Petition — Cuaron v. Estrada

Supreme Court brief1981

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IN THE 7

Supreme Court of the United ‘States

OcToBEeR Term, 1980

—

DanieEL Cuaron, Petitioner,

Luis J. Esrrapa, Respondent,

and

LoNNtg Dawson and Evcene Kuecan, Petitioners,

¥.

Marta Exvena Ho.euin, JAMIE HoLcuin,

Ruts LecarpA and ALFREDO Lecarpa, Respondents.

and

DanieEL Cuaron, Petitioners,

Tue HonoraBLe Epwin L. Mecuem, Judge of the

United States District Court for the District of New Mexico,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

EuGENE E. KLECAN

520 Sandia Savings Building

Albuquerque, New Mexico 87102

(505) 243-7731

Attorney for Petitioners

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

QUESTIONS PRESENTED FOR REVIEW

1. Were the Petitioners for Removal under 28 U.S.C. § 1443

deprived of their constitutional and legal rights by the United

States District Court which remanded their cases without af-

fording Petitioners any opportunity for a hearing? Was it error

in any event to remand these cases which were removed under

28 U.S.C. § 1443?

2. Were the Petitioners-Appellants in the Tenth Circuit

Court of Appeals deprived of their legal and constitutional

rights under 28 U.S.C. ¢ 1447(d) when their appeals were sum-

marily dismissed without the usual appellate procedures being

followed? Was there error in the substance of the Opinions of

the Tenth Circuit dismissing these appeals taken pursuant to

28 U.S.C. § 1447(d)?

3. Can sanctions be imposed against attorneys for litigating

Civil Rights Removals and, if so, can such sanctions be im-

posed without any notice or hearing?

4. Can a United States Court of Appeals ever enjoin in-

dividual attorneys from filing future Removals under 28

U.S.C. § 1443 and appeals of such Removals?

5. Are the use of sanctions and show-cause orders which

threaten disciplinary action a form of intimidation which vio-

lates the constitutional right of free access to the courts? Is the

right to a good professional name protected by the Constitu-

tion and, if so, is it applicable to federal judicial officials in

their Opinions and Orders?

LIST OF PARTIES

In addition to the parties listed in the caption, the following

were parties to the litigation below by virtue of Order to Show

Cause issued in Mandamus Cause 80-1792,

Attorney Firm Klecan & Roach

EuGENE E. KLecan

JAMES T. RoacH#

JANET K. SANTILLANES

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TABLE OF CONTENTS

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SURIBDICTION ...0ciccccdsveenesesaceaedeene 2

Statutory Provisions INVOLVED ............eeeee000% 2

STATEMENT OF THE FACTS ... 0. oc vcevecesdunteueeeene 2

JURISDICTION IN CouRT oF First INSTANCE ............ 5

Reasons FOR GRANTING THE WRIT oF CERTIORARI ...... 5

APPEMDEK 20. ccccccnccesedesdussseensesunell la

TABLE OF AUTHORITIES

CASEs:

City of Baton Rouge v. Douglas, 446 F.2d 874 (5th

Oir, 1971)... 5 d0escaieien ss a5 eee eyo eeeeeeeaee 21

Dennis v. Sparks, 449 U.S. ——, 66 L. Ed. 2d 185, 101

BB. Ob. FOB... oso cueevewcweeaeuece eee 9,11, 24

Johnson v. Mississippi, 421 U.S. 213 (1975) ..... 6, 7, 18, 19

Lynch v. Household Finance Corporation, 405 U.S.

SIG cn cncscaweecbewsebacenenbenuilee 12

McCray v. Maryland, 456 F.2d 1 (4th Cir. 1972) ..... 28

McGee v. City of Meridian, Mississippi, 359 F.2d 846

(Sth Cir., IGGG) . oce cscs dexsdaus ieee 9, 20

PREVIOUS PAGE WAS BLANK |

Table of Authorities Continued

Page

Mahaney v. State of Louisiana, 427 F.2d 850 (5th Cir.,

| ee a Sie oe ears re raw errr eres fag

People of the State of California v. Pobuta, 437 F.2d

BO CRE Cae, TEED ok sv vccvadvccinesccisucees 20

Roadway Express, Inc. v. Piper, 100 S.Ct. 2455 (1980) 10

Robertson v. Ball, 534 F.2d 63 (5th Cir. 1976) 14, 15, 16, 17

Smith v. City of Jackson, 385 F.2d 705 (1966) ...... 6, 9, 20

Thermtron Products, Inc. v. Hermansdorfer, 423 .S.

ei. errr c ree rer Tere rr rr Ty. 14, 16

Walker v. State of Georgia, 417 F.2d 1 (5th Cir. 1969) 21

Walker v. State of Georgia, 405 F.2d 1191 (5th Cir.

PON FRE for TTT yee Peer Tee eee

Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968) 13

Wyche v. State of Louisiana, 394 F.2d 927 (5th Cir.

Se re er enn gas eiicn ome ae eke

STATUTES:

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No.

IN THE

Supreme Court of the United States

OctToBerR TERM, 1980

DaNIEL Cuaron, Petitioner,

Luis J. Estrapa, Respondent,

and

LONNIE Dawson and EvGene K.ecan, Petitioners,

Maria ELENA Ho.ouin, JAMIE Ho.eurn,

RvutH Lecarpa and ALFREDO LeGcarDA, Respondents.

and

DANIEL Cuaron, Petitioners,

THE HonoraB_e Epwin L. Mecuem, Judge of the

United States District Court for the District of New Mexico,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Petitioners Daniel Cuaron, Lonnie Dawson and Eugene

Klecan respectfully petition for a writ of certiorari to review

the opinions of the United States Court of Appeals for the

Tenth Circuit entered in this proceeding on November 14,

1980.

OPINIONS BELOW

The remand orders entered in these cases by the United

States District Court for the District of New Mexico on July

16, 1980 (Cuaron v. Estrada) and May 6, 1980 (Dawson v.

Holguin) which appear at the Appendix at 3a and 41a, are

unreported. The opinions of the United States Court of Ap-

peals for the Tenth Circuit, also unreported, appear at Appen-

dix la.

JURISDICTION

The orders of the United States Court of Appeals for the

Tenth Circuit dismissing these appeals were entered on No-

vember 14, 1980. The orders denying Petitioners’ motions for

rehearing were entered on January 16, 1981. The jurisdiction

of this Court is invoked pursuant to 28 U.S.C. Sec. 1254(1).

STATUTES INVOLVED

The following statutes are involved in this case:

28 U.S.C. § 1443

Any of the following civil actions or criminal prosecutions,

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 wherein 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 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. § 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 USCS

§ 1443] shall be reviewable by appeal or otherwise.

STATEMENT OF FACTS

Estrada v. Cuaron

The Complaint in this case, which involves a death resulting

from an automobile accident, was filed in the State District

Court. On July 11, 1980, this case was consolidated with 67

other cases pending in state court. The consolidated cases were

then referred to a three-judge panel which had been formed

without any authority in law, solely to act on these 68 cases.

The consolidated cases were removed by Petitioners on July

16, 1980, pursuant to 28 U.S.C. § 1443. The basis for the Peti-

tion for removal was the creation of the three-man state court.

There is no provision in state law for such a court. That court

was created by state judicial officials, at a secret meeting,

solely to handle the 68 cases which had been consolidated by

the state court. Petitioners claimed that this conduct was un-

der color of law and constituted a violation of his civil rights,

entitling him to remove the case under 28 U.S.C. § 1443. No

other litigant in New Mexico, to Petitioner’s knowledge, has

ever had his case assigned to a three-man court created solely

to handle certain pending cases. A hearing at the Federal Dis-

trict Court level would have permitted Petitioner to present

these facts to the Federal District Judge and to argue that re-

moval under 28 U.S.C. § 1443 was proper under the circum-

stances. The cases were remanded by the federal district judge

within hours after they were removed, without any motion to

remand having been filed. No hearing whatsoever was given to

Petitioners on the validity of the removal. Petitioners filed a

Notice of Appeal on July 17, 1980, pusuant to 28 U.S.C.

§ 1447(d). The Tenth Circuit Court of Appeals, on August 20,

1980, informed Petitioners that it was considering summary

dismissal of their appeal. The Court of Appeals ordered a very

limited brief from Petitioners restricted to the issue of whether

28 U.S.C. § 1447(d) authorized appellate review of the remand

order appealed from. No further briefs were allowed and no

oral argument was allowed. On November 14, 1980, the Court

of Appeals dismissed the appeal and on January 16, 1981,

denied Petitioners Motion for Rehearing.

Cuaron v. Mechem

On July 30, 1980, Petitioner Cvaron filed a Petition for

Mandamus in the Tenth Circuit Court of Appeals. The Peti-

tion was directly to District Judge Edwin Mechem of the

United States District Court for the District of New Mexico.

That Petition was addressed primarily to the lack of any

notice or hearing on the removal of the 68 consolidated cases

prior to Judge Mechem’s Orders of remand. That Order was

entered approximately four hours after the removal prior to

i that remand order. In response to that Petition for Man-

damus, the Tenth Circuit Court of Appeals filed an order di-

recting Petitioner’s attorneys to show cause why they should

not be forever enjoined from filing removals under 28 U.S.C.

§ 1443 and to further show cause why they should not subject

to professional discipline for having filed a removal. Petition-

er’s attorneys were directed to appear before the Tenth Cir-

cuit in Denver, Colorado, to answer to the show cause order of

the Court of Appeals. Petitioner’s attorneys did appear, as

ordered, before the Court of Appeals on November 18, 1980.

On December 11, 1980, The Tenth Circuit entered an order

denying the Petitioner for Mandamus holding it to be “friv-

olous” but in all other respects quashing its order to show

cause. The Petition for Writ of Mandamus appears at Ap-

pendix 68a, the Court of Appeals’ show cause orders ap-

pears at Appendix 77a, the response of Petitioner’s attorneys

to that show cause order appears at Appendix 80a, and The

Court of Appeals’ December 11, 1980, orders appears at Ap-

pendix 84a.

Holguin and Legarda v. Dawson

The Complaint in this lawsuit which arises out of an auto-

mobile accident, was filed in State District Court. The case

was tried once and ended in a mistrial. When the case was

called for trial a second time, the same jury panel which had

been assigned to the first trial was called again, in violation of

Petitioner’s Constitutional and legal rights. On April 4, 1980,

a Petition for removal was filed under 28 U.S.C. § 1441 and

§ 1443. The case was remanded by the federal district judge

without any hearing whatsoever even though all parties had

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requested a hearing. Petitioner filed his Notice of Appeal on

June 5, 1980, pursuant to 28 U.S.C. § 1447(d). The Tenth Cir-

cuit Court of Appeals informed Petitioner that full briefing

would not be allowed and that no oral argument would be

allowed. On November 14, 1980, the Court of Appeals dis-

missed the appeal and on January 16, 1981, denied Petitioner’s

Motion for rehearing.

Holguin and Legarda v. Klecan

In addition to remanding the case removed by Petitioner

Dawson, as described above, the federal district judge imposed

sanctions directly against Petitioner’s attorney, Eugene Kle-

can. No hearing was ever allowed on whether such sanctions

were proper. Neither Petitioner nor his attorney were ever

given an opportunity to defend themselves against the impo-

sition of sanctions.

JURISDICTION IN THE COURT OF FIRST INSTANCE

The basis for federal jurisdiction in the United States Dis-

trict Court for the District of New Mexico was that these cases

had been removed from state court under 28 U.S.C. Sec. 1443.

The cases were then appealed to the Court of Appeals for the

Tenth Circuit under 28 U.S.C. Sec. 1447(d).

REASONS FOR GRANTING THE WRIT OF CERTIORARI

Lack of Hearings Before Remand was Error and Unconstitutional

In the verified Petition for Removal (see Page 5a of the

Appendix) Daniel Cuaron asserted, after referring to the ille-

gal proceedings in the state court, under color of law, that

“Removal is sought pursuant to 28 USC § 1443.” Also in the

Petition for Removal it was stated “that a three-man court

was illegally created and illegally staffed by and thru an illegal

judges meeting, illegally convened for the purpose of discrimi-

nating against the petitioners and therefore was a conspiracy

to violate the civil rights of the Petitioner under color of law.”

Petitioner never got a chance to argue the law of the above or

to state, assert and prove the facts relating thereto. Petitioner

asserts in his Petition for Removal, “It is in violation of Pe-

titioner’s civil rights.’”” The Removal therefore clearly asserts a

Removal under 28 USC § 1443 based on a conspiracy which is

forbidden by 42 U.S.C. § 1985. What happened to the Re-

movai from the viewpoint of constitutional rights is related to

the lack of any hearing at the United States District Court

level and with the happening at the Court of Appeals when an

appeal took place pursuant to § 1447(d). The Remand Order

of U.S. Judge Mechem is to be compared with the summary

dismissal of the appeal by the Tenth Circuit on a summary

calendar with no oral arguments allowed. The Tenth Circuit

Opinion reads like a review of a § 1443 Removal where a hear-

ing has taken place. This is a false factual premise since no

hearing in fact occurred. The Opinion claims justification from

Johnson v. Mississippi, 421 U.S. 213 (1975), but draws its own

facts as if Jt had conducted a hearing. So the case passed

through two levels of the federal judiciary without any hearing

and falsely emerges as if the facts were known. It merely

asserts that the “facts” show clearly that the requisites of

Johnson v. Mississippi, supra, have not been met. Johnson v.

Mississippi cannot be applied until the facts are established by

a hearing.

The § 1443 Removal Petition was a verified petition and is

the only document that could possibly be evidentiary material

in the entire procedure through the U.S. District Court and

the Court of Appeals. A verified Petition for Removal has

status. Smith v. City of Jackson, 385 F.2d 705 (5th Cir. 1966).

The headnote of the foregoing case is appropriate: Court of

Appeals was required to vacate judgment of the federal Dis-

trict Court where Court of Appeals was not certain whether

opportunity for full evidentiary hearing was provided by Dis-

trict Court. 28 USCA § 1443, 1446. There is no doubt that Fed-

eral District Judge Mechem did not accord a hearing. He re-

manded the case back within a few hours. In Smith v. City,

supra, there is mention of an affidavit “submitted contradict-

ing removant’s petition.” Apparently the Fifth Circuit was not

convinced that the required due process hearing had occurred

because it remanded the case back to the lower court for a full

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due process hearing on the Removal Petition. No distinction

between kinds of hearings is pertinent in our case since none at

all took place.

The facts have been pointed out as involving a conspiracy

under 42 § 1985 (see Petition for Removal, Appendix 5a).

The Order of Removal merely states that “I have concluded

that the case was removed improvidently and without juris-

diction.” The above is the language of the statute which gov-

erns procedures on removals but is a conclusion which requires

a factual basis. With no hearing there is no factual basis and

the conclusion falls of its own unsupported weight. The Re-

mand Order goes on to deny in terms of the Removal statute

itself, § 1443, that a right of removal existed. Again this is a

conclusion without any support because no hearing was al-

lowed, and secondly, the Order fails to discuss the allegations

in the Removal Petition.

Supporting documents showing a conspiracy, the use of ju-

dicial processes by means of a secret letter, and the intention

of a new court to help out the opponents of Daniel Cuaron,

were furnished to the Tenth Circuit, in an effort to show that

there was documentary evidence of a conspiracy forbidden by

42 USC § 1985, but to no avail. Both Federal Courts refused

to look into the facts. It seems as if both Courts drew the con-

clusion that because a civil rights removal was involved that

the constitutional rights of the removing Petition ceased to be

applicable. The Tenth Circuit Opinion, which was “Not for

Routine Publication,” states that “there is absolutely no sup-

port factual or otherwise for any claims with respect to the

civil rights of the defendants.” The Courts could not know

whether there was any support for Petitioner’s claims with-

out giving Petitioner a hearing.

A review of the Remand Order, filed by the District Court in

Holguin v. Dawson, discloses that Judge Mechem did not cite

a single case to support his conclusion that this case was not

properly removed. The Tenth Circuit Opinion cites several

cases which do not support the conclusions reached by the

Court of Appeals. The case of Johnson v. Mississippi, 421 U.S.

213 (1975), is cited by the Court of Appeals. The case at bar is

a civil case. Petitioner was never given an opportunity, in

either the District Court or the Court of Appeals, to argue his

position that his civil case was properly removable and that

Johnson v. Mississippi, supra, was not controlling.

In the Remand Order Judge Mechem gives his negative an-

swer to the § 1443 Removal in one paragraph on page 3, for

which he cites no authority. His Remand says that the “civil

rights claim ... is not directed at the plaintiffs in this action

but rather toward the administrative and judicial officials of

Grant County.” The Remand goes on to say that the defen-

dant who removed the case should have sued Grant County

judicial officials “in a separate action, for any alleged civil

rights violations.” Since Civil Rights violations must be under

color of state law to be Civil Rights violations, it seems that

he is saying that there is no right of removal at all for viola-

tions of Civil Rights, because Civil Rights violations cannot

occur between strictly private parties. It is the actions of

public officials which gives rise to the right to remove in a

civil case although it is conceivable that the plaintiff could

conspire with public officials. 42 USC § 1985. Tenth Circuit

does not discuss this nor adopt it. Since no authority is cited,

and none can be conceived by the Petitioner, we submit that

it is without value as a grounds for the remand. The palpable

error arises from an apparent assumption that the removing

Petitioner is suing the plaintiff. It seems to be the District

Judge’s belief that the § 1443 Removal is a kind of counter-

claim. The above paragraph is his only basis for remand. It

does assume a “viable Civil Rights claim” but his legal basis

for the Remand is not valid and has no authority. Therefore

we submit that the District Judge states no legal basis for the

remand and consequently his condemnation of defense counsel

and assessing sanctions against him is based upon a legal

misconception of the law in § 1443 removals. For a § 1443 re-

moval to be vexatious, frivolous, and brought for the purposes

of delay, we should look to the merits of the removal itself

and not to the vehemence of the language imposing the sanc-

tions. The Judge uses the term “judicial officials” as being the

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proper defendants in a separate suit but of course they have an

immunity. Dennis v. Sparks, supra. We conclude by asserting

that the Remand Order provides no legal basis for itself and

since a hearing was expressly denied there is also no constitu-

tional basis for it. Since the sanctions imposed must find some

support in both, we request that both the Remand Order and

sanctions be reversed and the Tenth Circuit Opinion be set

aside.

