Petition for Writ of Certiorari — Marker v. Rieschel

Supreme Court brief1989

Ask Donna

What actually matters in this document.

Text

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

weniaiihine

}

° AG

Supreme Court, U.S.

89-284 | FILED

No.

3 we

PANIOL, JR.

AERK

IN THE {

Supreme Court of the Hnited —— -

OCTOBER TERM, 1989

JAMES A. MARKER, JR., AND BEVERLY J.

MARKER,

“Petitioners,

Vv.

WAYNE K. RIESCHEL, et al.

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals for the

Eighth Circuit :

James A. Marker, Jr., and

Beverly J. Marker, pro se.

P.O. Box A

Langley AFB, Va 23665

(804) 766 2196

Beverly J. Marker

217 East 2nd St. So.

Newton, Iowa 50208

(alternate address

when in midwest)

QUESTIONS PRESENTED

1. Whether tolling under 50 USC Appx.

sec. 525 applies to an action that has

already been duly filed and served under

the applicable statute of limitations.

The 8th Cir.Ct. says yes, the 3rd Cir.Ct.

and the Sup.Ct. Penn. say no.

2. Whether 50 USC Appx. sec. 525

applies to career service persons as

implied by the 8th Cir.Ct. or does not

apply to a career serviceman as held by

the 11th Cir.Ct.

3. Whether a stay shall be granted

under 50 USC Appx. sec. 521 when the

trial court's finds the ability of the

plaintiff to prosecute an action is

materially affected by his military

service or words to that effect: "...will

accept the facts ... relative to the

interference of his military service in

effectively prosecuting this case...".

€1i>

—_ Whether a dismissal without

prejudice of a military plaintiff's

action, for damages, after the statute of

limitations has run for co-plaintiffs

violates the seventh amendment or other

rights of co-plaintiff when "Demand for

Jury Trial” was made on complaint.

_5. Whether any factors taken into

“consideration should be any different for

etlitery plaintiff under 50 USC App. sec.

501 et seq., than military defendant when

a sec. 521 stay is sought, and plaintiff

has prayed for an injunction to prevent

irreparable injury in the interim:

6. Whether abstention is fatal defect

in a case where a service man is seeking

a Stay and injunctive relief under the

Soldiers’ and Sailors’ Civil Relief Act,

when the service man is not party to any

other action, and the issues raised will

not be addressed in any action a

co-plaintiff may be a party to.

(iid

7. Whether when a defendant party is

in default, can the military plaintiff

ask the Court to consider the

constitutionality of any act, systen,

law, or relief requested as it pertains

to the party in default when the request

for a Stay is acted upon.

{ The 7th question contains within it

subsidiary questions that fall well

within the injunctive relief (36a-39a)

asked for in the complaint filed Nov.

27, 1987, some examples follow. ]

7a. Whether Dallas County refusal to

provide the services of the sheriff's and

prosecutcr'’s office on a equal basis to

plaintiffs violates plaintiff's rights to

equal protection.

_7b>. Whether Dallas County has an

obligation to select those in the local

justice system by a method that assures

plaintiff's a fair decisional process and

an impartial decisionmaker. Does lack of

€iii)d

Such system violate plaintiff's right's

to due process or other rights.

_7c. Whether Dailas County has a duty

under the U.S. Constitution to respect

all federally protected rights and to

take positive or affirmative action to

assure due process and equal protection

of the laws to all that come within their

jurisdiction, for example the plaintiffs.

Attorneys for respondents:

Robert W. Schroff, counsel for Mr.

Rieschel, Suite 203, 2135 E. Sunshine,

Springfield, Mo. 65804

Richard S. Magruder, counsel for Mr. Cox,

Suite 300, 801 Walnut, Kansas City, Mo.

64106

Rodney E. Loomer, caunsel for Mr. and

Mrs. Burtin, P.O. Box 4043, Springfield,

Missouri, 65808

Party in Default: Dallas County, Mo.

TABLE OF CONTEETS

Page

Opinions below .. 0... ccc cece erences 1

FUPMAGAGSCEGR 2.2 ik i is cee pees eee 2

Civ)

Constitutional and Statutory

provisions tavolvad ... 1... ees

Jurisdiction of the District Court..

STATEMBRT 2c eee ee ee cence

REASONS FOR GRANTING THE PETITION

i. Conflict with lower Courte....:...

2.-Conflict with: lower Courts........

