Petition for Writ of Certiorari — Paul Johnson, Petitioner v. Matthew Tepper

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No.

FEB 1 5 2024

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OFFICE OP "'HE CLERK

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Supreme Court of tlje ®mtetr &tatra

PAULJOHNSON

Petitioner,

v.

MATTHEW TEPPER

Respondent.

On Petition For Writ of Review

To The Texas Supreme Court

PETITION FOR WRIT OF CERTIORARI

Paul Johnson

Petitioner pro se

130 Marcus Rd

McDade TX 78650

512-698-6827

pjpxmcd@earthlink.net

1

QUESTION PRESENTED FOR REVIEW

Whether the United States Supreme Court will

review the actions of a Texas Court of Appeals, which

departed from its role as a neutral arbiter by engaging in

advocacy for a governmental entity against a pro se

plaintiff, violating the principle of party presentation by

raising issues and arguments sua sponte, unaddressed by

either party.

2

TABLE OF CONTENTS

Contents

o

No.

1

QUESTION PRESENTED FOR REVIEW..........

2

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

3

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

3

CITATIONS OF OPINIONS................................

STATEMENT OF JURISDICTION.....................

5

CONSTITUTIONAL PROVISIONS INVOLVED....5

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

6

REASONS FOR GRANTING THE PETITION..... 11

CONCLUSION

13

14

APPENDIX.....

Texas Supreme Court denial of petition for review.

14

App. 1

Petition for Review to the Supreme Court of Texas.

14

App. 1-27

Court of Appeals denial of rehearing. App. 27-28.

14

Response to Motion for Rehearing. App. 28-37... 14

Letter requesting response to motion for

14

rehearing. App. 37....................................................

14

Johnson’s Motion for Rehearing. App. 38-47,

Court of Appeals Memorandum Opinion. App. 4814

56

Johnson’s Appellant’s Reply Brief. App. 57-72... 14

14

Tepper’s Appellee’s Brief. App. 73-100.......

14

Johnson’s Appellant’s Brief. App. 101-121.

3

Order declaring Johnson to be a vexatious litigant.

14

App. 122-123

14

Tepper’s Bench Brief. App. 124-129.

Johnson’s Response to Vexatious Litigant Motion.

App. 130-139................................................................. 14

Tepper’s Motion to Determine Johnson to be a

Vexatious Litigant. App. 140-149.............................. 14

Portion of hearing transcript where Judge

Campbell determines the five cases. App. 150-151.... 14

TABLE OF AUTHORITIES

Cases

7

American General Fire and Cas. Co. v. Weinberg

7

Department of Human Resources, u. Wininger ....

10

Goss v. Lopez........................................................

9

Greenlaw v. United States...................................

11

In re Stephen Casey..............................................

11, 12

McGee v. McFadden.............................................

Pont Nemours and Company v. Collins Securities and

8

Exchange Commission v. Collins.............................. .

8

Texas Nat. Bank v. Karnes............................................

8

Vawter v. Garvey............................................................

CITATIONS OF OPINIONS

On 1/24/2023 Tepper filed a Motion to Determine

Johnson to be a Vexatious Litigant. (App. 140-149).

On 1/29/2023 Johnson filed a Response to Vexatious

Litigant Accusation and Motion for Sanctions (App. 130139).

4

On 3/1/2023 Tepper filed a “Bench Brief for Hearing

to Declare Paul Johnson a Vexatious Litigant” (App. 124129).

On 3/1/2023 Judge Carson Campbell issued an order

declaring Johnson to be a vexatious litigant (App. 122-123).

On 4/19/2023 Johnson filed Appellant’s Brief (App.

101-121).

On 5/26/2023 Tepper filed Appellee Matthew

Tepper’s Brief (App. 73-100).

On 6/13/2023 Johnson filed Appellant’s Reply Brief

(App. 57-72).

On 8/7/2023 the Court of Appeals issued its

Memorandum Opinion (App. 48-57).

On 8/22/2023 Johnson filed Motion for Rehearing.

(App. 39-48).

