superintending control response 7
TRANSCRIPT
THE GRIEVANCE ADMINISTRATOR
ABUSED HIS DISCRETION IN FAILING
TO FULLY AND PROPERLY INVESTIGATE ALL
ASPECTS OF PLAINTIFF’S COMPLAINT:
FACTS:
Plaintiff filed his request for investigation, pursuant to the Rules of the AGC
on or about June 25, 2007 alleging numerous instances of misconduct by the
three (3) attorneys referenced therein. Specifically, Plaintiff’s Request for
Investigation centered on “(1) for violation of the Michigan Rules of
Professional Conduct and (2) the perpetration of a “fraud upon the court”
(See Exhibit “C” of the Complaint for Superintending Control, which is
incorporated herein by reference).
Further, Plaintiff’s Request for Investigation set forth specific portions of the
Michigan Rules of Professional Conduct which the misconduct of the
respondent attorneys had violated;
MPRC 3.1,3.3(a)(1),(2),(4)(b);3.4(a),(b),(d),(e),(f)(1) and(2), 3.5(a) and (b).
The AGC Administrator makes no mention, whatsoever, of the results, if
any be had, to the allegations contained in the Request for Investigation
relative to the numerous violations of the MRPC.
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL
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STATUTE OF LIMITATIONS
CRIMINAL PROSECUTION:
The AGC Administrator, in its response to this Court, seemed to limit its
investigation to the sole issue of whether or not AG COX and Assistant AG
WEILER, were aware that the statute of limitations had expired prior to the
initiation of the criminal prosecution. (See Pg 2 of AGC Argument, foot
note 1).
It should be noted here, that Plaintiff provided “proof” that the AG and his
Assistant were aware of the statute of limitations issue as early as October,
2000 by way of the transcript from a hearing before Judge Duncan Beagle
where the FOC Attorney referenced the issue in “open court” (See Exhibit
“G” of the Complaint for Superintending Control and is incorporated herein
by reference).
In reality, the statute of limitations for criminal prosecution of this Plaintiff
for a failure to pay child support had already expired before the October 20,
2000 Court Hearing referenced in Exhibit “G”, supra.
MCL 767.24(5) is the statute that imposes a six year limitations period for
the prosecution of a violation of MCL 750.165 from the eighteenth birthday
of the minor child. People v. Monaco, 474 Mich. 48, 710 NW2d 46 (2006).
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL
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Plaintiff’s minor child emancipated on July 30, 1994, the six year period to
initiate a prosecution of the Plaintiff expired in July, 2000.
Statutes of limitations are statutes of repose representing a pervasive
legislative judgment that it is unjust to fail to put the adversary on notice to
defend within a specified period of time and that the right to be free of stale
claims in time comes to prevail over the right to prosecute them.” U.S.
Kubrick, 44 U.S. 111 (1979).
The Administrator’s position, that this Court’s determination in People v.
Monaco, , id, (2006) finally decided the statute of limitations issue is
flawed. In reality, this Court’s decision did not alter the Court of Appeals
rationale on the question of the application of the statute of limitations but
rather, overruled the holding of People v. Westman, 262 Mich. App. 184
(2004), to the effect that violations of MCL 750.165 were “continuing
offenses”. Additionally, this Court held that carrying an arrearage did not
violate MCL 750.165 as amended. People v. Monaco, id.
As such, for the AGC Administrator to assert that his discretion was not
abused by failing to investigate the misconduct of the Attorney General and
his Assistant, on this allegation, is itself, an abuse of discretion as it
“exceeds the bounds of reason, considering all the circumstances”. Yeap v.
Leake, 60 Cal. App. 4th 591, 70 Cal.Rptr 2d 680 (1997).
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL
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THE FRAUD UPON THE COURT:
In addition to the foregoing, Plaintiff’s Request for Investigation, set forth
specific facts relative to the manner in which the “fraud upon the court” was
perpetrated by the offending attorneys’ misconduct, to wit, “[t]hese same
attorneys perpetrated a “fraud upon the court” by alleging in the initial and
amended indictment that a Court Order purportedly ordered the undersigned
to pay support for his child (who was then fully emancipated) during the
period of 05/03 thru 01/05 . . . In reality, no such Court Order existed and
attorneys WEILER, COX and BARKEY were fully aware of this fact prior
to the initiation of the criminal prosecution of the undersigned.” See
Plaintiff’s Request for Investigation, Set forth in full at Exhibit “C” of the
Complaint for Superintending Control also See Exhibit “H” of the
Complaint for Superintending Control for the Indictments).