3. Conflict with this Court.. Perry ae

4. Constitutional violation .........

5. 50 USC Appx section 521 has never

been interpreted for a military

plaintiff by this Court,

oe ee ee ee ee ee ee

6. Inproper application of abstention

7. Major social issues and party in

og th eerweerrrrn rawr a ee yee ee ee

ee ere ee ee rer ee ree

TABLE OF AUTHORITIES

Cases:

BEACON THEATRES v. WESTOVER (1959)

359 U.S. 500,

ee ee ee

Cv)

Page

Cases: Page

BOONE v LIGHTNER (1943) 319 US 561,at

571-575, 87 L Bd 15867, 6S S Ct i223,

Teh Gen 320 VS GOS... ccc vrs vvces 22, 32

BROWN v BOARD OF EDUCATION <1954)

347 U.S. 483, 74 S.Ct. 686,

Se RR ee eee eee cree eee 15

CONTINENTAL ILLINOIS NAT. BANK & TRUST

CO. v UNIVERSITY OF NOTRE DAME

(1946 Sup.Ct. ILL) 394 [11 584,

ee ek ee CO CPE: 8k 6 NS Oe ee 8s 31

CURTIS v LOETHER (1974) 415 U.S. 189,

at 194-196, 94 S.Ct. 1005,

~ ee” Ae” rr ee ee 24

DAIRY QUEEN v WOOD (1962) 369 U.S. 469

BS BS. CtS BOE, GOT... wcrc ccc nnwrvvvaes 24

DECK HOUSE v WEW JERSEY ST. BD. OF

ARCHITECTS (1982) 531 F.Supp. 633

UR eee are ee eee ee 39

GIBSON v BERRYHILL (1973) 411 U.S. 564,

93 S.Ct 1689, 1698, 1699,

36 L. Bd2d 488 (1973)... .....00 ees ae

HECK v. ANDERSON (1944 Sup.Ct. Ia)

234 Iowa 379, 12 NWed 849,851-853... 27

KIRCHBERG V FEENSTRA (1981) 450 US 455

at 460,461, 101 S.Ct. 1195,

OF £, BA Ba GBS. . wer wrsesnecnsnanesens 4a

KNOX COUNTY v HARSHMAH (1890)

10 S.Ct. 257,258, 133 U.S. 152,

BS 2. BM. BOG. ccc cere cae eas. 42

KUSPER v PONTIKES (1973) 94 S.Ct. 303°

GE BOG, DOP cc cvcsamasesrcncenees 39, 49

LIGHTNER v.BOOWE (1942 Sup.Ct. W.C.>)

22 S.B.2d 426,426 (3) ....... eee, 22

MASON v TEXACO IWC. (10th Cir. 1958)

862 F2d 242,245 2... ccc e ever ercenenes 21

McCAHCE v. LINDAU (Md. App. 1985)

492 A. 2G 1952, 19SS 2... cc esc cccenvnes 21

PANNELL v. CONTINENTAL CAN CO.

(Sth Cir.1977) 554 Fed 216,225 (13). 20

«vid

Cases: Page

PATRIKES v J.C.H. SERVICE STATIONS INC.

18C Misc 917,922-924

41 NYS2nd 158,166, affd 180 Misc 927,

46 WYS2d 233, (1943 Sup.Ct. W.Y.)

app den 266 App Div 924,

ee PE EE. 6-0 0A Sew © Nod 2 ew ae 25, 27

PERNELL v. SOUTHALL REALITY (1974)

416 U.S. 363, 94 S.Ct. 1723,1727,

ee aks On OE, 8 6 4A Gas BAS Ke Oa 8 OS 24

SELMER v OERTWIG (1943 Sup. la.»

os. 6S OUD, eee eee eee 28, 27

TAHIR v GLENN L. MARTIN CO.

(4th Cir. 1941) 116 F.2d 864,871.... 34

THOMPSON v REEDMAN (1961)

wea FO Bary EOE 6806s ss pees 34

TUMEY v STATE OF OHIO (1927)

ae ek ee, ee EE eer ee eer 47

UNITED STATES v COUNTY COURT (1887)

1g@e U.S. 306, F &.Ce °’lvi,ii7s ..... 43

WARD v VILLAGE OF MONROEVILLE, OHIO

(1972) 93 S.Ct. 80, 82-846 11(2,3](4). 47

WILLIAMS v RED BANK BD. of BEd.,

(Srd Cir. 1981) 662 F.2d 1008,1024.. 40

ZARLINSKY v LAUDENSLAGER

(1961 Sup.Ct. Pa) 402 Pa 290,

Ry Bh. OG Dr ge CMe a's 0h 6 0 Ws ne wwe 18

ZITOMER v HOLDSWORTH (3rd cir. 1971)

SGD FBG FORT santa bk asa ser ceecess i7

ZWICKLER v. KOOTA <1967) 389 U.S. 241,

GE &. CU. 3O1, FOS wc ncccccns ‘Ase eeuses 39

Constitution, statutes, and regulation:

United States Constitution: Page

art. I, @ec. 10, par. 1 O22 ..... 4, Si:

Art. III, sec. 2, par. 1.. 3,4, 40, Sil

Ore. C80, GBG. By, BOR. & .ccanecs 4, $1

Art. IV, sec. 2, par. 1. 3,4,25,49, 51

Are. Vi, BOR. BOD occsceece 4, 48, 51

First Amendment Art.I ...... 3,4,25, 51

Fifth Amendment Art.V ... 3,4,25,47, 51

(vii)

United States Constitution: Page

Seventh Amendment Art.VII 3,4,24, 51

inth Amendment Art.IX ..... 3,4,25, 51

Fourteenth Amendment Art. XIV...........

