Petition for Writ of Certiorari — William Kinney, et ux., Petitioners v. Anderson Lumber Company, Inc., et al.

Supreme Court briefFeb 2, 2019

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FILED

-

In The

FEB 02 20?s

SUPREME COURT OF THE UNITED STATES

William Kinney & Margaret Kinney,

Petitioners

V.

Anderson Lumber Company, Inc.,

Kizer & Black, Attorneys, PLLC

McDonald, Levy, & Taylor, Attorneys

Respondents

On Petition For Certiorari To The United States

Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

William & Margaret Kinney

2442 Allegheny Loop Road

Maryville, TN 37803

865-773-5299

r

1

RECEIVED

FEB - 5 21319

OPPICE OF THE CLERK I

SUPREME COUni

L

QUESTIONS PRESENTED:

Whether Tennessee's law for the unlicensed practice of law violates the

Sherman Anti-Trust Act by restraining free market trade and competition without

mandatory State oversight.

Whether Tennessee's law for the unlicensed practice of law is vague or over

broad, depriving citizens of their rights without fair process, thus violating the due

process clause and the equal protection clause of the Fourteenth Amendment.

Whether the application of Tennessee's UPL law by Federal Courts in

concurrent jurisdictions violates the Religious Freedom Restoration Act, 42 U.S. Code

§ 2000bb.

U

TABLE OF CONTENTS

QUESTIONS PRESENTED .............................................. .................................i

TABLE OF CONTENTS ..................... ............................. .................. .................ii

TABLE OF AUTHORITIES ..............................................................................iii

OPINIONS BELOW .............................................................................. 1

JURISDICTION.............................. .----------- .... ............ .... .................................... 1

CONSTITUTIONAL PROVISIONS, AND STATUTES AT ISSUE.................2

I.

STATEMENT OF THE CASE .................................................................3

Facts Giving Rise To This Case ..........................................................3

The State Court Proceedings .............................................................4

The District Court Proceedings ..........................................................8

The Appellate Court Proceedings ......................................................13

II.

REASONS WHY CERTIORARI SHOULD BE GRANTED ...... ....... ...13

UPI, Violates Due Process ............................... ..........................13

UPI, Violates the Sherman Anti-Trust Act .................................. 15

III.

REVIEW IS WARRANTED .........................................................18

1. In Consideration of 42 U.S. Code § 2000bb..................................18

CONCLUSION..................................................................................... 18

CERTIFICATE OF COMPLIANCE ............. .............. ................. ... ......... 19

CERTIFICATE OF SERVICE ....... .... ..... ............................. .... ................. 19

APPENDIX...................................................................................... ..... 20

1. Order denying En Banc Review ....................................... .... ........ 20

2 Order denying Appeal .............................................................. 20

Order dismissing Section 1983 claim.........................................26

Order dismissing FDCPA claim ... ............................................. 31

in

TABLE OF AUTHORITIES

Cases

Serras v. First Tennessee Bank Nat. Ass'n 875 F.2d 1212, 1214 (6th Cir) ..........3

Chenault v Walker, et al. No. W1998-00769-SC-R11-CV, TN Supreme Court... -.3

Sec'y of State of Md. v. Munson Co., 467 U.S. 947, at 968 ...............................4

Lugar v. Edmondson Oil Co 457 U.S. 922, at 923 ...........................................4

United States v. Price, 383 U.S. 787 at 794 n. 7.............................................4

United States v. Williams 553 U.S. 285, at 304..............................................5

Screws v. US; 325 U. S.91, at 101 ................................................................5

Dombrowski v. Pfister, 380 U.S. 479, at 487...................................................6

Cummings v. Missouri 71 U.S. 277, at 278....................................................7

Broadrick v. Oklahoma, 413 U.S. 601, at 612 ..................................................8

Griswold v. Connecticut, 381 U. S. 479, at 487 ...............................................8

Meyer v. Nebraska 262 U.S. 390, at 399.........................................................9

Gibson v. Berryhill, 411 U.S. 564, at 581 n. 16 .................................................9

Sherbert v. Werner, 374 U.S. 398, at 408-09 -------- ......................... ....... ... .......13

Wisconsin v. Yoder 406 U.S. at 215.............................................................13

,

Plyler v. Moore, 100 F.3d 365, 374 (4th Cir. 1996)...........................................14

Faretta v. California, 422 U.S. 806 (1975) ......................................................14

California Retail Liquor Dealers Assn. v. Midcal Al. Inc., 445 U. S. 97, 105.........17

Parker v. Brown, 317 U.S. 341, at 350............................................................17

Columbia v. Omni Outdoor Advertising, Inc., 499 U. S. 365, at 374.....................17

Statutes

42U.S. Code

Federal

-

1983 ........................................................................................ 1

Statutes

State

-

TENN. CODE ANN. § 4-1-407 (Religious Freedom Restoration Act).......................9

TENN. CODE ANN. § 23-3-101. § 23-3-103 (TJPL). ................ .. ........................... 6

TENN. CODE ANN. § 47-25- 101 (Anti-Trust Statute).........................................14

CALIFORNIA, CCP § 116.540(k).....................................................................16

ILLINOIS, 750 ILCS 65, Rights of Married Persons Act --------------------------------- -.... 16

1

OPINIONS BELOW

The order of the United States Court of Appeals for the Sixth Circuit denying

rehearing en bane was med on November 14 2018.1 The order of the United States

Court of Appeals for the Sixth Circuit denying this appeal was filed on September 13,

2018.2 The Notice of Appeal to the Sixth Circuit was filed on February 7, 2018. The

memorandum order of the United States District Court for the dismissal of this

complaint, was filed on January 9, 2018.3 All of which is reprinted in the Appendix

hereto, pages 20-51.

