Petition — Evans v. Matney

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JUL 3 1980 |

ICHAEL RODAK, JR CLERR

Sn eeeanan

IN THE

Supreme Court of the United States

ais 1979

, Wen soars Bxe

ROBERT T. EVANS,

Petitioner,

Vs.

TONY E. MATNEY,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Evcene EF. Kuecan

Kleean & Roach, P.A.

520 Sandia Savings Building

Albuqueraue, New Mexico 87102

Attorneys for Petitioner

QUESTIONS PRESENTED

1. Does the Bakke decision eliminate judicial construe-

tion and interpretation of Civil Rights Acts, including 41443

Ren.ovals, and substitute the Constitutional protection of

equal protection of the laws?

2. Whether a right of Removal under $1443 is restricted

to members of the black race, and possibly those with an

Hispanic ethnic origin, and thus excludes members of the

Caucasian race from the courts of the United States?

3. Whether the appellate court’s jurisdiction to review

the remand order extended to a review of defendant’s right

of removal under 28 U.S.C. §1441 in a case wherein the trial

court has failed to grant a hearing, has denied the defendant

due process, and has ordered a remand which was not in

accordance with 28 U.S.C. §1447.

4. Does the opinion in and of itself unconstitutionally

impose punitive measures and threaten the free and open

use of the United States federal court system by American

citizens and especially in this case threaten that group which

is relatively weak by virtue of immature years?

5. Can a panel of United States Court of Appeals ever

posses the power to punish a young American male citizen

for removing a case under §1443 and/or §1441, especially

without a hearing?

6. Are appellate procedures for the imposition of costs

and attorney’s fees for an alleged frivilous appeal subject

to due process where the penalties are initially applied in

the Tenth Circuit?

7. Does the opinion by singling out Civil Rights Re-

movals for punitive measures discriminate in and of itself

and does the Constitution forbid this?

$. Does the Tenth Circuit have the Constitutional right

to rake findings about what happened in state court and

impose penalties upon petitioner based thereon?

9. Does the above violate the Tenth Amendment to the

United States Constitution and Article IT, Section 3 of the

New Mexico State Constitution?

10. Are there ethical and Constitutional rights in civil

rights removants against having their arguments falsely

labeled as ‘totally lacking in merit’’ and stating that ‘‘it is

clear from the record’’ when the record is not quoted nor

supportive of judgmental assertions about motivation?

11. Is motivation for removal relevant?

12. Can Congress grant a Right of Removal, §1441, and

then eliminate Constitutional protections of ‘‘due process”

by saying that the remand is not appealable?

13. Is denial of oral argument evidence of lack of due

process in this particular case at both federal levels?

PARTIES

Parties to the proceeding in the court whose judgment

is sought to be reviewed were Tony E. Matney, Robert T.

Evans and Roger Evans.

TABL" OF CONTENTS

TABLE OF AUTHORITIES sss

OPINIONS BELOW................_.

Oe i i ea

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED...

elicit peg sgt RSE RS gE ne ea ee

REASONS FOR GRANTING THE WRIT

i i:

Appeals for the Tenth Cireuit

APPENDIX @C eee

Petition for Rehearing

APPENDIX D |

Motion for Hearing

pS ag A re

Motion to Set Aside the Judgment

iii

I is. eh oes AAS ee oes, 37

Order Denying Petition for Rehearing, Motion

For Hearing and Motion to Set Aside the

Judgment

Se El Arve ech os a, . Utena ne dain 38

Motion for Stay of Mandate

I IE ee eh a rin Dc yu bare kes 41

Order Staying Mandate

ere eco 42

Order entered in Holguin v. Dawson

EE hae a rc ey in eee, 46

Petition for Removal

OR yh era ae te oe ad), oe a dae 52

Motion for Remand

TABLE OF AUTHORITIES

CASES: Page

Dailey v. Elicker, 447 F.Supp. 436 (DC Colo. 1978) .. 16

Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783,

16 L.Ed.2d 925 (1966) ................ ...) 8,11

Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800,

pe | re 11

Harmon v. Superior Court of California,

307 F.2d 796 (9th Cir. 1962) ............. .. 15,16

Midland Mortgage Co. v. Winner,

532 F.2d 1342 (10th Cir. 1976) ......... —

Thermtron Products and Newhard v.

Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46

ee | 14, 15

University of California Regents v. Bakke,

438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) . 11

CONSTITUTIONAL PROVISIONS:

United States Constitution, Amendment5 .=.———Cé*OSS#

United States Constitution, Amendment 10... 6,17

United States Constitution, Amendment 14. 6

New Mexico State Constitution, Article II, §3 . 6,17,18

STATUTES:

28 U.S.C. $1441 |. ae Ne 2, 7,9, 13

28 U.S.C. §1443 Pe mate 3, 7, 9, 10, 12

ee ee ee ee ea eee 3,7

ee AO ls em 4,7, 8,13, 14

Pr I cy sl ce oes aes 5

42 U.S.C. §1983 .......... BE stirs rage eae

IN THE

Supreme Court of the United States

October Term, 1979

Ne...

ROBERT T. EVANS,

Petitioner,

VS.

TONY E. MATNEY,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Petitioner, Robert T. Evans, prays that a writ

of certiorari issue to review the opinion and judgment of

the United States Court of Appeals for the Tenth Cir-

cuit filed on April 24, 1980.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Tenth Circuit was not reported. This opinion appears

as Appendix B, infra. The order entered by the United

States District Court for the District of New Mexico was

not accompanied by an opinion and was not reported. This

order appears as Appendix A, infra.

JURISDICTION

The Judgment and Opinion of the United States Court

of Appeals for the Tenth Circuit was filed on April 24, 1980.

Defendants-Appellants thereafter filed a Petition for Re-

hearing, Motion for Hearing and Motion to Set Aside the

Judgment, all of which were denied by the Court on May

22, 1980. Defendants-Appellanis also filed a Motion for

Stay of Mandate, which was granted on June 3, 1980.

This Court has jurisdiction of this cause under 28

U.S.C. §1254, as this is a Petition for Certiorari from a case

in the United States Court of Appeals for the Tenth Cireuit.

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

“28 U.S.C, §1441(a) and (b). Actions Removable

Generally

(a) Except as otherwise expressly provided by Act of

Congress, any civil action brought in a State court of

which the district courts of the United States have

original jurisdiction, may be removed by the defendant

or the defendants, to the district court of the United

States for the district and division embracing the place

where such action is pending.

(b) Any civil action of which the district courts have

original jurisdiction founded on a claim or right arising

under the Constitution, treaties or laws of the United

—

States shall be removable without regard to the citizen-

ship or residence of the parties. Any other such action

shall be removable only if none of the parties in interest

properly joined and served as defendants is a citizen of

the State in which such action is brought.

“*28 U.S.C. §1443. Civil Rights Cases.

Any of the following civil actions or criminal prosecu-

tions, commenced in a State court may be removed by

the defendant to the district court of the United States

for the district and division embracing the place where-

in it is pending:

(1) Against any person who is denied or cannot

enforce in the courts of such State a right under

any law providing for the equal civil rights of

citizens of the United States, or of all persons

within the jurisdiction thereof ;

(2) For any act under color of authority derived

from any law providing for equal rights, or for

refusing to do any act on the ground that it would

be inconsistent with such law.’’

28 U.S.C. §1446(a) and (b). Procedure for Removal.

(a) A defendant or defendants desiring to remove any

civil action or criminal prosecution from a State court

shall file in the district court of the United States for

the district and division within which such action is

pending a verified petition containing a short and plain

statement of the facts which entitle him or them to re-

moval together with a copy of all process, pleadings and

orders served upon him or them in such action.

(b) The petition for removal of a civil action or pro-

ceeding shall be filed within thirty days after the receipt

by the defendant, through service or otherwise, of a

copy of the initial pleading setting forth the claim for

relief upon which such action or proceeding is based,

or within thirty days after the service of summons upon

the defendant if such initial pleading has then been

filed in court and is not requied to be served on the de-

fendant, whichever period is shorter.

It the case stated by the initial pleading is not remov-

able, a petition for removal may be filed within thirty

days after receipt by the defendant, through service or

otherwise, of a copy of an amended pleading, motion,

order or other paper from which it may first be ascer-

tained that the case is one which is or has become

removable,

28 U.S.C. $1447, Procedure After Removal Generally.

(a) In any case removed from a State court, the district

court may issue all necessary orders and process to

bring before it all proper parties whether served by

process issued by the State court or otherwise.

(b) It may require the petitioner to file with its clerk

copies of all records and proceedings in such State

court or may cause the same to be brought before it by

writ of certiorari issued to such State court.

that the case was removed improvidently and without

jurisdiction, the district court shall remand the case,

and may order the payment of just costs. A certified

copy of the order of remand shall be mailed by its

clerk to the clerk of the State court. The State court

may thereupon proceed with such case.

(d) An order remanding a ease to the State court from

which it was removed is not reviewable on appeal or

otherwise, except that an order remanding a ease to

the State court from which it was removed pursuant

to section 1443, of this title [28 U.S.C.S. §1443] shall

be reviewable by appeal or otherwise.’’