Where a court cannot legally dispute a legal procedure by a

party and his attorney, it is not an apt substitute to say that

the legal procedure was “frivolous.”

Before a case removed under 28 USC § 1443 can be re-

manded, a hearing must be held by the District Court to de-

termine whether the case is properly removable. Smith v. City

of Jackson, Mississippi, 358 F.2d 705 (5th Cir. 1966). McGee

v. City of Meridian, Mississippi, 359 F.2d 846 (5th Cir. 1966).

Mahaney v. State of Louisiana, 427 F.2d 850 (5th Cir. 1970).

Wyche v. State of Louisiana, 394 F.2d 927 (5th Cir. 1967).

Jerry Walker v. State of Georgia, 405 F.2d 1191 (5th Cir.

1969). The Federal District Judge has consistently refused to

allow any hearing on the cases removed from state court under

28 U.S.C. § 1443.

In the mandamus proceeding of Cuaron v. Mechem, the

Tenth Circuit Court of Appeals was directly presented with

the lack of any hearing in the Court below. The mandamus

proceeding a xed the Court of Appeals to direct the lower

court to grant a hearing on the removals under 28 U.S.C.

§ 1443. The Court of Appeals refused to so direct the lower

court. Furthermore in the mandamus proceeding the Court of

Appeals threatened Petitioner's attorneys with injunctions and

disciplinary proceedings for filing the removals. There is thus a

continuous refusal on the part of the trial and appellate courts

in these cases to acknowledge that due process requires a fair

opportunity to be heard. At every step of the way, Petition-

ers have been denied the opportunity to be heard and have

been threatened with sanctions for attempting to obtain a

hearing in the federal court system.

The Imposition of Sanctions Was Unwarranted and Threatens

Litigants’ Rights to Assert Their Claims in the Judicial System

The Federal District Judge in Holguin v. Dawson imposed

sanctions directly against Petitioner’s attorney in the sum of

three hundred fifty dollars. That amount was to reimburse the

Respondents for their “costs” incurred because of the removal.

The “costs” assessed against Petitioners were in fact attorneys

fees as the Respondents incurred no other costs as a result of

the removal. Thee sanctions were imposed without affording

Petitioner any opportunity whatsoever to be heard. This Court

has recently held that, “[l]ike other sanctions, attorney’s fees

certainly should not be assessed lightly or without fair notice

and an opportunity for a hearing on the record.” Roadway Ex-

press, Inc. vy. Piper, 100 S.Ct. 2455, 2464 (1980). That is pre-

cisely what did occur in this case. The federal courts erred by

imposing sanctions against Petitioner’s attorneys for filing

§ 1443 Removals.

District Judge Mechem, without holding any hearing, states

that “[h]Javing considered the motion and memoranda of

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

clude that defendant’s petition for removal is frivolous and

brought for purposes of delay.’’ None of the parties saw the

Judge or were permitted a hearing, despite the request of both

parties that a hearing be held.

To which the judge responded—‘“the parties’ request for

hearing on this matter be and hereby are denied.”’ App. p. 44a.

The Tenth Circuit Opinion states that the “record amply

demonstrates that the removal litigation was conducted in

manifest bad faith and brought solely for the murposes of de-

lay.”’ There is no such record and reference can only have been

made to the rash judgments by the lower court judge. When

the opinions are solely the word of the judiciary, an attorney

who has been falsely accused in the lower court cannot stop

the continuation of the false statements by the appellate court,

especially when he is denied an oral argument by that appel-

late court. The statement in the Opinion that “there was an

express finding that the matter had been removed in bad

faith, for purposes of delay” and that Attorney Klecan “was

the prime mover behind the lamentable tactics employed

here” carries the false implication that a hearing took place. It

is universally understood by lawyers that express findings can-

not be made except on evidence which normally cannot be fur-

nished without a hearing. However the Tenth Circuit wishes

to state on behalf of the District Judge and against Attorney

Klecan that the attorney had a chance to explain, that there

was an actual hearing. This falsehood in the Tenth Circuit

Opinion also appears on page 2 of the Opinion when it is

stated that “[t]here was also an express finding that the Peti-

tion was frivolous, brought in bad faith and for purposes of de-

lay.” Again the implication is that there was a hearing and

evidence below. Petitioner Klecan has a right to be before this

Supreme Court as a victim of an injustice resulting from false

charges stated by the lower federal court and the Tenth Cir-

cuit Court of Appeals. The right to a good name, professional

and personal, has been infringed. This Court recently spoke

out unanimously on this point in another type of case involv-

ing judicial immunity. In Dennis v. Sparks, 499 U.S. , 66

L.Ed. 2d 185, 190, 101 S.Ct. 183, this Court stated that “[i]m-

munity does not change the character of the judge’s action”,

and at page 191, “judicial immunity was not designed to insu-

late the judiciary from all aspects of accountability.” Profes-

sional damage was done by unfounded accusations of bad

faith, falsely labeled as supported by objective evidence. If

accountability is a requisite then clearance of the false charges

is something due the victims of false judicial accusations and

can be done without material damage to “the judge’s integrity

and that of the judicial process.” Dennis v. Sparks, supra at

191. A reversal requiring a hearing, Damage to the attorneys

has the same cause as damage to the Removals i.e., No Hear-

ing. App. 45a.

The Tenth Circuit Opinion further states that courts have

the inherent power to tax attorneys fees against counsel who

litigate in bad faith or otherwise abuse judicial process. The

term “inherent power” as read in light of the fact that no hear-

ing ever took place must mean that the appellate court agrees

with the lower court that the judiciary can use its own sub-

jective powers of judgment against litigants or attorneys with-

out the benefit of any evidence. The power to judge from legal

standards whether a removal meets legal requirements is to

be distinguished from an assumed power to judge the motives

of the attorney who the Court deemed was responsible for

the “lamentable” removal. For judicial officials to claim such

powers is dangerous to freedom. The courts below used their

powers to give themselves the right to judge an attorney’s

mind and heart without a hearing and then to impose a pun-

ishment based on their internal judgment.

The judicial official in this case sought to elevate his deci-

sion by endorsing it with accompanying sanctions against the

losing party. The right to question a ruling of the court there-

fore takes on a new and threatening aspect. In addition the

attachment of sanctions forces the losing party to approach a

court of review with the burden of overturning not only the

legal reasoning of the lower court but also the stigma of the

sanctions and the personal convictions of the judge below. The

threat to Constitutional liberty is real. What is being substi-

tuted for objective legal reasoning is a lower court judiciary

which attaches a penal type rider to its decisions so that those

decisions will not be questioned. If this is allowed, the mere

attempt to remedy the situation would be viewed as an action

wrongfully disputing the power now being claimed by the lower

court and would be equally susceptible to sanctions. In a very

recent case, Lynch v. Household Finance Corporation, 405 U.S.

538, at the very last page of the Opinion, we find the dilemma

in which counsel in the private practice of law and their

clients face. The Court there states, “[s]uch resort, if per-

mitted, would provide ready opportunities, which conscienti-

ous counsel might be bound to employ, to subvert the orderly,

effective prosecution of local crime in local courts.” This quote

was from a dissent by Mr. Justice White in a case involving

a civil rights situation. The quoted sentence shows that remov-

ing a case, filing a case or appealing a case can present ethical

and professional obligations to attorneys and their clients

mandating that they proceed as a matter of conscience under

the provisions of the Code of Professional Responsibility to

test the ruling of the courts. The above quote, together with

the language that preceded it, indicates that the steps that

conscientious counsel might be “bound to employ” could be

labeled under the circumstances of the Lynch case, supra, as

a “flanking movement against the system of state courts by

resort to the federal forum with review if need be to this

court, to determine the issue.”’ It could apply in this case to

your Petitioner resorting to the federal forum under § 1443

who was then charged with “lamentable tactics.” Justice

White puts it on the basis of conscience and uses the specific

term “conscientious counsel.” It is a true conclusion of “con-

scientious counsel” that the elimination of hearings and the

imposition of sanctions without hearings constitutes a threat

to American Constitutional liberties. That this could also be

construed as some type of affrontery to the authority of a

United States District Court or Court of Appeals only serves

+o highlight the danger involved. A system whereby a judge

takes the authority to substitute his own convictions about

the purpose of a legal proceeding instead of taking an eviden-

tiary approach based on reason and authority is a threat to

freedom. The motive behind the § 1443 removal and § 1447(d)

removal is irrelevant. The obvious purpose behind any removal

is to get away from a state court. The Petitions for removal

contained very solid reasons for not wanting to be in state

court. Those reasons cannot be destroyed because the federal

judge wants to interpret the effects of the removal and mis-

judge the attorney. An attorney cannot change the judge’s

mind when the judge refuses any hearing.

In Whatley v. City of Vidalia, 399 F.2d 521, 526 (5th Cir.

1968), we find support for the foregoing position: “it is unim-

portant what the state prosecuting officer may denominate the

conduct of the movants if, in fact, they are exercising a feder-

ally granted equal right.”’ The sanctions imposed in this case

were improper. They were imposed without any hearing what-

soever, contrary to the holding in Roadway Express, Inc.,

supra. The District Court erred in imposing the sanctions and

the Court of Appeals erred in affirming such sanctions. Access

to the courts should not be limited by the threat of sanctions.

Appellants Were Wrongfully Deprived of 28 USC § 1447(d)

Appeals of Remands of Their 28 USC § 1443 Removals

The Tenth Circuit Opinion in both Estrada v. Cuaron and

Holguin, et al, v. Dawson rely upon the case of Thermtron

Products, Inc. v. Hermansdorjfer, 423 U.S. 336 (1976), to sup-

port their conclusion that they had no jurisdiction under 28

Sec. 1447(d) to entertain an appeal of a 28 § 1443 Removal.

The language of the Estrada v. Cuaron Opinion is, “With lim-

ited exception, orders remanding removal actions are not re-

viewable,” citing Thermtron Products, supra. The attempted

removal under § 1443 does not come within the Civil Rights

exception to the no-review provision of 28 USC § 1447(d).

Roberts v. Ball, 534 F.2d 63, 5th Cir. 1976, “Appeal dismissed.”

The Thermtron case, supra, allowed a review of the lower

court’s remand and therefore is directly opposed to this Opin-

ion rather than confirmatory. In addition Thermtron dealt

solely with § 1441 removals and we are dealing with a § 1443

removal. The Opinion would make shambles of the law on

removals and appeals of removals by assuming the power to

say that a § 1443 removal which it does not approve is not a

§ 1443 removal at all.

The language of § 1447(d) should be controlling and does

not allow the type of solution applied by the Opinion, for it

states unequivocably “except that an order remanding a case

to the state court from which it was removed pursuant to

§ 1443 of this tile (28 USC § 1443) shall be reviewable by ap-

peal or otherwise.” Since Daniel Cuaron was the person who

had the right to remove under § 1443 and did so, it was not

within the power of the federal judiciary at any level to sub-

stitute itself and say that he had no right to exercise his re-

moval rights under § 1443. This is what the Opinion wrong-

fully does when it says his “attempted removal” under § 1443

does not come within the Civil Rights exception to the no-

review provision of 28 USC § 1447(d), citing another inappli-

cable case. In other words the Opinion says that if your § 1443

removal is not meritorious in our eyes, it ceases to be a § 1443

removal, and you have lost your right to appeal the Remand.

This is truly an ingenious reasoning process which repeals that

part of § 1447(d) which authorizes an appeal from a remand

of a § 1443 removal.

Obviously there is no appeal of a § 1443 remand according to

that reasoning. If Petitioner wins in the Federal District Court

by not being remanded, of course one has no reason to appeal.

If Petitioner loses and is remanded he loses everything includ-

ing the congressionally granted right to appeal under § 1447

(d). There is a usurpation of a governmental function belong-

ing to Congress by the Court.

Even though in an earlier paragraph the Opinion passes

unfavorably on the allegations of the Petition and finds them

to “fall far short,”’ the Court is not content with that but goes

on to lay down a rule that Remand Orders of § 1443 removals

are not even reviewable. It thereby absolves itself from con-

sidering the due process failure to accord a due process appeal

which obviously § 1447(d) mandated. The decree changes

§ 1443 removals into something else.

When the Opinion uses the words “attempted removal un-

der § 1443” we find claimed appellate authority by the appel-

late authority to interfere with Daniel Cuaron’s right to re-

move in his own language. In effect the term “attempted re-

moval” clearly indicates that the Court said ‘“‘no removal ever

took place.’ Both opinions cite, Robertson vy. Ball, supra,

which is really Robertson v. Ball, to support their claimed lack

of appellate jurisdiction under 28 U.S.C. § 1447(d). That case

holds directly against these opinions. The Robertson v. Ball,

supra case held that an appeal of a 28 U.S.C. § 1441 removal

is not appealable under § 1447(d). This is true as a reading

of § 1447(d) clearly states. Robertson v. Ball was an appeal of

remand of a removal made under both § 1441 and § 1443. The

Robertson v. Ball case clearly makes a distinction (page 65)

as follows: “The removal effected under § 1443 stands in a

different posture, however,’ and then goes on to state that

§ 1447(d) makes an exception on a removal pursuant to

“§ 1443” and then goes on to state that a § 1443 removal,

“shall be reviewable by appeal.” At the conclusion of the

opinion in Robertson v. Ball, the reasoning stated above is

carried into the Court of Appeals decision when it states, “The

part of the Order remanding the cause removed under § 1443

is affirmed. AppeAL DiIsMIssED in part, and AFFIRMED in part.”

The Tenth Circuit in our cases has misread Robertson v. Ball,

as well as the 7’'hermtron Products, Inc., supra case. Both of

those cases prohibit the legal conclusions of the Tenth Cir-

cuit that, “The attempted removal under § 1443 does not come

within the civil rights exception to the no-review provision of

28 U.S.C. § 1447(d).”

We submit that based on the above, the Tenth Circuit de-

prived the appellants in both cases of a Constitutional right

to an Appeal of the Remand Order of United States District

Judge Edwin L. Mechem.

In regard to the above, the Tenth Circuit opinion in our

case of Holguin, et al v. Dawson and Holguin, et al v. Eugene

E. Klecan is made more complex because in Holguin, et al v.

Dawson there was a dual removal alleged under both § 1441

and § 1443. In this respect the Holguin, et al v. Dawson case

more closely resembles Robertson v. Ball, supra. However, the

complete misapplication of the cited cases is carried forward

just as completely in Holguin, et al v. Dawson as it was in Es-

trada v. Cuaron. This is evident by the conclusion stated by

the Tenth Circuit: “The appeal from the Order remanding

the action to the state court is dismissed.”

Reference is made to the Robertson v. Ball, supra conclu-

sion which handled the § 1443 remand by affirming the re-

mand, and that case dismissed the appeal of the § 1441 re-

mand. In a word, the Tenth Circuit in both our cases had

completely misapplied the cases they have cited and thus

have deprived both appellants of a constitutionally protected

appeal under § 1447(d).

Our contention as stated above that the Tenth Circuit fell

into substantial jurisdictional error through a misapplication

of Thermtron Products, Inc., supra, and the Robertson v. Ball

case also carried said court into error ‘n their discussions about

the standards for a removal under § 1443, and furnished them

a false basis for sanctions against the litigants and the attor-

ney. This probably gave them a false assurance that they

could issue an Order to Show Cause against the attorneys, Kle-

can, Roach & Santillanes, demanding a permanent injunction

personally against the attorneys from filing Civil Rights re-

movals and appeals and also may have been the false basis for

an Order requiring the attorneys to show cause why they

should not be disciplined (See October 31, 1980 Order To

Show Cause of the Tenth Circuit Court of Appeals, Appendix

page 78a).

The Robertson v. Ball case has footnotes from the Therm-

tron Products, Inc., supra, case. One of the footnotes was a

suggestion of the Fifth Circuit Panel at the conclusion of the

opinion which refers to a “general policy” discussed in Justice

Rehnquist’s dissent in the Thermtron Products, Inc., supra

case. I do not read that footnote to be a request of Justice

Rehnquist in his dissent, but rather a footnote of the Fifth

Circuit in the Robertson case, which was clearly dicta. That

dicta was a suggestion that the Fifth Circuit panel “will look

with favor upon a summary motion to dismiss, as frivolous,

an appeal from a remand when the removal proportedly based

on § 1443 does not even colorably fall within the strict tests

set out in Johnson, Georgia and Greenwood, supra.” With all

this dicta allegedly based upon a policy in a dissent by Justice

Rehnquist, there still is not authority to claim that a litigant

appealing a § 1443 removal under § 1447(d) has no jurisdic-

tion to be in the United States Court of Appeals. We do not

read Justice Rehnquist’s dissent as a suggestion to find a re-

moval “frivolous.”

The decisive distinction from all the above as applied to

our cases, is that no hearing was held at the United States

District Court level. We are protesting against the Tenth

Circuit Opinions in these cases because their Opinions not only

failed to mention that no hearing was granted at the United

States District Court level, but even imply that there was a

hearing. In Holguin v. Dawson, this false implication of a

hearing is contained in the following phrase: “Our review of

the record pursuades us.’’ Also, as stated elsewhere, the said

Opinion on page 2 states, “There was an express finding,” and

then further, “The record amply demonstrates.” The same

false implication is contained in the Estrada v. Cuaron Opin-

ion: “There is absolutely no support, factual or otherwise, for

any claims with respect to the civil rights of the defendants.”

