Petition for Writ of Certiorari — Jay J. John, Petitioner v. Deutsche Bank National Trust Company, et al.

Case No.

In the Supreme Court of the

United States

JAY J. JOHN ,

Appellant-Petitioner,

v.

QUALITY LOAN SERVICE CORP. et al.,

Appellee-Respondent.

On Petition for Writ of Certiorari from the

Ninth Circuit Court of Appeals Case No. 20-35843

PETITION FOR WRIT OF CERTIORARI

SCOTT E. STAFNE , Counsel of Record

STAFNE LAW Advocacy & Consulting

239 North Olympic Avenue

Arlington, WA 98223

360.403.8700

scott@stafnelaw.com

i

QUESTIONS PRESENTED

Recently this Court has reminded judges that federal courts are based on the adversary system of justice.

“That is, we rely on the parties to frame the issues for

decision and assign to courts the role of neutral arbiter

of the matters the parties present.”

Unfortunately, the Ninth Circuit continues to have

difficulty applying this principle; both as one governing

its own decision-making with regard to issues which are

appropriate for decision on appeal and as to the standard of review which should be applied to a trial court’s

exercise of judicial power.

This case presents the following issues:

1. Must a district court decide a motion based on

those judicial inquiries framed by the movant and

his adversaries by applying the legal contentions of

the adverse parties to those facts the district court

finds to exist based on the parties’ presentations?

2. Whether structural aspects of our constitutional

government required a district court to consider

an attorney’s contentions that he is entitled to withdraw from a case or obtain an indefinite continuance to respond to a Motion to Dismiss based on

his State’s emergency regulations applicable

to COVID-19, his susceptibility to that infection,

and his inability to competently represent his client

without such a delay?

ii

PARTIES TO THE PROCEEDINGS

Plaintiff is Jay J. John, the Appellant below and

Plaintiff in the district court. His wife, who was not

named in the Complaint, has a community property interest in the home the underlying complaint was filed to

protect.

Respondents are Deutsche Bank National Trust

Company and Nationstar Mortgage, d/b/a/ Mr. Cooper.

They were Appellees below and Defendants before the

district court .

Quality Loan Service Corp. of Washington was a

nominal Defendant in the district court.

iii

RELATED PROCEEDINGS

United States Court of Appeals (9th Cir.)

John v. Deutsche Bank National Trust Company

et al., No. 20-35843 (October 13, 2021)

United States District Court (E.D. Wash.)

John v. Quality Loan Serv. Corp. et al., DC

No. 4:20-cv-05008-SAB (May 4, 2020)

iv

TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDINGS .......................... ii

RELATED PROCEEDINGS ....................................... iii

PETITION FOR A WRIT OF CERTIORARI ............ 1

DECISIONS BELOW..................................................... 1

JURISDICTION .............................................................. 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ........................................... 2

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

REASONS FOR GRANTING THE PETITION ...... 21

A. Review should be granted because the lower

courts failed to conduct a judicial inquiry ................ 21

B. In the United States judicial system motions

should be decided based on the presentations of

adverse parties ............................................................. 22

1. Judicial Neutrality ............................................ 24

2. Adversary System ............................................. 27

C. Supervisory Review is Appropriate ..................... 29

CONCLUSION .............................................................. 34

Table of Appendices ................................................ 1a, 2a

Appendix 1: Memorandum .......................................3a–6a

v

Appendix 2: Order Granting Extension of Time ......... 7a

Appendix 3: Order .....................................................8a, 9a

Appendix 4: Order Granting Motion to Dismiss for

Failure to State a Claim ........................................10a–21a

Appendix 5: Order Denying Motion to Withdraw and

Granting Motion for Extension of Time to Respond to

Motion to Dismiss ..................................................22a–25a

Appendix 6: Motion to Withdraw as the Attorney for

Plaintiffs Pursuant to LCivR 83.2(D)(4) .............26a–38a

Appendix 7: Declaration of Scott E. Stafne in Support

of His Motion to Withdraw as the attorney for

Plaintiffs Pursuant to LCivR 83.2(d)(4) ..............39a–52a

Appendix 8: Constitutional Provisions ....................... 53a

Appendix 9: Proclamation by the Governor High-Risk

Employees–Workers’ Rights 20-46.1 ................. 54a–59a

Appendix 10: Proclamation by the Governor Amending

Proclamations 20-25 ..............................................60a–68a

Appendix 11: Bank receipt........................................... 69a

vi

TABLE OF AUTHORITIES

Federal Cases

Ashcroft v. Iqbal,

556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868

(2009) .......................................................................... 16

Biden v. Missouri,

142 S. Ct. 647, 211 L. Ed. 2d 433 (2022) ........... 20, 31

Bond v. United States,

564 U.S. 211, 131 S. Ct. 2355, 180 L. Ed. 2d 269

(2011) .......................................................................... 31

Castro v. United States,

540 U.S. 375, 124 S. Ct. 786, 157 L. Ed. 2d 778

(2003) .......................................................................... 29

Fletcher v. Peck,

10 U.S. (6 Cranch) 87, 3 L. Ed. 162 (1810) ............. 25

Greenlaw v. United States,

554 U.S. 237,128 S. Ct. 2559, 171 L. Ed. 2d 399

(2008) ..................................................................... 17, 28

Gte Sylvania v. Consumers Union of U.S.,

445 U.S. 375, 100 S. Ct. 1194, 63 L. Ed. 2d 467

(1980) .......................................................................... 24

vii

Hollingsworth v. Perry,

558 U.S. 183, 130 S. Ct. 705, 175 L. Ed. 2d 657

(2010) .......................................................................... 22

In re Murchison,

349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942 (1955) ... 25

Ivey v. Bd. of Regents,

673 F.2d 266 (9th Cir. 1982) ..................................... 19

Jacobson v. Massachusetts,

197 U.S. 11, 25 S. Ct. 358 (1905) .............................. 15

Nat’l Fed’n of Indep. Bus. v. DOL, OSHA,

142 S. Ct. 661, 211 L. Ed. 2d 448 (2022) ........... 20, 31

Navy Seal 1 v. Austin,

No. 8:21-cv-2429-SDM-TGW, 2022 U.S. Dist.

