Petition — Weston v. Bachman

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

No.

OE FE i ace vc eww ceccecacs Petitioner

VS.

SEVEN JUSTICES OF THE

SUPREME CourT OF ARKANSAS ETAL .......... Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE 8TH CIRCUIT COURT OF APPEALS

JosePH H. WESTON

P.O. Box 84

Cave City, ARKANSAS 72521

Pro se

GENERAL PRESS SERVICES

QUESTIONS FOR REVIEW

On 44th Arkaisas Amendment

la. Is the $4th Amendment to the Constitution of the

State of Arkansas unconstitutional when measured by the

Constitution of the United States?

AMENDMENT No. 44 (Interposition)

Section 1. Fromand after the Adoption of this Amend-

ment, the General Assembly of the State of Arkansas shall take

appropriate action and pass laws opposing in every Consti-

tutional manner the un-Constitutional desegregation deci-

sions of May 17, 1954 and May 31, 1955 of the United States

Supreme Court, including interposing the sovereignty of the

State of Arkansas to the end of nullification of these and

all deliberate, palpable and dangerous invasions of or

encroachments upon rights and powers not delegated to the

United States nor prohibited to the States by the Constitution

of the United States and Amendments thereto, and those rights

and powers reserved in the States and to the People thereof by

any department, commission, officer, or employee of such

department or commission of the Government of the United

States, or of any government of any Nation or Federation of

Nations acting upon the apparent authority granted them by

or assumed by them from the Government of the United States.

Said opposition shall continue steadfast until such time as

such un-Constitutional invasions or encroachments shall have

abated or shall have been rectified, or the same shall be

transformed into an Amendment to the Constitution of the

United States and adopted by action of three-fourths of the

States as provided therein.

2

Sec. 2. The General Assembly shall enact laws to insure

the administration and enforcement of the spirit and letter of

this Amendment; and shall appropriate adequate funds to

effect the same, including a proportionate share of such

expenses as may be necessary for the maintenance of regional

committees created among the States for the preservation of

rights belonging to the states and the people thereof.

Sec. 3. The General Assembly shall enact such laws

under the Police Powers reserved to the States as may be

necessary to regulate health, morals, education, marriage,

good order and to insure the domesuc tranquility of the

citizens of the State of Arkansas.

Sec. 4. No public official or employee of the State of

Arkansas or of any political subdivision thereof shall have

immunity from arrest, prosecution and trial for the violauon

of such penal laws as the General Assembly shall provide for

the willful failure and refusal to carry out the clear mandates

of this Amendment; and in addition to the penalties provided

for by the General Assembly, shall automatically forfeit his or

her office.

Sec. 5. All parts of the Constitution of the State of

Arkansas in conflict with this Amendment be, and the same

are, hereby repealed.

Proposed by Initiative Petition filed in the office of the Secretary

of State on the 3rd day of July, 1956. Voted on at the General Election

November 6, 1956. Returns: For, 185,374; against, 146,064.

c. Has the State of Arkansas withdrawn or seceded from

the jurisdiction of the United States Supreme Court? And the

laws of Congress?

3

d. Does the Supreme Court have the power to protect its

own jurisdiction from this enactment that has been in effect for

27 years and has injured thousands of citizens and residents of

Arkansas, including this Petitioner, by refusing to recognize

the existence of rights of national citizenship or to protect them

in the state courts?

e. Does Sec. 4 of the 44th Arkansas Amendmentestablish

and maintain an official state policy of Racism by com-

manding its officials — on pain of losing their jobs — to

nullify all Acts of Congress that guarantee Civil Rights to all

people?

f. Does Sec. 5 of the 44th Arkansas Amendment repeal all

sections of the State Constitution that offer protection of

national citizenship, including freedom of the press, freedom

of religion, freedom of speech?

2a. Hasa majority of the Supreme Court of Arkansas, for

27 years under authority of the 44th Amendment, maintained

an enemy alien government within the borders of the State of

Arkansas?

b. Was enactment of the 44th Amendment tantamount

to the Declaration of War upon the United States, ina manner

similar to the Nullification Acts of 1832, and subsequent

nullification acts, that led to the Civil War?

3a. Inasmuch as the 44th Amendment commands all

Arkansas officials to conspire and act to deny the rights of

federal citizenship to Editor Weston, and to all other people in

Arkansas; and to practice an official policy of Racism, does it

automatically provide in writing, in documentary form of the

highest power of the State of Arkansas, a concession that:

b. The Plaintiff in this cause has shown a prima facie

case of Invidious Animus Commanded by the State in all parts

of this cause?

c. And has shown a prima facie case that the State of

Arkansas has Commanded, in violation of 42 USC 1985 (2) and

(3), and of 42 USC 1986, consummated conspiracies through-

out this cause?

d. And that Weston has established a prima facie case of

action, under Color of Law by the State of Arkansas, itself,

and all its officials and others shown herein to be acting in

concert with them in violation of 42 USC 1983?

QUESTIONS CONCERNING

STATUTE OF LIMITATIONS

1. Did Judge Overton err in his September 30, 198]

Order, in agreement and in conspiracy with defendants,that

Plaintiff Weston had failed to comply with the Arkansas 3

year limit of limitations statute?

2. In his November 10, 1980 Order, Judge Overton, in

conformity with Local Rule No. 8 of District Court, gave

Plaintiff and indefinite time in which to file his complaint,

after the complaint he had filed October 23, 1980 had been

rejected.

3. When Weston returned to court July 17, 1981 in good

faith, with his Amended Complaint and the required money

for filing fee, Judge Overton accepted both the money, and the

Amended Complaint which was properly filed that date.

a

Did he err by failing to comply with the Appellate

Court's opinion in the July 7, 1982 Remand?

Did he err by entering such an obfuscating Order as

that of November 1, 1982, and was it done for the purpose of

hindering, blocking, or interfering with the true course of

justice in a federal court? (See Page A6 of Appendix)

And did Judge Overton refuse to accept the responsi-

bility of a federal court to promote the cause of justice by

refusing to properly resort to use of a federal precedent?

Johnson v. Railway Express Agency, Inc. (1975) 421 U.S.

454, 44 L. Ed. 2d 295, 95 §. Cr. 1716.

‘Considerations of state law may be displaced where their

application would be inconsistent with the federal policy

underlying the cause of action under consideration.”

Edgerton v. Puckett (1975, WD Va.) 391 F. Suppl. 463.

.. federal courts are not to apply state limitation

Staiutes in 1983 actions when they unreasonably restrict what

was intended by Congress to be a broad federal remedy or

amount to unconstitutional burdens on the assertion of federal

Statutory rights.”’

QUESTIONS FOR REVIEW ON

DISTRICT COURT ORDER OF SEPT. 30, 1981

1. Didthe U.S. District Court for Eastern Arkansas (The

Honorable William R. Overton) err by denying Plaintiff

6

Joseph H. Weston an Impartial Tribunal and Due Process of

Law in the following actions and inactions in his September

30, 1981 Order?

a. Failure to hold a hearing?

b. Failure to hold a pre-trial conference of attorneys?

c. Failure to inquire if any out-of-court agreements had

been made?

d. Failure toconvoke a 3-judge court; and failure to seek

any other proper Federal judicial help on Plaintiff's challenge

of the constitutionality of the 44th Amendment to the

Constitution of the State of Arkansas?

e. By totally ignoring the subject of the 44th Amend-

ment?

“There is a federal constitutional right to be tried only by

an impartial tribunal and this right can be protected in a Sec.

1983 action.”

Tumey v. Ohio (1927) U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437,

5 Ohio L. Abs. 159, 5 Ohio L. Ab. 185, 50 ALR 1243.

2a. Did Judge Overton err in holding that Weston had

no constitutional rights in which he was injured in actions

taken by state defendants and others cooperating with them in

proceedings of the Independence County Grand Jury that

ended its session on November 19, 1977?

b. And in holdiug that Weston’s protected consti-

7

tutional rights had not been violated by the majority opinion

of the State Supreme Court on February 12, 19797

c. And by presuming that he had exonerated officials of

the Mormon Church who had participated in the October-

November conspiracy of the Independence County Grand Jury

reign of terror, by his unsupported proclamation that they

“were not even acting under color of law’?

3. Inasmuch as this case was filed under authority of 42

USC 1983, 1985 (2) and (3) and 1986, did Judge Overton violate

the doctrine of the Supreme Court as shown in Haines v.

Kerner by dismissing this case in his September 30, 1981 Order?

The Supreme Court has indicated that a motion

to dismiss in a 1983 action is not to be granted unless itappears

beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief."’

