

NDCC 12.1-11-02, False statements ……………………………… 10, 19, 20, 23

NDCC 12.1-11-04, Material falsification …………………………….. 10, 19, 20, 23

NDCC 12.1-11-05, Tampering with evidence …………………………………. 12

NDCC 12.1-14-01, Official oppression ………………… 11, 12, 17, 18, 19, 24, 25

NDCC 12.1-14-05, Oppression of civil rights ……………………………………..19

NDCC 12.1-15-01, Criminal defamation ………………………12, 13, 19, 23, 25

NDCC 12.1-17-06, Criminal coercion ……………………………. 17, 18, 19, 20

NDCC 12.1-17-07, Harassment ………………………………………………….. 19

 

 

Schools and Education  

NDCC 15.1-15-01, Education evaluation ……………………………….. 19, 24, 26

NDCC 15.1-15-02, evaluations ………………………………………………….26

NDCC 15.1-15-05, Interception of correspondence…………………………… 24

NDCC 15.1-15-07, Teacher dismissal …………… 15, 16, 17, 18, 19, 20, 29, 33

NDCC 15.1-15-08, Teacher dismissal hearing ………………………………16

NDCC 15.1-20-01, Compulsory attendance ………………………………… 7, 9, 25

 

Child Abuse

NDCC 50-25.1-03, Child Abuse, Duty to Report………………… 5, 6, 7, 20, 33

NDCC 50-25.1-04,                    Method of Reporting …………………… 6, 20

NDCC 50.25.1-04.1,                 Child protect team questions ……………… 8

NDCC 50-25.1-05,                    Assessment ……………………………………. 9

NDCC 50-25.1-05.1                 Dept. to ask questions ………………… 10, 13

NDCC 50-25.1-09                     Employer retaliation ………… 7, 8, 10, 19, 20

NDCC 50-25.1-09.1                 liability for retaliating . 10, 16, 20, 23, 24, 27

NDCC 50-25.1-13                     Penalties for failure to report  5, 6, 7, 8, 10, 23, 33

 

NDCC 52-06-37.1,  Unemployment law ………………………………………30, 32, 33, 36

 

North Dakota Rules of Civil Procedure

 

ND R. Civ. P. 26(b)(1) ………………………………………………………………………….30, 33

ND R.Civ.P 12(d) ………………………………………………………………………………..33, 36

ND R. Civ. P. 30 ………………………………………………………………………… 13

ND R. Civ. P. 56 …………………………………………………………  14, 20, 33, 36

 

US CONSTITUTION

 

First Amendment ………………………. 17, 18, 19, 20, 22, 23, 24, 26, 29, 33, 34

Fifth Amendment …………….. 15, 16, 17, 18, 19, 20, 22, 23. 24, 26, 29, 33, 36

Seventh Amendment …………………………………………………………. 14, 17, 34

Ninth Amendment …… 8, 9, 10, 11, 16, 17, 18, 19, 20, 22, 23. 24, 26, 27, 29

Fourteenth Amendment…. 15, 16, 17, 18, 19, 20, 22, 23, 24, 26, 27, 29, 33, 34, 36

 

 

 

 

 

IN THE

SUPREME COURT OF THE UNITED STATES

 

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

 

OPINIONS BELOW

 

Cases from state courts:

 

The opinion of the highest state court, ND Supreme Court, to review the merits of Janis Schmidt v. Warwick Public School District #29, et al., appears at Appendix A, and has been designated for publication but is not yet reported to Northwest Reporter.

 

The opinion of the Northeast Judicial District County of Benson Court appears at Appendix B and is unpublished.

 

The opinion of the highest state court, North Dakota Supreme Court, to review the merits of Janis Schmidt v. Job Service ND, appears at Appendix  C  to the petition and is reported at Northwest Reporter,  756  NW2d  794. [1]

 

 

 

 

JURISDICTION

 

          The date on which the highest state court decided my case, Janis Schmidt v. Warwick Public School District #29, et al., was December 2, 2010.  A copy of that decision appears at Appendix A.  

 

        A timely petition for rehearing was thereafter denied on the following date:  January 12, 2011,  and a copy of the order denying rehearing appears at Appendix C.

 

          The jurisdiction of this Court is invoked under 28 U.S.C. 1257(a).

 

 

 

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

 

United States Constitution

U.S. Const., Article 6, cl. 2.   Clause 2 of Article VI reads in pertinent part,  “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.”

U.S. Const., First Amendment.   The First Amendment provides, in pertinent part: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people . . . to petition the Government for a redress of grievances.”

U.S. Const., Fifth Amendment.  The Fifth Amendment provides, in pertinent part: “No person shall . . . be deprived of life, liberty, or property, without due process of law.”

U.S. Const.,  Seventh Amendment.[2]  In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. 

U.S. Const., Ninth Amendment.  The Ninth Amendment provides, in pertinent part: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

U.S. Const., Fourteenth Amendment,

Section 1  All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.   No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive  any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Section 2

“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed….”

Federal Acts

Civil Rights Act of 1864

The Act declared that people born in the United States and not subject to any foreign power are entitled to be citizens, without regard to race, color, or previous condition of slavery or involuntary servitude. A similar provision was written a few months later in the proposed Fourteenth Amendment to the United States Constitution.

The statute does not protect foreign visitors, diplomats, or Native Americans in the United States on reservations. It was intended to provide the freedmen (freed slaves) with the full range of civil rights that was enjoyed by white citizens.

The Civil Rights Act of 1866 also said that any citizen has the same right as a white citizen to make and enforce contracts, sue and be sued, give evidence in court, and inherit, purchase, lease, sell, hold, and convey real and personal property. Persons who denied these rights to former slaves were guilty of a misdemeanor and upon conviction faced a fine not exceeding $1,000, or imprisonment not exceeding one year, or both.

Parts of the Civil Rights Act of 1866 are still in effect in the 21st century, according to the United States Code:

 

 

 

ND State Constitution

ND Constitution, Article I, Section 1,  right to property and reputation

 

ND Constitution, Article I, Section 4,  freedom of speech

 

ND Constitution, Article, I, Section 9,  right to jury trial in civil matter

 

ND Constitution, Article, I, Section 16,  right to be compensated for property                                                           taken.

ND Constitution, Article I, Section 21,  no special privileges or immunities shall be granted to a special class of citizens

 

ND Constitution, Article I, Section 22. All laws of a general nature shall have a uniform operation.

 

ND Constitution, Article I, Section 23. The state of North Dakota is an inseparable part of the American union and the Constitution of the United States is the supreme law of the land. 

 

  


[1] On October 22, 2008, the ND Supreme Court affirmed lower court decision.  Defendants submitted the Job Service decisions as evidence for summary judgment in Schmidt v. Warwick Public School, which influenced the trial court to dismiss my case in summary judgment base on the Job Service facts, exhibits,  decisions, and conclusions.

 

[2] North Dakota Constitution, Section 9. All courts shall be open, and every man for any injury done him in his lands, goods, person or reputation shall have remedy by due process of law, and right and justice administered without sale, denial or delay. Suits may be brought against the state in such manner, in such courts, and in such cases, as the legislative assembly may, by law, direct.


[3]
North Dakota Century Code provides for a jury trial in a civil action.  North Dakota Constitution, Section 9. All courts shall be open, and every man for any injury done him in his lands, goods, person or reputation shall have remedy by due process of law, and right and justice administered without sale, denial or delay. Suits may be brought against the state in such

manner, in such courts, and in such cases, as the legislative assembly may, by law, direct.

