Petition — Renwick v. United States Court of Appeals for the Second Circuit
Supreme Court brief1978
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wee Supreme Court, U.S ~
FILED
JAN 23 1978
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7 MICHAEL RODAK, JR., CLERK |
In THE
Supreme Court of the United States
October Term, 1977
No F%=1037
Frep Renwick,
Petitioner-Plaintiff,
cufiigeen
Unrrep States Court or AppEaLs FoR THE SEconD Circurt,
—and—
JanicE Renwick, Francis A. Nicotar, Toe Law Firm or
ZeBRowski & Nicoual, Epirn Mruuer, Morton B. Srmuperman,
Respondents.
MOTION FOR LEAVE TO FILE PETITION, AND
PETITION S@ReDRCRRINETeieeD FOR WRIT
OF MANDAMUS OR FOR COMMON LAW WRIT OF
CERTIORARI TO THE COURT OF APPEALS
FOR THE SECOND CIRCUIT
Dated: January 20, 1978
Frep RENwIcK,
Plaintiff-Petitioner Pro Se
Address: 195 South Sierra Street,
#310
Reno, Nevada 89501
Telephone: 702-329-6251
INDEX
Subject Index —
PAGE
SIIIIINID cicibshsbisetephicieniipieiapliniguaieneciclatiibineamekagngnincnngmemaneen 1
PRTITION ........ 3
I. Jurisdiction 4
II. Questions Presented .... 5
Ill. Constitutional Provisions and Statutes Involved 6
IV. Statement of Petitioner’s saa eae 8 i)
V. Reasons Petitioner Relies On For Allowance of
the Writs ...... > —
Di I I isin nnesentitesieemntiipinbeastigliin 17
Arrmavit, Proor or SERVICE .... ini 19
APPENDIX .... | 21
A. Affidavit of Petitioner .... la
B. Copy of Order of Respondent Court of Ap-
EE Se Se 19a
C. Copy of Order and Three Endorsements of
District Court ...... 2la
ConstITUTIONAL Provisions Crrep
Article ITI, Section 2, Clauses 1 and 2 ~...0.2.... 4, 6,16
Article IV, Sction 1 4,6,9
ii
| PAGE
Article VI, Clauses 2 and 8 ........................-.+- 4, 6, 9, 14, 15, 16
BS Be uciccitssdeiclesnecnnsibcithnitntdaiaisitdsainddiaamldl 4,6,7,9
BE UP sctiticiintpintitieideaicininailaicass sdethisameaiimainiianle 4, 6, 7,9
Amendment 14, Section 1 -22..2.....222.....-.-.s.-000+ 4, 6, 7, 9, 14, 16
Statutes CiTep
Title 28, U.S.C., Section 1254(1) 2.0... 3, 4, 5, 7,9
Tito GR, TAG, TROT BIE cess icccinstcecsiinsnsinopnimsnnntinn 4
Title 28, U.S.C., Section 1343(3, 4) -.......... 4, 7,10, 13, 14, 16
Title 28, U.S.C., Section 1651(a) -...................... 3, 4, 5, 7, 8, 9
Title 28, U.S.C., Section 1654 0.2.2... cad 1,3
Title 28, U.S.C., Section 2106 _.............. 3, 4, 5, 7, 8, 9, 12, 18
Se Bg eres, CIE TU cicttsnvtincsscnsinsescsiinttinntiagsti 7,18
Title 28, U.S.C., Section 2202 .................... cidsicemaeaminaialagel 7,18
Title 42, U.S.C., Section 1983 _.......0....... 4, 7, 8, 9, 10, 11, 12,
13, 14, 15, 16, 17
Title 42, U.S.C., Section 1984 _......... 3, 4, 5, 7, 9, 12, 13, 16
i I ae ates 4
Cases CITED
Adams y, City of Park Ridge, 293 F. 2d 585 at 587 ...... 15
Adickes v. Kress & Co., 398 U.S. 144 0 15
RUE De. TR Ge es I alent ceili tack ecinesinsinm 17
Bivens v. Six Agents, 403 U.S. 388 00. eee 17
Boddie v. Connecticut, 401 U.S. 371 oo. 17
PAGE
Borreca v. Fasi, 369 F. Supp. 906 .. 15
England v. Medica] Examiners, 375 U.S. 411 ............ 4,10, 17
Ex-parte Virginia, 100 U.S. 339 22... ...--.-.sceceseeeeeene 16, 17
Ex-parte Wall, 107 U.S. 265 16, 17
Ex-parte Young, 209 U.S. 123 ........ am 15, 16
Hamm v. Rock Hill, 379 U.S. 306 -........... 16
Hander v. San Jacinto Junior College, 522 F. 2d 204... 5
Hill v. Florida, 325 U.S. 538 -.................. a
Kesler v. Department of Safety, 369 U.S. 153 16
Kleschka y. Driver, 411 F. 2d 436 ~.......0..0......... 10, 13, 16
Like v. Carter, 448 F. 2d 798 .... . 5
Male v. Crossroads Associates, 320 F. Supp. 141 ............ 16
Monroe v. Pape, 365 U.S. 167 ........ 2 ; 17
Mullarky v. Borglum, 323 F. Supp. 1218 ~.................. 15
People v. B.N.B. Realty Corp., 379 N.Y.S. 2d 324 _...... 15
Plessy v. Ferguson, 163 U.S. 587 -............... 16
Re Parker, 131 U.S. 221 and 120 U.S. 737 ....W.... 4,16
Redding v. Pate, 220 F. Supp. 124 .......... i 4
Sail’er Inn Inc. v. Kirby, 485 P. 2d 529 16
United States v. Price, 383 U.S. 789 ............2-..-...ceeee--- 15
Warren v. National Assoc., 375 F. Supp. 1043 _.......... ae |
IN THE
Supreme Court of the United States
October Term, 1977
Frep Renwick,
Petitioner,
—Y,—
Unirep Srates Court or AppEaLs ror THE Seconp Crrcvlrt,
—and—
Janice Renwick, Francis A. Nicouar, Tae Law Firm or
Zesrowski & Nicouar, Eprra MriuuEr, Morton B. Superman,
Respondents.
MOTION FOR LEAVE TO FILE PETITION FOR
DETERMINATION OR FOR WRIT OF MANDAMUS
OR FOR COMMON LAW WRIT OF CERTIORARI TO
COURT OF APPEALS FOR THE SECOND CIRCUIT
Pursuant to Rule 31 of S. Ct. Rules, and Affidavit here-
with annexed, Fred Renwick, petitioner herein, appearing
personally pursuant to Title 28, U.S.C., Section 1654, moves
this Court as follows:
1. For leave to file the petition, hereto annexed, for de-
termination or for writ of mandamus or for common law
writ of certiorari.
2. Upon granting such leave, to determine herein, in this
Court, petitioner’s issues and complaint filed in the lower
2
courts, or in the alternative, issue a writ of mandamus or
common law writ of certiorari, whichever this Court deter-
mines to be appropriate, directed to the United States
Court of Appeals for the Second Circuit to entertain, not
dismiss, petitioner’s appeal, in accordance with the prayer
in Section VI of said petition.
Dated: 20 day of January, 1978.
Signed: Frep Renwick
Address: 195 South Sierra Street, #310
Reno, Nevada 89501
Telephone: 702-329-6251
In THE
Supreme Court of the United States
October Term, 1977
gk wee she
Frep Renwick,
Petitioner,
—Vv.—
Untrep States Court or APPEALS For THE SEconD Circurrt,
—and—
JanicE Renwick, Francis A. Nicotar, Toe Law Firm or
Zesrowski & Nicoial, EpirH Mruier, Morron B. Srperman,
Respondents.
PETITION FOR DETERMINATION OR WRIT OF
MANDAMUS OR FOR COMMON LAW WRIT OF
CERTIORARI TO COURT OF APPEALS FOR THE
SECOND CIRCUIT
Fred Renwick, petitioner herein, appearing personally
pursuant to Title 28, U.S.C., Section 1654, petitions this
Court for review and determination, pursuant to Title 42,
U.S.C., Section 1984 and Title 28, U.S.C., Section 2106, or
in the alternative and in the discretion of this Court, to
issue a writ of mandamus or any writ of certiorari, pur-
suant to Title 28, U.S.C., Section 1254(1) or 1651(a), Rule
30 of S. Ct. Rules, to respondent Court of Appeals, and
shows as follows:
I.
Jurisdiction
1. Jurisdiction to grant review and determination or
a writ of mandamus or common law or statutory writ of
certiorari to the Court of Appeals, sought by petitioner
herein, is conferred on this Court by: :
(a) Provisions of U. S. Constitution: Article III, Sec-
tion 2, Clauses 1 and 2, pursuant to Article IV, Section 1;
Article VI, Clauses 2 and 3; Amendments 1, 9, 14, Section
1; and
(b) Laws of the United States: Title 28, U.S.C., Sec-
tions 1254(1), 1343, 1651(a), 2106; Title 42, U.S.C., Sections
1983, 1984; and
(c) Judicial power and jurisdiction to effectuate and
enforce own mandates, pursuant to 98 L. Ed. 114, Rule 30
of S. Ct. Rules, Rule 21 of FRAP; Rule 81(b) of FRCiv.P,
and the authority: “. .. Mandamus lies where an inferior
court refuses to take jurisdiction, when by law it ought
to do so, or when, having obtained jurisdiction, it refuses
to proceed in its exercise.” Re Parker, 131 U.S. 221 (1888)
and 120 U.S. 737 (1886).
