Petition for Writ of Certiorari — In Re Lawrence Lynell Simmons, Petitioner
Supreme Court briefApr 3, 2018
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No. 17-
1n the
'upreme Court of the frmniteb 'tate
In Re LAWRENCE LYNELL SIMMONS,
Petitioner.
On Petition for Writ of Mandamus and
Prohibition to the Supreme Court of Michigan
PETITION FOR WRIT OF
MANDAMUS AND PROHIBITION
LAWRENCE L. SIMMONS
PETITIONER PRO SE
CITIZEN OF THE REPUBLIC OF THE UNITED STATES
1314 EAST STOCKBRIDGE AVENUE
KALAMAZOO, MI 49001
(269) 779-9188
SPLASHDANCE2004@YAHOO.COM
APRIL 2, 2018
SUPREME COURT PRESS
• (888) 958-5705 • BOSTON, MASSACHUSETTS
QUESTIONS PRESENTED
Michigan Const. 1963, art 6, sec 6 binds the
Michigan Supreme Court to provide an opinion, which.
states, "Decisions of the supreme court, including all
decisions on prerogative writs, shall be in writing and
shall contain a concise statement of the facts and
reasons for each denial of leave to appeal. When a
judge dissents in whole or in part he shall give in
writing the reason for the dissent."
In the order below, the Michigan Supreme Court
denied leave to appeal in one-sentence DENIAL through
memorandum order making the UNITED STATES
SUPREME COURT review this case blind and start
from scratch, with no notion of the issues the Michigan
Supreme Court found dispositive, to disclose the
UNITED STATES SUPREME COURT is not free
simply to provide a focused analysis of the key issues
in the case; instead, it must review the entire case to
determine the key issues before making its determination.
THE QUESTION PRESENTED Is:
A. Whether Petitioner is entitled to relief pursuant
to 28 U.S.C. Sec 1651(a) to vacate the order of the
Michigan Supreme Court, or other relief as this court
deems appropriate.
ii
PARTIES TO THE PROCEEDING
RESPONDENTS
• Chief Justice Stephen J. Markman
• Justice Brian K. Zahra
• Justice Bridget Mary McCormack
• Justice David F. Viviano
• Justice Richard Bernstein
• Justice Kurtis T. Wilder
• Justice Elizabeth T. Clement, SC-Michigan,
are the JUSTICES to whom mandamus is sought.
Note: Justice Elizabeth T. Clement appears to be the
only Justice that reviewed the application, but did not
participate because Thomas P. Clement-GC was
handling a FOIA request from Petitioner.
PETITIONER
•
LAWRENCE L. SIMMONS is the party to proceeding in the Kalamazoo County Ninth Judicial
Circuit Court case file no. B15-0159-AA
Michigan Court Appeals case file no. 329955;
and, Michigan Supreme Court case file no.
155780.
DEFENDANT
• Appellee, respondent Office of Child Support is
the party to the proceeding in the Kalamazoo
Ninth Judicial Circuit Court case file no. B150159-AA; Michigan Court of Appeals case file
no. 329955; and, Michigan Supreme Court case
file no. 155780.
111
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED........................................i
PARTIES TO THE PROCEEDING ...........................ii
TABLE OF AUTHORITIES .......................................v
PETITION FOR WRIT OF MANDAMUS AND
PROHIBITION.....................................................1
OPINONS BELOW.....................................................1
JURISDICTION..........................................................1
STATUTES INVOLVED ............................................2
STATEMENT OF FACTS ..........................................4
STATEMENT OF THE CASE..................................11
REASON FOR GRANTING THE PETITION.........12
A. PETITIONER IS ENTITLED TO REFLIEF
PURSUANT TO 28 U.S.C. SEC 1651(A) TO
VACATE THE ORDER OF THE MICHIGAN
SUPREME COURT, OR OTHER RELIEF AS THIS
COURT DEEMS APPROPRIASTE .........................14
A Writ Will Aid This Court's Jurisdiction Because the Michigan Supreme
Courts Failure to Render a Decision
Operates to Deprive the United States
Supreme Court of Its Appellate Jurisdiction.............................................................14
The Nearly Three-Year Delay in this
Case Constitutes Extraordinary Circumstances Warranting a Writ of Mandamus. 17
iv
TABLE OF CONTENTS
Continued
-
Page
III. No other Adequate Relief is Available to
Petitioner...................................................23
CONCLUSION..........................................................27
APPENDIX TABLE OF CONTENTS
Order of the Supreme Court of Michigan Denying
Application for Leave to Appeal
(November 29, 2017) ..........................................la
Opinion of the Michigan Court of Appeals
(February 28, 2017) ............................................2a
Opinion and Order Affirming Decision of the
Office of Child Support Central Operations
(September 15, 2015)..........................................8a
Notice of Lien, Levy and Disclosure
(March 18, 2015) ............................................... iGa
Order of Filiation
(August 13, 1990) .............................................19a
Brief on Appeal Before the Honorable Paul J.
Bridenstine Excerpts (August 7, 2015)............25a
Appellant Brief on Appeal to the Michigan Court
of Appeals Excerpts (January 15, 2016)..........28a
Application for Leave to Appeal Excerpts
(May 13, 2017) ..................................................32a
V
TABLE OF AUTHORITIES
Page
CASES
Armstong v. Manzo,
380 U.S. 545 (1965) ...........................................20
B P 7 v. Bureau of State Lottery,
225 Mich.App. 811,
572 N.W.2d 663 (1997)........................................9
Baldwin v. Hale,
68 U.S. 223 (1863) .............................................20
Bankers Life & Casualty Co. v. Holland,
346 U.S. 379, 74 5.Ct. 145,
98 L.Ed. 106 (1953) ...............................11, 14, 15
Carey v. Piph us,
435 U.S. 247 (1978) ...........................................19
Cheney v. United States District Court,
542 U.S. 380 (2004)............................................15
Citizens Protecting Michigan Constitution v.
