Note: This motion and associated papers are as submitted to the court except that all identifying information for my former wife has been replaced with her first name, Karyn, as the normal references on my web pages are to first name only. Personal identification for myself has been obscured. The Brief is also available on line with the record. These is also a page with links to the sections describing events as they occurred.

Page breaks have been moved slightly to avoid page splits in the middle of paragraphs. Hand written entries are shown in italics.


In the Multnomah County Circuit Court

State of Oregon


The State of Oregon

Plaintiff


versus

Brian P. Carr

Defendant


Case


09-23389


Revised Motion to Set Aside



The Defendant, Brian P. Carr, requests the following relief:


  1. That the records retained by the court of the arrest of the Defendant on November 5, 2004 by the Portland Police Bureau, Case Number 04-106606, be sealed with access restricted to the parties and the court except by application and approval of the court.

  2. The court find that the arrest of Defendant on November 5, 2004 was improper and that Defendant can answer the question of 'Have you ever been arrested?' without an affirmative response which would otherwise be required because of said arrest.

  3. That the entire criminal record of the Defendant (DOB November XX, XXXX (including any entries listed incorrectly under DOB October XX, XXXX) and Washington Driver's License CARR*BPXXXXX) retained and / or accessible by the Portland Police Bureau and / or Multnomah County District Attorney be added to the record for this case for the review of the court. Defendant further requests the delineation of those portions of the criminal record which would be released to private individuals and corporations with the normal employment background check. If there are any portions of this criminal record which the District Attorney deems sensitive or confidential, access to these portions may be restricted to the parties and the court with the approval of the court. In particular this criminal record should include all information which would likely be considered were the Defendant being considered for employment in a sensitive position with either of the above agencies.


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  4. That all agencies and / or parties who have received copies (electronic or otherwise) of this criminal record be identified including the agreement under which they were provided access to the information.

  5. That those portions of the above criminal record which are covered under Oregon Revised Statute 137.225 be expunged in accordance with that statute. Further, if there are similar arrests of other individuals which warrant being expunged (such as any arrest made based on a RCW 26.50 Order for Protections signed by a Superior Court Commissioner from Clark County,Washington during 2004 or other years when there is an apparent lack of jurisdiction for these Commissioners), all of these records be similarly expunged.

  6. The destruction of those portions of the above criminal record which are not covered under Oregon Revised Statute 137.225 or other due process procedures to insure their accuracy and the protection of the Fourteenth Amendment rights of Defendant. Further, if any of these records falls within a broad class of actions (such as arrests made for violations of Orders (VRO) extending from domestic disputes such as FAPA Orders), then this request also includes the destruction of similar records for all parties who have similarly had their Fourteenth Amendment rights infringed upon by the lack of due process procedures for the maintenance and release of these records.


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  7. That the court consider the widespread sexual stereotyping of domestic violence in our society and recuse itself if the court can not view domestic violence in a sexually neutral manner as required by law.

  8. An investigation by the court of similar arrests for violations of Orders (VRO) extending from domestic violence such as FAPA Orders to determine if there is widespread sexual stereotyping in the arrests made by Portland Police Bureau in domestic disputes. If there is a significant variance in the arrests made for domestic violence by the Portland Police Bureau from the normal rate of occurrence of such violence as determined in peer reviewed scientific studies, then the sealing of all such records until the Portland Police Bureau can demonstrate that they are enforcing FAPA (ORS 107.700-732) and other domestic orders in the sexually neutral fashion required by law.

As well as such other relief as the court deems reasonable and justified.




