Goldsmith v. Dooley et al

Filing 18

ORDER denying 17 Motion for writ of quo warranto. Signed by Chief Judge Karen E. Schreier on 5/29/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHARLES KYLE GOLDSMITH, The
People of the Republic of the
Republic State of South Dakota ex.
rel., relator for Charles Goldsmith;
Plaintiff,
vs.
ROBERT DOOLEY, Warden at Mike
Durfee State Prison;
JENNIFER STANWICK, Associate
Warden at Mike Durfee State Prison;
SUE JACOB, Associate Warden at
Mike Durfee State Prison;
JOHN DOE, The New Staff Attorney
at Mike Durfee State Prison;
Defendants.

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Civ. 11-4181-KES

ORDER DENYING MOTION FOR
A WRIT OF QUO WARRANTO

Plaintiff, Charles Kyle Goldsmith, moves for a writ of quo warranto. This
court dismissed Goldsmith’s case on January 20, 2012, and denied
Goldsmith’s motion to vacate the order dismissing his case on April 27, 2012.
Quo warranto is the prerogative writ by which the government can call
upon any person to show by what warrant he or she holds a public office or
exercises a public franchise. Newman v. United States of America ex. rel. Frizzell,
238 U.S. 537, 544-45 (1915). “Quo warranto is traditionally brought by the
sovereign or some representative of the sovereign.” Country Club Estates, L.L.C.
v. Town of Loma Linda, 213 F.3d 1001, 1003 (8th Cir. 2000). “Quo warranto is

similar to an injunction in that it is addressed to preventing a continued
exercise of authority unlawfully asserted[.]” 8 Fed. Proc. § 20:679 (updated
2012). Thus, quo warranto may not be instituted by an individual in the
absence of statutory permission. See Johnson v. Manhattan Ry. Co., 289 U.S.
479, 502 (1933) (“[Quo warranto] is an extraordinary proceeding, prerogative in
nature, and in this instance could have been brought by the United States, and
by it only, for there is no statute delegating to an individual the right to resort
to it.”).
Goldsmith bases his motion on Rule 81(a)(2) of the Federal Rules of Civil
Procedure, “Title 28, sec 134; and U.S. Constitution Article III, sec. 1; Article I,
sec. 10, clause 1.” Rule 81(a)(2) of the Federal Rules of Civil Procedure provides
that the Federal Rules of Civil Procedure apply to bankruptcy proceedings “to
the extent provided by the Federal Rules of Bankruptcy Procedure.” Title 28,
section 134 provides that United States district judges “shall hold office during
good behavior” and specify where a federal district judge may reside. Article III,
section 1 of the United States Constitution provides:
The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish. The Judges, both of the
supreme and inferior Courts, shall hold their Offices during good
Behavior, and shall, at stated Times, receive for their Services a
Compensation which shall not be diminished during their
Continuance in Office.
U.S. Const. art. III, § 1. Article I, section 10, clause 1 provides:

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No State shall enter into any Treaty, Alliance, or Confederation;
grant Letters of Marque and Reprisal; coin Money; emit Bills of
Credit; make any Thing but gold and silver Coin a Tender in
Payment of Debts; pass any Bill of Attainder, ex post facto Law, or
Law impairing the Obligation of Contracts, or grant any Title of
Nobility.
U.S. Const. art. I., § 10, cl. 1. None of the authorities Goldsmith cites permit
him to seek a writ of quo warranto as an individual. Thus, his motion is
denied.
The court reminds Goldsmith that it dismissed his complaint on
January 20, 2012. If Goldsmith is unhappy with the resolution of his case, his
remedy is an appeal to the Eighth Circuit Court of Appeals. Therefore, it is
ORDERED that Goldsmith’s motion for a writ of quo warranto (Docket
17) is denied.
Dated May 29, 2012.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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