Secretary of State,
482 Mich. 960 (2008) .......................12, 24, 25, 26
De Beers Consol. Mines v. United States,
325 U.S. 217 (1945) ...........................................15
Ex Parte United States,
287 U.S. 21 (1932) .......................................16, 17
Fuentes v. She yin,
407 U.S. 76 (1972) ..............................................20
Goldberg v. Kelly,
397 U.S. 254 (1970) ...........................................20
v1
TABLE OF AUTHORITIES—Continued
Page
Hinlcy Dinky Supermarket, Inc. V. Dept of
Comm unity Health,
261 Mich.App 604, N.W.2d 759 (2004) ...............18
In re Beck,
488 Mich. 6 (2010) ......................................passim
In re Forfeiture of Certain Personal Property,
441 Mich. 77 (1992) ............................................. 9
Johnson v. Rogers,
917 F.2d 1283 (10th Cir. 1990) .........................19
Joint anti-Fascit Refugee Committee v.
McGrath, 341 US 123 (1951) ...........................20
Knickerbocker Ins. Co. of Chicago v. Comstock,
83 U.S. 258 (1872) ............................................16
Landon Holdings, Inc. v. Grattan Twp.,
257 Mich.App 154, 66 N.W.2d 93 (2003) ..........18
Marbury v. Madison,
5 U.S. 137 (1803) .........................................15, 16
Mathews v. Eldridge,
424 U.S. 319 (1976) ...........................................20
Mettler Waion LLC v. Melrose TWP
281 Mich.App 184, 761 N.W.2d 293 (2008) ........ 9
Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306 (1950) ...........................................20
Reed v. Reed,
404 U.S. 71 (1971) ......................................... 9, 10
Richard v. Jefferson County,
517 U.S. 793 (1996) ...........................................20
Vii
TABLE OF AUTHORITIES—Continued
Page
Roche v. Evaporated Milk Ass'n,
319 U.S. 21 (1943) .......................................15, 17
Schiagenha uf v. Holder,
379 U.S. 104 (1964) ...........................................22
US Alkali Export Ass 'n v. United States,
325 U.S. 202 (1945) ..........................................15
US. v. Johnson,
732 F.2d 379 (4th Cir. 1984) .............................19
United States v. US. Dist. Court for Eastern
Dist. ofMich., Southern Division (Keith),
444 F.2d 651 (6th Cir. 1971) .............................22
Will v. Calvert Fire Insurance Co.,
437U.5655(1978) ............................................17
Willy. US,
389 U.S. 90, 88 S.Ct. 269,
19 L.Ed.2d 305 (1967) .......................................11
CONSTITUTIONAL PROVISIONS
Mich. Const. 1963, Art. I, § 17...........................passim
Mich. Const. 1963, Art. VI, § 6 ........................passim
U.S. Const. amend. XIV ..................................... passim
U.S. Const. Art. III, § 1.............................................22
U.S. Const. Art. III, § 2 ..............................................22
STATUTES
28 U.S.C. § 1254........................................................17
viii
TABLE OF AUTHORITIES—Continued
Page
28 U.S.C. § 1651(a) ............................................passim
28 U.S.C. § 2101(c)......................................1, 2, 17, 27
STATE STATUTES
M.C.L.A. § 24.304........................................................5
M.C.L.A. § 552.602......................................................3
M.C.L.A. § 552.625a(1) ............................................2, 4
M.C.L.A. § 552.625c(2).............................................2, 4
M.C.L.A. § 552.625f(2)(c)..........................................23
M.C.L.A. § 552.650.......................................................3
M.C.L.A. § 600.5809(4) ............................................3, 8
JUDICIAL RULES
Sup. Ct. R. 20.1 ..................................................passim
OTHER AUTHORITIES
16 Charles Alan Wright, Arthur Raphael
Miller & Edward H. Cooper, Federal
Practice and Procedure: Jurisdiction 2d
Sec 3933.1 (2d ed. 1996)....................................16
More Federal Practice,
§ 204.021151 (3d ed. 2008) ...................................16
1
PETITION FOR WRIT OF
MANDAMUS AND PROHIBITION
Petitioner, respectfully petitions for writ of mandamus and prohibition to vacate the order of the Michigan
Supreme Court and prohibit such future orders.
OPINONS BELOW
The order of the Michigan Supreme Court is not
reported, but is reproduced at Pet.App.la. The Michigan
Court of Appeals Per Curiam Order is unpublished,
but is reproduced at Pet.App.2a-7a. The Michigan
Circuit Court Opinion and Order is not reported, but
is reproduced at Pet.App.8a-15a.
JURISDICTION
The Michigan Supreme Court entered Order on
November 29, 2017. This Court's jurisdiction rest on
28 U.S.C. Sec 1651(a) and 28 U.S.C. Sec 2101(c).
2
—o--.
STATUTES INVOLVED
.
Title 28 U.S.C. Sec 1651(a) provides:
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usage and principle
of law.
• Title 28 U.S.C. Sec 2101(c) provides:
(c) Any other appeal or any writ of certiorari
intended to bring any judgment or decree in a civil
action, suit or proceeding before the Supreme Court
for review shall be taken or applied for within
ninety days after entry of such judgment or decree.
A Justice of the Supreme Court, for good cause
shown, may extend the time for applying for a writ
of certiorari for a period not exceeding sixty days.
Michigan's Support and Parenting Time Enforcement Act, Act No. 295 of the Public acts of 1982,
being Section 552.601, particularly, MCL 552.
625c(2), incorporating MCL 552.625a(1) (hereafter
"SAPTEA") allows for specific Michigan State
Offices, particularly in this case, the Office of
Child Support (hereafter "OCS") to send facsimile
to a financial institution for lien and seizure of
financial assets; declaring, "an arrearage has
occurred in an amount that exceeds 2 times the
monthly of periodic support payments payable
under a payer's support order," the title IV-D
agency may levy against any of the following items
subject to lien, incorporating MCL 552.625a(1) on
3
the presumption of a child support order(s) on
record.
However, full disclosure the underlying support
duty Filiation Order legally terminated by court
Order of competent jurisdiction is not enforceable
under the SAPTEA and rendered moot, enforced
under in In re Beck, 488 Mich. 6 (2010), holding,
"the support duty continues unless the duty is
modified Or terminated by a court of competent
jurisdiction."