Facts showing that the adverse party secretly wrote to the

presiding judge, thereby initiating a new three-man court, etc.,

could have been developed at any type of hearing. In a hear-

ing the attention of the federal court to the fact that the state

judge while the case was on removal, suggested to the adverse

party that he contact United States District Judge Mechem,

in an attempt to hurry up a decision on a remand could have

been made. There were considerable matters as stated above,

which should have been allowed in evidence and would have

come out except that the case was remanded within a few

hours.

Assertions of Law in the Opinions Were Invalid, and Not

Supported By the Citations

Both cases having been rejected in the Tenth Circuit by

their ruling on ¢ 1447(d) of no jurisdiction, followed by appeal

dismissed, the court went on to give a terse statement about

the subject law of Civil Rights. This would be dicta because

they had denied their own jurisdiction under § 1447(d). They

had barred all parties from discussing anything but their lack

of jurisdiction under § 1447(d).

The only case cited by the court on Civil Rights substantive

law was Johnson v. Mississippi, 421 U.S. 213, 44 Fd. 121. This

case at p. 1594 of 95 SCT Reporter states, “On December 29,

1972, after an evidentiary hearing was held by the District

Court in which testimony was presented both by petitioner

and the Vicksburg chief of police, who was one of the named

respondents to the removal petition, the District Court re-

manded the prosecutions to the state courts” (underlining

supplied). Thus Johnson v. Mississippi, supra, which was

based on the allowance of a due process evidentiary hearing

in the lower federal court of Mississippi was erroneously used

as an alleged basis for the Tenth Circuit approval of a New

Mexico Remand Order by Federal Judge Mechem, where no

hearing was allowed. (Underlining supplied).

No hearing is the central point of our Petitions to this

court. Johnson v. Mississippi, supra, in its fundamental due

process stature of an “evidentiary hearing” which the Supreme

Court Opinion therein seems to emphasize by its very detailed

enumerations of who testified in Vicksburg, Mississippi, loudly

and clearly held that § 1443 Removals required an evidentiary

hearing in Albuquerque, New Mexico, before Federal Judge

Mechem.

We refrain herein from legal arguments about the law of

civil rights removals as if they can be considered in a vacuum, ©

that is, without a hearing as to the particular cases, and also

because the Tenth Circuit would not allow such arguments

anyway. The cases never reach the point of legal requisites

and the Tenth Circuit conclusion that the removals fal!

“short” of the Johnson v. Mississippi, supra, test is falsely ra-

tionalized by citing that case which contained an evidentiary

hearing, the identical procedure which is not present in the

Tenth Circuit cases.

The Tenth Circuit failure to state there was no hearing be-

low has greater significance than its mere omission. Even

stronger reasons for granting our Petition are found in the

implications in the Tenth Circuit Opinions that hearings did

take place.

We assert that the Tenth Circuit Opinions are misleading

and wrongfully state and omit matters with a constitutional

significance. A bypassing of the fundamental procedure of

getting the facts and allowing due process evidentiary proce-

dures to take place, and a concurrent rash judgment on what

the removing petitionrs could or could not show, occurred. As-

sertions of the factual and legal qualifications to support our

removal under 28 U.S.C. § 1443 is a request for the hearing

which we were never allowed. We simply desire to be put in the

same position as the appellants in Johnson v. Mississippi, su-

pra. The Tenth Circuit Opinion by not admitting the fact of

No-Hearing have placed in the channels of federal law a pro-

cedure which would make possible the complete destruction of

§ 1443 Removals assuming that the lower federal court would

remand without a hearing. The fact that these Tenth Circuit

—

Opinions say “Not for Routine Publication” is no justification

and is a further step in the obscurities in the Opinion them-

selves by which the non-existence of a constitutional hearing is

hidden.

In view of the lack of any evidentiary hearings on the Re-

mands plus the fact that the Tenth Circuit refused briefing or

argument on the qualifications for a § 1443 Removal plus their

dismissals based on lack of jurisdiction under 28 § 1447(d), we

believe that trying to project what a hearing would disclose

and what legal arguments and legal qualifications are appro-

priate in applying the law on § 1443 to the hearings on the

Removal Petition is premature and would be useless at this

stage. The Tenth Circuit never discussed specific allegations

of the Removal Petition. The Court obviously wants to pre-

vent § 1443 Removals but their manner is wrong and hence the

Petition at this point requires a hearing. McGee v. City of

Meridian, 359 F.2 847 (1966) CCA 5th. Also Smith v. City of

Jackson, 358 F.2d 705 CCA 5th, which states, “Unless a full

hearing is accorded a well pleaded removal petition is sufficient

shouldering of the removant’s burden to overcome a motion

for remand.” There were no affidavits, verifications or evidence

contesting the Petition of Removai. Both sides asked for a

hearing in Holguin v. Dawson which was expressly denied by

Judge Mechem. “It is further ordered that the parties’ requests

for hearing on this matter be, and hereby are, denied.” (App.

44a.)

The Cuaron vs. Judge Mechem Mandamus issue (App.

68a.) presented by this Petition, is whether a District Judge,

on his own motion, can remand a case removed under 28

USC § 1443 without giving the defendant any notice of the

remand or any opportunity to be heard. This identical issue

was addressed by the Ninth Circuit Court of Appeals in People

of the State of California v. Pobuta, 437 F.2d 1200 (9th Cir.

1971). In that case the District Court denied the removal peti-

tion on the same day it was filed without any notice or hear-

ing. The Court of Appeals reversed and remanded the case for

a hearing, holding that:

The district court failed to give petitioner notice of the

proposed dismissal and an opportunity to present his argu-

ments in opposition. It thereby deprived him of the “es-

sence of our judicial system”—‘“the right to a hearing on

the merits of a claim over which the court has jurisdic-

tion.” Harmon v. Superior Court, 307 F.2d 796, 798 (9th

Cir. 1962). See also Potter v. McCall, 433 F.2d 1087 (9th

Cir. 1970), and cases cited.

In City of Baton Rouge v. Douglas, 446 F.2d 874 (5th Cir.

1971), the District Court remanded a case, removed under 28

USC § 1443, without any hearing. The Fifth Circuit Court of

Appeals held that “the district court committed error in deny-

ing removal without first testing the validity of the assertions

at an evidentiary hearing.” City of Baton Rouge, supra at 875.

In Mardon Walker v. State of Georgia, 417 F.2d 1 (5th Cir.

1969) the court stated that “it is well settled that Section

1443(1) civil rights removal cases require a sufficient eviden-

tiary hearing on the merits of the charges.”” Walker, supra at

5. The court went on to state that a remand to the district

court for such a hearing is the usual procedure when no

hearing has been held.

In Estrada v. Cuaron the Tenth Circuit states, “Counsel

vaguely alleged that the substitution proceedings in the trial

court had violated the civil rights of the defendants and their

attorneys.” This did not constitute a fair summation of what

was involved. The major violations alleged dealt with the

creation of a three-man court, The Opinion does not state this

fact. Judges creating an entirely new court is different from

what the Opinion states. The Opinion would indicate that no

irregularities had occurred at the state trial court level. No

mention is made of a three-man court. This information was

available to the Tenth Circuit in the Petition for Removal and

also was contained in a transcript furnished to the Tenth Cir-

cuit on August 8, 1980, and which appears in this Appendix

at page 19a.

Petitioners for Removal have the right to have their Peti-

tion considered as they wrote them and not as the same is in-

correctly summarized in an opinion, Walker v. State, 417 F.2d

5 (5th Cir. 1968). The Opinion would imply that the consoli-

dation was pursuant to law and before a lawful tribunal. This

conciusion is contrary to the allegations for the Petition for

Removal. Then Tenth Circuit Court of Appeals is making its

own findings of fact in an appellate procedure. We point to

the following Opinion statement: “We are informed that one

of the parties in each of those cases mostly defendants were

insured by State Farm Insurance Company.” This indicates

that the Tenth Circuit did concern itself with some facts and

did not restrict itself to the question of its jurisdiction under

§ 1447(d). Appellants were barred from making any factual

arguments, but the court was not. In truth, the factual situa-

tion was. far different than the assertion in the Opinion. The

Opinion is a means of suppression, masked under obscure legal

language. Constitutional liberties have been violated to sup-

press civil rights and liberties. As an example, “There is abso-

lutely no support factual or otherwise for any claims with re-

spect to the civil rights of the defendants.” The foregoing dis-

penses with the necessity for any findings based on evidence

and the application of facts to the law. Its basis is solely the

authority of the court. Nothing is said as to how they reached

this conclusion. In an attempt to fortify its unexplained con-

clusion it creates an incorrect time sequence listing of what

occurred at the State level. This occurs when describing the

occurrences on July 18, 1980. The Opinion gives number | to,

“The state trial court entered its order allowing substitution

of new counsel,” and number 2’s listing to, ‘The petition for

removal filed in the District Court.’’ This was not the true

time sequence as the Removal and the Remand both occurred

prior to the State court’s entering its substitution order. We

submit that the Opinion falsely seeks to put the proceedings

in a light unfavorable to the removing Petitioner. Included at

Appendix 87a and 15a is a copy of the Notice of Filing of

Petition of Removal which was filed in the New Mexico State

Court on July 16, 1980, at 8:50 a.m., and copy of the Order

of Substitution by the State District Court which was filed at

4:55 p.m. on July 16, 1980. The time stamps on those two Ex-

hibits are conclusive documentary proof that the Opinion’s

time sequence is incorrect.

In addition a transcript of the proceedings in the State

Court on July 16, 1980, was prepared and submitted to the

10th Circuit for the purpose of showing that contact was made

by the three-man State Court of New Mexico with the U.S.

District Court while the Removal was in Federal Court. This

contact and the lack of any Motion for a Removal or a hear-

ing raised questions of a lack of due process and propriety in

the procedures leading up to the Remand Order filed on the

same day. This transcript was filed in the Tenth Circuit Court

of Appeals on August 8, 1980. The Appendix includes the first

eight pages of the transcript of proceedings in the State Dis-

trict Court which speaks for itself. The transcript continues to

the point where the Order of Substitution was made which

was filed at 4:55 p.m. on July 16, 1980. On page 4 of the

Transcript we see State Judge Baca stating, “We called the

Clerk of the Federal Court” and “We don’t feel that we are

going to proceed at this point until the Federal Court has had

an opportunity to act” and “The Clerk of the Court indicated

that he would bring it to Judge Mechem’s attention, who is

the judge assigned over there, as quickly as possible and per-

haps you might want to go over there and see if you can’t get

in and talk to Judge Mechem and see if you can’t get some

sort of resolution on that” (underlining supplied).

This transcript also proves that the Order of Substitution

was filed after the Removal and Remand and did not occur in

the time sequence stated in the Tenth Circuit Opinion.

Subsequent to appeal of the Remand and not until Janu-

ary 1981, did Daniel Cuaron’s attorney become aware of the

fact that Attorney Simons, who is the person before the State

Court on July 16, 1980, was the person who had written the

secret letter to Judge Cole requesting help to remove Cuaron’s

attorney “Gene Klecan.” The proceedings of July 16, 1980,

Appendix 19a, were the direct result of that letter, secret as

to Daniel Cuaron’s attorney, and thus we have (a) the secret

letter, (b) the judges” meeting of July 10, 1980, and the pro-

ceedings of July 16, 1980. The allegations of the Petition indi-

cating a conspiracy under § 1985 are strongly supported at

every point. A copy of the minutes of the judges’ meeting is in

the Appendix at page 27a. It was submitted to the Tenth Cir-

cuit as an Exhibit to a Motion entitled “Motion for Reconsid-

eration of Opinions” which Motion was denied by the Tenth

Circuit on February 4, 1981, but said Order granted a stay of

mandate so that this Petition for Certiorari could be filed. We

are also attaching a copy of an Order from State Judge Cole

which denied access to Cuaron’s attorney as to the transcript

of proceedings in the judges’ meeting from which emerged the

three-man court which convened on July 16, 1980, as recorded

on the transcript. Appendix, page 30a.

The effect of the Remand without a hearing becomes evi-

dent. There is a direct relationship between the intensity of a

State Court’s desire to get a Remand and the necessity and

advisability of the Removal. This relationship establishes that

Removals and Remands are not matters of Comity.

The above leads us back to our contention that the lack of a

hearing is the fundamental error, and it is a constitutional one.

The constitutional provision of due process is a limitation

upon the judiciary for the benefit of citizens. It is not discre-

tionary. There was a discrimination against Daniel Cuaron

at the Federal District Court level because he asserted civil

rights and there was a discrimination against him for the same

reason at the Appellate level. No federal judge would hear

evidence or oral argument. The 10th Circuit Opinion says

“this three-judge panel has determined unanimously that oral

argument would not be of material assistance.”

It certainly is not unusual that the events giving rise to civil

rights violations are not susceptible of concrete proof as long

as the case is in State Court. Hence a hearing in Federal Court

is a necessity in many instances. If the door is shut on a hear-

ing then the secrecy protected by the State is merely given a

further protection by the Federal Court which is supposed to

provide a forum where the circumstances of the violation can

be brought more clearly to light. In this instance the lower

federal court added its own unconstitutional actions as a means

of frustrating the exposure of civil rights violations occurring

in the State under color of law.

A recent decision, Dennis v. Sparks and Lynd, 449 U.S. ——,

66 L Ed 2d 185, decided November 17, 1980, is epitomized as

follows: “Action under 42 USCS § 1983 against private parties

who allegedly conspired with state judge, held maintainable

despite judge’s immunity.” It is desirable that a § 1443 Re-

moval right be accorded to the victims of a conspiracy in vio-

lation of 42 USCS § 1985 and not forced back to the tribunals

where the conspiracies and civil rights violations are occurring.

In the Holguin, et al v. Dawson, Tenth Circuit Opinion we

do not find any treatment of Mechem’s reasons as stated in his

Order. There is no mention of them. The two Courts are com-

pletely dissimilar. Also Judge Mechem’s Order makes the fol-

lowing assumption: “Assuming arguendo defendant has raised

a viable civil rights claim.” Even though there was no hearing

and therefore no basis for Judge Mechem’s assumption, still

the Tenth Circuit could not make its own assumption and then

make conclusions contrary to those of the trial court. This

would be beyond their appellate powers.

The Order to Show Cause Issued By the Tenth Circuit Court of

Appeals Constitutes an Unauthorized Interference with the

Practice of Law and an Interference with Free Access to the Courts

The above Order is set out in the Appendix at 77a. It was

the most grave incident in a course of unconstitutional meas-

ures adopted by the federal courts against the Civil Rights

litigation under 28 USC § 1443 and against the litigants and

their attorneys. Without notice and without any visible moti-

vation and without any request of any kind from any oppos-

ing party or opposing attorney the panel of Judges Barrett,

McKay and Logan authorized the Clerk to serve this Order to

Show Cause. It was directed to the law firm of Klecan &

Roach, P.A. and claimed as a basis “judicial notice that attor-

neys of the firm of Klecan & Roach, P.A. have repeatedly ini-

tiated groundless removal actions and frivolous appeals there-

from.” The above statement, by referring to other “removal

actions and frivolous appeals therefrom” encompassed all the

cases covered by this petition. Said other cases were not spe-

cifically consolidated, but as said Order indicates, the attor-

neys of Klecan & Roach were involved in all of said actions

and appeals and were held responsible for all of these matters.

The Order to Show Cause states,

‘All members and associates of the firm of Klecan &

Roach are directed to appear and show cause why they

should not be enjoined from initiating further removal

proceedings for purposes of delay or as a incident to the

employment dispute with State Farm Insurance Com-

pany.”

The following paragraph states:

“The firm of Klecan & Roach are directed to appear and

show cause why they should not be subject to profes-

sional discipline for violations of the Code of Professional

Responsibility, specifically DR 1-102(A)5 and DR 7-102

(A)2.”

Klecan & Roach were counsel of record for the petitioner

in the mandamus proceeding, who was Daniel Cuaron, who

was a petitioner to this court, and his attorneys were “directed

to appear and show cause why the Petition for Mandamus

should not be dismissed as frivolous.” Four named attorneys

of the firm of Klecan & Roach were specifically ordered to a

hearing in the United States Courthouse in Denver, Colorado,

“at 3:30 p.m. on Tuesday, November 18, 1980.” On the day of

the hearing attorney Eugene E. Klecan asked for a record of

the proceedings at the Clerk’s office and was informed that it

would not be furnished by the court but that the court could

be requested to allow a reporter brought to the proceedings by

Eugene E. Klecan to make a record. This was not done. At the

hearing attorney Eugene E. Klecan did speak, and sometime

subsequent thereto, by an Order dated December 11, 1980,

which is attached hereto at Appendix 84a, the Petition for

Writ of Mandamus was “dismissed as frivolous,” and the Or-

der to Show Cause issued by this court is in all other respects

quashed.” The Motion for Rehearing was filed and denied.

Appendix at p. 84a.

The Order to Show Cause is presented as part of this peti-

tion and is asserted by the petitioners’ attorney Klecan and

Roach, P.A. and Eugene E. Klecan and Janet K. Santillanes

to have been an unconstitutional movement based upon un-

founded predicates and an interference of the rights of liberty

of the attorneys.

As an illustration, page 1 of the Order to Show Cause says,

“The record shows that these attorneys have used the re-

moval procedure for purposes of delay, vexation, and as an

incident to their employment dispute with State Farm

Insurance Company.”

There is no record that so indicates. To the members of the

profession of lawyers and judges above and below the Court of

Appeals, the conclusions would be drawn that there are evi-

dentiary bases for the statement.