Haines Vv. Kerner (1972) 404 U.S. 519, 30 L. Ed. 2d 652, 92S.

Ct. 594, 596, rehearing denied, 405 U.S. 948, 30 L. Ed. 819, 92S.

Ct. 963.

4a. Did Judge Overton err by holding that Supreme

Court Justices Byrd, Smith, Holt, Hickman, Matthews,

Wootton; State Circuit Court Judges Dudley, Ponder and

Taylor; and Prosecutor Leroy Blankenship; and the State of

Arkansas had absolute immunity?

b. In view of the fact that Weston also had filed this suit un-

der authority of 1985(2), (3) and 1986, all conspiratorial actions

of the judges, prosecutor, and state of Arkansas are deemed to

be criminal violations of 1985(2) and 1985(3).

8

c. Andinasmuchas the state in open court has conceded

the guilt of all the parties named in sub-paragraph (a) above;

d. And inasmuch as the State of Arkansas had admitted

in pleadings that lay before Judge Overton that the actions of

all judges, and of Prosecutor Blankenship were taken as

official actions of the State of Arkansas;

e. Are Judges Byrd, Smith, Holt, Hickman, Dudley,

Matthews, Wootton, Ponder and Taylor and the State of

Arkansas, and Independence County, Arkansas, liable to civil

suit for torts by Weston and possible direct prosecution for

crimes committed in violation of 1985(2), 1985(3), and 1986:

f. When deemed guilty of a crime under 1985(2),1985(3),

and 1986, public officials and the State of Arkansas have

absolutely no immunity whatever from criminal or civil court

actions for damages.

g. The Supreme Court has held that judges and other

officials are notimmune when deemed to be guilty of criminal

acuon.

“whatever may be the case with respect to civil liability

generally, or civil liability for wilful corruption, we have never

held that the performance of the duties of judicial, legislative,

or executive officers requires or contemplates the immuni-

zation of otherwise criminal deprivations of constitutional

rights. On the contrary, the judicially fashioned doctrine of

official immunity does not reach so far as to immunize

criminal conduct proscribed by an Act of Congress.”

O’Sheav. Littleton (1974) 414 U.S. 488, 38 L. Ed. 2d 674, 91

S. Ct. 669.

9

5a. Did Judge Overton fail to comprehend the serious-

ness of the showing and proving of conspiracies to injure

Plaintiff Weston and to block, hinder, and negate his efforts to

seek protection and vindication in the courts of Arkansas?

b. Inits April 4, 1983 decision in Kush, et al vs Rutledge,

The United States Supreme Court re-stated the purpose and

scope of 42 USC 1985(2) and 1985(3), and placed emphasis

upon their origin as part of the Civil Rights Act of April 9,

1866, entitled ‘‘An Act to protect all persons in the United

States in their civil rights, and to furnish the means of their

vindication.”

c. Pertinent parts of that decision follow .. . ‘‘or shall

conspire together for the purpose of in any manner impeding,

hindering, obstructing, or defeating the due course of justice in

any State or Territory, with intent to deny to any citizen of the

United States the due and equal protection of the laws, or to

injure any person for lawfully enforcing the right of any

person or class of persons to the equal protection of the

”

a.

d. The penalties for such conspiracy also were re-

emphasized in the Kush et al v. Rutledge case as follows:

‘. . . each and every person so offending shall be deemed

guilty of a high crime, and upon conviction thereof in any

district or circuit court of the United States or district or

supreme court of any Territory of the United States having

jurisdiction of similar offenses, shall be punished by a fine not

less than five hundred nor more than five thousand dollars, or

by imprisonment, with or without hard labor, as the court may

determine, for a period of not less than six months, nor more

10

than six years, as the court may determine, or by both such fine

and imprisonmentas the court shall determine. And if any one

or more persons engaged in any such conspiracy shall do, or

cause to be done, any act in furtherance of the object of such

conspiracy, whereby any person shall be injured in his person

or property, or deprived of having and exercising any right or

privilege of citizenship of the United Sta’es, the person so

injured or deprived of such rights and privileges may have and

maintain an action for the recovery of damages occasioned by

such injury or deprivation of rights and privileges against any

one or more of the persons engaged in such conspiracy such

action to be prosecuted in the proper district or circuit court of

the United States, with, and subject to the same rights of

appeal, review upon error, and other remedies provided in like

cases in such courts under the provisions of the Act of April 9,

1866, entitled ‘‘An Act to protect all persons in the United

States in their civil rights, and to furnish the means for their

vindication.’”’

6a. Did Judge Overton, in the September 30, 1981 Order,

err by holding that inasmuch as the State of Arkansas had not

given permission for the filing of suit the State was immune,

under authority of the 11th Amendment, to such suit?

b. Plaintiff had clearly shown, as early as the Amended

Complaint, (Court ran of Original Files entry of 7/17/81) that

42 USC 1896 applies at this point.

“Since the constitutional bases for 1896 are found in the

implementing clauses of the Thirteenth, Fourteenth, and

Fifteenth Amendments, states are not to be immunized from

responsibility in suits brought under this section.

1]

c. Sec. 282, Antieau, Federal Civil Rights Act, 1980,

Edition, Citing: Cf. Fitzpatrick v. Bitzer, (1976) 427 U.S. 445, 49

L. Ed. 2d 614, 96 S. Ct. 2666.

7a. Did Judge Overton on September 30, 1981 err in

holding that “Defendants Bachman, Brokaw, Hall, Hill,

Harkey, Mellor, McChesney, Wilkinson, and the Church of

Jesus Christ of Latter-Day Saints were not even acting under

color of State Law?"’

‘Private individuals are subject to 1983 actions when they

are wilful participants in joint activity with the State or its

servants.’

Stambler v. Dillon (1969 S.D. N.Y.) 302 F. Supp. 1250;

Stypmann v. San Francisco (1977 CA 9 Cal.) 557 F. 2d 1338:

‘.. .when there is a concert of action between state

officials and private individuals."’

Canty v. Richmond, Virginia Police Dept. (1974, ED Va.)

383 F. Supp. 1396, affirmed without opinion (CA 4 Va.) 526 F.

2d 587, cert. denied 423 U.S. 1062, 46 L. Ed. 2d 654, 96S. Ct. 802.

8a. Did Judge Overton err by granting al/ the motions to

dismiss of all defendants?

b. Common sense and the good old ‘‘Law of Averages”’

are against the district court on this one.

c. Surely, the learned district judge and the equally

learned defendants: State Supreme Court Justices Byrd, Smith,

Holt, Hickman, Dudley, Matthews, Wootton, and State

12

Circuit Court Judges Ponder and Taylor, and all other

defendants, must have worked together in conspiracy and

concert, as defined by 1985(2), 1985(3) to defy the jurisdiction of

the U.S. Supreme Court, to put down that Court and the Civil

Rights laws of Congress, in order to punish Plaintiff Weston

for having dared to assert his constitutional rights and the

constitutional rights of all other persons to the protection

afforded by national citizenship in the United States?

An examination of the pleadings of the defendants in both

district and appellate courts shows a clear and consistent

pattern of conformity to the 44th Arkansas Constitutional

Amendment;

And an examination of Judge Overton's Order clearly

shows that he upheld and affirmed the attacks of the

defendants upon the jurisdiction ofthe U.S. Supreme Court,

and upon the peace and safety of all citizens and residents of the

United States, as well.

And the September 30, 1981 Order of Judge Overton as

judge of the U.S. District Court for Eastern Arkansas Is an overt

act, as oneof the conspirators, that confirms their conspiracy

and deems them all to be guilty of violation of Petitioner

Joseph H. Weston’s rights of national citizenship, as shown in

his allegations and pleadings in this cause under authority of

42 USC 1983, 1985(2), 1985(3), and 1986; with jurisdiction

bestowed by 28 USC 1331, 1332, 1343 and of further

jurisdiction, as explained in Petitioner’s section on Jjuris-

diction in this petition.

It should be noted that all defendants herein knew of this

conspiracy and took a fiendish delight in putting down Editor

13

Weston. If any of the state officials had publicly spoken out

against it they could have prevented consummation of the

conspiracy, or at least the consummation of their own part of

It.

Therefore, the State of Arkansas is deemed fully guilty of

violation of 1983, 1985(2), 1985(3) and 1986.

QUESTIONS CONCERNING GRAND JURY

AND SUPREME COURT

Are the Mormon Church defendants Mellor, McChesney,

Cobb, and Wilkinson deemed guilty of a consummated

conspiracy under 42 USC 1985(2), and possibly also under

1985(3), with Prosecutor Blankenship and Judge Ponder to

time their activities in excommunication of Weston from the

Mormon Church to coincide with the November 1977 session

of the Independence County Grand Jury, for the purpose of

impeaching Weston in daily sessions of the Grand Jury, which

concluded November 19, 1977?