TERETE 4, 39, 47, 48, 49, 51, S2

Federal Code - Title

2B USC eco. 12546 2. ww ccc cer eesnecnes 2

2B VRC GOS. ASDE onc ccc ccc ecreceens 4

QB UHC GOS. ASSS 2c ccc screws escrens 4

2B USC SOC. ASES 2. n ccc recess envens +

Ge Gi OC. Be. 8 eee ee ee a ee &, Sa

42 USC @ec. 1965 ....cseenes 4&.- Ga

42 URC GOC. 19GB 2. cc ccccs swans 4, 52

ar. cs ns EE hg ca WO fw 0 ee so 0 ee ‘,. we

50 USC App sec. 501 et seq.... 3, 5, 17

re ee SP Se Th ee ERE OTe 25, 40, 41

50 USC App sec. 464 ........5055. 3, 21

50 USC App sec. 466 (C).......056. 3, 21

50 USC App sec.Si10 .... cee ceee, 3, 27

50 USC App sec. 511 .......... « oe FF

50 USC App sec. 515 .......... >, VV, 32?

50 USC App sec. S20 ......... 3, 25, 31

50 USC App sec. 521 a, 3. 3, VF. TF,

.... 19, 20, 26, 31, S2, 33, 34, 36, 37

SQ USC App SOC. S23 . ww crc cree cnn evens

50 USC App sec. S24 .... cee ee reeces 37

50 USC App sec. 525

TrrrrTrr teers e s 3 & iv, 16, 19, 37

SO USC: App Sec. SSH onc cece c ees nnnvveas

(In 3rd Circuit Opinion Appendix 4a)

Federal Rules of Civil Procedure:

mee. 2. GSO. FP. BRR GB sac cesusesace 3, 41

Pee. B.COe.P. Be BE sees easier 3, 34

Ped. 8. Gie. FP. Behe BD wcosessesss 3, 27

Pee. S. Gi. PF. BOA De sacccocesa 3, 42

Local Court Rule of The United States

District Court For The

Of Missouri:

‘Rule i. F. Attorneys

(viii

Western District

)

Missouri Law Page

Missouri Constitution Art.5 sec.i6 ..4,50

Missouri Revised Statutes:

ee ee en ee ae ee 3, 41

ee ee ee ee ee ee 3, 41

(as effective when complaint filed)

ROPE Was GA onc 4A 654 Senet 48 2 4, 45, S50

oh x 4 AE EE eS Ce ee Pe 3, 42

EN crs 5 a aw oe wc es ae 4, 44

x Pe kis 435 <-004ls als WSs ae ee a ek 4, 42

eT RS ar Peer aor tc OF on Sorat ope 4, 42

Ce 666 e Ue an eee wks salhaa es Or ee

PCS. 4% 60% Can we eee hao eee 4, 42

Cix>-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

JAMES A. MARKER, JR., et al.

Petitioners,

Vv.

WAYNE K. RIESCHEL. et al.

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

Petitioners James and Beverly Marker

respectfully petition oe a writ of

certiorari to review the opinion of the

United States Court of Appeals for the

Eighth Circuit and the decision of the

District Court in this case.

OPINIONS BELOW

The opinion of the court of appeais

is not reported. (la-6a). The two orders

and judgment of the district court are

not reported. (6a-13a). However, photo-

copies of the above ee of the other

appended materials were filed with this

court cn May 26, 1989 when additional

time was requested.

JURISDICTION

The opinion of the court of appeals

(la-6a) was entered on January 9, 1989.

A petition for rehearing was denied March

8, 1989 (la). On May 30, 1989 Associate

Justice Harry A. Blackmun of the Supreme

Court extended the time within which to

file a petition for a writ of certiorari

to July 6, 1989 and on June 26, 1989

further extended the time to August 5,

1989. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254.

CORSTITUTIOWAL AWD STATUTORY

PROVISIONS. INVOLVED

1. 50 USCS Appx sec. 525 (78a-79a) of

main interest. Also mentioned: 50 USCS

Appx sec. 521 (75a-76a).

2. 50 USCS Appx sec. 525 (78a-79a) of

main interest. Also mentioned: 50 USCS

Appx sections 464, 466 ‘c) (70a) 511,

(7la-72a), 5S2il (75a-76a).

3. 50 USCS Appx sec. 521 of main inter-

est (75a-76aa). Also: sec. 525 (78a-79a).

4. The 7Th amendment to the United States

Constitution (57a) of main interest. Aiso

mentioned: the lst, Sth, & 9th amendments

(56a-57a) and Art.IV, sec. 2 par.1

privileges and immunities (55a-56a).