LEXIS 31640 (M.D. Fla. Feb. 18, 2022) ................ 20

Prentis v. Atl. Coast Line Co.,

211 U.S. 210, 29 S. Ct. 67, 53 L. Ed. 150 (1908) ..... 21

S. Bay United Pentecostal Church v. Gavin Newsom

140 S. Ct. 1613, 207 L. Ed. 2d 154 (2020) ................15

Sambrano v. United Airlines, Inc.,

No. 21-11159, 2022 U.S. App. LEXIS 4347

(5th Cir. Feb. 17, 2022) ............................................. 20

viii

Sprint Commc’ns Co., L.P. v. APCC Servs.,

554 U.S. 269, 128 S. Ct. 2531, 171 L. Ed. 2d 424

(2008) .......................................................................... 23

Steel Co. v. Citizens for a Better Env't,

523 U.S. 83, 118 S. Ct. 1003, 140 L Ed. 2d 210

(1998) .................................................................... 23-24

TransUnion L.L.C. v. Ramirez,

141 S. Ct. 2190, 210 L. Ed. 2d 568 (2021) ............... 23

Tumey v. Ohio,

273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927) ... 25

United States v. Campbell,

No. 16-10128, 2022 U.S. App. LEXIS 4317

(11th Cir. Feb. 16, 2022) ..................................... 27, 28

United States v. Sineneng-Smith,

140 S. Ct. 1575, 206 L. Ed. 2d 866 (2020) .......passim

Wood v. Milyard,

566 U.S. 463, 132 S. Ct. 1826, 182 L. Ed. 2d 733

(2012) .......................................................................... 28

Constitutional Provisions

U.S. Const. art. III .................................................passim

U.S. Const. amend. V ....................................................25

U.S. Const. amend. X ....................................................... 2

ix

U.S. Const. amend. XIV ............................................... 25

Federal Statutes

28 U.S.C. § 1254 ............................................................... 1

State Statutes

Wash. Rev. Code § 43.06.220 .......................................... 5

Rules

E.D. Wash. Local Civil Rule 7 ......................................... 7

Fed. R. Civ. P. 12(b)(6) .................................................... 7

Fed. R. Civ. Pro. 7 .......................................................... 10

Supreme Court Rule 10 ................................................. 22

Other Authorities

Blume, F., Annotated Justinian Code,

2nd edition, online: University of Wyoming ..... 25, 26

Clifford S. Fishman, Old Testament Justice,

51 Cath. U. L. Rev. 405 (2002) ................................. 25

Code Just. 3.5.1

(Emperors Valens, Gratian, Valentinian) (376) ..... 25

Day v. Savage,

Hobart (3d ed. i67i)85(K.B. 1614) ........................... 26

x

Dr. Bonham’s Case,

8 Colo. 107a, 118a, 77 Eng. Rep. 638 (C.P. 1610) .. 26

Earl of Derby’s Case,

12 Co. Rep. 114, 77 Eng. Rep. 1390 (K.B. 1614) ... 26

Garner, B. Black, H. C.,

Black’s Law Dictionary (10th ed. 2014) .................. 28

Gelinas, F., The Dual Rationale of Judicial Independence

(March 23, 2011). Constitutional Mythologies: New

Perspectives on Controlling the State, Alain Marciano,

ed., New York: Springer, 2011 , (2011) .................. 24, 26

Gerber, D.,

A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606–1787

(Oxford Univ. Press 2011) ....................................... 24

Hamilton, A., Federalist Paper No. 80 (1788) ............. 27

Madison, J., Federalist Paper No. 10 (1787)

......................................................................... 23, 26, 32, 33

Madison, J., Federalist No. 51 (February 8, 1788) ....33

Resnik, J., Managerial Judges,

96 Harv. L. Rev. 374, 380-81 (1982) ........................ 27

1

PETITION FOR A WRIT OF CERTIORARI

Jay J. John, Appellant below, respectfully petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Ninth Circuit

in this case.

DECISIONS BELOW

The Memorandum decision of the Ninth Circuit

Court of Appeals is not reported, but is reproduced at

Pet. App. 1 at 3a–6a. The Order denying the petition for

panel rehearing and en banc review is not reported, but

is reproduced at Pet. App. 3 at 8a–9a.

The district court’s Order granting Johns adversaries’ Motion to Dismiss for failure to state a claim is

not reported, but is reproduced at Pet. App. 4, at 10a–

21a. The district court’s order entitled “Order denying

John’s counsel’s motion to withdraw and granting motion for extension of time to respond to Motion to Dismiss” is also not reported, but is reproduced at Pet. App.

5 at 22a–25a.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1) as this Petition is being timely filed as

per the Order by Justice Kagan extending the time to

file this petition to 150 days after denial of John’s request for en banc review. See Pet. App. 2 at 7a.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case is based on the Separation of Powers and

Federalism structures of our government. The text of

Article III, §§ 1 and 2, and the text of the Tenth Amendment are set forth in the Pet. App. 8 at 53a.

There is no dispute that Governor Inslee’s Emergency Proclamations, orders, and guidance related to

the COVID-19 Pandemic were in effect during this time

period. The Emergency Proclamations have been reproduced at Pet. App. 9 at 54a–59a (Proclamation relating to “High Risk Employee Workers’ Rights”) and Pet

App. 10 at 60a–67a (Proclamation implementing the

“Stay Home-Stay Healthy” emergency Order).

3

STATEMENT OF THE CASE

This case was originally filed on August 28, 2019,

by Jay J. John in the Washington State Superior Court

for Benton County. Although signed by Mr. John, the

Complaint in this action was actually prepared by persons in New York State illegally practicing law in Washington. These drafters solicited desperate homeowner

debtors facing foreclosures, like the Johns, to buy their

unlawfully and not so competently prepared legal pleadings as a way of lining their own pockets.

As one would expect, the Johns’ Complaint, which

was conceived in barratry 1 was not well pleaded; and after filing the Complaint the Johns, who had little money,

nonetheless looked for an attorney in Washington State

to help them. This was not an easy task because there

were few lawyers left in Washington State at this time

who practiced law in this field. See Pet. App. at 46a–47a.

Cf. 28a

After much effort, the Johns obtained an elderly

attorney in Washington State to represent their interests. That attorney proposed the Johns file a land title

registration application under Washington’s “Registration of land titles (Torrens Act)”, Chapter 65.12 Revised

Code of Washington. And the John’s hired the elderly

lawyer to do so for them.

After the old attorney informed the attorney for

the deed of trust, i.e., Quality Loan as Trustee, that he

would be filing a Torrens application for the Johns,

1

“Barratry is the act of encouraging lawsuits between others in order to create legal business for one’s personal gain and profit. Barratry is illegal in all U.S. states. . . .” Cornell Law School definition

of “Barratry” at: https://www.law.cornell.edu/wex/barratry

4

Deutsche Bank National Trust Company (Deutsche)

and Nationstar Mortgage LLC (Nationstar) removed

the case, i.e., the one prepared by barrators and filed

with the Benton County Superior Court, to the United

States District Court for Eastern Washington on January 15, 2020. This was just five days before the first laboratory confirmed COVID-19 patient in the United

States was identified as being hospitalized less than 300

miles away in Everett, Washington. The Johns, through

their new attorney contested that removal and sought

remand.

