# Petition — Cuaron v. Estrada

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1450%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 985

## Text

ee
ae" Court, U
E [i &® BD
g0°1515 |,

b ' MAR @ 1981
es tie.
nti CLERK

IN THE 7

Supreme Court of the United ‘States

OcToBEeR Term, 1980

—

DanieEL Cuaron, Petitioner,
V.

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,
ie
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

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

i
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

lil

TABLE OF CONTENTS

Page
Quustions PamsRwem « «oo siscisccscdeansseeeeaeeeee i
Last op PaWYtMs 2. .occccacuseseusesdessuee ee i
Tancn op CONTENTS 6.60 cccsccnsnasscebaeseeeee iii
Tanin op AUTHOMITEMS 2.6 oss 400000880008n ee ili
Ovrmroms BetOW ooiccccvcicscsseveesssnuee 1
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 |

iv
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:

ee, OE oS hoe ke ch awko rede vented gue eeees passim
EE int bh hee oe BAe eee ee ee passim
i Loe ca eh i SRRANGESES ONO SER ERED OS 6, 7,8

No.

IN THE

Supreme Court of the United States

OctToBerR TERM, 1980

DaNIEL Cuaron, Petitioner,
v.

Luis J. Estrapa, Respondent,
and

LONNIE Dawson and EvGene K.ecan, Petitioners,
V.

Maria ELENA Ho.ouin, JAMIE Ho.eurn,
RvutH Lecarpa and ALFREDO LeGcarDA, Respondents.
and

DANIEL Cuaron, Petitioners,
We
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.

2

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.

3

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.

4

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

» I I hI hh > bb» ~~ Ee Bee ee sClUhaSTt!lllUlmeS lS

4)

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

ee —_— em em /_—_ int em: Mie Me « Ml A Ml MM MM An heeled,

7

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.

8

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

Ram me teh AM oA BB ~ As» 4 Ate 1 he me All KM Cf OM lm hn eee fe BU

9

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.

10

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

11

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

12

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

13

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.

14

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

15

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

16

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

17

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

a

18

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).

19

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

—

20

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-

21

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

22

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

23

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

24

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

25

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

26

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-

27

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.

28

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

29

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

i
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.

il
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.

la

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,
v.

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

2a

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.

3a

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,

v.
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,

4a

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

5a

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,
v.

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.

6a

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

7a

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-

Sa

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

9a

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,
v.

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
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.

If

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

IV

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.

V

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.

VI

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.

[X

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,

Vi

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,
v.

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,
v.

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,
v.

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,
v.

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1450%3A1. Public record. Not legal advice.