After nearly two years of harassing motions and attempts to get a Carroll County, Maryland, Judge to see what’s actually motivating Hoge’s actions, the TRIAL OF THE CENTURY (in WJJ Hoge III’s mind) begins today. Of course, victory is assured as far as Hoge and his readers are concerned, and given the way this Judge has ruled in the past I can understand his reason for hubris.
I, of course, am not there. My co-defendant, Brett Kimberlin, will attempt to read this statement of mine into the record. I doubt the judge will allow it. But here it is, for posterity.
DEFENDANT SCHMALFELDT’S WRITTEN TESTIMONY IN LIEU OF PERSONAL APPEARANCE
With all due respect, this defendant will depart from the traditional third-person writing scheme for this testimony, but will instead address this Court directly and personally. I thank my friend and co-defendant Brett Kimberlin for at least attempting to enter this into the record, and in the event that he is prevented from reading this in Court, I ask leave that this statement be entered into the official record in this case. A copy is hereby provided to the Court and to the Plaintiff.
I. THIS COURT IS DEMANDING THAT I DO SOMETHING I AM NOT PHYSICALLY CAPABLE OF DOING
The plaintiff in this case and his readership enjoy pointing out that because there are physical acts I was able to perform months earlier, I should be able to perform them today. This ignores the reality that Parkinson’s disease is a progressively degenerating neurological disorder.
This Court seems to be taking the opposite tack. It claims that I no longer require accommodations I required on three previous occasions. After allowing me to attend two hearings by Skype and a pretrial conference by telephone, this Court seems to have declared me cured of this incurable disease, or at least to have halted and reversed the progressive degeneration of the disease by deciding I no longer require the accommodations I was afforded earlier.
By denying my request for reasonable accommodation, i.e., appearing via Skype, this Court is demanding that I do the impossible. This Court may as well demand that I appear in person and testify while levitating six inches off the floor. I am no more capable of doing that than I am of enduring a long, 800 mile plus trip from Myrtle Beach, South Carolina to Westminster, Maryland, spending four days (the estimated duration of this trial) seated on hard, wooden benches, then the 800 mile trip back to Myrtle Beach.
I know the effect this trip would have on my well-established, proven, Parkinson’s disease progression because I was afforded the unwelcome opportunity to test my endurance when a non-party filed for a no-contact order against me in Greensboro, NC, for the unpardonable sin of asking her if I had her correct address for the directing of a summons for a Federal Court case. The bus trip was agonizing. Even though the court appearance was brief, even a couple hours of sitting on hard, wooden seats exacerbated the muscular pain that goes with the rigidity and stiffness of Parkinson’s disease. The return trip to South Carolina included a seven-hour wait at the Raleigh Greyhound station due to the late arrival of the first bus in Greensboro. When I got back to my hotel room, I needed to stay in bed for two days before the pain subsided enough to allow me to attempt to walk more than just to and from the bathroom.
As Parkinson’s is a progressive neurological condition that is negatively affected by stress, my condition is worse now than it was before this unwelcome and unnecessary trip to Greensboro, NC – a fact this Court refused to contemplate when demanding that I endure an ordeal that would be at least four times worse than the Greensboro trip.
II. THIS COURT ALLOWED UTILIZATION OF THE REQUESTED ACCOMMODATIONS ON THREE PREVIOUS OCCASIONS.
On September 27, 2016, while I was still living in Wisconsin, this Court allowed my appearance at a hearing via Skype over the strenuous objections of the Plaintiff.
On May 5, 2017, while I was living in a hotel in Florence, SC, this court allowed my appearance at a hearing via Skype over the strenuous objections of the Plaintiff, who then alleged I violated some non-existent Maryland Statute or Rule by making an iPhone video of my own face and voice. This is something I routinely do as my memory begins to suffer due to my progressive Parkinson’s disease. Hoge entered a petition for contempt on May 10, 2017, which this Court served up on a silver platter without giving me a chance to respond by filing its order for a Show Cause hearing on May 12. My response to Hoge’s petition wasn’t even docketed until May 15. Shortly thereafter, for the third time, this Court approved my request for a reasonable accommodation by allowing me to attend a pre-trial conference by telephone on June 2, 2017.