2. Alternative possible remedies elsewhere not with-
standing, original and appellate jurisdiction of a federal
court to grant declaratory, injunctive and other redress and
relief, sought by petitioner herein, for the deprivation of
his rights under color of law, pursuant to Title 42, U.S.C.,
Section 1983, lies and is maintainable in federal court re-
gardless of either diversity of citizenship or of jurisdic-
tional amount, pursuant to Title 28, U.S.C., Sections 1331,
1343; England v. Medical Examiners, 375 U.S. 411; Red-
5 .
ding v. Pate, 220 F. Supp. 124; Hander v. Sun Jacinto Ju-
nior College, 522 F. 2d 204 at 205; Like v. Carter, 448 F. 2d
798, certiorari denied, 405 U.S, 1045.
Il.
Questions Presented
1. Whether the U. S. Supreme Court has jurisdiction
for review and determination herein, on the basis of peti-
tioner’s statutory rights to review pursuant to Title 42,
U.S.C., Section 1984 or Title 28, U.S.C., Section 2106; or
in the alternative, to issue a writ of mandamus or statutory
or common law writ of certiorari, pursuant to Title 28,
U.S.C., Section 1254(1), 1651(a), directed to the Court of
Appeals, on the basis that said respondent Court of Ap-
peals erred or abused its discretion in dismissing and de-
clining to allow an appeal from the dismissal order of Dis-
trict Court.
2. Whether the respondent Court of Appeals erred or
abused its discretion in finding that petitioner is not en-
titled to declaratory and other relief demanded as a matter
of law, and in determining that subject matter and every
claim of the six in petitioner’s complaint are “frivolous
and absolutely devoid of merit” under the Constitution,
Laws and in the Judicial System of the United States, and .
in dismissing petitioner’s complaint.
3. Whether this Court should exercise its statutory
jurisdiction for review and determination; or in the alter-
native, in its discretion, to issue a writ of mandamus or a
common law or statutory writ of certiorari to the respon-
dent Court of Appeals.
Ill.
Constitutional Provisions and Statutes Involved
A. Constitutional Provisions
U. S. Constitution, Article III, Section 2, Clauses 1 and
2; Article IV, Section 1; Article VI, Clauses 2 and 3;
Amendments 1, 9, 14, Section 1; all copied and set forth as
follows:
1. U. S. Constitution, Article III, Section 2, Clause 1:
“The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the
United States, .. .”,
2. Article III, Section 2, Clause 2: “‘.. . In all the other
Cases before mentioned, the Supreme Court shall have ap-
pellate Jurisdiction, both as to Law and Fact, with such
Exceptions, and under such Regulations as the Congress
shall make.”
3. Article IV, Section 1: “Full Faith and Credit shall
be given in each State to the public Acts, Records, and
Judicial Proceedings of every other State. .. .”,
4. Article VI, Clause 2: “This Constitution, and the
Laws of the United States which shall be made in Pur-
suance thereof; ... , shall be the supreme Law of the
Land; and the Judges in every State shall be bound there-
by, any Thing in the Constitution or Laws on any State to
the Contrary notwithstanding.”
5. Article VI, Clause 3: “... all the executive and judi-
cial Officers, both of the United States and of the several
States, shall be bound by Oath or Affirmation, to support
this Constitution; .. .”.
7
6. Amendment 1: “Congress shall make no law respect-
ing an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or |
of the press; or the right of the people peaceable to assem-
ble, and to petition the Government for a redress of griev-
ances.”
7. Amendment 9: “The enumeration in the Constitution,
of certain rights, shall not be construed to deny or dis-
parage others retained by the people.”
8. Amendment 14, Section 1: “All persons born or
naturalized in the United States, and subject to the juris-
diction thereof, are citizens of the United States and of
the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or im-
munities 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
jts jurisdiction the equal protection of the laws.
B. Statutes
Title 28, U.S.C., Sections 1254(1), 1343(3, 4), 1651(a),
2106, 2201, 2202; Title 42, U.S.C., Sections 1983, 1984;
copied and set forth as follows:
1. Title 28, U.S.C., Section 1254(1): “Cases in the courts
of appeals may be reviewed by the Supreme Court by the
following methods: (1) By writ of certiorari granted
upon the petition of any party to any civil or criminal case,
before or after rendition of judgment or decree; .. .”
2. Title 28, U.S.C., Section 1343(3, 4): “The district
courts shall have original jurisdiction of any civil action
8
authorized by law to be commenced by any person: ... (3)
To redress the deprivation, under color of any state law,
statute, ordinance, regulation, custom or useage, of any
right, privilege or immunity secured by the Constitution
of the United States or by any Act of Congress providing
for equal rights of citizens or of all persons within the
jurisdiction of the United States; (4) To recover damages
or to secure equitable or other relief under any Act of
Congress providing for the protection of civil rights, in-
cluding the right to vote.”
3. Title 28, U.S.C., Section 1651(a): “The Supreme
Court and all courts established by Act of Congress may
issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and
principles of law.”
4. Title 28, U.S.C., Section 2106: “Determination. The
Supreme Court or any other court of appellate jurisdic-
tion may affirm, modify, vacate, set aside or reverse any
judgment, decree, or order of a court lawfully brought
before it for review, and may remand the cause and direct
the entry of such appropriate judgment, decree, or order,
or require such further proceedings to be had as may be
just under the circumstances.”
5. Title 42, U.S.C. Section 1983: “Civil action for
deprivation of rights. Every person who, under color of
and statute, ordinance, regulation, custom, or usage, of any
State or Territory, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, priv-
ileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.”
9
6. Title 42, U.S.C., Section 1984: “Same; review of
proceedings. All cases arising under the provisions of this
Act in the courts of the United States shall be reviewable
by the Supreme Court of the United States, without re-
gard to the sum in controversy, under the same provisions
and regulations as are provided by law for the review of
other causes in said court.
IV.
Statement of Petitioner’s Case
1. This petition is filed pursuant to the authority for
review and determination, Title 42 U.S.C., Section 1984
and Title 28, U.S.C., Section 2106; or in the alternative, in
the discretion of this Court, to issue certiorari or extra-
ordinary writs vested in this Court by the provisions of
Title 28, U.S.C., Sections 1254(1) and 1651(a), and Rule
30 of the Rules of this Court, to review the order of the
U. 8. Court of Appeals for the Second Circuit, declining to
allow an appeal from the judgments of the District Court
entered on May 23 and June 10, 1977, summarily dismissing
and refusing determination and entry of declaratory judge-
ment as demanded and set forth in prayer of this petition.
2. The original action and complaint filed but dismissed
in District Court arose under the U.S. Constitution,
particularly under the provisions of Article IV, VI and
Amendments 1, 9, 14, and under federal law, particularly
Title 42, U.S.C., Section 1983, where petitioner demanded
declaratory relief and summary judgment on the issues
of liability for redress as provided by law, 1983, against
defendants herein named for deprivation on each of six
claims of rights privileges, or immunites secured by afore-
said Articles and Amendments to the U. S. Constitution.
10
3. Petitioner presented the four following questions to
District Court and respondent Court of Appeals:
(a) Whether federal court has jurisdiction to maintain
petitioner’s cause of action and grant declaratory and other
relief pursuant to law under 1983 and Title 28, U.S.C.,
Section 1343 (3, 4), on the basis that petitioner shows in
his complaint that his claims and causes of action are not
frivolous, and on the basis that petitioner’s complaint meets
all three requirements in respondent Court of Appeals’
own mandate, namely: “...To maintain a cause of action
under 1983 plaintiff must show: 1) that he has been
deprived of a right, privilege, or immunity secured by the
Constitution and laws of the United States; 2) that the
defendants subjected plaintiff to this deprivation, or
‘cause(d)’ him to be so subjected; and 3) that the defen-
dants acted ‘under color of any statute, ordinance, regula-
tion, custom, or useage, of any State * * *’”’ Kletschka v.
Driver, 411 F. 2d 436 at 447 (1969); and on the basis that
England v. Medical Examiners, supra, authorizes that
federal claims can be litigated in federal courts, notwith-
standing possible alternative remedies elsewhere.
(b) Whether District Court erred or abused its discre-
tion in dismissing petitioner’s claims and complaints, and
whether said claims and complaints are, or can be frivolous,
on the basis that, pursuant to Kletschka, supra, 1) each
right of the six refused or denied to Fred Renwick was
secured by the Constitution and Laws of the United States,
and no frivolous rights are so secured, 2) each claim of the
six is admitted by defendants, and no claim is frivolous
where State Court Judicial Officers admit using the power
of their office to deprive persons of rights secured and
guaranteed by the Constitution and Laws of the United
States, 3) Useage of State law, and actions taken under
color of law, to deprive persons of secured rights is illegal
11
and not frivolous, pursuant to 1983; and is not outside
federal subject matter jurisdiction as set forth in Constitu-
tional mandates and Laws cited in Section I hereinbefore.