“42 U.S.C. §1981. Equal Rights Under the Law.

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory

to make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws

and proceedings for the security of persons and prop-

erty as is enjoyed by white citizens, and shall be subject

to like punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.”’

‘42 U.S.C. §1983. Civil Action for Deprivation of

Rights.

Every person who, under color of any statute, ordin-

ance, regulation, custom, or usage, of any State or Ter-

ritory, subjects, or causes to be subjected, any citizen

of the United States or other person within the juris-

diction thereof to the deprivation of any rights, privi-

leges, 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.’’

United States Constitution, Amendment 5:

‘‘No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put

in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor

be deprived of life, liberty or property, without due pro-

cess of law; nor shall private property be taken for

public use, without just compensation.’

United States Constitution, Amendment 14, Section 1:

‘* All persons born or naturalized in the United States,

and subject to the jurisdiction 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 immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.”’

United States Constitution, Amendment 10:

‘*The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.’’

New Mexico _— Article II, §3:

‘*The people of the state have the sole and exclusive

right to govern themselves as a free, sovereign and

independent state.”’

STATEMENT

On October 8, 1976, an accident occurred involving an

automobile driven by Robert T. Evans, a fifteen-year old

licensed Caucasian minor, and a bicycle ridden by plaintiff

Matney. Detailed facts are omitted because they are irrele-

vant to the issues in the federal system. This is because

the youth, Robert T. Evans, removed the case under 28

U.S.C. §1441 and §1443.

The Petition for Removal was filed on Friday, October

26, 1979. On Monday, October 29, 1979, Plaintiff-Appellee

filed a Motion for Remand and remand was ordered within

a few hours of the filing of the Motion. It was done

summarily and without a hearing of any kind. Defendant-

Appellant was offered no opportunity to argue the issue

of the removal, nor did this summary treatment allow any

record to be made as to anything connected with the re-

moval. In the light of the above, we are at a loss to under-

stand how the Tenth Circuit opinion can state, ‘‘It is clear

from the record that this appeal is frivilous, vexatious

and brought for the purposes of delay.’’ There is contained

in the Order of Remand the language of 28 U.S.C. §1447(c¢)

about an improvident removal. Without a hearing of any

kind, we question that Congress did or even intended to

make §1447(d) applicable to this case, for to do so would

be to create a grounds for removal and at the same time

deny the application of Constitutional due process.

Because no hearing occurred ever in the Removal under

either §1441 or §1443, the time of removal as stated in

§1446 was never considered. However, since phrases like

‘‘it is clear from the record’? (Tenth Circuit Opinion)

and ‘‘the removal procedures were not timely followed’’

and ‘‘the action was removed to this court improvidently

and without jurisdiction’? (United States District Court

Remand Order) imply that there was a record, we struggle

to disavow these assertions. In particular, for the United

States District Judge to conclude that the Removal was

not timely, and to do this immediately and without a

hearing, is not only a lack of due process but shows an

unfamiliarity with the Petition of Removal.

It is noteworthy that the date alleged in the Removal

Petition on which the Removal was based was not the date

of the Amended Complaint but the date the state trial

judge ordered petitioner Robert T. Evans to go to trial

to defend against the Amended Complaint, which it was

alleged had never been served on him. Timely removal

was therefore alleged since the date of the Removal was

within 30 days of the Order.

The opinion erroneously states that the father is the

petitioner when it states, ‘‘Evans contends his son.’’ Robert

T. Evans was the removal petitioner and the father, Roger

S. Evans, joined in the removal. The last paragraph of

the opinion awards damages against the petitioner who

would be the son, and uses the term ‘‘damages.”’

The record contains a number of pleadings from the

state court which were put into the transcript on appeal

but were not present when the United States District

Judge remanded the case. There were no further pro-

ceedings in the United States District Court after the

Remand. Even if these are considered applicable for re-

view' by the Tenth Circuit panel, we assert that there is

no basis for the conclusions about what the record clearly

states. The case was appealed on the very day of the Order

of Remand, October 29, 1979. 28 U.S.C, §1447(d) granted

jurisdiction to an appeal after a remand of a removal

under §1443. On April 24, 1980, the Tenth Cireuit Court

of Appeals filed its judgment and opinion in this cause.

So clearly did the Tenth Circuit place their opinion

on the basis of race that they even underlined the word

‘‘racial’’ as it appears prior to the word ‘‘discrimination.”’

The Tenth Cireuit opinion, which denied entry to Robert

T. Evans into the federal system because of race, rested

entirely on the case of Georgia v. Rachel, 384 U.S. 780, 86

S.Ct. 1783, 16 L.Ed2d 925 (1966).

The opinion discussion on Removal under §1443(2)

appears immaterial to the allegations of the Removal

Petition.

In regard to §1441, the opinion denies that it has

jurisdiction, although the opinion does not expressly even

mention that we also removed under §1441. The opinion

denial of removal as to $1441 is stated as fellows: ‘This

court has jurisdiction to review district court orders. re-

manding a case to state court only when the ease was

removed to federal court pursuant to 28 U.S.C. §1443.’’

(emphasis supplied)

The last paragraph of the opinion contains no legal

decisions. It is a sanctions paragraph and states that the

Appeal was improper and was brought for purposes of

delay. Attorney’s fees were assessed against Appellant

and double costs. A request for Rehearing was denied,

and a Motion to Set Aside the Judgment Entered Against

Appellant and Motion for a Hearing were all denied. Mo-

tion for Stay of Mandate so that certiorari could be filed

in this Court was granted.

Grave concern is felt because this opinion has been

used in another removal case in the United States District

Court for the District of New Mexico, where on May 6,

1980, only 12 days after this opinion came down, this opinion

and its harsh penalties were made the basis for an award

of $350.00 as costs against the attorney who represented

the petitioner in this case. The United States District Court

Judge Edwin L. Mechem said in the language of the Tenth

Circuit panel, ‘‘I conclude that defendant’s petition for re-

moval is frivilous, vexatious and brought for the purposes

of delay.’’ United States District Judge Mechem also says,

‘* Additionally I note that this is not the first time that

counsel for defendant has attempted the same tactic to

avoid an imminent trial setting in the State District Court.

See Matney v. Evans, No. 79-2153 (10th Cir., Apr. 24,

1980).’’ Judge Mechem also says ‘‘that the Petition for

Removal was filed in bad faith and for purposes of delay.”’

See Appendix for this opinion filed in United States Dis-

trict Court for the District of New Mexico on May 6, 1980.

(Appendix I). This matter is now on appeal to the Tenth

Cireuit (cause numbers 80-1584 and 80-1585).

Also, on June 19, 1980, a Complaint for Abuse of Pro-

cess was filed in Grant County, New Mexico against the

defendant and petitioner for removal in Appendix I for

2.6 million dollars. This Complaint claimed the abuse of

process was the removal of Appendix I by the defendant

Dawson. The cause number was CV-80-080 of Grant County,

New Mexico. More ‘such Complaints based on the instant

case can be anticipated in the Tenth Circuit.

REASONS FOR GRANTING THE WRIT

Bakke Overruled Race Discriminations in 41443.

It is not disputed that the defendant in this case is

neither black nor Hispanic. However, the protection of

‘‘equal rights’’ has not been and must not be limited to

racial civil rights.

The provisions of 28 U.S.C. §1443 are before the Court

for interpretation, supra. The language of §1443 does not

restrict the courts to one aspect of civil rights, but rather

opens the door to all violations of ‘‘equal civil rights’’ or

‘equal rights.’’ This statute, on its face, encompasses all

types of discrimination, including discrimination based on

sex and age. However, this statute has been so restrictively

construed by the courts as to limit its definition of ‘‘equal

rights’’ to racial civil rights. Georgia v. Rachel, 384 U.S.

780, 86 S.Ct. 1783, 16 L.Ed2d 925 (1966); Greenwood v.

Peacock, 384 U.S. 808, 86 S.Ct.1800, 16 L.Ed2d 944 (1966).

This construction, however, must be questioned in light of

subsequent cases and developments.

The summary dismissal of this Appeal in the Tenth

Circuit was based on the absence of a claim of ‘‘racial dis-

crimination’’ in the removal, as was required in Georgia v.

Rachel, supra. The assertion in the opinion that the appeal

was without merit was based on the fact that Robert T.

Evans was not a person of the black race, nor did he have

an Hispanic heritage. It is submitted that this opinion and

judgment, per se, violated Appellant’s Constitutional and

civil rights.

University of California Regents v. Bakke, 438 U.S.

265, 98 S.Ct. 2733, 57 L.Ed2d 750 (1978) had not yet been

decided at the time the restrictions in Georgia v. Rachel,

supra and Greenwood v. Peacock, supra were laid down,

and it is submitted that the Bakke decision mandates an

overruling of those two cases. The majority opinion in

Bakke makes a decisive statement of Constitutional law

at 98 S.Ct. at 2757:

‘‘Preferring members of any one group f- "> reason

other than race or ethnic origin is discrimination for

its own sake. This the Constitution forbids.”’