JURISDICTION

On February 16, 2016, Petitioners filed the instant case in the United States

District Court for the Eastern District of Tennessee at Knoxville.4 We alleged, inter

alia, deprivations of our civil and equal rights within the meaning 42 U.S. Code §

1983 and violations of the Fair Debt Collection Practices Act, 15 U.S. Code § 1692 et

seq. On March 28, 2017, the District Court dismissed our Section 1983 claim.5 On

January 9, 2018, the district court dismissed the remaining original FDCPA claim,

while sending a second FDCPA claim which arose during litigation in federal court,

to the state court.8 On February 7, 2018, the petitioners timely filed an appeal with

the United States Circuit Court of Appeals for the Sixth Circuit, which was dismissed

on September 13, 20 18. Petitioners timely ified a petition for rehearing en bane with

the Sixth Circuit on October 11, 2018, 8 which was dismissed on November 14, 2018.

Petitioners have timely filed this Petition and the jurisdiction of this Court to review

the Judgment of the Sixth Circuit is invoked under 28 U.S.C. § 1254(1).

'Appeal No. 18-5146, DOG 27

2

Appeal No. 18-5146, DOG 24

a Case No. 316cv00078, DOG 66

Case No. 3:1Øi-00078

Case No. 16v00078 DOG 28

6 Case No. 3:16-cv - 00078 DOG 66

7 Appeal No. 18-5146. DOG 24

8 Appeal No. 185146, DOG 26

Appeal No. 18-5146, DOG 27

CONSTITUTIONAL PROVISIONS, AND STATUTES AT ISSUE

First Amendment To The United States Constitution, Fifth Amendment To The

United States Constitution, Seventh Amendment To The United States Constitution,

Ninth Amendment To The United States Constitution, Tenth Amendment To The

United States Constitution, and Fourteenth Amendment To The United States

Constitution.

42 U.S. Code § 1983

15 U.S. Code § 1692

28 U.S.C. § 1254

The Judiciary Act of 1789, SEC. 35

42 U.S. Code § 2000bb.

15 U.S.C. § 1, 2

Constitutional Provisions and Statutes are re-printed in the appendix, pages 46-51.

SCHOLARLY ARTICLES

Unauthorized Practice of Law In Tennessee, by Jessica Myers, Assistant Attorney

General for the State of Tennessee, March 20, 2015

The Supreme Court: How It Was, How It Is William H Rehnquist New York: William

Morrow & Co. (1987)

The Massachusetts Book of Liberties, 1641

The Pennsylvania Frame of Government of 1682.

The Bill of Rights: A Documentary History 130 (197 1) by Schwartz.

Documenting the Justice Gap in America, the Legal Services Corporation.

The future of legal services in the United States, by Judy Perry Martinez (2018)

Letter to the Task Force To Define The Practice Of Law In Massachusetts,

Department of Justice, Federal Trade Commission (2004)

Protecting the Profession or the Public? Rethinking Unauthorized-Practice

Enforcement, Deborah L. Rhode & Lucy Buford Ricca (2014).

3

I.

STATEMENT OF THE CASE

A.

Facts Giving Rise To This Case

In November of 2012, Respondent sued Petitioner Margaret Kinney

("Margaret") in state court, and then added Petitioner William Kinney ("William") as

a defendant, for a debt allegedly incurred on an Anderson Lumber credit account. 10

No evidence of an indebtedness was ever introduced into the record by the respondent

for the account sued upon in its state complaint. Mr. Landon Coleman, V.P., Anderson

Lumber Company, Inc., perjured himself by attesting to an alleged debt owed by the

Petitioners in his Sworn Account. Petitioners have properly introduced into the

record sworn affidavits disputing every allegation of fact relevant to the alleged debt

specified in respondent's state complaint. The respondent has failed to establish its

prima facie showing needed to procure personal jurisdiction over the Petitioners in

state court that comports with the Fourteenth Amendment. Subsequently, the state

court's exercise of personal jurisdiction over the petitioners violates the requirements

of due process.

At a hearing held at the District Court in Knoxville, Tennessee on October 18,

2017, the respondents asserted to the Honorable H. Bruce Guyton, Chief Magistrate

Judge of the District Court for the Eastern Division of Tennessee, that they had the

documentation needed to support the state claim, but then failed to produce the

documentation when ordered to do so by the district court.11 The Respondent

deliberately and wrongfully concealed the factual predicate to Petitioners' federal

claims in order to unlawfully maintain jurisdiction over the Petitioners in state court

12 During state court hearings, the respondents have used the threat of criminal

prosecution under Tennessee's law for the unlicensed practice of law ("the UPL law")

10

Our son Christopher Kinney ("Chirs'), who was originally named as a defendant, in respondent's

state case, passed away on December28, 2015.

11

DOC 54, Page ID 4 1058

Serras v. First Tennessee Bank Nat. A. sstn 875 F.2d 1212, 1214 (6th Cir) See also Chenault v Walker,

et al. No, W1998-00769-SC-1111-CV. TN Supreme Court, 2001) "the exercise of jurisdiction must

comport with the United States Constitution."