(c) Whether the acts and Orders made by defendant
Judicial Officers and complained of herein were in fact
Judicial Acts, done within Judicial discretion, and whether
each and all defendants herein named shall be liable to the
party injured, Fred Renwick, in an action at law, suit in
equity, or other proper proceeding for redress, as a matter
of law, pursuant to 1983.
(d) Whether the Court of Appeals for the Second Circuit
should and must exercise its statutory jurisdiction and
discretion to determine each of the six aforesaid claims and
complaints, and grant declaratory and other relief de-
manded, certifying that the foregoing is true, and that
petitioner is entitled to relief, redress and restitution
pursuant to provisions of 1983, against each defendant
herein named, as a matter of law.
4. A copy of District Court’s said judgment and of Court
of Appeals’ said order is set forth in the Appendix to this
petition, together with a copy of the District Court’s
opinion rendered in connection with its judgment.
5. Pursuant to 8S. Ct. Rule 31(2), a certified copy of the
record in this case is unimportant to file at this time, on the
basis that all necessary facts, points and authorities
pertinent to determination of the questions presented
herein and in the courts below are set forth either herein
or in petitioner’s Affidavit annexed herewith in the
Appendix.
6. The relief sought by petitioner herein is the same in
either case, determination instantly by this Court, pursuant
12
to Title 42, U.S.C., Section 1984 and Title 28, U.S.C., Section
2106; or in the alternative and in the discretion of this
Court, either writ of mandamus or any writ of certiorari
directed to respondent Court of Appeals, namely relief set
forth in prayer hereinafter. The sole difference in which
Court renders determination and relief is one of procedure.
7. If determination is ordered in one of the lower courts,
petitioner would have the benefit of certiorari review in
this Court in case of an unfavorable decision.
8. Conversely, petitioner is seeking instantly, and is
willing to accept as the unchallengeable law of the land,
this Court’s determination, now, of the questions presented.
V.
Reasons Petitioner Relies on for Allowance
of the Writs
Summary of Five reasons: (i) no other remedy, (ii)
petitioner clearly is entitled to relief demanded, (iii) de-
fendants clearly are obliged to submit to review by U. S.
Supreme Court, (iv) defendants are not immune from civil
suit and clearly are liable to petitioner under 1983, (v)
Court clearly is obligated under U. S. Constitutional man-
date to effectuate and enforce existing federal laws and
statutes; as follows:
1, The review and determination and declaratory relief
herein sought is available, and there is an adequate remedy,
by way of appeal to the Court of Appeals for the Second
Cireuit, and writ of certiorari to this Court. However,
respondent Court of Appeals has dismissed petitioner’s
appeal, claiming that it has discretionary power to do so.
13
Petitioner therefore has no recourse to obtain review of
U. 8. District Court’s summary dismissal judgment herein
other than by application for review and determination to
this Court, or for issuance by this Court of a writ of man-
damus or a common law writ of certiorari directed to
respondent Court of Appeals and, in the event of an un-
favorable decision in the lower court, a subsequent applica-
tion to this Court for a writ of certiorari.
2. Pursuant to Title 42, U.S.C., Section 1984, petitioner
clearly is entitled to review, determination sought herein,
and is entitled either here or in a lower court, to summary
judgment and declaratory relief to the extent set forth
in prayer of this petition as a matter of law, for the four
following reasons:
(a) The pleadings and evidence adduced herein and in
Affidavit herewith annexed meet the necessary and suf-
ficient mandated requirements of paragraph (15) of
Kletschka, supra.
(b) The acts of defendants, individually .and in concert
constitute an illegal deprivation of the rights of petitioner,
Fred Renwick, under color of law, in violation of Title 28,
U.S.C., Section 1343(3) and Title 42, U.S.C., Section 1983,
pursuant to authorities cited in Section IV of Affidavit
herewith annexed.
(c) The pleadings and evidence adduced herein and in
aforesaid Affidavit show that the defendant State Court
Officials and persons herein named, acting under color of
State law, have deprived petitioner, Fred Renwick, of his
liberty, property, parental and secured custody rights with-
out due process of law, and have unreasonably and il-
legally interfered with the right of petitioner to hold
specific employment and to follow his chosen profession.
The defendant State Court Officials and persons herein
14
named have, without duly authorized notice or hearing,
illegally used State Law to sell petitioner’s home, property;
split his family; take his children and send them to live
in Cleveland Heights, Ohio with no visitation, custody or
companionship; garnisheed petitioner’s income, and got
him fired. Petitioner contends that his property, home,
family, children, career, employment, Constitutional rights
of liberty, good name, all are important, not frivolous, is-
sues, and appeals to this Court for review and determina-
tion, on the basis that said refusals and acts of deprivation
perpetrated by defendants herein named are prohibited by
the Constitution of the United States, Articles VI, Clauses
2 and 3 and Amendment 14, Section 1. Federal law, pur-
suant to Title 42, U.S.C., Section 1983 and 28 U.S.C., Sec-
tion 1343(3, 4), authorizes jurisdiction and provides rem-
edies sought by petitioner herein. Petitioner is entitled
as a matter of law to summary judgment to be entered
in his favor to the extent set forth in prayer hereinafter.
(d) No genuine triable issue of material fact exists, and
petitioner is entitled as a matter of law to declaratory re-
lief and summary judgment to be entered declaring the
acts of defendants to be invalid, illegal, and in deprivation
of those rights secured to petitioner, Fred Renwick, by the
United States Constitution. Wherefore, petitioner prays
for the aforesaid summary judgment to be so entered.
3. Every defendant person herein named, and all five
of them, clearly is obligated to submit to review and de-
termination herein, on the basis that:
(a) Federal law, Title 42, U.S.C., Section 1983, as quoted
in paragraph 5, Section III hereinbefore, includes “every
person.”
(b) Defendant Law Firm of Zebrowski & Nicolai, even
if a corporation, clearly and beyond controversy is a
15
“person” within application of due process clauses of fifth
and fourteenth Amendments, and for due process and equal
protection deprivations, within meaning of civil rights act,
42, U.S.C.A., Section 1983, pursuant to Borreca v. Fast, 369
F. Supp. 906 at 906, 911 (1974); People v. B.N.B. Realty
Corp., 379 N.Y.S. 2d 324 at 325, 326 (1976); Adickes v.
Kress & Co., 398 U.S. 144 at 150; Adams v. City of Park
Ridge, 293 F. 2d 585 at 587; Mullarky v. Borglum, 323
F. Supp. 1218 at 1224; United States v. Price, 383 U.S. at
789. District Court clearly erred in determining that any
defendant herein named is not a “person”, pursuant to the
aforecited Authorities.
(c) The state has no power to impart to its officer im-
munity from responsibility to the supreme authority of
the United States, pursuant to Article VI, Clauses 2 and 3,
U. S. Constitution, and Ez-parte Young, 209 U.S. 123 at
143 (1908).
4. Every defendant person herein named clearly is
liable under 1983 to the party injured, Fred Renwick, and
defendant state court officials, Silberman, Miller, Nicolai
and the Law Firm of Zebrowski & Nicolai, clearly possess
no immunity from liability by virtue of their office or
status for relief from acts complained of herein, and from
summary declaratory judgment relief sought by petitioner
in the entire case, for the three following reasons:
(a) No judicial jurisdiction extends or exists to do acts,
and acts are void, if prohibited by the Constitution and
Laws of the United States. The Supremacy Clause,
Article, VI, Clause 2, requires prohibition of the applica-
tion of state laws where there is a clear collision between
federal law and the application of an otherwise valid state
enactment; a state law, however clearly within a state’s
acknowledged power, which interfered with or is contrary
16
to federal law is void under the supremacy clause of U. S.
Constitution, by authority of: Kesler v. Department of
Safety, 369 U.S. 153, 172 (1962); Sail’er Inn v. Kirby, 485
P. 2d 529 at 530, 534, 535; Hill v. Florida, 325 U.S. 538
(1945) ; Hamm v. Rock Hill, 379 U.S. 306 (1964).
(b) No immunity from civil suit pursuant to 1983 ex-
tends or exists by virtue of office for acts done wholly
without jurisdiction, or for acts and orders prohibited by
the Constitution and Laws of the United States, or for the
practice of anti-constitutional law; whether the act done by
him was judicial or not is to be determined by its character,
not by the character of the agent, by authority of Suprem-
acy Clause, Article VI, Clauses 2 and 3, U.S. Constitution;
Ezx-parte Virginia, 100 U.S. 339 at 348 (1879); Ea-parte
Wall, 107 U.S. 265 (1882). “Even if New York law does
grant defendants immunity this would not be binding on a
federal court in an action brought under 1983,” pursuant
to respondent Court of Appeals’ own mandate, paragraph
(19) of Kletschka v. Driver, 411 F. 2d 436 at 448 (1969) ;
District Court clearly erred in determining that the defen-
dant Judicial Officers herein named “are immune from suit
for damages”, and in dismissing petitioner’s complaint.
