judicial wrongdoing © Part3

Strollin' Pettifoggers - Part3
by Robert Hedges ©

I have appealed these matters to the Court of Appeals. I had had six cases there, and one to the Supreme Court. The following lists describe and identify them. Procedural law has overcome substantive law. A more recent pair of appeals in in the later chapters

The right of appeal is based upon the right of meaningful access to the court, under the Constitution, and the right to be treated equally with any other litigant, under the equal protection clause of the 14th Amendment to the Constitution. If appeal is available to one litigant in certain mandated circumstances, then it is available to all other litigants in the same circumstances. It thus becomes a right.

The dismissed appeals are usually vague to a degree which makes defining exactly what their shortcomings are, impossible to determine. This is not constructive criticism, which would guide an individual to correct his deficiencies in later appeals. One appeal differs from the others, and is clearly dismissed as if appeal were a discretionary decision by the Court of Appeals, and thus is an unconstitutional denial of appeal.

I appealed the first judgment in the lien removal case. This appeal was dismissed.
1. Robert Hedges [Defendant/Appellant] v Ella H. Deitz, et al (admin) - Court of Appeals 89-CA-002532 MR. This was an Appeal of the first Order in 89-CI-0083 dated 10 Oct. 1989 and filed 27 Oct. 1989 which was to remove the Liens from the Hedges Real Estate and placed these Liens on an empty bank account which by the admission of J.D. Dale [Response of J. D. Dale, KBA File 2966, pg. 3 Item 4, cont. to pg. 4] was in the hands of the antagonistic Executor/Executrix, who are not Bonded, as required by this statute. No other issue was written into this Order, and the legislative purpose of KRS 376 would be circumvented if this procedure were allowed. The Master Commissioner was empowered to remove the Liens [ in Lien Bk. 6] by this Order, which was written before the scheduling of the Equity Hearing which KRS 376. requires. This judgment is a nullity. Judge Saunders was not planning to abide by KRS 395.190 either. The Notice of Appeal was filed 7 Nov. 1989 = and it was dismissed on 6 June 1990, for prehearing deficiencies.
I appealed the remainder of the lien removal case. I made the ex parte motion for injunction in that appeal. This case was later dismissed back to the beginning.
2. Robert Hedges [Defendant/Appellant] v Ella H. Deitz, etc.- (admin) - Court of Appeals 90-CA-001745 MR This is an Appeal of 89-CI-0083, as an entire case, hinged upon the Final and Appealable Order, filed 15 Aug. 1990, which dismissed with prejudice all claims of the Defendant Robert Hedges upon the Estate of Houston Hedges. (notice that this is not upon the real property, but the concept of the estate) Robert Hedges is Appellant/Defendant. The Issue is the complete and total absence of testimony, and the Court of Appeals does not ever look at the Issue of the violation of KRS 376. , the absence of a jury trial, the failure of the judge to indicate what legal point was grounds the dismissal of a $365,216.88+ claim, as an in rem claim on real property. If there is a legal principle that can allow a judge to disenfranchise Hedges of his years of work time, services and investment without a SINGLE factual dispute ( as if by mere demurrer) then whatever this principle is must also apply equally to any other person who wishes for an estate to pay them. And no factual dispute but rather just by saying "I don't want to pay". The law as recently taught in the 2004 CLE is: a denial of payment without particularity as to which hour is not paid and why not . . is arbitrary reduction. see Walters v Moore, 121 SW2d 210, (Ky App 2003)
This appeal was dismissed by Judge Stumbo on 13 May 1991 back to the beginning allegedly for a flaw in the Prehearing Statement.
3. Robert Hedges [Defendant/Moveant] v Ella H. Deitz, et al (admin)-Court of Appeals 90-CA-2259-MR
Robert Hedges Defendant/Moveant made motion for a Judicial Review of Forcible Detainer. Judge Saunders had ruled against Defendant Robert Hedges in 89-X-002, which was an Appeal to Circuit from 89-C-008 Forcible Detainer. The grounds for seeking a Judicial Review was the absence of the testimony as required by Rule 31.0 or Rule 43., non- applicability of KRS 383. and absence of case law to support the circumstances herein. Judicial Review Denied. This was dismissed by Judge Stumbo allegedly for a flaw in the Prehearing Statement.
I appealed a denied motion in circuit as an appeal of a ruling in District over personal property, from the forcible detainer. Under KRS 376, an attachment takes place automatically when the debtor dies after the creditor files a lien. This is a Circuit Court issue. Thus I believed the District Court failed to have jurisdiction. The Appeal was dismissed.