12

11

against William to "chili' his right to free speech's and deliberately hinder

Petitioner's defense in preparation of trial, while denying us our liberty and property

rights without due process of law.14 As husband and wife, William and Margaret are

one person in the eyes of God and in law. This relationship, founded in the free

exercise of our religion, is not an attorney-client relationship that comes under the

purview of the UPL law. Neither does said law prohibit a husband and wife from

preparing legal documents for themselves, or appearing as counsel for each other in

court. The respondents and the state court, by applying a subjective opinion to the

vague or overbroad UPL statute, have imposed a rule of conduct upon the petitioners

that violates our right to due process.15 There is no authority in Tennessee case law,

precedence, or even MG opinions,'6 to support the threats leveled against the

petitioners by the state court and the respondents under the guise of UPL. All such

threats were made under color of law, to deprive the petitioners of their civil rights

within the meaning of 42 U.S. Code § 1983.

B.

The State Court Proceedings

At state court proceedings held on July 18, 2013, December 1, 2014, January

16, 2015, and February 13, 2015, the respondents questioned the petitioners about

the preparation of legal documents. At the hearing held on February 13, 2015,

William had to plead his rights under the Fifth Amendment to avoid criminal

prosecution under the UPL law, while he and Margaret attempted to present their

mutual defense at said hearing.17 At the hearing held on January 16, 2015, which the

petitioners had scheduled to compel discovery, Mr. John McArthur of Kizer & Black,

Attorneys ("McArthur"), objected that William was representing his wife.

Immediately following McArthur's objection, the Honorable David R. Duggan, Judge

of the Blount Court Circuit Court in Maryville, Tennessee, warned William that it

was a crime for him to represent his wife. In response to Judge Duggan's threat,

William chose to remain silent rather than be accused of a crime. Subsequently, the

13

Sec'y of State of Md. v. Munson Co., 467 U.S. 947, at 968

14

0ee companion Case No. 3: 18-cv-00227, Lugar v. Edmondson Oil Co 457 U.S. 922, at 923

15

United States v. Price. 383 U.S. 787 at 794 n. 7

16

Unauthorized Practice of Law In Tennessee, by Jessica Myers, TN Asst. PiG

Transcript of Special Master's hearing, Case No. 3: 16-cv-00078, DOC 45, Page ID ifs 9961998. The

Special Master's Report was never adopted by the state court It is replete with fraudulent

representations and forged documents proffered by the respondents, the state court refused to examine

and subsequently ORDERED the Special Master not to introduce said documents as evidence.

17

[11

court did not hear petitioner's motion to compel discovery and instead granted the

respondents .a continuance. The state court failed to write an order for said hearing-18

In his response to Petitioner's First Motion for Recusal, Judge Duggan explains

that he warned William at the hearing held on January 16, 2015, that "to purport to

represent another person without a law license is, in fact a mLcclemeanor, which

means it is a crime. "Judge Duggan continues by stating, the court has explained

to a pro se party, many times, * why that party cannot represent another party in a

proceeding, and to purport to do so is potentially a crime. "Judge Duggan further

stated, "The Court does remember, on many occasions, that the Court, after

explaining that one person cannot represent another person without a law license,

and that to purport to do so is a crime, has gone onto explain to the pro separty, and

in an effort to try to calm the waters, that the court is not saying that anyone is going

to be prosecuted. "19 For the state court to say, "it is a crime," and at the same time,

it is "potentially a crime," while at the same time saying it is a crime that you may or

may not be prosecuted for, "fails to provide a person of ordinary intelligence fair notice

of what is prohibited, or is so standardless that it authorizes or encourages seriously

discriminatory enforcement" (quoting United States v. Wi1]iams20 ) The UPL law

violates due process on vagueness grounds because the statute can be applied to

circumstances that are not clearly articulated in the construction of the statuteWhich leads to the predicament described by this court in Screws v. 1A9 "The

constitutional vice in such a statute is the essential injustice to the accused ofplacing

him on trial for an offense the nature of which the statute does not define, and hen cc

of which it gives no warning." 21

"..

In a demand letter written by respondent Anderson to the petitioners on May

28, 2015, Atty. Charles Taylor ("Taylor") from the law firm of McDonald, Levy, &

Taylor, stated; 'Judge Duggan has already ruled that Mr. William Kinney cannot

represent the interests ofhis wife and son, and they will either have to start actively

participatingin the lawsuit, or hire an attorney to represent them. " 22 Taylor is refer-

'

DOC 44-3, Page ID #: 918, entry under December 30, 2014.

19 Case 31.7-cv-00288, DOC 1, Page ID Wa 60-62

20 United States v. Williams 553 U.S. 285, at 304

21 Screws v. us; :325 U. S. 91, at 101

22

Case 317-cv-00288, DOC 1, Page ID #: 63

6

.

ring to Judge Duggan's warning to William at the hearing held on January 16, 2015.

This threat made by Taylor, and the threat made by McArthur (stated above) were

made under color of law. In the State of Tennessee, only the courts are authorized to

issue orders and injunctions to restrain and prevent UPL 23 The law authorizes Bar

Associations to ifie claims for Attorney Plaintiffs against anyone who violates the

UPL law.24 It does not authorize an attorney to threaten criminal prosecution in a

demand letter., or to spontaneously enjoin a person's right to free speech in open

court, by making a bare assertion of a UPL violation. Punishment under the UPL law

is applicable only upon a verdict made by a jury.

In addition to this, our son Chris was terminally ill and certified under the

Americans with Disabilities Act. He attempted to obtain assistance from the Legal

Aid Society, but the attorney assigned to him under the ADA did not return his calls.