 

STATEMENT OF THE CASE

 

          This case raises constitutional issues of the highest import.  It involves a teacher who was retaliated against by Defendants for reporting a rape of a Native American student and then reporting Defendant for not fulfilling its requisite reporting obligations.   Ultimately,  Defendant terminated Plaintiff without due process and then illegally relied on a renewal hearing to justify the firing when it became clear that the so-called termination hearing was held illegally, without notice and opportunity for Plaintiff to be heard.  To permit the summary decision of the North Dakota Supreme Court to stand will in effect stand for the proposition that teachers have no property right created by the statutory termination procedures, and will violate decades of United States’ Court precedent;  and will create precedence that school administrators do not have to report child abuse if the crime (rape) occurred on an Indian reservation.   

          This case raises the issue of Indian rights, which has never been squarely addressed by the Constitution or statutes. Are Native Americans citizens, and if so, why do they not enjoy the same protection and due process as other Americans?  Native Americans who were not already U.S. citizens were granted citizenship in 1924 by the Congress of the United States.  It is said that Native Americans today have a unique relationship with the United States because they may be members of nations, tribes, or bands of Native Americans who have sovereignty or independence from the government of the United States.  Sounds good, but in reality and in this case, it means that the Indian has never been recognized as a U.S. citizen with rights equal to that of any other race.

          My case will give this Court an opportunity to rectify a long, overdue inequality existing in American.   I reported a rape to the school administrators as told to me in class by a Native American girl.  The problem is that the administrators had not to reported the rape because the rape happened on an Indian reservation and the tribal police and tribal court was handling it. (App B, Doc 241, Order granting summary judgment, p. 3)  Schools and other officials are routinely using sovereignty as a reason not to obey child abuse laws when it concerns Native Americans.  Sovereignty is routinely used as an excuse to deny Native Americans constitutional rights because Indians are regarded as  independent from the government of the United States.   Separate but supposedly equal still exists in schools on reservations, and the most vulnerable of Native Americans, the children,  have no constitutional rights to protection from violent crimes, or from administrators who abuse students.   I reported child abuse of Native Americans to every conceivable authority, but they all said it wasn’t their jurisdiction.  The set up girl was so constantly hounded by kids taunting her about being raped in Warwick school, the lie perpetuated by the school administrators to avoid reporting,  that she committed suicide at the age of 14. 

                   There is no legal reason that my case should have been dismissed before trial.  The law was on my side.  The North Dakota courts did not adjudicate by the law, the Rules, or the constitution because my case presented racial issues and equal protection that have never been decided when a case involves Native Americans.     

 

 

REASONS FOR GRANTING THE PETITION

 

          The African Americans were emancipated in 1863, and set free through the 13th Amendment passed 1n 1865, and the 14th Amendment, passed in

1868,  guaranteed due process and equal protection to African Americans but not  Native Americans. 

          Permeated by hostile racial attitudes of racial superiority laden with guilt and shame, white  American has never recognized the Indian as an equal, and therefore Indians have not been afforded the same rights as all other citizens enjoy.  African Americans were set free and all kinds of laws have been enacted to guarantee their rights.  Not so with Native Americans, the only people who were born free and equal, who once owned all of what is now called America.  It has been very difficult for the U.S. Government to create a fair set of laws regarding Native Americans, and has failed miserably. 

           A tribal court, called Court of Indian Offenses, was created by the military and the Dept. of Indian Affairs in the 1880s as a means of punishing and controlling Indians, but not protecting them from perpetrators of crimes. The Department of Justice (DOJ) reports from the latest available data that from 1992 to 2001 American Indians experienced violent crimes at more than twice the national rate.  Violence against Native Americans goes uninvestigated and unreported when it occurs on an Indian Reservation, and those who do report are so severely retaliated against that they never recover from the retaliation.

           We have to look back to Worchester v. Georgia, 1832,  for a case similar to mine.   Worcester was sentenced in state court to 4 years of hard labor because he supported the Cherokee resistance against removal, and was teaching the Indians about history, the law, and how to read and write.  Because I reported a rape, and that administrators were abusing Indian students, I was retaliated against, lost my job, and labeled with misconduct for having reported a rape, thus ending my teaching career.  This was all accomplished through our legal system. 

          The rape issue developed into situation where the administration felt they needed to cover up the fact that they had not reported the rape of M H, as required by law. NDCC 50-25.1-03    The administrators were afraid if I told, they could have their education license revoked, pursuant to 50-25.1-13 (Doc 204, #80)  so, instead of reporting, they staged a fight and expelled the rape victim, (App D, Doc 204, #16-18) and set up another Native American girl by telling the girl I had said she had been raped.

 

 

          Pertinent Facts of the Case

 

1.   While residing in Hay Springs, Nebraska, I wrote a letter of application (Letter of Application, Appendix E) to Principal Gene Riedinger to apply for a newly created art teacher position at Warwick Public School.  (Doc 204,  #3)  Displaced from my home on the Pine Ridge Reservation, for advising accused Native Americans of their Constitutional rights, I needed a job and a home. (Doc 204, Aff #4)   (Appendix E-1, Lakota Wawokia Civil Rights Org. 

2.             I moved to North Dakota in July of 06, and I signed a contract to teach high school art for Warwick Public School, school year 2006-2007, beginning August 23, 2006 for a period of 9 months.  (Affidavit, Doc 204,#1, App)  (Appendix F,  Teacher’s Contract)  Warwick is a state run school located on an Indian reservation, with an all white staff and 100% Native American student body.  (Doc 204, Aff 5)  I was hired not only because I had 14 years teaching experience at Oglala Lakota College, and I was experienced in working with Native Americans which I was expected to implement Lakota-Dakota culture into my teaching as motivation for learning.  (Doc 204, #3-5)  (App F, Tab 1, License, Credentials)

3.             In late September, 2006, a Native American student, M H, told me in class that she had been raped, and that the school administration had done nothing about it, in violation of NDCC 50-25.1-03. (Id., #15)  (Affidavit of Selina Horse, Appendix G)  I reported to both Supt. Guthrie and Principal Riedinger, as I had a duty to report this to my supervisors, NDCC 50-25.1-04,  who said I didn’t have to report because they were aware and had already reported.   (Id., #16) . I took Mr. Guthrie at his word, unaware that Supt. Guthrie never reported the rape either for me or himself, as required by law, NDCC 50-25.1-13.  (Id., #43)

4.             Administrators began retaliating against me because of my knowledge of the rape, in violation of child abuse law forbidding retaliation, NDCC 50-25.1-09.  (App D, #19)  November, 2006, Mr. Riedinger interrupted my first period reading class to accuse me in front of students, of giving a two-way radio to a 7th grade student. (Id.) NDCC 12.1-15-01, criminal defamation.  Apparently a student was using a two-way radio to make obscene remarks.  At fourth hour, when no 7th graders showed up for reading class, I discovered Mr.  Riedinger held my whole 7th grade class for an hour, instead of allowing them to go to my English class.  compulsory attendance, NDCC 15.1-20-01.     He demanded they tell him that I had given them a radio; criminal defamation, NDCC 12.1-15-01; he threatened them with the police if they didn’t admit it. (Id.) criminal coercion, NDCC 12.1-17-06.   I asked my students to write what happened;  I included their statements with my Report to School Board Members.  (7th Grader statements on stolen Radio, App I, Tab 1)

5.             The rape issue developed into situation where supt. Guthrie and Principal felt they needed to cover up the fact that they had not reported the rape of M H, as required by law. NDCC 50-25.1-03    The administrators were afraid if I told, they could have their education license revoked, pursuant to 50-25.1-13 (Doc 204, #80)  so, instead of reporting, they staged a fight and expelled the rape victim, MH. (App D, Doc 204, #16-18)   NDCC 12.1-02-02, culpability.  Defendants presented to the court that an administrator does not have to report a rape if the police are handling it. (Doc 198, summary judgment)  Such argument is contrary to NDCC 50.25.1-13.   MH was on an I.E.P.,  a federal program, 20 U.S.C. 1415   and M H could not legally be expelled.  (App D, #42-44)   Mr. Guthrie did admit that he was informed of the rape by the mother at the beginning of school, (Doc 204, Aff G ) that he, Mr. Riedinger, and Ms. Tiokason did not report the rape to Social Services, in violation of NDCC 50-25.1-13 which is a conspiracy to commit a crime, NDCC 12.1-06-01.  