On February 29, 2020, while motion practice regarding removal and remand was ongoing, Governor

Inslee declared a State of Emergency related to the

COVID-19 virus for all counties in Washington State.

On March 13, 2020, President Trump issued Proclamation 9994 declaring the COVID-19 Outbreak a National Emergency.

On March 18, 2020, Judge Thomas O. Rice, then

the Chief Judge of the United States District for the

Eastern District of Washington, signed General Order

No. 20-101-1 which stated in pertinent part:

This General Order is being issued in response to the evolving public health crisis

caused by the outbreak of the Coronavirus

Disease (COVID-19) and the recently-declared national emergency. This Court finds

it necessary in the interest of justice to take

proactive measures to slow the spread of the

virus and ensure the safety of litigants, counsel, . . . [and others, including] the communities of this district.”

5

The Order also stated: “5. Counsel need not object

to this General Order to preserve any issues for litigation, including an alleged violation of a client’s constitutional rights, as objections will be required in each individual case;” and “7. Hearings in civil or criminal

matters . . . set without oral argument are not affected

by this General Order; . . .”

These provisions were amended a day later on

March 19, 2020, to additionally effectuate the closure of

federal courthouses to the public in the Eastern District

of Washington. (General Order No. 20-101-2) These provisions have remained in effect since then. See General

Order No. 20-101-3 Extended.

On March 23, 2020, Governor Inslee issued Proclamation 20-25 which was entitled “Stay Home-Stay

Healthy.” Pet. App. 10. This Proclamation contained

several “whereas” clauses justifying the Order. Pet.

App. at 60a–62a. The second whereas clause stated:

“WHEREAS, as a result of the continued worldwide

spread of COVID-19, its significant progression in

Washington State, and the high risk it poses to our

most vulnerable populations, I . . . [am] exercising my

emergency powers under RCW 43.06.220 by prohibiting

certain activities…” Pet. App. at 60a. (Emphasis Supplied)

The Proclamation then orders:

“. . . based on the above situation and under

the provisions of RCW 43.06.220(1)(h), to

help preserve and maintain life, health, property or the public peace, and to implement

the Stay Home—Stay Healthy Order described above, I hereby impose the following

necessary restrictions on participation by all

6

people in Washington State by prohibiting

each of the following activities by all people

and businesses throughout Washington

State, . . .

1. All people in Washington State shall immediately cease leaving their home or place

of residence except: . . . for employment in

essential business services.

Pet. App. at 62a–64a.

Employment in essential business services was defined to include “an essential employee performing work

for an essential business as identified in the Essential

Critical Infrastructure Workers list.” Pet. App. at 64a.

That list of essential businesses included: “[p]rofessional services, such as legal or accounting and tax preparation, when necessary to assist in compliance with legally mandated activities and critical sector services.”

The Proclamation also required all people in

Washington State to immediately cease participating in

all public and private gatherings and multi-person activities for social, spiritual, and recreational purposes, regardless of the number of people involved. Pet. App. at

65a.

The Proclamation also stated: “non-essential businesses are strongly encouraged to immediately cease

operations other than performance of basic minimum

operations but must do so no later than midnight on

March 25, 2020.” Pet. App. at 66a.

7

The Proclamation warned “[v]iolators of this order

may be subject to criminal penalties pursuant to RCW

43.06.220(5).” 2 Pet. App. at 67a.

On March 27, 2020, President Trump issued Executive Order 13911 delegating additional authority under

the defense productions act with respect to health and

medical resources to respond to the spread of COVID-19.

On March 28, 2020, President Trump issued a

Memorandum providing federal support for Governors’

use of the National Guard to Respond to COVID 19.

On May 14, 2022, the district court denied Johns’

motion to remand.

Four days later on May 19, 2020, Deutsche Bank

and Nationstar filed a Motion to Dismiss John’s case for

failure to state a claim pursuant to Fed. R. Civ. Pro

12(b)(6). Under the district court’s Local Civil Rule

(LCivR) 7(c)(2)(B)(ii) the John’s were required to file a

response to this type of motion, i.e., a dispositive motion,

within 21 days.

On June 9, 2020, Governor Inslee issued Proclamation 20-46.1 “High-Risk Employees–Workers’ Rights.”

Pet. App. 9. The second “whereas clause” in this Proclamation was the same as the whereas clause previously

quoted herein. Compare Pet. App. at 54a with 60a.

2

This Proclamation was in effect when the district court denied the

elderly attorney’s motion to withdraw or for a continuance to respond to the motion to dismiss until a time when he was competently able to do so. As this Court can see there is nothing in the

Proclamation requiring persons who are vulnerable to the virus to

continue working if they are employees of an essential business.

Moreover, because all the employees of the not-for-profit religious

entity SLAC had been furloughed at that time there was no basis

for assuming the business was operational at this time.

8

Other “whereas clauses” supporting the proposition that

high-risk workers were not required to work for essential or non-essential employers during this time period

include:

WHEREAS, the Centers for Disease Control and Prevention reports that groups at

higher risk of severe illness or death from

COVID-19 are those over 65 years of age,

and people of any age who have certain

chronic underlying health conditions; and

WHEREAS, the threat of severe illness

and death from COVID-19 to Washington

State’s public and private sector workers

who are in these higher-risk groups is recognized, and action must be taken to protect them from working conditions that require them to be placed in situations where

they may be exposed to infection by the virus that causes the COVID-19 disease; and

WHEREAS, during this critical period of

virus spread throughout our state, public

and private sector workers in these highrisk groups must have access to accommodations to prevent greater risk of contracting COVID-19, and these decisions cannot

be left solely to the employer; and

WHEREAS, to protect our public and private sector workers in these high-risk categories from the significant life, health and

safety risks of the COVID-19 disease, it is

necessary that employers seek any and all

options for alternative work arrangements

9

and that these workers are protected from

job displacement, loss of employment benefits, and any requirement that they use personal accrued leave before applying for any

available unemployment benefits; and . . .

Pet. App. at 55a.

Proclamation 20-46.1 explains that as a result of

the above circumstances all employers, public and private, are prevented “from failing to provide accommodation to high-risk workers, as defined by the Centers

for Disease Control and Prevention, which protects

them from risk of exposure to COVID-19 disease on the

job.” Pet. App. at 56a–57a. This Proclamation also prohibited “all public and private employers in Washington

State and labor unions representing employees in

Washington State from applying or enforcing any employment contract provisions that contradict or otherwise interfere with the above prohibitions and the intent

of this Proclamation.” Pet. App. at 58a.

This Worker Rights Proclamation also warns that

violators may be subject to criminal penalties. 3 Pet. App.

at 59a.

