Petition — Renwick v. United States Court of Appeals for the Second Circuit

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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.

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.

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