(c) Every act of the six complained of herein and in the
courts below, was prohibited by the Constitution and Laws
of the United States, on the basis that states are forbidden
by the 14th Amendment from denying persons equal pro-
tection of the laws, pursuant to Plessy v. Ferguson, 163
U.S. 537 at 543 (1896); Male v. Crossroads Associates, 329
F. Supp. 141; and more authorities set forth in Section
IV of Affidavit herewith annexed.
5. Finally, pursuant to Article III, Section 2, Clauses 1
and 2; Title 28, U.S.C., Section 1343(3, 4); Title 42, U.S.C.,
Sections 1983, 1984; Re Parker, supra, Ex-parte Young,
17
209 U.S. 123 at 135, 143 (1908) ; Ea-parte Virginia, 100 U.S.
339 at 346 (1879); Boddie v. Conn., 401 U.S. 371 (1971);
England v. Medical Examiners, 375 U.S. 411; this court’s
statutory duty is clear and court must act to grant either
determination herein now, or in the alternative, in the
discretion of this Court, a writ of mandamus or a writ of
certiorari as demanded in prayer hereinafter. Federal
courts have granted previously to similarly deprived per-
sons as petitioner herein declaratory and other relief of
restitution and of expunging and voiding unconstitutional
records and state court orders in the cases of Bivens v. Six
Agents, 403 U.S. 388; Monroe v. Pape, 365 U.S. 167, Bell v.
Hood, 327 U.S. 678; Ex-Parte Wall, 107 U.S. 265 (1882);
Warren v. National Assoc. of Secondary School Principals,
375 F. Supp. 1043. Absolutely no cause exists for this
Court to refuse to accept jurisdiction, enforce or effectuate
existing laws and statutes cited herein, and grant peti-
tioner’s prayer immediately following, to which petitioner
is entitled, as a matter of law.
VI.
Conclusion, Relief
Wherefore, petitioner prays that this Court:
1. Enter an order and summary declaratory judgment
on the issue of liability alone, pursuant to Title 42 U.S.C.
Section 1983 and Rule 56 of FRCiv.P., declaring the acts
of defendants herein named to be invalid, illegal, and in
deprivation of those rights secured to petitioner, Fred Ren-
wick, by the Constitution and Laws of the United States;
and certifying as true that Fred Renwick has suffered
deprivations of rights under color of law; and that Fred
Renwick is entitled to redress, pursuant to 1983, as a matter
of law, with the amount of damages and restitution to be
18
determined in other and further proper proceedings,
pursuant to Title 28, U.S.C., Sections 2106, 2201, 2202; and
that no immunity extends, by virtue of office, to any defen-
dant person herein named, or
2. In the alternative, in the discretion of this Court,
issue a writ of mandamus or any writ of certiorari, which-
ever this Court finds appropriate, directed to respondent
Court of Appeals, to entertain petitioner’s appeals filed
therein and herein, and enter an order granting the pre-
ceeding said relief, and
3. Grant and issue such other and futher relief as it
deems proper and just.
Dated: January 20, 1978
Respectfully submitted,
Signed: Frep Renwick
Address: 195 South Sierra Street, #310
Reno, Nevada 89501
Telephone: 702-329-6251
19
Affidavit, Proof of Service
IN THE
Supreme Court or THE Unirep Srartes
October Term, 1977
UN: sccestibechonss
Frep Renwick,
Petitioner-Plaintiff,,
—_—V.—
Unrrep States Court or APPEALS FoR THE SEconp Crrcurt,
—and—
Janice Renwick, Francis A. Nicotar, Toe Law Firm or
ZeBRowsKI & Nicouai, EprrH Mier, Morton B. SicperMan,
Respondents.
I, Fred Renwick, despose and say that I am plaintiff-
petitioner pro se herein, appearing personally pursuant to
Title 28, U.S.C., Section 1654, and that on the -........ day of
January, 1978, pursuant to Rules 31(3) and 33, Rules of
the Supreme Court, I served three copies of the attached
motion, petition and appendices to the Supreme Court of
the United States on each of the parties required to be
served herein, as follows:
On Honorable Milton Pollack, Judge of the U.S. District
Court for the Southern District of New York, by mailing
20
Affidavit, Proof of Service
the copies in a duly addressed envelope, with first class
postage prepaid at his office at U. S. Court House, Foley
Square, New York, New York 10007.
On Janice Renwick, Francis A. Nicolai and the Law Firm
of Zebrowski & Nicolai, Esqs., three defendants-appellees
herein, by mailing the copies in a duly addressed envelope,
with first class postage prepaid, to Francis A. Nicolai, Esq.,
counsel of record in the Court of Appeals for the Second
Circuit for the three said defendants-appellees at his office
at 307 South Main Street, New City, New York 10956.
On Honorable Edith Miller, a defendant-appellee herein,
by mailing the copies in a duly addressed envelope, with
first class postage prepaid, to her office at 60 Lafayette
Street, New York, New York 10013.
On Honorable Morton B. Silberman, a defendant-appellee
herein by mailing the copies in a duly addressed envelope,
with first class postage prepaid, to his office at Supreme
Court, State of New York, New City, New York 10956.
On Honorable J. Edward Lumbard, William H. Mulligan,
Thomas J. Meskill, each, Circuit Judges, United States
Court of Appeals for the Second Circuit, with first class
postage prepaid at their office at U. S. Court House, Foley
Square, New York, New York, 10007.
All parties required to be served have been served.
Signed: Frep Renwick
Subscribed and sworn to before me on the 20 day of
Jan., 1978.
Signature and Title
21
Affidavit, Proof of Service
APPENDIX
This Appendix contains a copy of the documents and
papers listed in paragraphs 4 and 5, part IV, of petition;
namely: (i) Petitioner’s affidavit and Statement of Claims
and Complaints filed but dismissed in lower Courts, (ii)
Copy of mandate of Respondent Court of Appeals, (iii)
Copy of Opinion and Judgement of District Court.
APPENDIX
INDEX
Subject Index
PAGE
AFFIDAVIT AND STATEMENT OF PETITIONER’S CLAIMS ........ la
si elileenitnall 2a
es ET a eee di elite eeecestncintons 2a
III. Petitioner’s Six Claims, Secured Rights .............. 4a
IV. Argument: Illegal Deprivation of Rights ............ 9a
Tc CR TI iNidiccitlinlacieccinalidecieaiitiiclnisccndenii 16a
CoNSTITUTIONAL Provisions CITED
Pg S| EE
Article VI, Clauses 2 and 8 ........................... 9a, 10a, 12a, 14a
p ERD ARATE AEN eee lla, 15a
im Danii nssennnnsnssnemteneeneeneneeneemmenencc lla
Amendment 14, Section 1 ...... 9a, 10a, lla, 12a, 13a, 14a, 15a
Statutes CrTEep
Title 42, U.S.C., Section 1983 ....................... 2a, 4a, 10a, 12a,
13a, 14a, 15a, 16a
Cases Crrep
Armstrong v. Manzo, 380 U.S. 545 02. 12a
Bailey v. Alabama, 219 U.S. 219 22.22... eeeeneenneeeee lla
Boddie v. Connecticut, 401 U.S, 371 -......2222. lla
PAGE
Constantine v. South-Western, 120 F. Supp. 417 -........... 15a
Dent v. West Virginia, 129 U.S. 114 -......0.. se l6a
Ex-parte Virginia, 100 U.S. 339 0... eee 10a
ST TF 8S Fn nn 10a
nen 10a
Fahrer v. Fahrer, 304 N.E. 2d 411 «22.2... eee l4a
Ford v. Ford, 371 U.S. 187 ..............-.ecs-ecesesoses 4a, 7a, 9a, 10a
Gelbman v. Gelbman, 245 N.E. 2d 192 —..000 ee... 15a
Greene v. McElroy, 360 U.S. 479 2022222... eeeeeeeeceeeeeees 16a
Griffin v. Griffin, 327 U.S. 220 and 328 U.S. 876 ~.......... 13a
Hazel-Atlas Co. v. Hartford-Empire Co., 322 U.S. 238 .. 14a
Peet oe Be, TP Be Se Ge eecttitecceennnetteiniiticinataaniensis l4a
Ban Bb Bn HB Gig Be ai Ba ee eicrnesetinserestterscintntinsespeisiiiinis 12a
J. Us, v. Partammm, GES WF. Bemmppe, TG annnnsccssecenncsnescecescesecseeess l5da
Kletschka v. Driver, 411 F. 2d 436 200. la, 3a, 9a
Ae 5S 8 Rane l4a
McMeans v. Schwartz, 330 F. Supp. 1397 -.......-.2..... 13a
O’Connor v. Donaldson, 422 U.S. 563 200. 15a
Pierce v. Society of Sisters, 268 U.S, 510 0 .. 12a
Plessy v. Ferguson, 163 U.S. 587 002... eee 9a, 12a
Sail’er Inn, Ine. v. Kirby, 485 P. 2d 529 2.0. 10a, 14a
Saizan v. Saizan, 311 So. 2d 281 uw... ecee eee 12a
Schware v. Board of Bar Examiners, 353 U.S. 232 ........ l6a
Screws v. United States, 325 U.S. 91 2. 4a
iii
PAGE
nn 9, Cres SU II-B ciedccccsedeeaticnteinccccsnscinneereiecaniots 13a
Sniadach v. Family Finance Corp., 395 U.S. 337 ............ 13a
Solomon v. Beatty, 347 U.S. 988 0222 13a
Stanley v. Illinois, 405 U.S. 645 , a» 1
State ex rel. Watts v. Watts, 350 N.Y.S. 2d 285 ........ lla, 12a
Thomas v. Thomas, 270 N.Y.S. 2d 346 0. lla
United States v. Classic, 313 U.S. 299 0. 4a
United States v. Price, 383 U.S. 787 000... 4a
United States v. Robel, 389 U.S. 258 200. 16a
Universal Oil Co. v. Root Rfg. Co., 328 U.S. 575 0... l4a
White v. Minter, 330 F. Supp. 1194 - 12a
Williams v. North Carolina, 317 U.S. 287 _........... 6a, 12a, 14a
Williams v. Rhodes, 89 S. Ct. 5 " . lla
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
IN THE
SupreME Court or THE Unrrep Srates
October Term, 1977
Frep Renwick,
Petitioner,
—
' Unrrep States Court or Appgats For THE Seconp Crrcurt,
—and—
JanicE Renwick, Francis A. N.vcotar, Taz Law Firm or
ZeBrowskI & Nicoxat, EprrH Mruuer, Morton B. Sruperman,
Respondents.