Chris did not possess the personal stamina to defend himself in court, or the financial

means to hire an attorney. The only option left for Chris, outside of accepting a default

judgment, was to ask his Dad for help. The only option William had, in good

conscience, was to help his son. This led to William being threatened with UPL in

Taylor's demand letter (stated above). There is a certain cruel irony to be found here.

It is a criminal offense in the State of Tennessee to abandon an animal in your

custody.25 It is also a criminal offense for a Father to help his son with a legal matter.

Employing this statutory logic, a Father must abandon his son under penalty of law,

but cannot abandon the family dog under penalty of law. No parent living in a civil

society should be put in that predicament. The UPL law is a good example of a "penal

statute susceptible of sweeping and improper application." [Dombrowski v. Pfister,

380 U.S. 479, at 4871

Because the threat of criminal prosecution under the UPL law has been used

to spontaneously enjoin the Petitioner's First Amendment rights in open court, it

operates as a Bill of Attainder in violation of Article I, Section 10, clause 1, of the

Constitution of the United States. According to former Chief Justice William

Rehnquist: "A bill of attainder was a legislative act that singled out one or more per-

23 T.C.A. 23-3-103(c)(3)

24 T.C.A. 23-3-103(.(1)(0

25 TCA 3914202(a)(3)

7

sons and imposed punishment on them, without benefit of a judicial trial.,' 26

According to Mr. Rehnquist's technical legal analysis, a Bill of Attainder would

possess four specific elements: (1) a legislative act, (2) a particular individual or group

of individuals (3) a punishment, which includes the loss of life, liberty, or property,

(4) the lack of a judicial trial. In the instant case, the threat of prosecution under the

UPL law satisfies all four elements of a Bill of Attainder. (i) The legislation is T.C.A.

23-3-103, (2) the threat was directed toward the petitioners, (3) the punishment

includes a loss of liberty and property (4) William was compelled to remain silent in

court, under the threat of criminal prosecution, without benefit of a trial. Quoting

from Cummings, "These bills, though generally directed against individuals by name,

maybe directed against a whole class, and they may inflict punLchment absolutely or

may inflict it con ditionally.'27 While the Petitioners were directly affected by the UPL

law, in a greater sense, pro se litigants have been affected as a class. Restated below

is a part of Judge Duggan's statement made above:

The Court does remember, on many occasions, that the Court, after

explaining that one person cannot represent another person without a law

license, and that to purport to do so is a crime, has gone on to explain to

the prose party, and in an effort to try to calm the waters, that the court

is not saying that anyone is going to be prosecuted." [Emphasis added]

In other words, there have been many pro se litigants who cannot afford an

attorney and expect to have the assistance of their partner in court, who get

emotionally upset when this fundamental right is denied under the threat of criminal

prosecution (which is why the waters need "calming.") We witnessed just such an

incident in state court, in October of 2016. A husband and wife appeared before a

Blount County, Tennessee Judge regarding a debt collection lawsuit filed in the wife's

name only. The husband began to help his wife when the Judge abruptly interrupted

by asking the husband, "Are you the debtor?" The husband replied, "No." The Judge

responded, "Then you have nothing to say." We have challenged Tennessee's UPL

statute not only because our First Amendment rights were violated, but also for the

reason given by this court in Broadrick; that

"..

26 William H .Rehnquist, The

-

Supreme Court: Row It Was, How it is. New York; William Morrow &

Co. (1987)

27 Cummings v. Missouri 71 US. 277. at 278

the statute's very existence may cause others not before the court to refrain from

constitutionally protected speech or expression. "28 and, "particularly where conduct

and not merely speech is involved, we believe that the overbreadth of a statute must

not only be real, but substantial as well, judged in relation to the statute's plainly

legitimate sweep." 29 According to the Supreme Court of Tennessee, the legitimate

sweep of the UPL law is to protect the public, ostensibly from charlatans posing as

attorneys. Therefore, threatening the petitioners (or any other married couple) under

the UPL law, does not satisfy the legislative intent of the statute, or pass the

compelling interest test required to justify limiting First Amendment rights.

C.

The District Court Proceedings

1.

The UPL Law Violates Substantive Due Process.

In our claim for deprivation of civil rights under Section 1983, from which this

appeal arises, we asserted that fundamental to our Christian faith is a religious belief

adopted from the Abrahamic faith of the children of Israel, which comes from the

understanding that almost 6000 years ago God supernaturally caused .a man and his

wife to become (into) one flesh. In the oldest known written form of this doctrine,

found in the original Hebrew it literally says;

"wahayuw (to exist) labasar echad (as one person)." (Bereshiyth 2:24)

Petitioners firmly believe that as a married couple we are one person in the eyes of

God and in law, and we must stand together "to protect and defend each other" in all

aspects of life, especially when called into court. In fact, the above quotation was part

of the marital contract we entered into when expressing our wedding vows on

September 26, 1975. The framers of our constitution were well acquainted with this

belief enjoyed by many faiths, and which is now "so rooted in the traditions and

conscience of our people as to be ranked as fundamental "30

Continuing in his answer to Petitioners First Motion for Recusal, Judge

Duggan further states on page 19, paragraph 10, sub-paragraph b;

28

Broadrick v. Oklahoma. 413 U.S. 601, at 612

29

Jiroactrickv, Oklahoma, 413 U. S. 601, at 615

30

Griswold v. Connecticut, 381 U. S. 479, at 487

9

"To the extent that the Defendants continue to argue, in the present motion that in

fact one of them can legally represent the other without a law license because "They

are one person in the eyes of God and in law" they are simply wrong about that.