But the Court never ruled on my motion in response to Hoge’s petition for contempt.
On June 17, I wrote a letter to Judge Hecker explaining my situation and asking for a ruling on my motion. (EXHIBIT A). The Court responded with a scolding about ex-parte communications. No ruling was ever given on my motion.
In the absence of a ruling from the Court, I contacted Judge Hecker’s chambers in the days before the June 28 Show Cause hearing and informed his clerk that I was physically unable to attend the hearing and that I required a ruling from the Court on my opposition to Hoge’s petition. No ruling was given and I did not attend the hearing.
The Judge decided to postpone the hearing until the first day of Trial.
On August 7, I once again asked this Court to reconsider its demand that I appear in person. (EXHIBIT B). Hoge opposed my motion on August 11. I responded to his opposition on August 14. (EXHIBIT C). The Court waited until the last possible moment to deny my motion on August 18, 2017.
This Court is advised that I fully intend to adjudicate my rights under Title II of the Americans with Disabilities Act against this Judge, this County, and the State of Maryland for refusing to provide a disabled person with a reasonable accommodation – an accommodation it had provided on three previous occasions.
III. MY DEFENSE AGAINST ALLEGATIONS MADE BY THE PLAINTIFF
Mr. Hoge intends to rely on lies to support his false claims.
From his Rule 2-502.2 statement.
“William Schmalfeldt admits that he exercises effective editorial control over Breitbart Unmasked.”
That is a lie. I have made no such admission.
“William Schmalfeldt admits that he exercises effective managerial control over Breitbart Unmasked.”
Again, a lie. I have made no such admission.
“William Schmalfeldt admits that he has an ownership interest in Almighty Media, the parent organization of Breitbart Unmasked.”
“William Schmalfeldt admits that some or all of the operating expenses for the Breitbart Unmasked website have been paid by Justice Through Music Project and VelvetRevolution.US.”
Mr. Hoge relies on a legal technicality to spew these lies. My failure to timely reply to a motion he filed is being taken by Hoge as an admission to the allegations. The only thing I admit to is that I truly believed I had answered and mailed my response to Hoge and this Court and was startled to find out the clerk either never received or never docketed that response.
I can answer for myself. And I have never made any such admission.
Again, regarding Count II, Hoge relies on lies. I will not speak any further about any allegations against Almighty Media and Breitbart Unmasked, relying on the Court’s wisdom and common sense to tell the difference between a technicality and the truth. Hoge has presented no credible evidence that I have falsely accused him of stalking anyone or suborning perjury. Regarding Constitutional Malice, it is Hoge’s burden to prove that I made the statement and that I knew it was false.
Hoge lies again by claiming I admitted to being the author of an email falsely accusing him of stalking a minor. I made no such admission. I never falsely accused Hoge of being incapable of performing his professional work. It is Hoge’s job in this trial to prove his allegations.
In Count IV, Hoge accuses me of writing a comment in Breitbart Unmasked regarding an article, saying I endorsed its content and affirming its accuracy. While I still maintain there was no false information in the article, it is not defamation for a person to state his belief that something written by another was a “true and brutal depiction of events.” Which events does Mr. Hoge allege I was referring to? There were a LOT of events described in that article.
- Hoge defended Paul Lemmen’s dubious claims to be an ordained orthodox priest.
- The author claimed Hoge pays what he called “too much attention” to Brett Kimberlin’s daughter.
- The author claimed Hoge’s boss, the man he claims to work as a paralegal for, Aaron Walker wrote a steamy BDSM rape fantasy and submitted it to a state court.
- The author claimed Walker contacted the FBI with information on where to contact Defendant Tetyana Kimberlin.
- The author claimed the FBI agent showed up for her custody interview with CPS and the unspoken message was “endorse this perjury and you can have your children.”
- The author makes several more claims regarding Aaron Walker, claims that Hoge has no standing to sue over.
- The author wrote” “Mr. Kimberlin succeeded in having these ludicrous accusations sealed, but not before Mr. Hoge ran to the courthouse and made a copy of the sickening document so that he and his friends could all publish it in their blogs.”