6.    In November of 2006, Defendants took criminal advantage of a newly enrolled 12 year old Native American girl, J J, by questioning J J about a rape which they then told JJ that I had reported to Mr. Guthrie, Mr. Riedinger, and Ms. Tiokiason that she had been raped,  (App D, Doc 204, Aff #29-30)  in violation of NDCC 50.25.1-04.1,  and my Ninth Amendment right not to be defamed.    North Dakota child abuse laws do not permit anyone but Social Services Child Protection to question a student about a rape. NDCC 50-25.1-04.1  It was a criminal conspiracy against me to tell J J that I had said she had been raped without informing me, all to protect themselves from having not reported the rape of MH at the beginning of the semester,  in violation of  NDCC 50-25.1-09.1, NDCC 50-25.1-13, NDCC 12.1-02-01, 12.1-02-02, 12.1-02-05, 12.1-03-01, 12.1-06-01, 12.1-06-02,  12.1-06-04,  12.1-08-03, 12.1-09-01 and 42 U.S.C. 1983.

 

7.   Suddenly, Principal  Riedinger removed J J from my classes without any reasons given, in violation of NDCC 15.1-20-03, Compulsory attendance law,  and placed her in special I.E.P. classes, in violation of PL 94-142.    (Doc 204, Aff, #30)   When I asked Mr. Riedinger why she wasn’t attending my classes, he told me she was in detention, yet I would see her going to her other classes, and going into the IEP room instead of coming to my classes. (Id)  I had a Ninth Amendment right not to be lied to for the purpose of defaming me.   J J was removed from my classes without her father’s knowledge or permission and certainly without my knowledge, (Id.) in serious violation of PL 94-142 and NDCC 12.1-20-03.   

8.             Principal Riedinger told J J and her mother, Cora Tiger, a Native American and First Assistant to the tribal chairwoman,  that I had told them that J J had been raped, (Id)  in violation of child abuse laws  NDCC 50-25.1-05 and criminal law NDCC 12.1-06-04, criminal conspiracy, and 42 U.S.C. 1983 and my Ninth Amendment right not to be defamed.   (Doc 204, Aff., #20-22, 29)  Riedinger and Guthrie questioned J J about a rape without the custodial parent’s knowledge or permission, James Jetty, in violation of child abuse laws NDCC 50-25.1 for the express purpose of confusing law enforcement, NDCC 12.1 08-03, on the failure to report the rape of M H, whom they had expelled and to deceive J J and her parents into believing that I had told Ms. Tiokiason, the counselor, that J J had been raped, violation of NDCC 12.1-09-01,  Witness tampering,  and my Ninth Amendment right not to be defamed.    (Id, Doc 204, Ex #20,  James Jetty deposition)  After a confrontation with Ms. Tiokiason as to why Mr. Riedinger and Mr. Michels had questioned J J about a rape,  Mr. Guthrie and Ms. Tiokiason soon appeared in my room, and told me that through the questioning, they had discovered that J J had been raped, in violation of child abuse law providing only Social Services to ask questions, NDCC 50-25.1-05.1, and forbids employer retaliation NDCC 50-15.1-09.1, Employer retaliation, NDCC 50-25.1-13 Penalty for failure to report;   and criminal laws.  (Id.)  NDCC 12.1-11-01, Perjury;   12.1-11-02, False statements;  12.1-11-04 Material falsification.       I had a Ninth Amendment right not to be falsely accused for having done a protected duty of reporting a rape.  Mr. Guthrie and the administrators had a duty not to lie to students about a rape, whether real or not, and certainly had a duty to me, not to falsely accuse me of telling him that J J had been raped. 

 

 

9.             I talked to Mr. Jetty in school in my classroom, early December, 2006.    I asked him if he was aware that Reidinger, Michels, and Tiokiason had questioned Jami about a rape, child abuse law provides that only Social Services to ask questions, NDCC 50-25.1-05.1. (Doc 204, #20, James Jetty deposition)  Mr. Jetty was outraged, and said he was going to get an attorney,  which he did, Ulysses Jones. (Id. )  Mr. Jetty gave me his phone number, and J J’s phone number, and asked me to call him if Riedinger or Guthrie did any more questioning of their daughter without his knowledge or permission. (Id)   (Doc. 204, Ex #27,  Handwritten phone numbers)

10.                I confronted Mr. Guthrie and Mr. Riedinger that putting J J in detention was the wrong thing to do, and Mr. Guthrie’s responded with the following which can only be characterized as an oppression of rights NDCC 12.1-14-01 and conspiracy to commit child abuse, NDCC 12.1-06-04, also a Ninth Amendment violation.  (App D, #35)

   I went through another terrifying inquisition styled interrogation. Guthrie told me in no uncertain terms that there is a chain-of-command in place and I was not to question administrative decisions. Guthrie told me that my student J J was not my problem or concern. I told Guthrie that he had enrolled her in two of my classes, and it is a teacher’s duty to know what is happening to her students. Guthrie told me that they could remove J J from my classes without consulting me or even giving me any reasons.  I asked him if she told him she had been raped, why was he putting her in detention?   Guthrie emphatically did not feel he had to answer any of my questions about what they were doing, stating,  “It was an administrative decision.”  (App D, #35)

 

11.                I called Mr. Jetty the next day and told  him that Mr. Guthrie told me that J J had admitted to Riedinger, Michels, and Tiokiason that she had been raped. (App D, #36)  Mr. Jetty was quite surprised and shocked.  He called J J to ask if this was true.  (Id.)  J J told him what she had been told by Guthrie, Tiokiason and Riedinger who told J J that I was the one saying she had been raped, which Mr. Jetty then believed.  (Id.) (App H) Defendants did recklessly, willfully, deceitfully and illegally lead J J and her parents to believe that I had reported to administrators that J J had been raped to blame me and to turn people against me, in violation of NDCC 12.1-14-01, official oppression and NDCC 12.1-15-01, criminal defamation, and a violation of Ninth Amendment right to be free from official defamation through suppression of the truth. (Id)   

 

12.               Shocked that administrators were harming students by violating the law, and after many futile meetings with Supt. Guthrie, I thought I should inform the school board of what was going on in Warwick Public School.   (App D, #45)  On December 29, 2006, I wrote a Report to each school board member, explaining my teaching philosophy as it relates to Native Americans, and reporting how administrators were abusing students.  (Id., #48)  (Appendix I, Report to School Board Members)   I also made a 960 Report to Social Services.  (960 Report, App H)  The school board members took the Report to Mr. Guthrie, who then  tampered with my original report to say that I had reported to Ms. Tiokiason that J J had been raped, (Doc 198, Ex #4)  which is criminal tampering with evidence, NDCC 12.1-11-05, also federal offense, 73 U.S.C. 1506.   (Tampered Report, Appendix J)   I never discovered this tampering until Defendant submitted the tampered Report in summary judgment as Exhibit 4 on October 22, 2009, a federal offence, 73 U.S.C. 1504.   (Motion to Strike, Appendix K) 

 