This Order to Show Cause uses the very unconstitutional

denial of a hearing as the basis for its accusation of serious

delinquency against the attorneys. The Order says that “we

take judicial notice” about these attorneys. This judicial notice

as used in legal circles means something so clear as to be non-

controvertible. How this can occur and how the Tenth Circuit

could claim that it was so clear as to be the subject of judicial

notice is but another example of the use of oppressive and un-

constitutional deprivations of fundamental rights as a spring-

board to the further deprivation of constitutional rights and

the blackening of the professional names of the attorneys in-

volved. We universally requested from the Tenth Circuit the

right of oral argument on all our cases. This was universally

denied. The sole time we were permitted to address the Tenth

Circuit was in the unconstitutional position of defending our-

selves from charges made by this panel based on this Order.

We observe at this time that the statement made by Justice

Douglas in a Supreme Court case that lawyers are not second

class citizens may not be acceptable in the Tenth Circuit. The

initiation and repetition of these damaging and false state-

ments must certainly have some additional explanation more

fundamental than a desire to merely harass and punish the

attorneys involved. It is apparent from a reading of the Re-

mand Orders and the opinions from the Tenth Circuit that the

method of the argumentum ad hominum was employed as a

distraction from the unconstitutional denial of the right of a

hearing and a due process appeal.

An analysis of paragraph 2 of the Order to Show Cause

shows that this panel of federal judges wanted to close the

doors of the federal courthouses in the Tenth Circuit to any

civil rights removals. It is a clear example of denial to the U.S.

citizens in the Tenth Circuit of their right of accessibility to

the federal courts. McCray v. Maryland, 456 F.2d 1 (4th Cir.

1972). It is obvious that lay persons cannot frame and execute

a civil rights removal petition. Therefore, it is only necessary

to intimidate or prohibit attorneys from doing that; and this

is what paragraphs numbered 2 and 3 were intended to accom-

plish. Bias against civil rights removals is obvious.

The attorney firm of Klecan & Roach, P.A. and Eugene E.

Klecan and Janet Santillanes personally invoke the jurisdic-

tion of this court. Behind it all is the civil rights issue.

The source of this Order to Show Cause is the same omission

that infected their Opinions in the cases themselves which was

the absence of a constitutionally required hearing below on the

removal. Consequently they substituted their own convictions

about the removals and extended their subjective, adverse con-

clusions about the removals to the attorneys who made the

removals.

The failure to have a hearing not being disclosed, the en-

tirely subjective conclusions of the panel were masked. When

the Order was quashed the panel still claimed that the Petition

for Mandamus was “frivolous” which had no more objective

value than the Order had when issued. The November 18,

1980 hearing on the Order gave no support to the charges. The

same delinquency is constantly arising as the procedural cause

for everything, viz No-Hearing. The Order to Show Cause

against the individual attorneys is indicative of an attempt to

create a distraction from a consideration of the lack of an evi-

dentiary hearing at the United States District Court level and

a right of appeal under § 1447(d). Attorneys Eugene E. Kle-

can, Janet Santillanes and Klecan & Roach were made parties

to the mandamus proceeding by the Order to Show Cause and

included themselves in this Petition. The lack of evidentiary

hearing on the removal is the ever-present evil making possi-

ble all the wrongs heaped upon the attorneys and their cause

by the Order to Show Cause. All roads lead to the same point.

We request reversals and orders for hearing, and whatever else

this Court deems appropriate.

This sums up our Petition for our clients, our causes and

ourselves.

The charge that the attorneys violated the Code of Profes-

sional Responsibility by violating a provision which prohibits

obstruction of justice is to illustrate the underlying civil rights

conflict in which the power of the Tenth Circuit Court of

Appeals and the lower federal district court opposed any

practical use of civil rights measures,

EvuGENE E. KLECAN

520 Sandia Savings Building

Albuquerque, New Mexico 87102

Attorney for Petitioners

APPENDIX

Tenth Circuit Opinion, dated 11/14/80, re Estrada v.

Cuaron.

Federal District Court Order of Remand, dated 7/16/

80, re Estrada v. Cuaron.

Petition for Removal, dated 7/16/80, in Estrada v.

Cuaron.

Notice of filing in state court that case of Estrada v.

Cuaron had been removed, dated 7/16/80.

Order of Substitution filed in state court in Estrada v.

Cuaron on 7/16/80.

Partial transcript of the state court proceedings in

Estrada v. Cuaron.

7. Minutes of state judge’s meeting in Estrada v. Cuaron.

8. Letter from state Judge Cole to Cuaron’s attorney de-

10.

11.

12.

13.

nying him access to records of the state judge’s meeting.

Order of the Tenth- Circuit Court of Appeals, dated

8/20/80, concerning summary handling of Estrada v.

Cuaron appeal.

Order of the Tenth Circuit Court of Appeals, dated

1/16/81, denying the motion for rehearing in Estrada

v. Cuaron and Cuaron v. Mechem.

Order of the Tenth Circuit, dated 2/4/81, staying the

mandate pending Petitions for Certiorari in these

cases.

Opinion of the Tenth Circuit Court of Appeals, dated

11/14/80, in Holguin v. Dawson.

Federal District Court Order of Remand, dated 5/6/80,

in Holguin v. Dawson. |

14,

15.

16.

17.

Appenpix Tir_es Continued

Petition for Removal, dated 4/4/80, in Holguin v. Daw-

son.

Motion to Remand, dated 4/17/80, in Holguin v. Daw-

son.

Order of the Tenth Circuit Court of Appeals, dated

7/9/80, concerning summary disposition of appeal in

Holguin v. Dawson.

Order of Tenth Circuit Court of Appeals, dated 1/16/

81, denying the motion for rehearing in Holguin v.

Dawson and Holguin v. Klecan.

Petition for Mandamus in Cuaron v. Mechem, dated

7/30/80.

Order of the Tenth Circuit. dated 10/31/81, directing

Petitioners’ attorneys to show cause.

Response of Petitioner’s attorneys to the Order to

show cause.

. Order of the Tenth Circuit Court of Appeals, dated

12/11/80, reOrder to Show Cause.

. Request for Hearing in Holguin v. Dawson.

Motion to Withdraw Order of Remand in Holguin v.

Dawson. "

Notice of Reference in Support of Motion to Vacate in

Holguin v. Dawson.

. Notice of Deposition.

APPENDIX

NOT FOR ROUTINE PUBLICATION

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 80-1793

Luis J. Estrapa, as Administrator and Personal Represen-

tative of the Estate of Jonnny Esrrapa, deceased and as

Father and next friend of Davin Estrapa, a minor,

Plaintiff-Appellee,

DanreL Cuaron, Defendant-Appellant.

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. 80-584-M)

Filed November 14, 1980

Submitted on the briefs pursuant to Tenth Circuit Rule 9:

Eugene E. Klecan, Klecan & Roach, P.A., Albuquerque,

New Mexico, for Defendant-Appellant.

Thomas A. Simons, IV, Gallagher, Casados & Martin, Al-

buquerque, New Mexico (substituted attorney) for

Defendant-Appellant.

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 deter-

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

Cireuit R. 10(e). The cause is therefore ordered submitted

without oral argument.

When the petition for removal was filed, the lead case

in a large number of specially consolidated cases were

pending in the District Court of Bernalillo County, New

Mexico. We are informed that one of the parties in each

of those cases (mostly defendants) were insured by State

Farm Insurance Company and represented by the firm of

Klecan & Roach, P.A. pursuant to an informal arrangement

with the insurance company. For reasons which are not

disclosed in the record, the insurance company discharged

Klecan & Roach and then sought permission in the state

trial court to substitute new counsel for its insureds. In

due course, the state trial court consolidated the related

cases for the special purpose of hearing and disposition

of the request to substitute counsel.

On July 16, 1980 the following occurred:

1. The state trial court entered its order allowing sub-

stitution of new counsel;

2. The petition for removal was filed in the district

court; and,

3. The district court entered its order remanding the

matter back to the state trial court.

Removal was sought under 28 U.S.C. § 1443. Counsel

vaguely alleged that the substitution proceedings in the

state trial court had violated the civil rights of the defend-

ants and their attorneys.

There is absolutely no support, factual or otherwise, for

any claims with respect to the civil rights of the defendants.

The standards for removal under § 1443 are very narrow

and well defined by the statute and by the Supreme Court .

in Johnson v. Mississippi, 421 U.S. 213 (1975). Stated

briefly, the allegations of the petition for removal fall far

short of the Johnson test.

With limited exception, orders remanding removed ac-

tions are not reviewable. Thermtron Products, Inc. v. Her-

mansdorfer, 423 U.S. 336 (1976). The attempted removal

under § 1443 does not come within the civil rights exception

to the no-review provision of 28 U.S.C. § 1447(d). Roberts

v. Ball, 534 F.2d 63 (5th Cir. 1976).

Appeal dismissed.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

No. 80-584-M

Luis J. Esrrapa, as Administrator and Personal Represen-

tative of the Estate of JouNNy Hsrrapa, deceased and as

Father and next friend of Davin Esrrapa, a minor,

Planttff,

DanieEL Cuaron, Defendant.

ORDER

Filed July 16, 1980

Entered on Docket July 16, 1980

This case was removed from State Court by a petition

for removal filed in this court on July 16, 1980. The petition

purported to remove the above-named case as well as many

other cases which had been filed in state court in Bernalillo

County. The cases had been consolidated for the purpose

of deciding the issue of substitution of counsel. The petition

sought removal pursuant to 28 U.S.C. § 1443. After review-

ing the petition, I have concluded that the case was removed

improvidently and without jurisdiction. This is not a civil

action against any person who is denied or cannot enforce

in the state courts a right under any law providing for the

equal civil rights of United States citizens. Furthermore,

this is not a civil action for any act under color or 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. Removal under § 1443 is, there-

fore, inappropriate. Now, therefore,

Ir Is Ort ep that the above-named case, as well as the

cases consolidated with it, be, and hereby are, remanded

to the Bernalillo County District Court.

/s/ Epwin L. Mecuem

United States District Judge

[seaL]

CertiFieD a True Copy of the

original filed in my office.

Jesse Casaus, Clerk

/s/ C. BLUMENTHAL

Deputy

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

No. CIV 80-584 M

Luis J. Esrrapa, as Administrator and Personal Represen-

tative of the Estate of Jonnny Esrrapa, deceased and as

Father and next friend of Davin Esrrapa, a minor,

Plaintiff,

Daniet Cuaron, Defendant.

PETITION FOR REMOVAL

Comes Now the defendants in the above-entitled consoli-

dation numbered CV-76-05466, et al, with attached list of

consolidated cases, all of which are Bernalillo County, State

of New Mexico cases. Attached hereto is the Order of

Consolidation and Notice of Hearings to which was attached

a list of State Farm cases by state court number only, all

of which are covered by the consolidation as appears in

the Order signed by Gerald R. Cole, Presiding Judge, and

were filed in the Clerk’s office of Bernalillo County District

Court, New Mexico on July 11, 1980. The cases consolidated

are all cases in which Klecan & Roach, P.A. represent one

of the Parties, and in most if not all instances the Parties

to the litigation represented by Klecan & Roach, P.A. are

defendants.

Daniel Cuaron is the head of a group or class wherein

a substitution of attorneys from Klecan & Roach, P.A. to

an attorney named Thomas A. Simons, IV, and the said

Thomas A. Simons, IV seeks to substitute himself as attor-

ney of record and oust Klecan & Roach, P.A. A copy of

the Complaint in cause no. 12-76-05466 is attached hereto

as Exhibit EK.

That the value of the matter in controversy exceeds

$15,000.

That on or about July 1, 1980, a New Mexico attorney

acting under color of law acted in violation of the defend-

ants’ civil rights and against the civil rights of the law

firm of Klecan & Roach, P.A. by obtaining an ex-parte

order whereby he removed under color of law the attorneys

of record of the defendants and substituted himself therein,

all in violation of the civil rights of the defendants and

the attorneys, by disregarding all Constitutional due process

required for the same. That said attorney Thomas A.

Simons, IV further violated the Constitutional rights of all

concerned by failing to give notice either to the defendants

or their attorneys or record, Klecan & Roach, P.A.

That under color of law, several judges of Bernalillo

County District Court signed the orders, knowing that the

same were ex-parte, and that the defendants had not been

given notice of the day on which the said Thomas A.

Simons, IV would present himself with numerous orders

and seek a judge’s signature to the same. There are 68

cases listed on the Exhibit.

That the above procedures were an unconstitutional in-

vasion under color of law of the civil rights of the defend-

ants and their attorneys and constituted an intentional

and deliberate attempt to interfere in the relationship of

defendants and their attorneys and was an intentional

attempt to end it in an illegal manner.

That subsequent thereto a meeting of the District Judges

for Bernalillo County was held where the merits of the

above-described procedures took place and where it is be-

lieved that an opinion on the merits of the above were

discussed. That at said meeting the Presiding Judge, Gerald

R. Cole, acting under color of law but without authority

in law and in violation of the civil and Constitutional rights

of the defendants and their attorneys, appointed a panel

of three judges to hear and determine all questions of law

and fact relative to the illegal attempt of attorney Thomas

A. Simons, IV to obtain for himself the ‘‘in-litigation’’ role

of attorney for the named defendants.

That a three-man court and an Order of Consolidation

of cases before the three-man court is an invasion of

Petitioner’s rights under color of law and for which there

is no jurisdiction. This constitutes an invasion of the rights

of the defendant and an act of discrimination as to all

defendants since no authority in law or custom exists for

the erection of a three-man court at the District Court

level. This is only color of law, and it is in violation of

defendant’s civil rights, for which the Removal is sought

pursuant to 28 USC § 1443.

On or about July 1, 1980, attorney Thomas A. Simons, IV

presented himself ex-parte and obtained Bernalillo County

Juges’ signatures to the Order, a copy of which is attached.

Other cases are included in the Exhibit attached to the

Order of Consolidation signed by Judge Cole. These Orders

were obtained ex-parte on or about July 1, 1980, copies of

which are being collected and will be submitted as part of

the record on this Removal. The Application for Substitu-

tion of Attorneys in cause numbered CV-76-05466 (Cuaron),

as attached as Exhibit C. A copy of the unauthorized

Entry of Appearance by attorney Thomas A. Simmons,

IV is also attached as Exhibit D.

That to force Petitioners to litigate in a hastily assembled

panel completely unauthorized by law as to its very creation

and to allow one judge to appoint members to sit as a

panel are procedures which the Fourteenth Amendment

forbids. It is in violation of Petitioners’ civil rights.

This Removal is within 30 days of all the act constituting

grounds for removal as stated above.

That State Farm Mutual Automobile Insurance Company

has illegally, through a licensed attorney Thomas A. Simons,

IV, in violation of all due process rights of the defendants,

inserted itself into the cases. See Application for Substitu-

tion of Attorneys with attached Affidavits of State Farm

Representatives. The attorney-client relationship of Klecan

& Roach, P.A. and the defendants is illegally affected. This

is in violation of 42 USC § 1985.

The following Exhibits are attached: Exhibit A, Consoli-

daiton Order; Exhibit B, Ex-Parte Orders; Exhibit C,

Application for Substitution of Attorneys; Exhibit D, En-

try of Appearance; Exhibit EK, copy of Complaint in Ks-

trada v. Cuaron, cause no. 12-76-05466, Bernalillo County,

New Mexico.

Removal is sought pursuant to 28 USC § 1443.

Kuecan & Roacu, P.A.

/s/ Kucene BE. Kiecan

Eugene KE. Klecan

Attorneys for Petitioners

Suite 520, Sandia Savings Building

Albuquerque, New Mexico 87102

AFFIDAVIT

Strate or New Mexico

County OF BERNALILLO, ss.

Daniel Cuaron, being first duly sworn upon his oath,

states as follows:

I am the Petitioner in this cause, and for the class, and

to the best of my information, belief and personal knowl-

edge, state that all matters contained in this Petition are

true and correct.

/8/ DANtEL CuARON

Daniel Cuaron

Susscrinep AnD Sworn to before me this 15 day of

July, 1980.

/s/ Patricia L, Rice

Notary Public

Official Seal Patricia L. Rice

Notary Publie - New Mexico

Notary Bond filed with

Secretary of State

My Commision Expires 3/19/84

I Heresy Certiry that a true

copy of the foregoing Petition

will be mailed to opposing counsel

July 16, 1980.

/s/ K. EK. Kiecan

10a

Strate or New Mexico CouNTY OF BERNALILLO

IN THE DISTRICT COURT

No. CV-76-05466

Luis J. Estrapa, as Administrator and Personal Represen-

tative of the Estate of Jounny Esrrapa, deceased and as

Father and next friend of Davin Estrapa, a minor,

Plawmttff,

DanieEL Cuaron, Defendant.

COMPLAINT

(Filed December 7, 1976)

Comes now the plaintiff, Luis J. Esrrapa, by and through

his attorneys, GALLAGHER, Casapos & Parren, and for his

cause of action against the defendant states:

Count I

The plaintiff, Luis J. Estrapa, is the duly appointed and

authorized Administrator and Personal Representative of

the Estate of Johnny Kstrada and at all times material

hereto was and is a resident of the City of Albuquerque,

County of Bernalillo, State of New Mexico.

That the defendant, Danie, Cuaron, at all times material

hereto, was and is a resident of the City of Albuquerque,

County of Bernalillo, State of New Mexico.

III

That the acts, injuries, and fatality which are the subject

matter of this Complaint occurred in the City of Albuquer-

que, County of Bernalillo, State of New Mexico.

lla

That this action is brought pursuant to the Wrongful

Death Act for the State of New Mexico, Sections 22-20-1,

et seq., New Meazico Statutes Annotated, 1953, by the duly

appointed Administrator and Personal Representative of

the Estate of the deceased, Jounny Esrrapa.