Michigan's Revised Judicature Act of 1961
(EXCERPT) Act 236 of 1961, being Section
600.101, particularly, MCL 600.5809(4) (hereafter
"RJA") allows for an action to enforce a support
order [that is enforceable] under the support and
parenting time enforcement act, Act No. 295 of the
Public Acts of 1982, being sections 552.602 to
552.650 of the Michigan Complied Laws, the period
of limitations is 10 years from the date that the
last support payment is due under the support
order regardless of whether or not the last payment
is made.
However, where it has been fully disclosed that
the support duty Filiation Order legally terminated
by Court Order of competent jurisdiction consistent
with In re Beck, supra., manifestly establish the
legally terminated support order is not enforceable
under the SAPTEA, rendering action under RJA
moot.
STATEMENT OF FACTS
On March 18, 2015, OCS advanced facsimile Financial Institution Lien, Levy and Disclosure to the
Financial Institution—Kalsee Credit Union, causing
electronic seizure of Petitioner's private financial
assets totaling $1,880.90 Noticed under the Support
and Parenting Time Enforcement Act, MCL 552.625a
(i) and 552.625c(2), App. 16a-18a
On June 22, 2015 Hearing was held; upon which,
Petitioner Notified the Court that the 1990 support
duty Filiation Order legally terminated upon the child's
18th birthday in accord with the Release Clause. See.
15 Min. Mtn 11mg, 06/22/2015, Case No. 2015-0159-AA.
On August 07, 2015, within five months of March
18, 2015, PETITIONER, in BRIEF before the Kalamazoo County Circuit Court, App.25a-27a, fully disclosed under competent jurisdiction of Default Filiation Order, the Kalamazoo County Ninth Judicial
Circuit Court, Honorable Richard Ryan Lamb included
a release clause for legal termination of the 1990 support duty Filiation Order upon the child's eighteenth (18)
birthday through plain language, ORDERING, 'Defendant has a duty of support.. to said child until the
child reaches the age of eighteen (18) years, for until
further Order of the Court," App.12a-14a, clearly required entered on or before the closing escrow date of
the child's eighteenth birthday November 13, 20051,
establishing that the 1990 support duty Filiation
Order legally terminated November 13, 2005 and is not
enforceable under the SAPTEA advanced March 18,
2015, In re Beck, supra, decided Dec 20, 2010 and
.
5
equitable estoppel controlling, calling for the duty and
obligation of the Court to enforce the legal termination
with respects to petitioner's claim of review pursuant
to MCL 24.304; to wit, PETITIONER sought reimbursement order, plus interest and OCS's unlawful
seizure set-aside to end the civil litigation, App. 27a. [sic]
On August 28, 2015, OCS, acting through the
Michigan Department of Attorney General's Office
(hereafter 'Department'), filed Brief advancing the
moot none legal frivolous defense, demanding all Michigan Courts affirm financial assessment, examining
past/unpaid support from before the child reached 18
years old based on review of the case history of file no.
1990-1098-DP, dishonestly arranged under and outside the enabling clause of the SAPTEA. See, Brief On
Appeal of Appellee Office of Child Support—Central
Operations 08/28/2015, Case No. 2015-0159-AA.
On September 15, 2015, the Kalamazoo County
Ninth Judicial Circuit Court, Honorable Paul J. Bridenstine through manifest usurpation of judicial power
mandated in the ministerial duty under the Due Process Clause of the Fourteenth Amendment to the
United States Constitution and Michigan Const. 1963,
art 1, sec 17, in exercise of function on appeal from
agency decision to follow through with the material
facts fully disclosing the 1990 support duty Filiation
Order legally terminated November 13, 2005, provided
for in the conditions of the terms used in the language
of the Release Clause, "Defendant has a duty of supto said child until the child reaches the age of
port.
eighteen (18) years," under competent jurisdiction of the
Honorable Judge Richard Ryan Lamb, In re Beck, supra.
and equitable estoppel controlling and a clear abuse of
.
.
.
discretion deciding the moot none legal frivolous
defense with a single sentence, stating, "However, that
did not absolve Petitioner of his obligation to pay for
the child support that was due and remains unpaid
from before his daughter reached 18 years of age," as
the rationale for the Order and Opinion Affirming the
Decision of the Office of the Child Support Central
Operations. App.8a-15a.
On October 30, 2015 Claim of Appeal: Civil, was
filed with the Michigan Court of Appeals, See. Claim
of Appeal; Civil event 1, Case No. 329955.
On January 15, 2016, petitioner submitted Brief,
fully disclosing under the competent jurisdiction of
Default Filiation Order, the Kalamazoo County Ninth
Judicial Circuit Court, Honorable Richard Ryan Lamb
included a release clause for legal termination of the
1990 support duty Filiation Order upon the child's
eighteenth (18) birthday, being November 13, 2005,
sufficient to RULE the 1990 support duty Filiation
Order otherwise Support Order is not enforceable under
the SAPTEA, In re Beck, supra. and Equitable Estoppel
controlling; to wit, PETITIONER sought reimbursement order, plus interest; reversal of the Circuit
Court's September 15, 2015 Order; and, that the Office
of Child Support unlawful electronic seizure set-aside,
requesting Oral Argument on the briefs to end the
civil litigation. App.28a-31a
On February 18, 2016, OCS submitted Brief
through the Department, continuing the moot none
legal frivolous defense dishonestly arranged under the
SAPTEA because it was preserved at the Circuit level,
agreeing to oral arguments on the briefs. See. Brief
Appellee event 20, Case No. 329955.
7
On February 15, 2017, one year and three days
from appellee's brief, Oral Arguments commenced in
accord with Case Call, petitioner preserved the 1990
support duty Filiation Order legally terminated November 13, 2005 and is not enforceable under the SAPTEA,
sufficient to entitle petitioner the relief pled; to wit, OCS
abandoned the moot none legal frivolous defense dishonestly arranged under the SAPTEA advanced for
twenty-three (23) months, conceding the Circuit
Courts' usurpation of judicial power and clear abuse of
discretion; to wit, the Michigan Court of Appeals made
NO DECISION. See. Case Call 02/15/2017-event 58,
Case No. 32995.