5. 50 USCS Appx sec. 501 et seq., in

relevant part ‘69a-79a). Fed.R.Civ.P.

Rules 15 & 19 (80a-8la). Fed.R.Civ.P.

Local Rule 1.F. (39a-41la) Western Dist.

of Mo.

6. Art. III, sec. 2, par. 1 <SSa)

50 USCS Appx sec. 501 et seq. is also

mentioned (69a-79a).

7. Mo. Law 56.360 (87a-88a), Fed.R.Civ.P.

4 (80a) and 55 (81la-82a), Mo. Law 506.140

and 506.150 (83a-84a), of main interest.

Also mentioned: Mo. Law: 56.010, 56.060,

56.065, 56.070, 56.110, 56.631 (84a-88a) ;

U.S. Const. (55a-58a), 42 USC sections

1983, 1985, 1986, 1988 ‘(61la-69a). Mo.

Const. Art.5 sec.16 (page 50).

JURISDICTION OF THE DISTRICT COURT

The cause of action stated on the civil

cover sheet was:

"u.S. Constitutional and other State

and Federal Violations including but

not limited to: 42 USC 1985 & 42 USC

1983 and others, both Federal and

State." The Federal Question and

Diversity blocks were marked.

Diversity and amount in controversy

exceeds $10,000 exclusive of costs and

interest were also mentioned in the

complaint. All this seems basically to

be covered by: 28 USC sections 1331,

1332, 1343 (59a-61a)

At the end of the appendix is a list of

contents where the page location of each item in

the appendix may be found for easy reference. I

have tried to include whatever law may be

relevant herein.

References td. pages followed by the letter “a”

are to the Appendix to the Petition for

Certiorari.

STATEMENT

In 1940, Congress enacted the Soldiers’

and Sailors’ Civil Relief Act ‘to replace

the earlier Act of 1918) to protect the

legal and other interests of servicemen

and their families. It has been in the

Nation's military defense interest in

both times of peace and war to provide

the protection this Act offers. Congress

has shown their cont inued support for the

Act by reviewing it and making amendments

from time to time over the last 71 years.

The first six questions are primarily

federal questions about the Soldiers’ and

Sailors’ Civil Relief Act of 1940 as

amended, revised and as it is applicable

to this case, also referred to as 50 USC

Appx. sec. 501 et seq. (69a-79a). Part of

the matter before this Court at this

time, in the first six questions, is

whether or not a Stay under sec. 521 of

the Act (75a-76a) and the additional

relief requested shouid have been granted

by the district court or whether the

action taken by the district court: to

dismiss without prejudice, holding out

sec. 525 of the Act (78a-79a) as

protection for both plaintiffs will

protect this service man and his family

under the Act as congress intended.

Several of the questions mentioned

above involve conflict between the

different appeals courts or where state

courts of last resort disagree with

appeals courts. Constitutional questions

that have not, but should be answered by

this Court for all those so situated, are

part of the 6th and 7th question.

The complaint contained: "Demand for

Jury Trial"; prayer for monetary damages

for injures suffered and an injunction

sought to avoid further irreparable

injury; also a request to amend at a

later date for the pro se plaintiffs.

The action taken by the district court

amounts to @ final judgment as far as

co-plaintiff is concerned because, as the

appeals court and other courts has agreed

the tolling provision does not apply to

military dependents as some other parts

of the Act do. The district court had

the duty to stay the action, under the

Act sec. 521 in regards to all parties:

plaintiffs and also non-military

defendants, once they accepted the fact

that Major Marker'’s military duty did in

fact materially affect, or interfered in

his "effectively prosecuting this case”.

sec. 511, 513, 521 (7la-73a, 75a-76a).

We, the petitioners, do not believe the

opinion of the appeals court correctly

reflects the facts in this case, both as

mentioned above and in the following:

The injunction that was requested was

quite different than what was understood

or stated by the appeals court. We filed

this case asking for injunctive relief,

that would compel the county és provide

equal protection and services on an equal

basis with other citizens ‘and reforms)

so that our family and I could hopefully

be safe in the area to facilitate a

resolution of problems that could not be

done by long distance. As you can see

from the injunction requested in the

complatat, a state action was never asked

to be stayed by the Fed. Cts. (36a-39a).

A reading of the request for injunctive

relief and Attorney Lynch’s letter (41la-

47a), and other items from the District

Court. record will reveal the true nature

and purpose of the request for injunctive

relief. Please see Major Markers letter

(25a-27a, par 15-25) also.

Without law enforcement protection I

cannot remain in the area long enough to

resolve anything. We have been trying to

find a way to get the law enforcement

protection we need ever since these

problems began. Attorney Lynch began

representing me on a state action in

middle of 1986. He had represented my

husband earlier in an effort to get a

special prosecutor.