The “President’s Coronavirus Guidelines for

America” during this time period instructed: “If you

are an older person, stay at home and away from other

people.” During this time period news articles stated:

“CDC tells people over 60 who have chronic diseases

like diabetes to stock up on goods and buckle down for

3

The Johns assert this “High–Risk Employees Proclamation” indicates that the “Stay at Home” Proclamation did not contemplate

that employees vulnerable to the virus could be forced to work because they were employed by an essential business as there is nothing in Governor Inslee’s Proclamation suggesting this.

10

a lengthy stay at home.” The Guidelines also instruct

that “People with diabetes, heart disease, lung disease,

and other serious underlying conditions are more likely

to develop serious outcomes, including death.”

And the “President’s Coronavirus guidelines for

America” instructed:

If you are an older person, stay home and

away from other people.

If you are a person with a serious underlying

health condition that can put you at an increased risk (for example, a condition that

impairs your lung or heart function or weakens your immune function), stay at home and

away from other people.

When it became obvious to Johns’ counsel on

June 16, 2020, that he would not be able to competently

respond to the creditors’ Motion to Dismiss because of

the impact the Pandemic was having on him personally

because of his age, medical conditions, and the location

of his home, he filed a motion for relief pursuant to Fed.

R. Civ. Pro. 7. This Court Rule states:

(1) In General. A request for a court order

must be made by motion. The motion must:

(A) be in writing unless made during a hearing or trial;

(B) state with particularity the grounds for

seeking the order; and

(C) state the relief sought.

The motion sought the Court’s approval for the attorney to withdraw as the Johns’ attorney because of the

Pandemic or “alternatively, to delay the briefing re-

lated to Defendant’s Motion to Dismiss until such

11

time as [the attorney] can recoup from the impact of

the COVID19 Pandemic on his ability to practice law.”

(Emphasis Supplied). See Pet. App. at 26a–38a (motion).

The Local Court Rules for the Eastern District

provided that a response memorandum should be filed

if the motion were opposed, see LCivR 7(b), and that a

reply Memorandum could be filed, if necessary, see

LCivR 7(c), thereby ensuring all parties had an opportunity to make such adversarial presentations as are

customarily made in this type of motions practice.

The motion to withdraw explained that the old and

housebound attorney, Scott Stafne, had “good cause” to

withdraw based on his status as a person particularly

susceptible to the virus. See Pet. App. at 27a–37a. The

withdrawal (and alternative request for an extension of

time until he could competently represent his clients)

were both premised on the emergency Pandemic Proclamations, Orders, and guidance previously discussed

and the attorney’s susceptibility to the virus because of

his age and underlying medical conditions, which included diabetes, immune dysfunction disease, and moderate heart disease. Id. Indeed, the attorney even disclosed to the Court that his T cell count was below 300,

see Pet. App. p. 39a.

Because virtually all the evidence applicable to

Johns’ motion to withdraw or continue Deutsche Bank’s

and its servicer’s Motion to Dismiss is included in the

attorney’s eleven-page undisputed declaration, it is included as Pet. App. 7 at 39a–53a. As can be seen, the elderly attorney’s declaration established that when the

motion was filed the Johns’ attorney was a 71-year-old

man who was an employee of a not-for-profit religious

organization who earned approximately $14.00 per hour

12

doing legal work for “those in need such as the hungry,

the sick, the poor, the homeless, the indebted, the enslaved, the vulnerable, and all others who are unfairly

prevented from exercising their God-given natural

rights.” Pet. App. 7. The undisputed declaration also established Johns’ attorney and the paralegal helping him

represent the Johns were then unemployed and sheltering at their homes because of the Pandemic. Id. The attorney’s declaration also established that because of the

location of his home he did not have access to those services—primarily the internet for legal research—that

he needed to practice law. Id. Thus, the uncontroverted

evidence before the district court and court of appeals

established that the attorney’s employer’s business operations were shut down until at least August 1, 2020,

and that the attorney was unemployed at least until

then, i.e., August 1, 2020, because of the Pandemic.

The attorney’s declaration also included copies of

emergency proclamations and orders related to the

COVID-19 Pandemic issued by the President for the

Nation and by Washington’s Governor for that state’s

inhabitants.

Among other things, the attorney testified:

18. After careful reflection about these executive proclamations I believe they are premised on the notion that because of my age and

other medical conditions I am more susceptible to contracting the COVID-19 coronavirus

than are most people; That if I contract the

virus because of this susceptibility I will put

others in the community at risk to the virus

by exposing them to it; That in order to

guard against this risk I am required by my

13

community to shelter at home until the virus

has subsided to the point where the risk of

my contracting the disease is acceptable; and

That I am also protected against others forcing me to work until after such time as my

local community, through my State Government, has determined that it is safe for me,

as a vulnerable individual, to return to work.

*

*

*

23. It is my position here that the Pandemic

and the facts related thereto with regard to

me provide “good cause” for my withdrawal

from this case because: (1) this Court has no

authority under the structural provisions of

the United States Constitution, i.e., Federalism, the Separation of Powers, and Checks

and Balances, to order me to perform work

in violation of properly issued emergency

laws and regulations by the properly designated local officials exercising the police

power of Washington within the borders of

that State’s authority; (2) the emergent nature of the harm posed by this Pandemic to

myself and the local community at large is

presently more pressing to the community

than the benefit of forcing me to represent

the Plaintiffs in this case, where because of a

number of factors, beyond my control, it is

likely that my legal representation cannot be

effective.

*

*

*

30. . . . [G]iven the Pandemic, my medical conditions, my present difficulties working, and

14

other cases having higher priority over

Plaintiffs’ case when I return to work, I do

not think there is much I can do to help these

Plaintiffs at this time because they are presently tied to a complaint prepared by those

engaged in the unauthorized practice of law

that is, in my view, unwinnable. In order to

help these clients, I would need to first have

the opportunity to amend that complaint to

raise more valid causes of action, . . . .Then I

would need time to prepare an adequate response based on the facts and law to Defendants’ motion to dismiss which was filed when

the shelter at home orders were applicable to

me.

31. I would agree not to withdraw from this

case if this Court would afford me a reasonable time to prepare the legal pleadings in

support of Plaintiffs’ motion to amend their

complaint and in response to Defendants’

motion to dismiss plaintiffs’ complaint. Such

reasonable time should take into account the

application of government laws, regulations,

and orders applicable to me and my local

community related to the Pandemic; consideration of whether I have access to a workplace conducive to practice law consistent

with that of my adversaries; and consideration of my health to prepare such briefing—

or such other conditions as this Court may

decide that will allow my clients an opportunity to competently present their best legal

15

and/or equitable positions under the United

States and Washington Constitution.

Pet. App. at 43a–52a.

Without waiting for any response—either an opposition or non-opposition—from Deutsche Bank and

Nationstar pursuant to LCivR 7(c), the district court

denied the specific relief the Johns’ attorney had requested. See Pet. App. at 22a–25a.