The Grand Jury on that date delivered a fraudulent ‘“True

Bill’ that was arrived at by use of a suborned witness, Charles

Patterson, who was ordered by Judge Ponder to testify against

Weston. Patterson, a former State Liquor Control Board

officer, was himself already under 23 counts of indictment

from the same Grand Jury.

Judge Ponder was himself without proper jurisdiction by

reason of not having acted upon a proper Motion for Recusal

that had been before him for several weeks. Did Judge Rob-

ert Dudley, who properly held jurisdiction under appointment

of the state’s Chief Justice, consummate a conspiracy on

14

November 19, 1977, in conspiracy with Ponder, abandoning

his responsibility to Weston, had vacated his jurisdiction in the

case, on November 19, and had arranged for Ponder to

unlawfully resume jurisdiction for the purpose of injury to

Weston. (See Page 9 et sequitur in Amended Complaint,

Courtran 7/17/81)

Questions: Did Prosecutor Blankenship, Judge Dudley,

Forewoman Veda Gordon of the Grand Jury itself, the

Independence County Quorum Court, whose members had

willingly and knowingly voted extra secret funds to pay

expenses of the prosecutor; Mormon Church officials Mellor,

McChesney, Cobb and Wilkinson; all conspire together under

42 USC 1985(2) and 1985(3) to hinder, obstruct, block, and

divert the due course of justice in a state court of Arkansas for

the purpose and intent of injury to Weston in body and

property?

(Weston was immediately re-arrested at his home in Sharp

County, thrown back into jail, in Independence County, and

bonded for $4,000 cash bond, which he couldn't pay, and, it

being a weekend, it took three days to make arrangements for

payment of a $400.00 cash premium that was taken from his

wife’s grocery money, in hardship.

Did the act of Judge Dudley constitute a neglect of judicial

duty? And malicious manipulation of Due Process? And denial

of an impartial tribunal? And, of course, a criminal act under

1985(2) and (3) of the Civil Rights Law of April 9, 1866?

Did the actions of Blankenship, Forewoman Gordon, and

Judge Ponder in suborning the Grand Jury by ordering

15

Charles Patterson, over the objections of his attorney, the

Honorable Steve Engstrom, who was present in court, to testify

against Weston — constitute a consummated conspiracy under

1985(2) and also 1985(3), to block, interfere with and divert the

true course of justice in the State of Arkansas for the purpose of

injuring the body and property of Editor Joseph H. Weston,

who had, for five years consistently used his weekly newspaper,

to enforce or attempt to enforce, the civil rights of all people in

Arkansas?

And did Lawyer John Norman Harkey participate in this

conspiracy by filing two lawsuits against Weston for damages

alleging libel, during the actual deliberations of the Grand

Jury, for the obvious purpose of influencing and suborning

the deliberations of the Grand Jury?

And by sending threatening letters and making threat-

ening telephone calls to Weston’s printers and newspaper

vendors in many parts of Arkansas, also participate in the

Grand Jury conspiracy that resulted in the permanent

suppression of the Sharp Citizen, and the denial of Weston's

rights of Freedom of the Press, Freedom of Speech, Freedom

from False Arrest and False Imprisonment, Freedom from

Excessive Bond; the right to an Impartial Tribunal, the right

of any citizen to Due Process of Law, and many other

associated civil rights?

And were Harkey’s clients in these fraudulent lawsuits,

Ann Bachman; Nancy Brokaw; Jean Hill; and Jackie Hall;

fellow conspirators with Harkey and the Grand Jury in their

1985(2) and 1985(3) actions?

Were the Arkansas officials of the Church of Jesus Christ

of Latter Day Saints Mellor, McChesney, Cobb, and Wil-

16

kinson, all fellow conspirators in the Grand Jury conspiracy,

and was their part of the conspiracy consummated with their

excommunication of Weston on June 12, 1978, a few days

before Weston was to go on criminal trial for five counts of

perjury, which, if he were convicted, could have sent him to

notorious Cummins farm for 50 years and have stripped his

family of their home and all possessions with a $50,000.00 fine?

Did the following members of the Arkansas Supreme

Court: Justices Smith, Holt, Hickman, Byrd, Special Chief

Justice Matthews, and Special Associate Justice Wootton, after

a full presentation of all facts, AFFIRM the entire Independence

Grand Jury tragedy, in their delivery of their majority opinion

of February 12, 1979?

And did this make them full participants in the Grand

Jury conspiracy, consummated many Umes over, to suppress

Editor Weston’'s newspaper, the Sharp Citizen?

And did the handing down of the decision of Special Chief

Justice Stephen A. Matthews on Feb. 12, 1979, constitute the

consummation of their own conspiracy among Justices Smith,

Holt, Hickman, Byrd, Matthews and Wootton — to abrogate

the lawful order of Justice George Howard, Jr., delivered from

the bench on May 21, 1978, which had affirmed the official

opinion of the then Attorney General of Arkansas, Bill

Clinton, that “Judge Ponder might well have erred” — and to

substitute, in its place, the absurd opinion of Chief Justice

Matthews?

And were the Matthews decision, and many other actions

in this cause, taken in conformity with the 44th Amendment to

the Constitution of Arkansas?

17

Bill Clinton is now Governor of Arkansas and Justice

Howard is now a District Court Judge for the U.S. District

Court for Eastern Arkansas.

QUESTIONS FOR REVIEW CONCERNING THE

INDEPENDENCE COUNTY GRAND JURY

1. Was Joseph H. Weston injured in his constitutional

rights of national citizenship by the activities of the Inde-

pendence County Grand Jury that culminated in a trial before

State Circuit Judge Andrew G. Ponder on Nov. 19, 1977, at

Batesville, Arkansas?

2. Reference is made to Weston’s Amended Complaint

-*

Item #7/17/81 of Courtran in the Original Files.

3. Did Judges Ponder and Dudley, Prosecutor Leroy

Blankenship, Grand Jury Forewoman Veda Gordon, Inde-

pendence County, a political subdivision of Arkansas, the state

of Arkansas itself, John Norman Harkey, Ann Bachman,

Nancy Brokaw, Jean Hill, Jackie Hall, R. Ford Wilkinson,

Richard W. Cobb, Robert McChesney, J. Lynn Mellor, all

conspire to:

a. Suppress his newspaper, the Sharp Citizen, in viola-

tion of his rights of free press?

b. And was this part of the conspiracy consummated

when Lawyer John Norman Harkey sent out goon squad

hirelings to threaten vendors who had been selling the Sharp

Citizen for five years?

c. And by letters written to printers all over Arkansas,

18

threatening to sue them if they printed any part of Weston’s

newspaper?

d. And by libel lawsuits against Westen and one of his

vendors, filed in time to coincide with sessions of the Grand

Jury with sensational newspaper publicity, for the purpose of

influencing the Grand Jury? (pages 37, 38, 39, 40, 41, 42, 43, 44

in Original Files entry in Court ran #7/17/81)

e. Did Mellor, Cobb, McChesney and Wilkinson, all

state and local officials of the Church of Jesus Christ of Latter-

Day Saints, to which Weston belonged, to excommunicate

Weston — with much attendant publicity, for the purpose of

impeaching Weston in Grand Jury hearings, and further to

impeach Weston with his actual excommunication only 11

days before the date established for Weston’s criminal trial for

five counts of perjury?

And was their part of the conspiracy consummated by the

delivery of a copy of Weston’s excommunication to Prosecutor

Blankenship and Lawyer Harkey?

Reference pages 45, 46, 47, 48, 49, 50, 51, 52, 53, 54 of Item

No. 7/17/81 of Court ran in the Original Files.

All of the above material lay before District Judge Overton

when he ruled in his Sept. 30, 1981 Order that Weston had no

constitutional rights that had been violated in any part of this

case.

Does the apposite ecclesiastical case of Mrs. Johnson (page

51 in Court ran 7/17/81) indicate that the LDS (Mormon

Church) was following a policy of excommunication for

political purposes?

19

Does the close cooperation between the Mormon defend-

ants herein, in which the subject of religion was clearly used to

influence court actions, constitute an infringement by both

Church and State upon Weston’s rights of Freedom of

Religion and Freedom from the Establishment of a State

Religion?

The indictments of the Grand Jury were quashed and

Judges Ponder and Dudley were reprimanded for ‘“‘impro-

prieties”’ in an order of June 26, 1980 in Independence County

Circuit Court, thus admitting State guilt in all the Grand Jury

operations, including the jailing and bonding of Weston, as

noted by Justice Howard in his decision rendered from the

bench of the State Supreme Court on May 21, 1978.