4. Robert Hedges v Houston Hedges, (estate)- Court of Appeals 90-CA-2304-MR This Direct Appeal was made because of a District Court Order written in 89-C-008 concerned with an Order Dated 4 Sept. 1990 of Judge William Stewart which made personal property of R. Hedges "abandoned" and was intended to apply to the unlawful sale and removal of his (RH9) personal property which had occurred before that date. Judge Saunders, who Defendant/Appellant RH9 had reason to believe was biased, had denied a change of venue/bench/Judge in an appeal from District Court in the Forcible Detainer, dated 11 Sept. 1990 by Order Dated 21 Sept. 1990. Appellant(RH9) sought a redirect to a Circuit for a fair hearing via The KY Court of Appeals. The Court of Appeals declined jurisdiction, despite the fact that the Court of Appeals has original Jurisdiction in KRS 376. [and KRS 376 is correctly appealed from Circuit to the Appeals level] and the filed lien included the personal property that was not being resolved with particularity in Court but was disappearing. Appellant Robert Hedges did not seek a Judicial Review of this ruling in the KY Supreme Court because the ISSUE was not being heard, and would not have been heard even after hours of work on a Motion for Review by the KY Supreme. The legal fees would soon exceed the [market] VALUE of the disputed property, all due to the desire of Judge William Stewart to allow so many hearings without any testimony, and to permit Hearings without NOTICE to Robert Hedges. This same unresolved property dispute is filed in 91-CI-0021 today. This ( 90-CA-2304-MR) appeal was dismissed by Judge Stumbo allegedly for a flaw in the Prehearing Statement.
I appealed the partitioning case after the final and appealable ruling was issued in April 1992
5. Robert Hedges v Cook, Deitz, Wetzelberger, Kotheimer, Hedges - (siblings)= 92-CA-1440-MR = Prehearing Statement filed 6/17/92- appeal of Partitioning case - Spencer Circuit 90-CI-0070 - Appeal dismissed by Stumbo, Emberton & Howerton JJ. August 12 & 14, 1992. Judge Stumpo dismissed, without examining the final order, which included the clause by the trial court that the low price and low appraisal was sufficient. The rents and profits were not accounted for; the price offered was insufficient; partitioning case law and KRS 389 was not followed. There is no "presumption of indivisibility" in a contested partitioning case. The taking of land is so serious that the statute must be followed exactly or a nullity results.
I approached the KY Supreme Court with a motion for a discretionary review.
6. Robert Hedges v Cook, Deitz, Wetzelberger, Kotheimer, Hedges - SC-0731-motion for review of 92-CA-1440 = Stevens CJ =Motion for Discretionary Review made Sept 3, 1992 - certiorari denied - <
I appealed a denied Rule 60.02 Motion made against the Final and Appealable Judgment, appealed above, within the first year after that judgment was issued.
7. Robert Hedges v Cook, Deitz, Wetzelberger, Kotheimer, Hedges - 93-CA-0786-MR = appeal of 60.02 Motion in 90-CI-0070= Appeal dismissed Miller, Gardner & Johnstone JJ vaguely citing Civil Rule 76.12 on 25 Apr. 1994.
The grounds for this case were and still are a failure to account for the rents and profits of the 100 acres; a failure to log the mature trees, if sale was eminent, (unless a buyer was going to offer a premium to leave the big timber); a failure to maximize the price because of the sale method being auction; and most recently, the denial of the "expert witness" Barry Smith, that he is responsible for devaluing the entire 355 acres by his survey methods. He has committed a fraud by testifying simultaneously that he is the expert on this farm, and that he is not responsible for waste, he claiming a surveyor did the actual work, and he only filed a plan, and drove by the property to look at it from the road. And he got 7% of the estate for that drive-by siting. This "broker" who did nothing is one who should be denied payment without his having any factual dispute.
8) This is an appeal of a summary dismissal by Judge K. Conliffe in Jefferson Circuit Court. 95-CA-2096-MR. The case is Robert Hedges v Cook, Deitz, Wetzelberger, Kotheimer, Hedges, H. Barry Smith, John D. Dale jr. et al. TORT 95-CI-2191. The appeal was dismissed due to it being maybe two paragraphs longer than the rule. The Jefferson Circuit court had allowed deft Dale to have an ex parte hearing during Pltf. HedgesÕ 20 days to answer Deft. Dale's brief. This was, of course not a legitimate hearing. Then, the court allowed deft Dale to schedule a hearing without consulting Pltf Hedges about when Hedges was available in the city and state. This underhanded trick has since been called a mere courtesy denied. Then the court charged Pltf Hedges $1100. as if his case and issues were frivolous. Then the Court of Appeals searched for technical error to deny justice. Those interested should read this unheard brief. Then you should notice the CLE has published since this time training regarding Òpseudo-testimonyÓ by defendant council, as not being allowed, except under very specific circumstances. Rules about this "testimony" are both reasonable and necessary. "Practice should not be a gamble of technicalities, just reasonable and necessary rules . . Maggard v Johnson, 312 KY 770, 228 SW2d 764 (Ky 1950)"