13.                On January 3, 2007, James Jetty called me and asked me if I would speak with his attorney, Ulysses Jones.  (App D, #46)  Within 5 minutes, Mr. Jones called me. (Id.) He said he was representing Jetty about his daughter being questioned about a rape without his knowledge or permission. (App L)  Jones questioned me about J J and what she told me.   I told him that Mr. Guthrie had told me that J J told him that she had been raped.  He asked if I could give him any evidence.  I said I could, the same Report (App L) I mailed to the school board, I then mailed the Report (App L) to Jones as he requested.    (App D, #46)   He also wanted to represent me at my teacher evaluation hearing, which was an odd request, which I finally agreed to.  (Id)  It wasn’t until I deposed James Jetty that I realized that Jetty had been duped by Guthrie into believing that I was making statements that J J had been raped,  (Id.) criminal defamation, NDCC 12.1-15-01 and child abuse law providing only Social Services to ask questions, NDCC 50-25.1-05.1, and that Jones was really working for Guthrie,  Conspiracy to commit child abuse, NDCC 12.1-06-04 and 42 U.S.C. 1983.  (Doc 204, #20)  Jones got a copy of my Report (App I) and gave it to Supt. Guthrie, who then tampered my Report (App J) to say that I told counselor Tiokiason that J J had been raped, (Jones tampered version of my Report, Appendix K) a class C felony, NDCC 12.1-09-03, Tampering with evidence.     (App J)  I subpoenaed Mr. Jones for deposition, which I had to reschedule 3 times (Doc 133, 140, 141, 150, 151) due to Defendants’ attorney, Tiffany Johnson, interfering with my right to discovery, ND R. Civ. P. 30.    Defendants did willfully, recklessly, and knowingly submit a tampered version of my Report to School Board Members as evidence in summary judgment, ND R. Civ. P. 56 (App J, Doc 198, Ex 4) culpable  NDCC 12.1-02-02 conspiracy NDCC 12.1-06-04 and deprived me of my 7th Amendment[3] right to a trial by jury in a civil suit.        (Appendix J, Tampered Report, Doc 198, Exhibit 4) 

14.                When I discovered that my Report had been tampered to say that I had told Tiokiason that J J had been raped,  I filed a motion to strike the tampered report and to dismiss the motion for summary judgment.  (Appendix L ,  Motion to Strike, Doc 214-218)  In Defendants’ Response, (Doc 219) Tiffany Johnson revealed that she was aware of more than one Report, with each one stating something different, which implies that she and/or Gary Thune were aware of the tampering in January of 2007.  42 U.S.C. 1983, Conspiracy, and 73 U.S.C. 1506, Obstruction of Justice, conspiracy to commit child abuse.  NDCC  12.1-06-04.  (Doc 214-218)  The trial court  ruled to accept Defendants’ proffer of the tampered Report, and denied my motion to strike and sanction, which is fraud upon the court.   (Appendix M, Doc 237, Order Denying Motion to Strike) 

15.                The district court abused its discretion when it granted Defendant’s  third Protection Order, (Doc 158) preventing me from deposing any school board members and administrators to discover what happened with the other Reports I sent,  which is a flagrant violation of my Fifth and Fourteenth Amendment right to due process. I also sent a copy to Social Services, as is mentioned in Dennis Meier’s letter. (App D, Doc 235, #31)  (Social Services Letter, Appendix N) 

16.                The January 4, 2007, firing is a very important disputed fact.   A contract teacher cannot be dismissed without notice or hearing, and only the school board can fire,  pursuant to NDCC 15.1-15-07.  On January 4, 2007, I was going over my evaluation with Mr. Reidinger,  when we were interrupted by Mr. Guthrie, who told me an attorney wanted to talk to me.   (App D, #47)  Ulysses Jones told me he could not represent me as an attorney, and he would not tell me why.   (Id., #48)  He handed me the envelope containing my Report, making a big point that he had not opened the envelope with the Report.  (Id.)  (App K, Tab 1,  Envelope addressed to Jones)  I did not open the envelope until 2009, when I discovered that my Report to School Board Member had been tampered, NDCC 12.1-06-02 Criminal facilitation, NDCC 12.1-06-04, Criminal conspiracy, and 42 U.S.C. 1983.    Guthrie told me that I was  to go to my room, and purposely did not invite me to the meeting with Jetty, Cora Tiger, and J J,   (App D,  #48) violating my Fifth and Fourteenth Amendment right to due process.  An hour later, Mr. Reidinger came to my room at about 11:20am.  (App J, #50)  Reidinger told me to go to Mr. Guthrie”s office, which I did, and I was instantly fired by Mr. Guthrie. (Id.)  Without a hearing, without warning, without cause, Mr. Guthrie told me I had 15 minutes to clear out my desk and turn in my keys, in violation of teacher dismissal law NDCC 15.1-15-07 and 15.1-15-08 and my 5th and 14th Amendment rights to due process.    (Id.)  Only Mr. Riedinger was present. Mr. Guthrie did not discuss any issues with me, in violation of child abuse law forbidding retaliation, NDCC 50-25.1-09.1, my Ninth Amendment right not to be defamed,   nor did he allow me to speak before he fired me, in violation of my First Amendment right of speech.  He did not provide me with any notice, in violation of the U.S. Constitution, 5th and 14th Amendments and ND Constitution, Acticle I, Section 9:  (App H)    No hearing with the school board was scheduled, violation of NDCC 15.1-15-07,  I was not fired by the school board, NDCC 15.1-15-08.    The school board was unaware of the firing, all in violation of teacher dismissal laws, NDCC 15.1-15-07.  (App J, #50)

17.               Having just been fired, January 4, 2007,  I went home as ordered by  Supt Guthrie. (App D, #52)   I called the State Dept. of Education, who said there was no basis for my dismissal.  (App D, #52)   I reported to the Devils Lake Police Dept., ND Standards and Practices, U.S. Attorney Drew Rigley, and the FBI. (Id.)  I reported to Social Services by sending them a copy of the Report.  (App D, #53)  (App I)  Later, I filed a 960 Report. (960 Report, Appendix N) Astonishingly, they could find no evidence of child abuse at Warwick School.  (Appendix O, Social Services Letter denying investigation)  All authorities said they couldn’t investigate because it wasn’t their jurisdiction because Native Americans were involved and later, because I had filed a lawsuit.

18.               At  2:30 that same day, Supt Guthrie called me and told me to come back to school, that he would call the firing an administrative leave, and that he would give me 5 Directives,  (Appendix P, 5 Directives) , which was very illegal.   NDCC 15.1-15-07, 42 U.S.C. 1983 He said he would let me know under what conditions I would be allowed to return to my teaching duties.   (App D,  #53)  There is no statute that provides for administrative leave in lieu of a dismissal hearing,  nor can Directives be given as warnings  AFTER the firing.  

19.                On January 5, 2007, instead of a conference between myself and Mr. Guthrie, he had assembled a formal administrative meeting with Supt. Guthrie, Prin, Riedinger, Counselor Tiokiason, and Elem. Prin. Jacobson, and myself present, for the purpose of concealing child abuse, disguising my firing, and blaming me.   (App D, Aff #54)   I stated that if this was to be a hearing, I was unrepresented, and therefore did not wish to answer questions. (Id.)  Mr. Guthrie totally ignored my rightful and legal request in violation of my First, Fifth, Ninth, and Fourteenth Amendment  rights. (Id.)  He said that  I had reported the rape of J J to himself, Mr. Riedinger and Ms. Toikison, and that administrators had done nothing  about it, and did I report them? In violation of NDCC 12.1-14-01 Official Oppression, NDCC 12.1-17-06 Criminal Coersion (Id.)  He said I would not be allowed to teach unless I confess, which is criminal coercion .  NDCC 12.1-17-06  (Doc 204, Aff  #54)  He said he wanted a yes or no answer. He kept on and on bullying me and threatening me, harassment, NDCC 12.1-17-07. (Id., #55)  I asked for a hearing.  He refused in violation of my 5th and 14th  Amendment right to due process. (Id, #55)  Mr. Guthrie then asked Mrs. Tiokiason, who said, “You told me that J J had said she had been raped,” (Id., #56) which was a deliberate false statement, NDCC 12.1-11-02,  deliberately said to create a record to be used against me, which is criminal conspiracy,  NDCC 12.1-06-04, and criminal facilitation NDCC 12.1-06-02 and a violation of my Ninth Amendment right not to be defamed. (Id.)  I asked for a hearing with the school board, but Mr. Guthrie refused in violation of my 5th and 14th Amendment rights to due process.  (Id., #57)   What was very confusing is that Guthrie had told me that J J had told him that she had been raped. (Id.)  I realized for the first time that Mr. Guthrie and the administrators had not reported the rape of MH, and were now denying that there was any rape to report and were blaming me by questioning JJ about a rape that never happened, getting JJ and her parents to believe I had said that JJ had been raped. (Id.,  #56)  conspiracy, 42 U.S.C. 1983  and an Oppression of civil rights,  NDCC 12.1-14-05. 