The 8Th Circuit Court opinion states

that the complaint requested a Stay until

1995 when my husbands service ends, this

is in error. My husband does not know,

nor did he know when the complaint was

written when his service would end (27a

para. 24). I later suggested a date

because case law seemed to indicate that

a date was required.

The seventh question concerns the party

in default, Dallas County, and is one

that eddresses important constitutional

questions that again have not but should

also be settled by this Court. They are

matters that might affect anyone from the

larger more heterogeneous population of

the United States who might choose to

travel through, or move to, a very rural

homogeneous area of this country where

hostility exists towards many outsiders,

especially those with different beliefs,

values, skin color, or with family and

friends that are different.

We filed this case because we believed

Dallas County, Mo., and the respondents

violated our civil rights in several

ways, inclucing our rights to equal

protection because of the counties

refusal to provide the services of the

sheriff and prosecutors office on an

equal basis with other citizens. Because

of this repeated refusal of law enforce-

ment protection in face of a variety of

wrongful acts committed by the client of

the local county prosecutor, we the

petitioners, and our other family members

found we could not safely remain in the

area and enjoy our property located in

Dallas County, Missouri.

The petitioners are a military couple

from Aiaska: Major James A. Marker Jr. is

a career military man who has devoted his

life to law enforcement and the military.

He was a Chief of Police and a Squadron

Commander when the complaint was filed.

The Markers have very equalitarian views

and family members of mixed blood, both

distant and closer family members,

including Indian grandchildren, and also

have a well know historical figure on the

family tree who was instrumental in

abolishing slavery. The petitioners had

no problems with the respondents from

1979, when they were transferred from

Alaska, until after some of the above,

and other similar information, was re-

vealed in 1984. We believe our problems

began with, and were motivated by the

above revelations. Unknown to us at the

time was the fact that white surpremacict

activity was wide spread in the county

and area.

Since 1984 there has been wide variety

of harassments where the prosecutors

client: Mr. Burtin, was either a known

participant (sometimes aided by his

friends and relatives) or was the only

person known to be in the area when

various acts occurred, including ‘amongst

many other actions): gun fire near our

house; threats of various types; physical

assaults; attempt on my life; burning of

property; theft and/or damage to

property, both real and personal; regular

removal of no trespassing signs; efforts

to run people off we sent to check on the

place after we found it too unsafe to

stay there because of the repeated re-

fusal of the sheriff to respond to calls

for help, and the lack of help from any

other county officials. We believe we

will be able to show at trial that Mr.

all

Burtin and his friends were clearly aided

by the actions and inactions of the chee

respondents and that there was a

conspiracy to violate our civil rights.

However that is not at issue today.

Jim sought a special prosecutor over

only a part of the criminal acts commit-

ted (where there was plenty of witnesses

and evidence). It was only with great

difficulty and expense that one was

reluctantly appointed. The appointee

immediately dismissed the complaint

without looking at our evidence, talking

to our witnesses, to us, or Jim's lawyer.

We believe we have evidence we couid have

produced, had the county responded and

this matter gone to trial, that the

county judge, now the circuit judge,

acted inproperly to influence the special

prosecutor. In addition he threatened

Jim with a writ of execution if he did

not pay for the special prosecutor's

services in that criminal action. Jim

paid it "under protest” in spite of the

fact we had never heard of the victim of

a crime being required to do so.

Dallas County is a very rural area with

a county seat of 2,217, as of the last

census. Because of information and evi-

dence provided to us we have since found

out the county to be made up of a very

racist electorate who have voted in their

sheriff, judge, prosecutor, and circuit

judge from individuals who grew up in

Dallas County. These officials must de-

pend on the good will of their friends -

and relatives, to be elected and reelect-

ed. In addition the local county prose-

cutor/attorney is allowed to have private

clients. It appears that this practice

has clearly become an effective tool of

white supremacists in the area who wish

to keep the area for their own, without

interference from law enforcement and the

justice systen.

Dallas County is located in a former

slave state that required segregation by

state law until this Courts actions

caused a change as a result of BROWN v

BOARD OF EDUCATION (1954) 347 U.S. 483.

That decision is still being struggled

with in Missouri's cities, where nearly

all her minorities are located, and is

yet to be fully and completely implement-

ed there. Little has changed in most of

the rural areas that Dallas County is a

part of over the years since BROWN except

the methods used to maintain the status

quo: more covert activity.

There has been very little else to

cause Dallas County to evolve in regards

to equality and respect for civil rights.

In fact we believe quite the opposite is

true. The white southerners who settled

much of Missouri were hostile to Indians

(50a). Today, there are no [Indian

reservations in Missouri. The high

population of minorities who voted for

change in the south since the 1960's are

not present. Others who might encourage

change, such as ourselves, seem to be

systematically ejected from the area.

