Petition for Writ of Certiorari — Kofi Adomako Ohene Kyei, Petitioner v. Oregon Division of Child Support

Supreme Court briefMay 23, 2022

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FILED

MAY 2 3 2022

IN THE

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK f

SUPREME COURT, U.S.

Kofi Kyei

— PETITIONER

(Your Name)

vs.

Division of Child Support

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

Oregon Court of Appeals

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Kofi Kyei

(Your Name)

c/o Kyei Family, Relatives, Benefactors

PO Box 961

(Address)

Newport, Oregon, 97365

(City, State, Zip Code)

707-289-1020

(Phone Number)

QUESTIONS PRESENTED

Whether the State’s administrative order to suspend a federally governed license,

squarely against the directives of a judicial court injunction order that mandated

one additional due process step before suspending that license, also violated the

federal constitutional rights of the licensee?

Whether the State’s administrative order violated the commerce clause of the

United States Constitution by taking away a commercial license that is governed

by federal law and is required for interstate commerce?

LIST OF PARTIES

M All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

Kyei v. Div. of Child Support, 669 Or App 517 (Sept 2021)

APPENDIX B

State Administrative order to suspend Petitioner licenses

appendix C

Oregon Supreme Court order denying discretionary reconsideration

appendix d

Judicial Court Injunction Order against State agencies and administrators

APPENDIX E

Text of Constitutional and Statutory Provisions involved

APPENDIX F

TABLE OF AUTHORITIES CITED

CASES

Kyei v. Div. of Child Support, 669 Or App 517

Niz-Chavez v. Garland, 593 U. S. -- (2021)

Turner v. Rogers, 564 US 431 (2011)

UNITED STATES CONSTITUTION

Ninth Amendment

Fourteenth Amendment, Section 1

Commerce Clause, Article 1, Section 8, Clause 3

UNITED STATES CODE

49 USC Section 31308

CODE OF FEDERAL REGULATIONS

49 CFR Parts 300-399

OREGON REVISED STATUTES (ORS)

25.084

25.750

25.287(l)(f)

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

i or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[XI For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix _A

to the petition and is

[)$ reported gfKyei v. Div. of Child Support, 669 Or App 5(Sept 2021)

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the _

court

appears at Appendix

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was

[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:___________

, and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including______

(date) on

(date)

in Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[X| For cases from state courts:

The date on which the highest state court decided my case was 9/15/2021

A copy of that decision appears at Appendix A

[X A timely petition for rehearing was thereafter denied on the following date:

2/24/2022

, and a copy of the order denying rehearing

appears at Appendix_Q

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) in

(date) on

Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

A fuller text of the provisions involved are provided at Appendix E.

The Ninth Amendment of the US Constitution (Unenumerated Rights)

The enumeration in the Constitution of certain rights, shall not be construed to

deny or disparage others retained by the people.

The Fourteenth Amendment of the US Constitution. Section One

No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

The Commerce Clause of the US Constitution. Article 1. Section 8. Clause 3

The United States Congress retains the power to “regulate commerce with foreign

nations, and among the several states, and with the Indian tribes”.

49 USC Section 31308

Federal Commercial Driver’s License Law

49 CFR Parts 300-399

Federal Motor Carrier Safety Administration (FMCSA) Regulations

Oregon Revised Statutes (ORS)

25.084

(1) The administrator may provide support enforcement services as described in

OES 25.080 only if** a person has provided a written application to the

administrator that:

(a) Is signed by the person;

(b) Includes the last-known addresses of the obligor and the obligee; and

25.759

The only bases for contesting the suspension are:

(a) That the arrears are not greater than three months of support or $2,500;

(b) That there is a mistake in the identity of the obligor;

183.482

(7) Review of a contested case shall be confined to the record, and the court shall

not substitute its judgment for that of the agency.

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

15 3

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Family Law Department:

In the matter of Minor Child

Clare Akua Kyei Swift

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Kofi Kyei

Petitioner

and

Tessica Lynn Swift

)

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Case No.: 0406-66556

ORDER TO VACATE SUSPENSIONS

AND RESTORE PETITIONER

LICENSES

___________ ____

ENTERED

FEB 2 5 2013

Respondent

IN REGISTER BY KH

Based on the stipulation of the parties below, the court orders filed on 135717720097

05/06/2009,07/01/2011 and the consistent court record against any suspension of

Petitioner’s licenses in this matter until further order of the court on that issue;

THE COURT HEREBY ORDERS AS FOLLOWS:

The Division of Child Support and District Attorney are to immediately issue vacate

orders to clear all prior suspensions of Petitioner licenses. The Department of Motor

Vehicles shall abide by the vacate orders and restore all of Petitioner driving privileges

and clearances to their pre-suspension statuses. Unless a suspend order issues from the

court. Petitioner licenses shall not be suspended based on any child support or arrears.