On February 28, 2017, the Michigan Court of
Appeals, Honorable Judges Borrello, P.J., Markey and
M.J. Kelly, J.J., entered unpublished per cuniam opinion
through manifest usurpation of judicial power mandated in the ministerial duty under the Due Process
Clause of the Fourteenth Amendment to the United
States Constitution and Michigan Const. 1963, art 1,
sec 17, in exercise of function on appeal, as of right,
from agency decision to follow through with the material facts fully disclosing the 1990 support duty Filiation Order legally terminated November 13, 2005, provided for in the conditions of the terms used in the language of the Release Clause, "Defendant has a duty of
to said child until the child reaches the age
support.
of eighteen (18) years," under competent jurisdiction of
the Honorable Judge Richard Ryan Lamb, In re Beck,
supra., and Equitable Estoppel controlling and a clear
abuse of discretion deciding sua sponte the RJA
applied, despite failure of OCS to argue in brief preserved before the CIRCURT COURT, nor argued,
briefed or preserved before the Michigan Court of
.
.
.
RI
Appeals, falsifying the record, holding the Circuit Court
based its Opinion and Order Affirming the Decision of
OCS on the RJA, particularly, MCL 600.5809(4); fully
disclosing, the State lacked authority to act under the
SAPTEA and RJA in light of the legal termination of
the 1990 support duty Filiation Order November 13,
2005, App.2a-7a.
On May 15, 2017, petitioner submitted Application
for leave to appeal to the Michigan Supreme Court,
raising four (4) questions; in which, questions one (1)
and two (2) where consolidated and questions three (3)
and four (4) where consolidated, seeking appropriate
relief, App.32a-55a.
On May 23, 2017, OCS submitted Answer in accord
with MCR 7.3050, failing to rebut the questions presented in the application, copying and pasting the
Michigan Court of Appeals sua sponte RJA conclusion;
thereby an untimely answer, a common practice of the
Department throughout the life of this case. See. S.Ct:
Answer event 93, Case No. 155780.
On November 9, 2017, the Michigan Supreme
Court entered Memorandum Order through manifest
usurpation of judicial power mandated in the ministerial duty under the Due Process Clause of the Fourteenth Amendment to the United States Constitution
and Michigan Const. 1963, art 1, sec 17, in exercise of
function on application for leave to appeal to follow
through with the material facts fully disclosing the
1990 support duty Filiation Order legally terminated
November 13, 2005, provided for in the conditions of
the terms used in the language of the Release Clause,
to said child
"Defendant has a duty of support.
until the child reaches the age of eighteen (18) years,"
.
.
.
under competent jurisdiction of the Honorable Judge
Richard Ryan Lamb, In re Beck, supra., and Equitable
Estoppel controlling and a clear abuse of discretion
advancing a single sentence of non-explanation,
"because we are not persuaded that the questions presented should be reviewed by this Court," prohibited
by Michigan Const. 1963, art 6, sec 6, App. la.
Surprisingly, with regards to usurpation of judicial
power, the Michigan Supreme Court manifestly states
that it is not persuaded that the Question deciding In
re Beck, supra., establishing when the support duty
terminates, where petitioner fully disclosed the support
duty legally terminated November 13, 2005 under the
competent jurisdiction of the Honorable Richard Ryan
Lamb pursuant to the language in the Release clause
of the 1990 support duty Filiation Order, "Defendant
to said child until the child
has a duty of support.
reaches the age of eighteen (18) years"; B P 7 v.
Bureau of State Lottery, supra. and Mettler Waion
LLC v. Melrose TWP, supra., prohibiting decisions on
moot issues, even when they are preserved, where
petitioner fully disclosed actions taken under the
SAPTEA and RJA moot because the State lacked the
authority to act thereunder in light the 1990 support
duty legally terminated November 13, 2005; Booth
Newspaper, Inc. supra., and In re Forfeiture of Certain
Personal Property, supra, prohibiting the sua sponte
RJA review not presented at the lower level declined
consideration before the Michigan Appellate and
Supreme Courts; and, failure to afford proper due
process on the opportunity to be heard regarding the
Michigan Court of Appeals' sua sponte advance of the
RJA, resulting in a complete miscarriage of justice;
and, Reed v. Reed, supra., in the Michigan Court of
.
.
.
10
Appeals' oppression of basic requirements of due
process, should be reviewed by this Court, abandoning
the lawful exercise of its prescribed jurisdiction,
despite the questions raised previously ruled upon by
the Michigan Supreme Court and Michigan Court of
Appeals, entitling petitioner to those legal protections,
ending the civil litigations favoring petitioner, including but not limited to, the Michigan Supreme Court
manifestly violated Michigan Const. 1963, art 6, sec 6,
which binds the Michigan Supreme Court to provide
an written opinion, which states, "Decisions of the
supreme court, including all decisions on prerogative
writs, shall be in writing and shall contain a concise
statement of the facts and reasons for each denial of
leave to appeal. When a judge dissents in whole or in
part he shall give in writing the reason for the dissent," clearly prohibiting "the" single sentence
[because we are not persuaded that the questions presented should be reviewed by this Court] of nonexplanation, Id. at la.
The Michigan Courts failed to follow through with
the facts fully disclosing legal termination of the 1990
support duty Filiation Order, which is not enforceable
under the SAPTEA or the RJA, procedurally closing
file no. C90-1098-DP with full effect November 13,
2005, legally protected under Equitable Estoppel,
barring review for any reason(s) of the legally terminated 1990 support duty Filiation Order and case file no.
C90-1098-DP under which the Order was created.
Clearly, it is unknown to petitioner why the Michigan Supreme Court manifestly created exceptional circumstances amounting to a usurpation of judicial
power and clear abuse of discretion oppressing the
11
relief entitled petitioner, justifying the invocation of
this extraordinary remedy, Will v. US, 389 U.S. 90,
95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Bankers Life
& Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct.
145, 98 L.Ed. 106 (1953).
It is equally unknown to petitioner why the
Michigan Supreme Court took the position of usurpation of judicial power mandated by Michigan Const.