- The author wrote that the pedophila accusations came at a time when young Ms. Kimberlin was in discussion with Nashville talent agents, but by September 2013, she had been forced to change schools to escape the schoolyard taunts and bullying brought on by Walker’s accusations.
- The author stated his opinion that Hoge and Walker ruined Ms. Kimberlin’s public debut in the worst way imaginable.
- The author claimed Hoge was filing frivolous litigation on a regular basis.
- The author wrote Hoge’s focus on minutae is indicative of his madness. This Court has seen proof of this in the filings in the instant case.
- The author wrote Hoge had every reason to worry about the day young Ms. Kimberlin turns 18 and can testify for herself.
Where is the libel? Did Hoge NOT defend Lemmen’s priesthood claims? Is Hoge disputing an unprovable opinion about “paying too much attention” to the daughter of an enemy? Does Hoge deny going to the courthouse to make a copy of the sealed document for him and his friends to publish? Does Hoge challenge the author’s opinion that they ruined Ms. Kimberlin’s public debut “in the worst way possible?” Does that mean Hoge can think of even WORSE ways to ruin the life of an innocent teenage girl? Does Hoge deny that some might see his filing of pointless lawsuits and nearly 400 nolle prossed criminal charges as “frivolous”? Does Hoge deny that some may look at his devotion to minutae might be interpreted by some as “madness”? Is it libelous to say that Mr. Hoge should fear the day when Ms. Kimberlin can testify on her own behalf?
There is no libel in the story published in Breitbart Unmasked on March 4, 2014. Therefore, I cannot be liable for defamation where none exists. Hoge claims I falsely accused him of stalking. Where is the evidence? He claims I accused him of subordination of perjury. Where is the evidence?
Hoge lies to the court when he says I admitted to being the anonymous commenter “Westminster Winds.” I made no such admission.
Again, Hoge falsely accuses me of claiming he was a stalker and knowing the statement was false. I did no such thing.
In Count VII of his Original Complaint, Hoge again said I falsely claimed he was a stalker in a Breitbart Unmasked article March 9, 2015. But, for 168 hours, he WAS an adjudicated stalker. That’s the time between the moment when a court commissioner issued a Temporary Peace Order against Hoge until the day of his hearing. You will likely hear from Mr. Kimberlin about the chewing out Hoge received during that hearing. But Truth being an absolute defense against libel, from March 6 to March 13, 2015, Hoge had an active Peace Order forbidding him from contact with the Kimberlin Family.
In the SECOND Count VII in Hoge’s 2-502.2 statement, Hoge claims I made a false statement accusing him of perjury. My only contribution to this article was in the comment section where nothing approaching libel can be found. But in the story, the author states the judge turned down Kimberlin’s request for a peace order because the alleged stalking had happened more than 30 days previous to his filing. The author writes that Montgomery County Judge Zuberi Williams told Hoge, “You just lied under oath,” before turning to Hoge’s attorney and asking, “How am I supposed to find your client credible?” And besides, an audio recording produced by BU more than a year later substantiated the reporter’s version of events. Truth being an absolute defense against libel, this count should be dismissed.
In Count X, Hoge claims I falsely accused him of suborning perjury in a Breitbart Unmasked article on May 18, 2015. This was the same day Hoge was charged by a Montgomery County Court Commissioner filed criminal charges against Hoge and Walker. I did write a couple comments, mostly about how Hoge’s seemed more than happy to let his readers distract from the criminal charges by mocking the news that my wife was dying from her terminal illness.
Regarding Count XII, HOGE VIOLATED TWITTER TOS, THUS VIOLATING THE SETTLEMENT AGREEMENT ON SEPT 29, 2014. The earliest instance of Hoge accusing me of violating the agreement was October 23, 2015, almost 13 months later. I lived in Wisconsin on that date. In the 13 months between the time Hoge claims I violated the agreement and his first violation of that agreement on 9/24/14, Hoge violated the Twitter TOS
Three times on October 3, 2014 https://hogewash.com/2014/10/03/prevarication-du-jour-104/
Twice in https://hogewash.com/2015/03/07/prevarication-du-jour-117/
Twice in https://hogewash.com/2015/03/28/bonus-prevarication-du-jour-25/
Three times in https://hogewash.com/2015/07/11/prevarication-du-jour-125/
Twice in https://hogewash.com/2015/07/18/prevarication-du-jour-128/
That is 33 violations of the agreement BEFORE his first allegation that I violated it.