SIGNED:

/my

Dated this IS day of

, 2012

Dated this /¥day of /%?{/ . 2012

/ QSp\/SQg/

Judge

Dated this__ day of

Dated this___day of

2012

., 203

ORDER TO VACATE SUSPENSION AND RESTORE LICENSE

Kofi Kyei, Petitioner

P.O. Box 25253

Portland, OR 97298-0253

~li°\

STATEMENT OF THE CASE

This case presents the simplest and most perfect vehicle to constrain the

administrative powers of the State when it comes to State actions that disregard

either federal law, the independence of judicial power, or constitutional rights.

The result of plenary judicial (not administrative) court litigation from May

2012 to February 2013 was a judicial court injunction order (“judicial order”) that

constrained the State administrative process. The judicial order was also signed off

by the involved parties. It was not appealed. The order required one additional due

process step before any State administrative action was taken to suspend the

licenses of the Licensee (“Petitioner”) on the basis of any child support or arrears.

Licensee is the Petitioner before this Court. The judicial order stated:

“Based on the stipulation of the parties below, the court orders filed on

04/17/2009, 05/06/2009, 07/01/2011 and the consistent court record against any

suspension of Petitioner’s licenses in this matter until further order of the court on

that issue;

THE COURT HEREBY ORDERS AS FOLLOWS:

The Division of Child Support and District Attorney are to immediately issue

vacate orders to clear all prior suspensions of Petitioner’s [Licensee’s] licenses. The

Department of Motor Vehicles shall abide by the vacate orders and restore all of

Petitioner driving privileges and clearances to their pre-suspension statuses.

Unless a suspend order issues from the court, Petitioner licenses shall not be

suspended based on any child support or arrears.”

The record shows that the testimony and uncontroverted facts before the

judicial court at the issuance of this order included, but not limited to: four or more

instances of the State suspending or taking away all of the licenses of Petitioner

without the mandatory, prerequisite, statutory authority to do so administratively

that is codified by State law at ORS 25.084; four or more instances of the State’s

violations against court orders barring the State from suspending Petitioner

Licensee’s licenses (instances which precipitated the litigation and the resultant

judicial order at issue); four or more instances of the State taking away Petitioner’s

interstate commercial licenses or his federal commercial driver license based on

false or incorrect entries into Oregon’s Child Support Worksheet and the resultant

false administrative determination of child support and arrears; four or more

instances of the State certifying the incorrect, overinflated child support and

arrears, without credit to previous support payments as required, as basis for its

administrative license suspension actions; personal conflicts of interest involving

the State administrators who advanced the incorrect support and arrears; the

adverse disruption of license suspensions to Petitioner’s employment and right to

earn a living; the record of the State suspensions obstructing Petitioner’s ability to

earn any income from 2009 to 2013, and the subsequent dismantling of his career

and ability to earn a living in order to support his family and his children, due to

the State’s history of administrative license suspensions that were in turn based on

the State’s incorrect administrative determination of support and arrears.

Four years later in 2017, the same slate of State administrators reopened and

advanced this same State support matter between the same parties on the same

issues and with the same State case number, but in another county jurisdiction

where their administrative office was located. While the case number in

Clackamas County was 17DR13435 and the prior case number in Multnomah

County was 0406-66558, the State case number (#051AAAK52141) and all other

factors in both counties were identical. The State thus advanced that same State

administrative case that was squarely addressed by the judicial order, which in

turn had not been appealed, superseded or otherwise affected by any subsequent

judicial court proceeding or court order. The same State administrators then

proceeded with their own parallel administrative order proceedings to repeat the

suspension of Petitioner’s licenses, in total disregard to the one additional step

constraint that was mandated by the plain text of the judicial order.

The State’s administrative proceedings involved an administrative law judge

(ALJ), a regular State employee who was tasked with making decisions according

to State administrative law. Under Oregon’s administrative statutes, the ALJ and

State administrators made a record that only considered the amounts of support

and arrears as claimed by the State administrators, whether correct or incorrect,

and excluded any objection, challenge or any other record that would invalidate the

amounts of State administrative child support and arrears.

Oregon has a standard worksheet and formula for establishing child support

and arrears. In establishing its incorrect child support and arrears, the State

administrators had made multiple false entries into the worksheet that grossly

exaggerated the child support and arrears. For example, the State entered an

annual salary of $135,000 instead of $11,700; the number of non-joint minor

children or dependents as zero (0) instead of 3; and the number of overnight visits

for the sole one child in the support matter as zero (0) instead of 60 at that time.

The AU specified that: “I won't be addressing whether or not that order is

valid.” See Oregon Appellate record Transcript at 25. Petitioner was thus blocked

by the ALJ from showing that the false entries were inconsistent with the contents

of the State's own files and government records, or that the State administrators

also failed to fully credit Petitioner's prior child support payments, resulting in a

markedly overinflated, false administrative support and arrears order.