No such Court Order existed and all three (3) of the attorneys complained of
herein, knew that when they lied to the Court and perjured themselves to
initiate a constitutionally impermissible criminal prosecution of an innocent
citizen in violation of the 4th Amendment, U.S. Constitution; 5th
Amendment, U.S. Constitution, 14th Amendment, U.S. Constitution, People
v. Monaco, id.
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL
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In addition, the misconduct of the complained of attorneys violated the
provisions of the Elliott-Larsen Civil Rights Act, MCL 37.2302, et seq, by
substantially and illegally interfering with the “public services” rendered to
Plaintiff. Plaintiff was not “free” to walk away from the authority that the
ATTORNEY GENERAL and his ASSISTANT ATTORNEY GENERAL
had illegally exercised over him through the institution of felony criminal
proceedings premised on an indictment they knew to be false. Diamond v.
Witherspoon, 265 Mich.App. 673, 696 N.W.2d 770 (2005).
The misconduct of the offending attorneys complained of herein also had the
net effect of creating a hostile or offensive public services environment
causing additional violations of MCL 37.2302, et seq. And, they also denied
Plaintiff the full and equal utilization of public services in further violation
of MCL 37.2302. All of the foregoing was premised on Plaintiff’s race and
his religion in contravention of MCL 37.2302, et seq.
This violates MRPC 3.1 as there was never a “meritorious claim” to be
raised against the Plaintiff herein. In addition, MRPC 3.3 is violated
because these attorneys (1) made materially false statements of fact to the
tribunal, they also (2) failed to disclose a material fact to the tribunal when it
became necessary to avoid assisting a criminal or fraudulent act, (4) they
also offered evidence which they knew to be false and further failed to take
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL
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remedial measures. The foregoing misconduct also violates MRPC 3.4 (a),
(b), (d) (e) and (f).
The failure of the AGC Administrator to fully and fairly investigate that
particular allegation is an abuse of discretion because “there was no
justification or excuse for the ruling made” Alken-Ziegler v. Waterbury
Headers, 419 Mich. 219 (1999); and “resulted in a clearly untenable ruling
that unfairly deprives a litigant of a substantial right and a just result”,
Burke v. Harman, 6 Neb.App. 309, 574 N.W.2d 156 (1998). The AGC
refusal or failure to properly investigate Plaintiff’s complaints, “exceeds the
bounds of reason, considering all the circumstances”. Yeap v. Leake, 60
Cal. App. 4th 591, 70 Cal.Rptr 2d 680 (1997).
EX POST FACTO VIOLATIONS:
The only “Order” actually admitted into evidence in the underlying criminal
case was the 1978 Order, which, by its own terms, expired in July, 1994.
Yet, the offending attorneys, ATTORNEY GENERAL COX and
ASSISTANT ATTORNEY GENERAL WEILER, decided to prosecute
Plaintiff under the amendments to MCL 750.165.
The Statute under which Plaintiff was prosecuted was amended by the
Michigan Legislature and those changes took effect in November, 1999, see
MCLA 750.165.
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL
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The problem emerges however, in the application of the 1999 modifications
to Plaintiff. The 1978 Court Order regarding support for his minor child
expired, by its own terms in July, 1994. This was a full five (5) years prior
to the enactment of the legislative changes. No part of the 1978 Order was
in effect at the time of the 1999 modifications. People v. Westman, 262
Mich.App. 184, 685 NW2d 423 (2004).
As such, Plaintiff could not, constitutionally speaking, be subjected to the
pains and punishments contained in the 1999 amendments because his
alleged conduct (1) was committed prior to the effective date of the statute’s
amendments and (2) his conduct was innocent when committed. People v.
Callon, 256 Mich.App. 312, 662 NW2d 501 (2003), People v. Haynes, 256
Mich.App. 341, 664 NW2d 225 (2003).
STATUTE OF LIMITATIONS HAD EXPIRED ON COLLECTION:
The version of the MCL 600.5809 that would have been applicable to the
Plaintiff was the version in effect in 1994. Rzadkowolski v. Pefley, 237
Mich. App. 405, 603 N.W.2d 646 (1999). Under that provision, the ten year
period of limitations begins to run against each payment when that payment
became due, see MCL 600.5809(3). Chase v. Sabin, 445 Mich. 190, 516
NW2d 60 (1994).
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL
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Under the foregoing analysis, there was nothing owing under the 1978 Order
of support that was collectable by the defendants.
UTILIZATION OF EX POST FACTO JUDICIAL DECISIONS
VIOLATES DUE PROCESS
ATTORNEY GENERAL COX, and ASSISTANT ATTORNEY GENERAL
WEILER, made a conscious decision to mislead the tribunal by arguing that
certain Michigan Court of Appeals cases, all of which were rendered in
2004, contained the appropriate standard for the trial Court to review
Plaintiff’s motions to dismiss against.