On 8/23/2023 the Court of Appeals requested a

response to the motion for rehearing (App. 38-39),

On 9/5/2023 Tepper filed Appellee Matthew Tepper’s

Response to Motion for Rehearing (App. 28-38).

On 9/7/2023 the Court of Appeals denied Johnson’s

Motion for rehearing (App. 27-28).

On 10/23/2023 Johnson filed Petition for Review to

the Supreme Court of Texas (App. 1-27).

On 12/1/2023, the Texas Supreme Court denied

Johnson’s petition for review (App. 1).

5

STATEMENT OF JURISDICTION

The jurisdiction of the United States Supreme Court

is invoked pursuant to Rule 10 of the Rules of the United

States Supreme Court. The Court should grant certiorari

in this case as a Texas Supreme Court decision has

implicated a significant federal question, thereby

conflicting with established precedents of the United States

Supreme Court concerning the fundamental principle of

party presentation.

The opinion in question was rendered by the

Seventh Court of Appeals on August 7, 2023. A subsequent

Motion for Rehearing before the Seventh Court of Appeals

was denied on September 7, 2023. A Writ of Review was

sought from the Texas Supreme Court, which was denied

on December 1, 2023. This Petition for Writ of Certiorari is

timely filed on or before February 29, 2024, adhering to the

time constraints stipulated by the Rules of the United

States Supreme Court.

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitutional provisions involved are from the

Fourteenth Amendment, the portion pertinent to this case

is that States must provide due process and equal

protection of the laws:

“No State shall... deny to any person within its

jurisdiction the equal protection of the laws” which should

prohibit discriminating against pro se litigants and ensure

fairness in legal proceedings.

6

STATEMENT OF THE CASE

This case concerns an appeal of an order declaring

Petitioner Paul Johnson (Johnson), to he a vexatious

litigant (App. 122-123). Johnson had filed a slander suit

against Respondent Matthew Tepper (Tepper) and then

Tepper filed a motion to have Johnson be declared a

vexatious litigant (App. 140-149). Johnson non-suited the

slander case but continues to appeal the order declaring

him to be a vexatious litigant.

When the case was appealed to the Seventh Court of

Appeals of Texas (COA), they issued a Memorandum

Opinion on August 7, 2023, (App. 48-56), which will

hereinafter be referred to as The Opinion. The Opinion

was not based on the issues or arguments of the parties,

but the COA acted as a party advocate for Tepper, creating

findings that the lower court never found, and raising

issues and defenses for Tepper that had not been raised or

argued in the lower court.

The lower court found five specific “qualifying cases”

orally at the hearing that they used against Johnson (App.

150-151). The lower court refused to issue written findings

about the cases they used, so the orally stated cases in the

record are the cases that needed to be supported on appeal.

Johnson’s brief to the COA effectively debunked the

lower court’s qualifying cases (App. 101-121), so to bolster

Tepper’s ease, The Opinion sua sponte came up with five

different “qualifying cases,” (App. 51-53).

The Opinion also sua sponte raised the issue of

absolute immunity for Tepper to lie under oath and make

false and defamatory statements against Johnson because

the lies were made under oath while giving testimony at a

semi-judicial proceeding (App. 54-55). Tepper had not

raised that argument in the lower court, nor in his brief to

the COA. The Opinion came up with the argument of

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absolute immunity, by independently researching the

record and sua sponte coming up with issues and

arguments that were not before the Court of Appeals.

The Opinion also sua sponte made the argument

that Johnson did not preserve his issue of constitutionality

because Johnson had not presented that argument to the

trial court (App. 55-56). Tepper never made that argument

nor cited any authority for it, so Tepper had already waived

that issue because it was not properly briefed.

The Opinion issued was based on unassigned error,

errors that had not been presented to the court by either

party. The Texas Supreme Court has repeatedly found

that to be error:

“The Court of Appeals based its

judgment on a point neither party had

assigned, i.e., on unassigned error. The court

itself found what it obviously regarded as

fundamental error. In so doing, it erred.”

American General Fire and Cas. Co. v.