I, Fred Renwick, plaintiff-petitioner pro se herein, de-
pose and say that pursuant to jurisdiction and statement
of case as set forth in Sections I and IV in petition here-
with annexed, S. Ct. Rule 31(2), Rule 56(c), FRCiv.P, and
paragraph (15) of Kletschka v. Driver, 411 F. 2d 436 at
447 (1969), I herein allege and show that respondent Court
of Appeals erred or abused its discretion in refusing and
failing to proceed in exercise of jurisdiction given in this
case, on the basis that (i) no genuine triable issues exist,
la
2a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
petitioner is entitled to relief demanded as a matter of
law; (ii) defendants acted under color of State Law with-
out judicial jurisdiction or discretion; (iii) every claim of
the six set forth in complaint involves rights privileges or
immunities guaranteed and secured by the Constitution
and Laws of the United States and is nowhere near friv-
olous; (iv) authorities support petitioner’s argument,
points and contentions; as follows:
I. No Triste IssveEs
No genuine triable issue of material fact exists. Peti-
tioner is entitled to relief demanded herein as a matter of
law, on the basis that facts pertaining to each claim of the
six herein set forth are clear, without possible controversy
because each act of the six complained of is a matter of
public record in a State Court, and therr “ore must be ad-
mitted and cannot be denied by any party hereto.
II. Conor or Strate Law
Each defendant herein, and all five of them, clearly and
beyond controversy acted under color of law, and each
and all of the acts and orders of defendants alleged herein
were done by defendants, and each of them, not as in-
dividuals, but under color and pretense of the statutes,
ordinances, regulations, customs and useages of a State,
thereby rendering defendants liable to petitioner, Fred
Renwick, for redress pursuant to provisions of Title 42,
U.S.C., Section 1983, and relief demanded in prayer as
a matter of law, on the basis that:
1. Defendants Silberman and Miller both are clothed
with Judicial authority of State of New York, and acted
3a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
against petitioner, Fred Renwick, und ,
Judicial authority. ot eo Gale
2. The defendant private individuals herein
J anice Renwick, Nicolai and the Law Firm of iene
Nicolai, all three clearly and beyond controversy acted
under color of state law, on the basis of the test set forth
in respondent Court of Appeals’ own mandate: “. Sev-
eral cases have held that action technically taken by private
individuals was “state action” violative of the fourteenth
Amendment because of the interaction of the private actors
with sta Lat ;
a te officals or policies,” Kletschka v. Driver, supra.,
3. Defendant Janice Renwick acted against petitioner
Fred Renwick, under color and through the County
Sheriff of Charles County, Maryland, and under color of
statutes, ordinances, regulations, customs or useages and
the authority of state Court orders of the States of New
Jersey, Maryland and New York. Defendants Janice
Renwick, Nicolai and the Law Firm of Zebrowski & Nicolai
all three of them, acted against petitioner under color ond
through the authority of the County Sheriff of New York
County, New York and New York State Court Orders
District Court clearly erred in determining that petitioner's
complaint against defendants Nicola and the Law Firm of
Zebrowski & Nicolai and Janice Renwick did not include
the aforesaid defendants’ knowingly, wilfully and mali-
ciously sending the County Sheriff to sell petitioner’s home
and Property, and garnishee petitioner’s income, all with
full intent to do harm to petitioner, without due grecnes of
Law as they admittedly did and as set forth in paragraphs
4 and 4 of Sections III and IV hereafter. ,
4a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
4. The defendant State Court Judicial Officers, Silber-
man and Miller, both clearly acted and made Orders
against petitioner knowingly and wilfully under color of
State Law, on the basis of U.S. Supreme Court’s authorized
test: “... Misuse of power, possessed by virtue of state
law only because the wrongdoer is clothed with the au-
thority of state law, is action taken ‘under color of’ state
law,” pursuant to Screws v. United States, 325 U.S. 91,
107, 109 (1945) ; United States v. Classic, 313 U.S. 299, 326;
United States v. Price, 383 U.S. 787 at 794 (1966).
Ill. Perrrioner’s Sr Cuams, SecurEp Ricuts
Pursuant to statement of the issues presented for review,
paragraph 3, Section IV of petition herewith annexed, on
each and all of the six following claims and causes of
action under 1983 filed by petitioner in District Court but
dismissed therein, the defendants herein named, and each
of them, clearly and beyond controversy are persons who
subjected petitioner, Fred Renwick, or caused Renwick to
be so subjected, to the deprivation of rights, privileges,
or immunities secured by the Constitution and Laws of the
United States:
1. Each defendant herein named, and all five defen-
dants, absolutely refused, without cause, to grant and either
made or effectuated state court orders denying and de-
priving Fred Renwick’s equal protection of the U. S.
Supreme Court’s mandate: “. . . the courts of South
Carolina were not precluded by the full faith and credit
clause from determining the best interest of these children
and entering a decree accordingly,” Ford v. Ford, 371 US.
187 at 194 (1962). The defendants choose to make or
5a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
effectuate state court orders enforcing the contrary man-
date: “... the courts of South Carolina (Maryland in peti-
tioner’s case) were precluded . . .”. Absolutely no cause
exists, legal or otherwise, why defendants herein named
refused and denied to petitioner the lawful custody decision
rendered in custody trial court after three days of eye-
witness testimony and hearings and where all relevant
parties were present before the court and represented by
legal counsel.
2. Every defendant herein named, except defendant
Miller, clearly and beyond controversy subjected petitioner
to the deprivation of his parental rights of visitation and
companionship with his four unemancipated minor children,
namely Michelle Renwick, Scott Renwick, Leslie Renwick,
Alexander Renwick, or caused petitioner to be so subjected,
without notice or hearing that he was to be so deprived.
The said four defendants compelled Fred Renwick, by
Order of the State Court and under threat of contempt of
court for failure to do so, to surrender, at Washington,
D. C., National Airport, his four children to Janice Renwick
and her husband in Ohio Robert Horne, for the children’s
withdrawal from Calvery Christian School and the Ren-
wick home and family to move and live in Cleveland
Heights, Ohio. Petitioner, Fred Renwick, had neither
notice nor hearing that from that date forward, he was to
be deprived and denied by defendant Janice Renwick, act-
ing under color of state court laws and orders, of the
exercise of all parental legal rights of visitation or other
means of effectuating meaningful companionship with his
children who were ordered by the courts, without hearing,
to live in Ohio. Absolutely no cause exists why defendants
6a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
deprived and denied to petitioner all legal rights of visita-
tion as well as custody.
3. Each defendant herein named, and all five defendants,
absolutely refused to grant and denied to Fred Renwick
equal protection of the U. S. Supreme Court’s mandate:
“...In this case we must assume that the petitioners had
a bona fide domicil in Nevada,” Williams v. North Carolina,
317 U.S. 287 at 288 and 302 (1942). The defendants choose
to assume that petitioner was a vagrant during the time
in question, a man without domicil, and made or effectuated
state court orders accordingly. No cause exists why defen-
dants choose to substitute their own personal opinions in
place of the aforesaid U. S. Supreme Court mandate.
4. Every defendant herein named, and all of them, ex-
cept defendant Miller, clearly and beyond controversy, sub-
jected petitioner, Fred Renwick, to the deprivation of his
property, assets and income, without duly authorized notice
or hearing, or caused him to be so subjected, under color,
authority and brutal force of the County Sheriff, and
caused said sheriff to execute, on the steps of the County
Courthouse, a prejudgment sale to the highest public bid-
der of the Renwick family home and property where peti-
tioner lived with his children, mother and brother. Afore-
said defendants also caused the county sheriff to execute a
prejudgment garnishment, again without duly authorized
notice or hearing, against petitioner’s wages and income.