The word “denied” in the preceding sentence is

emphasized to draw attention to the fact that while the

court’s Order may be entitled: “Order denying John’s

Counsel’s Motion to Withdraw and Granting Motion for

Extension of Time to Respond to Motion to Dismiss”

that Order did not grant any part of the relief requested

by the motion. Id.

The alternative relief requested was a meaningful

opportunity for the attorney to competently represent

his clients after he no longer had to stay at home to comply with emergency regulations promulgated by Washington State and to protect himself. See motion at Pet.

App. 6. Notwithstanding that the Johns and their attorney claimed this relief was required by the federal structure of our government, citing South Bay United Pentecostal Church v. Gavin Newsom, 140 S, Ct. 1613 (2020)

and Jacobson v. Massachusetts, 197 U.S. 11 (1905), because state authorities, not unelected federal judges, 4

In Newsom, this Court observed that where state emergency regulations are appropriately enacted, “they should not be subject to

second-guessing by an unelected federal judiciary, which lacks the

background, competence, and expertise to assess public health and

is not accountable to the people.” S. Bay United Pentecostal Church

v. Newsom, supra. at 1613–14.

4

16

had the authority to issue emergency regulations applicable to local communities, the district court specifically

refused to consider this structural argument. Compare

Order, Pet. App. 5, with Motion, Pet. App. 6. Indeed, the

district court outright admits this:

The Court is sympathetic to Mr. Stafne’s

health concerns and desire to abide by public

health guidance. And the Court is not considering the State’s authority to exercise its police powers to implement laws about public

health during the Pandemic.

Pet. App. at 23a–24a.

Because the Johns and their counsel believed the

district court Judge was required to consider their motion under the party presentation principle underlying

our adversary system they appealed his Order to the

Ninth Circuit Court of Appeals, see Pet. App. 11 at 68a,

based on the Collateral-Order Doctrine because the attorney could not competently respond to the motion to

dismiss within this time frame. See Ashcroft v. Iqbal,

556 U.S. 662, 671 (2009) (The orders within this narrow

category “are immediately appealable because they finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to

be denied review and too independent of the cause itself

to require that appellate consideration be deferred until

the whole case is adjudicated.” (cleaned up)).

The Eastern District court accepted the Johns’

$505.00 filing fee (which was not a small amount of

17

money for them) but refused to process their appeal to

the Ninth Circuit Court of Appeals. See Pet. App. 11. 5

And then, when the Johns’ attorney could not file

a response to the motion to dismiss, which had been unilaterally rescheduled by the district court without consideration of input from the parties, the district court

dismissed the Johns’ admittedly flawed Complaint prepared by barrators, see supra., against Deutsche Bank

and Nationstar without providing the Johns any leave to

amend. Pet. App. at 21a.

This Order dismissing the John’s case against

Deutsche Bank and Nationstar was also timely appealed

by the Johns, who were required to pay a second $505.00

filing fee to the district court to do so.

Following briefing the court of appeals for the

Ninth Circuit ruled specifically with regards to Johns’

party presentation arguments:

1. The district court did not violate the principle of party presentation. See United States

v. Sineneng-Smith, 140 S. Ct. 1575, 1579, 206

L. Ed. 2d 866 (2020) (explaining that under

the principle of party presentation “we rely

on the parties to frame the issues for decision

and assign to courts the role of neutral arbiter of matters the parties present” (quoting

Greenlaw v. United States, 554 U.S. 237, 243,

128 S. Ct. 2559, 171 L. Ed. 2d 399 (2008))).

The district court decided only the issues

Stafne raised and did not reach claims,

5

And notwithstanding that both courts were aware of the fact that

the Johns’ money had been inappropriately taken by them, never

sought to return their money to them.

18

issues, or theories that the parties themselves did not present. 6 In addition, the district court had the authority to rule on

Stafne’s motion without waiting for Defendants to file a response.

Pet. App. at 4a.

Although the Panel does not discuss the following

rulings as relating to the party presentation principle,

the Johns assert these rulings also violate that principle:

2. We reject John’s contention that the district court failed to consider Stafne’s “personal situation” and the State’s COVID-19

orders. First, there is nothing in the record

to suggest that the court failed to consider

Stafne’s contentions, and we assume that the

court did so. 7 Second, the district court was

not required to reject Stafne’s factual contentions on the record. See Fed. R. Civ. P.

6

The John’s assert the district Court outright declined to consider

either the factual or legal issues the Johns and their attorneys

properly raised by motion. See supra., pp. 16 (Citing to district court

decision stating: “[a]nd the Court is not considering the State’s authority to exercise its police powers to implement laws about public

health during the pandemic.” Pet. App. at 23a–24a)

7

As to the district court’s failure to consider the Johns’ legal arguments, see note 6, supra. As to the district Court’s failure to consider Stafne’s personal circumstances see district Court’s June 24

Order, at Pet. App. 5, which does not even acknowledge the attorney’s susceptibility to the virus much less discuss how this affects

application of the emergency regulations to him and whether the

federal judge was required to comply with the emergency regulations in granting the motions.

19

52(a)(3) (“The court is not required to state

findings or conclusions when ruling on a motion under Rule 12 or 56 or, unless these

rules provide otherwise, on any other motion.”). Third, district courts are not required

to state on the record their reasons for rejecting every argument made by a moving

party in support of a motion. E.g., Ivey v. Bd.

of Regents of Univ. of Alaska, 673 F.2d 266,

269 (9th Cir. 1982).

3. Although John argues that the district

court lacked the constitutional authority to

order Stafne to work in contravention of the

State’s public health orders, John has not

shown any conflict between the State’s orders

and the district court’s Order. The State’s orders required Washington residents to stay at

home, but included an exception for essential

workers, including “[p]rofessional services,

such as legal or accounting and tax preparation services, when necessary to assist in compliance with legally mandated activities and

critical sector services.” Office of the Governor, Proclamation 20–25, at p. 3 & Appendix,

at p. 11 (Mar. 23, 2020). 8

Pet. App. at 5a

8

The Johns assert the purpose for the “essential business” exception to the stay-at-home regulations was to allow professionals to

work if they could do so safely; not to give federal judges the authority to require elderly lawyers, vulnerable to the virus, to represent clients in a way that would be unsafe for the lawyer and of little

value to the client.

20

On June 24, 2020, when the district court denied

the Johns’ lawyer’s motion to withdraw or for an extension of time until he could competently and safely respond to the motion to dismiss approximately130,000

people had already died from the COVID-19 coronavirus. But as this Court knows when deaths and hospitalizations arguably attributable to the Pandemic dramatically increased in the next few months additional

emergency regulations were promulgated by the federal

government, states, municipalities, and private employers which required employees to take steps, like those

the attorney had requested he be allowed to take, to protect employees, their co-workers, and their communities

from spreading the virus. See e.g., Nat’l Fed’n of Indep.

