Petition for Writ of Certiorari — Donnie T. Kern, Petitioner v. Board of Supervisors of Alleghany County

Supreme Court briefJun 3, 2022

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Text

No.

3ht tlje Supreme Court of tlje Mntteb States;

FILED

JON 0 3 2022

DONNIE T.A.M. KERN, PETITIONER,

BOARD OF SUPERVISORS, ALLEGHANY COUNTY.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Donnie T.A.M. Kern, MSA, EA

Petitioner, Pro Se

Alleghany County Public Schools

School Board Member

Clifton Forge West District

115 Church Street

Clifton Forge, VA 24422

(540) 958-4958

quilltaxation@gmail.com

www.donnietamkern.com

www.facebook.com/alleghanyfireside

received

JUN -7 2022

QUESTIONS PRESENTED

1. Section 1447(d) of Title 28 of the United States

Code expressly provides that an order remanding a

case that was removed pursuant to 28 U.S.C. §1442

or 28 U.S.C. §1443 is reviewable by appeal or

otherwise. This wise Court in BP PLLC v. Mayor

and City Council of Baltimore a case involving

removal under 28 U.S.C. §1442, affirmed: “The

Fourth Circuit erred in holding that it was powerless

to consider all of the defendants’ grounds for removal

under § 1447(d).” (141 S. Ct. 1532, 1538 (2021).

Whether reliance on a holding by the Court in

Things Remembered, Inc. v. Petrarca instructing

appellate courts to read 28 U.S.C. §1447(d) in pari

materia with 28 U.S.C. § 1447(c) would prohibit an

appellate court to consider all of the defendant’s

grounds for removal under § 1447(d) in which the

removing party premises removal under the civil

rights removal statute 28 U.S.C. §1443 or the federal

officer statute 28 U.S.C. §1442.

2. The Court instructed appellate courts to read

28 U.S.C. §1447(d) in pari materia with 28 U.S.C.

§ 1447(c). This holding was specific to a remand

decision within a remand order. The Court

illustrated this holding in Thermtron Prodcuts, Inc.

v. Hermandsdorfer. The Court reversed the Sixth

Circuit decision of not having jurisdiction due to the

district court’s remand decision regarding a “heavy

docket” which was argued not eligible for review.

The Court disagreed and held that “heavy docket”

was not barred from review when 28 U.S.C. §1447(d)

is read in pari materia with 28 U.S.C. §1447(c).

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(I)

Whether a remand order by a district court that is

“clearly erroneous” would be barred from appellate

review when 28 U.S.C. §1447(d) is read in pari

materia with 28 U.S.C. §1447(c).

3. The Court in the landmark case Georgia u. Rachel

held:

[S]ince the federal district court remanded

the present case without a hearing, the

defendants as yet have had no opportunity

to establish that...the defendants right to

removal under §1443(1) will be clear...upon

such finding, it will be apparent that the

conduct of the defendants is ‘immunized

from persecution’ in any court, and the

federal district court must then sustain the

removal and dismiss the prosecutions (384

U.S. 780 (1966)).

No evidence hearing was held for the Petitioner

after having referenced in the Notice of Removal the

Civil Rights Act of 1964 fourteen times, the

Rehabilitation Act of 1973 eighteen times, 28 U.S.C.

§1443 eleven times, 42 U.S.C. §1983 fifteen times,

42 U.S.C. §1985 twenty-three times, the word

“retaliation” eight times, the phrase “civil rights”

twenty times. On appeal with the Fourth Circuit the

Petitioner referenced the Civil Rights Act of 1964

nineteen times, the Rehabilitation Act of 1973

twenty-three times, Americans with Disabilities Act

of 1990 fifteen times, 28 U.S.C. §1443 eighteen

times, Civil Rights Act of 1866 twenty-one times.

Whether a defendant should be granted

procedural evidence hearing when removal is

premised pursuant 28 U.S.C. §1443.

Ill

4. The Court has held that a pro se litigant should

be furnished with every opportunity to offer

supporting evidence (Haines v. Kerner, 404 U.S. 519

(1972).

Whether dismissal of an appeal or remand order

without furnishing a defendant proceeding pro se

the opportunity to offer supporting evidence is

“erroneous”.

5. The Court held in Georgia v. Rachel:

§1443 applies only to rights that are granted

in terms of equality, and not to the whole

gamut of constitutional rights...When the

removal statute speaks of'any law providing

for equal rights,' it refers to those laws that

are couched in terms of equality, such as the

historic and the recent equal rights statutes,

as distinguished from laws, of which the

due process clause and 42 U.S.C. §1983

are sufficient examples, that confer equal

rights in the sense, vital to our way of life, of

bestowing them upon all... The Civil

Rights Act of 1964...made clear, protects

those who refuse to obey such an order not

only from conviction in state courts, but

from prosecution in those courts...(384 U.S.

780, 792 (1966)).

Whether or not 28 U.S.C. §1443 applies to the

Civil Rights Act of 1964, Rehabilitation Act of 1973,

Americans with Disabilities Act of 1990, 42 U.S.C.

§1983, 42 U.S.C. §1985, U.S. Const. Amend. XIV,

U.S. Const. Amend. V.

6. Whether or not Virginia Code §24.2-233(1) is

unconstitutional in contesting that Virginia Code

§24.2-233(1) is patently unconstitutional, void

vagueness, overbreadth, violates U.S. Const.

Amend. I, U.S. Const. Amend. VIII, U.S. Const.

Amend. XIV, and equal protections under

Americans with Disabilities Act of 1990,

Rehabilitation Act of 1973, Civil Rights Act of 1964,

42 U.S.C. §1983, 42 U.S.C. §1985, and conflicts with

numerous other Virginia Code statutes.

7. Whether the people’s Court of last resort will

uphold the corner stone of “equal justice under the

law” striking down the heinous petition filed by the

Respondent under Virginia Code §24.2-234

therefore tossing the Petition out onto the court

house steps where it belongs as there is no place for

misplaced civility in our justice system.

PARTIES TO THE PROCEEDING

Petitioner is Donnie T.A.M. Kern, MSA, EA via

pro se is the current appointed member of the

Alleghany County School Board representing the

Clifton Forge West District. The Petitioner a former

intern for the Honorable U.S. Congressman Rick

Boucher; a humble Congressman who always rallied

staff to “do whatever it takes to help” constituents

across the 9th Congressional District of Virginia.

The Petitioner during his junior year of college ran

for the Virginia General Assembly advocating for

Special Education services for students with

disabihties. The Petitioner was a candidate for

Alleghany County Treasurer at the age of 29 laying

a foundation of business efficiency improvements in

the Treasurer’s office. The Petitioner is a graduate

of Radford University, and Liberty University

having been inducted into three honor societies, the

National Deans List, Who’s Who Among Students in

American Universities and Colleges and was

nominated by Radford University in 2005 for the

Rhodes Scholar program. The Petitioner also

attended Georgetown University with the Fund for

American Studies. The Petitioner holds a Master of

Science degree in accounting with highest

distinction, an Enrolled Agent credential from the

United States Department of the Treasury after

passing three comprehensive exams in a single

attempt. The Petitioner was commissioned by

Virginia Governor Ralph Northam as a Public

Notary.

The Petitioner began studying accounting at the

age of sixteen enrolled at the Jackson River

Technical Center; a career and technical center in

(V)

which Mrs. Gadd, one of the Petitioner’s most

inspiring teachers, asserted that he should be an

accountant. The Petitioner, at the time a stubborn

young man, chose to dedicate over a decade of career

service to the non-profit sector serving multiple non

profit organizations like the Young Men’s Christian

Association, Boy Scouts of America, and the Virginia

Community College System living a meager lifestyle

while raising a family and at times dependent on

social assistance. The Petitioner grew up with a

single father who inherited a 100% serviceconnected disability due to his sacrifice to the

Country. Henceforth the Petitioner was raised by

multiple families in the West District village located

in the Town of Clifton Forge; thus having been

nurtured and cared for by an African American

family, among other things the Petitioner grew

passionate about social injustice and civil rights

advocacy. The Petitioner, later in his adult years,

was diagnosed with Attention Deficit Disorder

(ADD). The Petitioner, having never been assessed

for

educational

childhood

during

his

accommodations and having at one point in college

becoming dependent on over-the-counter stimulants

to accommodate his learning, gained first-hand

awareness of the importance Special Education

services have on children. The Petitioner had thrust

himself into the political realm to instill societal

change at the early age of twenty-two.

On July 1 2018 the Petitioner’s appointed term on

the Alleghany County School Board began and is

due to end June 30 2022. The Petitioner is part of

the accounting profession where membership

requires each practitioner to do no harm to the

profession. Among other things the Respondent in

VII

its perjured, misleading and dishonest allegations

against the Petitioner, thus browbeating the

Petitioner into a dumpster fire requiring pervasive

action in-order-to protect the profession.

“[W]e’re never afraid...we take on all

oncomers...you have to stand for something,

and you have to be able to fight for what you

stand for”

Harry Markopolos, ChasingMadoff (2010).