20.                Guthrie said that I had to agree to 5 Directives (App P) if I wanted to be allowed back in the classroom, which was legally incorrect, teacher dismissal NDCC 15.1-15-07,  criminal coercion, NDCC 12.1-17-06,  (App D, #57)  Mr. Guthrie then fraudulently added things never before discussed and things I had had not done in the classroom, and he provided no proof that I had done the following: (1)  that I have been talking about lawsuits in class with students, (2) that I discussed personal issues in class, (3) that I constantly talked about Wounded Knee of 73,  Leonard Peltier and AIM;  all false allegations,  NDCC 12.1-11-02, falsification affecting outcome and a violation of my Ninth Amendment right not to be defamed. Mr. Guthrie then told Mr. Riedinger to add these accusations to my evaluation, in violation of education evaluation statute NDCC 15.1-15-01,  and criminal defamation, DCC 12.1-15-01.  (App D, #58)  Mr. Guthrie made it very clear that I would not be allowed to teach if I did not  agree to his directivescriminal coercion, NDCC 12.1-17-06.   (Id., #58-59) 

21.               Mr. Guthrie said that if I broke any of these directives, I would be taken before the school board and fired. (Id.)  Criminal coercion NDCC 12.1-17-06, official oppression, NDCC 12.1-14-01  and a violation of my First, Fifth, Ninth, and Fourteenth Amendment rights.    He admonished me for contacting the FBI, the police, the Attorney General, and the State Dept. of Education,  (Id.) a violation of NDCC 50-25-1-09, employer retaliation.  He willfully, recklessly, and knowingly falsely accused me of reporting a rape outside the chain of command, which was a deliberate false interpretation of child abuse law, duty to report, NDCC 50-25-1.03,  criminal defamation, NDCC 12.1-15-01, 42 U.S.C. 1983,  and a violation of my First, Fifth, Ninth, and Fourteenth Amendment rights.    He said that I had violated him personally, which was a deliberate false statement, NDCC 12.1-11-02, and by doing so, he meant to scare me into agreeing to the 5 Directives, which is criminal coercion, NDCC 12.1-17-06.  (App D, Aff, p. 33, #65-67)  He said that my reporting a rape amounted to Defamation of Character, that it was a serious charge to state that they had not reported a rape to proper authorities, a serious deliberate misinterpretation of child abuse laws,  NDCC 50-25.1-03, duty to report; 50-25.1-04, method of reporting;   50-25.1-09, immunity from liability;  50-25.1-09.1, employer retaliation prohibited.  (Id.)  Mr. Guthrie said if there were any rapes to be reported, he would deal with them, not me,   (App D, Aff, p. 33, #65-67) which was in total disregard for child abuse laws, NDCC 50-25.1-03, 04, 09, and 09.1 and my First, Fifth, Ninth, and Fourteenth Amendment rights. 

22.                A school administrator cannot fire a teacher;  that is illegal.  NDCC 15.1-15-07 states that only the school board can fire a teacher, plus, the FBI had called the school, asking about an unreported rape.  It was imperative for Mr. Guthrie to get me to agree to the 5 Directives, because he needed to create a reason for not reporting a rape and for firing me.  If the truth ever became known, he could be fired himself, and lose his license. 

23.                Later, Defendants based their reasons for my January 4th dismissal on the the 5 Directives (App P) and on the tampered Report (App J) and presented their facts in a motion for summary judgment,  (Doc 198)

“After finding out that Ms. Schmidt was contacting a student at home against the parents’ wishes, continuing to teach outside the curriculum, and circumventing the chain of command policy, Supt. Guthrie placed Ms Schmidt on administrative leave with pay for the afternoon or January 4, 2007 so he could determine what further action to take.” (Appellee’s brief to ND Supreme Court, p. 4)

 

24.                 The court then accepted Defendant’s facts as true, in violation of ND R. Civ. P. 56, and dismissed my lawsuit, declaring there were no disputed facts,  (App B, p. 11, #9) basing its facts on the 5 Directives:  (App P):

“[M]s. Schmidt claims she was fired by Mr. Guthrie on January 4th, but later it was changed to an administrative leave with pay.  On January 5, 2007, Guthrie met with Schmidt regarding her work performance, and as a result of that meeting, Schmidt was required to follow Five Directives:”  [the trial court quotes the 5 Directives (App P) in full in its Order Granting Summary Judgment (App B)]

 

25.                I should have refused any agreement to the 5 Directives, left the meeting, and went home and called the school board for a hearing.  But at the time, I was placed in a very fearful position.   Mr. Guthrie threatened and coerced me into agreeing to his 5 Directives, (App P)  on January 5, 2007, without a hearing which I had requested, without benefit of counsel which I had requested, and most important, without knowing that by agreeing to the 5 Directives, I was making a false confession that I was guilty of falsely reporting rapes and giving Mr. Guthrie a reason for firing me, which he now called “administrative leave.”  (App D)    

26.                On January 8, 2007, I made a response to the Directives by writing a letter to Mr. Guthrie.  I requested to have a hearing with the school board, which he told me I had to go though him first before I could meet with the school board, in violation of my First, Fifth, Ninth, and Fourteenth Amendment rights.    (App D, #66)  (January 8, 2007, Rebuttal to 5 Directives,  Appendix P, Tab 1) 

27.               On January 8, 2007, I wrote a letter and sent it to each and every school board member, explaining how administrators had not reported rapes. (App D, #66 )  I received no answer, and I was not given a hearing I requested.  (Id.)   

28.                Right after the Directives, Mr. Guthrie began locking his outer office doors. (App D, #68) Once, when I had been let in by a teacher, I had gone near Gutherie's office, and I overheard he and Riedinger discussing how they needed evidence for nonrenewal, because their lawyer, Gary Thune, needed evidence so he could help them get rid of me through nonrenewal,  (Id.)  which is conspiracy NDCC 12.1-06-04 and 42 U.S.C. 1983, and a violation of my First, Fifth, Ninth, and Fourteenth Amendment rights.  The January 2007 school board minutes reveal that  Warwick Public School were gearing up for plans to get rid of me.  (Appendix Q, January 2007, School Board Minutes) 

29.                Supt. Guthrie and Principal Riedinger, aided by NEA Rep Steve Michels and counselor Shirley Tiokiason began retaliating against me for having discovered a rape they had not reported, and reporting them to authorities.  (App Q, Tab 1)  violating NDCC 50-25-09.1 which forbids employer retaliation, and NDCC 50-25.1-13 makes employer liable to me for damages.  Administrators used unlawful methods to manufacture false evidence to make it falsely appear that I was teaching outside the curriculum. (App D, #73)   

30.                On 1-16-07, Mr. Michels called a teacher's meeting at which time he told staff that I was telling students in my classroom that girls were being raped in the school and that these girls were feeling unsafe, (Id.)  which is false statements, NDCC 12.1-11-02, affecting outcome, NDCC 12.1-11-04, criminal defamation, NDCC 12.1-15.01 in violation of my Ninth Amendment right not to be lied about that will affect my job.   I wrote a letter of grievance to Mr. Guthrie, who ignored it, violating Grievance Procedures.  (Id.)   I asked for a hearing with the school board, but Mr. Guthrie refused to allow me to meet with the school board, citing his Directives that I was obliged to follow the chain of command and that I had to work this out with administration, which Guthrie never intended to work out, (Id.) in violation of my First, Fifth, Ninth, and Fourteenth Amendment rights.

