Petition — Bouma v. Larry C. Iverson, Inc.

82-1625

NUMBER A 863

SUPREME COURT OF THE

UNITED STATES OF

AMERICA

RALPH BOUMA and MRS. RALPH BOUMA

Petitioners

vs

LARRY C. IVERSON, INC.,

Respondent

FILED

MAR 9 1983

CLERK

Office -Supreme Court, U.S.

ALEXANDER L. STEVAS,

ON PETITION FOR WRIT OF

CERTIORARI FROM THE SUPREME

COURT OF THE STATE OF

MONTANA

PETITION FOR A WRIT OF CERTIORARI

RALPH BOUMA

Attorney Pro Se

P.O. Box 220

Choteau, Mt. 59422

Tel: (406) 466-5374

JOHN ALBRECHT

Attorney for Mrs. Ralph Bouma

P.O. Box 193

Choteau, Mt. 59422

Tel: (406) 466-2621

NUMBER A 863

SUPREME COURT OF THE

UNITED STATES OF

AMERICA

RALPH BOUMA and MRS. RALPH BOUMA

Petitioners ON PETITION FOR WRIT OF

vs CERTIORARI FROM THE SUPREME

LARRY C. IVERSON, INC., COURT OF THE STATE OF

MONTANA

Respondent

PETITION FOR A WRIT OF CERTIORARI

RALPH BOUMA JOHN ALBRECHT

Attorney Pro Se Attorney for Mrs. Ralph Bouma

P.O. Box 220 P.O. Box 193

Choteau, Mt. 59422 Choteau, Mt. 59422

Tel: (406) 466-5374 Tel: (406) 466-2621

1

QUESTIONS FOR REVIEW

The following federal questions are presented for review by this

petition for a writ of certiorari:

1. Did the Montana Courts violate due process of law when, among

other things, the Buyers under a land exchange contract were not allow-

ed to raise the defense of standing on the basis that the moving Stock-

holders had obtained their stock by a fraud as a defense to being bound

by a prior state court decision in a civil action where they were not

a party?

2. Did the Montana Courts violate due process of law when they

refused to allow Ratification and Estoppel to be raised as defenses

to an action to void a land exchange contract based upon agents acting

without authority although such defenses were provided by Montana

Statutes and case law?

3

3. Did the Trial Court violate due process of law when the

Trial Judge was not disqualified for bias and prejudice?

4. Did the Montana Supreme Court violate due process of law when

the members refused to disqualify themselves after being named in a

civil rights action brought by the Buyers and receiving knowledge that

they were named as potential defendants in an in camer# verified app-

lication for a grand jury?

5. Did the Montana Supreme Court violate due process and equal

protection of the laws then it required Ralph Bouma to be represented

by an attorney at oral argument.

6. Did the Montana Supreme Court violate due process of law when

it awarded $500.00 in damages on appeal without any notice or opportun-

>

ity to be heard.

PARTIES TO THE ACTION

Ralph Bouma and Mrs. Ralph Bouma, Petitioners

Larry C. Iverson, Inc., Respondent

5

TABLE OF CONTENTS

Questions for Review

Parties to the Action

Opinions Below

Jurisdiction

Constitutional Provisions

Statement of the Case

Argument

I. The Buyers were held bound by a prior court decision

which they were not parties. Their defense that the prior

court decision was obtained by a fraud on the court was

ignored by the Montana Courts. This violated due process of

law because the buyers were not parties to the prior court

action.

II. An unfbreseen change in Sta*e Court civil procedure

denies the Buyers right to due process of law.

III. The Montana frial Court denied the Buyers right to

due process of law by refusing to remove Judge Leonard

Langen from the case.

IV. The Montana Supreme Court denied the Buyers right to

due process of law by acting upon bias and prejudice.

7 PAGE

V. The Montana Supreme Court refused to allow Ralph 43

Bouma to orally argue his case, Pro Se. This violated

the due process and equal protection clauses of the United

States Constitution.

VI. The Buyers were ordered to pay damages on appeal 49

to the Corporation in the amount $500.00. This order

was made without notice or opportunity to be heard.

8

TABLE OF AUTHORITIES

Audit Services, Inc. vs. Francis Tindall Const.