The jurisdictional rule of appeal is that a Notice of Appeal must be filed within 30 days of a judgment, in the trial court. The Court of Appeals dismissed the Partitioning Appeal (CA-1440) as if it were an appeal made after the 30 days. It was not made late. There were earlier judgments also attached to the Notice, but jurisdiction of the Court "attached" based upon the Final and Appealable Order, identified and dated, in the body of the Notice. This is a constitutional deprivation, because the Judge tried to make my appeal discretionary, and deprived me of "meaningful access" to the court. If the US Supreme Court required the 6th Circuit Court of Appeals to reopen the constitutional deprivation case, this issue might be adjudicated. Vexatious, wouldn't you say. ?

This is the federal case complete with case law which is against an appellate level judge or court.

COMPLAINT AGAINST JUDGES STUMBO, EMBERTON, AND HOWERTON - STUMBO SIGNING

I will address this complaint to Judge J. Stumbo, rather than the above- named trio, because I am unable to determine who has instigated the violation of the spirit and seemingly the letter of the Rules of Civil Procedure, and deprived a litigant thereby of an appeal, which is a constitutional right under equal circumstances due all litigants. I can identify the signature however.

The case from which these events spring is an action to partition 100 acres, brought by plaintiff's against Robert Hedges as defendant. This case is the same partition case which has necessitated a complaint against the presiding Circuit Judge Richard L. Hinton. No appeal has yet been heard by the Court of Appeals.

Again the Complainant Robert Hedges sought a state remedy, rather than desiring a costly and time-consuming confrontation in Federal Court. Judicial economy says to avoid the vexation which is placed before me.

FACTS of the COMPLAINT

Fact 1) Appellant was denied an appeal, of a the Judgment dated 8 May, Filed 15 May, and Entered 16 May 1992. [exhibit 1] . This Notice gives jurisdiction of the matter to the Court of Appeals.
Fact 2) The Notice of Appeal is timely and clearly identifies the Judgment on Appeal, by date, May 16 1992, on line 2. . The Appellant's computer file of the Notice is dated 11 June 1992, and in the text dates the service as mailed to the Court of Appeals on 11 June 1992. [exhibit 2]
Fact 3) An ORDER DISMISSING STATE PARTITION APPEAL, entered 12 Aug 1992, states that the appeal is untimely. [exhibit 3]

Complainant Robert Hedges states that he was arbitrarily and improperly denied this timely appeal. The remedy may be to make a complaint in Federal Court to this effect.