Finally, are Ponder, Dudley, Blankenship, Gordon,

Mellor, McChesney, Cobb, and Wilkinson, and the Little Rock

Stake of the Mormon Church; and Harkey, Bachman, Brokaw,

Hall, Hill, all guilty of conspiracy to deny federally protected

civil rights to Weston under provisions of 42 USC 1985 (2) as

defined by the Supreme Court in Kush v. Rutledge on April 4,

1983? And therefore, guilty of violating 42 USC 1986, because

they obviously knew of the conspiracy, could have stopped it,

and failed to do so.

GRAND JURY’S WORK QUASHED

1. On June 26, 1980, after Mr. T. J. Hively, who had been

elected Prosecuting Attorney to succeed Blankenship, had

refused to prosecute the Grand Jury’s indictments, and after

the Honorable Bart G. Mullis had presented a motion to

dismiss the activities of the Grand Jury and of Judges Dudley

20

and Ponder they were QUASHED under very damaging

implications from this action to Ponder and Dudley and to the

entire Grand Jury conspiracy.

In his ‘‘Motion”’ and in his “Brief in Support”’ of that

motion, Mr. Mullis clearly emphasized the improper and

biased conduct of Judge Ponder. He quoted the same case, in

the state jurisdiction of Bolden v. State, which Justice Howard

had cited in his May 21, 1978 decision on the Grand Jury case in

the Arkansas Supreme Court.

Judge Ponder reentered the Independence Grand Jury

case AFTER Judge Dudley had been assigned to exclusive

jurisdiction of ‘‘all matters pertaining to Joseph H. Weston’s

appearance before the Independence County Grand Jury.”

The Order No. 77-117 in the State Supreme Court, was

signed by Chief Justice Carlton Harris, and filed in Inde-

pendence County Circuit Court on October 26, 1977. It could

have been nullified only by a subsequent written Order by the

Chief Justice.

Judge H. A. Taylor came into this case, in succession to

Judge Dudley, by appointment of the Chief Justice on Dec. 14,

1977. A copy of his Order of Assignment is found in the

appendix herein.

Judge Taylor’s Order of June 26, 1977, in quashing the

proceedings of the Grand Jury and of Judges Ponder and

Dudley, being an official circuit court action of Arkansas, with

21

Judge Taylor speaking on behalf of the State of Arkansas for

the Record, is therefore the official condemnation of those

proceedings in their entirety.

And would it not also be an official concession and

confession by the State of Arkansas for itself, and on behalf of

all defendants in this case, up to and including the actions on

Nov. 19, 1977, that all the defendants therein, including the

State, are guilty, as Plaintiff Weston had alleged, of violating

42 USC 1985(2), and 1985(3), and 1986?

Do these defendants, of course, include all those at both

the Grand Jury level and the State Supreme Court level,

because precisely the same material and the same Plaintiff or

Appellant continued throughout both actions?

PENDENT STATE CASE NO. CIV 77-190

1. Was Judge H.A. Taylor absolutely WITHOUT jur-

isdiction to enter his order of Feb. 4, 1982, in State Circuit

Court of Independence Counity, Ark., by reason of the fact that

he was sitting in disobedience to Sec. 20, Article 7 JUDICIAL

DEPARTMENT, of the Constitution of the State of Arkansas?

which reads:

“Disqualification of Judges — Grounds — No Judge or

Justice shall preside in any cause in the event of which he may

be interested”’.

At the time Judge Taylor entered his February 4, 1982

Order, a copy of which is shown in the appendix of this

Petition, Judge Taylor was, and still is, and had been since

July 7, 1981, a defendant, in this present federal case No.

81-2112, being sued for heavy damages; and the IDENTICAL

material upon which he has based his Feb. 4, 1982 Order was,

22

and is, now before this Court in the Amended Complaint in

District Court of Civ 77-199, found on pages 41 et sequitur of

Petitioner's Amended Complaint docket entry 7/17/81 of

Court ran from District Court.

That lawsuit, attended by large headlines in the Batesville

Guard, was used by Lawyer Harkey to influence and suborn

the Independence County Grand Jury in its October-Novem-

ber deliberations, being filed (and blatantly published) on

November 16, 1977, only 3 days before the Grand Jury delivered

its suborned indictments of Weston to Judge Ponder.

The entire matter of material and actions of the Grand

Jury was quashed on June 26, 1980, in Judge Taylor's own

court.

The two other plaintiff parties in State Court Case No. Civ

77-190, Plaintiff Jackie Hall, and her attorney of record, John

Norman Harkey, also have been defendants in this federal case

since July 17, 1977. (See pages 28, 29, 30, 31, 32, 36, 37, 38, 39, 40,

41, 42, 43, 44 of Petitioner's Amended Complaint, Court ran

docket entry 7/17/81 in the Original Files.

Thus, the three protagonists in Civ 77-190, and all the

materials upon which Taylor’s unconstitutional order of Feb.

4, 1982, was based, have all been fully within jurisdiction of the

U.S. District Court and the 8th Circuit Court of Appeals since

July 17. 1981. (See pages 28 et sequitur, Amended Complaint,

Court ran 7/17/77 in Original Files.

In a motion to Judge Taylor PRIOR to the Feb. 4, 1982

order, Weston, who in Civ 77-190 is a defendant, requested that

Judge Taylor recuse himself on grounds of conflict with the

state constitution in the matter of his own interest in Civ

23

77-190, and in other violations of due process in state court and

federal court.

The motion was denied as shown in Judge Taylor’s order

itself which is to be found in the appendix hereto.

This pendente state case is fully briefed on pages 25 et

sequitur of his appeal on Remand to the Appellate Court filed

on January 11, 1983, and in Petitioner’s Request for Rehearing

by a Panel, timely filed on March 28, 1983.

Was Judge Taylor without proper jurisdiction over either

person or material when he entered his Feb. 4, 1982 Order?

Did his sitting in that cause constitute a federal denial of

due process?

Was the February 4 Order entered in denial of an impartial

tribunal?

Were the concerted actions of Taylor, Harkey, and Hall a

conspiracy in violation of 42 USC 1985(2), consummated by

the Feb. 4 Order, to injure Weston and his property and to

continue the suppression of his newspaper, the Sharp Citizen,

because it advocated civil rights for all people anda cleanup of

official corruption in Arkansas — thus effectively denying

Editor Weston’s right to freedom of the press?

LIST OF RESPONDENTS

Ann Bachman, Nancy Brokaw, Jean Hill, Jackie Hall,

John Norman Harkey, State Circuit Judge Andrew G. Ponder,

Leroy Blankenship, attorney; State Circuit Judge H. A.

24

Taylor; Associate Justice Robert A. Dudley; Veda M. Gordon,

foreman of Grand Jury; R. Ford Wilkinson; Dr. Robert

McChesney; Dr. J. Lynn Mellor; Independence County; Con-

ley Byrd, former Associate Justice; Associate Justice George

Rose Smith; Associate Justice Frank Holt; Associate Justice

Darrell Hickman; Former Special Chief Justice Stephen A.

Matthews; Former Special Associate Justice Richard H.

Wootton; Richard A. Cobb; State of Arkansas; Little Rock,

Arkansas, Stake of Jesus Christ of Latter Day Saints.

OTHER INTERESTED PARTIES

1. In ADDITION to defendant parties shown, the fol-

lowing named interested parties are listed and identified as

follows:

a. Bill Clinton, Governor of Arkansas, State Capitol,

Little Rock, Ark., whose previous actions herein as Attorney

General in an appearance in an oral hearing of this matter then

in jurisdiction of the Arkansas Supreme Court presented an

opinion in favor of Appellant Weston.

b. Governor Clinton also is named as one of the two

agents for service upon the State of Arkansas which is a

defendant in a first jurisdiction matter of aCONTROVERSY

BETWEEN THE UNITED STATES ANDA STATE, under

Supreme Court 28 USC 1251(b)(2).

c. Steve Clark, presently Attorney General who is by law

and Rules of the U.S. Supreme Court an official designated for

service in a controversy between the United States and a state,

USC 1251(b)(2).

