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William John Joseph Hoge, IN THE

Plaintiff, CIRCUIT COURT FOR CARROLL COUNTY


MARYLAND
v.
Case No. 06-C-16-070789
Brett Kimberlin, et al.,
Defendants.

PLAINTIFFS OPPOSITION TO THE KIMBERLIN DEFENDANTS MOTION FOR


SANCTIONS (DOCKET NO. 137/0)

COMES NOW William John Joseph Hoge and opposes the Kimberlin

Defendants Motion for Sanctions (Docket Item. 137/0). In opposition to the motion

Mr. Hoge states as follows:

I. INTRODUCTION

Ironically, the Kimberlins are falsely accusing Mr. Hoge of crimes in an

attempt to silence him while Mr. Hoge is suing them for falsely accusing him of

crimes in their previous attempts to silence him. The Court should disregard the

Kimberlins Motion for Sanctions (Docket Item 137/0) because it contains nothing

but unsworn conclusory allegations which are not backed up by admissible evidence

and because it has no basis in law The one exhibit they provide in support of their

motion has been altered.

Mr. Hoge denies engaging in harassment, intimidation, or any of the illegal

acts alleged in the motion, and there is no evidence to the contrary. He denies that

he has ever asked or encouraged or incited any third party to engage in harassment,

intimidation, or any of the illegal acts alleged in the motion, and there is no
evidence to the contrary.

II. THE KIMBERLINS PROVIDE NO EVIDENCE THAT ANY HARASSMENT HAS


OCCURRED

While they make wild claims of stalking, harassment, and intimidation of

witnesses and parties, the Kimberlins fail to provide anything other than their

unsworn words to show that Mr. Hogeor anyone acting at his direction or

incitementactually did any of the things they complain about.

a. There is No Evidence That William Schmalfeldt Has Been Harassed

William Schmalfeldt has sued at least sixteen persons1 in six different

lawsuits since the beginning of 2014, alleging that they had defamed, stalked, and

harassed him. None of his lawsuits have survived beyond a motion to dismiss. On

the other hand, Schmalfeldts behavior online has resulted in multiple restraining

orders being issued against him.2 Thus, Schmalfeldt has given many people on the

1 Defendants in Schmalfeldts lawsuits include Robert Stacy McCain, Nancy Gilly


(twice), Fr. Paul H. Lemmen, Bettina Haper, Chris Heather, Kyle Kiernan,
Kimberly Dykes, Stephen Sheiko, Patrick G. Grady (three times), Eric P. Johnson
(twice), Sarah Palmer (twice), Dianna M. Deeley, The William G. Irwin Charitable
Foundation, the anonymous blogger Paul Krendler (three times), the anonymous
blogger Howard D. Earl (twice),and Mr. Hoge (three times). Schmalfeldt v. Hoge,
et al., Case No. 14-CV-1685-CCB (D.Md. 2014), Schmalfeldt v. Grady (I), Case No.
15-CV-1241-RDB (D.Md. 2015), Schmalfeldt v. Hoge, et al., Case No. 13-
C-15-102498 (Md. Cir.Ct. How. Co. 2015), Schmalfeldt v. Grady (II), Case No. 15-
CV-1516 (E.D.Wi. 20016), and Schmalfeldt v. Grady (III), Case No. 16-CV-7150
(N.D.Ill. 2016).
2Two were peace orders were issued against Schmalfeldt by this Court. Hoge v.
Schmalfeldt, Case No. 06-C-13-063359 (Md. Cir.Ct. Carr. Co. 2013) and Hoge v.
Schmalfeldt, Case No. 06-C-14-067023 (Md. Cir.Ct. Carr. Co. 2014). On information
and belief, restraing/non-stalking/protection orders have also been issued against
Schmalfeldt by courts in Arizona (two), Massachusetts (one), Illinois (two), and
North Carolina (two, one of which protected a toddler).

2
Internet reasons to keep track of him and his online writings. In spite of all his

online drama, Schmalfeldt has not, as of this writing, produced any evidence that he

has been harassed or stalked.