31.                 An email from the famous Rex Weyler, who encouraged me to write a book about the strange events going on in Warwick School and my experiences with Native Americans, which I intended  to show my friend and fellow teacher, Duane Peterson,  (App D, #70)  (App , Tab 4,  Email from Rex Weyler) who had recently authored a book. (Id)  The email mysteriously appeared in Mr. Guthrie’s mail box without my knowledge or consent, (Id.)  in violation of interception of correspondence,  (App D, #71(b))  NDCC 12.1-15-05, misused for criminal Defamation, NDCC 12.1-15-01 in violation of my First, Fifth, Ninth, and Fourteenth Amendment rights. 

32.               This prompted another unscheduled  meeting on February 9, 2007,  in Mr. Guthrie's office with Mr. Riedinger present. (App D, #71(b)) Guthrie asked us to be honest.  Riedinger said he didn't like the way the FBI had called the school, questioning why they hadn't done anything about the rape, and said, “We could lose our license over this.” (Id.)  I sat in stunned silence.  He accused me of having a hidden agenda of coming to Warwick School to bring a lawsuit, that it would ruin his career and they would have their administrative teacher’s license pulled, if I did that.  (Id.)  Mr. Guthrie got mad and yelled at Riedinger to be quiet. (Id.)   Mr. Guthrie then told me that Mr. Riedinger has been open and honest with me, but that I failed to be honest with him.  (Id.)  in violation of my First, Fifth, Ninth, and Fourteenth Amendment rights,  false information intended to affect material outcome, NDCC 12.1-11-04,  conspiracy to hide child abuse, NDCC 50-25.1-09.1, conspiracy NDCC 12.1-06-04. 42 U.S.C. 1983,  Official oppression, NDCC 12.1-14-01.  I responded by writing a Grievance letter to Mr. Guthrie outlining the problem a rape had occurred which had not been reported.  (App D, #81)   (Appendix R,  February 11, 2007, grievance letter to Guthrie)   In it, I claimed that Mr. Riedinger and Mr. Guthrie were retaliating against me because I reported the rape of a Native American student, which they had not reported.   (Id) 

33.               On 2-13-07, (App D, #81)   Mr. Guthrie refused to acknowledge my letter as a grievance letter, NDCC 12.1-14-01,  Official oppression and instead placed a letter of false facts in my file accusing me of not filing a grievance,  which is Defamation, 12.1-15-01, (Id) which inspired many instances of Riedinger telling students they don’t have to go to my classes, in violation of attendance laws, NDCC 15.1-20-01.  (Ex 40, #72, 73, 74)

34.                On February 26, 2007, I  contacted  Janet Welk, director of Standards and Practices Board. (App D, #82) ( February 26, 2007 letter to Janet Welk, ESPB, Appendix S, Tab 1)  On or about February 27, 2007, Janet Welk suggested I make a formal complaint to the Standards and Practices Board, North Dakota Dept. of Education. (Id.) I did so, copying the same information from Report to School Board Members (App I) to my Complaint (Inquiry) to ESPB)   (Complaint to ESPB, Appendix S) 

35.               On 3-25-07, Mr. Guthrie and Carol Wolford tried to get me to sign an Agreement to Nonrenewal,  which stated  “for purposes of unemployment compensation. no misconduct on the part of the teacher has been alleged.” Fraudulent behavior subject to 42 U.S.C. 1983.    (App D, #101)  (Appendix T,  Agreement to Nonrenewal)  Guthrie had basically encouraged me not to go, indicating there was no reason for me to go, and influenced my decision not to go, which greatly harmed me by Defendants later claiming before the courts that I gave up my rights when I did not attend hearing for nonrenewal  (Id.)   in violation of my First, Fifth, Ninth, and Fourteenth Amendment rights. 

“Ms. Schmidt argues that the administration recommended her nonrenewal in retaliation against her for reporting a rape.  If Ms. Schmidt had evidence to support her allegation, it should have been presented to the School Board when it held a hearing to contemplate her nonrenewal…Ms. Schmidt did not put this evidence before the board for it to consider before voting on her nonrenewal.  Had she done so, the School Board would have had the opportunity to consider the evidence regarding retaliation before making a decision to nonrenew her contract.  Since she failed to present this issue to the School Board at her nonrenewal hearing, she is now foreclosed from maintaining a retaliation claim against the District.”  (Doc 198, Summary judgment brief, submitted by Tiffany Johnson and Gary Thune, p. 14)

 

36.                Sometime in March, I asked Mr. Jacobson if he would do a teacher evaluation.  He agreed.  He sat in my 6th grade class. The evaluation was not completed, nor was it a required evaluation. (Doc 1, #110)   I was astonished to see the completed evaluation for the first time after I had been fired on April 11, 2007, after I had asked Mr. Guthrie for a copy of my file, delivered by Mr. Jacobson. (App D, #117)  In my file was Mr. Jacobson’s evaluation, with very negative commentary on high school issues. (Id.)  When I asked Mr. Jacobson about it, he said he wasn’t aware that his evaluation had been placed in my file since we had never completed it. (Id.)   Later, he said he would remove it, but Mr. Guthrie forbid him from removing it,  (Id.) strongly suggesting that Mr. Guthrie made  fraudulent and illegal use of a teacher evaluation, after I had been fired on April 11, 2007, for the purpose of justifying the illegal firing,  in violation of teacher evaluation laws,  NDCC 15.1-15-01 and 15.1-15-02,  conspiracy to commit fraud, NDCC 12.1-06-04, facilitation, NDCC 12.1-02-06, conspiracy, 12.1-09-03 tampering with evidence,  which violated my Ninth Amendment right to be free from defamation which could and did destroy my teaching career, and my Fourteenth Amendment right to due process to confront charges made in the Jacobson evaluation.  The Jacobson evaluation, which was never signed by myself, was then submitted by Mr. Guthrie, through his attorney Gary Thune, to Job Service, as evidence for reasons as to why I had to be fired, in violation of NDCC 12.1-09-03, tampering with evidence;  NDCC 12.1-09-01, tampering with a witness; NDCC 12.1-11-02, false statements;  NDCC 12.1-11-04, falsification affected outcome, therefore material.  (App J, Tab 2)    It was also submitted by Defendants as evidence for summary judgment.  (Doc 198, Ex 1, Tab H)

37.                On March 27, 2007,  Mr. Guthrie and Mr. Riedinger retaliated against me in violation of child abuse laws forbidding retaliation, NDCC 50-25.1-09.1, by , nonrenewing my contract for the 70-08 school year in retaliation for my having reported a rape and that administrators had not reported the rape.  (App D, #102-105)