Weinberg, 639 S.W.2d 688, 25 Tex.Sup.CtJ.

405 (1982), Supreme Court of Texas.

“By reversing on this unassigned error,

the Court of Appeals erroneously elevated a

pleading defect to the status of fundamental

error....Therefore, the application for writ of

error is granted and, without hearing oral

arguments, the judgment of the Court of

Appeals is reversed and this cause is

remanded to the Court of Appeals for

disposition of points of error properly

presented thereto.” Department of Human

Resources, v. Wininger, 657 S.W.2d 783 (1983),

Supreme Court of Texas.

8

“We reverse the Court of Appeals’

attorney’s fees judgment because it was based

on unassigned error.” Texas Nat. Bank u.

Karnes, 717 S.W.2d 901 (1986), Supreme

Court of Texas.

“The ground set forth by the Court of

Appeals for reversing summary judgment was

not raised by Garvey in either his response to

Vawter’s motion for summary judgment, his

brief to the Court of Appeals, or his

application for writ of error to this court...This

court therefore reversed the Court of Appeals’

judgment, holding that it had erred by raising

grounds for reversal sua sponte.” Vawter v.

Garvey, 786 S.W.2d 263 (1990), Supreme

Court of Texas.

The Federal Courts use the terminology of party

presentation instead of unassigned error, but the United

States Supreme Court routinely prohibits decisions being

made that do not follow the principle of party presentation:

“...the reports relied upon by that court

included a variety of data and economic

observations which had not been examined

and tested by the traditional methods of the

adversary process. We are not cited to any

statute, rule, or decision authorizing the

procedure employed by the Court of Appeals.”

Pont Nemours and Company v. Collins

Securities and Exchange Commission v.

Collins, 432 U.S. 46, 97 S.Ct. 2229, 53 L.Ed.2d

100 (1977), United States Supreme Court.

“In both civil and criminal cases, in the

first instance and on appeal, courts follow the

principle of party presentation, i.e., the

parties frame the issues for decision and the

9

courts generally serve as neutral arbiters of

matters the parties present....Courts do not,

or should not, sally forth each day looking for

wrongs to right. We wait for cases to come to

us, and when they do we normally decide only

questions presented by the parties.” Greenlaw

v. United States, 128 S.Ct. 2559, 171 L.Ed.2d

399, 554 U.S. 237, 8 Cal. Daily Op. Serv. 7716,

21 Fla. L. Weekly Fed. S 421, 76 USLW 4533,

2008 Daily Journal D.A.R. 9297 (2008),

Supreme Court of the United States.

“...we now hold that the appeals panel

departed so drastically from the principle of

party presentation as to constitute an abuse of

discretion. We therefore vacate the Ninth

Circuit’s judgment and remand the case for an

adjudication of the appeal attuned to the case

shaped by the parties rather than the case

designed by the appeals panel....In our

adversarial system of adjudication, we follow

the principle of party presentation....in both

civil and criminal cases, in the first instance

and on appeal...we rely on the parties to

frame the issues for decision and assign to

courts the role of neutral arbiter of matters

the parties present.” United States v.

Sineneng-SmithI, 140 S.Ct. 1575, 206 L.Ed.2d

866 (2020), Supreme Court of the United

States.

In Johnson’s case, the COA was anything but a

neutral arbiter. Since The Opinion was based on issues,

arguments, and evidence that Johnson was never allowed

to challenge, Johnson was not granted his Constitutional

privilege to challenge a court’s ruling, thus denying

Johnson due course of the laws.

10

“The Fourteenth Amendment, as now

applied to the States, protects the citizen

against the State itself and all of its

creatures.,..words of the Due Process

Clause...require that deprivation of life,

liberty or property by adjudication be

preceded by notice and opportunity for

hearing appropriate to the nature of the case.

The fundamental requisite of due process of

law is the opportunity to be heard, a right that

has little reality or worth unless one is

informed that the matter is pending and can

choose for himself whether to...contest....No

better instrument has been devised for

arriving at truth than to give a person in

jeopardy of serious loss notice of the case

against him and opportunity to meet it.” Goss

v. Lopez, 8212 898, 419 U.S. 565, 95 S.Ct. 729,

42 L.Ed.2d 725 (1975), United States Supreme

Court.