No legal basis exists why defendants caused petitioner to
be subjected to the sale of his home and property and the
garnishment of his income by the County Sheriff, and
petitioner herein clearly sets forth his opposition and
7a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
status or condition of compulsory service or involuntary
servitude based on alleged indebtedness to defendant Janice
Renwick.
5. Every defendant herein named, and all five defen-
dants, absolutely refused to grant to petitioner, Fred Ren-
wick, his rights as father and next friend to his four minor
children’s rights to due process, notice, hearing and equal
protection of the laws set forth in Ford, supra, and rights
granted by the High Court to the minor children in Ford.
The defendants herein named made or effectuated state
court orders denying and depriving petitioner of his chil-
dren’s rights to the determination and sole trial court de-
cision which has been had, anyplace, ever, where all relevant
parties, including defendant Janice Renwick, petitioner,
Fred Renwick, all four aforementioned Renwick Children,
grandparents, other relatives and friends on both sides
all were present in the State trial court for three full days
of Court hearings, eye-witness testimony and investigations
regarding best interests and welfare and who best should
have legal custody of four aforenamed Renwick children.
As in Ford, supra, no other court ever saw, let alone in-
vestigated via a Social Services Child Welfare State
Agency, or heard eye-witness testimony in open court in
determination of the children’s lawful custody. No legal
cause exists why the defendants herein named, acting under
color of law, deprived and denied petitioner’s children’s
rights of companionship with their father.
6. As a direct and proximate cause of the five depriva-
tions and claims set forth hereinbefore, every defendant,
and all five defendants without exception, clearly and be-
yond controversy has unreasonably and illegally interfered
8a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
with the right of petitioner, Fred Renwick, to hold specific
employment and to follow his chosen career and profes-
sion, or has caused peti.ioner to be subjected to the depri-
vation thereof. The aforesaid sheriff’s prejudgment public
sale on the steps of the county courthouse of petitioner’s
home and property so traumatized petitioner’s brother
and mother that the family members jrretrievably split and
moved to different geographical parts of the United States
and thereby took away petitioner’s capacity and physical
ability to continue his long established practice of working
at home; no home, by order of the court, without hearing.
The defendants’ aforesaid court-created prejudgment debt,
creation and imposition of involuntary servitude of peti-
tioner to defendant Janice Renwick and prejudgment in-
come garnishment by the county sheriff took away peti-
tioner’s capacity and credit ability to continue meeting
his outstanding contractual obligations and lawful debts
and caused default of petitioner’s contracted commitments.
Defendants’ court orders stopped further business activity
and capability by petitioner. The defendants’ aforesaid co-
ercion, intimidation and threats of arrest and incarceration
by court officers impersonating students of petitioner, and
personal threats of contempt of court and jail if petitioner
refused to surrender his aforesaid children to defendant
Janice Renwick and Robert Horne for withdrawal from
Calvary Christian School and removal to live in Ohio, all
without hearing and without compelling cause of State,
and defendants’ persistent refusal to hear petitioner, and
shutting out petitioner’s evidence and denying him the
opportunity for a trial, and compelling petitioner to work
for Janice and Robert Horne until the alleged debt is paid,
all without duly authorized hearing took away petitioner’s
9a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
capacity and abliity to continue producing at the minimum
level of services required of him. Defendants’ orders and
actions, piactices and usages of New York State Law, and
defendant Miller’s maintenance of secret files, together
caused petitioner to get fired. The aforesaid actions, in-
dividually and together, constitute illegal deprivation of
petitioner’s secured rights, pursuant to authorities set forth
in Section IV herein following.
ITV. ArGuMentT: InuecaL Deprivation or Ricuts
Pursuant to paragraph (15) of Kletschka, supra, and
the authorities set forth in the six following paragraphs,
petitioner shows: (i) all six of the aforesaid claims and
complaints, and each claim of the six, clearly are secured
rights, privileges, or immunities guaranteed by the Con-
stitution and Laws of the United States; (ii) Neither claim
of the six is nowhere near frivolous; and (iii) every depri-
vation of the six, individually and together, clearly is pro-
hibited by federal law, and is unconstitutional] and illegal:
1. The U. S. Supreme Court’s aforesaid mandate of
Ford, supra, clearly is the Supreme Law of the Land,
nowhere near frivolous; and District Court and respon-
dent Court of Appeals clearly erred and abused their
discretion in summarily dismissing petitioner’s complaint
and claims as frivolous, on the basis that, pursuant to
Article VI, Clauses 2 and 3, aforesaid mandate of Ford
clearly is a federal right binding on every State Court
Official and Lawyer in the United States, and on the
basis that Amendment 14, Section 1, U.S. Constitution,
and Plessy v. Ferguson, 163 U.S. 537 at 543 (1896) for-
bid and prohibit denial and refusal thereof as done by
10a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
defendants herein named. In other words, for the two
following reasons, petitioner has been deprived of a right,
privilege, or immunity secured by the Constitution and
Laws of the United States and defendants acted wholly
without judicial jurisdiction in so subjecting petitioner,
and every defendant herein named is without immunity
and is liable to party injured, Fred Renwick, in an ac-
tion at law, suit in equity, or other proper proceeding
for redress under Title 42, U.S.C., Section 1983:
(a) Pursuant to Supremacy Clause, Ex-parte Virginia,
100 U.S. 339 at 346, 348 (1879); Ex-parte Wall, 107 U.S.
265 (1882); Ex-parte Young, 209 U.S. 123, 204 at 135
(1908); no defendant herein named had jurisdiction, ju-
dicial power or immunity from civil suit by virtue of
office for the practice of anti-constitutional law, or to have
substituted his or her own personal opinion in place of
U. S. Supreme Court mandate in Ford, supra, and make
or minister State Court orders as defendants did effec-
tuating that the full faith and credit clause does preclude
what the U. S. Supreme Court has mandated that it does
not preclude. The aforesaid Supremacy Clause and Amend-
ment 14, Section 1, pursuant to Sail’er Inn, Inc. v. Kirby,
485 P.2d 529 at 530, 534, 535, and more authorities cited
in paragraph 4(a) of Section V, petition herewith an-
nexed, prohibit defendants’ refusal to grant equal pro-
tection of laws and requires federal court to automatically
declare void State Court Orders and acts which are pro-
hibited, unconstitutional and illegal, as demanded by peti-
tioner herein.
(b) Any refusal without cause, as defendants herein
did, can in no way constitute anything except deprivation,
lla
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
under color of law, of petitioner’s due process rights,
pursuant to:
(i) The authorities cited in Note on P. 10 of Williams
v. Rhodes, 89 S. Ct. 5 (1968), which mandate that: “.. .
Invidious distinctions cannot be enacted without a vio-
lation of the equal protection clause.”
(ii) State ex rel Watts v. Watts, 350 N.Y.S. 2d 285,
which determined and mandated that the 14th Amendment
prohibits and forbids every defendant herein named from
making and enforcing, under color of law, what has
been declared to be unconstitutional presumptions against
fathers.
(iii) Batley v. Alabama, 219 U.S. 219 at 239, 244 (1911),
which determined and mandated that the power of State
Courts to create presumptions is not a means of escape
from constitutional restrictions; what a State may not
do directly, it may not do indirectly.
(iv) Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780,
785 (1971); Thomas v. Thomas, 50 Misc. 2d 882, 270
N.Y.S. 2d 346; which determine and mandate that de-
fendants’ admitted refusal to grant petitioner’s right to
defend his person and property, and opportunity before
petitioner is deprived of property, is a deprivation of the
due process guarantees.
2. Amendments 1, 9, 14, Section 1 of the U. S. Con-
stitution clearly protect, secure and guarantee petitioner’s
aforesaid parental rights against refusal and deprivation
as done by dependants herein named, under color of law,
without duly authorized notice, without hearing, without
cause, without compelling reasons of State, by authority
12a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
of Pierce v. Society of Sisters, 268 U.S. 510; Stanley v.
Illinois, 405 U.S. 645 (1972); State ex rel Watts v. Watts,
supra; In re J. S. & C., 324 A.2d 90; Saiean v. Saizan,
311 So. 2d 281; Armstrong v. Manzo, 380 U.S. 545 at 550;
White v. Minter, 330 F. Supp. 1194. On the same or
similar basis as set forth in paragraphs l(a), (b) im-
mediately preceeding, every defendant herein named is
without jmmunity and is liable to the party injured, Fred
Renwick, in an action at law, suit in equity, or other proper
proceeding for redress under Title 42, U.S.C., Section 1983.