Bus. v. DOL, OSHA, 142 S. Ct. 661 (2022)(involving

OSHA’ emergency mandate requiring applicable workers in large businesses to obtain COVID vaccinations in

order to work); Biden v. Missouri, 142 S. Ct. 647

(2022) (involving the Secretary of Health and Human

Services emergency regulations that mandated employees of facilities treating Medicare and Medicaid patients

susceptible had to be vaccinated against COVID-19);

Sambrano v. United Airlines, Inc., No. 21-11159, 2022

U.S. App. LEXIS 4347 (5th Cir. Feb. 17, 2022) (involving United Airlines requirement that its employees

must be vaccinated); Navy Seal 1 v. Austin, No. 8:21-cv2429-SDM-TGW, 2022 U.S. Dist. LEXIS 31640 (M.D.

Fla. Feb. 18, 2022)(involving Navy Seals objecting to the

Navy’s vaccine mandates.)

Those cases cited above—involving objections to

the legality of emergency regulations—are much different than this case in which an at-risk attorney seeks to

rely on emergency regulations the validity of which no

21

one contests to protect his health and the health of the

community.

REASONS FOR GRANTING THE PETITION

A. Review should be granted because the lower courts

failed to conduct a judicial inquiry

Most people familiar with this Nation’s adversarial

system of justice understand that after fact-finding is

performed, the law must be applied to those facts found

to exist. It is this two-step process which sets the exercise of judicial power apart from the other separated

powers of our government.

As Justice Holmes explained: “[a] judicial inquiry

investigates, declares and enforces liabilities as they

stand on present or past facts and under laws supposed

already to exist. That is its purpose and end.” Prentis v.

Atl. Coast Line Co., 211 U.S. 210, 226 (1908).

Review of this case should be granted because:

(1) the district court did not perform a judicial inquiry within the meaning of the separation of powers when ruling on the Johns’

motions because (a) it failed to apply the law

to the undisputed facts set forth in the attorney’s declaration, see Pet. App. 7, and (b) did

not consider the presentations of the adverse

parties, who may not have even opposed

these motions, in denying the relief the

Johns’ requested; and

(2) the Court of Appeals affirmed this decision without consideration of whether the

district court properly applied the law to

22

those undisputed facts in the record that the

Johns presented in support of their motion.

Thus, the Johns assert review is appropriate because the Court of Appeals has sanctioned such a departure from the appropriate course of judicial proceedings

by the district court, as to call for an exercise of this

Court’s supervisory power. See Supreme Court Rule

10(a). See also Hollingsworth v. Perry, 558 U.S.

183(2010) (“This Court’s interest in ensuring compliance

with proper rules of judicial administration is particularly acute when those rules relate to the integrity of judicial processes. Id. at 196). Cf. United States v. SinengSmith, 140 S. Ct. 1575, 1579 (2020)(This Court holds the

Ninth Circuit has failed to comply with the party presentation principle applicable to this Nation’s adversary

system of justice by ordering amici to make arguments

the parties had not.)

B. In the United States judicial system motions should

be decided based on the presentations of adverse parties

In Sineng-Smith, supra., this Court unanimously

confirmed prior decisions holding that “in both civil and

criminal cases, in the first instance and on appeal . . ., we

rely on the parties to frame the issues for decision and

assign to courts the role of neutral arbiter of matters the

parties present.” Id. at 1759.

The Johns urge this Court to accept review of this

case because the district court ignored the party

presentation principle by not considering the

presentations of fact and law by the adverse parties

when deciding the judicial inquiry raised by Johns’

motion.

23

Why didn’t the district court judge consider what

the parties had to say?

What interest did the district court judge have in

deciding the motion the way he did without consideration of the parties’ positions on these motions?

Since at least the time of the American Revolution, courts in the United States have employed a system of procedure that depends

upon a neutral and passive fact-finder (either

judge or jury) to resolve disputes on the basis of information provided by contending

parties during formal proceedings. This sort

of dispute-resolving mechanism is most frequently referred to as the adversary system.

Stephen Landsman, The Adversary System: A Description and Defense (1984)

This Court has often observed that history and

tradition define the meaning of Article III judicial

power. See e.g., TransUnion LLC v. Ramirez, 141 S. Ct.

2190, 2203 (2021)(“As Madison explained . . . federal

courts . . . decide only matters ‘of a Judiciary Nature.’ 2

Records of the Federal Convention of 1787, p. 430 (M.

Farrand ed. 1966)”). Sprint Communs. Co., L.P. v.

APCC Servs., 554 U.S. 269, 274 (2008) (“[H]istory and

tradition offer a meaningful guide to the types of cases

that Article III empowers federal courts to consider.”);

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102

(1998) (“Article III, § 2 of the Constitution extends the

judicial Power of the United States…[to] cases and controversies of the sort traditionally amenable to and resolved by the judicial process” citing Muskrat v. United

States, supra, 219 U.S. 346 at 356-357.” (cleaned up));

24

Gte Sylvania v. Consumers Union of United States, 445

U.S. 375, 382 (1980) (“The purpose of the case-or-controversy requirement is to limit the business of federal

courts to questions presented in an adversary context

and in a form historically viewed as capable of resolution

through the judicial process.”)(cleaned up)).

This Court’s repeated statements that our system of justice relies on the parties, i.e., adversaries in a

case or controversy, to frame the issues for decision and

assigns to courts the role of neutral arbiter of the matters the parties present, describe aspects of that judicial

power which existed at the time our national Constitution was ratified.

1. Judicial Neutrality

History demonstrates that long ago—well before

the founding of the United States—civilized societies determined that judges must be neutral decision-makers

and that our founders understood this as an aspect of

that judicial power referenced in Article III. See e.g.,

Scott Douglas Gerber, A Distinct Judicial Power: The

Origins of an Independent Judiciary, 1606–1787 (Oxford

Univ. Press 2011) (Part One of Gerber’s Book, at pp 3–

41, demonstrates the ancient origins of that judicial neutrality which is incorporated in Article III. Part Two of

Gerbers’ book, at pages 42–321, chronicles the history

relating to each of the thirteen states during this time

period.); See also Gelinas, Fabien, The Dual Rationale

of Judicial Independence at 9–10 (March 23, 2011). Con-

stitutional Mythologies: New Perspectives on Controlling the State, Alain Marciano, ed., New York: Springer,

25

2011 9 (discussing ancient roots of the concept of adjudicatory justice, which trace back to Egypt’s First Intermediate Period and also appear in Babylonian inscriptions about this same period of time.) See also Clifford

S. Fishman, Old Testament Justice, 51 Cath. U. L. Rev.

405 (2002)(Explaining the ancient basis for modern day

law and procedure).