This language is not an abstraction but an explanation of

the reality of what happened in this opinion to Robert T.

Evans, a citizens of the United States. He was the subject

of discrimination for the sake of discrimination within the

appeal process.

The Civil Rights Removal Act, 28 U.S.C. §1443, was a

document asserting equality; however, Rachel and Peacock

wrongfully changed its plain meaning, which clearly states

‘‘equal civil rights of citizens of the United States,’’ and

made it a discriminatory statute by unwarranted judicial

statutory construction. The effect of Bakke is to necessarily

eliminate the restrictions of the interpretations of Rachel

and Peacock and restore §1443 to its original, expressed

clear-cut inclusion of all ‘‘citizens of the United States.’’

Bakke demonstrates that the restrictions of ‘‘race’’ written

into §1443 by Rachel are themselves unconstitutional.

It is submitted that the right of removal set forth in

28 U.S.C. §1443 must be held to extend to all situations in

which discrimination exists or equal rights have been

violated, and not be restricted so as to benefit only a single

racial group. Defendant Robert T. Evans was therefore

entitled to removal under this statute.

The essence of this Petition for Certiorari is con-

tained in the application for stay of the mandate of the

petitioner Robert T. Evans, a nineteen-year old Freshman

at Fresno State, written in his own hand. The assertions in

the application for stay of the mandate are his. Petitioner’s

statement reads, ‘‘I clearly read that your opinion states

that a particular race only qualifies for admission into the

federal judicial system.’’ Petitioner goes on to say that

reae means nothing ‘‘as far as admission into California’s

Universities is concerned,’’ and he respectfully requests

the Tenth Cireuit to ‘‘give me the chance to see if the

Supreme Court will recognize me ... as being equal with

another race.’? He concludes by an appeal to the use of

‘‘principles’’ and a hope for its ‘‘triumph.’’ The Tenth

Circuit opinion in its last paragraph treats this petitioner

as a delinquent. All legal issues were decided in prior

paragraphs. Nothing remains to be done but to affirm as

in a normal appeal. But no, we see an angry panel of

judges imposing sanctions for this nineteen-year old for

bringing this Appeal. When we reflect that the basis of

the decision was that the petitioner was disqualified for

lack of racial qualifications, we are at a complete loss to

understand why they selected this Appeal for such harsh

penalties,

$1441 Requires a Hearing and the Court of Appeals Has

Review Jurisdiction.

The availability of appeal from a remand order is set

out in 28 U.S.C. §1447:

‘‘(d) An order remanding a case to the State Court

from which it was removed is not reviewable on appeal

or otherwise, except that an order remanding a case to

the State court from which it was removed pursuant

to section 1443, of this title [28 USC$§1443] shall be

reviewable by appeal or otherwise.”’

Since this cause was removed pursuant to 28 U.S.C. §1443,

the right to appeal is guaranteed by statute, and Robert

T. Evans clearly has the right to pursue this appeal.

Further, it is submitted that this appeal was proper

even insofar as it pertained to the removal under 28 U.S.C.

§1441. The United States Supreme Court has made it clear

that the limits on appeal in 28 U.S.C. §1447(d) are not

absolute. A district court may not abuse its power by

ordering a remand for reasons not authorized by statute,

and still remain insulated from review by the provisions

of §1447(d).

In Thermtron Products and Newhard v. Hermansdor-

fer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), the

Supreme Court allowed an appeal of a remand order al-

though the removal had not been pursuant to 28 U.S.C.

§1443. In that case, the federal district judge had remanded

the case for reason that ‘‘there is no available time in

which to try the above styled case in the foreseeable fu-

ture.’’? The Supreme Court allowed the appeal, holding

that ‘‘a case may be removed only in accordance with 41447

which governs procedure after removal.’’ Since the re-

mand which was ordered by the District Court had gone

beyond the authority of §1447, the remand was held im-

proper and the appeal was allowed.

Now that the federal judges have been alerted by

Thermtron, it seems unlikely that this exact situation will

arise again, and that a Court would fail to couch its remand

order in the terms set out by the statute: ‘‘improvidently

and without jurisdiction.’’ Yet the use of this stock phrase

cannot excuse the courts from the duty set down in Therm-

tron and 28 U.S.C. §1447, that being the duty to evaluate

each case carefully and remand only when such a careful

evaluation does reveal that a case has been removed ‘‘im-

providently.’’ When the facts of the case support an infer-

ence that the court ‘‘was clearly remanding the suit on

grounds specified in 28 U.S.C. §1447(c)’’, such remand

cannot be questioned on appeal. Midland Mortgage Co.

v. Winner, 532 F.2d 1342, 1344 (10th Cir. 1976). However,

where the facts as set out in the petition for removal plead a

valid basis for removal, and where no hearing is held which

would allow the presentation of factual evidence and argu-

ment, the District Court cannot take it upon itself to re-

mand the case without a reason supportable by the statute,

and then insulate itself behind a repetition of the proper

phrase, There is no support in the record for the order

of remand in this ease. Indeed, due to the lack of a hear-

ing, there is very little ‘‘record”’ in existence,

Further, both Thermtron and the principles of due

process were violated by the summary manner in which

this remand occurred. The Petition for Removal was filed

on Friday, October 26, 1979. On Monday, October 29, 1979,

plaintiff filed a Motion for Remand. On that same day,

the federal district judge summarily ordered that the cause

be remanded, without a hearing and without an opportunity

for presentation of facts and arguments. Such summary

action was clearly improper.

In Harmon v. Superior Court of California, 307 F.2d

796, 798 (9th Cir. 1962), the Court made it very clear that

an evidentiary hearing is absolutely required when a de-

termination is made as to the validity of a civil rights

claim. In this regard, the Court stated as follows:

‘Appellant has attempted, however imperfectly, to

state a claim under acts of Congress that expressly

give the District Court jurisdiction.

The claim may be, as appellees assert, entirely spurious.

The Complaint may well not state a claim upon which

relief can be granted. But those are not the questions

before us. The court cannot know, without hearing the

parties, whether it may be possible for appellant to

state a claim entitling him to relief, however strongly

it may incline to the belief that he cannot.’ (emphasis

added).

Thus, an evidentiary hearing was required prior to any

determination concerning the civil rights issue.

Further, a hearing must be granted even in situations

wherein the issue is jurisdictional. In Harmon v. Superior

Court of California, supra, the court held as follows, at

797:

‘‘But it [the district court] cannot dismiss for lack

of jurisdiction, without giving the plaintiff an oppor-

tunity to be heard, unless such lack appears on the face

of the complaint and is obviously not eurable.’’? (em-

phasis added),

In the case now before the Court, jurisdiction did exist,

and the petition was timely filed. However, even if it were

assumed, arguendo, that a question did exist as to jurisdie-

tion and timely filing, then an evidentiary hearing would

nevertheless be required to resolve the factual issues re-

lating to these questions. A federal court may not ‘‘pre-

try’’ any doubtful issues of fact to determine removability.

Dailey v. Elicker, 447 F.Supp. 436 (DC Colo. 1978). Yet,

only by so doing could the court have reached the result

herein, and a hearing should therefore have been granted.

Summary dismissal, without a hearing, was not auth-

orized in this situation. The speed with which this decision

was reached argues against a proper and careful consider-

ation of the issues involved. Jurisdiction was not lacking

on the face of the record, and a civil rights question was

raised by the Petition for Removal. Clearly, the denial of

a hearing was impermissable.

The Opinion Invaded State Power by Passing Judgment

that the Appeal was for Purposes of Delay.

The conclusion by the panel of the Tenth Circuit Court

of Appeals comprised of Judges Barrett, McKay and Logan

that the Appeal was filed for purposes of delay, and that

therefore attorney’s fees and double costs totaling $1,000

should be imposed, is challenged on Constitutional grounds

as well as others. See the Tenth Amendment to the Con-

stitution of the United States:

‘‘The powers not delegated to the United States by

the Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.’’

Also see Article IT, §3 of the New Mexico State Constitution:

‘‘The people of the state have the sole and exclusive

right to govern themselves as a free, sovereign and

independent state.’

The last paragraph of the Opinion makes assertions about

the case of Matney v. Evans when it was in the state court

of New Mexico, and specifically refers to ‘‘more than two

years’’ occurring between filing of suit and filing of re-

moval. The opinion also states that ‘‘only four days be-

fore state court trial was to begin on the damages question’”’

did removal take place.

The ‘‘damages’’ awarded to appellee were the result

of the conclusion stated as follows: ‘It is clear from the

record that this appeal is frivilous, vexatious and brought

for the purposes of delay.’’ (emphasis supplied). It would

be reasonable to associate the ‘‘delay’’ motivation allega-

tion with the state trial in New Mexico. Therefore, the

opinion considered the occurrences of Matney v. Evans in

the state court of New Mexico as a basis for awarding

‘‘damages.’’ This, we believe the Constitution of the United

States of America, Tenth Amendment, and the Constitution

of the State of New Mexico, supra, forbid.