Dated: March 13, 2006

Location: Portland, OR

Brian P. Carr

Signature of Defendant
11301 NE 7th St., Apt J5
Vancouver, WA 98684
360-607-0556


Plaintiff:
Multnomah County District Attorney
Multnomah County Courthouse, Room 600
1021 SW Fourth Avenue
Portland, Oregon 97204


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In the Multnomah County Circuit Court

State of Oregon


The State of Oregon

Plaintiff


versus

Brian P. Carr

Defendant


Case 09-23389


Memorandum of Law


in Support of Revised


Motion to Set Aside




  1. There is little doubt that the court has virtually unrestricted power to seal or release the records of the court. The only real question is the court's authority to seal the records of law enforcement agencies such as the Portland Police Bureau. While it was decided in Springer v. Oregon, 50 Or App 5, 621 P2d 1213 (1981) that the court did not have unlimited power to seal the records of such agencies (the legislature has since given the court the authority and guidelines to seal arrest records which were contested there), the court does have that authority if the legislature provided procedures do not provide adequate protection of fourteenth amendment rights of due process and equal protection under the law as well as the right to privacy. The decision in Springer v Oregon was based on the adequacy of the procedures provided by the legislature as well as the intention of the legislature rather than any intrinsic limit on the court's authority to protect individual rights.

  2. Since this decision (1981) the widespread use of background checks has made a party's criminal record an integral element in the ability to gain and retain employment. While the framers of the constitution (both state and federal) could not have foreseen the widespread dissemination of criminal records, they did provide the guarantee of certain rights when they impacted a person's livelihood as criminal records do today. While the state certainly has the ability to impair a person's livelihood, it can only do so within the constraints of due process. This guarantees the right of the affected individual to be heard before an impartial authority (not necessarily a judge), presented with the evidence against him, given the opportunity to present evidence on his own behalf, and the right to appeal.


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  3. The inclusion of these unfounded entries in the Defendant's criminal record makes the Defendant essentially unemployable in the vast majority of opportunities which would otherwise be available to him. Not only does this unjustifiably decrease the Defendant's future income potential, it also reduces the state's own tax base. Accurate criminal records benefits all parties and are the result of correctly applied due process. It is clear that the intention of the legislature in drafting ORS 137.225 was to simplify the process of maintaining the now widely disseminated criminal records with relevant information and providing individuals the opportunity to remove entries which were no longer deemed relevant by the legislature.

  4. The value of accurate criminal records goes beyond employment opportunities. While the Defendant has no particular problem with the being searched and having his luggage searched because he was identified as a potential terrorist, society at large suffers when criminal records contain incorrect and misleading information. There has been no evidence presented at any time to indicate that Defendant is inclined to violence or criminal behavior (though Defendant could readily be described as stubborn and litigious). The false positives (searches of targeted individuals who are not truly likely suspects) increase the cost of anti-terrorism measures and decrease the thoroughness of legitimate checks, decreasing the security for all members of our society. All law enforcement agencies benefit from maintaining accurate records and the elimination of erroneous entries is one critical aspect of attaining that accuracy.


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  5. While ORS 137.225 does not explicitly give the court the power to correct inaccurate entries in an individual's criminal record, the court has that right when those records are considered for employment purposes or shared with entities which could use them for that purpose. While the court could exercise this authority under any procedure, the advantage of exercising it in the context of ORS 137.225 is that it specifies which court should process the request, who should be notified, and other procedures for expeditious processing of these requests. Were an individual John Smyth mistakenly arrested under a warrant issued for John Smith, there would be no justification for hindering John Smyth's career opportunities once the mistake was discovered. There also would be no justification to wait a year before correcting the error. However, the determination that it was truly a mistaken identity needs to be by an impartial authority and the court specified under ORS 137.225 makes the most reasonable option with the District Attorney representing the State's interest in the matter. Were the law enforcement agency to provide a due process procedure for such corrections, these procedures should be exercised first with the court remaining as an authority for appeals of this process.

  6. ORS 33 includes:

    33.015 Definitions for ORS 33.015 to 33.155. For the purposes of ORS 33.015 to 33.155: ...
    (2) “Contempt of court” means the following acts, done willfully:...
    (b) Disobedience of, resistance to or obstruction of the court’s authority,
    process, orders or judgments; ...
    (3) “Punitive sanction” means a sanction imposed to punish a past contempt of court....

    33.065 Procedure for imposition of punitive sanctions. ...
    (6) Except for the right to a jury trial, the defendant is entitled to the constitutional and statutory protections, including the right to appointed counsel, that a defendant would be entitled to in a criminal proceeding in which the fine or term of imprisonment that could be imposed is equivalent to the punitive sanctions sought in the contempt proceeding. This subsection does not affect any right to a jury that may otherwise be created by statute.