1963, art 1, sec 17; Michigan Const. 1963, art 6, sec 6;
and, the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
What petitioner is aware of, is that, the process
was not fair; that a reasonable minded person would
have come to the conclusion the State lacked authority
to proceed under the SAPTEA and the RJA in light the
1990 support duty legally terminated November 13,
2005, resulting in undue delay of relief entitled petitioner for over 2 years; however, to be exact, 35
months and counting.
STATEMENT OF THE CASE
This is a civil seizure case erroneously advanced
by OCS under the SAPTEA; in which, the entire State
of Michigan Judiciary practice undue delay, usurpation
of judicial power and a clear abuse of discretion in this
case now before this United States Supreme Court.
Mandamus relief is warranted because the Michigan Supreme Court willfully violated in the Due
Process Clause of the Fourteenth Amendment to the
United States Constitution; Michigan Cont. 1963, art 1,
12
sec 17; and, Michigan Const. 1963, art 6, sec 6, binding
decisions of the Michigan Supreme Court, including
all decisions on prerogative writs shall be in writing
and shall contain a concise statement of the facts and
reasons for each decision and reasons for each denial
of leave to appeal. When a judge dissents in whole or
in part he shall give in writing the reasons for his dissent, prohibiting a single sentence of non-explanation.
Petitioner seeks a writ of mandamus to review
the Michigan Supreme Court's Order and Orders of the
lower Michigan Circuit Court and Court of Appeals
that offered no guidance on the "essential questions,
neglecting the courts' duty to the citizens of Michigan,
which includes petitioner, Citizens Protecting Michigan Constitution v. Secretary of State, 482 Mich.
960 (2008).
REASON FOR GRANTING THE PETITION
The Michigan Supreme Court through manifest
usurpation of judicial power and a clear abuse of discretion, failed to enter a decision, operating to deprive
this United States Supreme Court of its appellate
jurisdiction.
The [inferior] Michigan Supreme Court on the
application for leave to appeal, advanced usurpation
of judicial power mandated under Michigan Const. art
6, sec 6, creating undue delay, tantamount to failure
to exercise jurisdiction, persistently and without
reason, refusing to adjudicate the case properly before
13
it entering a written opinion and final peremptory
order:
Reversing the Court of Appeals February 28,
2017 Order, App.2a-7a, as null-in-void,
RULING the action taken sua sponte under
RJA moot, as not properly before the court,
including RULING the 1990 support duty
Filiation Order legally terminated November
13, 2005 under the competent jurisdiction of
the Honorable Richard Ryan Lamb, App.19a24a, is not enforceable under the SAPTEA;
and,
Reversing the Circuit Court's September 15,
2015 Order, App.8a-15a, as null-in-void,
RULING the action taken under the SAPTEA
moot in light the 1990 support duty Filiation
Order legally terminated November 13, 2005
under the competent jurisdiction of the Honorable Richard Ryan Lamb and is not
enforceable under the SAPTEA; and,
FINDING OCS lacked jurisdictional authority to take the actions advanced under the
SAPTEA, rendering the seizure of private
financial assets under the SAPTEA unlawful, entitling petitioner to relief pled, unlawfully withheld and a clear abuse of discretion
in the single sentence non-explanation prohibited by Michigan Const. 1963, art 6, sec 6.
14
A.
PETITIONER IS ENTITLED TO RELIEF PURSUANT TO
28 U.S.C. SEC 1651(A) TO VACATE THE ORDER OF
THE MICHIGAN SUPREME COURT, OR OTHER RELIEF
AS THIS COURT DEEMS APPROPRIATE.
"The . . . 'All Writs Act is meant to be used only in
the exceptional case where there is clear abuse of discretion or usurpation of judicial power'. . ." Bankers
Life & Casualty Co. v. Holland, 346 US. 379,383
(1953).
Supreme Court Rule 20.1 requires that to obtain
a writ of mandamus, a petitioner must demonstrate
that (1) the writ "will be in aid of the Court's appellate
jurisdiction," (2) "exceptional circumstances warrant
the exercise of the Court's discretionary powers," and
(3) adequate relief cannot otherwise be obtained.
I. A Writ Will Aid This Court's Jurisdiction
Because the Michigan Supreme Courts Failure
to Render a Decision Operates to Deprive the
United States Supreme Court of Its Appellate
Jurisdiction
The first prerequisite for a writ of mandamus is
the establishment the writ "will be in aid of the Court's
appellate jurisdiction," Sup. Ct. Rule 20.1.
The Michigan Supreme Court's memorandum
Order, App.la, by Rule of Law is null-in-void as a
result of usurpation of judicial power of Michigan
Const. 1963, art 6, sec 6 and a clear abuse of discretion
failing to correct the undue delay in the Circuit
Court's failure to exercise jurisdiction, Ruling OCS
lacked jurisdictional authority to continue March 18,
2015 under the SAPTEA in light the 1990 support duty
Filiation Order legally terminated November 13, 2005
15
and Failure to correct the undue delay in the Michigan
Court of Appeals' failure to exercise jurisdiction Ruling
sua sponte RJA was not properly before the appellate
court, violating the Fourteenth Amendment to the
United States Constitution due process clause and on
the underlying claim on appeal, Ruling OCS lacked
jurisdictional authority to continue March 18, 2015
under the SAPTEA in light the 1990 support duty Filiation Order legally terminated November 13, 2005,
FINDING petitioner entitled to relief pled, ending the
civil litigation.
The manifest facts clearly show that there was a
"clear abuse of discretion," Bankers Life & Gas. Co. v.
Holland, 346 U.S. 379, 383 (1953), or judicial "usurpation of power." De Beers, 325 U.S. at 217; Cheney, 542
U.S. at 380 (quoting Roche v. Evaporated Milk Ass'n,
319 U.S. 21, 26 (1943).
This Court has made clear that mandamus relief
is available in such unique circumstances. See. US.
Alkali Export Ass'n 325 U.S. at 202 ("finding that a
writ in aid of appellate jurisdiction must be to the
Supreme Court where it has sole appellate jurisdiction").