That on or about the 5th day of August, 1976, the de-

ceased, JoHNNY Esrrapa, while walking with his brothers

in the area of Barcelona and Coors Boulevards, S.W., in

Bernalillo County, Albuquerque, New Mexico, was struck

by a vehicle being driven by the defendant, Danie, Cuaron;

that, as a result of the negligent acts of the defendant

Daniel Cuaron, the said Johnny Estrada suffered fatal

injuries.

That due to the aforementioned negligent acts of the

defendant, which were the sole and proximate cause of the

wrongful death of the deceased, Jounny Esrrapa, the plain-

tiff Luis J. Esrrapa, as Administrator and Personal Rep-

resentative of the Estate of the deceased, and pursuant to

Section 22-20-1, et seq., N.M.S.A., 1953, is entitled to recover

the sum of $100,000.00 in actual damages for the death of

his minor son, the deceased, which was solely and proxi-

mately caused by the aforementioned negligent acts of the

defendant Danie. Cuaron.

WuereroreE, under Count I, plaintiff Luis J. Esrrapa,

as Personal Representative, prays judgment against the

defendant Danie. Cuaron in the amount of $100,000.00,

his costs, and for such other and further relief as to the

Court seems just and proper.

12a

Count II

Vil

Plaintiff realleges and incorporates by reference para-

graphs I through VI of Count I of this Complaint, as

though the same were more fully set forth herein.

Vill

That on or about the 5th day of August, 1976, at the

time the accident took place which caused the death of

his brother, Johnny Estrada, Davin Esrrapa, a minor, was

walking in the area of Barcelona and Coors Boulevards,

S.W., in Bernalillo County, Albuquerque, New Mexico, and

was struck by a vehicle being driven by the defendant,

Danie, Cuaron; that, as a result of the negligent acts of

the defendant, Davin Esrrapa suffered cuts, abrasions, and

other injuries, causing him considerable pain and discom-

fort and requiring medical treatment.

That due to the aforementioned negligent acts of the

defendant, which were the sole and proximate cause of the

injuries sustained by Davin Esrrapa, the plaintiff Luis J.

ESTRADA:

A. As father and next friend of Davin Esrrapa, a minor,

is entitled to recover general damages for and on behalf of

such minor in the sum of $10,000.00.

B. As father of said minor, Davin Esrrapa, is entitled

to recover medical expenses incurred and to be incurred

on behalf of said minor, Davin Esrrapa, in the sum of

$2,500.00.

13a

WuHereroreE, under Count II, plaintiff Luis J. Esrrapa

prays judgment against the defendant Danie, Cuaron in

the amount of $12,500.00, his costs, and for such other and

further relief as to the Court seems just and proper.

GALLAGHER, Casapos & Patrten

Attorneys for Plaintiff

716 Bank of New Mexico Building

Post Office Box 1189

Albuquerque, New Mexico 87103

Phone: (505) 243-7849

By /s/ Davip R. GaLLaGHER

David R. Gallagher

l4a

State or New Mexico County oF BERNALILLO

IN THE DISTRICT COURT

No. 12-76-05466, et al.

Consolidated

Luis J. Estrapa, as Administrator and Personal Represen-

tative of the Estate of Jonnny Estrapa, deceased and as

Father and next friend of Davin Esrrapa, a minor,

Plaintiff,

DanieL Cuaron, Defendant.

NOTICE OF FILING

[Stamp, July 16, ’80 a.m. 8:50 Filed]

Notice Is Heresy Given that defendant Daniel Cuaron

has filed a Petition for Removal and Bond pursuant to

28 USC § 1443, and has removed this action to Federal

Court.

Kuecan & Roacu, P.A.

/3s/ Kucene EK. Kiecan

Kugene E. Klecan

Attorneys for Defendants

Suite 520, Sandia Savings Building

Albuquerque, New Mexico 87102

505/243-7731

I Heresy Cerrtiry that a true copy of the

foregoing will be mailed to opposing

counsel of record on July 16, 1980.

/s/ KH. B. Kuecan

State or New Mexico County oF BERNALILLO

IN THE DISTRICT COURT

Luis J. Estrapa, as Administrator and Personal Represen-

tative of the Estate of Jonnny Estrapa, deceased and as

Father and next friend of Davin Estrrapa, a minor,

Plantiff,

DanieL Cuaron, Defendant.

[Stamp July 16, ’80 4:55 p.m. Filed]

No. 12-76-05466, et al.

(See attached list)

Filed July 16, 1980

Strate Farm Cases

CV-78-01063

CV-79-00371

CV-78-05618

CV-77-08255

CV-80-01612

CV-80-03888

CV-78-08347

CV-79-09420

CV-80-03059

CV -79-09346

CV-79-93589

CV-80-U0856

CV-79-06173

12-72-06084

CV-79-08756

CV-78-05099

CV-79-06881

CV-79-07952

CV-78-04555

CV-79-05754

CV-79-08146

CV-79-02277

CV-79-08701

CV-80-00255

CV-78-0038

CV-79-09380

CV-79-04187

CV-79-04500

l6a

12-76-05466 CV-77-08288

CV-79-04351 CV-79-05502

CV-78-0146 CV-80-93250

CV-77-06381 CV-78-06616

CV-79-04373 CV-79-02190

CV-79-07468 CV-79-04825

CV-79-03186 CV-78-04354

11-76-05-351 CV-79-01872

12-76-05920 CV-77-03805

CV-79-04290 CV-80-01131

CV-79-09780 CV-79-05344

CV-79-07953 CV-79-04035

CV-77-03701 CV-77-08564

CV -79-02373 CV-80-00418

CV-79-02192 CV-79-02799

CV-79-02898 CV-79-09640

CV-79-10312 CV-79-01430

CV-79-06836 CV-77-08288

CV-79- CV-80-02561

CV- - CV -77-96862

CV- - CV-78-08693

CV- - CV-78-06789

ORDER

This matter coming on for hearing before the HonoraBLe

Josepu F.. Baca, the HonoraBLe Gene BE. Francurint, and

the HonoraB_e W. Jonn BRENNAN, notice having been given

17a

to Counsel and State Farm Insurance Company and sub-

sidiary companies appearing through their Attorney

Thomas A. Simons, IV, and Klecan & Roach, P.A., appear-

ing not either in person or by Counsel this matter pro-

ceeded to hearing. The Court makes the following Findings

of Fact and Conclusions of Law and Order as follows:

FINDINGS OF FACT

(1) Mr. Arthur W. Teague and Mr. Gerald W. Strick-

land, in their capacities as Corporate Officers and employees

of the various insurance companies had authority to ter-

minate the services of Klecan & Roach and have effectively

done so both orally and in writing.

(2) Notice of said termination was given to all individual

insureds by mail, return receipt requested.

(3) The custom and usage and practice with regard to

State Farm and subsidiary insurance companies in the

selection of Counsel has been that the company selected

the Attorneys. The individual insureds are never consulted

or their opinions solicited as to their preference of At-

torneys.

(4) Each individual insured entered into a written .con-

tract with State Farm and subsidiary companies which

included a provision with regard to the method of selecting

Attorneys.

(5) The policies issued to the various individual insureds

with regard to the selection of Attorneys was identical.

There was no written agreement ever entered into between

State Farm and the Law Offices of Klecan & Roach.

18a

CONCLUSIONS OF LAW

(1) This Court has jurisdiction over the parties and

subject matter.

(2) No cause need be established for the termination of

the Attorney-Client relationship,

(3) Under the terms of the insurance policy entered into

between the individual insureds and State Farm and sub-

sidiary companies, the insureds consent is not required to

allow either termination of Counsel or substitution of

Counsel.

(4) Mr. Arthur Teague and Mr. Gerald W. Strickland,

acting in their capacity as Officers and employees of State

Farm Insurance Company and subsidiary insurance com-

panies have the authority to terminate the services of

Klecan & Roach and have exercised that authority in these

matters.

(5) Thomas A. Simons, IV, has been substituted as Coun-

sel of Record in these cases and is Counsel of record in all

the above designated cases.

THEREFORE, it is OrpeRED, Apyu>GED aNp Decreep that

Thomas A. Simons, IV, forthwith shall be substituted as

Counsel of Record in all of the above cases and that Klecan

& Roach shall be removed as Counsel.

/s/ JoserpH F, Baca

Joseph F. Baca,

District Judge

/s/ Gene E. Francuint

Gene KE. Franchini,

District Judge

/s/ W. Jonn Brennan

W. John Brennan,

District Judge

19a

Srate or New Mexico County oF BERNALILLO

IN THE DISTRICT COURT

No. CV-76-05466, et al

Luis J. Estrrapa, as Administrator and Personal Represen-

trative of the Estate of Jounny Esrrapa, deceased and

as Father and next friend of Davin Esrrapa, a minor.

Plaintiff,

Vv.

Daniet Cuaron, Defendant.

TRANSCRIPT OF PROCEEDINGS

[Stamp Aug. 8, ’80, Filed USCA—10th Circuit]

Be Ir Rememseren that on the 16th day of July, A.D.,

1980, this matter came on for hearing at approximately

10:15 a.m. before a Three-Judge Panel consisting of the

HonoraB_e Joseru F. Baca, the HonoraB_e Gene E. Fran-

CHINI, and the HonorasLe W. Joun Brennan of the Dis-

trict Court, Bernalillo County, Albuquerque, New Mexico.

The Plaintiff did not appear in this case, nor did any

Attorney acting in their behalf.

The Defendant, appearing through his Counsel of Ree-

ord, Tuomas A. Simons, IV, Attorney at Law, 327 San-

doval, Suite 101, Post Office Box 2341, Santa Fe, New

Mexico.

* . * * * * 7 . . .

Jupce Baca: This is Civil Cause # 79-02277 et al, in the

matter of Thomas A. Simons, IV, obtained an Order for

substitution of Counsel in numerous cases one of which is

Irene Bentley Luther and others.

The time is now 10:10 and this matter was set for trial

this morning at 9:00 before a three Judge panel. At that

time or prior to 9:00, Mr. Eugene Klecan was present in

20a

Court and served upon Judge Franchini a notice of filing

a docket proporting to remove these proceedings to Fed-

eral Court. Mr. Klecan then absented himself from the

Courtroom. We have made numerous efforts to call Mr.

Klecan back so that we might make a record of the pro-

ceedings and to give him an opportunity to respond, and

as I view the Courtroom now I do not see Mr. Klecan or

anybody from his Office. My secretary personally called

Mr. Klecan three or four times and I spoke to his secre-

tary on one occasion. She indicated she had not seen him

and he was not present. I think for the record we will make

a copy of the Notice of Filing as an Exhibit. (Exhibit

marked.

Mr. Simons, you wanted to address the Court on the

question of whether or not we have been divested of juris-

diction in this matter of all the cases that have been pend-

ing. We have given you an opportunity to research the law

and you may address the Court on that issue at this point.

Mr. Stmons: Thank-you, Your Honor, if I may address

the Court from Counsel table. Today we received a notice

of filing of a Petition for Removal which is now in the

record and which reads as follows: ‘‘ Notice is hereby given

that Defendant Daniel Cuaron has filed a Petition for re-

moval and bond pursuant io 28 U.S. 143 and has removed

this action to Federal Court. It is my contention before

this Court that the actions of Mr. Klecan in removing that

case regardless of the legality of the actual removal, the

rule is that once a case is removed, the State Court retains

no further jurisdiction to do anything. It is my position

here that even assuming that this is a removal, that this

removal is only one of approximately 50 cases that are

before this Court for hearing today. The beginning of my

analysis of the reason why this is the notice of filing, it

states only that the Defendant Daniel Cuaron has filed

Petition for removal and bond, and that is one of the many

cases that we have. Secondly, Rule 42 provides that con-

2la

solidation may take place on issues in addition to consoli-

dation of cases in general. In this case there has been a

consolidation only for the purpose of addressing one per-

son’s issue and it is my contention that clearly there is no

consolidation of the cases such as to combine all the cases

into one so that any one of the Defendants cou!d have re-

moved all of the cases.

The Court asked me to come up with some case law on

that point, and I would like to cite to the Court first of all

a New Mexico case, Clark Vs. Queen Insurance Company,

22 New Mezico 368, and in that case there was a consoli-

dation of approximately 7 cases or eleven cases for trial.

If I may quote to the Court from the opinion—‘‘ The Order

of consolidation made by the trial Court insofar as it

material hereto is in the following words; it is herefore

ordered that the above entitled causes No. 8403 to 8413

inclusive and each and everyone of them be and hereby

are consolidated to be tried as one cause and to be here-

after known as designated Cause No. 8403.’’ There is no

indication in our Order that they are consolidated under

one cause number. Nonetheless, the Court held that for

purposes of filing, a notice of appeal—that one notice of

appeal under the case No. 8403 was insufficient. It said that

no doubt this Order was made under the provisions of

Section 4212, Code 1915 which was the predecessor to Rule

42—a mere casual reading of the Order will disclose it

provided for a consolidation of the 11 cases for trial and

made no pretention of consolidating the said cases for all

purposes. It is evident that Counsel for the insurance com-

pany has inadvertently misconstrued the meaning of the

Order for they have treated it as though the 11 cases were

consolidated. (Read the Section for exact wording.) The

question that arises as to whether the 11 separate judg-

ments can be reviewed in the one appeal, that it cannot be

done where the consolidation in the trial Court was limited

to the trial of those cases is established beyond doubt, and it

22a

cites various case law to that point. Under the Federal Law

and Federal Rules the Courts have indicated uniformly

that consolidation of cases does not make cases one case.

They maintain their separate identity and are consolidated

only for purposes of hearing. I would cite to the Court the

case of Johnson Vs. Manhattan Rye Company, United

States Supreme Court case at 289 U.S. 479; 53 Supreme

Reporter 721 and in that case the Court clearly heid that

the consolidation provisions under Federal law were con-

solidated for purposes of trial only they do not merge the

causes of action so that each cause of action maintains its

own identity. I would also cite to the Court the case of

National Nut Company Vs. Susu Nut Company, 61 F. Supp.

86, which has the same rule of law and each and every

one of these cases they reffirm this position.

Jupcr Baca: Alright, we are going to recess for about

five minutes and look at these cases. You might hand up

those Federal Reports that you have because we don’t

have those.

Mr. Simons: I have the United States cases, but I do

not have the 61 F. Supp. 86 case.

Jupcz Baca: Alright, we will recess for about ten or

fifteen minutes.

RECESS

Fo.t.Low1nc REcgEss:

Jupce Baca: Mr. Simons, we have considered your au-

thority and in addition to that, we called the Clerk of

Federal Court because we’re not privy to the pleadings

that were filed. We were never served with notice and the

only notice as far as we can tell are the attachments list-

ing all of the cases not just the one case saying consoli-

dated and it would appear that that raises a question of

whether or not all of these cases were in fact removed to

Federal Court. We don’t feel that we are going to proceed

23a

at this point until the Federal Court has had an oppor-

tunity to act. The Clerk of Court indicated that he would

bring it to Judge Mecham’s attention, who is the Judge

assigned over there, as quickly as possible and perhaps

you might want to go over and see if you can’t get in and

talk to Judge Mecham and see if we can’t get some sort

of resolution on that. We will be prepared to proceed if

we can get a resolution on that matter.

Mr. Stmons: Thank-you.

JupcE Baca: He indicated it probably would be resolved

very quickly but we feel because of the nature of the plead-

ings that were filed over there it raises a cloud as to

whether or not—it’s not totally clear whether or not he has

removed all the eases, but I think it’s sufficient to cause

us to pause at this point and that is what we intend to do.

We’re going to recess these proceedings until we hear the

action of Judge Mecham and when he has acted, we will

then be prepared to proceed. Why don’t we tentatively

say about 2:00 this afternoon and we will reconvene these

proceedings then to determine what has taken place in Fed-

eral Court.

Mr. Simons: Thank-you, Your Honor.

JuDGE Baca: We will be in recess.

RECESS

FotLow1ne Recess: 2:10 p.m.

JupcE Baca: This is a continuation of Civil Cause 76-

05466, et al. The matter was removed this morning to Fed-

eral Court and the panel of Judges felt that we should wait

upon the determination by Judge Mecham. I have a cer-

tified copy of an Order by Judge Mecham dismissing the

remand and in his Order he states, ‘‘It is ordered the above

named cases, as well as the case consolidated, hereby is

remanded to the Bernalillo County District Court.’’ So, I

24a

think at this point we have full jurisdiction to proceed at

this time, and I am going to make this Order—a copy of

this Order part of the record. This morning I caused to

be dictated a notice of hearing for this afternoon. ‘‘ Notice

is hereby given that hearing on this matter is set for two

p.m. July 16, 1980, in the Courtroom of the Honorable

Joseph F. Baca, Room 408-Division II.’’ Mr. Simons, I

trusted you with a copy of that Order to be served on Mr.

Klecan and to make a return. Do you have that return or

would you recite for the record what you did with that.

Mr. Simons: Your, Honor, I took an original copy of the

notice of hearing and went to the Office of Klecan & Roach

and spoke to Gene Klecan personally, handed him a copy

of this notice of hearing, and I informed Mr. Klecan at

that time this would be a hearing after remand. That serv-

ice was made upon him at 1:15 on July 16, 1980. I have the

original notice of the hearing with the certificate of service.

What I would like to do, if the Court would like, is to make

a list of all our cases as was done with the original Order

and attach that, so that they may file this notice of hearing

with certificate of service to be filed in each one of the

individual cases.

Jupce Baca: As well I want you to make a copy of that

and make it a part of this record.

Mr. Simons: Yes, Your Honor.

Jupce FrRancuHini: Was a copy of the Order of Remand

filed by the Federal-District Court filed upon Mr. Klecan?