Respondent is the Board of Supervisors for

Alleghany County, Virginia. Members of the

Respondent at the time of filing the Petition under

Virginia Code §24.2-234 on December 2 2020 was

George M. Garten, Stephen A. Bennett, Cletus W.

Nicely, M. Joan Vannorsdall, James M. Griffith,

Shannon P. Cox, and Richard Shull.

CORPORATE DISCLOSURE STATEMENT

The Petitioner is not a publicly held corporation

nor is the Petitioner owned by a publicly held

corporation.

RELATED PROCEEDINGS

Alleghany County Circuit Court (Virginia):

Commonwealth of Virginia v. Donnie T.A.M.

Kern, CL20-827 (December 2 2020)

Commonwealth of Virginia u. Donnie T.A.M.

Kern, CL20-827 (September 28 2021) (order on

motion to suspense)

United States District Court (D. VA):

Board of Supervisors of Alleghany County v.

Donnie T.A.M. Kern, 7:21-cv-00448-TTC (August

24 2021) (order on notice of removal)

Board of Supervisors of Alleghany County v.

7:21-cv-00471-TTC

Kern,

Donnie

TAM.

(September 10 2021) (order on notice of removal)

United States Court of Appeals (4th Cir.):

Board of Supervisors of Alleghany County v.

Donnie T.A.M. Kern, No. 21-2046 (September 22

2022)

Board of Supervisors of Alleghany County v.

Donnie T.A.M. Kern, No. 21-2046 (December 27

2021) (notice of constitutionality et al.)

Board of Supervisors of Alleghany County v.

Donnie T.A.M. Kern, No. 21-2046 (January 24

2022) (order on notice of constitutionality and

appeal)

Board of Supervisors of Alleghany County v.

Donnie T.A.M. Kern, No. 21-2046 (February 7

2022) (rehearing & rehearing en banc)

(VIII)

Board, of Supervisors of Alleghany County v.

Donnie T.A.M. Kern, No. 21-2046 (February 7

2022) (ordered temporary stay pending rehearing)

Board of Supervisors of Alleghany County v.

Donnie T.A.M. Kern, No. 21-2046 (May 31 2022)

(order granting voluntary dismissal of petition for

rehearing and rehearing en banc in-order-to file

application for writ of injunction with Chief

Justice and Justice for Fourth Circuit)

United States Supreme Court: (Chief Justice and

Justice to the Fourth Circuit):

Donnie T.A.M. Kern v. Board of Supervisors of

Alleghany County, App. No. 21A634 to Chief

Justice and Justice for the Fourth Circuit John G.

Roberts Jr., (April 21 2022) (granted application

extension for time to petitioner for writ of

certiorari)

TABLE OF CONTENTS

Opinion[s] below............................................................ 2

Jurisdiction..................................................................... 2

Statutory provision^] below....................................... 3

Statement........................................................................ 5

I. Procedural History-Civil Rights Circa 1866

II. Procedural History-Georgia v. Rachel

III. Facts and Current Procedural History

Reasons for granting the petition

I. The decision below implicates a recognized

conflict among the courts of appeals and does not

adhere to stare decisis of the Court

II. The decision below is wrong and wrongheaded

a. In pari materia explained.................

b. In pari materia 28 U.S.C. §1443.....

c. In pari materia clearly erroneous...

d. BP, PL.C. et al., v. Mayor (2021).....

e. Pro se & Boag v. MacDougall (1982)

f. The courageous dissenter Justice

Sotomayor.............................................

III. The decision below is unconstitutional

prejudice

a. Oath of office............

b. Religious protection

(X)

c. Parental rights.....

d. Void for vagueness

e. Overbreadth.........

IV. The questionjs] presented are exceptionally

important, imperative public concern, and

warrants review in this case

Conclusion

Table of appendices

Appendix A............

Appendix B............

Appendix C............

Appendix D............

Appendix E............

Appendix F............

Appendix G............

Appendix H............

Appendix I..............

Appendix J.............

Appendix K............

Appendix L.............

Appendix M............

Appendix N............

Appendix O............

Appendix P.............

Appendix Q............

Appendix R............

Appendix S.............

Appendix T............

(i)

..Pet. App. 1

..Pet. App. 4

..Pet. App. 5

..Pet. App. 6

..Pet. App. 9

.Pet. App. 10

.Pet. App. 11

Pet. App. 12

.Pet. App. 13

Pet. App. 17

.Pet. App. 21

Pet. App. 25

.Pet. App. 27

.Pet. App. 28

.Pet. App. 31

.Pet. App. 32

.Pet. App. 37

.Pet. App. 39

.Pet. App. 41

.Pet. App. 42

XII

Appendix U.

Appendix V.

Appendix W

Pet. App. 43

.Pet. App. 44

.Pet. App. 46

TABLE OF AUTHORITIES

Page

Cases:

Boag v. MacDougall,

30, 39

454 U.S. 364 (1982)

BP, P.L.C., et ah, v. Mayor and City Council of

Baltimore,

6, 10, 20, 22, 26, 29

141 S. Ct. 1532, 1538 (2021)

Cont.30, 39

Buck v. Bell,

274 U.S. 200 (1927)......................... 6, 9, 10, 11, 12,13

Cohens v. Virginia, 19 U.S.6 Wheat.

Intro & 2

19 U.S.6 Wheat. 264 404 (1821)....

Cox v. Louisiana,

34,35

379 U.S. 536 (1965).........................

Connally v. General Construction Co.,

269 U.S. 385 (1926).........................

Dart Cherokee Basin Operating Co., LLC v. Owens

574 U.S. 81 (2015)..................

Dred Scott v. Sandford,

5, 6, 7, 12, 13

60 U.S. (19 How.) 393 (1856)

Dombrowski v. Pfister,

380 U.S. 479(1965)...............

Georgia v. Rachel,

5, 8, 13, 14, 15, 39

384 U.S. 780 (1966)...............

Haines u. Kerner,

404 U.S. 519 (1972)...............

Hamm v. City of Rock Hill,

379 U.S. 306 (1964)...............

XIII

Page

Case—continued:

Meyer v. Nebraska,

262 U.S. 390, 401 (1923)...............

Pierce v. Society of Sisters,

68 U.S. 510 (1925)...........................

Session v. Dimaya,

38 S. Ct. 1204 (2018)......................

Stanley v. Elinois,

405 U.S. 645 (1972)........................

Things Remembered, Inc. v. Petrarca,

516 U.S. 124(1995).........................

2, 24, 30, 31

Thermtron Products, Inc. v. Hermansdorfer,

423 U. S. 336 (1976).................................. 23, 24, 25

Troxel u. Granville,

530 U.S. 57 (2000)......................................

United States v. United States Gypsum Co.,

333 U.S. 364,395(1948)............................

Wisconsin v. Yoder,

406 U.S. 205(1972)...................................

Page

Statutes:

U.S. Constitution Amendment I.....

U.S. Constitution Amendment VIII

U.S. Constitution Amendment XIV,

2, 5, 16, 33

..2, 19, 21

Civil Rights Act of 1866

5, 6, 7, 8, 11, 12, 13

Civil Rights Act of 1964

1, 2, 4, 5, 12, 14, 15, 16, 40

XIV

Page

Statutes—continued:

The Rehabilitation Act of 1973

1, 4, 5, 12, 16

Americans with Disabilities Act of 1990

4, 5, 12, 16

Judiciary Act of September 24 1789, Section 19

Federal Rules of Civil Procedure 52(a)

27, 28, 29

.............................. 1,2,3,5,12,14,16

...............................1, 2, 3, 5, 12, 16

3, 5, 8, 12, 13, 14, 19, 22, 23, 25, 26,

Cont.28, 29, 31

28 U.S.C. §1446....

2, 3, 23, 24, 25, 26, 27, 28, 29

28 U.S.C. § 1447(c)

28 U.S.C. § 1447(d).... 2, 3, 6, 14, 21, 22, 23, 24, 25, 26, 27,

Cont. 28, 29, 31

Virginia Code §1-240.1..

4, 21, 33, 34, 35, 38

Virginia Code §24.2-233.

Virginia Code §24.2-234

Virginia Code §49.1......

42 U.S.C. §1983.

42 U.S.C. §1985

28 U.S.C. §1443.

Page

Miscellaneous:

The Minnesota Governor’s Council on Developmental

Disabilities. Parallels in Time, A History of

Developmental Disabilities. Minnesota.gov (MN.gov),

https://mn.gov/mnddc/parallels/index.html. Accessed 5

November 2021

United States Holocaust Memorial Museum “Nazi

Germany-Law for the Prevention of Offspring with

Hereditary

Diseases”

retrieved

from

https://www.ushmm.org/learn/timeline-ofe vents/1933-1938/law -for-the -p re vention- ofoffspring-with-hereditarydiseases

Schweik, M. Susan & Wilson, A. Robert. Ugly Laws, 5

February

2015

http://eugenicsarchive.ca/discover/encyclopedia/54d39e

27f8a0ea4706000009.

Accessed

November

2021

American Bar Association, Hirji, Rosa, Alleging

Retaliation on Behalf of Students with Disabilities.