The ‘‘purposes of delay’’ is meaningless without a

Court of Appeals finding of the time period that the case

was a New Mexico state court case. This, we submit, is

beyond the Constitutional power of the United States Court

' of Appeals for the Tenth Circuit under the separation of

powers provided for by the Constitution.

The County in New Mexico where the case was filed

and where it was pending was Bernalillo County, and the

State of New Mexico trial judge at the State District Court

level was Judge James Maloney.

The Honorable James Maloney did not request nor

does the United States Court of Appeals or any judges

therein have the Constittuional power to make findings

relative to delay of civil cases in Bernalillo County, New

Mexico.

Since the ‘‘delay’’ referred to in the opinion refers to

a state court trial, we assert that exclusive jurisdiction

resides with the state court system to judicially manage

the same and to make whatever decisions are deemed

necessary, including possible inquiries into reasons why

parties and their attorneys ask for or secure continuances.

Interference therein by federal officials constitutes a1 un-

lawful, unconstitutional interference in the internal affairs

of the State of New Mexico. See Article II, 43 of the New

Mexico Constitution, supra.

We are aware that the ‘‘damages’’ awarded were stated

to be based on a Court of Appeals Rule; however this Rule

must function within Constitutional limitations. The last

paragraph of the opinion, which makes the conclusion or

charge of ‘‘delay’’ motivation, is based on findings of a

presumed delay in a trial of the state suit. Therefore, the

‘*damages’’ logically have reference to a time period appli-

cable to the trial of a civil case in the District Court of New

Mexico, over which the Honorable James Maloney had

jurisdiction exclusionary as to the federal court judges

relative to the matters, which the opinion made the basis

of its finding of delay and on which its damages to appellee

and against appellant were based.

The opinion’s last paragraph contains an attempted

justification for the sanctions which start with the bare,

unsupported assertion about all of appellant’s arguments

as being ‘‘totally lacking in merit.’’ Later assertions in-

dicate that the panel had in mind the motivation of the

removal rather than the merits of the removal, for which

there was never a hearing. The opinion accusations are

false and imply that the record contains an abundance of

evidence substantiating the evils for which the petitioner

is charged. It is an attempt to discredit by attacking moti-

vation rather than to evaluate the issues. The case cited

is not a true authority. See Appendix E for motion to set

aside where the case is discussed. Even though the opinion

is not to be published routinely, Judge Mechem got news of

the panel’s accusations. Appendix I.

Those who dared to exercise their right to remove under

§1441 and §1443 not only did not get a hearing on the

merits of their Removal, but they were also charged and

convicted of evil intent without notice or a hearing.

CONCLUSION

For the reasons set forth above, it is respectfully sub-

mitted that a writ of certiorari should be granted to review

the opinion of the United States Court of Appeals for the

Tenth Circuit.

Respectfully Submitted:

Evucene E. Kuecan

Klecan & Roach, P.A.

520 Sandia Savings Building

Albuquerque, New Mexico 87102

Attorneys for Petitioner

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

TONY E. MATNEY,

Plaintiff,

-VS- No. CIV 79 828 M

ROGER EVANS, individually and as

father and next friend of ROBERT

T. EVANS, a minor,

Defendants.

Entered on Docket

Oct. 29, 1979

ORDER

The above-entitled action having come on before the

Court, and the Court being of the opinion that the action

was removed to this Court improvidently and without jur-

isdiction, for the reason that the removal procedures were

not timely followed, and for the further reasons which are

set forth in the affidavit attached to the Motion.

IT IS HEREBY ORDERED that the above-entitled

action be, and it is hereby, remanded to the Second Judicial

District Court of Bernalillo County, State of New Mexico.

K. L. Mecnem

United States District Judge

me 7

Appenpix B

4-24-80" 79-2153

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Slip Opinion

Not for Routine Publication

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TONY E. MATNEY,

Plaintiff-A ppellee,

v. No. 79-2153

ROGER EVANS, individually and as father

and next friend of ROBERT T. EVANS,

a minor,

Defendants-Appellant.

Appeal from the United States District Court

For the District of New Mexico

(Civ. No. 79-828-M )

Submitted on the briefs pursuant to Tenth Circuit Rule 9:

Eugene EK. Klecan and Wendy M. Bickel, Klecan & Roach,

Albuquerque, New Mexico, for Defendants-Appellants.

Paul W. Robinson, Robinson, Stevens & Wainwright, Al-

buquerque, New Mexico, for Plaintiff-Appellee.

Before BARRETT, McKAY and LOGAN, Circuit Judges.

))

PER CURIAM

After examining the briefs and the appellate record,

this three-judge panel has determined unanimously that

oral argument would not be of material assistance in the

determination of this appeal. See Fed.R.App.P. 34(a) ;

Tenth Cireuit R. 10(e). This cause is therefore ordered

submitted without oral argument,

As a result of a car-bicycle accident appellee Matney

brought suit in a New Mexico state court against appellant

Roger Evans as father and next friend of Robert T. Evans.

Evans subsequently removed the action to the district court

pursuant to 28 U.S.C. § 1441(a) (b) and (c) and 28 U.S.C.

§ 1443. The district court promptly remanded the action to

the state court. Evans has appealed that remand order and

Matney has filed a Motion to Affirm.

This court has jurisdiction to review district court

orders remanding a case to state court only when the case

was removed to federal court pursuant to 28 U.S.C. § 1443.

See 28 U.S.C. § 1447(d). We therefore limit our review to

appellant’s contention that he was entitled under the pro-

visions of 28 U.S.C. § 1443 to remove this case to district

court. See Noel v. McCain, 538 F.2d 633 (4th Cir. 1976).

In support of his petition for removal under 28 U.S.C.

§ 1443, Evans contends his son was deprived of equal civil

rights because he was a male and a minor. Even assuming

these allegations to be true, neither subsection of the statute

contemplates removal of actions from state court to federal

court under these circumstances.

One of the requirements for removal under 28 U.S.C.

§ 1433(1) is that the defendant show a deprivation of rights

guaranteed by a law protecting against racial discrimina-

tion. Georgia v. Rachel, 384 U.S. 780 (1966) ; State of New

Mexico v. Torres, 461 F.2d 342 (10th Cir. 1972). The statute

does not authorize removal to protect the broad guarantees

of the Constitution. Naugle v. Staie of Oklahoma, 429 F.2d

1268 (10th Cir. 1970). There is no allegation or evidence of

racial discrimination in the record.

The removal provisions of 28 U.S.C. § 1443(2) are

available only to federal officers and persons assisting such

officers in affirmatively executing duties under any federal

law providing for equal civil rights. Greenwood v. Peacock,

384 U.S. 808 (1966). Appellant falls in neither category.

Kvans filed his petition for removal more than two

years after this action was instituted in state court and only

four days before state court trial was to begin on the dam-

ages question. The arguments advanced by Evans on appeal

are totally lacking in merit. It is clear from the record that

this appeal is frivolous, vexatious and brought for the pur-

poses of delay. We therefore award to appellee damages

to the extent of attorney’s fees in the amount of $500 and

double costs. See Peltier v. Peltier, 548 F.2d 1083 (1st Cir.

1977) ; 28 U.S.C. § 1912; Fed.R.App.P. 38. The motion of

appellee is granted and the judgment of the district court

is affirmed.

AppEeNnpDIx C

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TONY E. MATNEY,

Plaintiff-A ppellee,

Vs. No. 79-2153

ROGER EVANS, individually and as father

and next friend of ROBERT T. EVANS, a

minor,

Defendants-A ppellant.

PETITION FOR REHEARING

Paul W. Robinson

ROBINSON, STEVENS & WAINWRIGHT

P. O. Box 787

Albuquerque, New Mexico 87103

505/243-6777

Attorneys for Plaintif!-Appellee

Eugene E. Klecan

Wendy M. Bickel

KLECAN & ROACH, P.A.

Suite 520, Sandia Savings Bldg.

Albuquerque, New Mexico 87102

505/243-7731

Attorneys for Defendants-A ppellant

PETITION FOR REHEARING

The Bokke case, 98 S.Ct. 2733, expresses the soul of

America which espouses ‘‘equality’’ as its most cherished

objective. That equality includes all institutions within its

scope. Bakke, supra, was a judicial culmination of a con-

tinuing movement in and out of courts for equality. This

equality is sought consciously and subconsciously through-

out America’s history from the very beginning and had

been building up for a considerable period of time within

a movement that has been legislatively and properly de-

nominated as civil rights and remedies. Bakke, supra, rep-

resented a public expression of a national movement and

is merely one of numerous expressions of an inherent na-

tional, natural tendency that far transcends legalisms of

all sorts. Occurring in 1978, it represented a forward move-

ment approved by the Supreme Court of the United States

which was a step forward toward equality from 1966. Bakke,

supra was popular and cherished in the main long before

its appearance as a judicial decision. The Declaration of

Independence, the Constitution of the United States of

America, the Emancipation Proclamation, and the Thir-

teenth and Fourteenth Amendments to the United States

Constitution all are documents of equality. For purposes

of this rehearing we submit that Bakke, supra constitutes

a national environment, together with many other factors,

which differs from the Constitutional environment of 1966,

when Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 F.2d

929 and Greenwood Mississippi v. Peacock, 384 U.S. 808, 86

S.Ct. 1800, 16 F.2d 944 were denied.