3. The U. S. Supreme Court’s aforesaid mandate of
Williams v. North Carolina, supra, clearly is the Supreme
Law of the Land, nowhere near frivolous, and District
Court and respondent Court of Appeals clearly erred
and abused their discretion in summarily dismissing peti-
tinoner’s complaint and claims as frivolous, on the basis
that, pursuant to Article VI, Clauses 2 and 3, aforesaid
mandate of Williams v. N. C., supra, clearly is a federal
right binding on every State Court Official and Lawyer
in the United States, and on the basis that Amendment
14, Section 1, U. S. Constitution, and Plessy, supra, for-
bid and prohibit denial and refusal thereof and prohibit
substituting and ministering own personal views against
Nevada as done by every defendant herein named. Fur-
ther, petitioner’s third claim and complaint are nowhere
near frivolous and involve serious deprivation of a se-
cured right, on the basis that “No State shall make or
enforce any law which shall abridge the privileges or
immunities of citizens of the United States”; and defen-
dants’ admiited refusal, without cause, to recognize or
grant full faith and credit to petitioner’s lawfully granted
13a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
Nevada Court Decree No. 262491 creates and causes a
New York State Court Ordered breech, involuntary im-
pairment without due process, of petitioner’s legally bind-
ing contracts with associates and persons in Nevada who
require business and obligations with petitioner to be trans-
acted pursuant to and in accordance with Laws of State of
Nevada. The defendants’ aforesaid New York State Court
ordered breech of petitioner’s contracts renders petitioner
as well as every defendant herein liable to all Nevada par-
ties injured in an action at law, suit in equity, or other
proper proceeding for redress. Thus, on the same or sim-
ilar basis as set forth in paragraphs 1(a), (b) immediately
preceeding, every defendant herein named is without im-
munity and is liable to Fred Renwick for redress and
restitution under 1983,
4. Article IV, Section 1 and Amendment 14, Section 1,
U.S. Constitution, clearly protect, secure and guarantee
ptitioner’s aforesaid property rights against deprivation
and prejudgment sheriff’s sale as done by defendants
herein named, under color of law, without duly author-
ized notice, without hearing, without cause or compelling
reason of State. Pursuant to exclusion clause of Sistare
v. Sistare, 218 U.S. 1 (1909); Sniadach v. Family Finance
Corp., 395 U.S. 337; Griffin v. Griffin, 327 U.S. 220 and
328 U.S. 876; McMeans v. Schwartz, 330 F. Supp. 1397;
Solomon v. Beatty, 347 U.S. 988; prejudgment garnish-
ments are illegal, unconstitutional and automatically deny
petitioner’s due process rights. Moreover, the equal pro-
tection clause of the 14th Amendment prohibits defen-
dants’ admitted refusal, without cause, to grant to peti-
tioner the mandates and required presumptions, pursuant
l4a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
to Fahrer v. Fahrer, 304 N.E. 2d 411 (Ohio, 1973); Hunt
v. Hunt, 159 N.E. 2d 480 (1959); Kuert v. Kuert, 292 P.
2d 115 (1956); that defendant Janice Renwick’s marriage
to aforesaid Robert Horne constitutes election on part
of Janice to be supported by that new husband and aban-
donment by Janice of provisions in her New Jersey ex-
parte Court Order for alimony from former husband.
Further, the due process clause of the 14th Amendment
prohibits, and 1983 provides remedy sought by petitioner
herein, against defendant Janice Renwick’s admitted sub-
jugation of petitioner to deprivation of equal protection
of New Jersey State Law, N. J. Pratice Rule 4:79-6(b) ;
and also prohibits and guarantees protection against the
remaining defendants’ admitted refusal to set aside afore-
said ex-parte N. J. Order as void on grounds of fraud,
pursuant to Hazel-Atlas Co. v. Hartford-Empire Co., 322
U.S. 238; Universal Oil Co. v. Root Rfg. Co., 382 U.S.
575; and on grounds that any State Court decree which
interferes with or is contrary to federal law as set forth
in Williams v. North Carolina, supra, is void under the
Supremacy Clause of the U.'S. Constitution, pursuant
to Sail’er Inn, Inc. v. Kirby, supra. Consequently, on the
same or similar basis as set forth in paragraphs 1(a),
(b) immediately preceeding, petitioner’s claim and com-
plaint are nowhere near frivolous, and every defendant
herein named is without immunity and is liable to peti-
tioner, Fred Renwick, for redress and restitution under
1983.
5. Petitioner’s unemancipated minor children clearly are
“persons” as are adults within meaning, protection and
prohibitions of Amendment 14, Section 1, U. S. Consti-
15a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
tution, and aforenamed children’s rights to life, liberty
and special rights of freedom from neglect, abuse and
maltreatment are protected from deprivation as defen-
dants herein named admittedly did in instant case; and
the children’s court-ordered and involuntary confinement,
their commitment to Ohio to live, without cause or com-
pelling reason of State, and against their trial-court de-
termined best interests, cannot be accomplished without
deprivation of due process of law, pursuant to J. L. v.
Parham, 412 F. Supp. 112, 146 (1976) ; O’Conmor v. Donald-
son, 422 U.S. 563 U.S., 95 S. Ct. 2486 (1975). Further,
pursuant to Constantine v. South-Western Louisiana In-
stitute, 120 F. Supp. 417 (D.C. La., 1954); Gelbman v.
Gelbman, 245 N.E. 2d 192 (1969), petitioner’s right, under
federal rules, to protect and sue for his minor children’s
deprivation of rights under color of law by defendants
herein named cannot be abridged by a state statute, and
is not prohibited by New York State Law. Consequently,
on the same or similar basis as set forth in paragraphs
1(a), (b) immediately preceeding, petitioner’s fifth claim
and complaint are nowhere near frivolous, and every de-
fendant herein named is without immunity and is liable to
petitioner for redress under 1983.
6. Amendments 1 and 14, Section 1, U. 8S. Constitution,
clearly protect, guarantee and secure petitioner’s afore-
said rights to liberty, choice of occupation, employment
and career against deprivation as done by defendants
herein named, under color of law, without duly authorized
notice, without hearing, without cause or compelling rea-
son of State, on the basis that “. . . It is the right of
every citizen to the United States to follow and lawful
16a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
calling, business, or profession he may choose. It can-
not be arbitrarily taken away from them any more than
their real of personal property can be thus taken,” by
authority of Dent v. West Virginia, 129 U.S. 114 at 121,
122 (1889); United States v. Robel, 389 U.S. 258 (1967);
Greene v. McElroy, 360 U.S. 479, 492 (1959); Schware v.
Board of Bar Examiners, 353 U.S. 232 (1957). Peti-
tioner’s sixth claim and complaint are nowhere near friv-
olous for reasons set forth in paragraph 2(c) of Section
V, petition herewith annexed, and on the basis that de-
fendants’ useage of State Law to sell petitioner’s some
and property; split his family, mother and brother; gar-
nish his income; maintain secret files as part of Court
records; take his children and send them to Ohio to live;
and without cause deprive petitioner of his chosen em-
ployment and career all are illegal, unconstitutional and
unconscionable; and on the same or similar basis as set
forth in paragraphs 1(a), (b) immediately preceeding,
every defendant herein named is without immunity and
is liable to petitioner for redress and restitution under
1983.
V. Conciusion, Revier
WHenrerore, petitioner prays that this Court enter a
summary judgment in his favor to the extent set forth
in prayer of petition herewith annexed, on the basis that
no genuine triable issue of material fact exists, and peti-
tioner is entitled to said declaratory relief as a matter
of law, and grant such other and further relief as it deems
proper and just.
Signed: F'rep Renwick
Fred Renwick
17a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
Subscribed and sworn to before me on the 20th day of
Jan., 1978.
Signature and Title
To:
Honorable Milton Pollack, Judge
U.S. District Court
U. S. Court House
Foley Square
New York, New York 10007
Honorable Edith Miller, Judge
Family Court
60 Lafayette Street
New York, New York 10013
Honorable Morton B. Silberman, Judge
Supreme Court, State of New York
New City, New York 10956
Honorable J. Edward Lumbard, Judge
U.S. Court of Appeals for the Second Circuit
U.S. Court House
Foley Square
New York, New York 10007
Honorable William H. Mulligan, Judge
U.S. Court of Appeals for the Second Circuit
U.S. Court House
Foley Square
New York, New York 10007
18a
Affidavit and Statement of Claims and Complaints
Filed But Dismissed in Lower Courts
Honorable Thomas J. Meskill, Judge
U.S. Court of Appeals for the Second Circuit
U.S. Court House
Foley Square
New York, New York 10007
Janice Renwick
2266 Bellfield
Cleveland Heights
Ohio 44106
Francis A. Nicolai, Esq.
Attorney for Defendants
Francis A. Nicolai, Janice Renwick,
and the Law Firm of Zebrowski & Nicolai
307 South Main Street
New City, New York 10956
19a
Order of United States Court of Appeals
UNITED STATES COURT OF APPEALS
For tHe Seconp Crecurir
77-7315
At a stated Term of the United States Court of
Appeals for the Second Circuit, held at the
United States Courthouse in the City of
New York, on the 28th day of October one
thousand nine hundred and seventy-seven.
Present:
Hon. J. Epwarp Lumsarp,
Hon. Wriuiam H. Motrzas,
Hon. Tuomas J. Mesxri1,
Circuit Judges.
Frep Renwick,
Appellant,
—against—
JANICE RENWICK, ET AL.,
Appellees.
Appeal from the United States District Court for the
Southern District of New York.
The motion to dismiss the appeal is granted. The dis-
trict court found that it was without subject matter juris-
20a
Order of United States Court of Appeals
diction because the claims presented were “frivolous and
absolutely devoid of merit.” We find no issue of any sub-
stance presented in this appeal.