July

2019.

https://www.americanbar.org/groups/litigation/commi

ttees/childrens-rights/articles/2019/summer2019alleging-retaliation-on-behalf-of-students-withdisabilities/.

Lexico.com “Incompetent”-Not having or showing the

necessary skills to do something successfully. Retrieved

May

2022.

https://www.lexico.com/en/definition/incompetent..

Occupational

Outlook

Handbook

at:

https://www.bls.gov/ooh/.

Civil Rights Data Collection at:

https://ocrdata.ed.gov/................

Occupational

Outlook

https://www.bls.gov/ooh/,

Handbook

at:

$n %\\t Supreme Court of tfje HmteiJ States;

No:

DONNIE T.A.M. KERN,

BOARD OF SUPERVISORS OF ALLEGHANY

COUNTY.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Donnie T.A.M. Kern, MSA, EA

School Board Member, Clifton Forge West District

Petitioner, Pro Se

amicably petition for a writ of certiorari having been

martyrized and denied federal asylum violating

mass precious civil rights granted by the American

people. Vindication of equal rights under the

Rehabilitation Act 1973, the Civil Rights Act of

1964, 42 U.S.C. §1983, 42 U.S.C. §1985 for

unwavering pure love and advocacy for the disabled,

and an African American child having been placed

in a “closet” as described by Amy Trail who hailed

the Petitioner as a “Hero”, is promptly instore risk

this noble Court committing treason against the

Constitution (Cohens v. Virginia, 19 U.S.6 Wheat.

264 404 (1821)).

(I)

3ht

Supreme Court of tlje fHmteir States?

No:

DONNIE T.A.M. KERN,

BOARD OF SUPERVISORS OF ALLEGHANY

COUNTY.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Donnie T.A.M. Kern, MSA, EA

School Board Member, Clifton Forge West District

Petitioner, Pro Se

amicably petition for a writ of certiorari having been

martyrized and denied federal asylum violating

mass precious civil rights granted by the American

people. Vindication of equal rights under the

Rehabilitation Act 1973, the Civil Rights Act of

1964, 42 U.S.C. §1983, 42 U.S.C. §1985 for

unwavering pure love and advocacy for the disabled,

and an African American child having been placed

in a “closet” as described by Amy Trail who hailed

the Petitioner as a “Hero”, is promptly instore risk

this noble Court committing treason against the

Constitution (Cohens v. Virginia, 19 U.S.6 Wheat.

264 404 (1821)).

(I)

OPINION[S] BELOW

The Fourth Circuit entered an unpublished

opinion on January 24 2022 citing:

The Supreme Court has instructed that

“§ 1447(d) must be read in pari materia with

[28 U.S.C.] §1447(c), so that only remands

based on grounds specified in § 1447(c) are

immune from review under § 1447(d).”

Things Remembered, Inc. u. Petrarca, 516

U.S. 124, 127 (1995); see Doe v. Blair, 819

F.3d 64, 66-67 (4th Cir. 2016)...we dismiss

the appeal for lack of jurisdiction. App. A

infra., at Pet.App.3.

The district court remanded citing:

Kern alleges that the Board's petition for his

removal violated “Section 504 of the

Rehabihtation Act, Title VI of the Civil

Rights Act of 1964, U.S. Constitution

Constitution

U.S.

Amendment

Amendment, VIII, Constitution Amendment

XIV, 42 U.S.C. § 1983 [and] § 1985.” (ECF

No. 1, at 3.). App. D infra., at Pet.App.7.

JURISDICTION

The Fourth Circuit entered an unpublished

opinion on January 24 2022. The wise and merciful

Chief Justice and Justice for the Fourth Circuit John

G. Roberts, Jr., granted an extension of time to file

on April 22 2022. The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1) and Court

precedence in Cohens v. Virginia, 19 U.S. 6 Wheat.

264 264 (1821) having affirmed:

...Suppose a State to prosecute one of its

citizens... who should plead the Constitution

in bar of such prosecution. If his plea should

be overruled, and judgment rendered

against him...unless the jurisdiction of this

Court might be exercised over it, the

Constitution would be violated, and the

injured party be unable to bring his case

before that tribunal to which the people of

the United States have assigned all such

cases... it is most true that this Court will

not take jurisdiction if it should not; but it is

equally true that it must take jurisdiction if

it should...we have no more right to decline

the exercise of jurisdiction which is given

than to usurp that which is not given. The

one or the other would be treason to the

Constitution.

STATUTORY PROVISION [S] INVOLVED

Section 1443 of Title 28 of the United States Code.

App. O infra., at Pet.App.31.

Section 1447(c) & 1447(d) of Title 28 of the United

States Code. App. Q infra., at Pet.App.37.

Section §1983 of Title 42 of the United States

Code. App. M infra., at Pet.App.27.

Section §1985 of Title 42 of the United States

Code. App. N infra., at Pet.App.28.

Civil Rights Act of 1964. App. J infra., at

Pet.App.17.

Rehabilitation Act of 1973. App. K infra., at

Pet.App.21.

Americans with Disabilities Act of 1990. App. L

infra., at Pet.App.25.

Virginia Code §24.2-233(1). App. R infra., at

Pet. App. 39.

)

STATEMENT

The case before you seeks judicial review and

uncompromising justice as the Petitioner invoking

protections under the Americans with Disabilities

Act of 1990, the Rehabilitation Act of 1973, the Civil

Rights Act of 1964, 42 U.S.C. §1983, 42 U.S.C. §1985

due to repugnant retaliatory attacks and

unwarranted punishment by the Respondent in

response to the Petitioners pure love and advocacy

in exercising U.S. Constitution Amendment I to aid

and abet the securing of civil rights and equal

protections afforded to the disabled, disabled

students, an African American student, and the

Petitioner’s own child.

Much confusion still exists regarding defendant

eligibility in removing a case pursuant to the civil

rights removal statute 28 U.S.C. §1443. Statute 28

U.S.C. §1443 has historically been read in pari

materia with the Civil Rights Act of 1866.1 The Civil

Rights Act of 1866 incorporates the language

“enjoyed by white citizens”2 promulgating the

apparent bewilderment at hand. The Petitioner

aspires to aid this wise Court to resolve this

defendant eligibility criteria required by the civil

rights removal statute pursuant 28 U.S.C. §1443

through application of the Dred Scott and Carrie

Buck doctrine having been affirmed by this Court in

Scott v. Sanford, 60 U.S. (19 How.) 393 (1856) and

Buck v. Bell, 274 U.S. 200 (1927) respectively.

1 Georgia u. Rachel, 384 U.S. 780 (1966)

2 App., I infra., at Pet. App. 13

This case also presents a matured clash by and

between the appellate courts on a significant and

habitual recurring question of appellate jurisdiction

regarding review of remand orders pursuant 28

U.S.C. §1447(d). This jurisdictional conflict of

reviewing a remand order under 28 U.S.C. § 1447(d)

was supposed to have been vanquished in this wise

Court’s recent and timely holding in BP P.L.C. u.

Mayor and City Council of Baltimore3 yet the conflict

imminently still exists.

The case also challenges Virginia Code §24.2233(1) constitutional existence as its enforcement

having been used as a weapon of mass destruction to

martyrize the Petitioner for exercising and

supporting the United States Constitution through

compassionate care and of love for the country’s

most vulnerable children.

I. Procedural History- Civil Rights Circa

1866

The Dred Scott doctrine established in 1856 by the

Court in the landmark case Dred Scott v. Sandford4

whereas the Court confirmed the existence of a

dominant race-a class of citizens, an inferior racenot considered to be “citizens” as prescribed by the

constitution. The affirmation by the Court in Scott v.

Sandford gave birth to a means in identifying an

inferior race absent rights and privileges id est. Dred

3 BP, P.L.C., et al., v. Mayor and City Council of Baltimore, 141

S. Ct. 1532, 1538 (2021) -“Because the courts of appeals

disagree over the scope of their appellate authority under

§ 1447(d), we agreed to take this case to resolve the question”

4 60 U.S. (19 How.) 393 (1856)

Scott doctrine. The Dred Scott doctrine implies that

an inferior race is a race of people that is granted

rights and privileges by the dominant race who

holds the power to grant rights and privileges to a

race. In affirming this doctrine, the Court held:

[T]he ‘sovereign people,’ and every citizen is

one of this people, and a constituent member

of this sovereignty. The question before us is

whether the class of persons described in

this plea in abatement compose a portion of

this people, and are constituent members of

this sovereignty? We think they are not, and

that they are not included, and were not

intended to be included, under the word

“citizens” in the Constitution, and can

therefore claim none of the rights and

privileges... they were at that time

considered as a subordinate and inferior

class of beings who had been subjugated by

the dominate race, and...had no rights or

privileges but such as those who held the

power and the Government might choose to

grant them. Id at 404

After the Dred Scott doctrine was established

Americans, in an effort to continue progress in

forming a more perfect union, passed the Civil

Rights Act of 1866 to provide and in-part:

[A]n Act to protect all Persons in the United

States in their Civil Rights, and furnish the

Means of their Vindication...all persons

born in the United States...are hereby

declared to be citizens of the United States;

and such citizens of, every race and

color...shall have the same right in every

State...and to full and equal benefit of all

laws...as is enjoyed by white citizens...5

The Civil Rights Act of 1866 provided a means of

vindication for inferior races to “enjoy” these rights

and privileges by allowing an inferior race to remove

litigation into federal jurisdiction in-order-to restore

those rights. Id. The removal provision provided by

the Civil Rights Act of 1866 was subsequently

revised in 1875 and is now codified at 28 U.S.C.