38.                On March 28, 2007, at about 12:30,  my knee gave out on me. (App D, #104)   I was out of school for 5 days and returned to school on April 4, 2007.  (Id.) The next day Guthrie made me an offer, that I could take medical leave until school was out.  (App D, #108) I asked him how that would work, since my knee was much better and I could walk. (Id.)  He said the medical leave would help me avoid the situation of my being fired.  (Id.)   I asked, “How would this work? I am under contract. Who will teach my classes?” (Id.)  He said I could just stay home and write lesson plans, and a sub would do the rest. (Id.)  I did not agree to this.  (App D, #108)  Mr. Guthrie, under oath, admitted to this fraudulent offer:  (App J)  (42 U.S.C. 1983)

MR. BACHRACH:  Isn’t it a fact Mr. Guthrie, that prior to that meeting you approached Ms. Schmidt and requested that she go on Administrative paid leave for the rest of the year for medical reasons so that she could avoid the hearing?  (App J, Job Service, p. 135, line 18-20)

MR. GUTHRIE:  I did not request that she go on Medical Leave;  I gave her that as an option because she was having problems with her knee,  she was not able to stand in the classroom, she wasn’t able at times to even, I think at times there – her lunch was taken to her by someone else and I gave her that as an option,  I did not request that.  (Id., p. 135, line 21-22, p. 136, line 1-2)

 

39.               On April 5th, I submited a complaint to ND Standards and Practices Board naming Guthrie, Riedinger, and Michels to be investigated. I informed Mr. Guthrie that I had made a Complaint on him to ESPB and gave him a copy.   (App D, #110)  (ESPB Complaint, Appendix S) 

40.               On April 11, 2007, at 3:30, at Mr. Guthrie’s suggestion, the school board met in the library, for the sole purpose of firing me before the end of my contract, in violation of teacher dismissal law, NDCC 15.1-15-07.  (App D. #110)  At approximately 4:45 pm, on April 11, 2007,  Mr. Guthrie called me at home to tell me to  “get my things and clear out and turn in your keys.  And don't set foot on school property.”  NDCC 15.1-15-07  (App D, #115)  He said that the Board had just voted unanimously to dismiss me from my teaching duties, effective immediately. (Id.) )  I had no notice of this meeting, nor was I given any reasons or warnings that I was about to be fired.  (Id.) violating my First, Fifth, Ninth, and Fourteenth Amendment rights to due process, and right to expect the school board to obey teacher dismissal laws.  On April 12, Mr. Jacobson and Carol Wolford delivered a letter of dismissal to my house from Mr. Guthrie, in which he did not advise me of any appeal rights, no notice, nor did I have a dismissal hearing, nor did the letter contain any reasons listed for my dismissal, violating NDCC 15.1-15-07, teacher dismissal laws, and my First, Fifth, Ninth, and Fourteenth Amendment rights to due process, and right to expect the school board to obey teacher dismissal laws and child abuse laws.  (App D, #116)  (Guthrie’s letter of termination with April 11, 2007 school board minutes,  Appendix U) 

41.                On April 12, 2007, I wrote letter to Mr. Guthrie demanding a reason for my termination, a copy of  my file, a copy of school policy, and gave it to Mr. Jacobson to deliver to Mr. Guthrie.  (App D, #117)   (Letter asking for a reason for my termination, Appendix U, Tab 1) 

42.                I called Janet Welk to get responses to my Complaint. (App D, #118)   She told me she couldn’t do that, and that I should hire an attorney. (Id)   She refused to talk to me anymore.  (Id.) She refused to give me reasons, and told me to talk to the Board’s attorney, Bill Jacobson. (Id)  I called him in August of 2007, but he refused to sent me Defendant Responses. (Id.)  I did not know he was from the Attorney General’s office, at that time. (Id.)  It wasn’t until I filed this lawsuit and subpoenaed the records, that I finally received Responses in June of 2009, (Responses to ESPB Complaint, Appendix V) and discovered that Gary Thune had been very instrumental in influencing the Standards and Practices Board not to investigate my Complaint. (Id.)  (App N, Tab 1) because Gary Thune, lawyer for Defendants, had advised her not to talk to me. (Id._ (App V , Tab 1,  Thune’s letter to ESPB)     Later, I received notice from Janet Welk that ESPB, the Board, declined to investigate my Complaint of child abuse against Guthrie, Riedinger, and Michels.  (Id.) (ESPB dismissing my Complaint, Board minutes, App V, Tab 5)

43.                On July 13th, 2007, before the unemployment decision,  I sent a letter of intent to sue and offer of settlement to school board members, Thiele, McKelvey, Christofferson, Brown, and Gravdahl, and superintendent Guthrie and principal Riedinger by first class registered mail. (Doc 235, #98)   I told them I had been unlawfully dismissed by administrators who had not upheld the child abuse laws. (Id.) I pointed out how I had been damaged, and offered to mediate a settlement, rather than having to resort to a lawsuit.  (Id.) (Appendix W, Letter of Intent)  Defendants did not respond with any to my offer upon advice from their attorney, Gary Thune.  (App W, Tab 1, July 24, 2007, School Board Minutes)  Defendants purposely, willfully, and maliciously, withheld the school board minutes from me during discovery, (Doc 146, 147) contrary to ND R. Civ. P. 26(b)(1) and although I protested, the Defendants filed another motion for a protective order to prevent me from getting material documents, and from deposing witnesses ducum tems, (Doc 153) which the court granted the same day, in chambers, in an unrecorded hearing, (Doc 179)  (letter from Court stating that hearing was not recorded, Appendix X, Tab 1) in which I had absolutely no say in the matter. I filed a motion for Contempt along with an affidavit, (Doc 160) (Affidavit of Janis Schmidt, Appendix X) which was denied by the court, an abuse of discretion.  (Doc 165)

44.               On July 5, 2007, I applied for unemployment. (App D, #119) I was disqualified for “misconduct,” and a copy of this Job Service disqualification for misconduct was placed in my file by Mr. Guthrie and Defendants offered it in evidence for summary judgment,  (Doc 198, Ex 2, Tab B)   in violation of NDCC 52-06-37.1.  This is the first I was informed of any misconduct charges charged to me as a reason for my dismissal. (Id.)  I appealed the determination and on August 21, 2007, Job Service held a hearing to determine whether or not I had been fired for  misconduct at Warwick School.   (Job Service Hearing Transcript, Appendix Y)   Mr. Clinton determined that I had committed misconduct by failing to obey Guthrie’s 5 Directives in a decision, which Mr. Guthrie put in my permanent file, and Defendant filed as evidence in summary judgment, (Doc 198, exhibit 2, Tab C) which NDCC 52-06-37.1 explicitly forbids.     (Job Service Decision, Appendix Z)  I appealed to the District Court and case assigned to Judge Donovan Foughty on October 17, 2007;   the assistant attorney general withheld the Record from me, making it impossible to cite sources; (Doc 37) the solicitor general then asked the court not to consider any of my facts that were not cited to the Record;  (Id.)   the District Court affirmed Job Service decision on March 17th, 2008,  which Defendants then filed the Job Service Decision in summary judgment, relying totally on Job Service facts, (Doc 198, Ex 2, Tab D)  in violation of NDCC 52-06-37.1.    I appealed to the North Dakota Supreme Court, on March 20, 2008;  oral arguments were held on September 9, 2008, and the Supreme Court unanimously affirmed the district court’s decision, which defendants placed a copy in my file and submitted a copy as evidence in summary judgment, (Doc 198, Ex 2, Tab E)  which defendants filed in summary judgment, in violation of NDCC 52-06-37.1.    (Supreme Court Decision, Schmidt v. Job Service,  Appendix RR)   