/3/ J. Enwarp LumsBarp
J. Edward Lumbard .
/s/ Wiuu1am H. Mvu.uican
William H. Mulligan
/s/ Tuomas J. Mesxiu.
Thomas J. Meskill
2la
Order
UNITED STATES DISTRICT COURT
SoutHern District or New York
77 Civ. 782 (MP)
Frep Renwick,
Plaintiff,
—against—
Janice Renwick, et al.,
Defendants.
This cause came on for hearing on the 13th day of May,
1977, on defendants’ motion to dismiss the action on the
following grounds:
1. That defendants, Family Court Judge Edith Miller
and New York State Supreme Court Justice Morton Silber-
man, are immune from suit based upon official acts per-
formed in connection with their judicial duties; and
2. That defendants, Assistant Corporation Counsel Mark
Weinstein and Probation Officer Evelyn Barnett, are court
officers who are immune from suit for official acts per-
formed in connection with a claim made against plaintiff
in Family Court under the Uniform Support of Dependents
Law; and the Court havng heard the arguments of W. Ber-
nard Richland, counsel for defendants, Weinstein and Bar-
nett, and the plaintiff, pro se, and being fully advised, it is
22a
Order
Ordered, that the complaint against the defendants, Edith
Miller, Morton Silberman, Mark Weinstein and Evelyn
Barnett, be and is hereby dismissed.
Dated: New York, New York
May 23rd, 1977 s
/s/ Miron Poiuack
Milton Pollack
23a
Endorsement of May 23, 1977
Frep RENWICK V. JANICE Renwick, et al. 77 Civ. 782 (MP)
Plaintiff seeks to make proceedings in two civil suits
brought against him in state court the subject of a federal
civil rights action pursuant to 42 U.S.C. § 1983. Defendants
named in this action include two state court judges, a
probation officer, and an Assistant Corporation Counsel.
For the reasons appearing hereafter the complaint is
dismissed as against those four defendants.
The claims asserted against Judges Miller and Silber-
man, probation officer Barnett, and Assistant Corporation
Counsel Weinstein arise out of their performance of of-
ficial functions. No allegation is made of malice. Conse-
quently, they are immune from suit for damages. Pierson
v. Ray, 386 U.S. 547 (1967); Imbler v. Pachtman, 424
U.S. 409 (1976); Flood v. Harrington, 532 F.2d 1248
(9th Cir. 1976); Wood v. Strickland, 420 U.S. 308 (1975) ;
Harmon v. Superior Court, 329 F.2d 154 (1964).
Injunctive and declaratory relief against enforcement
of the resultant state court judgments against plaintiff
would be inappropriate in light of the considerations ex-
pressed in Judice v Vail, 45 L.W. 4269 (U.S., March 22,
1977).
In addition, “Complaints relying on the civil rights
statutes are plainly insufficient unless they contain some
specific allegations of fact indicating a deprivation of
civil rights, rather than state simple conclusions.” Koch
v. Yumich, 533 F.2d 80, 85 (2d Cir. 1976). That test is
not met here. :
Moreover, plaintiff seeks to use § 1983 to obtain fed-
eral court review of his state court matrimonial litiga-
tion. Mere alleged errors in a state court decision do
not furnish a predicate for a § 1983 claim. Mayes v. Honmn,
542 F.2d 822 (10th Cir. 1976); Adkins v. Underwood, 520
F.2d 890 (7th Cir.), cert. denied, 423 U.S. 1017 (1975).
24a
Endorsement of June 10, 1977
Frep Renwick v. Janice Renwick, et al. 77 Civ. 782
Plaintiff has moved pursuant to Fed. R. Civ. P. 56 for
summary judgment against defendants Francis A. Nicolai
and Zebrowski & Nicolai. For the reasons appearing here-
after plaintiff's motion is denied and the complaint against
these defendants is dismissed for lack of subject matter
jurisdiction.
A district court is obliged to dismiss an action sua
sponte at any stage of a proceeding at which it appears
that subject matter jurisdiction is lacking. Bernstein v.
Universal Pictures, Inc., 517 F.2d 976, 979 (2d Cir. 1975).
Dismissal of a complaint for lack of jurisdiction of the
subject matter is appropriate where the claim is frivolous
or “‘so attenuated and unsubstantial as to be absolutely
devoid of merit”” Baker v. Carr, 369 U.S. 186, 199
(1962), quoting Newburyport Water Co. v. Newburyport,
193 U.S. 561, 579 (1904). See, e.g., City of Kenosha v.
Bruno, 412 U.S. 507 (1973) (no subject matter jurisdic-
tion where an action purportedly under 42 U.S.C. § 1983
was brought against an entity which was not a “person”
within the meaning of § 1983).
The claims against Mr. Nicolai, Esq. and Zebrowski &
Nicolai in the present case are frivolous and absolutely
devoid of merit. The claims against them purport to be
pursuant to 42-U.S.C. § 1983 for deprivation of consti-
tutional rights under color of law. The defendants are
attorneys who represented plaintiff’s ex-wife in state court
litigation in which she sought support payments from him.
The allegations against them are insufficient to meet the
“ander color of state law” requirement of §¢ 1983.
“It is established that a private attorney, while partici-
pating in the trial of private state court action, is not
25a
Endorsement of June 10, 1977
acting under color of state law” and so is not liable under
the civil rights acts. Hansen v. Ahlgrimm, 520 F.2d 768,
770 (7th Cir. 1975). If 41983 were available to challenge
private attorneys for having utilized authorized judicial
procedures to present the state courts with a claim for
relief in private litigation, “[s]uch an expansive view of
state action would subject all who utilize the courts to
litigate and enforce private claims to possible Civil Rights
liability in the federal forum at any time a dissatisfied
opponent claimed the challenged procedure failed to com-
port with constitutional guarantees.” Id. at 771. Plain-
tiff’s unhappiness with the outcome of his state court
matrimonial litigation does not give rise to a claim against
the opposing attorneys cognizable under § 1983. Accord,
Hill v. McClellan, 490 F.2d 859 (5th Cir. 1974).
Plaintiff does not contend that these defendants con-
spired with state officials. Such a contention would be in-
sufficient in any event to satisfy the “under color of state
law” requirement in light of this Court’s previous holding
that the public officials named in the complaint are im-
mune from liability. Hansen v. Ahlgrimm, supra; Hill
v. McClellan, supra.
Accordingly, plaintiff's motion for summary judgment
is denied and the complaint as against defendants Nicolai
and Zebrowski & Nicolai is dismissed.
So ordered.
June 10, 1977
/s/ Miron Poiiack
Milton Pollack
U.S.D.J.
26a
Endorsement of June 10, 1977
Frep Renwick v. Janice Renwick, et al. 77 Civ. 782
Plaintiff has moved pursuant to Fed. R. Civ. P. 55(a)
_ for entry of a default and pursuant to Rule 55(b) for
entry of a default judgment against defendant Janjce
Renwick on the ground that she has failed to answer
the complaint within the time prescribed by the federal
rules. For the reasons appearing hereafter plaintiff's
motion is denied and the complaint is dismissed as against
defendant Renwick for lack of subject matter jurisdiction.
A district court is obliged to dismiss an action sua
sponte at auy stage of a proceeding at which it appears
that subject matter jurisdiction is lacking. Bernstein v.
Universal Pictures, Inc., 517 F.2d 976, 979 (2d Cir. 1975).
Dismissal of a complaint for lack of jurisdiction of the
subject matter is appropriate where the claim is frivolous
or “‘so attenuated and unsubstantial as to be absolutely
devoid of merit.’” Baker v. Carr, 369 U.S. 186, 199 (1962),
quoting Newburyport Water Co. v. Newburyport, 193
U.S. 561, 579 (1904). See, e.g., City of Kenosha v. Bruno,
412 U.S. 507 (1973) (no subject matter jurisdiction where
an action purportedly under 42 U.S.C. § 1983 was brought
against an entity which was not a “person” within the
meaning of § 1983).
The claim against Mrs. Renwick in the present case is
frivolous and absolutely devoid of merit. The claim against
her purports to be pursuant to 42 U.S.C. § 1983 for dep-
rivation of constitutional rights under color of law. The
defendant is plaintiff's ex-wife; she is alleged merely to
have secured orders for support payments against him
in state court. That allegation is insufficient to meet the
“under color of state law” requirement of $1983. See
27a
Endorsement of June 10, 1977
McGuane v. Chenango Court, Inc., 431 F.2d 1189 (2d
Cir. 1970), cert. denied, 401 U.S. 994 (1971).
Plaintiff does not contend that Mrs. Renwick conspired
with state officials. Such a contention would be insuffi-
cient in any event to satisfy the “under color of state law”
requirement in light of this Court’s previous holding herein
that the public official defendants named herein are im-
mune from liability. See, e.g., Hansen v. Ahlgrimm, 520
F.2d 768 (7th Cir. 1975); Hill v. McClellan, 490 F.2d
859 (5th Cir. 1974).
Accordingly, entry of default is denied and the com-
plaint as against defendant Renwick is dismissed.
So ordered.
June 10, 1977
/s/ Miron PoLLack
Milton Pollack
U.S.D.J.
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