Mr. Simons: Your Honor, I delivered a copy of the Order

of Remand to the Office of Klecan & Roach at 1:32 p.m.

this afternoon and no one responded although the lights

were on in the office, but no one responded. After vigorous

knocking, I put the Order of Remand, a certified copy of

that Order, under the door of their office in plain view of

anything who would walk in. In answer to your question,

it’s my belief that a copy has been served on that law firm

prior to this hearing.

25a

Jupce Francurni: Would you have the affidavit or other

pleadings indicate your actions with regard to the delivery

of the copy of the Order of Remand from Federal Court, as

well when you file it in those cases?

Mr. Stmons: Yes, sir, I will do so.

Jupce Baca: I have a copy of a letter dated July 16, 1980

from Eugene Klecan addressed to Miss Maria Bond, my

secretary, with an attachment of our notice of hearing. The

general tender of that letter signed by Mr. Eugene Klecan

is that he received some sort of notice and he questions the

right of this Court to proceed and generally I would char-

acterize the contents of that letter as—well, I would say

from that letter that Mr. Klecan indicates he has no in-

tention to appear at this hearing at this time, and I will

make a copy of that letter a part of the record. I think

with the concurrence of the other Judges, I am prepared

to proceed with the hearing as we have indicated, if there

is no negative vote by the other Judges.

JUDGE FRANCHIN!: I concur.

JUDGE BRENNAN: | also concur.

Mr. Warnwricut: May I address the Court briefly be-

fore we begin the hearing on this matter concerning a

question.

JupGE Baca: You may.

Mr. WarinwricHt: Your Honor, I anticipate that Mr.

Kleecan will probably file a notice of appealling the Order

of remand, and I do have to go, but I have prepared a

brief to give the Court the opportunity concerning the fact

that this Court will still maintain jurisdiction even after

notice of appeal is filed to the Tenth Circuit and I would

like to give that to you and leave, and you can make this

part of the record because I have no objection to the sub-

stitution.

26a

Jupcr Baca: Alright, if you will just pass that up here.

Mr. Simons, you may proceed.

Mr. Simons: In putting together the Order and notice

of hearing for today’s hearing, we have come across sev-

eral items that were typographical errors and in the origi-

nal Orders those have been corrected for the Clerk’s Office

and I would like to correct those before the Court here

so that we would have a correct description of all of the

cases that will come on for hearing. In all of these cases

opposing Counsel of record has been notified and of course,

as we have contended, all of these questions involve com-

mon questions of law. We would just like to make sure

that all of the Bernalillo County cases will be determined

one way or the other today at this hearing.

Jupce Baca: Alright, you’re going to file a document to

that effect, is that correct?

Mr. Srmons: Yes, sir, if I could read into the record the

numbers of the cases that we would like to have included.

One case which is a case against State Farm itself and I

had received concurrence of the Independent co-defend-

ant’s Counsel for having this heard today which is the

case of Mid-Century Insurance Company Vs. Andrew Vida,

(Phonetic) et al; it is Bernalillo County # 78-04739, and

in that case no Order has been entered. We have only filed

- ¢ * e * * * 5d @.» e

27a

STATE OF NEW MEXICO

SECOND JUDICIAL DISTRICT

Minutes of Judges’ Conference

July 10, 1980

The regular conference of the District Judges of the Sec-

ond Judicial District was held July 10, 1980, in the court-

room of District Judge Gerald R. Cole with the following

Judges in attendance: Judge Gerald R. Cole, Presiding;

Judges Baca, Love, Fowlie, Franchini, Maloney, Madrid,

Sanchez, Brown, and Brennan. Those absent were: Judges

Stowers, Riordan, Traub, and Baimonte. Also present were:

Thomas J. Ruiz, Court Administrator; and Doug E.

Mitchell, Assistant Court Administrator.

1. ApprovaL or MINUTEs:

The minutes of the Judges’ Conference of May 8, 1980,

were approved unanimously.

2. ImpENpING ABSENCE:

Judge Madrid informed the Judges that the Supreme

Court has designated retired Justice Montoya and Judge

Angel to handle her cases while she is away.

3. Contract To Derenp MENTAL Casss:

Judge Love felt the County did not give everyone a chance

to apply for those positions defending mental illness cases.

Judge Cole suggested a letter be sent to the County stat-

ing the Judges have received complaints that all interested

parties were not given the opportunity to bid for those

positions. No action was taken.

4, Court CLINIC:

Judge Sanchez spoke about the history and purpose of the

Court Clinic.

28a

After much discussion on the Court Clinic and the seven

recommendations, Judge Franchini moved to adopt and

approve the seven recommendations.

Judge Cole mentioned that the budget must be put to-

gether by September 1, 1980, and the amount of money

needed for the Court Clinic must be established by then.

Judge Cole suggested that Judge Sanchez be in charge of

this. Judge Sanchez agreed.

Judge Maloney seconded the motion made by Judge

Franchini.

Judge Baca questioned recommendation #3 regarding

the follow-up. He was concerned that this would be infring-

ing on functions of probation and parole. He also was con-

cerned with recommendation #7, he wondered if offering

treatment was a Court function.

Judge Franchini amended his motion to state the seven

recommendations would be a starting point and a more

detailed plan should be forthcoming.

Judge Fowlie seconded the amendment.

Judge Madrid was opposed to recommendation #6 and

the second sentence in recommendation #3.

Judge Love moved to approve recommendations #1, #2,

and the first sentence in #3 without reservation.

Judge Madrid seconded. The motion passed unanimously.

5. SECURITY AT THE JUVENILE JUSTICE CENTER:

This matter was deferred until a latter date.

6. State Farm INSURANCE SUBSTITUTION OF COUNSEL:

Mr. Simmons wrote a letter to Judge Cole saying he was

having great difficulty trying to replace Gene Klecan in all

the State Farm cases. Mr. Simmons asked if there could be

one case with one conclusion instead of having a great num-

ber of cases as he is trying to meet time schedules on the

August dockets. :

29a

After much discussion on the matter, Judge Love moved

to have the cases consolidated and that the Presiding Judge

ask the Chief Justice to designate a Judge from this Dis-

trict to try all of these issues.

Judge Brennan seconded the motion. The motion passed

with Judge Brown abstaining.

ADJOURNMENT: 1:25 p.m.

Approved On: /s/ Tuomas J. Ruiz

9-11-80

/s/ Tuomas J. Ruiz

Thomas J. Ruiz

Court Administrator

30a

STATE OF NEW MEXICO

SECOND JUDICIAL DISTRICT

January 16, 1981

Mr. Eugene E. Klecan

Attorney at Law

520 Sandia Savings Building

4th and Gold S.W.

Albuquerque, New Mexico 87102

Dear Mr. Klecan:

Mr. Ruiz has referred to me your letter of January 14,

1981, so that I may reply to it as the Presiding Judge of

this District.

Until November 1977, judges’ meetings were closed. After

that, judges’ meetings were open to the public, with certain

defined exceptions, one of which is discussions of pending

cases.

At no time has any person been permitted to review a

tape of a closed meeting other than a District Judge who

may have missed a particular meeting.

I do not intend to vary court policies for your individual

benefit. No other counsel in any of the subject cases has or

will have access to the material you request.

/s8/ GeraLp R. Coie

Gerald R. Cole

GRC;jl

ec: Mr. Tom Ruiz

3la

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

OFFICE OF THE CLERK

August 20, 1980

Eugene EK. Klecan, Attorney-at-Law

Suite 520, Sandia Savings Building

Albuquerque, NM 87102

Thomas A. Simons, IV, Attorney-at-Law

P.O. Box 2341

Santa Fe, NM 87501

Re: No. 80-1793, Luis J. Estrada, et al v. Cuaron

Dear Counselors:

This Court has today assigned the captioned case to Cal-

endar C, pursuant to Tenth Circuit Rule 10 as revised on

March 12, 1980. The Court is considering summary dismis-

sal of this case for the reason that the Court may lack juris-

diction over it.

Within 15 days of this date, the parties may simultane-

ously file with the Clerk memorandum briefs in quadrupli-

cate in support of their respective positions. The memo-

randa should contain proof of service showing the names

and addresses of persons or entities served, and may contain

citations to relevant legal authorities. These memoranda

should specifically address the question set forth at the bot-

tom of this page.

Any party may include in his memorandum a statement

setting forth reasons why, in his opinion, oral argument

should be heard. The memoranda and the trial court record

will be reviewed by a panel of three judges. If the three

judges unanimously determine that oral argument is not

32a

needed, the case will be submitted for determination with-

out oral argument. No further briefs should be filed until

further notice from the Court.

Sincerely,

Howarp K. Puiuurps, Clerk

By: /s/ Saunpra Lee Gruss

Deputy Clerk

Qugstion To Be ApprzsseED:

Does 28 U.S.C. § 1447 (d) authorize appellate review

of the remand order appealed from?

ec: J.E. Casados, Gallagher, Casados & Martin, P.C., P.O.

Box 1189, Albuquerque, NM 87103

L-7(f) 3/80

33a

NoveMBER TERM

January 16, 1981

Before Honorable Oliver Seth, Chief Judge

Honorable William J. Holloway, Jr., Circuit Judge

Honorable Robert H. McWilliams, Circuit Judge

Honorable James E. Barrett, Circuit Judge

Honorable William E. Doyle, Circuit Judge

Honorable Monroe G. McKay, Circuit Judge

Honorable James K. Logan, Circuit Judge and

Honorable Stephanie K. Seymour, Circuit Judge,

United States Court of Appeals

No. 80-1793

Luis J. Estrapa, as Administrator and Personal Represen-

trative of the Estate of Jounnny Esrrapa, deceased and

as Father and next friend of Davin Esrrapa, a minor.

Plaintiff-Appellee,

DanteL Cuaron, Defendant-Appellant.

This matter comes on for consideration of appellant’s

petition for rehearing. On it’s own motion the court has

also reviewed the petition as one for consideration en bane.

Upon consideration whereof, the petition for rehearing

is denied by the panel to whom the case was submitted.

The petition for rehearing having been denied by the

panel to whom the case was submitted, and no member of

the panel or judge in regular active service on the court

having requested that the court be polled on the suggestion

for rehearing en bance, Fed. R. App. P. 35, the suggestion

for rehearing en banc is denied.

Howarp K. Putiuirs

Clerk

/8/ Roserr L. Hoecker

Robert L. Hoecker

Chief Deputy Clerk

34a

January TERM

February 4, 1981

Before Honorable James E. Barrett, Honorable Monroe G.

McKay and Honorable James K. Logan, Circuit Judges

No. 79-2153

Tony E. Marney, Plaintiff-Appellee,

Vs.

Roser Evans, individually and as father and next friend of

Rosert T. Evans, a minor, Defendant-Appellant.

No. 80-1584

Maria Evena Hoteuin, Jamie Hotcuin, husband and wife;

Rutu Lecarpa, ALFrepo Lecarpa, husband and wife,

Plaintiff -A ppellees,

VS.

Lonniz Dawson, Defendant-Appellant.

No. 80-1585

Maria Evena Howeuin, Jamie Hoteuin, husband and wife;

Rutu Lecarpa, Atrrepo Lecarpa, husband and wife,

Plaintiff-A ppellees,

Vs.

Lonnie Dawson, Defendant,

Evcene KE. Kuecan, Appellant.

35a

No. 80-1701

Ruopa Ann Strick.anpD, as personal representative of the

Estate of JosepH Kay Srrickianp, Deceased,

Plaintiff-Appellant.

VS.

RoosEveLt County Rurat Exvectric CooPpERATIvE,

Cycri, KE. Carter, Defendants-Appellees.

No. 80-1792

DanreL Cuaron, et al, Petitioners,

vs.

Tue HonorasLte Epwin L. Mecuem, Judge of the United

States District Court for the District of New Mexico,

Respondent.

No. 80-1793

Luis J. Estrapa, as Administrator and Personal Represent-

ative of the Estate of Jounny Estrapa, Deceased, and

as father and next friend of Davip Estrapa,

a minor, Plaintiff-Appellee,

VS.

Danie, Cuaron, Defendant-Appellant.

The Court has for consideration the following motions

of appellants in the captioned cases:

1. Motion for reconsideration in cases Nos. 79-2153, 80-

1584, 80-1585, 80-1792, 80-1793 ;

2. Motion for clarification in Case No. 80-1793;

3. Motions to stay the mandates in cases Nos. 80-1584,

80-1585 and 80-1792, a motion to stay the mandate in case

36a

No. 80-1701, which the Court is treating as a motion to re-

call and stay the mandate in case No, 80-1793.

Upon consideration whereof, the Court orders.

A. The motions for reconsideration and clarifications

are denied.

B. The motion to stay the mandate in case No. 80-1792

is denied. This was an original proceeding before this

Court and no mandate issued.

C. The mandates in case No. 80-1701, issued January 27,

1981, and in No. 80-1793, issued November 25, 1980, are

recalled.

D. The mandates in cases Nos. 80-1584, 80-1585, 80-1701

and 80-1793 are stayed until March 6, 1981, pending cer-

tiorari, and 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 appellants

have timely filed petitions for writ of certiorari in the

Supreme Court, the stays shall continue until final dis-

position by the Supreme Court.

The Clerk shall forward a certified copy of this order to

the United States District Court for the District of New

Mexico and to the parties of record.

/s/ Howarp K. PHI.uirs

Howard K. Phillips,

Clerk

37a

NOT FOR ROUTINE PUBLICATION

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 80-1584

Maria ELeNa Hotcuin; Jaime Horcurn, Husband and Wife,

Ruts Lecarpa; Atrrepo Lecarpa, Husband and Wife,

Plaintiff s-Appellees,

Lonniz Dawson, Defendant-Appellant.

No. 80-1585

Maria Exvena Houeurn; Jaime Houcurn, Husband and Wife,

Ruts Leearpa; ALrrepo Lecarpa, Husband and Wife,

Plaintiff s-Appellees,

Lonniz Dawson, Defendant,

Kucene EK. Kiecan, Appellant.

Appeals from the United States District Court

For the District of New Mexico

(D. C. No. 80-221M)

Filed November 14, 1980

Submitted pursuant to Tenth Circuit Rule 9:

Kugene E. Klecan and Janet Santillanes, Klecan & Roach,

P.A., Albuquerque, New Mexico, for Defendants-Appel-

lants Dawson and Klecan.

Tom Foy, Jr. and Stephen M. Williams, Foy & Foy &

Jollesten, Silver City, New Mexico, for Plaintiffs-

Appellees,

Before Barrett, McKay and Logan, Circuit J udges.

Per Curiam.

38a

After examining the briefs and the appellate records,

this three-judge panel has determined unanimously that

oral argument would not be of material assistance in the

determination of these appeals. See Fed.R.App.P. 34(a) ;

Tenth Circuit R. 10(e). These causes are therefore ordered

submitted without oral argument.

The underlying tort action (arising from an automobile

collision) was commenced on August 31, 1978 in the District

Court of Grant County, New Mexico. After a mistrial had

been declared upon defendant’s motion, the matter was

again set for trial. There was an unsuccessful defense

request for a continuance. A few days before the second

trial was to begin, the law firm representing defendant

Dawson petitioned for removal under 28 U.S.C. $§ 1441

and 1443. The district court concluded that the case had

been improvidently removed and remanded it to the state

trial court. There was also an express finding that the

petition was frivolous, brought in bad faith and for pur-

poses of delay. Sanctions in the form of attorney’s fees

were assessed against defense counsel, personally.

Defendant Dawson appeals from that part of the order

remanding the matter back to the state court (No. 80-1584)

and counsel appeals from the imposition of sanctions

against him (No. 80-1585).

No. 80-1584

The threshold question here is whether this court has

jurisdiction to review the challenged remand order under

28 U.S.C. § 1447(d).* See Thermtron Products, Inc. v. Her-

***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 shall be reviewable

by appeal or otherwise.”’’

39a

mansdorfer, 423 U.S. 336 (1976); Gravitt v. Southwestern

Bell Telephone Company, 430 U.S. 723 (1977). In the pe-

tition, it was alleged that removal was sought under both

28 U.S.C. §§ 1441 and 1443. In support of the § 1443 claim,

defendant asserted that a local jury administration pro-

cedure may operate to deprive him of his civil rights.

The Supreme Court has established a rigorous standard

for removal under § 1443. First, it must appear that the

right allegedly denied arises under a federal law providing

for specific civil rights stated in terms of racial equality.

Second, it must also appear that the removal petitioner is

denied or cannot enforce the specfied rights in the state

courts. Johnson v. Mississippi, 421 U.S. 213 (1975).

Our review of the record persuades us that the attempted

use of the civil rights exception to the no-review provision

of § 1447(d) is frivolous and completely without substance.

When, as here, the removal does not even colorably fall

within the strict test of Johnson, the purported appeal

should be dismissed. Robertson v. Ball, 534 F.2d 63 (5th

Cir. 1976).

No. 80-1585

In this case Attorney Klecan appeals from that part of

the district court’s order which assessed costs in the

amount of $350 (for attorney’s fees) against him person-

ally. There was an express finding that the matter had

been removed in bad faith, for purposes of delay and that

Attorney Klecan ‘‘was the prime mover behind the lament-

able tactics employed here.’’

Courts have the inherent power to tax attorney’s fees

against counsel who litigate in bad faith of otherwise will-

fully abuse judicial process. Roadway Express, Ine. v.

Piper, —— U.S. ——, 100 S. Ct. 2455 (1980). Although

other attorneys from Mr. Klecan’s firm had some limited

participation in the underlying proceedings, in both the

state and federal courts, there is no doubt that Mr. Klecan

40a

was actually in charge of the litigation. The record amply

demonstrates that the removal litigation was conducted

in manifest bad faith and brought solely for purpose of

delay. Under such circumstances the imposition of sanc-

tions is fully warranted. United States v. Sumitomo Ma-

rine & Fire Ins. Co., 617 F.2d 1365 (9th Cir. 1980).