(Mt., 1979) 600 P.2d 811

Blizzard vs. Frechette

(lst.Cir., 1979) 601 F.2d 1217

Bouie vs. Columbia (1964)

378 U.S. 347, 12 L.Ed. 2d 894, 84 S.Ct. 1697

Brinkerhoff - Farris Trust and Savings Co.

vs. Hill, (1930) 281 U.S. 672, 74 L.Ed. 1107

au &. CC. AS]

Campanella vs. Bouma (1967)

164 Mont. 217, 520 P.2d 1073

Carey vs. Piphus (1978)

435 U.S. 247, 55 L.Ed 2d 252, 98 S.Ct. 1042

Chandler vs. Fretag (1954)

348 U.S. 3, 99 L.Ed 2d 4 75 S.Ct.1

PAGE

32

35

31

31

44

30

43,47

Channel Flying Co. vs. Bernhardt (Alaska, 1969)

Son, FP. 26 370

Coe Vs. Armour Fertilizer Works (1915)

ae ees a3, 59 L. Ed 1027, 35 &.Ce 625

Country Club Tower Corp. vs. Tower Management

(D. Mont., 1967) 275 F. Supp. 468

Davis vs. Crouch (1876)

94 U.S. 514, 24 L. Ed 281

Ex parte Strickler (D. Ky., 1901)

109 F. 145

Farretta vs. California (1975)

oan ee, eee, 45 L. Ed. 24 $62. 95

Soe, ese5

Farmers State Bank of Conrad vs. Iverson (1973)

162 Mont. 130, 509 P. 2d 839

Garrison vs. Lacey

(10th Cir., 1966) 362 F. 2d 799

10

Gibson vs. Erie-Lackawanna Railroad Co.

(6th Cir., 1967) 378 F. 2d 476

Groppi vs. Leslie (1972)

404 U.S. 496, 30 L. Ed. 2d 632, 92 S.

Ct. 582

Hansberry vs. Lee (1940)

aii. U.S. 32, 85 L.Ed. 22

Hoteling vs. Hoteling (Cal., 1924)

224 P. 455, 56 A.L.R 734

Johnson vs. Mississippi (1971)

403 U.S. 212, 29 L. Ed. 2d 423, 91

S.Ct. 1778

Kramer vs. Scientific Control Corporation

(3 d Cir., 1976) 534 F. 2d 1085

Lynch vs. Public Service Commission of Nevada

(d. Nev., 1974) 376 F. Supp. 1033

Miller vs. McCarthy

(9th Cir., 1979) 607 F. 2d 854

Morgan vs. United States (1936)

298 U.S. 468, 80 L. Ed. 1289

Pink vs. A.A.A. Highway Express, Inc. (1941)

314 U.S. 201, 86 L. Ed. 152

Reynolds vs. State of Georgia

(Sth Cir., 1981) 640 F. 2d 640

Selway vs. Burns (Mt., 1967)

429 P. 2d 640

Smith vs. Smith (Ariz. 1977)

564 P.2d 1266

State vs. McElveen (Mt., 1979)

544 P. 2d 820

State vs. Swan (Mt., 1982)

649, P, 2d 1297

United States vs. Boe

(8th Cir., 1974) 491 F. 2d 970

32

30

39

43

43

49

12

United States vs. Womack

(5th Cir., 1972) 454 F. 2d 1337

Wood vs. Love County (1920)

253 U.S. 17, 64 L.Ed. 751

Worman Motor Co. vs. Hill (1939)

54 Ariz. 227, 94 P. 2d 865

CONSTITUTIONAL PROVISIONS

Section 1, Amendment 14,

United States Constitution

STATUTES

Title 28 U.S.C. Section 1257 (3)

Section 1-3-211, Montana Code Annotated

Section 3-1-1001, et.seq.

Montana Code Annotated

Section 28-2-304

Montana Code Annotated

Section 37-61-416

Montana Code Annotated

Section 46-11-37,

Montana Code Annotated

RULES

Rule 17.1(b) Revised Rules, 45

Supreme Court of the United States

Rule 17.1(c) Revised Rules, 27,40 ,42,

Supreme Court of the United States 46,47,50

Rule 34, Montana Rules of 26

Appellate Civil Procedure

ENCYCLOPEDIA

3 C.J.S. Agency 398

14

OPINIONS BELOW

The initial opinion of the Montana State District Court is un-

reported but attached as Appendix A. The decision of the Montana

Supreme Court on the first appeal is reported at 639 P.2d 47 and

attached as Apperdix B. The Order of the Montana State District

Court upon remand is unreported and attached as Appendix C. The

Order of the Montana Supreme Court dismissing the second appeal is

reported at 39 State Reporter 2125 and attached as Appendix D.