The Kimberlins make reference to a motion that Schmalfeldt has supposedly

filed with the Court detailing harassment he claims to have suffered, including the

slashing of tires on his car. As of close of business on 21 April, 2017, no such motion

was on the online case docket. However, Mr. Hoge believes the Kimberlins may be

referring to a paper styled a Motion for Contempt which Schmalfeldt improperly

served on Mr. Hoge by email on 9 April, 2017. An exhibit Schmalfeldt included in

that paper shows clear photographic evidence that the tires on the passenger side of

Schmalfeldts car were not slashed, but suffered sidewall damage, mostly likely

from striking a curb.3 Exhibit A. Thus, the photograph that the Kimberlins wish to

rely on as evidence of alleged vandalism does not support their claim. Not only

have the Kimberlins failed to offer evidence that Schmalfeldt has been harassed,

what they wish to offer tends to disprove that any harassment occurred. 4

3The wheel rims in the picture show damage consistent with rubbing against an
object such as a curb.
4The Court should note that Schmalfeldt claimed that he his unable to drive
because of his advanced Parkinsons disease in his Request to Appear by Telephone.
(Docket Item 70/0). The Court allowed him to appear via Skype. On information
and belief, shortly after the 27 September, 2016, motions hearing, Schmalfeldt
acquired a Wisconsin drivers license and bought a car. Exhibit A also contains an
extract from the paper served on Mr. Hoge by Schmalfeldt on 9 April, 2017, in
which Schmalfeldt states that he has a driver license and owns a car. Ex. A at 2. If
Schmalfeldt is driving while suffering from advanced Parkinsons disease, it would
not be unreasonable to suspect that he had struck a curb hard enough to damage
his vehicles passenger-side tires.

3
They have certainly failed to produce any evidence of a connection between

Mr. Hoge or anyone acting on his behalf and any alleged stalking, harassment, or

intimidation of William Schmalfeldt.

b. The Kimberlins Have Not Provided Any Evidence of Witness


Intimidation or Harassment

The Kimberlins claim that Mr. Hoge has harassed or intimidated their

potential witness Judge Michael Mason by sending him a letter is frivolous. The

Kimberlins have a copy of Mr. Hoges letter to Judge Mason. In fact, they have

included a copy of the letter as an exhibit in one of their previous sanctions motions

claiming that Mr. Hoge had harassed Judge Masonand which this Court properly

denied. Docket Items 109/0 and 110/0. Yet, they continue to misrepresent the

contents of that letter.

It is not improper to contact an opposing partys witnesses. This is done all

the time in order, for example, to determine the nature of the witnesses potential

testimony. Moverover, there was nothing improper in Mr. Hoges letter to Judge

Mason, and Mr,. Hoge never advised Judge Mason to retain legal counsel.

The Kimberlins also make reference to 18 U.S.C. 1512, a federal statute

with no bearing on this state lawsuit. This not the first time Brett Kimberlin has

tried to use that statute as the basis for an allegation against Mr. Hoge. In the first

RICO lawsuit he filed against Mr. Hoge, Kimberlin tried to use 18U.S.C.1512 to

criminalize both reporting on his legal affairs and engaging in normal litigation

practices as witness tampering. That claim did not survive a motion to dismiss.

4
Kimberlin v. National Bloggers Club, et al., Case No. 13-CV-3059-GJH,

Memorandum Opinion. ECF No. 263 (D. Md. Mar. 17, 2015) at 9 - 11. If this were a

federal case, Brett Kimberlins attempt to use the statute to criminalize protected

speech and normal litigation practice would once again be wrong, and he should

know that after being told so by a U.S. District Court. But this is not a federal

lawsuit, so raising 1512 is doubly frivolous.

Intimidation of witnesses and parties is a serious matter. Intimidation of

bystanders and reporters is also a matter for concern. But the Kimberlins have not

been the victims of intimidation as witnesses, parties, bystanders, or reporters.

Their real problem with intimidation is that they have been generally unsuccessful

at it.5 All of Brett Kimberlins lawsuits against Mr. Hoge have failed, and Mr. Hoge