The Civil Right Removal Act, 28 USC 61443, was a

document asserting equality like the Declaration of Inde-

pendence ; however, Rachel and Peacock wrongfully changed

its plain meaning which clearly states ‘‘equal civil rights of

citizens of the United States’’ and made it a discriminatory

statute by unwarranted judicial: statutory construction.

Bakke changed that and merely eliminates the restrictions

of the interpretations of Rachel and Peacock and restored

§1443 to its original, expressed clear-cut inclusion of all

‘‘citizens of the United States.’’ Bakke did this by declar-

ing that the restrictions of ‘‘race’’ written into $1443 by

Rachel were themselves unconstitutional. Justice Powell

ably phrased the heart of the memorable Bakke Majority

Opinion as follows at p. 2757: ‘*Preferring members of any

one group for no other reason other than race or ethnic ori-

gin is discrimination for its own sake. This the Constitution

forbids, citing cases.’’ Even without Bakke, the forced inter-

pretation of Rachel which ‘‘wrote in’’ discriminatory lan-

guage where none was contained in the Act itself argued

for a ‘‘dissent’’ from some litigants like the instant minor

male plaintiff, who would inherit the American sense of

‘‘equality’’ which is the reverse of discrimination. Turning

to ‘‘lawyers’’ whose choice of remedies for and in behalf

of their clients is not determined by an inexorable seru-

pulous following of a rigid inflexible stare decisis but is

determined by the Canons of Professional Responsibility

which aliows a lawyer to represent his client by the ad-

vancement of his Constitutional rights even though a de-

cision apparently exists to the contrary. If an attorney

or his client is foreed to pay attorneys fees and double

costs for advancing the same rights as others can ad-

vance of a different race then the Constitutional provision

of equal protection of the laws is thwarted. Fourteenth

Amendment. When a party and his attorney believe that

‘*discrimination’’ has occured as to a class in which the

client belongs, then a further belief that he should not be

disqualified because of the color of his skin or his ethnic

background from a hearing in Federal District Court on

the allegations of discrimination contains a strong element

of Constitutional truth. So says Bakke. When a sugges-

tion that we reexamine Rachel is not only denied but penal-

ized, we have an imposition of an inexorable rigidity at

variance with the essentials of stare decisis which of its

very nature provides for change. Courts do not institute

their own causes of action, and if justiciable cases are pen-

alized when they use the inherent essential of stare decisis

by requesting change, then the very doctrine is self-

destructive.

Further, a potential deterrent to the use of Federal

Courts by citizens at the trial and appellate levels is viola-

tion of the ‘‘due process’’ clause of the Fourteenth Amend-

ment. When a rigid inflexible stare decisis is imposed

through the imposition of a judgment rendered at the ap-

pellate level against the party suggesting a change and that

without any hearing or finding of fact and by an unidenti-

fied reference to the ‘‘record’’ which the trial judge did not

allow time to gather, then Constitutional rights are again

invaded,

It is questionable whether Rachel as to its restriction

to race was not ‘‘dieta.’’ Civil rights removal was recog-

nized in the Rachel decision, and that decision does pro-

hibit a Remand without a hearing; and the lower court in

New Mexico can find support only in a lack of allegation of

racial discrimination on which Bakke and 61443 both say is

not necessary as to the ‘‘racial’’ word under ‘‘equal civil

rights’’ and ‘‘equal protection of the laws.’’ We think to

have requested the elimination of the language of Rachel

and the application of the Rachel decision is not only a

permissible Constitutional stance by Robert Evans and his

attorney but even a highly commendable one and also one

that is meritorious as Bakke clearly holds.

We indicated one of our objections in our brief to this

Court (p. 14, top paragraph, Appellant’s Brief). In addi-

tion, although not mentioned in the Court’s Opinion, re-

moval was also based upon 28 USC 61441, and our brief

refers to 42 USC § § 2651—2653 as the federal statute auth-

orizing removal under § 1441(b). As we pointed out at p.

16 of our brief, this had not even been disputed or even

discussed by Plaintiff-Appellee. It would appear that the

Opinion herein not only accepted Plaintiff-Appellee attor-

ney’s unsupported assertions that Appellant’s motivation,

which was clearly irrelevant, but also followed Appellee in

overlooking the rernoval under $1441. The advancement of

Supreme Court decisions referred to above has also taken

place in regard to §1441, and in particular 28 USC § 1447

which deals with appealability of a remand. The case re-

ferred to in our brief was Thermtron Products, Inc, v. Her-

mansdorfer, 423 U.S. 336, 96 8.Ct. 584, 46 LEd2d 542 (1976),

The failure of the lower court to grant a hearing and its

immediate issuance of a remand with no opportunity to

comply with the Local Rule of the Court for transfer of

State Court records are relevant circumstances and were

briefed (p. 17, et seq.). Thermtron, supra lends further

substance to this Petition for Rehearing, both as to the

ruling on the Appeal and the open assertion of delay as

motivation. See University of Illinois Law Forum, 1977,

p. 1086, wherein Thermtron, supra is discussed in an ar-

ticle entitled ‘‘Remand Order Review After Thermtron

Produets.’’ This article indicates a supporting opinion

from University of Illinois that review under § 1447 is

not outmoded under circumstances existing in this case,

An assurance that an appeal effort will prevail has never

been considered as a requisite to a well-intentioned ap-

peal. Attorney responsibilities for legal measures are in

the Code of Responsibility and makes actions in behalf

of clients permissible and perhaps mandatory, even though

the outcome is, of course, out of the hands and control

of the attorney. Prevailing changes in the life of a

country can authorize a non-following of stare decisis.

We find no stare decisis in Thermtron as applied to the facts

of this particular case which have been stated above and in

our brief. Based on Thermtron, supra, we are of the con-

viction that under the Code of Responsibility a review in

an appellate court could be required, and opposing attor-

ney’s unfounded assertion of another type of motivation

would be not only irrelevant but also a non-recognition of

the nature of legal representation in the practice of law.

In conclusion, since the damages awarded are based

on an unquoted and non-cited record which the Court says

is clear, we assert error of the judgment. Since a question

sometimes has been raised that claimed error must be

brought to the attention of the Court awarding damages,

we submit the point to the attention of this Court which

has awarded damages. The only place appellant can find

any basis for the ‘‘delay’’ motivation is appellee attorney’s

statements in his brief. Assertions of counsel have never

been considered evidence. This Court cites Peltier v. Peltier,

548 F.2d 1083 (1977) in support of its judgment; however,

the judgment in that Court was by the Trial Court based

on a ‘‘finding of bad faith’’ and the Opinion indicates there

was a hearing, p. 1084, at the trial level. At least the appel-

lant’s attorney had a chance to convince the Court at the

trial level as to what the State Court proceedings showed

and to explain his own motivation and to be informed that

it was under scrutiny. In our case, although the Opinion

does not mention this, the State Court proceedings were

not allowed to be presented as provided by the District

Court Rule before the Trial Judge immediately remanded

the case. The basis for Peltier award of damages was the

nature of the action removed, not being removable, i.e.

divorce.

In our case, the Trial Court did not find that the Re-

moval was brought for the purposes of delay.

In regard to the last paragraphs of the Opinion,

Appellant submits as a preliminary premise that Constitu-

tional rights are in a higher category than technical legal

rules, like the number of witnesses required for will validity.

Equality is a Constitutional right. It does not arise as a

gift from any governmental body but inheres in the citizen

as an attribute of their very lives. Declaration of Independ-

ence. When a citizen becomes a litigant, he does not lose

his Constitutional rights. Appellant Robert Evans and his

attorneys did not remove the case into the federal system

because they wanted to delay, despite appellee’s assertions

to the contrary. The above has to do with motivation, which

is irrelevant to this whole Removal and Remand and Appeal

and hearing. Since motivation is personal, we know with

certitude that the purpose of the Removal was to obtain

another forum than the State of New Mexico forum.

Kucene EK. Kuecan

Klecan & Roach, P.A.

Attorneys for Defendants-Appellant

Suite 520, Sandia Savings Building

Albuquerque, New Mexico 87102

505/243-7731

1 hereby certify that a true and

correct copy of the foregoing

Petition for Rehearing was served

on opposing counse! of record this

7th day of May, 1980.

Wenpy M. Bickeu

—

Aprenpix D

IN THK UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TONY E. MATNEY,

Plaintiff-A ppellee,

Vs, No. 79-2153

ROGER EVANS, individually and as father

and next friend of ROBERT T. EVANS, a

minor.

Defendants-Appellant.

MOTION FOR HEARING

COMES NOW Appellant and hereby moves the Court

to set a date for a hearing on Appellant’s Motion to Set

Aside Judgment entered herein against Appellant for at-

torneys fees of five-hundred dollars ($500.00) and double

costs, whereby Appellant can be represented by counsel and

afforded an opportunity to be heard.

KuGene EB. Kuecan

Kleean & Roach, P.A.