But none of that matters, because Hoge is in the wrong court to press these allegations. State law causes of action against copyright infringement are preempted by the Copyright Act.
These claims seek damages for conduct that is regulated exclusively by the Copyright Act, and state law can neither expand nor diminish the rights established by that Act.
Because the conduct alleged consists of nothing more than the alleged infringement of an exclusive right under the Copyright Act, state law cannot impose liability.
HOGE TURNED HIS “BREACH OF CONTRACT” ARGUMENT INTO A COPYRIGHT INFRINGEMENT ARGUMENT IN HIS ORIGINAL COMPLAINT.
- In addition to breaching the Settlement Agreement, Schmalfeldt’s unauthorized reproduction of Mr. Hoge’s works violated his copyrights to them. Thus, Mr. Hoge suffered damages in the loss of control of his copyrighted works. Given that an application for registration is in process with each of the infringed works and given that the infringement was willful, damages in an amount equivalent to the statutory damages available under 17 U.S.C. § 504(c) should be awarded.
For these reasons and others, this Court should throw out all allegations against me. Also, this court should issue a full apology for denying me my rights as a disabled American for a reasonable accommodation, especially when that accommodation was granted successfully on three previous occasions.
IV. CONCLUSION — DOES MY DISABILITY MAKE ME LESS OF A CITIZEN THAN ANYONE ELSE?
I am a citizen of the United States of America. Have been for more than 62 years. In that time, I served my country in the Navy and as a civil servant in the Federal Government. I have never been convicted of a crime… in fact, the first time I was ever hauled in front of a judge was when William John Joseph Hoge III of Westminster, Maryland, decided I did not have the right to Tweet his name with an at symbol in front of it.
I am a citizen. I am protected by the Constitution, Federal, State, local and municipal laws.
I am also a disabled person. Despite the controversy that exists ONLY among the followers of WJJ Hoge III, I have Parkinson’s disease. I was diagnosed in 2000. Teams of doctors have examined me, teams of neurologists have studied me, physical and occupational therapists have worked with me and they all agree. I have advanced stage Parkinson’s disease. I don’t have the tremor-predominant variety. I have the postural instability, gait disturbance subset. And I am suffering deficits in my short term memory and executive functioning.
Does any of that make me less of a citizen?
I no longer drive. It is my choice. Despite exercise and taking more of an active role in my own care after my wife died, the disease has progressed to the point where it has erased the advances I made in my physical condition. I can walk short distances, slowly. I lose balance easily. I cannot sit for extended times without laying down. The fact that a very few morons who follow the lead of WJJ Hoge III does not alter the fact that I live in pain 24 hours a day.
Does that make me less of a citizen?
Congress passed a law in the 1990s to protect people with disabilities from people like Hoge and his followers who would take advantage of them. It’s the Americans with Disabilities Act. Title II, specifically, deals with state and local government agencies. It’s not just an employment law. The law requires public facilities, like courts, to make reasonable accommodations to people like me with disabilities.
The fact that we have already had three hearings in this case, two via Skype and one via telephone, proves that my requests are not overly burdensome. But this time, the judge ordered me to appear in person because Hoge says I broke a law during our most recent Skype hearing. He’s not clear on what law I broke, other than I broke it. Because Hoge claims I broke a law, the Judge is set to take away my right as a disabled person for a reasonable accommodation.
Which of your rights as a citizen of the United States are you willing to surrender, just because Hoge told a judge to take that right from you?
I had two motions before the judge. Neither has received a response. I did not make travel arrangements to go to Westminster because I am an American Citizen with a Disability and I am NOT PREPARED TO SURRENDER MY RIGHTS UNDER THE AMERICANS WITH DISABILITIES ACT.