Notably, had the State actually made accurate entries into the child support

worksheet, and had the previously paid child support been correctly credited, the

support amounts would have been correctly determined. The result would have

been a fully paid support record and no arrears, with credit for overpayments.

By excluding corrective or vetting steps, the State administrative process

confirmed the continuing suspension of all of Petitioner's licenses, including

commercial, federal interstate and driver licenses. Because the child support and

arrears bases used by the State were too outlandish to be satisfied by Petitioner,

the State suspensions and resulting blockages were effectively permanent.

The State administrative action took away Petitioner's livelihood and ability

to care for his family and children by taking away the federal commercial licenses

that he needed to work and earn income under federal regulations. Such grave

injustice permanently harming Petitioner’s career, family and children would have

been eliminated if the State had obeyed the judicial order.

Petitioner appealed to the Court of Appeals. In a published decision at Kyei v.

Div. of Child Support, 669 Or App 517 (Sept 2021), the appellate court stated that

its review of the State’s administrative actions on appeal was constrained by

Oregon administrative law to substantial reason within the confines of the

administrative record that had been created by the State. See Kyei at 518; ORS

183.482(7). That administrative record on appeal excluded any verification or

vetting of the State’s underlying, incorrect support and arrears order, and excluded

the one additional step mandated by the existing judicial order. At its discretion,

the Oregon Supreme Court declined any further review the appellate decision.

Hence this Petition for Certiorari.

REASONS FOR GRANTING THE PETITION

The State administratively exercised power over an important question of

federal law with profound national ramifications that should be settled by the US

Supreme Court, and this is the perfect vehicle to do so. Counsel and Amici Curiae

are also available to further advise the Court, at no cost to Petitioner.

The questions presented are of keen public significance as this Court has

repeatedly asserted that the unrestrained administrative power of the government

is of national importance, especially when the administrative action implicates the

ninth and fourteenth amendments, or the commerce clause of the US Constitution.

This Court should note the use of the word “any” in the judicial court

injunction order at issue, in its statement: “Petitioner licenses shall not be

suspended based on any child support or arrears.”

And compare to, for example, Niz-Chavez v. Garland, 593 U. S. -- (2021)

which prominently emphasized the single letter “a”. This Court explained that:

<fWords are how the law constraints power ... If men must turn square

corners when they deal with the government, it cannot be too much to expect the

government to turn square corners when it deals with them.”

The published appellate opinion from the Court of Appeals decided an

important question that impacts federal law, and is in conflict with the US

Constitution and the relevant decisions of the US Supreme Court.

The published appellate decision below sanctioned State administrative

authority over a fully litigated and adjudicated judicial court order in a way that so

far departed from the accepted and usual course of judicial proceedings, as to call

for an exercise of the US Supreme Court’s supervisory power. The results rendered

as impotent, the independent adjudicative power of the judiciary under State

administrative law.

The published appellate decision allowed the State administrators to take

away federal commercial licenses that are propagated and governed under federal

law, which in turn directly impacts federal interstate commerce. See, for example,

49 USC Section 31308 and 49 CFR Parts 300-399.

The decision below, however, goes beyond raising the State administrative

process above the judicial process. It also allowed the State to avoid the one due

process step that was specified by the judicial order. The record shows that in the

face of several years of unauthorized suspensions of Petitioner’s licenses and

improper exercise of State administrative power, the court order mandate of one

additional due process step was to facilitate the vetting of the State’s record of

incorrect child support and arrears numbers, which the State administrators had

repeatedly used as the improper basis for their license suspensions.

The record also implicates the cherry-picking of laws to advance an improper

child support enforcement proceeding, which is an issue of critical national import.

The decisions from Oregon below claimed to abide by State law at ORS 25.750. Yet

they did not address the prerequisite due process steps that are also specified and

mandated by State law at ORS 25.084. The State administrative suspension

process also side-stepped the inconvenience of the timely, due process requirement

to revise and correct its child support numbers at ORS 25.287(l)(f).

Of note, since the incorrect support and arrears amounts claimed by the

State administrators are outliers that Petitioner cannot meet, and it takes several

years of litigation to possibly overcome the administrators’ baked-in errors even if

successful, and with regard to possible qualified immunity, it is also of critical

national importance that the administrative process must, before the State

administrative order is enforced, require the State’s support and arrears amounts

to be independently reviewed, vetted and aligned with the ability to pay, and the

accuracy of the factors and entries into State child support worksheets must be

independently reviewed and vetted to prevent the arbitrary entries and grossly

overinflated, incorrect support amounts. Cf: Turner v. Rogers, 564 US 431 (2011).

The effectiveness of improper State administrative actions at nullifying

careers, dismantling families, traumatizing children and depriving dependents

should be addressed by the US Supreme Court as a national priority.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

XofiXyei

Date:

5/23/2022

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.