However, utilization of judicial decisions, that are entered after the conduct
had long since happened, constitutes a due process violation which prohibits
utilization of judicial ex post facto decisions. Bouie v. City of Columbia,
378 U.S. 347 (1964).
This misconduct violates MRPC 3.3(1) because they knowingly made false
statements of material fact to the Court; and (2) they failed to disclose a
material fact when disclosure was necessary to avoid a criminal or
fraudulent act; they also (4) offered evidence that the lawyer knew to be
false. Further, this misconduct violates MRPC 3.2 as these lawyers knew
that they did not have a “meritorious claim or contention”.
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL
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DISCUSSION:
The failure of the AGC Administrator to fully and fairly investigate those
particular allegations constitute an abuse of discretion because “there was no
justification or excuse for the ruling made” Alken-Ziegler v. Waterbury
Headers, 419 Mich 219 (1999).
The failure of the AGC Administrator to fully and fairly investigate all
allegations raised in the Request for Investigation has resulted in a clearly
untenable ruling that unfairly deprived this litigant of a substantial right and
a just result, Burke v. Harman, 6 Neb.App. 309, 574 N.W.2d 156 (1998).
Further, the AGC Administrator’s refusal or failure to properly investigate
all aspects of the Request for Investigation ‘exceeds the bounds of reason,
considering all the circumstances’. Yeap v. Leake, 60 Cal. App. 4th 591, 70
Cal.Rptr 2d 680 (1997). The end result of the AGC Administrator’s actions
in this instance, based on the reasons given by the Administrator to justify its
position was “clearly untenable, legally incorrect, or amount to a denial of
justice; a ruling that reaches an end or purpose not justified by, and clearly
against, reason and evidence.” State v. Garza, 192 Ariz 171, 962 P.2d 898
(1998).
In the foregoing instance, the AGC Administrator clearly “abused his
discretion” as the refusal to fully and fairly investigate the well documented
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL
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allegations of misconduct are so “palpably and grossly violative of fact and
logic that it evidences not the exercise of will but perversity of will, not the
exercise of judgment but defiance thereof, not the exercise of reason but
rather of passion or bias….” Spalding v. Spalding, 355 Mich. 337, 94
N.W.2d 810 (1959).
2. HAS THE ADMINISTRATOR, BY FAILING TO ANSWER OR OTHERWISE RESPOND, TO THE ALLEGATIONS CONTAINED IN PARAGRAPH 11 OF THE COMPLAINT FOR SUPERINTENDING CONTROL, ADMITTED, THE TRUTH OF THE ALLEGATIONS CONTAINED THEREIN?
FACTS:
Plaintiff filed his Complaint for Superintending Control on the Defendant
Administrator and the AGC Administrator filed his Answer and Brief in
Support of same in this Court on or about January 30, 2008.
The Defendant, failed to answer or otherwise respond to paragraph 11 of the
Complaint for Superintending Control.
POINTS & AUTHORITIES:
MCR 2.111 (E) provides in pertinent part that; “[a]llegations in a pleading
that requires a responsive pleading, other than allegations of damage or the
nature of the relief demanded, are admitted, if not denied in the responsive
pleading.” See, generally, Daul v. Meckus, 897 F.Supp. 606 (1995).
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL
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DISCUSSION:
As a result of the Defendant’s failure to answer or otherwise respond to the
allegations contained in paragraph 11 of the Plaintiff’s Complaint for
Superintending Control, the assertions contained therein are deemed
admitted for purposes of these proceedings, MCR 2.111(E).
CONCLUSION:
The AGC Administrator abused his discretion in failing and/or refusing to
fully and fairly investigate the documented instances of misconduct
contained in the Plaintiff’s Request for Investigation. Plaintiff prays this
Supreme Court enter its ORDER requiring, directing and/or compelling, the
AGC Administrator to conduct a full, fair and impartial investigation into all
properly pled and documented allegations of misconduct against
ATTORNEY GENERAL COX and ASSISTANT ATTORNEY GENERAL
WEILER and to proceed against them according to law and the Rules of
Procedure associated with same with respect to the evidence adduced
thereby. Leitman v. State Bar Greivance Bd., 387 Mich. 596 (1972).
Further, Plaintiff prays this Court appoint a Special Master to investigate the
allegations contained in paragraph 11 of the Complaint for Superintending
Control, which the Administrator has admitted by its failure to offer any
response in its Answer, see MCR 2.111(E).
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL
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DATED this 17th Day of February, 2008.
Respectfully submitted,
_____________________Robert R. Parker, Jr., LL.B.
195 Morton Walk DriveAlpharetta, Georgia 30022213 798 [email protected]
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL
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