§1443.G Congressional intent in its linguistic use of

“white citizens” was not to exclude citizens who were

“white”, but to establish a means to measure the

quality-of-life id est. “enjoyed by”, the dominate

sovereign race called “white citizens” circa 1866. Inorder for a law to provide “equal rights” it must first

have a standard that can be measured that will

determine what is equal and what is not equal. In

1866 “white citizens” enjoyed rights and privileges

at a greater degree than other races. It is an

uncontested fact that not all humans who were

“white” enjoyed to the same degree, the rights and

privileges as “white citizens” circa 1866. Exempli

gratia the disabled and female race groups are two

that require appropriate discussion.

In 1848 prior to the Civil Rights Act of 1866,

Dorothea Dix, a female and advocate was

determined to increase the enjoyment of the rights

5 supra note 2

6 Georgia v. Rachel, 384 U.S. 780 (1966)-“[T]he Court

interpreted §641 of the Revised Statutes of 1874. That statute

has come down to us, in modified form, as § 1443”

and privileges of the disabled.7 The disabled race’s

degree of enjoyment of such rights and privileges

circa 1848 was appalhng. Dorothea Dix attempted to

address Congress with the following message:

“More than nine-thousand idiots, epileptics,

and insane in these United States, destitute

of appropriate care and protection. Bound

with galling chains, bowed beneath fetters

and heavy iron balls, attached to dragchains, lacerated with ropes, scourged with

rods, and terrified beneath storms of

profane execrations and cruel blows; now

subject to jibes, and scorn, and torturing

tricks, now abandoned to the most

loathsome necessities or subject to vilest

and most outrageous violations”. Id.

Dorothea Dix a member of the white female race:

a subgroup of “white citizens” did not enjoy to the

same degree the rights and privileges as “white

citizens” circa 1866. Due to this subgroup’s lack

luster degree of enjoyment of rights and privileges

Dorothea Dix was required to enlist the aid of

Samuel Howe, a white male to dehver her message

to congress in 1848. Id.

The most compelling example of the absence of the

enjoyment of rights and privileges by the disabled

and female race was demonstrated in the landmark

7 The Minnesota Governor’s Council on Developmental

Disabilities. Parallels in Time, A History of Developmental

Minnesota.gov

Disabilities.

(MN.gov),

https://mn.gov/mnddc/parallels/index.html.

Accessed

November 2021

case Buck u. Bell, 274 U.S. 200 (1927). In Buck v.

Bell, the Court upheld Virginia’s use of sterilization

to prevent the expansion of the disabled race. The

court held:

[W]e have seen more than once that the

public welfare may call upon the best

citizens for their lives. It would be strange if

it could not call upon those who already sap

the strength of the State for these lesser

sacrifices, often not felt to be such by those

concerned, in order to prevent our being

swamped with incompetence. It is better for

all the world if, instead of waiting to execute

degenerate offspring for crime or to let them

starve for their imbecility, society can

prevent those who are manifestly unfit from

continuing their kind. The principle that

sustains compulsory vaccination is broad

enough to cover cutting the fallopian

tubes...three generations of imbeciles are

enough”. Id at 207.

Carrie Buck, a disabled female, was described by

the Court in 1927 as incompetent, degenerate,

imbecile, and unfit, thus the Court affirmed the use

used

the

treatments

of sterilization

Commonwealth of Virginia; a form of genocide that

was eventually adopted by Nazi Germany in the

genocide of disabled and Jewish race during the

Holocaust.8

8 United States Holocaust Memorial Museum “Nazi Germany Law for the Prevention of Offspring with Hereditary Diseases”

retrieved from https://www.ushmm.org/learn/timeline-of-

It is prudent to remind the Court that it held in

BP, P.L.C., et al., v. Mayor and City Council of

Baltimore:

“[I]n the end... fencing about language

Congress didn’t use persuades us of only one

thing-that we are best served by focusing on

the language it did employ”9

Congress, in drafting the Civil Rights Act of 1866,

did employ the use of “white citizen”,10 but

exclusively symbolic: the use serving only as a

means to benchmark the degree of enjoyment. In

support, Congress did intentionally deploy the

phrase “enjoyed by”, and “every race and color”

supporting this linguistic interpretation. The Carrie

Buck doctrine infers that circa 1866 not all “white”

humans enjoyed to the same degree the level of

enjoyment of rights and privileges as “white

citizens”, exempli gratia the disabled and female

race. The Carrie Buck doctrine therefore establishes

that an inferior race can also be considered a race

that did not enjoy to the equivalent degree of rights

and privileges as a member of the “white citizen”

race circa 1866. Buck v. Bell undeniably affirms

this.11

The degradation of enjoyment of rights and

privileges by the disabled race did not commence or

events/1933-1938/law-for-the-prevention-of-offspring-withhereditary-diseases

9 141 S. Ct. 1532, 1538 (2021) at B

10 supra note 2

11 Buck u. Bell, 274 U.S. 200 (1927)

cease with Carrie Buck. Prior to Buck v. Bell, society

at its worst implemented ugly laws prohibiting the

disabled race to appear in public. The first of these

ugly laws were instituted in San Francisco in 1867

prohibiting a person who was “diseased, maimed,

mutilated, or in any way deformed, so as to be an

unsightly or disgusting object” to go outside their

home.12 Individuals with disabilities were regarded

as a putative threat to the “white race” and these

ugly laws were implemented to preserve it. Id.

Summary

When statute 28 U.S.C. §1443 is read in pari

materia with the Civil Rights Act of 1866 and

individual association is established with the Dred

Scott and/or Carrie Buck doctrine(s) racial removal

eligibility is granted pursuant 28 U.S.C. §1443.

Furthermore, including but not limited to the

Americans with Disabilities Act of 1990, the

Rehabilitation Act of 1973, the Civil Rights Act of

1964, 42 U.S.C. §1983, 42 U.S.C. §1985 grants

“equal protections”, rights, and privileges to the “any

person” race.13 In support, the Civil Rights Act of

1964 states:

No person shall (a) withhold, deny, or

attempt to withhold or deny, or deprive or

attempt to deprive, any person of any right

or privilege secured by section 201 or 202, or

12 Schweik, M. Susan & Wilson, A. Robert. Ugly Laws, 5

2015,

February

http://eugenicsarchive.ca/discover/encyclopedia/54d39e27f8a0

ea4706000009. Accessed 6 November 2021

13 App. J infra, at Pet. App. 18

(b) intimidate, threaten, or coerce, or

attempt to intimidate, threaten, or coerce

any person with the purpose of interfering

with any right or privilege secured by

section 201 or 202, or (c) punish or attempt

to punish any person for exercising or

attempting to exercise any right or privilege

secured by section 201 or 202 (emphasis

added). Id.

These “equal protections” are granted when an

individual of the “any person” race attempts to

secure the “rights and privileges” of an individual

analogous to the Dred Scott or Carrie Buck doctrine:

an individual with membership with an inferior race

or a race that did not enjoy to the same degree the

“rights and privileges” as “white citizens” circa 1866.

The Petitioner was granted membership in the

“any person”14 race due to the Petitioners

unwavering pure love and advocacy for the disabled,

an African American,

individuals meeting

membership criteria via the Dred Scott and Carrie

Buck doctrines. Henceforth, eligibility of removal

pursuant 28 U.S.C. §1443 descended upon the

Petitioner.

II. Procedural History- Georgia v. Rachel

The quiescent removal provision embodied in 28

U.S.C. §1443 was rarely used for approximately six

decades until an appellate review in 1966 during the

landmark case Georgia v. Rachel, 384 U.S. 780

w/d.

(1966) and the passage of the Civil Rights Act of

1964. The Civil Rights Act of 1964 led to the

appealability of remand orders pursuant to 28

U.S.C. §1443 as codified in 28 U.S.C. §1447(d). Id. at

786. These two historic events provoked an appeal to

the appellate court under 28 U.S.C. §1447(d) seeking

a due process evidence hearing the causation leading

to a writ of certiorari being granted by this Court.