JURISDICTION

The Order the Montana Supreme Court was enterred on December 2,

1982 (Appendix D). A timely petition for Rehearing was denied on

December 16, 1982 (Appendix E). The jurisdiction of this Court is

invoked pursuant to Title 28 U.S.C. Section 1257 (3).

CONSTITUTIONAL PROViSIONS

Section 1, Amendment 14 (in part): "(N)or shall any State deprive

any person of life, liberty or property, without due process of law;

nor deny to any person with its jurisdiction the equal protection of

the law."

STATEMENT OF THE CASE

Raph Bouma and Mrs. Ralph Bouma (hereafter referred to collectively

16

as the 'Buyers") purchased a farm on a land exchange contract from Larry

C. Iverson, Inc., (hereafter referred to as the "Corporation"). Sub-

sequently, the Corporation became insolvent. Creditors of the Stock-

holders of the Corporation brought an action to foreclose on stock

shares pledged as security on loans, Farmers State Bank of Conrad vs.

Iverson (1973) 162 Mont. 130, 509 P.2d 839. Two years after the

land exchange contract the Creditors were declared Stockholders of the

Corporation in a civil action to appoint a Receiver and to force the

Receiver to bring and action to rescind the Buyers contract, United

Bank of Pueblo vs. Iverson and Farmers State Bank of Conrad vs.

Iverson consolidated cases numbered 8221/8073 decided April 7, 1971

(9th Judicial District, State of Montana, Pondera County). The

17

decision in that case is attached as Appendix F. The Court appointed

George Campanella as the Receiver (hereafter referred to as the

Receiver").

The Receivers brought this civil action against the Buyers to

void the land exchange contract. The basis of the action was that

the Buyers misrepresented the value of the property and the agents of

the Corporation acted outside of their authority. The Buyers alledged

numberous defenses. The defenses relevant to this appeal are: (1)

The Receiver lacked standing because he was appointed by a fraud on the

court in that (A) the allegation that the Bouma contract had an

inequitable price was unprovable; (B) Creditors obtained their stock

shares by fraud; (C) the defendants in 8221/8073 didnot have a meaning-

18

ful opportunity to be heard; (2) Ratification; (3) Estopppel.

These defenses were raised in the irial Court and in the Supreme

Court. The Standing of the Receiver was challenged in the Answer of

Ralph Bouma at Defenses 10 through 20; Answer of Mrs. Ralph Bouma at

Defenses 10 through 15; Appellant Boumas’ Brief and Answer to

Brief of Larry C. Iverson, Inc., Cross-Appellant at 66; Appellant

Boumas' Reply and Rebuttal brief to Answer and Reply brief of Larry

C. Iverson, Inc., Cross Appellant and Respondent at 25; Appellant's

Brief at vii. Specifically, fraud was argued as a basis for challeng-

ing the standing in the Answer of Ralph Bouma at Defense Number 11;

Answer of Mrs. Ralph Bouma at Defenses 10 through 15; Defendant

Boumas' Motion for Summary Judgment on Plaintiff's Complaint;

Appellant Boumas' Brief and Answer to Brief of Larry C. Iverson Inc.

19

Cross-Appellant, at 10-11 and 66. Appellant Boumas' Reply and Rebuttal

Brief to Answer and Reply Brief of Larry C. Iverson, Inc., Cross-

Appellant and Respondent; Appellants’ Brief P.vii. Lack of a meaningful

trial in the appointment of a Receiver was argued as a basis of chall-

enging the Receiver's standing in the Supplemental Answer at the 28th

Defense, Answer of Ralph Bouma at Defense 11; Appellant Boumas' Brief

and Answer to Brief of Larry C. Iverson, Inc., Cross-Appellant and

Respondent at 25. Ratification and Estoppel were raised as defenses

at Answer of Ralph Bouma at the 18th Defense, Appellant Boumas' Brief

and Answer to Brief o Larry C. Iverson, Inc., Cross-Appellant at 66;

Appellant Boumas Reply and Rebuttal Brief of Larry C. Iverson, Inc.,

Cross-Appellant and Respondent at 59-64; Appellant's Brief at 3-4;

Appellants’ Reply Brief at 5.