5 Mr. Hoge has not been a defendant in all of Brett Kimberlins lawsuits aimed at
shutting down his critics. Kimberlin has only sued Mr. Hoge four times. Mr. Hoge
had over forty codefendants those cases: Aaron Walker (three times), Robert Stacy
McCain (twice), Ali Akbar (three times), Lynn Thomas, Peter Malone, National
Bloggers Club (twice), Patrick Frey (twice), Erick Erickson (twice), Michelle Malkin
(twice), Twitchy (twice), Glenn Beck (twice), Lee Stranahan (twice), James OKeefe
III, Mandy Nagy (twice), Breitbart Holdings (twice), DB Capitol Strategies (twice),
Dan Backer (twice), The Franklin Center, Simon & Schuster Inc., Mercury Radio
Arts (twice), The Blaze (twice), RedState (twice), The American Spectator, Hunton
& Williams LLP, United States Chamber of Commerce, Palantir Technologies,
Berico Technolgies, Mantech International, HB Gary/Federal, John Woods, Richard
Wyatt, Robert Quackenbush, Aaron Barr, Alex Long, Nicholas Hallam, Matthew
Steckman, Pat Ryan, Sam Kremin, Pacific Northwest National Laboratories, Bill
Nickless, the anonymous blogger Ace of Spades, and the anonymous blogger
Kimberlin Unmasked. Kimberlin v. Walker, et al., Case No. 380966V (Md. Cir.Ct.
Mont. Co. 2014), Kimberlin v. National Bloggers Club, et al. (I), Case No. 13-
CV-3059-GJH (D.Md. 2015), Kimberlin v. Hunton & Williams LLP, et al., Case No.
15-CV-723-GJH (D.Md. 2016), and Kimberlin v. National Bloggers Club (II), Case
No. 403868V (Md. Cir.Ct. Mont. Co. 2016). Kimberlin has not yet exhausted all of
his appeals, so there are a great many people quite interested in his activities in
support of his lawfare against them.

5
is still writing about Kimberlins attempts to use the courts to intimidate and

silence his enemies. While Kimberlin has recently filed yet another federal lawsuit

against multiple defendants,6 his civil litigation is, for the most part, no longer

viewed as a real threat but is seen as a vexatious nuisance. When Brett Kimberlin

engages so ineptly in his lawfare, Mr. Hoge does not have to blow some Internet dog

whistle in order for people to point and laugh and shake their heads. All he has to

do is report the facts. That factual reporting and the resulting mockery in the

comment section of Mr. Hoges website are protected speech. Nothing Mr. Hoge has

ever written about the Kimberlins comes close to being incitement under

Brandenburg v. Ohio, 395 U.S. 444 (1969) or a threat under Virginia v. Black, 538

U.S. 343 (2003).

The protection of that speech is expressly secured by the Free Press Clause of

the First Amendment and also by Article 40 of the Maryland Declaration of Rights.

Brett Kimberlins original allegations that truthful reporting about him constitutes

harassment and defamation failed years ago. 7 Yet, he keeps making essentially the

same frivolous claim. Its time for the Court to put a stop to his doing the same

thing over and over again expecting a different result. Brett Kimberlins failed

attempts to use civil actions in the courts for brass knuckles reputation

management have not silenced all his critics. His tactics have wound up making

6 Kimberlin v. Breitbart Holdings, et al., Case No. 16-CV-3855-GJH (D.Md. 2016).


7 Kimberlin v. Walker, et al., Case No. 380966V (Md. Cir.Ct. Mont. Co. 2014).

6
himself all-the-more infamous.8

Similarly, the Kimberlins' attempts to use false criminal charges to silence

Mr. Hoge and others have also failed, and it is now time for them to be held

accountable for their malicious prosecution of Mr. Hoge. It is time for the

Kimberlins and their associates to be held accountable for their defamatory

statements concerning Mr. Hoge. It is time for the courts to put an end to Team

Kimberlins campaign of harassment and intimidation through lawfare.

c. The Kimberlins Have Shown No Evidence That Mr. Hoge Has


Intimidated Anyone by Posting Courtroom Audio Online

Its somewhat surprising that the Kimberlins should bring up State v. Milton,

Case No. 01K16017864. That case involves an attempt to harass and intimidate

witnesses by posting courtroom audio on the Internet. Note the actual charge in

Milton is contempt of court for violating the standing order against publication of

courtroom audio.

In fact, Mr. Hoge has never posted hearing or trial audio from a Maryland

Courtroom on his website or anyplace else online. But Breitbart Unmasked has and

did so for the Kimberlins benefit in an online article related to this case. Exhibit B.

8Kimberlins efforts have backfired in much the same way that Jerry Falwells did
when he appealed Falwell v. Flynt and wound up with Hustler v. Falwell, 485 U. S.
46 (1988).

7
d. An Ex Parte Hearing Would Be Improper

The Kimberlins say that they have evidence that they could have presented

in support of their motion, but they are only willing to do so in an ex parte hearing.

In other words, they are unwilling to present their evidence if it could be subject to

adversarial challenge. Their offer to present photos and other documents at an ex

parte hearing should be taken as a red flag confirming that they know what they

have wont stand up to questions related to authentication and truthfulness.