The Court in Georgia v. Rachel affirmed:

“[S]ince the federal district court remanded

the present case without a hearing, the

defendants as yet have had no opportunity

to establish...if the federal district court

finds that allegation true, the defendants'

right to removal under § 1443(1) will be

clear...”. Id. at 781

In Georgia v. Rachel the Court affirmed that if the

statement of the facts, once fairly read provides

sufficient allegations the defendant’s rights under

the Civil Rights Act of 1964 may be invoked. Id. The

Court held:

§1443 applies only to rights that are granted

in terms of equality, and not to the whole

gamut of constitutional rights...When the

removal statute speaks of'any law providing

for equal rights,' it refers to those laws that

are couched in terms of equality, such as the

historic and the recent equal rights statutes,

as distinguished from laws, of which the due

process clause and 42 U.S.C. §1983 are

sufficient examples, that confer equal rights

in the sense, vital to our way of life, of

bestowing them upon all...The Civil Rights

Act of 1964...made clear, protects those who

refuse to obey such an order not only from

conviction in state courts, but from

prosecution in those courts...§203(c) that

prohibit any "attempt to punish" persons for

exercising rights of equality conferred upon

them by the Act...the burden of having to

defend the prosecutions is itself the denial of

a right explicitly conferred by the Civil

Rights Act of 1964 (internal quotations

omitted). Id. at 792.

Summary

In Georgia v. Rachel the Court remanded the case

back to the district court so that an evidence hearing

could be conducted in determining the validity of

allegations violating the defendants’ rights provided

by the Civil Rights Act of 1964 which were levied in

removing the case from State prosecution. Id.

III. Facts and Current Procedural History

The Petitioner was appointed to the Alleghany

County School Board by the Respondent the

controlling entity of the school board. The Petitioner

having sworn the Oath of Office began a term on

July 1 2018 and ending on June 30 2022. The

Petitioner after discovering systemic discrimination

among other things against the disabled and an

African American student by the Alleghany County

School Board sought external assistance. The

Petitioner in attempting to secure the rights and

privileges of the disabled, and an African American,

was granted protections provided by but not limited

to: U.S. Const. Amend. I., Americans with

Disabilities Act of 1990, the Rehabilitation Act 1973,

and the Civil Rights Act of 1964, 42 U.S.C. §1983, 42

U.S.C. §1985. Respondent in response and in concert

with the school board staged of a coup d’etat of the

Petitioner’s office on February 25 2019. The

Respondent showed up in-force with the vindictive

and retaliatory intent to intimidate and issue public

threats towards the Petitioner. March 4 2019 the

Respondent passed a public resolution seeking the

Petitioner’s resignation. Respondent publicly stated

in-part:

[I] will be honest with you there is not a

judge anywhere in this state that won’t

remove him from the board...

On March 28 2019 in a joint-budget meeting with

the school board the Respondent approved $60,000

in funds to be expensed by the school board to have

legal counsel id est. Reed Smith LLP (a global law

firm with over 1,500 attorneys) deal “with Mr. Kern”

id est. the Petitioner. On May 18 2019 the Petitioner

attended a school board meeting and once again the

Respondent attended in-order-to intimidate the

Petitioner.

Petitioner in early 2018 was the patriarch in

commencing discussions between local governing

bodies on creating a joint school system. A pivotal

vote was going to decide the fate of this joint-venture

on September 9 2020. The Petitioner in an effort to

protect children was compelled to issue a pubhc

service announcement on September 5 2020. The

Respondent in retaliation provided a public

Memorandum of Understanding on September 9

2020 that it would conduct an investigation.

October 27 2020 the Respondent held an

“interrogation” as described by former United States

District Attorney John Fishwick, the Petitioner’s

former counsel from August 2019 to August 2021

(approximate). On October 27 2020 from 9:00AM to

3:30PM the Petitioner despite being sleep deprived

participated gracefully and handed the Respondent

approximately 500 pages of documents supporting

the public service announcement. The existence of a

230-page

transcript

showcases

the

brutal

interrogation by the Respondent. Excerpts from the

transcript below:

Petitioner Threatened #1: Respondent“[YJou’re going to keep acting like that, then

we are going to break”, Petitioner-‘Tm not

acting like anything”, Respondent-“You’re

not answering my questions”, Petitioner- “I

don’t understand some of your questions.”

[Respondent- “[I]’m not sure I do, either...”.

Petitioner Belittled:

Respondent-“[M]r.

Kern, I am not—can you not hear me? I

mean I will speak up if I need to”, “[Y]ou

need to listen to me. Okay? You need to

listen to me”, “[C]an you not read it today—

Petitioner Threatened #2: Respondent- “[I]

can subpoena your rear end and bring you

back tomorrow”.

November 24 2020 the Petitioner is contacted by

counsel. Petitioner is told that the Respondent

wants the Petitioner to resign or a petition seeking

removal will be filed. December 2 2020 the

Respondent files a petition under Virginia Code

§24.2-234 in the Alleghany County Circuit Court

alleging the Petitioner violated Virginia Code §24.2233(1). Weeks prior to the quasi-criminal trial on

August 25 2021 the Petitioner was told a key witness

skipped out on a deposition, and catastrophic

evidence proving the Petitioner’s innocence would

not be submitted into evidence during the trial.

August 10 2021 the Petitioner filed an approximate

fifty-page motion to continue in the Alleghany

County Circuit Court. The motion to continue

contained factual evidence of innocence and perjured

statements by the Respondent. Petitioner in filing

the fifty-page motion equipped the Commonwealth

Attorney and Judge Ed Stein presiding judge of the

Alleghany County Circuit Court (herein after Judge

Stein) with enough evidence to drop the petition.

August 12 2021 during a recorded court hearing

via phone Judge Stein, the Commonwealth Attorney

Mary Pettitt via Patrick Jensen along with Jim

Guynn, Special Prosecutor and Counsel for the

Respondent harassed and threatened the Petitioner

with suspension of office. On August 24 2020

Petitioner timely filed with the district court a

approx. 125-page Notice of Removal (7:21-cv-00448TTC) effecting removal on August 25 8:30AM. On

August 25 9:00AM Judge Stein recklessly exceeded

his authority violating federal statute by conducting

Kangaroo

Court

in-concert

with

the

Commonwealth Attorney Mary Pettitt via Patrick

Jensen and Jim Guynn, Special Prosecutor and

Counsel for the Respondent with the intent to

broadcast additional public threats, extrajudicial

statements and caustically causing public

opprobrium towards the Petitioner.

September 10 2021 Petitioner timely filed approx.

145-page Notice of Removal (7:21-cv-00471-TTC)

effected removal September 10 4:30PM. The Notice

of Removal(s) filed by the Petitioner were filed

pursuant 28 U.S.C. §1443 and subsequently was

“erroneously” remanded by the district court due to

lack of federal subject matter jurisdiction.15 No

evidence or fact-finding hearing was conducted by

the district court. September 22 2021 the Petitioner

filed Notice of Appeal and was docketed on

September 24 2021 with the Fourth Circuit.

September 28 2021 Judge Stein, during an on

going federal appeal neglectfully incorporating a

complete disregard of the Petitioner’s constitutional

rights proceeded to entertain a retaliatory motion by

the Commonwealth Attorney. Judge Stein usurped

the Virginia General Assembly’s constitutional

authority and in a vindictive and retaliatory fashion

ordering the Petitioner suspended under Virginia

Code §24.2-236 thus violating the Petitioner’s U.S.

Const. Amend. VIII. protection from cruel and

unusual punishment.16

Judge Stein’s callous order suspending the

Petitioner was administered wantonly, arbitrarily,

15 App. D infra, at Pet. App. 8

16 App. G infra, at Pet. App. 11

without conformity, and in a freakish manner

causing irreparable harm of prohibitory and

stigmatizing effect stripping away human dignity as

the case is quasi criminal.17 The American Bar

association has opined in-part:

criminalize

parent

that

“[Ajctions

advocacy...taking acts to “push out” the

family from the school have reverberations

in the community and dire consequences for

the family”.18

On December 26 2021 the Petitioner filed a

motion to expedite and question of constitutionality.

January 24 with the Fourth Circuit appellate court

ordered dismissal based on lack of jurisdiction

holding the decision below.19

REASONS FOR GRANTING THE PETITION

The Fourth Circuit and the district court failed to

provide the Petitioner due process.

The Fourth Circuit having recently been corrected

by this wise Court in BP P.L.C. v. Mayor and City

Council of Baltimore disobeyed this Court’s

precedence further amplifying a continued circuit

17 Huffman v. Pursue, ltd., 420 U.S. 592 (1975)- “[c]ivil

proceeding ... which is more akin to a criminal prosecution than

are most civil cases”

18 American Bar Association, Hirji, Rosa, Alleging Retaliation

on Behalf of Students with Disabilities. July 02 2019.

http s: //www. americanb ar. org/group s/litigation/committees/chi

ldrens-rights/articles/2019/summer2019-alleging-retaliationon-behalf-of-students-with-disabilities/

19 App. A infra, at Pet. App. 3

split concerning jurisdictional reviewability of

remand orders under 28 U.S.C. §1447(d).20 The

decision below’s misapplication of in pari materia is

a systemic operator error placing equal protections

at risk of becoming extinct causing unfettered

calamity clearly demonstrating the unsettling

interpretation of §1447(d) showcasing the appellate

system’s inability to review remand orders

appropriately.

The Petitioner has been unconstitutionally

prejudiced and is absent a federal forum having been

equipped by the American people with equal

protections. Whereas, the political weaponization of

Virginia Code §24.2-233(1) is quasi-criminal,21

unconstitutional, and violates the Petitioner’s U.S.