25

cc. The Solicitor General of the United States.

d. Associate Justice John I. Purtle of the Arkansas

Supreme Court, as a friendly interested party and appellee,

who rendered a dissenting opinion in favor of Plaintiff Weston

in this matter, as shown in the chapter ‘‘State Supreme Court”,

elsewhere in this Petition.

e. Federal District Judge George Howard, Jr., of the

Eastern Arkansas District Court of Arkansas, who, in a former

identity and jurisdiction as Associate Justice of the Arkansas

Supreme Court delivered an order in favor of Editor Weston,

also as shown here in a chapter entitled ‘State Supreme

Court’. Judge Howard, a black man, cannot personally come

forth to protect himself because of judicial ethics.

f. Corporation of the President, Church of Jesus Christ

of Latter Day Saints, Salt Lake City, Utah.

g. State Circuit Judge T. J. Hively, who when he was

Prosecuting Attorney, refused to prosecute the indictments of

the suborned Independence County Grand Jury.

h. Honorable Bart G. Mullis of Pine Bluff, who as

counsel for defense of Weston, cooperated to give the Editor a

victory in state court.

i. Petitioner feels that former Associate Justices Robert

Mays and John Stroud are no longer interested in the outcome

of this case, and has dropped their names from the list of

Respondents.

j. U.S. District Judge William R. Overton, a hostile

appellee.

26

LIST OF COUNSEL OF RECORD

MR. JOHN NORMAN HARKEY

P.O. Box 2535, Batesville, Ark. 72501

MR. DAVID CLARK

P.O. Box 2476, Batesville, Ark. 72501

MS. R. B. FRIEDLANDER, Assistant Attorney General

Justice Bldg., State Capitol Grounds, Little Rock, Ark.

72201

MR. OSCAR McCONKEY

330 So. Third East, Salt Lake City, Utah 84111

MR. RICHARD L. SMITH

Suite 305, 300 Spring Bldg., Litthe Rock, Ark. 72201

MR. BILL BRISTOW

216 East Washington, Jonesboro, Ark. 72401

JOSEPH H. WESTON, pro se, petitioner

P.O. Box 84, Cave City, Ark. 72521

TABLE OF CONTENTS

Page

PIN 6 oo c ke awe ches Coa ee ea eck uae eb eee oees 29

Questions for Review

De ROME SU PRR AIR osc 5 ni ss on eo co vk ce cn eeanncs l

m. Samcernare Statice OF Lament. 5 vos oe oes oe os osc asescas 4

3. On District Court Order of September 30, 1981 ..........60000+5

©. Soren Jury ated Sewer COE occ ss se enee ess secwsseces 13

5. Concerning Independence County Grand Jury ............065 17

ee ee eee 19

2. pement Ginte Cnet Wo. Civ. F100 ooo is oss vec veekicisus ces 21

Bee MC NINOUNR ov nc eas wk de pew yc 0k 4 ou vs on cae new anes «as 23

PEE MINOPORIO FB MUEOES oi wins oo obec cab aswk dc eees nese exes doeuens 24

Oe OE CNS OE PCN oak 5 aa oc ai od Wa ve ewe vo nachos 26

PI OE BB coo ios os care oc a ene ohne cs bas cesar adadaee

ssibisartasl dele. cs cca Bag ca OE en EIN aren ear.

RE vino 5 cine 5 oe ns i ee ce ce eenes 46

ee Bon a. s aO O n Gegm ere ee CE en SN

TABLE OF AUTHORITIES

Amendment 44, Constitution of AvTRANSAS .... 60 vce ew nccsosescs

Canty v. Richmond, Virginia Police Dept. (1974 Ed. Va.) 383

F. Supp. 1396 aff'd. without op, (CA 4 Va.) 526 F. 2d

587, cert. den. 423 U.S. 1062, 46 L. Ed. 654, 96 S.

i we es

TI PEE a wie icc cece che cn ce sane sa tae wes

Fitzpatrick v. Bitzer (1976) 427 U.S. 445, 49 L. Ed. 2d 614, 96S.

Bei et Ee A SCSI OU Pears area a ar ee

Haines v. Kerner (1972) 404 U.S. 519, 830 L. Ed. 2d 652, 92S. Ct.

594, 596 reh. den. 405 U.S. 948, 30 L. Ed. 819, 92 S.

Re ew ewwe ge un chews

Johnson v. Railway Express Agency, Inc. (1975) 421 U.S. 454,

Oe Ey, Ee Soe, Po OE, UID occ cence ee einn eas eeae

Kush et alv. Rutledge, Supreme Court, April 4, 1983 ..........-.

O'Shea v. Littleton (1974) 414 U.S. 488, 38 L. Ed. 2d 674, 94S.

Stambler v. Dillon (1969 SD N.Y.) 302, F. Supp. 1250;

Stypmann v. San Francisco (1977 CA 9 Cal.) ..........05.

Tumey v. Ohio (1927) U.S. 510, 71 L. Ed. 749, 47S. Ct. 437, 5

Ohio L. Abts. 159, 3 Ohin, L. Ab. 185, 50 ALR

og. REI Cee Ao PR A ee ee ee anes ee

ee ee ]

vaeen 14

ca

.

i 9

ean 6

29

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

No.

DOREPH EL. WESTON 5 ook ons ess sono s cing cess ess Petitioner

V5.

SEVEN JUSTICES OF THE

SUPREME COURT OF ARKANSAS ETAL ...eeee eee Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE 8TH CIRCUIT COURT OF APPEALS

JURISDICTION

1. The April 8, 1983 denial of Appellant Weston’s timely

request for Rehearing by a Panel completes the pattern of total

abstention by the 8th Circuit Court of Appeals in appellate

cases 81-2112 and 82-2433. A copy of the denial of Rehearing

appears in the appendix hereto as the first item.

2. “Inasmuchas this is an action brought under the Civil

Rights Act, the power of a federal court to abstain from hearing

of claims properly brought before it is a closely restricted one

which may be invoked only ina narrowly limited set of special

circumstances.’

Holmes v. New York City Housing Authority, (1968, CA)

30

398, F. 2d 262. And total abstention by the Court of Appeals, in

due process, de facto gives jurisdiction in all parts of this case to

the Supreme Court.

3a. Petitioner Joseph H. Weston appeals to this Court

for a writ of certiorari to the 8th Circuit Court of Appeals;

b. And/or for a Mandate for Execution and Adminis-

tration to the Chief Judge of the U.S. District Court for the

Eastern District of Arkansas;

c. Or for such direct action by this Court as it might

deem necessary or wise;

d. Under authority of:

1. 2&8 USC 1254 (1) because of that section’s plenary

accommodation;

2. 28 USC 1251 (b)(2) because this cause embraces a

controversy between the United States and the State of

Arkansas;

3. And 28 USC 1252, because the State of Arkansas has

nullified Acts of Congress, including the Civil Rights Acts

under which the 1954 and 1955 Little Rock school desegre-

gation cases were decided by the U.S. Supreme Court, and all

subsequent Civil Rights Acts of Congress.

4. Jurisdiction in the lower courts was posited on 28

USC 1343, 1331 and 1332, and is repeated here. (See page 5,

Amended Complaint, Court ran 7/17/81.)

3]

4a. Petitioner hereby certifies, to the best of his know-

ledge and belief, that these questions raised by the 44th

Arkansas Amendment, and that Amendment itself, have never

been certified to the Supreme Court;

b. And he also certifies to the best of his knowledge and

belief, that the same questions, and the 44th Amendmentitself,

have never before been certified to the Solicitor General of the

United States.

c. The Solicitor General has been given special service in

this matter, as certified to in Petitioner's Affidavit for Service.

5a. Petitioner respectfully requests that the Supreme

Court, in the authority of 28 USC 1254 (3) shall require the

entire Record to be sent up for considering the entire matter in

controversy, in making its decision on the granting of

certiorari or other action.

b. There has never been a hearing on evidence, or of any

other sort in this cause.

c. Because of this fact, the Appellate Court required the

Original Files to be sent up, and then itself failed to make a

decision of any sort on merits.

d. Except for a portion of the Original Files that were

sent back to District Court on Remand, the remaining

Original Files plus all docket items entered in the Appellate

Court remain with the Appellate Court at St. Louis.

Petitioner requests that all records, including those

remaining with the District Court, shall be sent up.

32

STATEMENT OF THE CASE

The petitioner is a white male, aged 71, and a native of

Little Rock, Ark., where he was a newspaper reporter between

the ages of 13 and 21.

He left the state on August 10, 1932 as a Second Lieutenant

on active duty with the Regular Army of the United States. (See

envelope of military records that were submitted as a character

reference, and one of the Exhibits of Evidence now part of the

Original Files from District Court believed to be now in the

office of the Clerk of the Court of Appeals)

After an army career that took him to many places

throughout the world, he retired because of wartime injuries,

and after several years in national journalism in Chicago, Salt

Lake City and Washington, D.C. he retired to a homestead

farm in the Ozarks, near Cave City, Ark. 72521.