This statement is a violation of our right to freedom of religion and freedom to

worship.32 The State is imposing its opinion of our religion as a matter of law, to

constrain our beliefs while applying a criminal consequence to regulate First

Amendment freedoms rooted in lawful activity. Judge Duggan did not articulate in

said answer, how the petitioner's activities were harmful or of a public safety concern,

nor did he give any other reason for interfering in our First Amendment rights. The

UPL law does not prohibit a married couple from defending each other in court and

the Judge's statement is viewpoint discrimination carried out through the exercise of

governmental discretion.

Petitioners filed a Rule 5.1 Constitutional challenge of the UPL law with the

District Court on July 30, 2016. 33 Pursuant to Rule 5.1(a)(2), on July 30, 2016 we

served notice upon the Attorney General for the State of Tennessee, who failed to

respond. 34We presented our constitutional challenge of UPL to the State Appeals

Court who failed to address our claim.35 We appealed the decision to the State

Supreme Court.86 We presented the State Supreme Court with our constitutional

challenge of the UPL law, and also raised the UPL issue with respect to Tennessee's

Religious Freedom Restoration Act.37 Our Appeal was summarily denied leaving us

with no opportunity to raise our constitutional challenge in state court.38 On January

31 Case 3:1.7-cv-00288-DOC 1,

Page ID #: 62

32 "No State shall

deprive any person....to worship God according to the dictates of his own

conscience,.." Meyer v. Nebraska 262 U.S. 390, at 399 [Emphasis added]

,..

33 Case 3:16-cv-00078 Document 1.3, Page ID #: 266

34 Ca se 3:16-cv-00078. Document 13, Page ID 264-265 [On June 7. 2016, we filed a Rule 24.04 Motion

with the Attorney General for the State of Tennessee challenging the state's UPL statute, asking for

a Declaratory Judgment and injunctive relief pursuant to Tenn. Code Mn. § 29-14-107- We received

no response from the -A/G. Case 3:17cvM0288, DOC 2-1, Page ID #: 931

35 Case No. 3:17tv00288, DOC 2-1. Page ID 4 109 [Found in its entirety at: No.E20160164ftCOk

36

Case No. :17-csr00288. DOC 2-1, Page ID #1.11

37 TENN. CODE ANN. § 4-1-407

38 Gibson v. Berryhill, 411 U.S. 564, at 581 it. 16

11€

9, 2018, the District Court dismissed our case without certifying the Rule 5.1

constitutional challenge, or otherwise addressing the UPL issue in our original claim,

or as a collateral issue.39

2.

The District Court's application of Tennessee's UPL law

in federal court violates 42 U.S. Code § 2000bb.

During the district Court proceedings held on October 18, 2017; Magistrate

Judge Guyton raised the issue of petitioner's constitutional challenge of UPL, and

gave a brief recitation of how UPL is defined in federal Court, as shown in the

following excerpts from the transcript;

MR. KINNEY: my wife and I are, of course, co-defending in that we assist

each other in this matter. The opposing party interprets that as me

representing my wife or vice versa, which, of course, is an interpretation of

the state statutes 23-3-101 and—

THE COURT: I'll just say this for the record so there is no confusion: You

are not an attorney. You can only represent yourself. Your wife can only

represent herself. You can't represent her in court and she can't represent

you in court. That's a very well-established rule and federal law. So that's

why you both have an opportunity to speak today if you want to, but you are

speaking for yourself and she will speak for herself. Do you have any

questions about that?

MR. KINNEY: Well, I still do want to formally challenge that interpretation

of the Tennessee statutes.40

It is our contention that Judge Guyton is mischaracterizing the marital

relationship of the petitioners by applying an attorney client relationship. We are

not a law business, and we do not appear for each other in a representative capacity.

In actuality, we are one in the eyes of God, and one in law. Therefore, it is our natural

right to interact, interject, help, or otherwise assist each other under all

circumstances that may present themselves in life. Furthermore, as a practical

matter, it is already a burden for self-represented parties to assert their rights in

-

39 Petitioners specifically requested that the state courts view our constitutional challenge of the UP],

law under the state constitution, in light of our federal constitutional rights. We rid not ask the state

courts to adjudicate our federal constitutional rights.

40 DOC 71, Page 18. lines 19-25. page 19, lines 1-25, page 20, lines 1-10

11

court. The State of Tennessee requires the petitioners to possess the same knowledge

and skills of a seasoned attorney, all the while under the risk and even threat of

dismissal4' This expectation is unrealistic. If the petitioners must be "private

attorneys," how can the state then prohibit married couples from assisting each other

in court, on the basis that one spouse would then be representing the other (which is

something only an attorney can do). The state is actually demanding that the

petitioners become attorneys in order to defend their constitutional rights, while at

the same time, petitioners cannot counsel or assist each other while defending those

same rights. This practice, directly or indirectly empowered by the state under the

guise of UPL, is a violation of the equal protection clause of the 141I1 Amendment.

The district court addresses the subject of UPL a second time during the

hearing held on October 18, 2017, regarding petitioner's Interrogatory No. 24

propounded to the respondents, which states;

"By what precedent or legal reasoning do YOU object, to William Kinney

assisting his wife Margaret Kinney, in defense of their mutual liberty and

property rights, by invoking Tennessee's UPL statutes?" 42

The respondents were not required to answer this question, as shown in the

transcript below:

THE COURT: All right. No. 24. I think I've answered No. 24.