Attorneys for Appellant

Suite 520, Sandia Savings Building

Albuquerque, New Mexico 87102

505/243-7731

I hereby certify that a true and

correct copy of the foregoing Motion

was served on opposing counsel of record

this 8th day of May, 1980.

Wenpy M. Bicket

AppenpDIx E

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TONY E. MATNEY,

Plaintiff-A ppellee,

vs. No. 79-2153

ROGER EVANS, individually and as father

and next friend of ROBERT T. EVANS, a

minor,

Defendants-A ppellant.

MOTION TO SET ASIDE THE JUDGMENT ENTERED

HEREIN AGAINST APPELLANT FOR ATTORNEYS

FEES OF FIVE-HUNDRED DOLLARS ($500.00) AND

DOUBLE COSTS, WHICH WAS ENTERED WITHOUT

A HEARING OR EVIDENCE OF ANY KIND.

COMES NOW Appellant, Robert T. Evans, and states

in support of this Motion that:

1. This cause in this Court is an Appeal under the Civil

Rights Appeal Statute from the United States District

Court for the District of New Mexico.

2. That in an Opinion entered in this Court which

granted Appellee’s Motion to Dismiss Appellant’s Appeal,

the panel of the Court of Appeals has directed the entry of

a Judgment against Appellant for attorneys fees of five-

hundred dollars ($500.00) to be awarded to Appellee and

double costs of an additional five-hundred dollars ($500.00).

The Opinion is not signed by any one Court of Appeals

Judges, but said Opinion states that a panel of Justice

Barrett, Justice McKay and Justice Logan agreed unani-

mously on the Opinion.

The Judgment stated above was without any hearing

in this Court or in the United States District Court for the

District of New Mexico, either. Appellee did not ask for

any sanctions or attorneys fees, and no hearing of any kind

has occurred; nor have any affidavits or evidence of any

kind been sought or furnished by anyone relative to the im-

position of any type of sanctions against the Appellant.

That the penalties of five-hundred dollars ($500.00) at-

torneys fees and double costs are not provided for in the

statute dealing with the appeal taken by the Appellant

under the Civil Rights Act.

That the sole basis claimed for the award is a Rule of

Court of the Tenth Cireuit.

That to do so without a hearing, without notice that

sanctions and penalties were even being considered by this

panel of the Tenth Circuit Court of Appeals and without

any background in the United States District Court for

the District of New Mexico and without any opportunity

to defend in any way constitutes the entry of a Judgment

by the Court of Appeals which is in violation of the Appel-

lant’s due process rights.

That for Appellant to be thus adjudged in such a pro-

ceeding which was completely secret as to any of the parties

to this Appeal has been to deprive Appellant of his most

fundamental Constitutional rights.

The Opinion says that the panel of three United States

Cireuit Court of Appeals Judges were all three unanimous.

This necessarily implies that a judicial meeting was held

with no evidence presented or opportunity for defense

afforded, and that the Judgment described above resulted.

Appellant asserts that the said result is without a Consti-

tutional basis and in violation of Appellant’s most funda-

mental right as a citizen of the United States of America.

Not only was the Judgment without a hearing and an op-

portunity for defense or explanation, but in addition no

Notice was ever given that this panel would on its own and

unannounced enter into a judicial session where no one was

present who could speak in behalf of the Appellant Robert

T. Evans. In fact, the opposing party was not present,

with the result that the deliberations wherein the Appellant

was subjected to a Judgment, were entirely governmental

functions. Appellant asserts that citizens of the United

States have Constitutional rights which were not observed.

That Appellant asserts the right to assert this alleged viola-

tion and verily believes that this Court has no authority to

have thus proceeded for the purpose of entering a Judg-

ment against the Appellant Robert T. Evans. The exist-

ence of a Court Rule does not authorize proceeding in the

manner described above.

That Appellant also asserts that the Judgment and the

proceedings from which the Judgment emanated were in

violation of his civil rights and the ‘‘equal protection of

the laws’’ under the Fourteenth Amendment of the Con-

stitution of the United States of America, and that said

proceeding as described above was a discrimination against

him, Robert T. Evans, as a citizen of the United States of

America. Regents of the University of California v. Allan

Bakke, 98 S.Ct. 1978.

The summary dismissal of this Appeal, which was filed

as a Civil Rights authorized Appeal in the Tenth Circuit

Court of Appeals, was based on the absence of a claim of

‘‘racial discrimination’’ in the Removal, and the cause of

Georgia v. Rachel, 384 U.S., 780, 86 S.Ct. 1783, 16 F.2d 925

was cited in support of the dismissal. Appellant Robert T.

Kvans is in fact Caucasian and claims no Hispanic ethnic

background. The assertion in the Opinion of a total lack

of merit to the Appeal and the cause for the wholly judicial,

non-evidentiary Judgment against the Appellant Robert T.

Evans was the fact that Robert T. Evans was not a person

of the Black race, nor did he have an Hispanic heritage.

The Opinion and the Judgment, per se, violated Ap-

pellant’s Constitutional and civil rights, Bakke, supra places

the Constitutional violation as one of a denial of the ‘‘equal

protection of the laws.’’ That said Amendment in Bakke

was the Fourteenth Amendment, but the Bill of Rights gives

to citizens of the United States the same rights and the

same protection from the actions of the Federal Government

as does the Fourteenth Amendment in relationship to the

State.

The Majority Opinion in Bakke says as the decisive

statement, of Constitutional law, p. 2757 in 98 S.Ct.: ‘Pre-

ferring members of any one group for no reason other than

race or ethnic origin is discrimination for its own sake.’’

This language is not an abstraction but an explanation of

the reality of what happened in this Opinion to Robert T.

Kvans, a citizen of the United States. He was the subject

of discrimination for the sake of discrimination within the

appeal processes and the resulting judgment.

KuGene BE. Kuecan

Klecan & Roach, P.A.

Attorneys for Appellant

Suite 520, Sandia Savings Building

Albuquerque, New Mexico 87102

505/243-7731

I hereby certify that a true and

correct copy of the foregoing

Motion was served on opposing

counsel of record this 8th day

of May, 1980.

Wenpy M. Bickeu

APPENDIX F

MAY TERM - May 22, 1980

Before Honorable James E. Barrett, Honorable Monroe G.

McKay, and Honorable James K. Logan, Cireuit Judges,

United States Court of Appeals

TONY E. MATNEY,

Plaintiff-A ppellee,

vs. No. 79-2153

ROGER EVANS, individually

and as a father and next

friend of ROBERT T. EVANS,

a minor.

Defendant-A ppellant.

This matter comes on for consideration of appellant’s

petition for rehearing, motion for hearing and motion to

set aside the judgment. Upon consideration thereof, the

petition and both motions are denied.

Howarp K. Pxttuips

Clerk

By Roserr L. Horcker

Chief Deputy Clerk

AprENpDIX G

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TONY Kk. MATNEY,

Plaintiff-Appellee,

vs. No. 79-2153

ROGER EVANS, individually and as father

and next friend of ROBERT T. EVANS, a

minor,

Defendants-Appellant.

MOTION FOR STAY OF MANDATE

Pursuant to Rule 41, in furtherance of a Motion of

May 30, 1980, and pursuant to Rule 41, Robert T. Evans,

Petitioner, now 19 years of age but a minor during most

of the litigation time, moves for a stay of the remand pend-

ing application to the Supreme Court for a Writ of Cer-

tiorari. Petitioner Robert T. Evans further states that he

is a citizen of the State of California where he has resided

for the past three years, and as a reason for this request

in behalf of himself as a person in the status of a young,

male Caucasian, wishes to bring before the Supreme Court

of his government the need of protection and affirmative

action as a member of a minority under Civil Rights pro-

tection. Petitioner Robert T. Evans further asserts that in

his home state of California, since the Allan Bakke decision,

there is a common feeling among college students, of which

he is now one, that admissions to universities based on race

is prohibited. And, Robert T. Evans wishes to go to Wash-

ington, D.C. to seek equal rights for all young boys for

admission into the Courts of the United States of America

under removal provisions regardless of race. That your

Petitioner Robert T. Evans wants to and does ask vou for

the Stay so that he can apply to the Supreme Court as a

California citizen and seek the equality of the California

University decision in regard to Allan T. Bakke, for him-

self and for a group which would be young, minor, Cauca-

sian males, and for the rights of admission in regard to

California Universities applied to the courts that are pro-

cessing his civil litigation. Petitioner Robert T. Evans is

now a student at the University of California at Fresno.

Roger Evans joins in this request.

A personal statement by Robert T. Evans in his own

handwriting is attached hereto and incorporated by refer-

ence to this Motion.

Rosert T. Evans

2740 A Lind Avenue

Clovis, California 93612

Kucenk EK. KLecan

Kleean & Roach, P.A.

Attorneys for Petitioner

Suite 520, Sandia Savings Bldg.