The classic principle of judicial neutrality established in antiquity and referenced early on by this Court

as a Separation of Powers principle applicable to the exercise of judicial power is “no one shall be his own judge

or decide his own case.” See Fletcher v. Peck, 10 U.S. (6

Cranch) 87, 133, 3 L. Ed. 162, 177 (1810) (stating that

this principle of justice applicable to courts and judges

is universally acknowledged.) 10

And history demonstrates that this principle was

part of Roman statutory law as early as 376 AD, Code

Just. 3.5.1 (Emperors Valens, Gratian and Valentinian

(376) See English translation of the Justinian Codex

from Fred H. Blume, “Annotated Justinian Code”, edited by Timothy Kearley, 2nd edition, online: University

9

Available at SSRN: https://ssrn.com/abstract=1761436

Later on in Tumey v. Ohio, 273 U.S. 510, 522-32 (1927) Chief Justice Taft recognized this separation of powers principle, no one shall

be his own judge, was also a source of Due Process protections afforded litigants by the Fifth and Fourteenth Amendments. See

also In re Murchison, 349 U.S. 133, 136 (1955) (Recognizing that

“[o]ur system of law has always endeavored to prevent even the

probability of unfairness. To this end no man can be a judge in his

own case and no man is permitted to try cases where he has an interest in the outcome.” (emphasis supplied))

10

26

of Wyoming. 11

This principle of Roman law became a part of European legal principles applicable to the exercise of judicial power in both civil and common law courts well before the founding of the United States. In France, a

nation which has an inquisitorial justice system, the

principle of judicial neutrality has been observed since

medieval times and was codified by edicts in 1493 and

1667, which eventually came to be incorporated into that

nation’s rules of procedure known as Grande Ordonnance de Procédure Civile, also known today as Code

Louis. See e.g., Gelinas, Fabien, The Dual Role of Judicial Independence, supra, at 10–11.

History also reflects that in England, which has an

adversarial system of justice, the principle that a judge

at common law was not competent to adjudicate a matter in which he had a direct financial interest was recognized as early as 1563, see Sir Nicholas Bacon’s Case

(1563) 2 Dyer 220b., and was well established before the

lack of neutral judges in the King’s courts of North

America became a rallying cry for revolution in this Nation’s Declaration of Independence. See e.g., Dr. Bonham’s Case, 8 Co. Rep. 107a, 118a, 77 Eng. Rep. 638, 652

(C.P. 1610); Earl of Derby’s Case, 12 Co. Rep. 114, 77

Eng. Rep. 1390 (K.B. 1614); and Day v. Savage, Hobart

(3d ed. i67i) 85 (K. B. 1614). See also Madison, James,

Federalist Paper No. 10 (1787) (“No man is allowed to

be a judge in his own cause, because his interest would

certainly bias his judgment, and, not improbably,

11

Last accessed on March 3, 2022, at:

http://www.uwyo.edu/lawlib/blume-justinian/_files/docs/Book3PDF/Book%203-5.pdf

27

corrupt his integrity.”); Hamilton, Alexander, Federalist Paper No. 80 (1788) (“No man ought certainly to be a

judge in his own cause, or in any cause in respect to

which he has the least interest or bias.”)

2. Adversary System

It is also evident that at the time the Constitution

was framed and ratified the judicial power of the United

States, like the judicial power of England, was exercised

through an adversarial, as opposed to an inquisitorial,

system of justice. See Article III standing cases cited

above for the proposition that judicial power must be exercised in the context of cases and controversies between adverse parties, supra., at p. 23–24 See also

Landsman, Adversary System, supra. at 18–19. (“From

the 1640s onward the full range of adversarial mechanisms began to grow, and by the end of the 1700s the

adversary system had become firmly established not

only in England but in America, as well.” Id. at 18–

19.); Judith Resnik, Managerial Judges, 96 Harv. L.

Rev. 374, 380-81 (1982) (tracing adversarialism’s history

and observing that “[t]he limits placed on federal judges

by the adversarial system comported with the views of

those who drafted the Constitution”). Cf. United States

v. Campbell, No. 16-10128, 2022 U.S. App. LEXIS 4317,

at *60 (11th Cir. Feb. 16, 2022), Newsom, J and Jordan,

J, Dissenting (suggesting that Article III courts are limited to exercising judicial power within the context of

this Nation’s adversary system of justice. “This is a case

about judicial power and its limits.”)

One of the central features of this Nation’s adversary system is that neutral judges resolve legal issues

“solely based on the evidence and the arguments

28

presented by the parties.” Lon L. Fuller, The Problems

of Jurisprudence, 706 (1949). See also Black’s Law Dictionary (10th ed. 2014) (defining “adversary system” as

“[a] procedural system, such as the Anglo-American legal system, involving active and unhindered parties contesting with each other to put forth a case before an independent decision-maker”).

“Adversary theory suggests that neutrality and

passivity are not only essential to ensure an evenhanded

consideration of each case, but also to convince society

at large that the judicial system is trustworthy.” Landsman, supra., at 3. “Judicial passivity helps to ensure the

appearance of fairness.” Id.

This Court has repeatedly held the principle of

party presentation, i.e., that courts and judges rely on

the parties to frame the issues of decision and assign to

courts the role of neutral arbiter of matters the parties

present, is basic to our—i.e., meaning the United

States’—adversary system. See Sineneng-Smith, 140 S.

Ct. at 1579 (referencing “our adversarial system”);

Wood v. Milyard, 566 U.S. 463, 472 (2012) (referencing

“our adversary system”); Greenlaw v. United States,

554 U.S. 237, 243 (2008) (referencing “our adversary

system”)

Accordingly, federal courts in our system—at the

trial level and on appeal—are required to follow this

principle especially when, as here, it arises at its most

basic level, which is when a request for an order is presented by an adverse party to a federal district court. At

that point, the party presentation principle requires

trial courts through their judges to consider the presentations of all the adverse parties before deciding those

29

judicial inquiries which have been framed by the parties

for decision.

The lower courts’ failures to allow adverse parties

to disputes to make their points and have them considered violate the core values of our adversary system of

justice, including without limitation the goals of 1.)

Truth and Accuracy, See United States v. Campbell,

supra, in **70–71; 2.) Fundamental Fairness, Id. at

**71–72; 3.) Separation of Powers and Judicial Restraint; Id. *72; 4.) Impartiality and its Appearance, Id.

at **72–74; and 5) Acceptance and Settlement. Id. at 74–

75.

C. Supervisory Review is Appropriate

When a district court judge decides a party’s motion sua sponte—without giving adversaries any chance

to respond to that motion pursuant to applicable court

rules allowing such responses—and that decision later

becomes the sole basis for dismissing the movant’s case

with prejudice there has been a clear and unfair violation of the party presentation rule, which this Court

should review pursuant to its supervisory powers. See

e.g., Castro v. United States, 540 U.S. 375, 381-83 (2003).