    Given the State's interest in preserving the income potential of individuals and eliminating the records of arrests which never warranted prosecution and convictions which are no longer considered relevant, it is clear that the right to request expungement is one of the statutory protections referred to in 33.065 (6) for any contempt proceeding include FAPA proceedings.


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  7. Oregon is one of the few states which has maintained domestic violence and their resolution as a non criminal procedure (Bachman v. Bachman CA A105221 (Control), A105256 (2000)). In Hathaway v. Hart, 300 Or 231, 708 P2d 1137 (1985):

    The essence of [FAPA] is to prevent acts of family violence through restraining orders and, if the court orders are disobeyed, to provide legal sanctions for the violations of the orders because ordinary criminal actions at law were found to be inadequate to achieve this desired legislative result.

    The legislature intentionally avoided criminal procedures and the associated stigma to encourage the use of FAPA by abuse victims who might be hesitant to invoke criminal processes against a family member. However, it is irrational to then interpret ORS 33.065 in a narrow fashion excluding domestic violence from the relief provided by ORS 137.225, thereby increasing the stigma and consequences of domestic violence. The legislature clearly was able to craft ORS 137.225 to maintain records where they were deemed important as in sexual crimes which have a historically high rate of recidivism. The only reasonable interpretation of ORS 33.065 and ORS 137.225 is that arrests and convictions for violations of domestic restraining orders can be expunged in accordance with ORS 137.225.

  8. While the State attempts to classify the arrest of Defendant as civil, the actual records themselves list offenses which are criminal in nature and it is the content of this record which gives this court jurisdiction over these records. It is these records which are shared with other agencies and which determine the Defendant's future career prospects. In particular the offenses of trespass and domestic violence, while brief and inconclusive, could be easily construed as criminal offenses when considered in the context of a criminal record.


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  9. There are numerous definitions of what is and is not a crime for the different rights, penalties, and statutes. In Hathaway v. Hart, 300 Or 231, 708 P2d 1137 (1985):

    The defendant argued, and the Court of Appeals correctly held, that the proceeding at issue here was for criminal and not civil contempt. As we said in State v. Thompson, 294 Or 528, 531, 659 P2d 383 (1983), "a penalty for contempt [is] 'civil' when it is imposed in order to compel compliance with an order and will end as soon as the respondent complies, and [is] 'criminal' when it is imposed for a completed contempt that can no longer be avoided by belated compliance." See State ex rel Dwyer v. Dwyer, supra, 299 Or at 111; In re hanks, 290 Or 451, 458 n 10, 623 P2d 623 (1981).

    which clearly indicates that violations of FAPA Orders are criminal contempt proceedings with all the associated statutory protections of criminal proceedings, though not a trial by jury. However, for ORS 137.225, there is only one reasonable definition: anything included in an individual's criminal record is a 'crime' with respect to ORS 137.225. This improves the accuracy of the criminal record while at the same time protecting the individual's right to due process for records which have such critical impact on his livelihood. As law enforcement agencies add increasingly non-criminal matters to the criminal record, the courts have ever wider latitude in interpreting this statute. Indeed, even the order itself could be considered as a conviction for the purpose of expunging the order if law enforcement agencies choose to include the order itself in the criminal record after the order has expired. Since the level of evidence for issuance of such an order is lower than for a violation of the order (preponderance of the evidence versus beyond reasonable doubt), the court has even wider latitude in expunging such records.

  10. With the Defendant's background of West Point and M.I.T., seeking employment with the Portland Police Bureau, Multnomah County District Attorney's Office, or even the Department of Homeland Security would not be unrealistic except for the damaging effects of this alleged violation and the underlying order. Of course this would be justifiable had the Defendant done anything improper, but to date there has been no evidence presented that indicates any improper behavior on his part. It is for this reason that the court is requested to order the inclusion in the record for this matter of the entire record retained by Portland Police Bureau including anything that would be likely to be reviewed were he to seek employment in a sensitive position with the Portland Police Bureau or even the Multnomah County District Attorney's Office. In this manner the court can determine just what evidence there is to support the allegations which have made against him, whether there is any justification in permitting future access to these records and what records should be sealed were the request granted.