Albuquerque, New Mexico 87102

505/243-7731

5/31/80

I Robert Evans, hope that the honorable judges who

preside in the United States 10th Circuit Court of Appeals

will take the time to review the following statement which

is written in my own handwriting. At age nineteen I feel

I am a responsible, conscientious and sincere person. I am

a student at the California State University, Fresno, and at

the completion of my freshman year have attained a 3.1

grade point average. I hold a job and contribute to my

family and home.

I can honestly say that I feel abused because the opin-

ion of the 10th Cireuit Court indicates I have done some-

thing wrong in searching the federal courts. I apologize

for whatever it is that I’ve done which is offensive, but do

request that vou grant a stay. I have tried to understand

all that has occurred in courts dealing with my ease since

its beginning four years ago. I believe I understand what

is said in this document. The thoughts and intentions are

of a truthful nature,

I have never had the chance to express my thoughts

and concerns in court about this case. I seek the opportunity

to do so by appealing to the Supreme Court of the United

States.

I clearly read that your opinion states that a particular

race only qualifies for admission into the federal judicial

system. Discussions in my home state about Allen Bakke

and the University of California lead me to believe that

being born into a particular race means nothing as far as

admission into California’s universities is concerned. T

want to request and ask the Supreme Court why this same

idea should not be applied to me in this lawsuit. I am ask-

ing you to help me do this by granting my request that

you do not finalize this matter in your court but give me

the chance to see if the Supreme Court will recognize me

and others as being equal with another race in getting into

civil rights protection in the federal courts.

In the words of Ralph Waldo Emerson, ‘*Nothing can

bring me peace but the triumph of principles’’ and to me

this is a matter of principles.

Sincerely yours,

Rosert T. Evans

* The original of the foregoing statement was in the handwriting of

Robert T. Evans, the person whose civil rights were violated. Of neces-

sity, it is here reproduced in printed form.

Apprpenpix H

MAY TERM - June 3, 1980

Before Honorable James T. Barrett, Honorable Monroe

CG. MeKay and Honorable James K. Logan, Cireuit Judges

TONY KE. MATNEY,

Plaintiff-A ppellee,

Vs. No. 79-2153

ROGER EVANS, individually and as father

and next friend of ROBERT T. EVANS, a minor,

Defendants-A ppellant.

This matter comes on for consideration of appellant’s

motion for stay of mandate in the captioned cause pending

timely application to the Supreme Court for certiorari.

Upon consideration whereof, the motion for stay of

mandate is granted. The mandate shall be stayed until July

3, 1980, pending certiorari, and that if on or before that

date there is filed with the Clerk of the Court of Appeals a

notice from the Clerk of the Supreme Court of the United

States that appellant has timely filed a petition for writ «

of certiorari in the Supreme Court, the stay shall continue

until final disposition by the Supreme Court.

HOWARD K. PHILLIPS, Clerk

By: Roserr L. Horcker

Chief Deputy Clerk

APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

MARIA ELENA HOLGUIN and

JAIME HOLGUIN, husband and

wife, and RUTH LEGARDA and

ALFREDO LEGARDA, husband

and wife,

Plaintiff's,

v. No. 80-221-M Civil

LONNIE DAWSON,

Defendant.

ORDER

This matter comes up for consideration on plaintiffs’

motion to remand this action to the Grant County District

Court. Plaintiffs claim as grounds for their motion de-

fendant’s failure to file a verified petition as required by

28 USC 1446(a), the untimeliness of the filing of the peti-

tion, 28 USC 1446(b), and the mootness of defendant’s

alleged civil rights claim by which he justified removal

pursuant to 28 USC 1443(1). Plaintiffs also seek costs in-

curred in securing remand to State District Court, claim-

ing that the petition for removal is frivolous, vexatious

and brought for purposes of delay. For the reasons set

out below, the motion to remand will be granted and costs

will be awarded against defendant.

The First Amended Complaints filed in this consoli-

dated action set out for the first time the claims on behalf

of Jaime Holguin and Alfredo Legarda, husbands of plain-

tiffs Maria Elena Holguin and Ruth Legarda, the original

plaintiffs in these consolidated actions. The husbands’ sev-

eral claims set out in those First Amended Complaints

later were deleted by way of amendment in a pretrial order

‘‘with the exception of the loss of services of [their]

wi[vJe[s].’’ Pretrial Order, 8. Contrary to the repre-

sentation! made by defendant in his response to the motion

to remand, the husband-plaintiffs did not delete all their

claims for relief in the pretrial order, but did so with the

clear and unambiguous exceptions set out above. No new

claim, therefore, is set out in the pretrial order, as is

asserted by defendant as the basis for removal of this

action. Because the petition for removal was filed more

than thirty days after the filing of the First Amended

Complaint, which was the last pleading to raise a new

claim on behalf of plaintiffs, the petition is not timely

filed. 28 USC 1446(b).

A more precise reason why plaintiffs motion for re-

mand should be granted also derives from 28 USC 1446(b).

The original complaint in this action was removable had

a timely petition been filed by defendant. As a result, the

second paragraph of §1446(b), limited to circumstances in

which ‘‘the case stated by the initial pleading is not re-

movable,’’ does not operate to permit the petition at this

late date. Nor does 28 USC 1441(c) provide removal jur-

isdiction in this case. Assuming without deciding that the

'Defendant’s response quotes a sentence from paragraph 8 of the

Pretrial Order as follows: “ ‘The plaintiff, Alfredo Legarda hereby

amends Count II of his First Amended Complaint to delete all prayers

for relief.’ The same deletion occurred as to Jaime Holguin.” e re-

sponse takes the quoted sentence out of context, which misrepresents its

effect as to plaintiff Legarda, and flatly misstates the effect of the claimed

deletion on the claim of plaintiff Holguin. Whether defendant’s mis-

representation of the language in the Pretrial Order is knowing or inno-

cent is a question of serious concern. Given the express language in

the Pretrial Order, it is difficult to believe that defendant’s argument,

which is so far off the mark, is presented in good faith. The sentence

quoted, when taken in context, clearly and unequivocally refutes de-

fendant’s argument. Only as it is lifted from context in his response

ean the sentence be relied on by defendant for support, a circumstance

which compounds my reluctant apprehension that something here is

gravely amiss: Wilful violation of F.R.Civ.P. 11 may subject an attorney

to “appropriate disciplinary action.”

claims raised by Messrs. Holguin and Legarda in the

First Amended Complaint are ‘‘separate and independent”’

claims, they were not joined with ‘otherwise non-removable

claims,’’? which must be the case in order that diversity

jurisdiction derive from 61441(c).

Whether or not defendants’ alleged civil rights claim

is moot, as contended by plaintiffs, it does not provide a

basis for removal jurisdiction in this Court. Assuming

arguendo defendant has raised a viable civil rights claim,

it clearly is not directed at plaintiffs to this action but

rather toward the administrative and judicial officials of

Grant County. It is they, and not plaintiffs herein, who

control and administer the jury selection process in the

State District Court, and it is they whom defendant must

sue, in a separate action, for any alleged civil rights viola-

tions. In such a suit, defendant herein would be a plaintiff,

to whom the provisions of §1443 do not apply.

Having considered the motion and memoranda of coun-

sel and further being fully advised in the premises, I con-

clude that defendant’s petition for removal is frivolous,

vexatious and brought for the purposes of delay. Defend-

ant filed his petition only days before trial was set in this

matter in the State District Court and after a motion for

continuance on his behalf had been denied. Additionally,

I note that this is not the first time that counsel for de-

fendant has attempted the same tactic to avoid an imminent

trial setting in the State District Court. See, Matney v.

Evans, No, 79-2153 (10th Cir., Apr. 24, 1980). Plaintiffs

shall be awarded their costs incurred in securing remand

of this case to State District Court as a result of my find-

ing that the Petition for Removal was filed in bad faith

and for purposes of delay. Costs shall be borne by defense

counsel as I conclude that Mr. Eugne E. Klecan, Esquire,

and not his client, was the prime mover behind the lament-

able tactics employed here. The requests for hearing on

this matter, filed by both parties, will be denied. Now,

Therefore,

IT IS ORDERED that plaintiffs’ motion to remand

be, and hereby is, granted.

IT IS FURTHER ORDERED that plaintiffs be

awarded costs in the amount of $350.00, such costs to be

borne by defense counsel, Eugene E. Klecan, Esquire.

IT IS FURTHER ORDERED that the parties’ re-

quests for hearing on this matter be, and hereby are, denied.

K. L. Mecuem

United States District Judge

APPENDIX J

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

TONY KE. MATNEY,

Plaintiff,

-V8- No. CIV 79 828 M

ROGER EVANS, individually and as

father and next friend of ROBERT

T. EVANS, a minor,

Defendants.

PETITION FOR REMOVAL

COMES NOW Robert T. Evans and states:

1. That your Petitioner Robert T. Evans is a citizen of

the State of California and whose date of birth was March

1, 1961.

2. That your Petitioner, Robert T. Evans is removing

Cause No. 12-76-05920, a civil action in Bernalillo County,

New Mexico.

3. That this Removal is pursuant to Section 28 USCS

§ 1441 (a)(b)(c). That the action removed is founded on

law of the United States and is thus authorized in particular

by 28 USCS § 1441 (b).