In its seminal and historic opinion describing the
contours of its judicial review powers and other jurisdictional authority, Marbury v. Madison, 5 U.S. (i
Cranch) 137 (1803), this Court recognized that the
writ of mandamus is the appropriate tool to protect
the Court's appellate jurisdiction. Id. at 175 ("[tb
enable this court then to issue a mandamus it must be
shown to be an exercise of appellate jurisdiction, or to
be necessary to enable [the Court] to exercise appellate jurisdiction").
16
Since Marbury," [riepeated decisions of this court
have established the rule that this court has power to
issue a mandamus, in the exercise of its appellate
jurisdiction, and that the writ will lie in a proper case
to direct a subordinate court to decide a pending
cause." Knickerbocker Ins. Co. of Chicago v. Comstock,
83 U.S. (16 Wall) 258, 270 (1872) (citations omitted).
The All Writs Act sets forth this Court's statutory
authority to issue all writs necessary or appropriate in
aid of its jurisdiction. 28 U.S.C. Sec 1651(a). One noted
treatise has recognized that under the All Writs Act, "a
writ may issue on the ground that undue delay is
tantamount to failure to exercise jurisdiction." 16
Charles Alan Wright, Arthur Raphael Miller & Edward
H. Cooper, Federal Practice and Procedure: Jurisdiction
2d Sec 3933.1, p. 557-58 (2d ed. 1996) (citations omitted).1
In Ex Parte United States, 287 U.S. 21 (1932),
this Court granted an application for a writ of mandamus compelling a federal judge to grant a bench warrant petition that the district court had incorrectly
claimed it had the discretion to deny. Id. at 24045, 249
-51.
This Court explained that the issuance of such a
writ was necessary to aid it in exercising its appellate
jurisdiction, which could otherwise be defeated by the
unauthorized inaction of the lower court. Id. at 246.
1 Moore's Federal Practice similarly explains that traditionally,
the role of mandamus was limited "to directing the lower court to
decide a pending case or to require the lower court to reinstate a
case." 19 James William Moore & Daniel R. Coquillette, More's
Federal Practice, Sec 204.02[51 (3d ed. 2008).
17
Moreover, mandamus aids the Court's appellate
jurisdiction where the lower Michigan Supreme Court
engaged in wholly unauthorized activity through the
single sentence of non-explanation, advancing and
enjoining undue delay prohibited as a matter of law
by Michigan Const. 1963, art 6, sec 6.
Over the years, this Court has continued to
recognize the appropriate use of the writ of mandamus
in aid of such perspective jurisdiction. In Will v.
Calvert Fire Insurance Co., 437 U.S 655, 661 (1978),
this Court ruled that "There can be no doubt that,
where [an inferior] court persistently and without
reason refuses to adjudicate a case properly before it,
the [superior court] may issue the writ 'in order that
[it] may exercise the jurisdiction of review given by
law" (citations omitted). See. also, Roche v. Evaporated
Milk Ass'n, 319 U.S. 21, 25 (1943) Such jurisdiction
includes the Court's prospective jurisdiction over case
in which it will ultimately have the authority under
28 U.S.C. Sec 2101(c) to grant review by certiorari.
See. e.g., Ex Parte United States, 287 U.S at 245-46
(on the proposition of certiorari under 28 U.S.C. Sec
1254).
Thus, by granting a writ of mandamus, as requested by Petitioner in this case, this court would be
acting in aid of its appellate jurisdiction.
II. The Nearly Three-Year Delay in This Case
Constitutes Extraordinary Circumstances
Warranting a Writ of Mandamus
The second prerequisite for a writ of mandamus
is the establishment of "exceptional circumstances"
that "warrant the exercise of the Court's discretionary
powers," Sup. Ct. Rule 20.1.
Nearly, a year has passed since the Oral Hearing
February 15, 2017; in which, the Michigan Court of
Appeals has failed to exercise jurisdiction, refusing to
adjudicate the case properly before it on the underlying
claim, RULING OCS lacked jurisdictional authority to
continue March 18, 2015 under the SAPTEA in light of
material facts fully disclosing the 1990 support duty
Filiation Order legally terminated November 13, 2005
under the competent jurisdiction of the Honorable
Richard Ryan Lamb, In re Beck, supra and Equitable
Estoppel controlling, violating petitioner's property
interest in private financial assets which the State has
interfered with upon procedures that remain Constitutionally infirm or insufficient, Hinky Dinky Supermarket, Inc. v. Dept of Community Health, 261
Mich.App 604, 605-606; 683 N.W.2d 759 (2004), ground
on moot issues by an arbitrary exercise of governmental
power, equally violating substantive due process,
Landon Holdings, Inc. v. Grattan Twp., 257 Mich.App
154, 173; 66 N.W.2d 93 (2003).
The establishment of "exceptional circumstances"
regarding the undue delay in this case exhibited by
the Circuit Court for twenty-three (23) months and
Michigan Court of Appeals for twelve (12) months,
nearly three (3) years, enjoined by the Michigan
Supreme Court through manifest usurpation of judicial
power and a clear abuse of discretion, failed to end the
19
undue delay in this case, warranting the exercise of
this Court's discretionary powers.2
Clearly, by Rule of Law, the undue delay of nearly
three (3) years in the present case warrants a writ of
mandamus. Such a writ is appropriate especially in
light of the procedural posture of this case: there was
no trial, the records and transcripts are not extensive,
and the petition for mandamus is from unlawful denial
of application for leave to appeal as a result of usurpation of judicial power and clear abuse of discretion of
the Michigan Supreme Court.
This case equally involve Constitutional infringement by State Judiciary undue delay; of which, this
Court has continued to affirm in civil proceedings
regarding neutrality requirements to guarantee that
life, liberty and property will not be taken on the basis
of an erroneous or distorted conception of the facts and
law, particularly critical in such Fourteenth Amendment Due Process action to protect against undue
delay and to ensure litigants' constitutional rights are
protected through "prompt" and "speedy" judicial decisions to protect petitioner from unjustified deprivation
of property, Carey v. Piphus, 435 U.S. 247, 259 (1978).