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  11. Had the legislature or even Portland Police Bureau instituted an alternative due process procedure (including non judicial processes) for handling civil matters which are part of an individual's criminal record, then the State could reasonably argue that ORS 137.225 does not apply to those portions of the criminal record, but in absence of any alternative procedures, any interpretation of ORS 137.225 which excludes those portions of the criminal record is tantamount to holding this absence of procedures unconstitutional. Indeed, as ORS 183.555 requires the Department of State Police to maintain the accuracy of the Criminal Offender Information System and process requests for corrections and as this is implemented through OAR 257-010-0035 which says in paragraph (3):

    If after review of the information concerning them as maintained in such record, the individual believes that it is incomplete or incorrect in any respect and wishes changes, corrections, or updating of the alleged deficiency, they must make application directly to the contributor of the questioned information, requesting the appropriate agency ... to correct it in accordance with its respective administrative rules and procedures.

    and as Portland Police Bureau refers requests to correct their criminal records to ORS 137.225 procedures, then all of the abilities to correct these records required under ORS 183.555 have been delegated to this court under ORS 137.225.

  12. While violations of Oregon restraining orders under ORS 107.700-732 (FAPA) have been classified as unique, neither civil nor criminal, violations of Orders for Protection under RCW 26.50 are clearly delineated as crimes as in RCW 26.50.110:

    Whenever an order is granted under this chapter ... and the respondent or person to be restrained knows of the order, a violation of the restraint provisions... is a gross misdemeanor ... [or a more serious crime]

    Indeed, the order itself includes:

    WARNINGS TO THE RESPONDENT

    Violation of the provisions of this order with actual notice of its terms is a criminal offense under chapter 26.50 RCW and will subject a violator to arrest. . . .


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  13. While ORS 107.728 might be construed to be the basis under which the court would enforce the terms of this external order, that would be an error as FAPA proceedings under ORS 107.700 to ORS 107.732 are often considered civil proceedings unlike Washington where violations of orders under RCW 26.50 are clearly delineated as criminal. As such, the authority of the court to enforce this external order with punitive measures would be under ORS 33.010 – 33.155 which includes in ORS 33.065:

    (6) Except for the right to a jury trial, the defendant is entitled to the constitutional and statutory protections, including the right to appointed counsel, that a defendant would be entitled to in a criminal proceeding in which the fine or term of imprisonment that could be imposed is equivalent to the punitive sanctions sought in the contempt proceeding.

    This broad protection would certainly extend to ORS 137.225 rights to have convictions and arrests set aside or expunged.

  14. Defendant was held without the possibility of bail until he was arraigned (over 72 hours) even though Oregon restraining orders under ORS 107.720 provides for bail with

    4) Pending a contempt hearing for alleged violation of a restraining order issued pursuant to ORS 107.095 (1)(c) or (d), 107.716 or 107.718, a person arrested and taken into custody pursuant to ORS 133.310 may be released as provided in ORS 135.230 to 135.290. ...

    Defendant was informed that Washington statutes preclude the release of individuals charged with violations of RCW 26.50 Orders for Protections before arraignment. In a similar manner it was an error to list the alleged violation as a civil violation of a restraining order as RCW 26.50 clearly states that violations of Orders for Protection under that statute are crimes as the Order itself states and, hence, must be so listed.


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  15. While it is hoped that the Washington Court of Appeals, Division II will rule on the jurisdiction of Superior Court Commissioners from Clark County in 2004 (and 2005) before this matter is decided, this may not be the case. In any case, this court must consider the basis for the arrest including the validity of the Order for Protection. If the issuing authority was not properly appointed to hear such matters (had no jurisdiction), then the order had no validity and the police had no authority to enforce such an order. A simple review of the Washington Constitution Article IV. Section 23 and the orders appointing four Superior Court Commissioners from a single county (which clearly exceeds three in number) invalidates all their appointments. A review of the legislature's different references to Superior Court Commissioners makes it clear the legislature also did not intend for Superior Court Commissioners to hear RCW 26.50 matters without regard to the number of appointments in a single county.