To the Hoge readers calling for my blood… the readers who have no skin in this game whatsoever, other than the hope that at long last they will finally see me hauled off to jail, the fact that they WANT me to undergo the physical pain of having to travel to Westminster, they WANT me to suffer, to them, I DESERVE to suffer for some reason they’re never quite clear about…
Which of your civil rights are you willing to hand over because Hoge told you to?
Your right to vote? If Hoge tells a judge you voted incorrectly will you allow a judge to tell you you cannot vote?
Your right to attend or not attend the church, synagogue, mosque or house of worship of your choice? Hoge told a judge you violated some law by attending a worship service. Are you going to stay away from your worship because a judge listened to Hoge without letting you defend yourself?
Your right to free speech? Hoge tells a judge you put an at sign in front of his name, even though he didn’t want you to. Putting an at sign in front of someone’s Twitter handle is not illegal. But Hoge told a judge it is. So, are you going to give up your right to use Twitter because Hoge told a judge to tell you to do so?
How much do you value your rights? How much do you value your citizenship?
Do you value your rights enough to fight for them? I do. And that’s what I am doing.
Judge Hecker has chosen to disregard my rights. Judges do that sometimes. That’s why the ADA contains provisions allowing a disabled person to sue the Judge for equitable and declaratory relief, and the state the judge is employed by for monetary damages.
Hoge doesn’t want me to participate. He knows what will happen if I did. He would be made a fool of, once again.
Judge Hecker has made the fully-informed decision to not provide the accommodation I require as a disabled citizen to attend this trial. Threfore, I will avail myself of the remedies available to me as a disabled citizen of the United States of America.
Respectfully submitted via oral presentation by Brett Kimberlin, with copies to the Court and Plaintiff.
Dated this 21th Day of August 2017 email@example.com
I, William M. Schmalfeldt, Sr., solemnly affirm under the penalties of perjury that the contents of the foregoing paper are true to the best of my knowledge, information, and belief.
Date: August 21, 2017 __________________________
invoking my rights under the ADA for this Court to fully accommodate my disabilities by allowing me to appear for the June 26 hearing via Skype or phone.
Please take this letter as a formal complaint under the ADA and provide me with a response in writing.
IN THE CIRCUIT COURT FOR CARROLL COUNTY MARYLAND
WILLIAM JOHN JOSEPH HOGE, III )
- ) Case No. 06-C-16-070789
BRETT KIMBERLIN, et al., )
DEFENDANT SCHMALFELDT’S MOTION FOR RECONSIDERATION OF THE
COURT’S ORDER THAT HE APPEAR IN PERSON FOR SHOW CAUSE HEARING
AUGUST 21, 2017, SEEKING PERMISSION TO ATTEND HEARING AND
SUBSEQUENT TRIAL BY SKYPE DUE TO DISABILITY-RELATED INABILITY TO
TRAVEL LONG DISTANCES WITHOUT SUFFERING PAIN AND DISCOMFORT
NOW COMES pro se defendant William M. Schmalfeldt, Sr., (DEFENDANT) with this
Motion for Reconsideration of the Court’s Order (Docket 178/0) That He Appear in Person for
Show Cause Hearing August 21, 2017, Seeking Permission to Attend Hearing and Subsequent
Trial by Skype Due to Disability-Related Inability to Travel Long Distances Without Suffering
Pain and Discomfort.
- OTHER THAN THE JUDGE’S ORDER, THERE IS NO REASON DEFENDANT
CANNOT APPEAR FOR THE SHOW CAUSE HEARING AND TRIAL BY SKYPE
The Court has ordered Schmalfeldt to appear in person for the show cause hearing for the
sole reason that Plaintiff claims Schmalfeldt is guilty of contempt of court for recording his own
face via iPhone and his own voice during a previous Skype-hearing. Hoge does not cite which
law he contends Schmalfeldt violated, although he does cite the punishment clause in a statute
that deals with issues for which the Defendant has not even been accused.
Unless Hoge or the Court can determine and identify which Maryland Statute or Rule
Defendant violated during the aforementioned hearing, Schmalfeldt cannot be shown to be in
Contempt of Court.