Seeing the shocking condition of the medieval court

system and a corrupt government administration that had

flourished in the long dictatorial career of Orval Faubus as

Governor, he established a weekly newspaper, named the

Sharp Citizen, that was dedicated to enforcing civil rights for

all people and to disclosing governmental and court corrup-

tion, which was rampant.

The paper began publication on January 18, 1972, and

became an immediate sensation among a population where

free speech and freedom of the press had been almost totally

suppressed.

Editor Weston was frequently beaten, his cars burned out

33

with emery dust and his family kept under constant threat of

danger or death.

His work became nationally known and he was honored

by the prestigious American Society of Newspaper Editors by

being invited to speak at their annual convention in Wash-

ington, D.C. (See ‘‘The Incredible Story of the Sharp Citizen”,

a book, a copy of which is among the Exhibits of Evidence in

the Original Files of this case, available to this Court.)

In October, 1977, two candidates for judgeships who

feared they would fail to be elected if the Sharp Citizen were

allowed to continue its attacks upon them, organized a total

‘put out” job to suppress his newspaper, send him to certain

death at the hands of professional beat-up men at notorious

Cummins prison farm, and to take away the homestead farm

home of his family of 7, including 5 young children.

They brought Editor Weston before a Grand Jury at

Batesville, 17 miles away, in October, 1977, and after sub-

orning the jury, indicted him as a result of a fantastic

conspiracy, on Nov. 19, 1977.

The rest of it is unbelievable legal history as this case

unfolds in the federal courts.

After the utterly incompetent trial and dismissal in

District Court in Little Rock, Weston appealed to the Eighth

Circuit Court of Appeals where, for a year and a half, every

motion was denied, left and right.

After a year anda half of jockeying back and forth with the

district judge, the appellate judges finally released a 100%

34

abstention job, one of the very rarest things to happen in the

federal court system, and which forced Editor Weston to bring

it to the Supreme Court as a last resort in his search for

meaningful justice.

And there you have it on your doorstep. The only practical

way to know what has or hasn’t happened in the lower courts is

to require that the entire Record be sent up under authority of

28 USC 1254(3) — and my sincere best wishes to all of you.

P.S. Andif you have time to pause along the way to read

some of those 50 copies of the Sharp Citizen, you'll drop right

into the middle of some of the most rugged Americana

imaginable. That box of Sharp Citizens is among the Exhibits

of the Original Files, too!

WHAT PETITIONER WANTS

1. That the 44th Amendment to the Constitution of the

State of Arkansas shall be declared to be unconstitutional when

measured by the Constitution of the United States.

1A. And that the District Court Order of Sept. 30, 1981

shall be vacated.

2. That, asa matter of immediate preliminary relief, the

unlawful judgment against Petitioner for $275,000.00 of Feb.

4, 1982 that presently lies in Independence County Circuit

Court, at Batesville, Ark., shall be vacated in all its parts, and

all issue that has proceeded therefrom, or might proceed from

it, shall be quashed.

b. This Judgment was entered by Special Circuit Judge

H. A. Taylor in belligerent defiance of the jurisdiction of this

Supreme Court.

35

3. Also, as a matter of urgently needed temporary relief,

that Petitioner shall be awarded his costs, including reasonable

attorney’s fees as part of the costs for the FIVE AND ONE-

HALF YEARS HE HAS SPENT IN THIS VERY DIFFI-

CULT CASE AS A FULL TIME ATTORNEY THAT HAS

EXCLUDED THE POSSIBILITY OF ANY OTHER EM-

PLOYMENT.

4. Petitioner requests that because of malice shown in

this case, that District Judge William R. Overton shall be

permanently removed from any and all jurisdiction over the

affairs of Joseph H. Weston.

5. And Petitioner respectfully requests that, after having

received the attention of this Court, all items listed herein shall

be mandated to Judge G. Thomas Eisele for administration

and execution in his capacity as Chief Judge of the U.S.

District Court for the Eastern District of Arkansas, at Little

Rock.

6. Petitioner recommends that the Supreme Court, for

the imperative protection of its own jurisdiction, and the

dignity and respectability of the federal courts in Arkansas,

that this court shall initiate criminal action against District

Judge William R. Overton, as shown by the emphasis upon the

Civil Rights Act of April 9, 1866, shown in pages 10 and 11 of

this Court's slip opinion in the April 4 decision in the case of

Kush v. Rutledge, with the Judge to be tried in the court of

proper jurisdiction in Little Rock.

Frankly, Gentlemen, and Mrs. O'Connor, it’s a situation

in which the federal court system must regain its own honor

and respect.

36

CONCLUSION

THEREFORE, Plaintiff asks compensatory damages,

punitive damages and also nominal damages from each and

every one of the defendants, collectively and severally, as noted

herein.

1. Ann Bachman, Nancy Brokaw, Jean Hill, Jackie Hall

and Veda M. Gordon, $5,000.00 in damages and $20,000.00 in

punitive damages from each and every one of them severally, or

$125,000.00 total from all of them.

2. From R. Ford Wilkinson alias Randall F. Wilkinson,

the sum of $10,000.00 in damages and $40,000.00 in punitive

damages, a total of $50,000.00.

3. John Norman Harkey, Judge Andrew G. Ponder,

Judge Robert Dudley, Judge H. A. Taylor, Justices Darrell

Hickman, Frank Holt, George Rose Smith, and former Justice

Conley Byrd, Special Chief Justice Stephen L. Matthews,

Special Justice Richard H. Wootton, from each and every one

of them, severally $50,000.00 damages and $450,000.00 puni-

tive damages, or a total of $500,000.00 damages from each and

every one of them severally or a total of $5,000,000.00 from all

of them collectively.

4. J. Lynn Mellor, Richard Cobb, Robert McChesney,

$50,000.00 damages and $450,000.00 punitive damages from

each and every one of them severally, or $1,500,000.00 from all

of them collectively.

e. From Independence County, a political subdivision of

the State of Arkansas, the sum of $500,000.00 in damages and

$1,000,000.00 in punitive damages, a total of $1,500,000.00.

37

f. From the Little Rock, Arkansas Stake of the Church of

Jesus Christ of Latter Day Saints, or Mormon Church, the sum

of $1,000,000.00 in damages and $4,000,000.00 in punitive

damages, a total of $5,000,000.00.

g. From the State of Arkansas, $5,000,000.00 in damages

and $20,000,000.00 in punitive damages, a total of $25.,-

000,000.00.

Please note that the state is sued under 1985 and 1986, and

has no immunity, and the 11th Amendment does NOT apply,

and therefore, there is no federal restriction on paying such

damages out of taxes.

h. Or such other monetary relief as the Court may deem

just and proper compensation to the Plaintiff, and sufficiently

high punitive damages to serve as a deterrent to prevent further

violations of Acts of Congress of the United States and criminal

contempt of the Constitution of the United States, and attacks

upon the jurisdiction of the Supreme Court of the United

States.

Respectfully submitted,

JosePpH H. WEsTON

P.O. Box 84

Cave City, ARKANSAS 72521

Pro se

38

AFFIDAVIT OF SERVICE

I, Joseph H. Weston, do solemnly swear that I have

deposited the following listed items with the Honorable Sloan

Wells, Postmaster of Cave City, Arkansas 72521, for mailing on

or before the first day of June, 1983:

Required copies of this petition to the Solicitor General of

the United States; to Governor Bill Clinton of Arkansas; and

Attorney General of Arkansas, Steve Clark; all by first class

certified mail; and copies to all counsel of record and all other

separately represented parues to this suit, by regular first class

mail.

s/ Joseyh H. Weston

JOSEPH H. WESTON, pro se

Subscribed and sworn to before me this 23rd day of May, 1983.

s/ Patricia A. Parker

Notary Public

My Commission expires: February 25, 1985

A-1

APPENDIX

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

Nos. 81-2112 and 82-2433 September Term 1982

eee eg ce en ee Appellant

VS.

Ann Bachman; Nancy Brokaw; Jean

Hill; Jackie Hall; John Norman

Harkey; et al Appellees

Appeals from the United States District Court

for the Eastern District of Arkansas

Petition of appellant for rehearing filed in this cause

having been considered, it is now here ordered by this Court

that the same be, and it is hereby, denied.

April 8, 1983

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

NORTHERN DIVISION

DON FE TRO a ovo on oh 5054 45 50s ohne eas Plaintiff

VS. No. BC 81-45

a I OE og i oo eo a sce Defendants

(Filed September 30, 1981)

A-2

ORDER

Pending before the Court are several motions to dismiss

and an amended motion to dismiss. In each motion, the

defendants allege that the Court lacks subject matter juris-

diction and that the plaintiff has failed to state a claim upon

which relief can be granted or that the statute of limitations

bars this action. Each of the points of the defendants is well

taken by the Court.