CASE LAW SUPPORTING COMPLAINANTS ALLEGATIONS

1) Appeal is a right, due to all litigants equally, under whatever rules the state sees fit to impose. What is fair procedure for one is to be equally applied to all.
[w]hen appeal is afforded. . . . it cannot be granted to some litigants and capriciously or arbitrarily denied to others without violating the equal protection clause. Griffin v Illinois, 351 US 12 at 18 (1955); Smith v Bennett, 365 US 708, (1961); Lane v Brown, 371 US 477, (1963); Long v Dist Court of Iowa, 385 US 192, (1966); Gardiner v Calif, 393 US 367, (1969); Lindsay v Normet, 405 US 56 at 77, (1971); Cochran v Kansas, 316 US 255, (1942);
Frank v Mangum, 237 US 309 at 327, (1914) appeal is an element of Due Process and protected by the 14th Amendment .
[D]ue process is secured by the laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the power of government unrestrained by the established principles of private right and distributive justice. Maxwell v Dowell, 176 US 581 at 602, (1899), cites Leeper v Texas, 139 US 462 at 467, (1891)
[n]o state can deprive particular person or classes of persons of equal and impartial justice under the law without violating the provisions of the 14th amendment of the constitution. . . due process of law within the meaning of the constitution is secured where the law operate on all alike and no one is subject to partial or arbitrary exercise of the powers of the government. . . Caldwell v Texas, 137 US 692 (1891) cited in Merchant v Penn RR, 153 US 380 at 382, (1893)
2) The denial of an appeal which is brought under the Rules of Civil Procedure is a constitutional deprivation and a denial of access to the court when it is denied in an unreasonable and arbitrary manner.
. . . [i]n this court the state admits, as it must, that a discriminatory denial of the statutory right of appeal is a violation of the equal protection clause of the 14th Amendment . . . . Cochran v Kansas, 316 US 255, as cited in Dowd v Cook,US, 340 US 206 at 208 (1950)
Harper v Va Board of Elections, 383 US 663 at 673, (1966) Black J. [d]istinctions and discriminations which violate Equal Protection class are irrationality; irrelevant; unreasonable; arbitrary; invidious;
[T]he great purpose of the requirements of due process is to exclude everything that is arbitrary and capricious. . . we are constrained to conclude that they [the requirements of due process] do not leave room for the play and action of purely personal and arbitrary power. - Pennoyer v Neff, 95 US 714 at 733, (1877); Davidson v N Orleans, 96 US 97, 104, 107, (1878); Hurtado v Calif, 110 US 516, (1883); Missouri RR v Humes, 115 US 512 at 519, (1884/5); as cited in Dent v W VA, 129 US 114 at 122/24, (1888)
. .[a]ny . . . state statute - must be applied uniformly . . . . . ; otherwise the Equal Protection clause of the 14th Amendment is violated. Regan v NY, 349 US 58 at 66, (1954) -
[a]lthough not specifically mentioned in the constitution, the right of court access is based upon the 1st and 14th Amendment - Vaughn v Trotter, 516 F Supp 886 at 892, (MD Tenn 1980)
3) Jurisdiction of the matter allowing the Court of Appeals to review the lower court is the technical requirement which a litigant must establish in order for any act of the Court of Appeals to be valid. In the absence of jurisdiction the Court of Appeals would only issue nullities, which would be of no lasting effect. It is the task of the litigant to give jurisdiction to the court, be it by motion under CR 52, CR 59, CR 60, or any other applicable rule in the Circuit, or by Notice of Appeal creating a new case in the Court of Appeals.
[a]ppellate jurisdiction attaches upon notice of appeal - Lewis v Alexander, 987 F2d 396, (6th Cir 1993)
- [s]ince 1979 appeal is not valid while Motion exists in lower court, but before 1979 appeal removed jurisdiction from lower court - Griggs v Provident Consumer, 459 US 56, 716 F2d 892, (1982)
[a] motion pursuant to CR 59 converts a final judgment into an interlocutory judgment. CR 73.02(1)(e) - State Personnel Board v Heck, 725 SW2d 13 at 18 , (Ky 1986)
[D]ue process requires jurisdiction, and jurisdiction requires the statute to be followed conferring power upon the court to try and determine the issue. Scott v McNeal, 154 US 34, (1893)
[j]urisdiction is the authority to act officially in the matter then at hand. . . power to hear and determine a case. . McGlasker v Calton, 397 F Supp 525 at 530,(MD Alab ND1975) 524 F2d 1230 affirmed-
[i]t follows that if the court was without jurisdiction. . . the decree is utterly void. . Dick v Foraker, 155 US 404, (1894) at 414
US v Silliman, 167 F2d 607 at 618, (3rd Cir 1948)-335 US 825, denied - [e]very court in this country is a "court of limited jurisdiction"
4) The use of technicalities to deprive a litigant of his appeal is a violation of the Rules of Civil Procedure, and a constitutional deprivation.
[W]e no longer approach pleadings searching for a flaw, a technicality upon which to strike down a claim or defense as was formally the case at common law - Bertlesman & Phillips, Ky Practice, Vol 6 at p. 144. - Smith v Isaacs, 777 SW2d 912 at 715?, (1989)