Contempt of court refers generally to any willful disobedience to, or disregard of, a court
order or any misconduct in the presence of a court or action that interferes with a judge’s ability
to administer justice or that insults the dignity of the court, and is punishable by fine or
imprisonment or both. A judge who feels someone is improperly challenging or ignoring the
court’s authority has the power to declare the defiant person in contempt of court.
Out of respect for the court, knowing he was physically unable to travel, Schmalfeldt
contacted the Judge’s chamber before the July 14 hearing to inform the Court that his physical
disability rendered it impossible for the Defendant to appear for the hearing and was told that his
request for a Skype or telephone appearance would be passed on to the honorable Judge in the
Since the Court never replied one way or the other on Schmalfeldt’s request, Schmalfeldt
took it upon himself to attend an unrelated restraining order hearing forced by a defendant in
Schmalfeldt’s pending Federal Case against Plaintiff Hoge, figuring if he could tolerate a bus trip
to and from South Carolina to Greensboro, North Carolina, he would probably be able to tolerate
a trip to Westminster for the Aug. 21 hearing and trial.
The eight-hour bus trip was exceedingly uncomfortable for Schmalfeldt, as was the return
eight-hour trip. Schmalfeldt needed a full day in bed to recuperate from the experience. A bus
trip from Myrtle Beach to Baltimore would take 14 hours each way. The Defendant lives in
dread of the discomfort such an ordeal would cause him.
- A LAYMAN’S EXPLANATION OF SCHMALFELDT’S DETERIORATING
PHYSICAL CONDITION AND ABILITY TO TRAVEL
Plaintiff Hoge and the “Amen Choir” in the comment section of his blog make a great
deal of Schmalfeldt’s ability to travel from Clinton, Iowa to Myrtle Beach, SC, back to Clinton,
returning to Myrtle Beach over the span of a couple weeks. Plaintiff Hoge is not a neurologist
and clearly does not understand that Parkinson’s is a progressive neurological disorder.
When Schmalfeldt left Clinton, Iowa for the final time in late April 2017, he weighed 300
lbs and was not showing the signs of muscle wasting he displays today. (See Attachment). The
progression of Schmalfeldt’s PD-related deterioration has accelerated in the past few months. He
has lost 13.3 percent of his body weight since the end of April, dropping from 300 lbs to 260 lbs.
Cachexia (also known as muscle wasting) is a common sign of late state Parkinson’s
Disease. It is defined as the loss of 5 percent of total body weight over a 12-
Photos of Defendant taken prior to this year show an obese individual. Photos taken on
July 31, 2017 show a defendant who still has an abundance of body fat in the abdomen and chest,
while demonstrating muscle wasting in his face, neck, upper and lower arms. A full body shot of
Schmalfeldt shows that while he still carries far too much fat in his chest and abdomen, the
amount has decreased and his thighs and lower legs show signs of muscle wasting.
Schmalfeldt’s condition has deteriorated to the point where he cannot rise from a chair or
from his bed without assistive devices. Prolonged sitting causes him extreme discomfort. He falls
frequently when walking or falling while attempting to get out of bed. (See Attachment). He
suffers from orthostatic hypotension, a sudden drop in blood pressure causing light-headedness
or fainting when he stands from a seated or recumbent position.
The aforementioned problems are typical for a person in the late states (end stage) of
Parkinson’s disease and are not unique to the defendant.
Given the proven and objective facts presented in the Attachment, Defendant believes it
would be tantamount to judicial cruelty to compel him to attend the Aug. 21 show cause hearing
and subsequent civil trial in person, especially when technology – which this court has employed
in the past – would allow him to participate completely in the hearing and trial using Skype.
THEREFORE, for the above-mentioned reasons, Schmalfeldt prays this honorable court
will reverse its order for defendant to appear in person for the Aug. 21 show cause hearing and
subsequent trial. Appearance by Skype would not prejudice the Plaintiff or in any way hinder his
presentation of his case
CERTIFICATE OF SERVICE
I Certify that on the 3rd day of August 2017, I served copies of the above on the
following persons. William John Joseph Hoge by FIRST CLASS MAIL at 20 Ridge Rd.,
Westminster, MD 21075 and Brett and Tetyana Kimberlin, by e-mail.
I will file updates as I receive them from Mr. Kimberlin.