We believe that such a system itself

and the laws and statutes on which it is

founded violates our rights to equal

protection and other rights, and also the

rights of others similarly situated who

might move to such an area. We further

believe the Burtin law suit in state

court was more of a guise and excuse for

other activity designed to get us and our

family out of the county and to hinder us

in obtaining any other relief.

Other materials from the record deemed

necessary to clarify the facts for the

purpose of this petition for a writ of

certiorari are included in the appendix

and will be referred to as appropriate.

REASONS FOR GRANTING THE PETITIOB#

is This Court has never heard a case

about a career military plaintiff under

50 USC Appx. sec. 521 (75a-76a) and there

are several questions that have not been,

but should be, settled by this Court in

regards to the Soldiers’ and Sailors’

Civil Relief Act as it relates to

plaintiffs and the Act, and to resolve

conflict in the appeals and other courts.

The 8Th Cir. has held that my husband

can refile this action later as the

statute of limitations is tolled during

his military service. This is in direct

conflict with what the Srd Cir. has said

in regards to 50 USC Appx sec. 525:

ZITOMBR v HOLDSWORTH (3rd Cir.1971) 449

F.2d 724 at 726, "...This provision

affords him no relief; it simply tolls

the statute of limitations during the

period of military service and has no

applicability to an action duly filed

and served within the applicable

statute of limitations.” also:

ZARLINSKY v LAUDENSLAGER (1961 Sup.Ct.

Pa.> 167 &.a@ 317 at 320 (2) "™... this

Section expressly applies to the

limitation of time for bringing an

action, not to a limitation of time for

the continuing of process in an action

already brought ...”

If tolling is only for the "bringing of

any action” we have had no choice except

to ask this Court to clarify sec. 525

because to do less would risk the end of

even Major Marker's standing.

If the eighth circuit's opinion were to

stand it would create a severe burden on

both military plaintiffs and defendants.

It would mean a military plaintiff who

was concerned over the safety of his

family could file his case over and over

again seeking some sort of injunctive or

other relief from the Courts, creating

great expense for both plaintiff and

defendants. Wot to mention the extra

burden for the Courts themselves.

Whether a service man files an action and

asks for a stay under sec. 521 untii he

is either out of the service or whether

he waits until he is out and files an

action under sec. 525, the effect on

witnesses and evidence is the same. The

same amount of time is passed.

Once a case is filed it appears that

the military person should be given

reasonable protection, and sec. 521 must

be relied upon until — is out of

service or his circumstances change to

where he could prosecute his action.

a There is a conflict over the issue

—_—_—___

of whether 50 USC sec. 525 is applicable

to career service persons between the

11Th Cir. and the 8Th Cir. I believe it

was clear to the district and circuit

courts that Major Marker is a career

serviceman from the papers filed (27a par

24). When a career serviceman is aware

of a case by a Federal Appeals Court,

such as the following Pannell case, the

only prudent course of action seems to be

to file his complaint within the

applicable statute of limitations and 4

for a Stay under sec. 521:

PANNELL v. CONTINENTAL CAN CO. (5th

Cir.1977) 554 Fed 216, 225 (13) "We are

of the opinion the the Soldiers’ and

Sailors' Civil Relief Act, 50

U.S.C. A.App. section 525 is

inapplicable to a career service man

like Cclonel Pannell....”

For a career man to file and ask for a

etay seems most appropriate when filing

later may not be possible, considering

PANNELL, and especially when one is look-

ing for some sort of injunctive relief

that will compel county officials to

preform their duties because the sheriff

will not respond to repeated calls for

help and assistance on a variety of dates

and situations, even those of a life

threatening nature, because the county

attorney/prosecutor has, or has had, the

perpetrator as a private legal client.

What we did was our only option. In

considering which Appeals Circuit is

correct I would call your attention to 50

USC Appx sec. 464, 466(c), 511 (38a-40a).

It important to us and others so situated

to know which court is correct.

McCANCE v. LINDAU 492 A.2d 1352

(Md.App. 1985) at 1355 disagreed with

Pannell and offers a good discussion of

the Act. The McCance couple had a bad

experience but it does not hold a candle

to the endless nightmare we have endured.

If we were to detail all that happened to

our family and ourselves several large

volumes would be needed. We have only

attempted to give a thumbnail sketch.

Another very recent case, in agreement

with McCANCE, that was decided since we

filed our case is MASON v TEXACO (10th

Cir.1988) 862 F.2d 242 at 245.

3. This unprecedented ruling by the

_—_—

_—

Bight Circuit seriously misconstrues

and/or is conflict with this Courts

decision in BOONE v LIGHTNER (1943) 319

US 561 at 571-575 in regards to what the

Obligations are of the district court

when it "...accepts the facts as set

forth in Major Marker'’s letter

relative to the interference of his

military service in effectively

prosecuting this case." (8a last para. &

lla-l3a) if there is any application of

BOONE v LIGHTNER to a plaintiffs action.