Const. Amend. VIII. as it has inflicted cruel and

unusual punishment. Henceforth the Petitioner

seeks asylum with this Court of last resort thus

dehiscent the extraordinary opportunity for the

Court to grant certiorari.

I. The Decision Below Implicates a

Recognized Conflict Among the Courts of

Appeals and Does Not Adhere to Stare Decisis

of the Court

This Court through the brilliant Justice Gorsuch

in holding without exception:

20 141 S. Ct. 1532, 1538 (2021)- “[F]ourth Circuit erred in

holding that it was powerless to consider all of the defendants’

grounds for removal under § 1447(d)”

21 supra note 17

[T]he only question before us is one of civil

procedure: Does 28 U.S.C. §1447(d) permit a

court of appeals to review any issue in a

district court order remanding a case to

state court where the defendant premised

removal in part on the federal officer

removal statue, §1442, or the civil rights

removal, §1443...because the courts of

appeals disagree over the scope of their

appellate authority under § 1447(d), we

agreed to take this case to resolve the

question...because it is the [district court’s

removal] order that is appealable, a court of

appeals may address any issue fairly

included within it (BP, P.L.C., et al., u.

Mayor and City Council of Baltimore, 141 S.

Ct. 1532, 1538 (2021)

It is blatantly apparent that a jurisdictional

quagmire in reviewing remand orders still exists as

supported by the Fourth Circuit’s decision below.

The resolution this wise Court had set out to

establish did not hold. This Court in BP P.L.C. v.

Mayor and City Council of Baltimore conceded that

it granted certiorari to take the § 1447(d) civil

procedure case to resolve this linguistic interpretive

nightmare.22 In failing to resolve; the Court’s public

service is once more required.

22 141 S. Ct. 1532, 1538 (2021)-“[A] court of appeals may review

the merits of all theories for removal that a district court has

rejected. Because the courts of appeals disagree over the scope

of their appellate authority under § 1447(d), we agreed to take

this case to resolve the question”

II. The Decision Below

Wrongheaded

is Wrong and

(a). In Pari Materia Explained

In Thermtron Products, Inc. u. Hermansdorfer,

423 U.S. 336 (1976) a defendant removed a civil

action from State court into federal court under 28

U.S.C. § 1441(a) only to be remanded back to the

State court due to the district court’s burdensome

“heavy docket” unjustly punishing the plaintiff. The

defendant appealed to the Sixth Circuit arguing that

the district court lacked the authority to remand the

case based on a “heavy docket”. The Sixth Circuit

dismissed asserting it lacked jurisdiction as the

remand order having been based on a “heavy

docket”, and “heavy docket” was not eligible for

review by the Sixth Circuit pursuant to 28 U.S.C.

§1447(d). Statute 28 U.S.C. §1447(d) expressly

states: “[a]n order remanding a case to the State

court...is not reviewable on appeal or otherwise,

except... it was removed pursuant to section 1442 or

1443...23”

The Court held the Sixth Circuit errored because

the Sixth Circuit did not analyze the provisions in

28 U.S.C. § 1447(c). Statute 28 U.S.C. § 1447(c)

expressly states: “a motion to remand the case on the

basis of any defect... under section 1446(a)... lacks

subject matter jurisdiction, the case shall be

remanded...”. Id. The language in § 1447(c) expressly

pins down remand decisions based on “defect” or

“lack of subject matter jurisdiction” and if

23 App. Q infra, at Pet. App. 37

incorporated with § 1447(d) nothing would bar

review of a remand order based on a “heavy docket”

or any other refusal to adjudicate a case on grounds

not authorized by removal statutes (Thermtron

Products, Inc. v. Hermansdorfer, 423 U.S. 336, 353

(1976)).

The Court in analyzing both § 1447(c) and

§ 1447(d) together affirmed the holding that both

statutes must be analyzed “in pari materia” when

determining if a remand order is eligible for review

(Things Remembered, Inc. u. Petrarca, 516 U.S. 124

(1995)). When applying in pari materia statutes

§ 1447(c) and § 1447(d) cannot be analyzed in

appropriate

and

sufficient

isolation.

With

application of in pari materia can a determination of

reviewability be made. The Court held:

As we explained in Thermtron Products, Inc.

v. Hermansdorfer, 423 U. S. 336 (1976),

§ 1447(d) must be read in pari materia with

§ 1447(c), so that only remands based on

grounds specified in § 1447(c) are immune

from review under § 1447(d)... a timely

raised defect in removal procedure or on

lack of subject-matter jurisdiction-the

grounds for remand recognized by § 1447(c).

Id. at 127;

The Court affirmed in continuation;

In Thermtron, we held that a district court

had exceeded its authority when it

remanded a case on grounds not permitted

by §1447(c)...We further held that the

prohibition of appellate review in § 1447(d)

does not bar review of orders outside the

authority of subsection (c), reasoning that

subsections (c) and (d) were to be given a

parallel construction....We observed that a

remand order other than the orders

specified in subsection (c) had "no warrant

in the law" and could be reviewed by

mandamus. Id. at 130.

(b). In Pari Materia 28 U.S.C. §1443

In this present case the Fourth Circuit in its

decision below errored as the Sixth Circuit had in

Thermtron Products, Inc. v. Hermansdorfer in

failing to analyze the language of both § 1447(c) and

§ 1447(d) in pari materia. The Fourth Circuit in its

decision below asserts the reading of both § 1447(c)

and § 1447(d) “in pari materia”24 but the Fourth

Circuit is wrongheaded in its application of in pari

materia of both §1447(c) and §1447(d) in attempting

to affirm its own holding.

The Fourth Circuit’s decision below relies on the

district court’s isolated decision to remand on “lack

of subject matter jurisdiction”. The Fourth Circuit’s

reliance only on § 1447(c) remand due to “lack of

subject matter jurisdiction” demonstrates the failure

to provide parallel analysis with § 1447(d). Statute

§ 1447(d) expressly allows for review of “an order

remanding a case to the State court from which it

was removed pursuant to section 1442 or 1443”. If

the Fourth Circuit would have analyzed both

24 supra note 19

§ 1447(c) and § 1447(d) in pari materia correctly the

Fourth Circuit would have reversed the district

courts remand order.

Petitioner’s Notice of Removal was explicitly

removed pursuant to §1443, it stated:

“[T]he Notice of Removal will aim to remove

any confusion and will explicitly show that

the Notice of Removal is proper under 28

U.S.C. §1331, §1441, and §1443 all of which

are considered federal subject matter

jurisdictional elements for removal into the

United States district court”25

Removal pursuant 28 U.S.C. §1443 allowed the

appellate court jurisdiction to review the entire

remand order, not just the district court’s decision

which the Fourth Circuit had placed reliance on.

This is affirmed by the Court in BP, P.L.C., et al., v.

Mayor and City Council of Baltimore held:

To remove a case “pursuant to” §1442 or

§1443, then, just means that a defendant’s

notice of removal must assert the case is

removable “in accordance with or by reason

of ” one of those provisions.[2]...Once that

happened and the district court ordered the

case remanded to state court, the whole of

its order became reviewable on appeal.26

25 Board of Supervisors v. Donnie T.A.M. Kern, September 10

2021 (7:21-cv-00471-TTC)

26 141 S. Ct. 1532, 1538 (2021) at C

(c). In Pari Materia Clearly Erroneous

The Fourth Circuit’s operator error in applying in

pari materia to analyze both § 1447(c) and § 1447(d)

failed to considered that the district court exceeded

its authority.

The Federal Judiciary Act of 1789, Section 19 states:

[T]hat it shall be the duty of the circuit

courts...to cause the facts on which they

found their sentence or decree, fully to

appear upon the record either from the

pleadings and decree itself, or a state of the

case agreed by the parties, or their counsel,

or if they disagree by stating of the case by

the court.27

§19 of the Act expressly required that the district

court provide for fact finding in which the district

court would establish its decree or order. Id. The

district court should also ensure that these findings

of facts accompany the record of the order. Federal

Rules of Civil Procedure, Rule 52(a)(1) states: “[I]n

action tried on the facts without a jury...the court

must find the facts specially and state its

conclusions of law separately...”.28

Notice of Removal filed by the Petitioner was

under the authority of the judge of the district court.

The district court failed to hold any event to

ascertain facts, or to collect evidence by any measure

27 App. W infra, at Pet.App.46

28 App. V infra, at Pet.App.44

regarding the Petitioner’s allegations related to civil

rights violations pursuant to 28 U.S.C. §1443. A

notice of removal is not required to have evidence as

held in Dart Cherokee Basin Operating Co., LLC., et

al v. Owens 574 U.S. 81 (2015).

The entirety of the district court’s remand order

cited no facts or evidence supporting the district

court’s decision on rejecting all of the Petitioner’s

allegations seeking removal under 28 U.S.C. §1443.

Restating the OPINION BELOW. The district court

in the order rejected all of the Petitioner’s grounds

for removal.

Federal Rules of Civil Procedure, Rule 52(a)(6)

expressly states: “Findings of fact, whether based on

oral or other evidence, must not be set aside unless

clearly erroneous, and the reviewing court must give

due regard to the trial court’s opportunity to judge

the witnesses’ credibility. Id.