2 Circuit courts of appeal have also recognized that the writ of
mandamus is the appropriate remedy for causes involving a
court's undue dely. See. Johnson v. Rogers, 917 F.2d 1283, 1285
(10th Cir. 1990) (fourteen-month delay). In US. v. Johnson, 732
F.2d 379 (4th sir. 1984), the Fourth Circuit concluded that the
two-year delay in the preparation of defendant's trial transcript
justified granting a writ of mandamus, being within "the range
of magnitude of delay as a result of which courts have indicated
that due process may been denied." Id. at 382 (citations omitted).
20
This Constitutional core requirement of NOTICE
concept reasonably calculated, under all circumstances,
to apprise petitioner of the pendency of all RJA assertions and accusation, affording petitioner a meaningful opportunity to present objections, enabling petitioner to determine what is being proposed and what he
must do to prevent the deprivation of his interest,
Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950); Richard v. Jefferson County, 517
U.S. 793 (1996); Goldberg v. Kelly, 397 U.S. 254, 26768(1970).
The Constitutional core requirement of concept
equally encompass HEARING on ALL RJA ASSERTIONS AND ACCUSATION, granted at a meaningful
time and in a meaningful manner as a "basic aspect of
the duty of government to follow a fair process of decision making when it acts to deprive petitioner of his
possessions, the particular purpose is to ensure
abstract fair play to petitioner and to protect petitioner's use and possession of property from arbitrary
encroachment," Mathews v. Eldridge, 424 U.S. 319,
333 (1976); Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233
(1863); Fuentes v. Shevin, 407 U.S. 76, 80-81 (1972);
Joint Anti-Fascist Refugee Committee v. McGrath, 341
U.S 123, 170-71 (1951); Armstrong v. Manzo, 380 U.S.
545, 552 (1965).
The Michigan Court of Appeals violated the Fourteenth Amendment to the United States Constitution
"Notice" and "Hearing" requirement on all RJA
assertions and accusations, advanced sua sponte post
expiration of OCS's briefing deadline.
21
The Circuit Court; Michigan Court of Appeals and
the Michigan Supreme Court through unconventional
practices, failed IlVIPARTIAL functions.
The underlying principle of the importance of
prompt judicial decision making and Fourteenth
Amendment protections apply to the context of this
case, in which a judicial delay of nearly three (3) years
has occurred.
Finally, there are several reasons why the
procedural issue the 1990 support duty Filiation Order
or 1990 support duty Child Support Order legally
terminated upon the child's eighteenth birthday
November 13, 2005 by order of Court of competent
jurisdiction is both 'exceptional' and 'of considerable
public importance:
Citizens of the United States and Michigan
State Inhabitants are being subjected to
Fraudulent Child Support, which includes
petitioner;
The Office of Child Support perpetuate Child
Support Fraud upon the Michigan Courts, as
well documented in this case against Petitioner;
The Michigan Department Prosecuting Attorney General's Office litigation posture promotes perpetuating Child Support Fraud
upon Michigan Courts on behalf of the Office
of Child Support against State inhabitants,
which includes petitioner; and,
Based on belief, some thirty thousand
(30,000), if not greater, Michigan State
inhabitants, which includes petitioner, are
22
forced into involuntary servitude under a
1990 support duty Filiation Order or 1990
support duty Child Support Order that
legally terminated in 2005 articulated under
the plain language in the Order's Release
clause, App. 12a-14a, (language still used
today), rarely reviewed by this United States
Supreme Court. United States v. US. Dist.
Court for Eastern 121st. of Mich., Southern
Division (Keith), 444 F.2d 651, 655-56 (6th
Cir. 1971), affd, 407 U.S. 297 (1972) (quoting
Schlagenhaufv. Holder, 379 U.S. 104, 110
(1964).
The unlawful practices and procedures of the State
and its actors, entitles Petitioner to clear powers of a
"prompt judicial review" and "prompt final judicial
decision Es] ," warranting the exercise of this UNITED
STATES SUPREME COURT's ministerial duty of
judicial power pursuant to Article III of the UNITED
STATES CONSTITUTION, Sections 1, "The judicial
power of the United States, shall be vested in one
Supreme Court. . " and Section 2, "The judicial power
shall extend to all cases, in law and equity, arising
under this Constitution, the laws of the United States,
and treaties made, or which shall be made, under
their authority;—to all cases of admiralty and maritime jurisdiction."
.
As such, the second requirement of Supreme Court
Rule 20.1 for the issuance of a writ of mandamus is
satisfied in this case.
23
III. No Other Adequate Relief is Available to
Petitioner
Finally, Supreme Court Rule 20.1 requires that a
writ of mandamus shall issue only when there is no
other adequate relief available to the petitioner.
In this case, Petitioner's attempt to induce the
Michigan Courts through formal briefing to decide the
case, fully disclosing the 1990 support duty Filiation
Order legally terminated November 13, 2005 and is
not enforceable under the SAPTEA, In re Beck, supra
and equitable estoppel controlling, requesting that a
decision be rendered to no avail.
Furthermore, undue delay is practiced at the
administrative level by OCS on April 02, 2015, oppressing legislative intent pursuant to MCL 552.625f(2)(c),
entitling petitioner, within 7 days of written challenge, to review the case with the agency on the
mistake concerning the fact the agency's decision was not
authorized by law other than those described in subdivision 2(a) and (b), rendering the Agency's decision
unreliable for any purpose, App.16a-18a.
In addition, undue delay is practiced at the Circuit
level September 15, 2015, neglecting the court's duty
to petitioner, a Citizens of Michigan, avoiding the
principal underlying 'essential questions' presented at
every level of review, App.8a-15a, in the Circuit
Court's usurpation of judicial power mandated in the
ministerial duty under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution and Michigan Const. 1963, art 1, Sec 17, in exercise of function on appeal from agency decision to
RULE on the manifest evidence of material fact the
1990 support duty Filiation Order legally terminated
24
November 13, 2005, provided for in the conditions of
the terms used in the language of the Release Clause,
to said child
"Defendant has a duty of support.
until the child reaches the age of eighteen (18) years,"
under competent jurisdiction of the Honorable Judge
Richard Ryan Lamb, In re Beck, supra., and equitable
estoppel controlling, disclosing the legal option for
collection is no longer available, positively commanded,
plainly defined and peremptory (imperative) to the conditions and terms used in the language of release
clause, the 1990 support duty legally terminated
November 13, 2005 and is not enforceable under the
SAPTEA March 18, 2015 otherwise moot and a clear
abuse of discretion by the Circuit Court manifestly
deciding the moot none legal frivolous defense dishonestly arranged under and outside of the SAPTEA,
rendering the Circuit Court Order null-in-void as the
1990 support duty Filiation Order, App. 19a-24a,
legally terminated nine (9) years and four (4) months
passed, advanced by OCS, through the DEPARTMENT
for twenty-three (23) months, abruptly abandoned
during Oral Argument February 15, 2017, subjecting
Petitioner to continued undue delay. Citizens Protecting Michigan's Constitution v. Secretary of State, 482
Mich. 960 (2008).