CONCLUSION

No. 80-1584—The appeal from the order remanding the

action to the state court is dismissed.

No. 80-1585—The portion of the district court’s judg-

ment imposing sanctions against Mr. Klecan is affirmed.

4la

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

No. 80-221-M Civil

Maria Evena Hotauin; James Hoxieurn, husband and wife,

and Ruts Lecarpa and ALFREDO LEeGarDA, husband and wife,

Plaintiffs,

Vv.

LonnizE Dawson, Defendant.

ORDER

Filed, May 6, 1980

Entered on Docket, May 6, 1980

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 'e 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 consolidated

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

Jaime Holquin and Alfredo Legarda, husbands of plain-

tiffs Maria Elena Holquin and Ruth Legarda, the original

plaintiffs in these consolidated actions. The husbands’

several claims set out in those First Amended Complaints

later were deleted by way of amendment in a pretrial or-

42a

der ‘‘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 as-

serted 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 remand

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

1 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.’’ The response 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 misrepresentation of the language

in the Pretrial Order is knowing or innocent is a question of seri-

ous 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 defendant’s

argument. Only as it is lifted from context in his response can 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.”’

43a

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

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

diction in this case. Assuming without deciding that the

claims raised by Messrs. Holquin and Legarda in the First

Amended Complaint are ‘‘separate and independent’’

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

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

jurisdiction derive from § 1441(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 vio-

lations. In such a suit, defendant herein would be a plain-

tiff, to whom the provisions of § 1443 do not apply.

Having considered the motion and memoranda of counsel

and further being fully advised in the premises, I conclude

that defendant’s petition for removal is frivolous, vexa-

tions and brought for the purposes of delay. Defendant

filed his petition only days before trial was set in this mat-

ter in the State District Court and after a motion for con-

tinuance on his behalf had been denied. Additionally, I

note that this is not the first time that counsel for defend-

ant 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. Eugene E. Klecan, Esquire,

44a

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,

Ir Is Orperep that plaintiffs’ motion to remand be, and

hereby is, granted.

Ir Is FurtHer Orperep that plaintiffs be awarded costs

in the amount of $350.00, such costs to be borne by defense

counsel, Eugene EK. Klecan, Esquire.

Ir Is FurrHer Orperep that the parties’ requests for

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

/s/ Epvwin L. Mecuem

United States District Judge

45a

COPY

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

Civ 80 221 M

Maria Evena Houeurn and Jaime Hoxrevuin, husband and

wife, and Rut Lecarpa and Aurrepo Lecarpa,

husband and wife, Plaintiffs,

Vv.

Lonniz Dawson, Defendant.

PETITION FOR REMOVAL

Filed April 4, 1980

Comes Now Peritioner Lonnir Dawson and states:

1, That your Petitioner, Lonnie Dawson, is a citizen of

the State of Arizona.

2. That your Petitioner, Lonnie Dawson, is removing

cause no. 78-146 and cause no. 78-147, Grant County, New

Mexico, which are consolidated cases from Grant County,

New Mexico. A copy of the Order of consolidation filed

by District Court Judge Ray Hughes is attached as Ex-

hibit 1.

3. That this Removal is pursuant to 28 USCS § 1441 (a)

(b)(c). That the Removal action is based on 28 USCS

§ 1441 and/or § 1443.

The consolidation was based on a common accident in

Grant County, New Mexico on or about December 9, 1977,

with a common defendant, Lonnie Dawson, the Petitioner

herein.

4. That as initially pled, the sole plaintiff in the two

consolidated actions were Ruth Legarda and Maria Elena

Holguin.

46a

5. That Petitioner now alleges the facts authorizing re-

moval under 28 USCS § 1441. Subsequent in this Petition,

the facts upon which 28 USCS § 1443 are based will be

stated. That subsequent to the filing of the original Com-

plaints by Ruth Legarda and Maria Elena Holguin (Ex-

hibits 2 and 3 respectively), wherein service was had upon

the defendant, Lonnie Dawson, said plaintiffs moved for

an Order allowing the filing of Amended Complaints. See

Exhibit 1, which is the Order allowing consolidation and

which authorized the filing of Amended Complaints with

additional parties being added, namely, Jaime Holguin,

husband of Maria Elena Holguin, and Alfredo Legarda,

husband of Ruth Legarda. That said Amended Complaints

were answered by defendant, Lonnie Dawson, on August

9, 1979. That subsequent thereto, plaintiffs Alfredo Le-

garda and Jaime Holguin abandoned their contentions un-

der the First Amended Complaint as to all claimed items

of damages alleged against the defendant in the First

Amended Complaint. This dismissal by plaintiffs herein

is demonstrated by a proposed Pretrial Order. That said

Pretrial Order was the subject of a Court Order as to its

execution by the plaintiffs and defendant through their

attorneys. A copy of the Order, ordering the Pretrial Order

is attached hereto as Exhibit 4. See paragraph 2 of the

Order, Exhibit 4, which provides that, “The proposed

Pretrial Order shall be submitted to defense counsel by

Monday, March 24, 1980,’’ and further provides that ‘‘ De-

fense counsel shall provide the final Pre-Trial Order to

Judge Hughes by Tuesday, April 1, 1980.’’

6. It is the subject matter of the Pretrial Order which

gives rise to this Removal under 28 USCS 4 1441. The

pages essential to this Petition are pages 1 and 2 of the

proposed Pretrial Order and are attached hereto as Ex-

hibit 5. See page 2, last two paragraphs, for amendments

and deletions giving rise to this Removal. This Petition is

within the 30 days provided by the Removal Statutes, since

Exhibit 5 contains a new cause of action as to the plaintiffs

47a

and is a claim for thirty thousand dollars ($30,000) for

each of Jaime Holguin and Alfredo Legarda. Defendant

therefore removes this action within the period of time

provided by law. That the claim for thirty thousand dollars

($30,000) is for ‘‘loss of services’’ of the wives of the

plaintiffs Jaime Holguin and Alfredo Legarda and has not

een the subject matter of a previous claim. Said conten-

tions state a new and different cause of action as proposed

in the Pretrial Order of March 25, 1980, signed by the

plaintiffs’ attorney for and on behalf of the plaintiffs herein.

7. That diversity of citizenship exists since the Peti-

tioner is a citizen of the state of Arizona, and the plain-

tiffs are citizens of the state of New Mexico, and that such

diversity existed when the above-mentioned new cause of

action was introduced into this lawsuit.

8. That the amount in controversy exceeds ten thousand

dollars ($10,000).

9. That Petitioner now alleges the facts authorizing re-

moval under 28 USC § 1443, as follows: That on or before

November of 1979, a jury panel of 100 persons was selected

for jury service, and that members of this panel served on

the jury during an attempted trial of this cause which

ended in a mistrial in November, 1979. That substantial

numbers of this panel were exposed to extensive voir dire

examination, and that members of the jury panel selected

to serve on this case were or may have been interviewed

by the plaintiffs’ attorney after the mistrial. That the dis-

cussion which took place on void dire and in the trial gave

many members of this panel extensive exposure of the

facts and issues in this case. See Exhibit 6 for partial list

of jurors who were on a panel which was exposed to facts

of this hearing at prior hearing and were called again.

That on March 20, 1980, defendant moved the District

Court of Grant County, New Mexico, to call a new jury

panel and qualify jurors for the same, but this Motion was

48a

denied. That the jurors to be used in the upcoming April,

1980 trial of this matter will include the 100-member panel

described above and a 50-member panel selected in De-

cember. Further, that the use of these panels is in viola-

tion of the provisions of § 38-5-12, NMSA 1978, which were

in effect at the time this suit was filed; these provisions

limited jury service to three months after qualification,

although this statute was amended in 1979 to extend the

time to six months. |

That the use of these jury panels constitutes discrimina-

tion against the Petitioner and a denial of his equal rights

under the Civil Rights Act, and in particular 42 USC

§ 1983, and the due process clause of the United States

Constitution.

10. That this Petition is accompanied by a bond as re-

quired by law, conditioned that Petitioner will pay all costs

and disbursement incurred by reason of the removal pro-

ceedings, should it be determined that the case is not re-

movable or was improperly removed.

Wuenrerore, Petitioner files this Petition for Removal of

said action from the District Court of Grant County, New

Mexico, to the United States District Court for the District

of New Mexico, and prays that the action stand so removed.

/s/ Jayes T. Roacu

James T. Roach

Kuecan & Roacu, P.A.

Attorneys for Petitioner

Suite 520

Sandia Savings Building

Albuquerque, New Mexico 87102

505/243-7731

49a

AFFIDAVIT

State or New Mexico

County or BERNALILLO, ss.

Jars T. Roach, being first duly sworn upon his oath,

states as follows:

I am an attorney of record for Petitioner in this cause,

and to the best of my information, belief and personal

knowledge, state that all matters contained in this Petition

are true and correct.

/3/ James T. Roacu

James T. Roach

SUBSCRIBED AND Sworn to before me this 4th day of

April, 1980.

/s/ Patricia L. Rice

Notary Public

OFFICIAL SEAL

Patricia L. Rice, Notary Public New Mexico

Notary Bond Filed with Secretary of State

My Commission Expires 3/19/84

I hereby certify that a true copy of the foregoing Peti-

tion was mailed to opposing counsel of record this 4th day

of April, 1980.

James T. Roach

50a

Srate or New Mexico County or GRANT

IN THE SIXTH JUDICIAL DISTRICT COURT

No. CV 78-146

Maria Exvrwa Houeuin and Jamie Hoievuin,

husband and wife, Plaintiffs,

VS.

Lonnize Dawson, Defendant.

FIRST AMENDED COMPLAINT

Count I

1. Plaintiffs Marta Evena Horeuin and Jamie Hoievuin

are residents of Grant County in the State of New Mexico.

2. Defendant, Lonnie Dawson, is a resident of the State

of Arizona.

3. On or about December 9, 1977, the Defendant, Lonniz

Dawson, negligently operated an automobile so as to cause

it to collide with an automobile in which the Plaintiff,

Magia Evena Horeutn, was driving.

4. On or about December 9, 1977, the Defendant, Lonn1z

Dawson, negligently operated an automobile while in a

state of intoxication so as to cause it to come in contact

with an automobile which the Plaintiff, Marta Evena Hot-

GUIN, was driving.

5. As a direct and proximate cause of the Defendant,

Lonnie Dawson’s negligence, the Plaintiff, Marta ELena

Hoxeutn, suffered personal injury, loss of income, pain re-

sulting from anxiety for future medical problems, fright

and shock at the time of the collision, embarrassment and

humiliation at the time of the collision, pain resulting from

anxiety due to fear of suspected physical disorders. Pain

resulting from anxiety due to fear concerning future medi-

cal care. Pain and suffering resulting from anxiety due to

5la

fear of the economic impact on herself and her family as

a result of her inability to work, pain and suffering due

to anxiety and depression caused by limitations on her

normal activity. Anxiety and depression due to prolonged

stress, suffering resulting from anxiety and depression due

to her loss of her self-image.

6. Plaintiff alleges that as a result of the Defendant’s

negligence, Plaintiff received severe and substantial in-

juries.

7. As a direct and proximate cause of Defendant’s negli-

gence, Plaintiff has incurred or will incur medical expenses

in an undetermined amount.

8. By reason of said injuries so inflicted upon the Plain-

tiff, Plaintiff has been unable to pursue her usual occupa-

tion, resulting in damage to Plaintiff in terms of lost

wages. As a result of said injury, Plaintiff was compelled

to use hospital services and was compelled to employ

physicians to treat such injuries. Plaintiff further alleges

that her future medical bills still remain unknown.

9. Plaintiff has incurred severe physical and mental suf-

fering as a result of her injuries.

Wuenrerorg, Plaintiff, Marta Erena Hoxocurn, prays the

Court for judgment against the Defendant, Lonnie Daw-

son, as follows:

1. Medical expenses in as yet an undetermined

amount.

2. Lost wages in as yet an undetermined amount.

3. Suffering caused by anxiety due to fear of future

disease and abnormality-—$5,000.00,

4. Fright and shock which she sustained at the time

of the collision—$3,000.00.

5. Embarrassment and humiliation she sustained be-

ing in public view at the accident scene as a victim

—$2,000.00.

52a

6. Pain and suffering she sustained due to anxiety

caused by fear of suspected disorders in her body

—$3,000.00.

7. Suffering caused by anxiety due to fear of future

medical care—$2,000.00.

8. Pain and suffering caused by anxiety due to fear

of the economic impact of the collision on herself

and her family—$3,000.00.

9. Suffering and pain caused by anxiety due to fear

and depression surrounding her loss of the normal

enjoyment of life—$15,000.00.

10. Pain and suffering caused by anxiety and depres-

sion due to prolonged stress—$3,000.00.

11. Pain and suffering caused by anxiety and depres-

sion due to her loss of her self-image as a whole

homemaker—$15,000.00.

12. The costs of this action.

13. All further proper relief,

Count II

1. All allegations contained in Count I above are hereby

incorporated into Counr II. Plaintiff, Jamm Hoxeuin, al-

leges that as a result of the Defendant, Lonnie Dawson’s

negligence, the Plaintiff, Jamm Hoteuin suffered severe

mental stress at the time he was notified of his wife’s in-

juries. He further suffered anxiety and depression due to

his grief from observing his wife in her state of pain and

suffering. He alleges further he has lost the normal enjoy-

ment of life because he and his wife are unable to do things

for relaxation which were done prior to the collision. He

is suffering from anxiety due to fear of the economic im-

pact of his wife’s lost income. He is suffering anxiety and

fear due to the loss of assistance and services formerly

provided by his wife, And finally, he is suffering anxiety

53a

due to fear of medical disorders which his wife may de-

velop in the future.

WuereroreE, the Plaintiff, Jamrme Houieuin, prays the

Court for judgment against the Defendant, Lonniz Daw-

son, as follows:

For the mental stress in receiving the collision

news concerning his wife—$2,500.00.

For the suffering caused by the anxiety and depres-

sion due to his grief from observing his wife since

the injury—$10,000.00.

For the loss of his normal enjoyment of life—

$15,000.00.

For the anxiety and suffering due to fear of the

economic impact of his wife’s inability to work—

$3,000.00.

For the suffering caused by the anxiety and fear

due to the loss of assistance and services formerly

provided by his wife—$10,000.00.

For the suffering caused by anxiety due to the

fear his wife may develop medical disorders in the

future—$2,000.00.

The costs of this action.

All proper relief.

Foy, Foy & JoLLENSTEN

/s/ Tom Foy, Jr.

Tom Foy, Jr.

Attorneys for Plaintiffs

P. O. Box 2615

Silver City, New Mexico 88061

Telephone (505) 538-2967

I hereby certify that a copy of the foregoing pleading

was mailed to opposing counsel on this 16th day of July,

1979.

/3/ Tom Foy, Jr.

Tom Foy, Jr.

Stats oF New Mexico CounTY oF GRANT

IN THE SIXTH JUDICIAL DISTRICT COURT

No. CV-78-147 (Grant)

Ruru Lecarpa and ALrrepo Lecarpa, husband and wife,

Plaintiffs,

VS.

Lonnie Dawson, Defendant,

FIRST AMENDED COMPLAINT

Count I

1. Plaintiffs Ruta LeGarpa and ALrrepo LEGARDA are

residents of Grant County in the State of New Mexico.

2. Defendant, Lonnie Dawson, is a resident of Grant

County in the State of New Mexico.

3. On or about December 9, 1977, the Defendant, Lonnie

Dawson, negligently operated an automobile so as to cause

it to collide with an automobile in which the Plaintiff,

Ruts Lecarpa, was riding.

4. On or about December 9, 1977, the Defendant, Lonnig

Dawson, negligently operated an automobile while in a

severe state of intoxication so as to cause it to come in

contact with an automobile in which the Plaintiff, Ruts

LEGARDA, was riding.

5. As a direct and proximate cause of the Defendant,

Lonnie Dawson’s negligence, the Plaintiff, Rurn Lecarpa,

suffered personal injury, loss of income, pain resulting

from anxiety for future medical problems, fright and shock

at the time of the collision, embarrassment and humiliation

at the time of the collision, pain resulting from anxiety due

to fear of suspected physical disorders. Pain resulting from

anxiety due to fear concerning future medical care. Pain

—_

55a

and suffering resulting from anxiety due to fear of the

economic impact on herself and her family as a result of

her inability to work, pain and suffering due to anxiety

and depression caused by limitations on her normal activ-

ity. Anxiety and depression due to prolonged stress, suf-

fering from anxiety and depression due to her loss of her

self-image.

6. Plaintiff alleges that as a result of the Defendant’s

negligence, Plaintiff received severe and substantial in-

juries. She received a cracked left forearm and a contu-

sion or rupture of muscles in the left forearm. Plaintiff

also received severe injuries to her chest. At the present

time the injuries consist of broken ribs and a collecting of

fluid in the chest. Plaintiff also has received injuries to her

neck and spine.

7. As a direct and proximate cause of Defendant’s negli-

gence, Plaintiff has incurred or will incur medical expenses

in an undetermined amount.

8. By reason of said injuries so inflicted upon the Plain-

tiff, Plaintiff has been unable to pursue her usual occupa-

tion, resulting in damage to Plaintiff in terms of lost wages.

As a result of said injury, Plaintiff was compelled to use

hospital services and was compelled to employ physicians

to treat such injuries, and for the service of such physi-

cians, Plaintiff has incurred liabilities and debts in the

amount of $566.77, all of which sums were necessary, rea-

sonable and proper. Plaintiff further alleges that her future

medical bills still remain unknown.

9. Plaintiff has incurred severe physical and mental suf-

fering as a result of her injuries.

Wuererore, Plaintiff, RurH Lecarpa, prays the Court

for judgment against the Defendant, Lonnie Dawson, as

follows:

1. Medical expenses in as yet an undetermined

amount.