  16. If this court determines that there was no valid Order for Protection then the arrest itself was not proper and should be sealed for the simple reason that improper actions on the part of the police should not have any impact on the rights of the Defendant to seek lawful employment. This would naturally extend to all arrests from RCW 26.50 Orders from Clark County as these and other Superior Court Commissioners were the only individuals granting such orders in 2004 and 2005.

  17. While the Portland Police Bureau's record of my arrest lists the crimes of Trespass and Domestic Violence there is no evidence to indicate any form of trespass or assault. Under RCW 26.50 there is the odd inclusion of stalking as a form of Domestic Violence and the police report does contain allegations which could be elements of the crime of stalking, However, the crime of stalking under RCW 26.50 refers to RCW 9A.46.110 which requires several elements beyond those included in the police report. In particular there must be behavior which would cause a reasonable person to fear injury to person or property. Attending a common social function hardly gives rise to fear of injury for any reasonable person.


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  18. As required under ORS 33.065 (7), the Defendant gives notice to the District Attorney that he intends to raise the defense that he was unable to comply with the Order as he was arrested and not permitted the opportunity to leave the vicinity after becoming aware of Karyn's presence outside the restaurant.

  19. There was no probable cause to justify the arrest of Defendant for any offense. This raises the question of why the defendant was arrested in the absence of such evidence. It opens the possibility the police in this matter were acting on the sexual stereotype that men are violent brutes and women are helpless victims which prevented them from actually evaluating the evidence they were presented with.

  20. Scientific peer reviewed studies of domestic violence indicate that in our society at this time women are more likely to physically abuse their domestic partner than are men1. This is in distinct contrast to general perceptions as well as the prosecution of offenders where men are held to be the primary source of domestic violence. This discrepancy is likely explained by the subtle condoning of physical abuse of men by women within our society which certainly includes the lack of enforcement of the law.

    1 Thousands of couples were involved in these studies. The conclusions are based on more than 20 years of research. For the average of reports by both males and females: Husband on wife severe assault occurred at a rate of 2.0%, whereas wife on husband severe assault occurred at a rate of 4.6%. and Husband on wife minor assault occurred at a rate of 9.9%, whereas wife on husband assault occurred at a rate of 9.5%. See:
    http://www.abs-comptech.com/DVMETAht.html
    http://www.ancpr.org/domestic_violations_false_allega.htm
    http://webapp.icpsr.umich.edu/cocoon/NACJD-STUDY/07733.xml
    http://www.sagepub.co.uk/book.aspx?pid=101744
    http://www.sagepub.co.uk/book.aspx?pid=101747


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  21. Over the last several decades there have been numerous portrayals in the media of the scenario where 'Man says something which Woman finds offensive, Woman slaps Man, Man is silenced by this justified response to his offensive behavior, and, later, through the typical sort of karmic retribution, terrible things happen to Man for his prior offensive behavior'. The problem with this scenario is that it has the effect of condoning and even encouraging criminal physical abuse of men in domestic relations (with the inherent emotional abuse of such physical abuse) while at the same convincing men that any abuse they receive must be justified and that they have no real alternative to accepting their abuse in silence. The reverse scenario when a man strikes a woman is uniformly portrayed as a heinous act. This abhorrence of abuse by men is consistent with the values of our society and the law itself. The sexually discriminatory acceptance of the physical abuse of men is an example of the inconsistencies in our society's values, but the law does not and should not reflect these inconsistencies.

  22. While the law formally requires equal protection it does not actually provide it. The court is asked to recuse itself if it can not recognize the harmful effects of this condoning of the physical abuse of men and take those actions which are required to insure equal protection under the law.

  23. If the court finds that the enforcement of the law with respect to domestic violence is sexually biased, the court is asked to seal the records of all such arrests and convictions. The correction of the sexual bias in reporting and enforcement of domestic violence is a very difficult problem due to its foundation in the values of our society. However, the court can prevent this sexual bias from impacting the livelihood of individuals who are subjected to this bias.