The Kimberlins have offered no admissible evidence because they have no

admissible evidence. All they have is unsworn conclusory allegations which the

Court should disregard. Their Motion should be denied.

III. THE BLOG POST ATTACHED AS AN EXHIBIT TO THE KIMBERLINS MOTION


HAS BEEN ALTERED

The Kimberlins have attached what they purport to be a copy of Mr. Hoges

Team Kimberlin Post of the Day from 17 April, 2017. It is not a true and correct

copy. It has been altered. See Exhibits C and D.

First, the blog posts embedded copy of Defendants Brett and Tetyana

Kimberlins Reply to Plaintiffs Opposition to Transfer of the Case has been

obscured so that it cannot be seen to be accurate copy of that Motion as they served

it on Mr. Hoge.

Second, some of the blog posts comments have been deleted from the

8
Kimberlins version.9 It is obvious from a side-by-side comparison of the actual blog

post vis vis the Kimberlins exhibit that their exhibit was assembled using cut-

and-paste but that proper care was not taken with image sizing. For example, text

blocks that should have exactly the same size fonts have slightly different size fonts.

One place that error can be seen in the difference in the type sizes for the comments

in the top and bottom halves of Page 6 of 10. Another error in image sizing caused

the commenters avatar that should be to the left of the cartoon shown on Page 7 of

10 to have been cropped off.

The comment section at Mr. Hoges blog Hogewash! is generally open, and it

is his general practice to allow any comments so long as they met Mr. Hoges

minimum standard for decorum and avoid defamation or threats.10 Mr. Hoge also

prohibits comments about family members of controversial person who are not

themselves directly connected to any controversy. Anyone attempting to comment

must provide a email address, and the commenting system harvests the

commenters IP address. If those email and IP address are both associated with a

previously approved comment, the incoming comment is posted without review (but

may be stricken if later determined to be unsuitable). If either the email address,

9 The comments deleted mostly relate to William Schmalfeldt. At least one appears
to relate to a 2,000 mile driving trip Schmalfeldt claims to have taken over the
recent Easter weekend.
10Each commenter is responsible for his own comments. Mr. Hoge and Hogewash!
are not responsible per 47 U.S.C. 230.

9
the IP address, or the combination of the two is new, then the comment is held in

moderation until approved by Mr. Hoge.

The Kimberlins assertion that Mr. Hoge does not moderate comments on his

blog is not only false in general, it is specifically false with respect to the 17 April

Team Kimberlin Post of the Day. According the Mr. Hoges records, he deleted three

comments from normally approved commenters. Two were deleted for off-color

jokes that failed to meet Mr. Hoges standards for decorum. One was deleted for

mentioning someones family member who Mr. Hoge considers off-limits. Two other

comments were stopped in moderation because they were obscene. Investigation of

the email and IP addresses showed those comments were probably from an

associate of William Schmalfeldt. It is not unusual for persons associated with

either Brett Kimberlin or William Schmalfeldt to attempt to make such false flag

or sock puppet comments to Hogewash!the blog receives on the order of two or

three hundred such comments each year.

Given Brett Kimberlins admitted history of altering evidence11 and the

altered state of the Kimberlins exhibit, the Court should consider the Kimberlins

exhibit an effort by them to deceive the Court. The Court has no reason to trust the

Kimberlins, and it should not. The altered exhibit should be considered as yet

another reason to deny their Motion.

11Kimberlin v. National Bloggers Club, et al., Case No. 13-CV-3059-GJH,


Memorandum, ECF No. 124 (D.Md. Apr. 28, 2014) at 2. Kimberlin also admitted to
forging a summons in National Bloggers Club. See Response to Show Cause, ECF
No. 102 (Mar. 11, 2014).

10
CONCLUSION

WHEREFORE, Mr. Hoge asks the Court to deny the Kimberlins Motion for

Sanctions (Docket Item 137/0) and to grant such other relief as it may find just and

proper.