.
.
.
Next, undue delay is practiced at the Michigan
Court of Appeals level February 28, 2017, neglecting
the court's duty to petitioner, a Citizens of Michigan,
avoiding the principal underlying 'essential questions'
presented at every level of review, App.2a-7a, in the
Appellate Court's usurpation of judicial power mandated in the ministerial duty under the Due Process
Clause of the Fourteenth Amendment to the United
States Constitution and Michigan Const. 1963, art 1,
25
sec 17, in exercise of function on direct appeal as of
right, to RULE the 1990 support duty Filiation Order
legally terminated November 13, 2005, provided for in
the conditions of the terms used in the language of the
Release Clause, "Defendant has a duty of support.
to said child until the child reaches the age of
eighteen (18) years," under competent jurisdiction of the
Honorable Judge Richard Ryan Lamb, In re Beck,
supra., and equitable estoppel controlling, disclosing
the legal option for collection is no longer available,
positively commanded, plainly defined and peremptory
(imperative) to the conditions and terms used in the
language of the release clause, the 1990 support duty
legally terminated November 13, 2005 and is not
enforceable under the SAPTEA March 18, 2015 otherwise moot and a clear abuse of discretion by the
Michigan Court of Appeals falsifying the records,
rendering the Order null-in-void ruling sua sponte the
lower Circuit Court properly affirmed the decision of
the Office of Child Support under the RJA, equally
moot, violating the Due Process Clause of the Fourteenth Amendment to the United States Constitution,
subjecting Petitioner to continued undue delay.
Citizens Protecting Michian s Constitution v. Secretary
of State, 482 Mich. 960 (2008)
And, undue delay is practiced at the Michigan
Supreme Court level November 29, 2017, neglecting
the court's duty to petitioner, a Citizens of Michigan,
avoiding the principal underlying 'essential questions'
presented at every level of review, App.la, in the
Supreme Court's usurpation of judicial power mandated
in the ministerial duty under the Due Process Clause
of the Fourteenth Amendment to the United States
Constitution; Michigan Const. 1963, art 1, sec 17; and,
26
Michigan Const. 1963, art 6, sec 6, mandating a
written opinion, containing a concise statement of
facts and reasons in exercise of function on application
for leave on each decision the 1990 support duty Filiation Order legally terminated November 13, 2005 provided for in the conditions of the terms used in the language of the Release Clause, "Defendant has a duty of
to said child until the child reaches the age
support.
of eighteen (18) years," under competent jurisdiction of
the Honorable Judge Richard Ryan Lamb, In re Beck,
supra., and equitable estoppel controlling, disclosing
the legal option for collection is no longer available,
positively commanded, plainly defined and peremptory
(imperative)) to the conditions and terms used in the
language of the release clause, the 1990 support duty
legally terminated November 13, 2005 and is not
enforceable under the SAPTEA March 18, 2015 otherwise moot; and, the Court of Appeals sua sponte RJA
actions moot, violating the Due Process Clause of the
Fourteenth Amendment to the United States Constitution and Michigan Const. 1963, art 1, sec 17 and a
clear abuse of discretion by the Michigan Supreme
Court, rendering the Order null-in-void in the "single
sentence of non-explanation," prohibited by the
Michigan Const. 1963, art 6, sec 6, subjecting Petitioner
to continued undue delay. Citizens Protecting
Michigan Constitution v. Secretary of State, 482
Mich. 960 (2008)
.
.
.
As such, appropriate use of the writ of mandamus
in aid of such prospective jurisdiction is warranted
where the [inferior] Michigan Circuit, Appellate and
Supreme Courts persistently and without reason refuse
to adjudicate the case properly before it, engage in
practice and procedure of usurpation of judicial power
27
and clear abuse of discretion preserved in the manifest
of this case, this [superior] United States Supreme
Court may issue the writ "in order that [it] may exercise
the jurisdiction of review given by law," 28 U.S.C.
Sec(s) 1651(a); Title 28 U.S.C. Sec 2101(c) and Sup. Ct.
R. 20.1.
Clearly, under these circumstances, a writ of mandamus is the only adequate relief remaining to Petitioner. The prerequisites for a writ of mandamus have
clearly been met in this petition to the United States
Supreme Court for immediate consideration.
CONCLUSION
Petitioner respectfully request that this Court issue
a writ of mandamus directing Respondents to do all of
the following:
Reinstate case no. 155780, presently closed;
In accord with In re Beck, supra and equitable estoppel controlling, Rule the 1990 support duty Filiation Order legally terminated
November 13, 2005 and is not enforceable
under the SAPTEA or RJA; and,
Remand to the Michigan Supreme Court with
instructions to remand to the Michigan Court
of Appeals, directing remand to the Circuit
Court, Ordering the Circuit Court to enter
Reimbursement Order directing OCS to
reimburse petitioner the amount of $1,880.90,
plus interest immediately, if not sooner to
avoid further undue delay, ending the civil
litigation erroneously caused under the
SAPTEA.
Respectfully submitted,
LAWRENCE L. SIMMONS
CITIZEN OF THE REPUBLIC
OF THE UNITED STATES
1314 EAST STOCKBRIDGE AVENUE
KALAMAZOO, MI 49001
(269) 779-9188
SPLASHDANCE2004@YAHOO.COM
FEBRUARY 27, 2018
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