Johnson had no opportunity to challenge the five

different cases the COA found sua sponte. Johnson had no

opportunity to challenge the issues the COA sua sponte

considered, argued and cited, of absolute immunity and

preservation at the trial court. Thus, The Opinion denied

Johnson his constitutional due process of law.

11

REASONS FOR GRANTING THE PETITION

Granting Petition for Certiorari in this particular

case is extremely important because Johnson has already

been given a life sentence of not having access to the

courts.

Even though not deferring the sanctions of a

vexatious litigant order until the appeals are over is an

abuse of discretion (In re Stephen Casey, No. 18-0289

(2019), Supreme Court of Texas, “We therefore granted

relief directing the trial court to modify the sanctions order

to defer payment of the monetary and performative

sanctions until rendition of final judgment, thus allowing

the merits of the sanctions order to be determined on

appeal.”), in this case the judge abused his discretion and

did not defer the monetary or non-monetary sanctions.

They have already caused Johnson to nonsuit the

underlying slander case because he could not pay the

monetary sanction. Johnson has also been denied access to

the courts to file a simple Consumer Protection Act suit in

a Justice of the Peace court, and other filings in district

court.

Not granting certiorari in this case will deny

Johnson access to the courts for life, and Johnson never

had an opportunity to challenge the issues and arguments

that the COA sua sponte made without party presentation.

The United States Supreme Court has recognized its

obligation to intervene when lower courts err, especially

when the lower courts’ errors deprive pro se litigants of

their constitutional right, to due process and access to the

courts.

In McGee v. McFadden this Court recognized that

reviewing bodies may too often turn their decisions into a

rubber stamp when a pro se litigant is involved. This Court

12

was considering litigation that originated determining a

Certificate of Appealability.

“A court of appeals might

inappropriately decide the merits of an

appeal, and in doing so overstep the bounds of

its jurisdiction. A district court might fail to

recognize that reasonable minds could differ.

Or, worse, the large volume of COA requests,

the small chance that any particular petition

will lead to further review, and the press of

competing priorities may turn the

circumscribed COA standard of review into a

rubber stamp, especially for pro se litigants.

We have periodically had to remind lower

courts not to unduly restrict this pathway to

appellate review.” McGee v. McFadden, 139

S.Ct. 2608 (2019), Supreme Court of United

States, (internal citations omitted).

In Johnson’s case, when the COA erred and made

their determination on issues that were not before the

court, the Texas Supreme Court, because of the small

chance that any particular case would lead to further

review, and because Johnson was a pro se litigant, turned

appellant Johnson’s Petition for Review into a rubber

stamp of the faulty COA opinion (App. 1).

Just as the United States Supreme Court did in the

McGee case, it appears to be time to remind the Texas

Supreme Court not to unduly restrict that pathway for

appellate review. Without this writ, Johnson will never get

to exercise his constitutional right to challenge the issues

and arguments that the COA sua sponte made to turn that

court away from being a neutral arbiter and turned them

into a party advocate for Tepper.

Johnson has a constitutional right to be able to

challenge the issues, arguments and evidence that the COA

13

sua sponte used against him. Denial of this Petition for

Certiorari will forever deprive Johnson of that

constitutional due process of law.

CONCLUSION

Granting certiorari is essential to safeguard the due

process rights of litigants in Texas. The practice of Texas

Courts of Appeal deciding cases based on issues and

arguments they invent, rather than those presented by the

parties, undermines the integrity of the judicial process.

Therefore, Johnson respectfully requests this Court to

grant certiorari and remand the case to a Texas Court of

Appeals for adjudication solely on the issues raised by the

parties, ensuring fair and impartial consideration of the

matter at hand.

Respectfully submitted,

/si 'Paul Mm&w

Petitioner, pro se

130 Marcus Rd

McDade TX 78650

512-698-6827

pipxmcd@earthlink.net