Dated: March 13, 2006

Location: Portland, OR

Brian P. Carr

Signature of Defendant
11301 NE 7th St., Apt J5
Vancouver, WA 98684
360-607-0556


Plaintiff:
Multnomah County District Attorney
Multnomah County Courthouse, Room 600
1021 SW Fourth Avenue
Portland, Oregon 97204


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In the Multnomah County Circuit Court

State of Oregon


The State of Oregon

Plaintiff


versus

Brian P. Carr

Defendant


Case 09-23389


Affidavit in Support


of Revised


Motion to Set Aside



I, Brian P Carr, am the Defendant in this matter, have knowledge of the facts of this matter, and make the following statements under oath and penalty of perjury.


  1. On February 21, 2006 I received a copy of my criminal record from the Records Division of the Portland Police Bureau. The record is attached as Exhibit A. It includes references to the crimes of Trespass and Domestic Violence as well as the expected violation of the restraining order (actually an Order for Protection under RCW 26.50). The crime of Domestic Violence could refer to assault or stalking under RCW 26.50.

  2. In December of 2004, I received from the Records Division of the Portland Police Bureau a copy of the relevant Police Report in Case No. 04106606 which is attached in its entirety as Exhibit B. There appear to be allegations of stalking under RCW.26.50 which are demonstrably false. When I inquired at the Record Divisions about the procedure for correcting improper arrests I was referred to: http://www.co.multnomah.or.us/da/ and the articles and then expungement links which referenced Oregon Revised Statute 137.225 procedures.


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  3. In June of 1975 I graduated with honors with a B.E from U.S.M.A., West Point, NY.. In 1977 I received a M.A. in Computer Science (Applied Mathematics) from M.I.T., Cambridge, MA. I served in the Signal Corps with a Top Secret security clearance until 1982 when I left the U.S. Army as a Captain.

  4. I possess a Class A Commercial Driver's License which expires in November of 2006 with endorsements for Passengers, Tankers, and Hazardous Materials. To gain employment as a school bus driver (which I am qualified to drive) I must pass a criminal background check and in order to renew my Hazardous Materials endorsement I must also pass a criminal background check.

  5. In October of 2002 I met Karyn at the same restaurant and Mensa function where I was later arrested. It was my third attendance at that function and the first for Karyn after many months of not attending. I had been a member of Mensa (a national organization) for over a decade while Karyn had allowed her membership to lapse.

  6. Karyn and I were married on August 16, 2003 but there were problems in the marriage and on August 16, 2004 Karyn filed for divorce. My attendance at that particular function (every Friday at 5PM in downtown Portland) declined when I accepted employment in Eastern Vancouver in May of 2003 (as a mover for Active Moving) but resumed when I accepted employment starting on September 19, 2004 in downtown Portland (as a database specialist for @Once.com). I had applied for the new position in July of 2004 and switched jobs for better pay, benefits, hours and career opportunities.


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  7. Exhibit C is a copy of credit card charges which is as received from my bank except that the account number has been partially obscured so that this portion of the record does not need to kept confidential to the parties. It demonstrates that my resumed attendance at the Mensa function was contemporaneous with my change in jobs (attending on September 24 and October 1 and 8 of 2004) and before Karyn got the Order for Protection and contrary to the allegations in the Police Report (Exhibit B). On those dates I only encountered Karyn on one evening; she arrived late after 6PM (as her job normally prevents her from arriving at the start time of 5PM) and she sat at the opposite end of the table with about a dozen people attending. I left early at 6:15PM to go to my yoga meditation group which met later (7:30PM) on Friday evenings. We had no direct contact at the event.

  8. On October 15. 2004 Karyn applied for and received a Temporary Order for Protection. Exhibit D is a copy of the Petition for Order for Protection which was served on me at said Mensa function on that date. I left without having any contact with Karyn as required under the terms of the Order. It is worthy of note that on Page 2 Karyn asks that I not be permitted to attend Mensa functions. It is also relevant to note that Karyn had incorrectly entered my date of birth as in October rather than the correct month of November (top of page 1).