LIGHTWER v. BOONE (1942 Sup.Ct. N.C.) 22

S.E.2d 426 at 428 (3) further reveals the

trial court's reasoning in Boone.

Col. Ash's letter (14a-16a) and some of

the other papers in the record makes it

very clear that Jim's ability to

prosecute was materially affected. Jim

even tried to obtain a deferment from the

military to remain in Missouri, but was

unsuccessful. After that he even

submitted papers to leave the military

service-terminate his career-just a few

days before he was due to be promoted,

but the Air Force turned him down. I do

not know what else he could have known to

do legally to remain in Missouri to

resolve these problems (24a para. 14).

We now have copies of much of the Air

Force paperwork to substantiate those

efforts by my husband. Even as a

Commander and officer he did not know

what else he could do. ‘careeeas he

could not proceed unrepresented from half

a continent away, nor forget the problen.

The district court (l2a) makes refer-

ence to "...to the great prejudice of

plaintiffs in that by that time, evidence

may be lost and witnesses misplaced.”

and also talks about the rights of the

defendants. As already stated, there is

no difference in what happens to evidence

or witnesses whether a Stay is granted or

the case is tolled and filed later. The

same amount of time will have passed. A

stay does not make a judgement on defend-

ant/respondents, only preserves the day

for the case to be heard. However, the

rignonts of co-plaintiff are destroyed when

a case like this is dismissed rather than

stayed, and violates the 7th amendment.

. I believe the seventh amendment

protects the right to a jury trial ina

tort action for damages and other relief.

A "Demand for Jury Trail” was very

clearly made at the end of the complaint.

The language was very broad and I feel

certain it fell within the common law.

For the Federal District Court to dismiss

without prejudice was in effect to deny

me any right to be heard and to violates

my rights under the seventh amendment.

PERNELL v. SOUTHALL REALITY (1973) 94

S.Ct. 1723,1727, CURTIS v. LOBTHER (1974)

415 U.S. 189,194-196, DAIRY QUBEH v. WOOD

(1962) 82 S.Ct. 894,896,897, BEACON

THEATRES v. WESTOVER (1959) 79 S.Ct.

948,953-955, in addition to my due pro-

cess rights under the fifth, also ninth

amendment rights, and Art. IV, sec.2,

par.1. (55a-58a), plus my first amendment

rights to a redress of grievances.

Co-plaintiffs should not be penalized

because a military person's military duty

prevents his going to trial, when to deny

them a stay would cause injury to the

interests of the ai litary person:

PATRIKES v J.C.H. SERVICE STATIONS IWC.

180 Misc 917,923 (1943 Sup.Ct. N.Y.) app

den 266 App Div 924. Wor should any

party be denied their day in court:

SEMLER v OERTWIG (1943 Sup.Ct Ia.) 12

HW2d 265 at 275 (10-12).

5. The Soldiers' and Sailors' Civil

Relief Act itself treats plaintiffs and

defendants in different ways. A careful

examination of the Act will reveal that

this is true. (69a-79a). i.e. 50 USCS

Appx sec. 520 (74a-75a) provides for

different protection for military

defendants than plaintiffs. Where a

military plaintiff has been injured and

is looking to the Court for injunctive

and other relief there would naturally be

different considerations than when the

serviceman was accused of causing grief

and injury to others. We would suggest

the following are some of the important

factere this Court may wish to address:

Distance from the Court; Co-plaintiffs

rights; Availability of appropriate

counsel; Local impediments to obtaining

unbiased counsel; Current status of

section 521 (Military lawyers view);

Efforts required of plaintiff to obtain

military dispensation; Conditional stay.

The distance from the Court's

jurisdiction seems a very important

consideration by itself. Absence when

ones rights are being decided or the lack

of opportunity to properly prepare for

OOO

trial is in itself prejudicial: HECK v.

ANDERSON (1944 Sup.Ct. Ia) 12 NWWed 849 at

851 (2,3) first para. The lowa Supreme

Court indicates at 852,853 (6-8) that a

stay could be granted to others, "...so

far as, necessary to protect the

interests of the service..." person, also

FATRIKES v J.C.H. SERVICE STATIONS INC.

180 Misc 917 at 922-924, (1943 Sup.Ct.

N.Y.) app den 266 App Div 924, and;

SEMLER v OERTWIG (1943 Sup.Ct Ia.) 12

NWed 265 at 275 (10-12). Certainly if

co-defendants are proper candidates for a

stay when the interests of the service

person are affected than certainly when

co-plaintiffs are wife or other of the

serviceman's financially dependant family

members, the actin should be stayed as to

all parties in the actic,. 50 USC Appx

sec. 513 mentions dependents, sec. 510

(70a-73a) Acts purpose, Fed.R.Civ.P. Rule

19 (80a-8la) joiner of persons needed.

ofl

We need to be together on this action.