MR. KINNEY: You want to

with all due respect, I don't accept that

answer. I think that the statute is overly broad and vague, and it actually

operates as a bill of attainder. All an attorney has to do in court is say,

Your Honor, he's representing somebody else. My wife and I, we're

married; all right? We're considered to be one in the eyes of God. So this

was an affront to our religious convictions. The word

-

-

THE COURT: Well, nobody is attacking your religious beliefs. I'm just

saying: As a matter of law, you can

you represent yourself and she

represents herself. Now, I understand married couples come into court all

the time and they speak for each other. I understand that. I'm just saying

technically; okay? Let's say this case goes to trial. Would you want it to

be that she can't say anything if you say something? No. You'd want her

-.

41 The Court... ffmust not excuse pro se litigants from complying with the same substantive and

procedural rules that represented parties are expected to observe. Young v. Barrow, 130S Wad 59,

63 'Tenm Ct App. 2003).

"

Case 3:16-cv-00078, DOC 68. Page ID #: 1197

12

to have the right to say something and you'd want to have the right to say

something. Well, that's the way the law works. You represent yourself and

she represents herself. Otherwise, after you said something, the other side

would object and say, "Well, they have already spoken." So

-

MR. KINNEY: Well

--

THE COURT: that's how it is. So I think I've answered No. 24. You can

assist each other. You just can't speak for each other and represent each

other. See what I'm saying? There is a difference.

--

MR. KINNEY:

it's not a matter of me speaking for my wife. She is well

able to speak for herself. But if she isn't thorough enough and I can add

something, a piece of knowledge or something that to help her, I should

be allowed to help.

...

THE COURT: I just said that. I just said that.

MR. KINNEY: I know, but

-

THE COURT: You can talk and share information. But when it comes to

a court proceeding, which a deposition is, or a court hearing, you each

represent yourself. That's all there is to it. And you both could you both

can say whatever you want to say.43

--

Judge Guyton's statement, "You can assist each other—you both can say whatever

you want to say... You just can't speak for each other and represent each other," is

perplexing within the context of the UPL law. If William speaks for himself on an

issue, he is not excluding Margaret from speaking on the same issue, as if her point

of view would be precluded (or estopped) because William had already spoke on the

matter. This is simply a matter of a husband and wife standing together in defense

of each other, according to our religious belief. In addition to this, since Margaret

plans to depend on William to assist her with her defense in state court, and in

presenting her claim in federal court, William's assistance is essential to Margaret's

right to a fair trial. If either spouse is denied the assistance of the other, we will be

denied meaningful access to the courts. The vagueness of the UPL law, if applied in

District Court, will serve to limit the presentation of our claim, not only in violation

of our First, Fifth, and Seventh Amendment rights, but also in violation of 42 U.S.

Code § 2000bb. We see "no compelling governmental interest to justify the substantial

infringement of our right to religious freedom under the First Amendment." M

43 DOC 71, Page 50, lines 15-25, page 51. 1-25. page 52, 1-23

13

D.

The Appellate Court Proceedings

The U.S Court of Appeals for the Six Circuit did not address petitioner's RULE 5-1

Constitutional challenge of UPL,45 or the petitioners unopposed Motion to Enjoin the

State Court Proceedings to further prevent the denial of petitioner's right to due

process and violations of the Sherman Anti-Trust Act.46

II.

REASONS WHY CERTIORARI SHOUT]) BE GRANTED

I.

Tennessee's UPL law violates the Due Process Clause.

Under the Due Process Clause of the Fourteenth Amendment, "Ho State shall

deprive any person of life, liberty, or property, without due process of law." [U.S.

Const. amend. XIV, § 1.1 The Due Process Clause has "procedural and substantive

components."47 Tennessee's UPL statute, T.CA., 23-3-103, 'violates the First

Amendment guarantee of Freedom of Speech and Freedom of Religion, and the right

to Petition the Government for a Redress of Grievances; which are rights entitled to

substantive due process protection and the application of strict scrutiny to the

challenged action.

-

The Plain Language of the UPL Statute

The Supreme Court of Tennessee has stated that the UPL law is generally designed

to protect the public,48 and has issued guidelines to follow when deciding legislative

intent.49 These guidelines are meant to (1) prevent expanding a statute's coverage

beyond its intended scope5° or, (2) forcing a subtle interpretation that would limit or

44 42 U.S. Code

§ 2000bb(2). See also Sherbert v. Werner, 374 U.S. 398, at 408-09, and Wisconsin v.

Yoder 406 U.S. at 215.

.

45 DOC 13, Page ID #: 266

Appeal No. 18-5146, DCC 23

47 Plyier v. Moore, 100 F. 3d 365, 374 (4th Cir, 1996).

421-laverty Furniture Co. v. Foust, 124 S.W.2d 694. 698

49 Citations from. AG opinions for the State of Tennessee, No.. 02-078

50 State v. Pettus. 986 S.W.2d 540, 544 (Tenn. 1999)].

14

extend the statute's application.5' Due to vagueness, the UPL law has been used to

accomplish both harms by extending its intended scope to include private

interpretations that-have deprived the petitioners of their civil and equal rights. In

short. T.C.A. 23-3- ioi(i) defines the law business as (i) advising or counseling for

valuable consideration, (2) the drawing of legal documents for valuable consideration,

(3) the doing of any act in a representative capacity, for valuable consideration. The

words "for valuable consideration" make up an essential clause being used to clarify

the main clause ("advising and counseling"). In other words, the "advising or

counseling" must be done "for valuable consideration," (ostensibly as it relates to

monetary gain). The petitioners experience no monetary gain or exchange any other

form of valuable consideration as a condition for assisting each other in court.