  1. On October 27. 2004 Karyn received an Order for Protection a copy of which is attached as Exhibit E. At the hearing there were extensive allegations concerning attendance at Mensa functions, but the Order does not place any restrictions on my attendance at said functions other than the intrinsic requirement that I leave any function when I know of Karyn's presence.

  2. The Order (Exhibit E) was signed by the Honorable Richard Melnick. Exhibit F includes copies of the Orders appointing the Honorable Richard Melnick as a Superior Court Commissioner along with three other Commissioners (Eiesland, Anders, and Schreiber). These orders were received from the Clark County Superior Court Chief Administrator's Office. On first inquiry the clerks in that office were unaware of these appointments as Commissioners or the numerical limits on such appointments in the Washington State constitution.


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  3. The Order for Protection is under appeal with Washington State Court of Appeals Division II, case 32671-0-2 for lack of required: justification (there were no allegations of violence or threats of violence as required under RCW 26.50), due process, and jurisdiction (the Superior Court Commissioner who signed the order was appointed in violation of the numerical limits of Washington State Constitution). The details of the appeal can be seen at http://brian.carr.name/Brief.html (capitalization is important) along with the text of the Order, transcripts, statutes, etc.

  4. Exhibit G is a copy of the Court of Appeals decision to review the case without oral argument (the appeal is unopposed) dated September 28, 2005. I have been informed that the matter was assigned to a panel for review on January 9, 2006 and on March 6, 2006 I submitted a request that the Court of Appeals issue a decision prior to April 6, 2006 so that this court does not need to make a determination as to the jurisdiction of the Honorable Melnick in this matter.

  5. On November 4, 2004, Officer Lindsay of the Portland Police Bureau approached me while I was in attendance at the Mensa function. I explained that I was aware of the Order for Protection but that I was allowed to attend these functions and only required to leave when Karyn was present, which she was not at that time. He informed me that I should have known better and escorted me outside. I first saw Karyn as I was exiting the premises and was arrested before I had the opportunity to leave the vicinity.

  6. After I was arrested, I was informed that I was arrested for a violation of the Order for Protection issued in Washington and that I would not be arraigned until Monday (three days later). Further I would be held until the arraignment as, while Oregon Family Abuse Act provided for the release of potential violators of restraining orders prior to arraignment, Washington law prohibited this and Washington law was controlling in this matter. I was not released until 9PM on November 8, 2004, more than 72 hours after I was arrested.


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  7. On July 23, 2005 I attempted to do electronic check in for a flight with American Airlines at Portland, OR International airport but was required to check in manually as 'my name or someone with a similar name was on the list of potential terrorists'. Upon reviewing the record and my driver's license the airline representative asked if my birthday was in November (as stated on my driver's license) or October. When going through the security check, I was pulled aside for an additional manual search of my person and my belongings.

  8. On all job applications for permanent positions which I have completed in the last decade I have been asked if I have ever been arrested. The job market is quite competitive in the areas where I work and negative responses to applicants are always general such as 'another candidate was found to be more qualified for the position'; no specific reason for the negative response is ever provided. In face of the highly competitive nature of each position, the requirement that I explain my criminal history makes me virtually unemployable in most of the positions to which I would otherwise be eligible.

I certify under penalty of perjury under the laws of the state of Oregon that the foregoing is true and correct.




Dated: March 13, 2006

Location: Portland, OR

Brian P. Carr

Signature of Defendant
11301 NE 7th St., Apt J5
Vancouver, WA 98684
360-607-0556


Plaintiff:
Multnomah County District Attorney
Multnomah County Courthouse, Room 600
1021 SW Fourth Avenue
Portland, Oregon 97204


Rvsd Mtn Set Aside, Mar 13, 2006

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On March 13, 2006 I delivered a copy of the preceding Revised Motion to Set Aside along with the associated Memorandum of Law, Affidavit in Support, and Exhibits to:


______________________________
Multnomah County District Attorney
Multnomah County Courthouse, Room 600
1021 SW Fourth Avenue
Portland, Oregon 97204



I certify under penalty of perjury under the laws of the state of Oregon that the foregoing is true and correct.