20

Before judgment, the Receiver asked the Court's permission to

abandon the lawsuit because, among other reasons, the contract value

was fair. Instead, the Trial Court substituted a "partially reconstituted

corporation" for the Receiver. The Corporation moved for summary judgment.

The Trial Court granted the Corporation's motion for summary judgment

It was done on the narrow grounds that the Corporation's agents acted

beyond their authority in selling the farm. The authority provided in

the by-laws was held invalid because the Corporation failed to publicly

file the by-laws. The Trial Court ordered: (1) the Buyers return the

Farm to the Corporation; (2) the Buyers account for rents and profits

for the 13 years of possession with interest at the legal rate; (3) The

Corporation credit the Buyers the amount it received in 1968 for the

land taken in exchange without regard to current market value, rents or

21

profits or costs of re-entering the cattle business. This resulted in

an unrefuted net loss to the Buyers of $1,400,000.00. The Trial Court

held that the Buyers defenses were moot (Appendix G, P24). Both

parties appealed.

Ralph Bouma went to the oral arguemnt in his case prepared to

argue his case,Pro Se. Only moments before the argument the was to

begin the Montana Supreme Court informed him that he would not be

allowed to argue his case. His wife's attorney would be required to

do so.

No record of Montana Supreme Court vroceedings are kert. Ob-

jection to this procedure was raised in the Petition for Rehearing--

Memorandum at 52; Appellant's Brief at 8; Appellants Reply Brief at

7 to 10. The two opinions of the Montana Supreme Court ignored this

22

objection (Appendix B; Appendix D).

The Montana Supreme Court affirmed the judgment in part and mod-

iffied it in part. It bound the Buyers by the findings of fact and

conclusions of law of Consolidated Cause Numbered 8221/8073 and did

not allow the Buyers to challenge that decision based upon fraud

and lack of a meaningful hearing. It held the land exchange contract

void on the theory that the agents acted without authority. It held

as a matter of law that Ratification and Estoppel could not be raised

as defenses. The Court modified the accounting and returned the case

to the trial court.

The Corporation moved the District Court for an order transfering

possession of the farm to the Receiver. Before this hearing Ralph

Bouma filed an Affidavit for Disqualification for Cause to disqualify

23

Judge Leonard Langen, the presiding judge. Chief Justice Haswell

assigned Mark Sullivan to hold a hearing. Judge Langen was given notice

but did not appear.

At the disqualification hearing Relph Bouma presented testimony in

support of the affidavit. Date Kiel, an attorney from Conrad, Montana,

testified that Judge R.D. McPhillips stated that McPhillips would

assign judge prejudiced against the Buyers. Judge McPhillips was the

original trial judge and the judge who assigned Judge Langen to the

case. Judge Langen summarily disposed of a number of the Buyer's de-

fenses. Judge Langen acted as if he were counsel for the Corporation

at times. Finally, Judge Sullivan refused to allow Keil to testify

about Judge McPhillips's prejudice.

Henry T. Murray, an appraiser for 35 years, testified at the hear-

24

ing. He had been re-empoyed by the Receiver. He said that he observed

Judge Langen in this case. Murray said that he had never seen a judge

more prejudiced.

In addition, the Buyers agrued that Langen had prejudiced members

of the Montana Supreme Court. He did so by filing an affidavit of Ralph

Bouma. The Affidavit was presented by Bouma for the purpose of an in

camera application for initiating a grand jury investigation (Docket

Number 474). The affidavit alleged that five justices of the Montana

Supreme Court committed certain crimes. They Buyers asked that the

application and affidavit not be made public (Memorandum in Lieu of

Transcript of Hearing Relating to Application for Order Summoning a

Grand Jury Held September 25, 1979, . This Affidavit

was later argued by the Corporation as a reason to affirm Judge Langen's

summary judgment.

Judge Sullivan refused to remove Judge Langen as the presiding

judge (Appendix H). The Hearing on the Corporation's motion for posses-

ion of the farm was held. The Court ordered the farm transfered and

modified the accounting (Appendix C). From the order, the Buyers

appealed.