Therefore, by definition we are not a law business. Secondly, the practice of law is

defined by the representative capacity achieved through advising or counseling a

client. An advocate relationship relies on there being a client. In our situation there

is no client. Petitioners co-counsel each other as a married couple. We appear in court

as ourselves, husband and wife, and we have no choice but to act in this way.

-

The Historic Meaning of Counseling

The Judiciary Act of 1789, states in SEC. 35:

And belt further enacted. That in all courts of the United States, the parties may

plead and manage their own causes personally or by assistance of such counsel or

attorneys at law ashy the rules of the said courts respectively shall be permitted to

manage and conduct causes therein.

The Judiciary Act allows for a party to manage their own cause personally, meaning

"by one's self," or by assistance of such counsel. The word "such" is being used as a

transitional word pointing backward (in the sentence) to the subject matter of

"managing one's own cause." This means, one may utilize the assistance of others, "or

attorneys at law.." In the plain language meaning of Section 35, the word "or" is a

conjunctive used to list alternatives. For our purposes in the instant case, we manage

our cause utilizing each other as counsel, rather than employing the assistance of an

attorney. This was indeed the practice in use at the time the Judiciary Act was signed

into law, which is apparent from other declarations made throughout the American

colonies. In the case of Faretta v. California (1975),52 in writing the opinion for the

court, Mr. Justice Stewart refers to a number of American'

Carver v. Citizen Utils. Co., 954 S.W.2d 34, 35 (Tenn. 1997).

52Faretta v. California, 422 U.S. 806 (1.975)

15

Colonial documents where the word "counsel" did not refer to lawyers. For example,

he refers to, The Massachusetts Book of Liberties, written in 1641;

'Every man that fin deth himselfe unfit to plead his owne cause in any cour4 shall

have Libertie to iniploy any man against whom the Court doth not except, to helve

him,53

The Pennsylvania Frame of Government of 1682 provided:

"That, in all courts, all persons ofallpersuasions may freely appear in their own way,

and according to their own manner, and there personally plead their own cause

themselves,'or. if unable, by their friends. .."54

The words "such counsel," as it appears in the Judiciary Act of 1789, invariably

includes a husband and wife's right to each other's advice and judgment. In light of

the historic meaning of counsel, it is accurate to say that the right to have your spouse

as counsel was usurped under the guise of vague or overbroad UPL laws that came

into effect across our country beginning in the 1930's.

2.

The UPL law violates the Sherman Anti-Trust Act

The UPL law not only violates Tennessee's Antitrust Code Section, 47-25-101,

et seq., it violates the Sherman Anti-Trust Act, 15 U.S.C. § 1, which makes unlawful

"every contract, combination

or conspiracy, in restraint of trade or commerce

States,!!

among the several

and 15 U.S.C. § 2, which makes it unlawful to "monopolize

or attempt to monopolize, or combine or conspire with any other person or persons,

to monopolize any part of the trade or commerce among the several States." The UPL

law is used to restrain the free market by restricting competition between lawyers

and non-lawyer service providers. We found services that we could have used in our

situation, in other jurisdictions of the United States, except they are prohibited in

Tennessee. This situation is not unique to Tennessee. Numerous letters have been

written by the Department of Justice, and the Federal Trade Commission to various

States regarding activities that should not be considered the unlawful practice of law;

but rather, are generally harmful to consumers by restricting competition, raising

costs, and limiting choices. In its report "Documenting the Justice Gap in America,"

...

53

422 U.S. 808, footnote 32

54 Schwartz, The Bill of Rights: A Documentary History 130 (1971) [422 U.S. 806 n. 37, opinion of

DOUG LAS, dl

16

the Legal Services Corporation estimated that in the United States, 80 to 90 percent

of low-income people with civil legal problems never receive help from a lawyer.55 The

Justice Department and the FTC blame this situation on the adoption of excessively

broad unauthorized practice of law rules, along with opinions by state courts and

legislatures, for preventing non-lawyers from competing with attorneys in providing

certain services.56 Other jurisdictions have begun to make changes in confronting the

apparent disparity in costs and availability of legal services to the average person.

For example, the State of Washington has begun to offer a Limited License Legal

Technician. Among other "civil justice situations," they can help clients prepare court

documents and perform legal research.57 This same service constitutes the unlicensed

practice of law in Tennessee.58 The State of California enacted California Code of Civil

Procedure CCP § 116.540(k), which allows for a spouse to "...appear and participate

on behalf of his or her spouse." Furthermore, CCP § 116.540(1) allows for a nonlawyer to assist a party who cannot " properly present his or her claim..." The State

of Illinois has a "Rights of Married Persons Act" which states in Sec. 2., Defending in

own right or for other; "If husband and wife are sued together, either may defend for

his or her own right and, if either neglects to defend, the other may defend for both."59

The State of California and the State of Illinois recognize the rights historically

possessed by married couples to defend each other in legal matters. Whereas in

Tennessee, a husband and wife who might one day be called upon to make end-of-Me

decisions on behalf of their spouse,60 cannot stand in defense of each other in a

Tennessee courtroom. Tennessee's Health Care Power of Attorney statute was

enacted in 1990 to preserve a married couple's dignity, whereas, the UPL law serves

to strip the marital union of its honor and dignity-

...