In United States v. United States Gypsum Co., 333

U.S. 364, 395 (1948) the Court affirmed the meaning

of the “clearly erroneous” standard:

A finding is “clearly erroneous” when

although there is evidence to support it, the

reviewing court on the entire evidence is left

with the definite and firm conviction that a

mistake has been committed.

Fourth Circuit’s attempt to analyze § 1447(c) and

§ 1447(d) in pari materia should have recognized

that the district court’s entire remand order was

“clearly erroneous”. The district court failed to

collect facts and evidence to support the order. The

Fourth Circuit under Federal Rules of Civil

Procedure Rule 52(a)(6) should have set aside the

remand order absent support in the decision to

remand.

The district court’s remand order being “clearly

erroneous” would not have been barred from

appellate review in applying in pari materia to both

statutes 28 U.S.C. §1447(c) and 28 U.S.C. §1447(d).

Only “defect” and lack “subject matter jurisdiction”

remands are barred from review, not remand orders

that are “clearly erroneous”.

(d). BP, P.L.C., et al., v. Mayor (2021)

Restating (c). In Pari Materia Clearly Erroneous,

the district court’s remand order being “clearly

erroneous” henceforth rejected all of the Petitioner’s

allegations pursuant §1443 in removing the case.

The Court opined in-part holding:

...when a district court’s removal order

rejects all of the defendants’ grounds for

removal, § 1447(d) authorizes a court of

appeals to review each and every one of

them. After all, the statute allows courts of

appeals to examine the whole of a district

court’s ‘order,’ not just some of its parts or

pieces {BP, P.L.C., et al., v. Mayor and City

Council of Baltimore, 141 S. Ct. 1532, 1538,

A (2021)).

(e). Pro Se & Boag v. MacDougall (1982)

The Fourth Circuit’s decision below disregard’s

the Court’s holding requiring appellate courts and

district courts construe the inartful pleadings of pro

se actions liberally.29 The Court affirmed:

“allegations such as those asserted by

petitioner, however inartfully pleaded, are

sufficient to call for the opportunity to offer

supporting evidence...we conclude that he is

entitled to an opportunity to offer proof’.30

Petitioner, pro se, explicitly stated in the Notice of

Removal:

“COMES NOW the Respondent Donnie

T.A.M. Kern asking the court for liberal

construe in interpreting this potentially

“inartful pleading (Boag v. MacDougall, 454

U.S. 364, 365 (1982))”.31

(f). The Courageous Dissenter Justice Sotomayor

The Fourth Circuit decision below having been

derived from the Court’s holding in Things

Remembered, Inc. v. Petrarca, 516 U.S. 124 (1995)

and the Fourth Circuit’s misapplication of in pari

materia has subsequently become a step-down

29 Boag v. MacDougall, 454 U.S. 364 (1982)- “The Court of

Appeals' ground for dismissing the complaint was erroneous as

a matter of law. Federal courts must construe inartful pleading

liberally in pro se actions”

30 Haines v. Kerner, 404 U.S. 519 (1972).

31 supra note 25

approach which focuses on the decision within the

remand order, not the whole of the order. In BP,

P.L.C., et al., v. Mayor and City Council of

Baltimore32 the impartial and courageous Justice

Sotomayor, the lone dissenter, clearly and

unequivocally without confusion opined in the

dissenting opinion:

Section 1447(d) places “broad restrictions on

the power of federal appellate courts to

review district court orders remanding

removed cases to state court.” Things

Remembered, Inc. v. Petrarca, 516 U.S. 124,

127

(1995). After today’s

decision,

defendants can sidestep these restrictions

by making near-frivolous arguments for

removal

under

§1442

§1443... I

respectfully dissent. Id.

III. The Decision Below is Unconstitutional

Prejudice

(a). Oath of Office

Virginia Code §24.233(1) is unconstitutional as it

is; facially, patently unconstitutional where Virginia

Code §24.233(1) states:

[N]eglect of duty, misuse of office, or

incompetence in the performance of duties

when that neglect of duty, misuse of office,

or incompetence in the performance of

duties has a material adverse effect upon

32 141 S. Ct. 1532, 1538 (2021)

the conduct of the office App. O infra, at

Pet.App.38,

Incompetent is defined as “not having the

necessary skills to do something successfully”33.

Virginia Code §49.1 requires that the Petitioner

perform to the best of the Petitioner’s ability as it

states: “... according to the best of my ability, (so help

me God)”34

(b). Religious Protection

The Petitioner a practicing Christian, also decrees

the intentional use of “so help me God”, id., within

the oath conveys a greater obligation to abide by the

Petitioner’s Christian beliefs. Jesus decreed:

Whoever accepts a little child in my name

accepts me. If one of these little children

believes in me, and someone causes that

child to sin, then it will be very bad for that

person. It would be better for him to have a

large stone tied around his neck and be

drowned in the sea. How terrible for the

people of the world because of the things

that cause them to sin. Such things will

happen. But how terrible for the one who

causes them to happen (Matthew 18:6-7

International Children’s Bible)

33 Lexico.com “Incompetent”-Not having or showing the

necessary skills to do something successfully. Retrieved on

May 1 2022. https://www.lexico.com/en/definition/incompetent

34 App., T infra., at Pet.App.42

The Petitioner served on the school board with

religious conviction eagerly attempting to improve

educational conditions to ensure that all children

obtain a Free and Appropriate education. This

religious conviction would enable each child to reach

their full potential preventing future stumbling

blocks. Virginia Code §24.233(1) is a violation of the

Petitioner’s U.S. Const. Amend. I as it seeks to

remove the Petitioner’s religious obligation under

the Oath of Office.

(c). Parental Rights

Virginia Code §24.2-233(1) conflicts with Virginia

Code §1-240.1 as it states: “[A] parent has a

fundamental right to make decisions concerning the

up bringing, education, and care of the parent’s

child”.35 The Petitioner sought outside assistance to

improve the educational environment for all

children including his own. These parental rights

have been acknowledged by the Court as rights that

are distinguished and provided for by the United

States Constitution ((Pierce v. Society of Sisters 268

U.S. 510 (1925), Stanley v. Illinois, 405 U.S. 645

(1972), Meyer v. Nebraska, 262 U.S. 390, 401 (1923),

Wisconsin v. Yoder, 406 U.S. 205 (1972), Troxel v.

Granville, 530 U.S. 57 (2000)).

(d). Void for Vagueness

Virginia Code §24.2-233(1) is void for vagueness,

a doctrine that the Court upheld in Connally v.

General Construction Co., 269 U.S. 385 (1926) to

35 App., U infra., at Pet.App.43

vehemently vindicate civil rights involving due

process, equal protection and free speech. The void

for vagueness doctrine voids existing laws that do

not allow an individual of reasonable intelligence to

have fair warning as to know what is illegal.36

Virginia Code §24.2-233(1) in its facial language and

use of “neglect, misuse, and incompetence” and

“materially adverse”37 is such a law as the terms

used are subjective and absent the means to

quantify. When the law does not provide an

individual acknowledgement that the individual’s

actions would constitute a violation then the law is

void.

It would be impossible for an any person to know

that advocating for the civil rights of the disabled

and an African American would constitute “neglect,

misuse, and incompetence” or to be considered

“materially adverse” under Virginia Code §24.2233(1).

(e). Overbreadth

Virginia Code §24.2-233(1) is overbreadth, a form

of unconstitutionality also upheld by the Court in

Cox v. Louisiana, 379 U.S. 536 (1965), and Session

v. Dimaya, 138 S. Ct. 1204 (2018), Dombrowski v.

Pfister, 380 U.S. 479 (1965). All appointed officials

36 Id. at 393 “[T]he dividing line between what is lawful and

unlawful cannot be left to conjecture. The citizen cannot be

held to answer charges based upon penal statutes whose

mandates are so uncertain that they will reasonably admit of

different constructions. A criminal statute cannot rest upon an

uncertain foundation”

37 App., R infra., at Pet.App.39

across the entire Commonwealth of Virginia can fall

victim to Virginia Code §24.2-233(l)’s hazardous

entanglement. Whereas an appointed official who

may haphazardly pick their nose during a meeting

could be accused of “neglect of duty, misuse of office,

and incompetence” causing “materially adverse”

condition(s) and then subsequently be petitioned for

removal.

A legal statue is considered overbreadth when it

can be imposed arbitrarily, without conformity,

wantonly, and in a freakish manner.38 This

imposition of Virginia Code §24.2-233(1) arbitrarily,

without conformity and in a freakish manner can be

illustrated through the actions of the Respondent.