On Appeal, Ralph Bouma asked all seven justices who participated

in the first decision to disqualify themselves (Motion for Disqualification

for Cause, Appendix I; Affidavit for Disqualification for Cause, Appendix

J). This motion was denied (Order, Appendix K).

Briefs were filed by both parties. The Montana Supreme Court dis-

missed the appeal. It awarded $500.00 in damages on appeal to the

Corporation. The Buyers had no notice or oppurtunity to be heard on

26

the issue of damages on appeal. This is because the Corporation did

not ask for such relief. Nor did the Montana Supreme Court give notice

to the Buyers that it was considering such relief. On Rehearing, the

Buyers asked the Court to reconsider this issuealong with all the other

issues (Petition for Rehearing Pursuant to Rule 34, Montana Rules of

Appellate Civil Procedure, Appendix L). The Petition for a Rehearing

was denied without opinion(Appendix E).

ARGUMENT

I. THE BUYERS WERE HELD BOUND BY A PRIOR COURT DECISION TO WHICH

THEY WERE NOT PARTIES. THEIR DEFENSE THAT THE PRIOR COURT DECISION WAS

OBTAINED BY A FRAUD ON THE COURT WAS IGNORED BY THE MONTANA COURTS. THIS

VIOLTATED DUE PROCESS OF LAW BECAUSE THE BUYERS WERE NOT PARTIES TO THE

PRIOR COURT ACTION.

A person not a party to a prior court action may allege Fraud as

a defense to being bound by the prior court action, Coe vs. Armour

27

Fertilizer Works (1915) 237 U.S. 413, 59 L. Ed 1027, 35 S. Ct. 625;

Hansberry vs. Lee (1940) 311 U.S. 32, 85 L. Ed. 22; Pink vs. A.A.A.

Highway Express (1941) 314 U.S. 201, 86 L.Ed 152. The refusal by a

state court to allow the person to defend on the grounds violates

due process, Coe. Further, a state court which refuses to allow fraud

to be raised decides a federal question in conflict with the above

decisions, Rule 17.1(c), Revised Rules, Supreme Court of the United

States.

The present action was initiated by a Receiver. The Receiver was

appointed in a civil action (Consolidated Cause Numbered 8221/8073).

Further, the Court concluded that United Bank of Pueblo and Farmers

State Bank of Conrad were stockholders in Iverson, Inc. The Buyers

were not parties to that action.

The Receiver brought this action against the Buyers to void the

contract for deed. , The Buyers, as a defense, alleged fraud on the

Court in 8221/8073. Specifically, the Buyers challenged the appointment

of the Receiver. The basis of the challenge was theat the Plaintiffs

in 8221/8073. Specifically, the Buyers challenged the appointment of

the Receiver. The basis of the challenge was that the Plaintiffs in

8221/8073 who petitioned for the Receiver's appoinment obtained their

stock by fraud on the court. The Receiver alleged inadequate con-

sideration in the Buyers land exchange contract as the primary equit-

able basis for recision. The Buyers alleged that the Receiver joined

in the fraud of the Plaintiffs in 8221/8073 because there was adequate

consideration. As proof, the Buyers relied on the Receiver's own state-

29

ment that an inequitable disparity in the purchase price was unprovable

(Receiver's Statement to the Court of December 22, 1977, Appendix M).

Also, the decision in 8221/8073 found the Plaintiffs to be

Stockholders. The Buyers were bound by this decision, also. They

claimed this decision was made by a fraud on the Court. This was be-

cause the Defendants in 8221/8073 case were given only 2% hours to

present their case. This was shown in the Deposition of Judge Robert

S. Keller, (Appendix N, P.271,272, 290)

KELLER: Mr. Treadaway, how long do you think it will take for

presentation of your defense?

TREADAWAY: Well, the Plaintiff has taken 2% weeks to present

their case and I anticipate that it will take us about the same

length of time to put on our defense.

KELLER: Mr. Treadaway, you may be sitting in this for the next

2% weeks, but I certainly am not going to be here. In fact,

I have checked out of the motel and I will be on my way to

30

Kalispell at 5 o'clock this afternoon. (This Discussion took

place at about 2:30 P.M.)

The defendants were not allowed to present their full defense.

If a meaningful defense was allowed,the Creditors would not have been

declared Stockholders.