Dated: March 13, 2006

Location: Portland, OR

Brian P. Carr

Signature of Defendant
11301 NE 7th St., Apt J5
Vancouver, WA 98684
360-607-0556


Plaintiff:
Multnomah County District Attorney
Multnomah County Courthouse, Room 600
1021 SW Fourth Avenue
Portland, Oregon 97204


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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF CLARK

IN THE MATTER OF THE APPOINTMENT

OF COURT COMMISSIONER



ORDER AND OATH

It appearing to the Court that there is sufficient business of this court to warrant the appointment of a Court Commissioner pursuant to Article 4, Section 23, of the Washington State Constitution and RCW 2.24.010, now, therefore,

IT IS HEREBY ORDERED that Kenneth R. Eiesland, a citizen of the United States, is appointed Court Commissioner of the above-entitled Court to hold office from January 1, 2004 through December 31, 2004, and to exercise such power, authority and jurisdiction concurrent with the Judges of the above-entitled Superior Court as conferred by Article 4, Section 23, of the Washington State Constitution and RCW 2.24.040 and as directed by the Judges of the above-entitled Court.

DATED this 15 day of January, 2004.

Robert Harris
JUDGE OF THE SUPERIOR COURT


Exhibit F

1


IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF CLARK

IN THE MATTER OF THE APPOINTMENT

OF COURT COMMISSIONER



ORDER AND OATH

It appearing to the Court that there is sufficient business of this court to warrant the appointment of a Court Commissioner pursuant to Article 4, Section 23, of the Washington State Constitution and RCW 2.24.010, now, therefore,

IT IS HEREBY ORDERED that Richard Melnick, a citizen of the United States, is appointed part-time Court Commissioner of the above-entitled Court, to hold office from April 30, 2004 through through December 31, 2004, and to exercise such power, authority and jurisdiction concurrent with the Judges of the above-entitled Superior Court as conferred by Article 4, Section 23, of the Washington State Constitution and RCW 2.24.040 and as directed by the Judges of the above-entitled Court.

DATED this 30 day of April, 2004.

Robert Harris
JUDGE OF THE SUPERIOR COURT

Exhibit F

2


IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF CLARK

IN THE MATTER OF THE APPOINTMENT

OF COURT COMMISSIONER



ORDER AND OATH

It appearing to the Court that there is sufficient business of this court to warrant the appointment of a Court Commissioner pursuant to Article 4, Section 23, of the Washington State Constitution and RCW 2.24.010, now, therefore,

IT IS HEREBY ORDERED that Scott S. Anders, a citizen of the United States, is appointed Court Commissioner of the above-entitled Court to hold office from January 1, 2004 through December 31, 2004, and to exercise such power, authority and jurisdiction concurrent with the Judges of the above-entitled Superior Court as conferred by Article 4, Section 23, of the Washington State Constitution and RCW 2.24.040 and as directed by the Judges of the above-entitled Court.

DATED this 15 day of January, 2004.

Robert Harris
JUDGE OF THE SUPERIOR COURT

Exhibit F

3


IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF CLARK

IN THE MATTER OF THE APPOINTMENT

OF COURT COMMISSIONER



ORDER AND OATH

It appearing to the Court that there is sufficient business of this court to warrant the appointment of a Court Commissioner pursuant to Article 4, Section 23, of the Washington State Constitution and RCW 2.24.010, now, therefore,

IT IS HEREBY ORDERED that Vernon L. Schreiber, a citizen of the United States, is appointed Court Commissioner of the above-entitled Court to hold office from January 1, 2004 through December 31, 2004, and to exercise such power, authority and jurisdiction concurrent with the Judges of the above-entitled Superior Court as conferred by Article 4, Section 23, of the Washington State Constitution and RCW 2.24.040 and as directed by the Judges of the above-entitled Court.

DATED this 15 day of January, 2004.

Robert Harris
JUDGE OF THE SUPERIOR COURT

Exhibit F

4


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