45.               I filed a civil action for wrongful termination on December 23, 2008.  (Doc 1)  

46.               Defendants filed a Motion to Dismiss, ND R.Civ.P 12(b)(6),  on April 20, 2009. (Doc 52)  I asked for time (Doc 66) and responded with objection on June 1, 2009, and requested hearing.  (Doc 85)  Defendants replied with exhibits on June 17, 2009.  (Doc 89)  In hearing on June 22, 2009, the trial court wrongfully converted the Motion to dismiss, ND R.Civ.P 12(b)(6)  to a motion for summary judgment  ND R.Civ.P 12(d) without notice, ND R.Civ.P 56, denying me the opportunity to call witnesses and/or present evidence, contrary to ND R.Civ.P 56, thus violating my First, Fifth, and Fourteenth Amendment rights.  My claims for Constitutional rights, Retaliation, Defamation, and Official Oppression of Civil Rights were summarily dismissed, and all Defendants were dismissed except for the school district, in violation of ND R.Civ.P 12(d)  and ND R.Civ.P 56 with the court ruling that administrators not reporting a rape and dismissing a teacher without notice or hearing is part of their job description, and they have immunity from lawsuit, which is in total conflict with child abuse laws, NDCC 50-25.1-03 and 50-25.1-13 and teacher dismissal law, NDCC 15.1-15-07, thus effectively destroying my Complaint, in violation of my First Amendment right to bring grievance, and my Seventh Amendment right to a jury trial for controversy.     (Doc 193) (Motion to Dismiss Hearing transcript,  Appendix BB) 

47.               My case was dismissed in summary judgment on April 9, 2010, (Doc 241) (App B) with Judgment issued April 15, 2010.    (Doc 243)   I appealed to the ND Supreme Court on May 10, 2010.  (Doc 259)  The ND Supreme Court affirmed the trial court decision based on Job Service facts and Opinion on December 2, 2010, (App A) Rehearing denied, on January 12, 2011.  (App C)  I filed an objection, noting the fact that the Supreme Court had summarized Defendant facts rather than my facts, and therefore completing the fraud upon the court.  (Letter of Objection and Reconsideration to Supreme Court, 12/27/10,  Appendix CC)

 

          Reasons why my lawsuit was unjustly dismissed

          There is no reason that this lawsuit should have been dismissed.  The courts and decision makers refused to follow the Rules;  law enforcement refused to investigate crimes against Native American children.  The problem is much bigger than my case;  it goes back to the fact that the government, who is the maker of the laws, has never come up with a fair, consistent set of laws, starting with the treaties, regarding Indians.  The Fourteenth Amendment was a political piece of work, deliberately excluding Indians from due process and equal protection.  The Civil Rights Act of 1868 did not address the rights of Indians, who have largely been the forgotten race in America.

          The courts have not shed any light on current treatment of Indians.  Indians rarely, if ever, have any opportunity to bring a case to state or federal court, where these issues can be addressed.  It takes a white person such as myself, who refused to go along with the racist scheme of things, and dared to stand up and report the flagrant abuses being perpetuated on Native American students.  Why did the agencies and courts not investigate serious crime?  It was more that jurisdiction;  it was because they would have to reverse their rulings in regards to Native Americans, who are routinely charged with a crime they did not commit, and are routinely sent off to prison without any due process. 

          Indian women and children do not report serious crimes of abuse and rape because they know that the state will end up dismissing the perpetrator, and blaming the victim, which is what happened to M H and J J.  And I was charged with misconduct for reporting to authorities, which means as a teacher, my teaching days are over, along with my personal and professional reputation.  I wasn’t sentenced to hard labor like Wochester, Worchester v. Georgia, 1832, I was just denied any meaningful employment for the rest of my life.  A teacher does not overcome a discharge for misconduct.  I was deprived of my right to due process, and I was deprived of my property right by being improperly terminated in retaliation for doing my so-called protected duty.  Where’s the protection?  It is exactly the same treatment Indians get.

          I have steadfastly maintained that I was fired twice without notice or hearing for performing my mandatory duty of reporting a rape and institutional child abuse.  (Doc 1)   Defendants have argued in hearing before Job Service, (App Y) in hearing to dismiss, (Doc 193) in summary judgment motion, (Doc 197) on appeal and in arguments before the North Dakota Supreme Court that I was not fired, but placed on administrative leave.  Defendants have argued that even if I was fired, I was paid my full contract salary, so there was no breach of contract, and therefore no damages.  (Doc 52, 198, Defendant’s summary judgment, p. 10)  The trial court accepted Defendant’s facts as true based on Job Service facts, which is not permitted by statute, NDCC 52-06-37.1, nor by ND R. Civ. P 56. (App B, p. 9-10)   The trial court illegally changed the Defendant’s motion to dismiss to one of summary judgment without notice, pursuant to ND R. Civ. P. 12(d) and 56©(g). (Doc 193)   I was denied my Fifth and Fourteenth Amendment right to be duly notified that the hearing was to be based on summary judgment and not motion to dismiss, which the court then denied me the right to bring evidence and question witnesses, which would have given me a favorable outcome, if the trial court were to abide by the Rules of civil procedure.  

          You will note that I am heavy on the laws, and light on the cases, because the laws were clearly not enforced in my case, just as they are not enforced equally for Native Americans.

 

          J J, the girl set up to replace M H, the real rape victim, was very interested in Leonard Peltier, and had many questions about AIM and Wounded Knee, and wanted to be like Anna Mae, and bring some justice and rights to her people, the Dakota. J J was related to Leonard Peltier, as were some of the other students.   She was just 12 years old when she told me that.  She was very bright and interested in learning.  She idolized me and loved being in my classes, until Supt. Guthrie had to ruin everything for both of us by questioning her about a rape;  then telling her that I had told him that she had been raped.  The poor girl, 12 years old, hated me and spread the false story all over the school and community.  Guthrie and Riedinger were estatic because J J was doing the defaming without them lifting a finger.  Slick.  And they thought no harm done;  they could now say that Ms. Schmidt was falsely reporting rapes and they had every right to fire her.  However, the stigma of rape never left J J, and her life was cruelly altered.  Even though she changed schools twice, she could not escape kids taunting her, saying that she had been raped at Warwick School, the story that Guthrie had instigated to avoid detection that he had not reported a rape or other abuse, in fact, had become the abuser.  J J, not being able to escape, and not getting anyone to believe her once she discovered the truth, she called a classmate, crying on the phone, and said,  “What’s the use?  No one will believe what Mr. Guthrie did to me.”  Two weeks later she was dead;  hung herself.  That’s what happens when administrators do not follow the child abuse laws;  laws that were intended for Native Americans as well as white students.  But not in North Dakota.  And God help the poor teacher who attempts to make officials follow the law when it comes to Native American issues. 


CONCLUSION

                  I pray that this august Court will grant my Petition and hear my case, for myself and Native Americans, the forgotten race in America.

                                                Respectfully submitted,

                            

                                                Janis Schmidt

                                                418 Griffin St.

                                                Warwick, ND  58381

                                                701-294-2106

 

                                                April 12, 2011

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

No. ____________ 

 

__________________________________________________

 

  

In the

Supreme Court of the United States

 

 __________________________________________________

 

 

JANIS SCHMIDT,

                                                                   Petitioner

 

v.

 

WARWICK PUBLIC SCHOOL DISTRICT #29, et al.

 

 

                                               

PROOF OF SERVICE

 

          I, Janis Schmidt, do swear or declare that on this date, April 12, 2011, as required by Supreme Court Rule 29, I have served the enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS  and PETITION FOR A WRIT OF CERTIORARI on each party to the abouve proceeding or that party’s counsel, and on every other person required to be served, by depositing to each of them and with first-class postage prepaid, for delivery within 3 calendar days.

 

The names and addresses of those served are as follows:

 

Tiffany Johnson

Pearce and Durick

PO Box 400

Bismarck, ND  58502

 

I declare under penalty of perjury that the foregoing is true and correct.

 

Executed on April 12, 2011.

 

                                                                                                                                                                             _____________________________________

                                                Janis Schmidt               


 

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