Fraud upon the court is to deny a party his day in court, Selway

vs. Burns (Mont., 1967) 429 P.2d 640. In this case, the Defendants

who stood in the Buyers place had an inadequate opportunity to present

their case, Carey vs. Piphus (1978) 435 U.S. 247, 55 L.Ed. 2d 252, 98

S. Ct. 1042; Morgan vs. United States (1936) 298 U.S. 468, 80 L.Ed 1289;

Lynch vs. Public Service Commission of Nevada (D. Nev. 1974) 376 F. Supp.

1033. The refusal of the Montana Supreme Court to consider this defense

of fraud upon the Court violated the above United State Supreme Court

decisions on due process. It makes the Montara Supreme Court's

31

descision reviewable on a writ of certiorari, Rule 17.l(c) Re-

vised Rules, Supreme Court of the United States.

In summary, fraud was alleged as a defense to the Buyers being

bound by a prior state cour decision. It was disregarded by the Montana

Court. Fraud may be raised as a defense to being bound by a prior court

decision. To refuse to do so violated United States Supreme Court

decisions on due process.

II. AN UNFORESEEN CHANGE IN STATE COURT CIVIL PROCEDURE DENIES

THE BUYERS RIGHT TO DUE PROCESS OF LAW.

An unforeseen change in state civil procedure which denies a party

the right to be heard denies due process of law. Brinkerhoff-Farris

Trust and Savings Co. vs. Hill (1930) 281 U.S. 672, 74 .Ed. 1107,

50 S.Ct. 451; Bouie vs. Columbia (1964) 378 U.S. 347, 12 L.ED 2d

894, 84 S.Ct 1967; Ward vs. Love County (1920) 253 U.S. 17, 64 L.Ed

32

751; Robinson vs. Ariyoshi (D. Hawaii, 1977) 441 F. Supp. 559. Such

a denial of due process is reviewable by writ of certiorari, Reynolds

vs. State of Georgia (5th Cir., 1981) 640 F. 2d 702; Country Club

Tower Corp. vs. Tower Management (D. Mont., 1967) 275 F. Supp. 468.

In this case, the Buyers raised Ratification and Estoppel as

defenses. In 1979, the Montana Supreme Court recognized Ratification

as a defense to action brought to void unauthorized acts of an agent.

Audit Services, Inc., vs. Francis Tindall Const. (Mont. 1979) 600 P.2d

811, 813, also Section 28-2-304, Montana Code Annotated. In this case,

the Montana Supreme Court reversed itself without explanation. It

held that contracts enterred into without authority may not be rat-

ified, Iverson vs. Bouma (Mt. 1982) 639 P.2d 49, 60.

In Justice Daly's opinion, Hoteling vs. Hoteling (Cal., 1924)

224 P. 455, 56 A.L.R. 734 was cited in support of the rule that agents

33

may not act beyond their authority. Yet, in Hoteling the California

Supreme Court allowed ratification to be raised as a defense, 224

P. at 459. It ruled that the facts did not prove the defense of

ratification.

Also, the Court cited Worman Motor Co. vs. Hill (1939) 54 Ariz.

227, 94 P. 2d 865 for the rule that persons without authority lack

capacity to contract. In Worman Motor, a minor brought an action to

declare a contract void which was signed when the Plaintiff was

under the age of majoirty. The Arizona Supreme Court says that such

a contract may be valid if the minor keeps what he purchased essen-

tially ratifying the contract.

Further, Estoppel is a defense to an action based upon agents

acting without authority, 3 C.J.S. Agency Section 398. Yet, the

34

Montana Supreme Court siad that Estoppel may not be raised in such an

action as a matter of law.

Further, the basis of voiding the land exchange contract was that

the corporate by-laws had not been filed by the Corporation. This

was a failure of the Corporation to act; not the Buyers. Montana

law states, "'No one should suffer for the acts of anohter," Section

1-3-211, M.C.A.

The elimination of Ratification and Estoppel as defenses is an

unforeseen change in state procedure. It violated the due process

clause for the Montana Supreme Court to do so. Whether the elimin-

ation of two defenses in this violates due process is an important

federal question, Rule 17.1, Revised Rules, Supreme Court of the

United States. The United States Supreme Court should grant cert-

iorari.

III. THE MONTANA TRIAL COURT DENIED THE BUYERS' RIGHT TO DUE

PROCESS OF LAW BY REFUSING TO REMOVE JUDGE LEONARD LANGEN FROM

FROM THE CASE.