55 Documenting the Justice Gap - https://www.lsc.gov [See also, The future of legal services in the

United States, by Judy Perry Martinez.

Letter to the Task Force To Define The Practice Of Law In Massachusetts (2004)

ht.t.ps://wwwftc,gov

56

57 Washington State Bar Association http://www.wsba.org/licensing -an&lawverconductllimitecF

licenses/legal-technicians

58 Fifteenth Judicial Dist. Unified Bar Ass'n v. Glasgow. No. M199600020-COA-R3 CV, 1999 WL

128847 (Tenn. Ct. App. 1999).

59 750 ILCS 65, from Ch. 40, par. 1.002 (Source: P.A. 87-286.).

60 T.C.A.34-6201. Health Care POA

17

The Tennessee Bar Association as a regulatory Board, functions in a manner

similar to the North Carolina State Board of Dental Examiners, as seen in the case

recently before this court.6' Tennessee's local and State Bar Associations are private

organizations who have been given authority by the State to enforce the UPL law.

The State system of enforcement does not satisfy the requirements for immunity, that

the challenged restraint be "one dearly articulated and affirmatively expressed as

state policy," and be "actively supervised" by the State.62 Enforcement of the UPL law

is carried out in four different ways.63 In short, under the statute, any organized Bar

Association in Tennessee can initiate a claim without the oversight of an impartial

state actor, who might otherwise oversee the claim or invalidate the claim before it is

filed. This Court has stated; "When a State empowers a group of active market

participants to decide who can particivate in its market, and on what terms, the need

for supervision is manifest. 64 The State of Tennessee does not satisfy IvlidCaJ.'s active

supervision requirement. The independent actions of a BAR member (Attorney

Plaintiff) or the organized Bar Association, unsupervised by the State, are not an

exercise of the State's vereign power, and do not invoke Parker immunity.65

Because State Policy does not clearly articulate the boundaries of the statute, it

serves (in effect) to authorize the conduct that violates the antitrust laws.66 The

respondents were left to decide for themselves the boundaries of UPL. This led to

threats of criminal prosecution against the petitioners for activities that are not

prohibited by the UPL law. Respondents threats were conspiratorial conduct of the

kind forbidden by Section 1 of the Sherman Act, intentionally employed to dominate

the market by limiting legal rights and services, rather than to preserve a competitive

marketplace to protect consumers from abuses, which is a violation of Section 2.

61 NORTH CAROL

. INA STATE PD. OF DENTAL EXAI\HNERS v. FTC. 574 U.S.

62

(2015)

Parker v. Brown. 31.7 U. S. 341.

TCA23-3-103; (a), (b). (c), and (d).

California Retail Liquor Dealers Assn. v. Mideal Aluminum, Inc., 445 U. S. 97, 105. also Parker v.

Brown. 317 U.S. 341. at 350

64

65

Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, at 374

A recent survey of state bar unauthorized practice committees and enforcement agencies found that

most complaints about alleged unauthorized practice of law are made by lawyers or the bar association

itself, not by consumers. The vast majority of complaints never result in court proceedings where

enforcement actions can be supervised by state court judges rather, they are resolved unofficially

through bar and committee investigations. Deborah L. Rhode & Lucy Buford Ricca, Protecting the

Profession or the Public? Rethinking Unauthorized-Practice Enforcement, 82 FORDHJ4M L. REV

2587 (2013-n).

-

18

Bar Association members as Plaintiff Attorneys, and organized Bar Associations

within the State of Tennessee, need only threaten a person with UPL, or .a non-lawyer

business providing services that the Bar deems illegal in nature, in order to restrain

trade, exclude their rivals, and maintain their monopoly without any effective means

of State oversight. Under Section 2 of the Act, employing this Court's test for

monopolization articulated in United States v. Grinnell Goip., Tennessee Bar

Associations, their members, and non-member attorneys, meet both elements of the

test; (i) the possession of monopoly power in the relevant market and (2) the willful

acquisition or maintenance of that power as distinguished from growth or

development as a consequence of a superior product, business acumen, or historic

accident. The lack of market alternatives, such as those available in other

jurisdictions in the United States; leaves a large segment of our society with little to

no options but to accept defeat of an otherwise valid and winnable claim or defense

III.

Review Is Warranted in Consideration of 42 U.S. Code § 2000bb

When the District Court in Knoxville applied Tennessee's UPI, law to the

petitioners as federal law, it violated 42 U.S. Code § 2000bb by restricting petitioners

free exercise of religion, and freedom of speech under the First Amendment. Under

the compelling interest test, governments are not permitted to substantially burden

religious exercise without a compelling justification. In light of this requirement,

petitioners can see no risk or public safety issue that would compel the state or federal

government to burden the rights of married couples to defend each other in court.

CONCLUSION

The lack of a clearly articulated UPI, statute in Tennessee has been used to

deprive the petitioners of their rights under the First, Fifth, Seventh, Ninth, Tenth

and Fourteenth Amendments to The United States Constitution, as well as statutory

rights under the Sherman Anti-Trust Act, Section 1 & 2, and the Religious Freedom

Restoration Act, 42 U.S. Code § 2000bb. This court should consider declaring

Tennessee's law for the unlicensed practice of law UNCONSTITUTIONAL on

vagueness grounds, or on the ground that it is substantially overbroad. Furthermore,

and for the reasons stated herein, we ask the court to consider reversing the Sixth

Circuit's dismissal of our Appeal, and to reinstate this case in the District Court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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