The Ninth Circuit’s sanctioning of the district

court’s failure to conduct a judicial inquiry consistent

with the party presentation principle is necessary because the Ninth Circuit Panel outright refused to apply

the applicable principle, i.e., courts “rely on the parties

to frame the issues for decision and assign to courts the

role of neutral arbiter of the matters the party present,” as the standard of review applicable to the undisputed facts in the record below.

Instead of observing (1) that the district court

judge did not wait for the presentations of John’s

30

adversaries and therefore ruled without considering the

parties’ presentations, and (2) that the district court

judge granted relief the Johns never sought, and which

was of no use to them, the Ninth Circuit Panel reviewing

the decision below suggests the district court judge

granted the relief the Johns’ requested. “The district

court decided only the issues Stafne raised and did not

reach claims, issues, or theories that the parties themselves did not present.” See Pet. App. at 4a. But as

demonstrated this factual assertion by the appeals court

simply is not true.

The facts before both federal courts below were established by undisputed declarations, see Pet. App. 7.

And they showed Stafne was unavailable to work because of his personal susceptibility to the virus and the

Governor’s stay at home emergency Proclamation during the time the district court judge required him to respond to a motion to dismiss against his clients. Id.

The Ninth Circuit Panel’s stretch to sanction the

district court’s refusal to comply with the party presentation principle—so as to promote the prospect of future

inquisitorial judging of motions based solely on judges’

predilections—is indicated by the Panel’s absurd legal

conclusion based on these facts that Proclamation 20-25

(requiring Washingtonians to shelter at home)—especially when interpreted in light of Proclamation 20-46.1

(relating to High-Risk Workers)—required the old lawyer who is particularly susceptible to COVID infection

to return to work and write a brief for Johns before it

was safe for him to do so.

The Separation of Powers and Federalism claims

the Johns asserted in their motion involved significant

structural issues which they and their attorney had

31

standing to assert under these circumstances because

the loss of their case without an opportunity to litigate

the merits surely constitutes an injury in fact. Bond v.

United States, 564 U.S. 211, 220-24, (2011). And as noted

previously, recent decisions by this Court clearly indicate that it is up to courts exercising Article III judicial

power to determine the enforceability of such emergency regulations under the Constitution and laws of

this Nation. Compare Biden v. Missouri, supra., (Majority of this Court stays injunction against emergency regulations requiring vaccination of healthcare workers

who care for older persons particularly susceptible to

contracting the virus because regulations are likely

within the agency’s authority); with Nat’l Fed’n of Indep. Bus. v. DOL, OSHA, supra. (Majority denies stay

of injunction against OSHA’s emergency regulations requiring virtually all employees of employers with at

least 100 employees be vaccinated because the government would likely lose on the merits because contracting

COVID was not a work-related danger, but a universal

risk of daily life.)

This Court should also exercise its supervisory

power to review the Ninth Circuit’s decision in this case

because of the Ninth Circuit’s nonsensical result. The

Ninth Circuit’s decision that vulnerable persons, like the

old lawyer suffering from various health conditions, cannot protect themselves and their community from the

impact of a Pandemic by complying with emergency

regulations requiring them to stay home suggests that

such regulations have no purpose. Or at least that Article III judges can ignore ostensibly valid regulations at

will, without ever considering whether they have any

regulatory force.

32

Additionally, this Court should exercise supervisory review herein because the Ninth Circuit’s factually

unsupported legal analysis affirming the wholly factually and legally unsupported decision of the district

court refusing to consider the facts and law relating to

the Johns’ motion invites observers of this judicial decision-making process to question what stake these

judges had in this particular case, or this particular

type of case, so as to cause these courts through their

judges to ignore the usual and accustomed prerequisites

for exercising Article III judicial power.

This is because these federal courts acting through

their judges have not functioned—and do not appear to

have functioned—as passive, neutral arbiters deciding

those issues the parties have framed for resolution.

Why did these particular judges so aggressively

attempt to ignore the facts and law related to the judicial

inquiry these debtor litigants and their attorney asked

the federal courts to resolve?

The Johns assert the most likely cause of these

judges’ rulings denying their motion based the Separation of Powers and Federalism structures of or government is judicial bias. If this is not so, then why have

these judges ignored the most basic aspects of our judicial system?

James Madison explained in The Federalist No. 10

the problem which this case appears to present. This

case involves a classic confrontation between creditors

and debtors, which are part of those factions of humanity which have existed since the dawn of time. “Those

who hold, and those who are without property, have ever

formed distinct interests in society.” See Madison,

James, The Federalist No. 10 (1787).

33

Madison opined in Federalist No. 10 that one of

the best ways to deal with the conflict between such factions is to provide both factions with an opportunity to

obtain justice. “It is a question to which the creditors are

parties on one side and the debtors on the other. Justice

ought to hold the balance between them.” Notwithstanding that Madison’s primary focus in Federalist

No. 10 was on the benefits a representative legislature

may provide in this regard, Madison observed with regard to the judicial branch of government that “[n]o man

is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” See supra., p. 26–27

The People of this Nation rely on our whole government, especially our courts to establish justice. “Justice”, Madison observed in Federalist No. 51 (February 8, 1788) “is the end of government. It is the end of

civil society. It ever has been and ever will be until it is

obtained, or until liberty be lost in the pursuit.”

When those occupying positions in government,

especially judges, betray those expectations of the People that it is possible for individuals in all factions to obtain justice in the same manner as their adversaries with

regard to such necessities as shelter and food the result

is a well-deserved resentment against this Nation because its officials do not provide the same justice for all.

See e.g., Frederick Douglass, “Country, Conscience,

and the Anti-Slavery Cause : An Address Delivered in

New York, New York, May 11, 1847.” 12 See also Pet.

12

Last accessed on March 5, 2022, at Yale MacMillan Center:

34

App. at 48a–51a. (Describing the effects of taking peoples’ homes from them.)

Thus, supervisory review should also be granted in

certain types of cases involving debtors like the Johns

because the decisions of the lower courts have allowed a

result that is not consistent with–and clearly appears

not be consistent with—the legitimate exercise of judicial power under Article III pursuant to our adversarial

system of justice.

CONCLUSION

The petition for a writ of certiorari should be

granted.

DATED this 11th day of March 2022.

Respectfully submitted,

x

s/

Scott E. Stafne

x

SCOTT E. STAFNE, Counsel of Record

STAFNE LAW Advocacy & Consulting

239 North Olympic Avenue

Arlington, WA 98223

360.403.8700

scott@stafnelaw.com

https://glc.yale.edu/country-conscience-and-anti-slaverycause#:~:text=I%20have%20not%2C%20I%20cannot,continue%20to%20remain%20as%20now.