There are two facts necessary to satisfactorily meet the

jurisdictional requirements or to state a claim for relief under

42 U.S.C. §1983, §1985 and §1986. First, plainuff must

establish that he has a right which is protected by federal law or

by the Constitution of the United States. Second, he must

establish that each defendant deprived him of that consti-

tutional right while acting under color of state law. Plaintiff's

second amended complaint sets out six specific instances in

which he alleges that his constitutional rights were violated. In

one instance, he challenges the right of Ann Bachman,

Nancy Brokaw, Jackie Hall, Jean Hill and their lawyer, John

Harkey, to bring a state court libel action against him. In

another instance, plaintiff challenges the actions of the Little

Rock, Arkansas Stake of the Church of Jesus Christ of the

Latter Day Saints and its officials, Lynn Mellor, Dr. Robert

McChesney, Richard Cobb and Ford Wilkinson in excom-

municating him from the church about the same me as a 1977

Independence County grand jury indictment against him. In

yet another instance, plaintiff challenges the actions of Judge

H. A. Taylor in ordering the plaintiff to answer interrogatories

and to deliver himself up for the taking of his deposition in a

case which was pending in Judge Taylor's court. Plaintiff also

challenges the decision of the justices of the Arkansas Supreme

A-3

Court denying him relief from a 1977 Independence County

grand jury indictment. Plaintiff challenges the authority of

Judge Robert Dudley to hold him in contempt of court for

plaintiff's refusal to testify before the Independence County

grand jury.

Plaintiff also challenges his 1977 Independence County

grand jury indictment which was subsequently quashed and

attacks Judge Andrew Ponder, Prosecutor Leroy Blankenship

and Foreperson Vera Gordon for their participation in the

indictment procedure. Finally, plaintiff names the State

of Arkansas, Independence County and Jim Pearson as

defendants without making specific allegations as to how they

violated his constitutional rights. None of these facts estab-

lishes that plaintiff's constitutional rights were violated.

Defendants Bachman, Brokaw, Hall, Hill, Harkey, Mellor,

McChesney, Wilkinson, Pearson and the Church of the Latter

Day Saints were not even acting under color of state law.

Furthermore, defendants Mays, Stroud, Byrd, Purtle, Smith,

Holt, Hickman, Dudley, Matthews, Wootton, Ponder and

Taylor have absolute judicial immunity from damage suits,

Stump v. Sparkman, 435 U.S. 249 (1978); defendant Blank-

enship was acting within the scope of his duties as prosecuting

attorney when he allegedly violated plaintiff's constitutional

rights and is, therefore, absolutely immune from suit,/mbler v.

Pachtman, 424 U.S. 409 (1976); the State of Arkansas, which

did not consent to this present action by the plaintiff, is also

immune from suit brought by one of its citizens under the

Eleventh Amendment, Employeesv. Missouri Public Health,

411 U.S. 279 (1973).

Plainuff's complaint is also barred by the applicable

statute of limitations. The statute of limitations for a §1983 suit

A-4

which is brought in the state of Arkansas is three years. Reed v.

Hutto, 486 F. 2d 534 (8th Cir. 1973). The conduct of which

plainuff complains stems from a grand jury indictment

against him on November 19, 1977. Therefore, plaintiff's filing

of this action on May 15, 1981, is not timely.

The motions to dismiss by each of the defendants are

granted.

Dated this September 30, 1981.

/s/ William R. Overton

United States District Judge

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

I Bs Fos sik iene ck cae ws Plaintiff

VS. No. LR M 380

Ann Baughman (Bachman), Nancy Brokaw,

Jean Hill, Jackie Hall, John Norman Harkey,

Circuit Judge Andrew G. Ponder, Circuit

Judge Leroy Blankenship, Circuit Judge H. A.

Taylor, Chancellor Robert Dudley, Veda M.

Gordon, R. Ford Wilkinson, Dr. J. Lynn

Mellor, Dr. Robert McChesney, Independence

County, a political subdivision of the State of

Arkansas, Honorable Steve Clark, Attorney

A-5

General of Arkansas, as respondent for Ark-

rmrausiiiy tirescincoagt er en or nena ne Defendants

(Filed November 19, 1980)

ORDER

Joseph H. Weston has filed with the Court a “Request for

Permission to File En Pauperis”’ which the Court interprets as

a pro se petition to proceed in forma pauperis under 28 U.S.C.

§1915(a). From the face of the petition and its reverse side where

Mr. Weston has made a number of calculations, it appears that

petitioner's family has a tax free monthly income of Just over

$1,000. He also indicates that he owns a home and eighty acres

which he values at $39,000.

Under these circumstances, the Court finds that petitioner

is nota pauper and the petition will be denied. Petitioner may

file his complaint on payment of the appropriate fees.

It is so ordered this November 10, 1980.

/S/ William R. Overton

United States District Judge

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

NORTHERN DIVISION

pee a Plaintiff

A-6

VS. No. B C 81-45

De es OF EE 8g 8 gi cc cet uh eae been ees Defendants

(Filed November 3, 1982)

ORDER

On September 30, 1981, this Court dismissed plainuff’s

civil rights action brought under 42U.S C. §§1983, 1985 and

1986. This Court found, among other things, that the

complaint was barred by the applicable statute of limitation.

Plaintiff's cause of action accrued on November 19, 1977, when

he was indicted by an Independence County grand jury.

Accordingly, this Court held that plaintiff's complaint, filed

May 15, 1981, was barred by Arkansas’ three year statute of

limitation which ran on November 19, 1980. This Court did

not take into consideration that plaintiff had filed a petition to

proceed in forma pauperis and a complaint on October 22,

1980, which was denied on November 10, 1980. This cause of

action is now before the Court on remand from the Eighth

Circuit Court of Appeals for determination of the following

issues: (1) whether Ark. Stat. Ann. §37-222 or any other

Arkansas savings statute, Ark. Stat. Ann. §37-101, et seq., 1s

applicable to plaintiff's action in the circumstances presented

in this case; (2) whether, under Arkansas law, the statute of

limitations is tolled by filing of a complaint and a motion to

proceed in forma pauperis; or (3) whether equitable consid-

erations require the paid filing to be related back to the initial

in forma pauperis filing for statute of limitation purposes.

Arkansas has the following savings statutes:

A-7

Ark. Stat. Ann. §37-220, which allowsa plaintiff to refilea

cause of action against a defendant within one year of his

death or the appointment of a representative for his estate

if the cause of action survives the deceased.

Ark. Stat. Ann. §37-221, which allows the representative

of the estate of deceased plaintiff to refile an abated action

within one year of plaintiff's death, if the action survives

the plainutf.

Ark. Stat. Ann. §37-222, which allows a plaintiff who has

been granted nonsuit without prejudice, or whose

judgment has been arrested or reversed to commence a

new action within one year of the non-suit, arrest or

reversal of judgment.!

Ark. Stat. Ann. §37-226, which permits persons with

disabilities, 1.e., infants, the insane and those imprisoned

out of state, to bring causes of action which accrued

during their disability has been removed or dissipated.

Ark. Stat. Ann. §37-227, which permits persons in the

armed forces to bring cause of action which accrued while

our country was engaged in war within six months of the

end of the war.

'It should be noted thatin November, 1977, Mr. Weston brought a §1983

against John Norman Harkey, who ts also a defendant in this lawsuit,

alleging that Mr. Harkey sent him threatening correspondence. This suit was

dismissed without prejudice in September, 1978. The Court does not believe

that Mr. Weston’s §1983 action against Mr. Harkey is related to the present

Weston does not come within the

9

oo

acuon. Butif there was a connection, Mi

purview of Ark. Stat. Ann. §37-222 because this suit was not filed until 2 |

years after the 1977 case was dismissed

A-8

Ark. Stat. Ann. §37-228, which permits persons in the

armed forces when our country is at war to bring action

for the collection of debts or the recovery of real or

personal property within a year and six months of the end

of the war, provided that the statute of limitations on

these causes of action had not run prior to that person's

entry into the armed forces.

Ark. Stat. Ann. §37-229, which tolls the running of the

statute of limitations in cases where an action is prevented

by some action of the defendant or by his leaving the

country.

Ark. Stat. Ann. §37-231, which tolls the running of the

statute of limitations in suits by creditors against debtors,

who leave the state without the creditors’ knowledge,

until the creditor becomes appraised of the absconder's

whereabouts.

None of these statutes apply to the present case.