The right to due process of law is guaranteed under the 14th

Amdendment to the United States Constitution. Included in the right

to due process is the right to a fair and impartial tribunal, Johnson

vs. Mississippi (1971) 403 U.S. 212, 29 L. Ed 2d 423, 91 S.Ct. 1778,

Channel Flying Co. vs. Bernhardt (Alaska, 1969) 451 P.2d 570. The

facts in this case show that the Buyers were denied that right.

Prior judicial involvement may provide a factual basis for doubt-

ing a judge's impartiality, Blizard vs. Frechette (lst Cir., 1979)601

F, 2d 1217, United States vs. Womack , (5th Cir., 1972) 454 F.2d 1337

36

24 A.L.R. Fed. 276. In Womack, a Federal District Judge's remarks

and actions during judicial proceedings showed personal bias. The

Defendant filed an affidavit of disqualification which was denied.

The Court of Appeals reversed the decision and ordered a new trial.

In this case, Judge Langen's bias was shown. First, he was

assigned the case by Judge R.D. McPhillips. The uncontroverted evi-

dence shows that Judge McPhillips was in a position to manipulate the

case by the appointment of a presiding judge. McPhillips wanted the

presiding judge to associate the Buyers with John C. Treadaway and

J. Milton Krull.

Second, the uncontroverted evidence shows that Judge Langen

summarily disposed of a number of the Buyers defenses. Third, it

37

shows that Judge Langen appeared prejudiced against the buyers.

Fourth, Ralph Bouma presented in camera an affidavit. That

affidavit was for the sole purpose of initiating a crimina] invest-

igation. It accused five Justices of the Montana Supreme Court of

crimes. Judge Langen said that he had no jurisdiction to hear the

application for the impaneling of a grand jury. His reasoning was

that he was only assigned to a civil case; the affidavit involved

a criminal matter. Bouma argued that the affidavit should not be

included in this civil action file so that the Supreme Court would not

be prejudiced Yet, Judge Langen ordered it filed in

the civil action file despite the fact that such proceedings are

secret, Section 46-11-317, Montana Code Annotated.

38

Fifth, Judge Langen's summary substitution of a "partially

reconstituted Corporation" for the Receiver shows his bias against the

Buyers. The Receiver petitioned to abandon this civil action. Then,

Judge Langen created a new legal entity, a "Partially reconstituted

Corporation" to take its place. Prior to this case, there was no

such entity in Montana Law.

Sixth, if a judge acts as he is counsel for one party, then the

other party's right to due process was violated, Gibson’v. Erie

Lackawanna Railroad Co. (6th Cir., 1967) 378 F. 2d 476. Judge

Langen's remarks were more consistent with those of an attorney for

the Corporation than as presiding judge.

Seventh, if a judge is a defendant in a civil rights action broughc

by a party to a law suit, then that judge may not sit on the case,

39

Johnson. In this case, Judge Langen was a defendant in a civil

right action brought by the Buyers. He cannot sit as the Judge.

The Corporation cited Smith vs. Smith (Ariz., 1977) 564, P.2d 1266

for the rule that if a party brings the action against the judge

solely to disqualify the judge, then the party may not disqualify the

judge. In this case, there was no connection between the Buyers civil

rights action and the disqualification proceedings. The Civil Rights

Action was for injuctive relief against the judgment entered by

Judge Langen on the basis that Judge Langen had violated the Buyers

Civil Rights.

Eighth, Judge Langen's bias continued to show in the proceeding

following the disqualification hearing. On January 19, 1982, the

40

Corporation filed a motion and notice of hearing to deliver possession

of the farm to the Receiver. The hearing was set for February 26,

1982. Immediately prior to that hearing and without notice to the

Buyers the Court substituted the Corporation for the Receiver to get

possession of the farm.

The Montana Trial Court violated the Buyers right to due process

of law when it denied the Buyers motion to diqualify Judge Langen.

This is an important federal question which has not been decided,

Rule 17.1(c), Revised Rules, Supreme Court of the United States. The

United States Supreme Court should grant a writ of Certiorari on

this basis.

IV. THE MONTANA SUPREME COURT DENIED THE BUYERS RIGHT TO DUE

PROCESS OF LAW BY ACTING UPON BIAS AND PREJUDICE.

In Johnson, the United States Supreme Court held that a State