The Respondent having established legislative

intent in its own dealings and with other school

board members, staff, including but not limited to

the following:

(i). Jacob Wright, Chair and other members

have contributed to the violation of school

board pohcies, caused significant legal fees

to incur due to pending lawsuits. This was

demonstrated in a settled case in October of

2021. School board attorney disclosed that it

was a fact a non-qualified, male employee

was hired over a female employee who was

qualified;

38 «

[A] long line of cases in this Court makes it clear that a State

or municipality cannot "require all who wish to disseminate

ideas to present them first to police authorities for their

consideration and approval, with a discretion in the police to

say some ideas may, while others may not, be . . .

disseminate[d]. . . ." Cox v. Louisiana, 379 U.S. 557 (1965)

(ii). Jacob Wright, Chair encouraged the

school board to “chastise” Superintendent

Eugene Kotulka for retaliating against the

Petitioner;

(iii). Jacob Wright, Chair admitted to

driving the school division’s Director of

Finance, Keven Rice “wild”: the causation of

this employee to resign henceforth creating

a hostile work environment;

(iv). Jacob Wright, Chair and other

members

fired

and

placed

the

Superintendent Eugene Kotulka on a leave

of absence defuncting an opportunity for

accountability in exchange for unearned

benefits, non-disparagement, and a non

disclosure clause in a settlement agreement

handing Eugene Kotulka thousands of

dollars in taxpayer resources,

and

indemnity forever all under the secret veil of

retirement;

(v). Randy Tucker, former Chair during a

public meeting after admitting the school

division had mishandled special education

funds in stating in-part: “[0]ur school

division under Special Ed was doing a

lot of things we should have never got

into” then proclaimed a decree on behalf of

the school board: “[W]e don’t care if a kid

needs a dog, we’re not supplying the

dog” (emphasis added);

(vi). Superintendent Eugene Kotulka

publicly called out the school division’s

Nursing Coordinator,

as a “[A] DA

Compliance issue”. It was stated in-part by

Eugene

Kotulka that the

Nursing

Coordinator was “[A]n ADA compliance

issue here as well, a major one, major, major

one”;

(vii). Danielle Morgan a school board

member publicly encouraged a “work study”

be conducted on the Nursing Coordinator

due to the Nursing Coordinator’s disabling

condition as the work study would justify

the employee’s termination as Jacob Wright

in concurring the Nursing Coordinator is

“[N]ot doing a whole lot...”;

(viii). In the Fall of 2018 Superintendent

Eugene Kotulka in closed session disclosed

to the School Board he requested the

Commonwealth Attorney id est. Judge Stein

to investigate a family that filed an Office of

Civil Rights complaint. Police force was

used;

(ix).

School

board

members

have

misappropriated milhons in federal funds

while also giving false certification.

Superintendent Eugene Kotulka candidly

disclosed during a public budget meeting

the school board had funds in a fund account

called “carry over” which could be used to

fund unbudgeted expenses. Virginia does

not have a fund account called “carry over”

listed in the ASFRIN chart of accounts;

(x). The school board failed to provide

adequate oversight to prevent a sex scandal

from occurring in which approximately

being

females

were

twenty-eight

investigated by the Virginia State Police;

(xi). Danielle Morgan a board member and

registered nurse stated in response to a

student having the need for medical services

in-order-to attend school: “From a nursing

perspective if they needed something that a

nurse could prescribe, they wouldn’t have a

clean physical to attend school and they

would be homebound”;

Information of this nature was provided to the

Respondent. These school board members have yet

to be petitioned for removal but were commended

and placed into positions of leadership. In addition,

the Respondent, a member and chairman Matt

Garten assaulted a police officer, a Class 6 felony

failed to resign from office. Member Cletus Nicely

opined that the Vice President of the United States

belongs in a cornfield a racial slur from the Woodrow

Wilson era having also failed to resign from office.

The Respondent’s legislative intent is clear as it

has built the arbitrary bridge across the wanton

ravine connecting non-conformity to freakish

supporting that the Petition filed under Virginia

Code §24.2-233(1) is overbreadth inflicting cruel and

unusual punishment against the Petitioner.

IV.

The

Question [s]

Presented

are

Exceptionally Important, Imperative Public

Concern, and Warrants Review in This Case

The QUESTION^] PRESENTED are not only

recurring which have a major practical importance

but without a clear understanding it places

Americans in harm’s way by allowing States to

replace equal protection with prosecution while the

quality of life of our most vulnerable children who

are dependent on these protections will be

diminished. The district court, Fourth Circuit, and

Respondent failed to recognize the significant

importance of “equal protection” laws. This wise

Court is now in the exceptionally extraordinary

position to remind them of this importance. It is a

national mandate to eliminate discrimination; a

mandate, we all must work tirelessly together to

fulfill as no one person is able to carry this burden

alone.

The Court should grant writ of certiorari to the

Petitioner as this case involves a revolving conflict

among the court of appeals. The Fourth Circuit

having issued an incorrect opinion, as the decision

below conflicts with the Court’s precedence in BP

P.L.C v. Major and City Council of Baltimore,

Georgia v. Rachel, and Boag v. McDonald and

others. The Fourth Circuit’s application of in pari

materia incorrectly elevates this case to extremely

extraordinary as it seeks to reperfuse a holding in a

landmark decisions involving due process dating

back six decades.

A favorable outcome in granting writ will be

beneficial to over 10,216,20039 individuals in

occupations that directly and indirectly safeguard

the lives of 9.4 million of our country’s most

vulnerable children. These children encompass 2.7

million

who

receive

Section

504

plan

accommodations, and 6.7 million who receive special

education services under IDEA.40 This case will help

safeguard these student’s precious constitutional

rights, and their opportunity to obtain their own

American Dream. These children rely on parents,

advocates, and others including the Petitioner; all

who are members of the “any person” race who

selflessly care for children placing themselves in

harm’s way to quash evil doers. This case can help

equip these enamored stewards of children with

protections in safeguarding these precious civil

rights from discrimination; an inexcusable form of

domestic terrorism so that each child may receive a

Free and Appropriate education.

CONCLUSION

This Court held Hamm v. City of Rock Hill, 379

U.S. 306 (1964): “[C]onvictions must be vacated and

the prosecutions dismissed”. The opportunity has

now been placed before this Court to-do-so. It is

mercifully prayed this court will grant writ of

certiorari.

'k'k'krk'k'k

I was denied federal asylum by the Fourth Circuit

and the district court whether intentional or not, we

39 Occupational Outlook Handbook at: https://www.bls.gov/ooh/

40 Civil Rights Data Collection at: https://ocrdata.ed.gov/

all make mistakes and I forgive them. If nothing

else comes from this please forward a message to

Congress for me:

The current problem is bigger than this

petition. It’s a problem that has

metastasized requiring greater scrutiny

than I am able to provide alone. Congress

needs to address it. If public investment was

rivaled by the intensified accountability

attributed to private investment this

problem would never have existed. If you

want to create an education that is Free and

Appropriate here are some suggestions.

Mandate each state provide parental choice

on where their child may be educated.

Empower parents with the power of choice

through a voucher. No school division is the

same, but receiving a free and appropriate

education should be. Safeguard federal

funds by keeping them at the State level not

the

local

level.

Standardized

transparency and financial reporting across

all schools that receive federal funds. The

financial audit is broken in its application to

measure resourcefulness in education. A

financial audit will not attest to the broken

dreams, failed equal opportunity, the

numerous times parents flee in tears after

being told by school personnel “we do not

have the resources to accommodate”. A

financial audit only provides assurance for

what actually happens, not what was

supposed to happen. A free and appropriate

education should not be built on fancy words

and good intentions: it can’t if it’s going to

work.

In harmonious spirit it was decreed:

“I said to my children, I’m going to work and

do everything that I can do to see that you

get a good education. I don’t ever want you

to forget that there are millions of God’s

children who will not and cannot get a good

education, and I don’t want you feeling that

you are better than they are. For you will

never be what you ought to be until they are

what they ought to be”

Martin Luther King Jr.

“This is one country. It has become one

country because all of us and all the people

who came here had an equal chance to

develop their talents. We cannot say to ten

percent of the population that you can’t have

that right; that your children cannot have

the chance to develop whatever talents they

have; that the only way that they are going

to get their rights is to go into the streets

and demonstrate. I think we owe them and

we owe ourselves a better country than that”

President John F. Kennedy.

We still have a lot of work ahead of us.

I have no regrets, and no apologies for my actions

to be a voice and give aid to the most vulnerable

children in my community. Justices, thank you for

your consideration. Court staff thank you for your

patience. West District village of Clifton Forge thank

you for your unwavering support and love. Cameron

Gray, I regret I never said it sooner; I would not be

the person I am today without your introduction to

God’s grace, mercy and the love of friendship. I give

my esteemed love to my beautiful wife and children

for sacrificing their precious time with me so I could

heed this noble cause. A child after losing a mother

to cancer experienced horrific discrimination. The

grandmother of the child asked me in 2018 “who

stands up for this kid?” I replied: “I will stand up for

the kid”;

I’M STILL STANDING

To my special little friends, love courageously.

Respectfully submitted.

Donnie T.A.M. Kern, MSA, EA

Petitioner, Pro Se

Alleghany County Public Schools

School Board Member

Clifton Forge West District

115 Church Street

Clifton Forge, VA 24422

(540) 958-4958

quilltaxation@gmail.com

www. donnietamkern. com

www.facebook.com / alleghanyfireside

June 2022

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.