[T]he Federal Rules reject the approach that pleading is a game of skill in which one misstep by council may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. Conley v Gibson, 355 US 41 at 48, (1957); Schiavone v Fortune, 477 US 21 at 27, 39, (1985); Zenith Radio v Hazeltine, 401 US 321 at 335, (1970); Williard Dairy v Nat Dairy, 373 US 934 at 935, (6th Cir 1962) denied- Black J dissent; US v Hougham, 364 US 310 at 317, (1960); Foman v Davis, 371 US 178 at 181, (1962); Mayor v Ed Equality League, 415 US 605 at 634, n1, (1973) White J dissent-
[t]he principle function of procedural rules should be to serve as useful guide to help, not hinder, persons who have a legal right to bring their problems before the court. Sup Ct New Rule Order, 346 US 945 at 946, (1954) Black CJ, as cited in Schiavone v Fortune, AKA Time Inc., 477 US 21, (1986)
[i]n determining whether rights were denied we are governed by the substance of things and not mere form. . L&N v Schmidt, 177 US 230 at 236, (1899) as cited in Simon v Craft, 182 US 427 at 436, (1900); In Re Summers, 325 US at 567, (1944) citing Nashville C&RR v Wallace, 288 US 239 at 249, (1918); Central Vermont RR v White, 238 US 507 at 511, (1914) as cited in US v Obermeier, 186 F2d 243, (1950)
. . [d]ue process of law guaranteed by the 14th Amendment has regard to substance of right and not to matters of form and procedure. . . the entire course of proceedings, and not merely one step, must be considered. . . Frank v Mangum, 237 US 309, (1916)
[d]ecisions on the merits are not to be avoided on the basis of "mere technicalities" Foman v Davis, 371 US 178 at 181, (1962); NAACP v Alabama, 377 US 288, (1964); Hovey v Elliott, 167 US 409 at 413/14, ( 1897);
[W]hile technical rules of pleading are maintained to protect rights of parties, under the code system technical rules should not be used to defeat the ends of Justice. Catron vs Jones, 135 SW2d 419, (1940); Roe v Gentry, 162 SW2d 208 at 210, (1942); Jordan v Olive Hill, 162 SW2d 229 at 231, (Ky 1942); Logan v Bradford, 178 SW2d 607, (Ky 1944); Stivers v Baker, 9 SW 491 at 492, (Ky 1888); Ashland Oil v Hudson, 275 SW2d 585, (Ky 1955); Maggard v Johnson, 229 SW2d 764, (Ky 1950); McBride v Moss, 437 SW2d 726, (1969);
. . . [t]he state may violate the constitution by failing to provide an appropriate procedural response. There is a constitutional duty to provide fair procedures to give the citizen the opportunity to try to prevent the deprivation. Daniel v Williams, 474 US 327 at 337/8, (1985)
5) The Court of Appeals cannot be allowed to speculate as to the merit of the litigants substantive assertions, which may follow after the jurisdiction to review attaches in the Court of Appeals.
[t]he right to procedural due process is "absolute" in the sense that it does not depend upon the merits of a claimant substantive assertions. Organized society requires procedural due process. Carey v Piphus, 435 US 247, (1978)
[w]hether individual has [a] defense. . . .is not important. To assume that he has none and therefore that he is not entitled to a day in court, is to assume against him the very point he may wish to contest. Rees v City of Watertown, 19 Wall 107 at 123, (1973) as cited in L&N v Schmidt, 177 US 230 at 236, (1899)
6) The denial of a pro se litigant on technical ground is against the legal precedent from the Us Supreme Court applicable to the pro se.
[d]ecisions of the US Supreme Court rendered by written opinion are binding on all courts, state and federal. The court's holding is stare decisis and cannot be overruled except by the court itself. Even the court's dicta has persuasive precedential value. Jordan v Gilligan, 500 F2d 701 at 707, (6th Cir ND Ohio 1974)
. . .[a] pro se complaint " however inartfully pleaded" must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears" beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v Gibson, 355 US 41 at 45/6, (1957); Haines v Kenner, 404 US 519, (1972) cited in Estell v Gamble, 429 US 97, (1976); also Hughes v Rowe, 449 US 5 at 10, (1980); Little v Streater, 452 US 1 at 5/6, (1981) due process ; Wilwording v Swenson, 404 US 249 at 250/51, (1971); Wright v Collins, 766 F2d 841 at 846, (4th Cir 1985); Jacobson v Filler, 790 F2d 1362 at1367, (9th Cir 1986); Borzeka v Heckler, 739 F2d 444 at 447 n2, (9th Cir 1984); Garaux v Pully, 739 F2d 437 at 439, (9th Cir 1984); Parisie v Greer, 705 F2d 882 at 898, (7th Cir 1983); Moore v Fla, 703 F2d 516 at 520, (11th Cir 1983); Meritt v Faulkner, 697 F2d 761 at 769, (7th Cir 1983); Myers v US, 636 F2d 166 at 168/69, (6th Cir 1981); Gordon v Leeke, 574 F2d 1147 at 1152/53, (4th Cir 1978); Roseboro v Garrison, 528 F2d 309, (4th Cir 1975);
[p]ro se plaintiffs failure to disclose in complaint the basis of any jurisdiction is not basis for dismissal for lack of jurisdiction - Urbano v Calissi, 353 F2d 196 at 197, (3rd Cir 1965)
SEC v Vanco, 283 F2d 304 at 305, (3rd Cir 1960) [v]ague pro se appeal will be heard

Go forward to Strollin' Pettifoggers - Part 4

Go back to Strollin' Pettifoggers - Contents Last modified: August 1997