4. That the law of the United States on which the action

was based is Section 42 USC 2651-2653 and is expressly

pleaded as such in the Amended Complaint (Exhibit A,

attached).

5. That pursuant to 28 USCS §1441(c) the entire case

is removed. That the claimed amount under 42 USC 2651-

2653 is in excess of $25,000.00.

6. That the Amended Complaint stated a violation of °

42 USC 2651-2653 for the first time, as the same was not

a part of the original Complaint.

7. That the claim under 42 USC 2651-2653 is for the

United States of America. That on or about September 27,

1979, Robert T. Evans, your petitioner, received a Notice

of Trial in Bernalillo County, New Mexico, a copy of the

Notice is attached hereto as Exhibit B. That this removal

is within thirty days as stated in Section 1446.

8. That your petitioner was a minor, age 15 years, at ~

the time of the accident alleged in the Amended Complaint

and now living with his mother, Mona Evans in the State

of California, with whom he has resided continuously since |

the completion of the spring school term of 1977. The par-

ents of your petitioner had been divorced for many years

with custody with the mother, Mona Evans, by court decree.

Robert T. Evans became 18, March 1, 1979 and has been

a citizen of the State of California. That Plaintiff, Tony

Matney has been a citizen of the State of Indiana.

9. That a copy of the amended Complaint was never

served upon the petitioner, Robert T. Evans at any time

and said petitioner has never answered the Amended Com-

plaint nor has anyone ever accepted service for the Peti-

tioner or answered the Amended Complaint.

10, That shortly after September 27, 1979, Petitioner

received Notice of contents of the Order that he was being

ordered to trial and that a personal judgment was being

sought against him on the Amended Complaint. See Ex-

hibit B. Petitioner Robert T. Evans brings this Removal

within 30 days of having received an ‘‘Order’’, that the

Amended Complaint ‘‘is one which is or has become re-

movable’’, 25 USCS §1446.

11. That the State District Court trial proceeding as

scheduled (Exhibit B) will proceed seeking a personal

Judgment for compensatory and punitive damages against

the Petitioner despite the lack of necessary procedures as

stated above.

12. That in addition your petitioner who was a minor

at all times until March 1, 1979, has been sued originally

by his name Robert T. Evans, but plaintiff hereir has

abandoned that Complaint and is acting under Section 42

USC 2651 and against Roger Evans, the father and next

friend of this Petitioner.

13. There is thus a change in parties although your

Petitioner’s personal liability on a Judgment is sought.

The change of designation of parties requires service which

is lacking.

ADDITIONAL OR ALTERNATIVE

GROUNDS FOR REMOVAL

1. Petitioner claims removal also based on 28 USCS

§1448.

2. Petitioner, Robert T. Evans verily believes that he

was discriminated against because of his youth as being

of that class which is presumed by state police officials

and or judicial officials to be guilty of criminal acts because

of his youth.

3. This deprived him of a constitutional jury trial be-

cause the judicial officials have barred him from his day

in court and from a jury in his community which would

include persons of all ages including vovng persons 18 and

over. \

4. By the denial of a trial by jury, your petitioner

has been subjected to the opinions of police and law en-

forcement officers including judicial officers who accepted

solely the ‘opinion’’ of police officers as absolutely con-

clusive of guilt. This does not oceur with other people

and classes and thus your Petitioner verily believes is a

result of discrimination and prejudice against a class i.e.

male persons in their early teens and deprives them of

their civil rights in violation of justice.

». That the above is a ground for removal under See-

tion 1443.

6. In justification of the Summary Judgment, we find

the following: ‘‘The investigating officers were of the

opinion that the bicycle was struck from the rear’’ by the

petitioner. Plaintiff did not testify because of claimed

amnesia and there were no witnesses, In holding against

the defendant the ‘‘opinion’’ of the police was escalated

into an absolute conclusion barring a jury trial and day in

Court by petitioner.

7. There were other instances involving discrimination

in deprivation of Petitioner’s constitutional rights and

beeause of his youth as Petitioner verily believes.

8. That the judicial officer granting summary judg-

ment in violation of petitioner’s rights viewed the bicycle

involved in the accident in a summary judgment hearing

and concluded liability against the petitioner. The judge

thus conducted his own trial with unknown interpretations

of physical evidence in violation of the Rules of Procedure

in a Summary Judgment. Petitioner verily believes that

the conclusions against him were the result of diserimina-

tion as to his age. Removal under Section 1443 is proper.

That as an additional and/or separate grounds for

removal Petitioner bases removal under 28 USCS § 1443,

Petitioner states:

1. That equality was denied as to Robert T. Evans and

as Roger Evans in the method of selection of a trial judge

in the County of Bernalillo, State of New Mexico, follow-

ing a recusal by the original trial judge who was selected

by the ‘frandom selection’? method of assigning judges

to civil lawsuits filed in the District Court of Bernalillo

County, New Mexico.

2. That the method used in violation of due process

was to reassign the case to those judges which had been

disqualified the most or had recused themselves most often.

In other words, rather than to give the petitioner herein

an equal chance to obtain any of the twelve district judges

by the ‘‘random selection’’ method in use for the initial

selection, the clerk’s office kept quantitative records of

each judge’s disqualifications and recusals and supplied

the newly assigned judge from the rejected or recused

pool.

3. This method in a county where judges were elected

by popular vote is a discrimination against Petitioner by

rejecting the ‘‘random selection’’ method.

4. That petitioners were unequally treated and thus

per se deprived of a civil right under 28 USCS §1448, since

within thirty days of the not ‘‘random’’ method used as

to your petitioners, other litigants in Bernalillo County

were accorded the ‘‘random selection’? method of a new

selection when the original judge assigned to the case was

disqualified or recused himself. That after other litigants

were accorded the ‘‘random selection’’ method the judge

assigned to the instant case, when the original judge re-

cused himself, refused to allow the ‘‘random method’’ to

be applied in this case. That a right to removal exists

under §1443.

5. That this removal is within 30 days of the Order

setting the trial whereby Petitioner Robert T. Evans in

his personal capacity and Roger S. Evans would be held

liable in a Judgment without a jury trial or other pro-

cedural step being granted to them as is granted to other

litigants on the issue of liability.

6. That the value of the matter in controversy in said

action, exclusive of interest and costs, exceeds $10,000.00.

7. That the effect was to force upon petitioner a judge

from a class of judges which had been rejected. It was

systematic discrimination against the petitioners.

The Due Process and Equal Protection of the Laws

under the 14th Amendment to the Constitution of the

United States would apply and guarantee a right of re-

moval for a violation of the civil rights to the entire class

discriminated against, which violation by a Law of the

United States is applicable to a group within the class.

For the reasons stated above, individually and collec-

tively, your petitioner removes said Cause No. 12-76-05920

from the District Court of Bernalillo County to the United

States District Court for the District of New Mexico.

WHEREFORE, Petitioners filed this petition for re-

moval of said action from Bernalillo County District Court,

New Mexico, to the United States District Court for the

District of New Mexico and prays that said action stand

so removed.

Klecan & Roach, P.A.

JANET SANTILLANES

Euaene E. Kiecan

Attorneys for Petitioners

Suite 1221, 505 Marquette, NW

Albuquerque, NM 87102

(505) 243-7731

Aprenpbix IX

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

TONY E. MATNEY,

Plaintiff,

-Vs- No. CIV 79 828 M

ROGER EVANS, individually and as

father and next friend of ROBERT

T. EVANS, a minor,

Defendants.

MOTION

COMES NOW the Plaintiff, Tony EK. Matney, by his

attorneys, Robinson, Stevens & Wainwright, and respect-

fully moves that the Petition for Removal filed herein by

the Defendants be summarily dismissed, and the case be

immediately remanded to the District Court of the Second

Judicial District, Bernalillo County, State of New Mexico,

pursuant to the provisions of 28 USC, Section 1447(c),

upon the basis that it appears that the case was removed

improvidently, without jurisdiction, and that it did not

follow the procedures for removal provided by 28 USC,

Section 1446, in that the Petition shows on its face no

basis for granting the Petition, and that Exhibit ‘*B”’

attached to the Petition is merely the trial calendar of

Honorable James A. Maloney and is not an ‘‘initial plead-

ing’? contemplated by Section 1446(b).

In support of this Motion for remand, the Plaintiff

attaches hereto the Affidavit of Paul W. Robinson and

Paul S. Wainwright, to which further attachments are

made, all of which establish that as a matter of law the

Petition for Removal should be immediately denied.

All costs herein should be assessed against the

Defendants.

WHEREFORE, Plaintiff prays that the Petition for

Removal be immediately denied and that the case re-

manded for proceeding before the Second Judicial District

Court, County of Bernalillo, State of New Mexico.

Robinson, Stevens & Wainwright

By: Paut W. Rosinson

Attorneys for Plaintiff

20 First Plaza, Suite 413

P. O. Box 787

Albuquerque, New Mexico 87103

Tel. 243-6777

I hereby certify that a true copy

hereof was hand-delivered to opposing

counsel of record this 29th day of

October, 1979.

Grecory V. PELTON

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.