56a

2. Lost wages in as yet an undetermined amount.

10.

11.

12.

13.

Suffering caused by anxiety due to fear of future

disease and abnormality—$5,000.00.

Fright and shock which she sustained at the time

of the collision—$3,000.00.

Embarrassment and humiliation she sustained be-

ing in public view at the accident scene as a victim

—$2,000.00.

Pain and suffering she sustained due to anxiety

caused by fear of suspected disorders in her body

—$3,000.00.

Suffering caused by anxiety due to fear of future

medical care—$2,000.00.

. Pain and suffering caused by anxiety due to fear

of the economic impact of the collision on herself

and her family—$3,000.00.

. Suffering and pain caused by anxiety due to fear

and depression surrounding her loss of the normal

enjoyment of life—$15,000.00.

Pain and suffering caused by anxiety and depres-

sion due to prolonged stress—$3,000.00.

Pain and sufferring caused by anxiety and depres-

sion due to her loss of her self-image as a whole

homemaker—$15,000.00.

The costs of this action .

All further proper relief.

Count II

1. All allegations contained in Count I above are hereby

incorporated into Count II. Plaintiff, ALFrepo Lecarpa, al-

leges that as a result of the Defendant, Lonnie Dawson’s

negligence, the Plaintiff, ALrrepo Lecarpa, suffered severe

be ol

—

57a

mental stress at the time he was notified of his wife’s in-

juries. He further suffered anxiety and depression due to

his grief from observing his wife in her state of pain and

suffering. He alleges further he has lost the normal enjoy-

ment of life because he and his wife are unable to do things

for relaxation which were done prior to the collision. He

is suffering from anxiety due to fear of the economic im-

pact of his wife’s lost income. He is suffering anxiety and

fear due to the loss of assistance and services formerly

provided by his wife. And finally, he is suffering anxiety

due to fear of medical disorders which his wife may de-

velop in the future.

Wuererore, the Plaintiff, ALrrepo Lecarpa, prays the

Court for judgment against the Defendant, Lonnie Daw-

son, as follows:

”

For the mental stress in receiving the collision

news concerning his wife—$2,500.00.

2. For the suffering caused by the anxiety and de-

pression due to his grief from observing his wife

since the injury—$10,000.00,

3. For the loss of his normal enjoyment of life—

$15,000.00.

4. For the anxiety and suffering due to fear of the

economic impact of his wife’s inability to work—

$2,500.00.

5. For the suffering caused by the anxiety and fear

due to the loss of assistance and services formerly

provided by his wife—$10,000.00.

6. For the suffering caused by anxiety due to the fear

his wife may develop medical disorders in the fu-

ture—$2,000.00.

58a

7. The costs of this action.

8. All proper relief.

Foy, Foy & JoLLENSTEIN

/s/ Tom Foy, Jr.

Tom Foy, Jr.

Attorneys for Plaintiffs

P. O. Box 2615

Silver City, New Mexico 88061

Telephone (505) 538-2967

I hereby certify that a copy of the foregoing pleading

was mailed to opposing counsel on this — day of i

1979.

/s/ Tom Foy, JR.

Tom Foy, Jr.

59a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

No. CIV-80-221-M

Maria Evena Hoieuin and Jame Horevurn, husband and

wife, and Ruta Lecarpa and ALFrepo Lecarpa, husand and

wife, Plaintiffs,

VS.

Lonnie Dawson, Defendant.

MOTION TO REMAND

Comes Now Maria ExLena Hoteurn, Jaime Houeurn, Ruta

Lecarpa, and Atrrepo Lecarpa, through their attorneys of

record, Foy, Foy & JoLLensten, P.A., and moves the Court

to Remanp the above-entitled matter to the Grant County

District Court, and as grounds therefore states:

1, The Petition ror Removau is nothing more than a

frivolous attempt on the part of the Defendant, his attor-

ney, and his insurance carrier to stall and otherwise unduly

delay the cause of action which was filed in Grant County,

New Mexico, District Court more than two (2) years ago.

2. The matter was scheduled for trial in Grant County

District Court on Tuesday, April 8, 1980. On Thursday,

March 20, 1980, opposing counsel, Euceng Kiecan, re-

quested District Court Judge Ray Hughes for a continu-

ance. Mr. Kevcan’s request was denied. The Peririon For

Remova. is nothing more than a subterfuge to gain the

continuance which was denied by District Court Judge Ray

Hughes.

3. The Petition ror RemMovay in which Lonnie Dawson

indicates he is the Petitioner is not verified and therefore

the Petition ror Removau should be struck pursuant to 28

USCS Section 1446(a).

60a

4. The Petition ror Removat should be dismissed and

this cause should be remanded because the Prtirion was

not filed in a timely fashion pursuant to 28 USCS Section

1446(b).

5. The Petition was filed on Friday, April 4, 1980. The

trial was to begin on the following Tuesday. It should be

pointed out opposing counsel did not even give the Court,

the Court Clerk, or opposing counsel the courtesy of a phone

call indicating the Prerition ror Remova. would be filed.

This attorney spent his Easter holiday preparing for the

trial to begin on Tuesday. This attorney had numerous wit-

nesses subpoenaed. This attorney spent half of the Monday

before the trial interviewing witnesses and preparing for

trial. This attorney did not know until noon the day before

the trial that the Petition ror Removat had been filed.

6. It is interesting to note the Petition ror RemMovaL was

filed by attorney James T. Roacu. In his Affidavit he indi-

cates that the matters contained in the Petition are true and

correct. Mr. Roacu was not present at any of the hearings,

conferences, or other matters relating to this case. The

first contact Mr. Roacw has had with this matter was the

PETITION FOR REMOVAL.

7. Evidentally Mr. Roacu is contending at paragraph 6

of the Petition ror Removau that the contentions in the

Pre-Trial Order state a new and different cause of action.

He evidentally feels that the new and different cause of ac-

tion was first presented to the Defendant on March 25,

1980. He therefore concludes that the Petition is timely

filed because it was filed within thirty (30) days from

March 25, 1980. It is understandable Mr. Roacu would

make this mistake in view of the fact he knows nothing

about the case.

8. The First AMENDED Comp arnt filed on behalf of Marra

Exvena Hoieuin and Jarme Horeurn was filed on July 18,

1979. A copy of the First AMENDED ComPLarnT is attached

Ola

hereto labeled Exhibit “1” and incorporated herein. In

Count II of the First AMenpep CompLarnt in paragraph 1,

Mr. Hoteuin stated he was suffering anxiety and fear be-

cause of the loss of assistance and services formerly pro-

vided by his wife. The ANswer To First AMENDED Com-

PLAINT filed by Mark Kiecan of KiEcan’s law firm denied

the loss of services allegation on August 7, 1979. A copy of

the Answer To First AMENDED ComPLaIntT is attached here-

to, labeled Exhibit “2”, and incorporated herein. It is ob-

vious the loss of service issue was first created back in

August of 1979. It is further obvious that it has been more

than thirty (30) days since August of 1979.

9. The First AMENDED Compuarnt was filed by ALFREDO

Lecarva on July 18, 1979. A copy of same is labeled Exhibit

“3”, attached hereto and incorporated herein. The Court’s

attention is directed to Count I. of the CompLarn wherein

Mr. LeGarpa requests compensation for loss of assistance

and services formerly provided by his wife. When Marx

KxEcan was still working for his father he answered the

Comptaint on August 7, 1979. A copy of the ANswerR TO

First AMENDED Comp.ainT is labeled Exhibit “4”, attached

hereto and incorporated herein. It is clear from the ANSWER

that the loss of services allegation was denied in Count II,

paragraph 1 of the Answer To First AMENDED CoMPLaINT.

It is also clear that more than thirty (30) days have passed

since the issue was framed.

10. In addition to the issue being framed in August of

1979, a Pre-Trial Conference was held on October 15, 1979.

The Pre-Trial Conference was held before the Honorable

Judge Ray Hughes. A copy of the Norice or Settine is

labeled Exhibit “5”, attached hereto and incorporated here-

in. The Pre-Trial Conference was the first appearance of

Mr. Gene K.ecan in the case. The matter had been set for

jury trial for four days in Silver City, New Mexico, to begin

on November 13, 1979. A copy of the Amenvev Notice oF

62a

SettTinc is labeled Exhibit “6”, attached hereto and incor-

porated herein. At that Pre-Trial Conference Mr. Kiecan

was advised, among other things, that Mr. Lecarpa and Mr.

Ho.cuin would present a loss of services claim against his

Defendant for $30,000.00. Judge Hughes ordered Tom Foy,

Jr. to prepare the Pre-Trial Order and forward it to Geng

Kuecan. Mr. Kuecan was to forward the Pre-Trial Order

to the Judge for approval.

11. On October 29, 1979, Tom Foy, Jr. forwarded to Kvu-

GENE KE. Kvecan the original Pre-Trial Order as well as

Plaintiffs’ proposed UJI 3.1 and the jury instructions on

damages. A copy of Mr. Foy’s letter of transmittal is la-

beled Exhibit “7”, attached hereto and incorporated herein.

12. Mr. Kuecan has the original Pre-Trial Order and the

original Pre-Trial Order stated exactly the same thing with

regard to amendments to pleadings found at paragraph 8

of the Pre-Trial Order attached to the Petition ror Re-

MOVAL. It was the agreement at the Pre-Trial Conference, in

courtesy to Mr. Kiecan, that he need not file any additional

pleadings with regard to this matter.

13. Mr. Kuiecan would not complete the Pre-Trial Order

and forward it to the Judge for signature. Mr. Kiecan

would not tell opposing counsel his witnesses or exhibits.

The matter went to trial on Tuescay, November 13, 1979,

without a Pre-Trial Order. Tom Foy, Jr. had to make a

motion on the second day of trial to order Geng Kuecan to

give him his list of witnesses and exhibits. This was argued

before Judge Hughes and Judge Hughes ordered Mr.

Kuirecan to comply. The matter was tried before Judge

Hughes for three and a half (31%) days before a mistrial

was granted at Mr. Kiecan’s request. During that entire

three and a half (34%) day trial Mr. Krecan knew Mr. Leg-

caRpA and Mr. Hoxeurn’s only claims were for loss of ser-

vices and he was at that time defending against same.

63a

14. In view of Tom Foy’s experience with Mr. Kuiecan,

Tom Foy, Jr. felt the only way to get to Pre-Trial Order

in this matter was to make a motion to the Court and have

the Court order Mr. Kiecan to complete the Pre-Trial Or-

der. A Motion to Compe, DEFENDANT TO FINISH THE PRE-

TriaL Orper was filed on February 19, 1980. A copy of same

is labeled Exhibit “8”, attached hereto and incorporated

herein. Judge Hughes ordere Mr. Kiecan to complete the

Pre-Trial Order and furnish it to Tom Foy, Jr. by April 1,

1980. The hearing on the Motion to Compe, DEFENDANT TO

FinisH THE Pre-TRiaAL Orper was in Deming, New Mexico,

on March 25, 1980.

15. The allegations contained in paragraph 9 of the Pett-

TION FoR Removau are frivolous. Opposing counsel would

have the Federal Court believe that Mr. Kizcan argued

that 38-5-12 N.M.S.A. 1978, which was in effect at the time

the suit was filed, should control. And therefore, jurors

should only be allowed for three (3) months after qualifi-

cation. It should be pointed out that opposing counsel, Kvu-

GENE Kugcan, made no such argument at the hearing in

Deming, New Mexico, on March 25, 1980. He argued that

certain members of the jury panel should be stricken be-

cause it had been more than three (3) months since they

had been qualified. At the hearing, Mr. Kiecan did not even

know the statute had been amended. The amendment had to

be pointed out to Mr. Kiecan by counsel Tom Foy, Jr. and

Judge Ray Hughes. ,

16. Regardless of what Mr. Kiecan argued in Deming,

New Mexico, concerning the jury panel, the question is moot

at this time. The soonest this matter could be set in the

Grant County area for a four (4) day jury trial will prob-

ably be sometime in the fall. By that time we will have an

entirely new jury panel.

64a

Wuererore, Maria Evena, JatmMe Horeurn, Rutn Le-

GARDA, and ALFREepo Lecarpa, pray the Court to remand this

matter back to Grant County District Court for further

action. The parties further pray the Court to award sub-

stantial costs for the filing of this frivolous Prririon.

Foy, Foy & JoLLensTEN, P.A.

By /s/ Tom Foy, JR.

Tom Foy, Jr.

Attorneys for Plaintiffs

P. O. Box 2615

Silver City, New Mexico 80861

Telephone: (505) 538-2967

I hereby certify that I mailed a copy of the foregoing to

opposing counsel of record this 17 day of April, 1980.

/s/ Tom Foy, JR.

Tom Foy, Jr.

65a

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

OFFICE OF THE CLERK

C404 United States Courthouse

Denver, Colorado 80294

July 9, 1980

Mr. Lonnie Dawson

Ms. Wendy M. Bickel

Mr. Eugene E. Klecan

Klecan & Roach

520 Sandia Savings Bldg.

4th & Gold, S.W.

Albuquerque, N.M. 87102

Re: No. 80-1584, Holguin, et al v. Dawson

Dear Counsel:

This is to advise that a motion to affirm has been filed

in the above designated case. Pursuant to Local Rule 9(c),

you have fifteen (15) days from the date of this letter in

which to respond to that motion.

A response to the motion (original and three copies)

may be filed with the clerk with proof of service on the

opposing party.

Upon the filing of the response or the expiration of time

therefor, the matter will be submitted to the court for con-

sideration and appropriate disposition. See 10th Cir.R. 9

(1979).

Very truly yours,

Howarp K, Puuuuips, Clerk

By: /s/ Margaret LEMMoNS

Deputy Clerk

ec: Mr. Tom Foy, Jr., Mr. Stephen M. Williams, Foy & Foy

& Jollensten, P.O. Box 2615, Silver City, N.M. 88061

66a

NoveMBER TERM

Janvery 16, 1981

Before Honorable Oliver Seth, Chief Judge

Honorable William J. Holloway, Jr., Cireuit Judge

Honorable Robert H. McWilliams, Circuit Judge

Honorable James E. Barrett, Circuit Judge

Honorable William E. Doyle, Circuit Judge

Honorable Monroe G. McKay, Circuit Judge

Honorable James K. Logan, Circuit Judge and

Honorable Stephanie K. Seymour, Cirewit Judge,

United States Court of Appeals

No. 80-1584

Maria Evena Hoteuin; Jaime Houieurin, Husband and Wife,

Ruts Leaarpa, ALFREDO Lecarpa, Husband and Wife,

Plaintiff s-Appellees,

Lonnie Dawson, Defendant-Appellant.

No. 80-1585

Marra Evena Houieurin; Jaime Hoieurn, Husband and Wife,

Rurs Lecarpa, ALFreDo Lecarpa, Husband and Wife,

Plaintiff s-Appellees,

Lonnikz Dawson, Defendant,

Evucene E, Kuecan, Appellant.

This matter comes on for consideration of appellants’

petition for rehearing and suggestion for rehearing en

banc in the captioned cause.

67a

Upon consideration whereof, the petition for rehearing

is denied by the panel to whom the case was submitted.

The petition for rehearing having been denied by the

panel to whom the case was submitted, and no member of

the panel or judge in regular active service on the court

having requested that the court be polled on the suggestion

for rehearing en banc, Fed. R. App. P. 35, the suggestion

for rehearing en banc is denied.

Howarp K. PuHuures

Clerk

/3/ Rosert L. Horcker

Chief Deputy Clerk

68a

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 80-1792

DanieL Cuaron, et al., Petitioners,

-VS-

Tue Honoras_eE Epwin L. Mecuem, Judge of the United

States District Court for the District of New Mexico,

Respondent.

PETITION FOR WRIT OF MANDAMUS

Received July 30, 1980

Petitioners Daniel Cuaron and the individual defendants

in the 67 cases consolidated with Estrada v. Cuaron apply

for a Writ of Mandamus directed to the Honorable Edwin

L. Mechem, Judge of the United States District Court for

the District of New Mexico. This Petition is made pursuant

to Rule 21 of the Federal Rules of Appellate Procedure.

In support of this Petition, petitioners state:

STATEMENT OF FACTS

Petitioner Daniel Cuaron and the individual defendants

in the 67 other cases consolidated with Estrada v. Cuaron

are all defendants in civil lawsuits filed in the state court

in Bernalillo County, New Mexico. On July 16, 1980, peti-

tioners removed the 68 cases in which they are involved to

the United States District Court for the District of New

Mexico. Those cases had been consolidated by order of the

state court. The removal was made pursuant to 23 U.S.C.

§ 1443 based on the violations of petitioners’ civil rights, as

will be discussed below. No motion to remand was ever

filed. However on July 16, 1980, the very same day that

the lawsuits were removed to Federal Court, respondent

Edwin L. Mechem entered an order remanding the 68 con-

69a

solidated cases to state court. No hearing was ever held

on the removal or remand. Petitioners appealed the Order

of Remand on July 17, 1980. That appeal was filed pursuant

to 28 U.S.C. § 1447 which allows appeal of an order re-

manding u case which was removed pursuant to § 1443.

Despite the fact that the remand order has been appealed,

the state court judges have proceeded to act on these con-

solidated cases, to petitioners’ detriment. Therefore this

Petition for Mandamus is necessary to prevent irreparable

harm to petitioners.

Petitioners have all been represented by the law firm of

Klecan & Roach, P.A., since the inception of the lawsuits

filed against them. An attorney-client relationship exists

between Klecan & Roach, P.A., and each of the petitioners.

None of the petitioners has ever requested, authorized or

consented to a substitution of their attorneys. Petitioners

are all insured by State Farm Insurance Company. That

Company has an obligation to defend the claims against

petitioners. The obligation of State Farm to its insureds

is one requiring strict performance in

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