The Arkansas courts have not dec ed the issue of whether

the statute of limitations is tolled by the filing and motion to

proceed in forma pauperis or whether equitable considerations

require the paid filing to relate back to the initial in forma

pauperis filing for statute of limitations purposes. However, a

few federal courts have been confronted with those issues and

similar issues. Each decision has centered on whether courts

should apply literally Rule 3 of the Federal Rules of Civil

Procedure, which states that ‘‘an action is commenced by filing

a complaint in court,” or their local rules on commencement

of actions. In each case, the courts found that equitable

considerations or sound reason compelled them not to adopta

A-9

rigid interpretation of the rules on commencement of actions.

For instance, in Gardner v. King, 464 F. Supp. 666 (W.D.N.C.

1979), the Court held that the receipt of a §1983 complaint and

an affidavit in support of in forma pauperis status of a pro se

prisoner was sufficient to ‘‘commence” action, so as to toll the

statute of limitations, notwithstanding its denial of in forma

pauperis status. It reasoned that Rule 3 should not be literally

applied when extraordinary circumstances exist which justify

judicial flexibility. It cited plaintiff's status asa prisoner anda

pro se applicantand the fact that plaintiff's suit was brought to

vindicate important federal principles under statutes that are

unequivocably remedial in nature as special considerations

which warranted solicitous treatment of plaintiff's case. The

Court also conditioned its holding on plaintiff's initial filing,

being in good faith, not interposed for dilatory purposes, based

on the reasonable expectation that in forma pauperis status

would be granted and followed by prompt action to continue

prosecution of the action after in forma pauperis status was

denied. It concluded that plaintiff's payment of the requisite

filing fee a little over a month after the denial of his in forma

pauperis status related back to the initial filing of his initial

affidavit.

The decision in Gardner closely tracks earlier federal cases

involving similar issues. In Mathias v. United States, 391 F.2d

938, 183 Ct.Cl. 145, vacated on rehearing on other grounds, 394

F. 2d 519, 190 Ct. Cl. 925 (4th Cir. 1974), the Court of

Claims was faced with the question of whether its local rules,

which required that copies be attached to petitions before

filing, should be applied literally toa pro se inmate seeking to

be compensated for an allegedly illegal discharge from the

military. The Court found that plaintiff's status as a pro se

applicant and asa prisoner merited the treatment of his initial

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petition as the commencement on the action even though his

subsequent petition, which complied with court rules, was

time barred. The United States Court of Appeals for the Fourth

Circuit took a comparable stance in Vinson v. Richmond

Police Department, 567 F. 2d 263, 264 n.2 (4th Cir. 1977). In

that case, the plaintiff filed his §1983 complaint and petition to

proceed in forma pauperis within the applicable statute of

limitations; however, the Court did not enter an order granting

plaintiff's petition until after the statute of limitations had

run. The Court of Appeals stated that it could not accept the

district judge’s dismissal of the action on statute of limitation

grounds. It found that the more reasonable manner of

handling the situation would be to have the approval of

application to proceed in forma pauperis relate back to the date

when plaintiff filed his complaint and application to proc eed

in forma pauperis.

The facts of the present case do not warrant the Court's

exercise of judicial flexibility. Although plainulf was a pro se

applicant for in forma pauperis status, and brought suit under

a federal statute which is remedial in nature, he neither

exercised good faith in filing his affidavit in support of in

forma pauperis status, nor did he act proiptly in refiling his

action after in forma pauperis status was denied. Gardner,

supra. Plaintiff could not have reasonably expected the Court

to declare him a pauper when he was receiving $12,000 a year in

tax free income and owned a home and eighty acres of land

which he valued at $39,000. Furthermore, plaintiff delayed six

months after the Court denied his petition to proceed in forma

pauperis before he refiled his complaint. Under these cir-

cumstances, plaintiff's May 15, 1981, complaint should not be

allowed to relate back to the in forma pauperis petition of

October 22, 1980.

A-1]

Dated this November 2, 1982.

—

Ss’ William R. Overton

United States District Judge

IN THE SUPREME COURT OF ARKANSAS

ORDER CONCERNING

ASSIGNMENT OF JUDGES

No. 77-136

Under the authority vested in the Chief Justice of the

Supreme Court of Arkansas by Act 496 of 1965

Judge H. A. Taylor of the Eleventh

assigned to the

as amended,

Judicial Circuit is hereby

Third Judicial Circuit to try the cases of:

State vs. Joseph H. Weston

Independence Circuit No. CR-77-133

and

Jackie Hall et al vs. Joseph H. Weston

Independence Circuit No. CIV-77-190

This assignment includes allancill

ary proceedings which

may arise

in connection with said causes

and proceed‘ngs

subsequent thereto.

The hearing of said causes and pro-

ceedings subsequent thereto shall be held

as Shall be directed

at such time or times

and ordered by Judge H. A. Taylor.

Che assignment of Judge H. A

Taylor to the Third

Judicial Circuit entails only

additional duties, and juris-

diction in the Eleventh Judicial Circuit shall remain in Judge

A-12

H.A. Taylor to the same extent as though this assignment had

not been made.

SPECIAL PROVISIONS: None

This order made and entered this 13th day of December,

1977.

/s/ Carleton Harris

Chief Justice

(Filed December 14, 1977)

IN THE CIRCUIT COURT OF

INDEPENDENCE COUNTY, ARKANSAS

De HE a oo a rn ek eke wh eeecarewecuss Plaintiff

VS. No. CIV 77-190

BOE Fe PN i bh eink ok ics ccckecdcccs Defendant

JUDGMENT

Now on this 4th day of February, 1982, comes on for

hearing the above captioned matter, and the Court, being well

and sufficiently advised in the premises, finds from the

pleadings, exhibits, testimony and other matters, proof and

things, as follows, viz:

1. That the Court has jurisdiction of the parties to and

the subject matter of this action.

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2. That all of the motions filed by the Defendant up to

January 27, 1982, should be and they hereby are denied; that the

Defendant's Motion to Quash filed on January 27, 1982 should

be and hereby is denied, as well as his Motion to Disqualify the

Court from hearing this cause, and further that his Motion for

a Continuance filed on February 3, 1982, should be and hereby

is denied.

3. The Court further finds that the Defendant libeled the

Plaintiff as a result of an article published on September 19,

1977 ina tabloid titled ‘Sharp Citizen”’ which is in evidence as

Plaintiff's exhibit number one. The Court finds that the

Plaintiff has suffered considerable humiliation and embar-

rassment and injury to her reputation, as well as actual

compensatory damages and that she should be granted

judgment against the Defendant for this in the amount of

Twenty-five Thousand Dollars ($25,000.00).

4. The Court further finds that the Defendant, in

publishing the article introduced in evidence, acted wantonly

and recklessly and in total disregard for the truth, from which

the Court implies that he acted maliciously, and the Court

finds that the Plaintiff should be granted punitive damages

against the Defendant in the sum of Two Hundred Fifty

Thousand Dollars ($250,000.00).

5. The Court further finds that the Defendant was

notified many months ago that trial would be held on February

4, 1982, and that a jury was called into Court on February 4,

1982 in order to hear the case should the Defendant appear.

The Court finds that the Defndant wrongfully failed to appear

without proper or good excuse. The Court therefore finds that

the Defendant shall pay all of the costs of the jury, including

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mileage, which the Court finds to be in the amount of $460.80

which shall be paid to as part of the costs in this case for the use

and benefit of Independence County, Arkansas.

6. The Court further finds that the Plaintiff should

recover all of her costs in this action which the Court finds to be

in the amount of $35.80.

WHEREFORE, IT IS CONSIDERED, ORDERED

AND ADJUDGED that the Plaintiff have judgment of and

from the Defendant in the sum of $275,035.80 which shall bear

interest until paid at the rate of 10% per annum; that there shall

further be judgment for the use and benefit of Independence

County, Arkansas, as costs in the amount of $480.80; for all of

which execution and other legal process may issue.

s/ H. A. Taylor

Circuit Judge

(Filed February 22, 1982)

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IN THE CIRCUIT COURT OF

INDEPENDENCE COUNTY, ARKANSAS

PU OL FUR IGS ooo coo os ok ok ok oo cc, Plaintiff

VS. No. CR-77-133

CR-77-135

CR-78-149

BE TOI ois ba vw ee ch aces Defendant

ORDER

On this 26th day of June, 1980, came on for a hearing the

defendant's motion to quash the grand jury's indictment, as

well as the information herein filed. After a review of the same

and the State's response to defendant's motion, it is the

judgment of this Court that the motion should be and the same

is hereby granted.

IT IS THEREFORE CONSIDERED, ORDERED AND

ADJUDGED, that the indictment herein filed, as well as the

information, should be and the same is hereby quashed.

s/ H. A. Taylor

Circuit Judge

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