Date: 24 April, 2017 Respectfully submitted,

William John Joseph Hoge, pro se


20 Ridge Road
Westminster, Maryland 21157
(410) 596-2854
himself@wjjhoge.com

CERTIFICATE OF SERVICE

I certify that on the 24th day of April, 2017, I served copies of the foregoing
on the following persons:

William M. Schmalfeldt by First Class U. S. Mail to 422 3rd Avenue North, Clinton,
Iowa 52732

Brett Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817

Tetyana Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817

Breitbart Unmasked by First Class U. S. Mail c/o William Schmalfeldt, Editor, 422
3rd Avenue North, Clinton, Iowa 52732

William John Joseph Hoge

11
AFFIDAVIT

I, William John Joseph Hoge, 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: 24 April, 2017


William John Joseph Hoge

12
Exhibit A
Extracts from a paper served on Mr. Hoge via email by William Schmalfeldt
on 9 April, 2017.
IN THE CIRCUIT COURT FOR CARROLL COUNTY MARYLAND

WILLIAM JOHN JOSEPH HOGE, III )


Plaintiff )
)
v. ) Case No. 06-C-16-070789
)
BRETT KIMBERLIN, et al., )
Defendants )
) _________________

MOTION FOR AN ORDER TO SHOW CAUSE WHY PLAINTIFF HOGE SHOULD


NOT BE HELD IN CONTEMPT OF COURT FOR INCITING VIOLENCE AND
VANDALISM AGAINST DEFENDANT SCHMALFELDT

INTRODUCTION

1. NOW COMES pro se defendant William M. Schmalfeldt, Sr., (DEFENDANT) and

respectfully requests this honorable Court to issue an Order to Show Cause as to why Plaintiff

William John Joseph Hoge III (PLAINTIFF) should not be held in civil and possible criminal

contempt of court for inciting violence and vandalism against Defendant.

FACTS

2. Defendant had been reluctant to give his new home address and phone number to

Plaintiff because of incidents that have occurred in the past when Plaintiff had access to

Defendants addresses in Maryland and Wisconsin. For example, in January 2015, Plaintiff

enlisted his friend, Patrick G. Grady, 414 Gregory Ave, #1C, Glendale Heights, IL 60139

(GRADY), to fabricate a letter and forge Defendants signature in a failed attempt to give

Plaintiff a reason to have Defendant found in Contempt of Court for violating a peace order

pending before Judge Stansfield. (EXHIBIT 1) When Defendant moved to Wisconsin in August

2015 following the death of his wife, Plaintiff learned of Defendants new address and either

paid or otherwise encouraged Grady to stalk Defendant, including the theft of his identity (social
security number) which Grady used to ascertain Defendants drivers license number and thus

learn that Defendant had purchased a vehicle. Plaintiff either paid Grady or otherwise

encouraged him to travel from his residence to Defendants residence in Saint Francis,

Wisconsin to take a photograph of Defendants vehicle, which Grady published on his blog,

http://thinkingmanszombie.com. (EXHIBIT 2)

3. Even though Defendant was wary of Plaintiff having his latest home address and phone

number following Defendants move to Iowa, Defendant complied and sent his information to

Plaintiff via e-mail at 1:58 pm CDT on March 31, 2017. (EXHIBIT 3) But Plaintiff had already

been at work stalking out Defendants address. He posted a picture along with one he found on

Google Maps, which would have shown the address on March 28, 2017. (EXHIBIT 4) When

Plaintifffound it, he shared it with Grady on March 30, 2017. (EXHIBIT 5)

4. The next morning, April 1, 2017, Defendant discovered that the two passenger side tires

on his 1999 Ford Explorer the same vehicle photographed and posted by Grady on his blog

had been slashed. (EXHIBIT 6) Defendant replaced the tires at a cost of $436.02 (EXHIBIT 7)

and filed a report with the Clinton, Iowa, Police Department. (EXHIBIT 8) On the night of

March 31-April 1, 2017 there were approximately a dozen vehicles parked on Defendants home

block of 3rd Ave. North in Clinton, Iowa. Defendants vehicle was the only one to suffer damage

of any kind, and there were no other reports of any vandalism in the area. Defendant has no one

else on earth who wishes him harm other than Plaintiff and his readers.

5. On the evening of April 1, 2017, Defendant began receiving harassing text messages on

his cell phone, the number for which had been provided to Plaintiff the day earlier. These

harassing text messages continued until April 6, when Defendant made it known he had become

2
27
Exhibit B
Extract from Why Should A Judge Believe Anything William Hoge Says?
downloaded from http://www.breitbartunmasked.com/2016/05/16/why-should-a-
judge-believe-anything-william-hoge-says/ on 21 April, 2017.

Note that the first sentence of the second paragraph states that the article
contains embedded courtroom audio.
Exhibit C
The Kimberlins Exhibit A as served on Mr. Hoge.
Exhibit D
Extract of the Team Kimberlin Post of the Day for 17 April, 2017. The last
comment shown in the Kimberlins Exhibit A was timestamped at 15:26, so only
comments through that time have been provided for comparison.