Jim thought he had an attorney who

would represent him in this case in

September 1985, but as you can see from

Attorney Lynch's letter (41a-47a) it was

much too threatening to his practice to

challenge the local system. Mr. Lynch

helped us on other matters: Jim in 1965;

and than me in 1986, but could not bring

cimanve to do anything about what even he

saw as the real problem-the problem of

inequality in the Dallas County system.

Jim really never had a chance to try and

find another attorney in the area and my

efforts to find other attorneys found the

same problems Mr. Lynch had. Jim

discussed this problem in more detail in

his letter requesting a stay filed May

26, 1989 with this Court. Plenty of

lawyers thought the system needed

changing-but thought someone else should

do it, mentioning conflict of interest.

Some thought their practice would be

destroyed. ! have heard of endless

people hurt by the system as it is. I

think the only hope for change can come

from a suit such as ours.

The availability of unbiased Counsel

who's first concern is for the client and

the ability to freely consult with such

counsel, person to person, is very

important. Any restricting rules becomes

even more important when one is in

mtlitary service half a continent away.

When Fed.R.Civ.P. local rule 1.F.

restricts representation to the "Division

thereof” (39a-41la), this presents real

problems: obtaining representation that

is unbiased, the attorney is after all a

part of that same small legal community,

and his livelihood depends on their good

will; attorneys see a conflict of

interest in representing someone in a

suit that addresses problems that are

common to the other rural counties in

this very limited area; Some of the

problems | am addressing are similar to

what Mr. Lynch mentioned in his letter.

Local rule 1.F. seems to effectively

impede any action that would challenge

the local system abuses in this rural

area and impedes our ability to resolve

any-of our problems. Wot being lawyers

“ it hard to understand the purpose

of this Rule 1.F. It seems any good

decent lawyer from anywhere could handle

the matter. I have even wondered if this

did not constitute a restraint of trade?

We hope this court would look at this

rule and see if it needs modification, at

least where military, outsiders, etc. are

concerned in this type of case.

It seems that there should be pro-

visions in the rules to eliminate this

type of conflict of interest especially

for absent military persons and their

family members who are domiciled in

another state, and now stationed far from

the Court's jurisdiction and the area

where they were injured. He should have

the ability to have an attorney more of

his choosing without having to have an

attorney from the "division thereof”

rubber stamp the action. An unbiased

legal system and counsel seems the very

heart and soul of our judicial systen.

To refuse a Stay for many of the cases

where defendants are represented seems

reasonable. Especially since Courts will

frequently use section 520 (3) to appoint

an attorney. But to use the same yard

stick for the injured military plaintiff

seems not to be within the meaning of 50

USC section 521 or the spirit of the Act.

In CONTINENTAL ILLINOIS WAT. BANK &

TRUST CO. v UNIVERSITY OF HOTRE DAME

(1946 Sup.Ct. ILL) 69 WE2d 301 at 304-305

(3) the ILL. Supreme Court upholds the

serviceman’s right to not only be present

at trial but to be able to participate in

the presentation of his case, even if he

has counsel. However in most cases the

servicemember has been denied a stay when

he has an attorney. Almost always BOONE

vy LIGHTNER (1943) 319 U.S. 561, 571-575

is cited in these cases.

Military lawyers have published many

articles that indicate that a combination

of rulings by the lower courts has served

to almost totally eliminate protection

that congress wanted to provide for the

military under 50 USCS Appx section 521.

They suggest that what ever you do, if

you need a stay under 521 do not hire a

lawyer! Have anyone else ask for the

stay: your wife; your mother; someone in

the military chain of command; anyone but

a lawyer. The most recent article I have

seen on this was in "The Army Lawyer"

Feb. 1989. I am certain this Court did

not intend to nullify the Act in regards

to sec. 521, nor send the current message

that: if you need a stay one best not

have an attorney for representation.

When congress drafted the words in

50 USC Appx sec. 521: "...on application

to it by such person or some person on

his behalf...” I do not believe that

congress meant for plaintiffs to have to

file their own cases to utilize sec. 521

or to enlist the help of their mothers,

wives, fellow military members, or anyone

else not trained in the law to obtain a

stay. We do not believe we can proceed

against the other plaintiffs alone. That

is one of the several reasons why a stay

was requested in the first place and the

request to amend our suit later was made.

This issue is very important not only to

us but others that come after us. We

need to know if we can acquire a lawyer

and what effect that has on obtaining or

retaining a stay under sec. 521 (75a).

Not being lawyers we also asked for

the right to amend the action when it was

reopened as we hoped to be represented

than: THOMPSON v REEDMAH (1961) 201

F.Supp 837,838 (4) states in part, "Leave

to amend ‘shall be freely given when

justice so requires.’ FED.R. CIV.P. rule

15<a), 28 U.S.C.A. The Courts have shown

much liberality in allowing amendments.

TARIR ERK v. GLENN L. MARTIN Co. 116 F.c2a

864 (4th Cir. 1941)." at 871.

Wo plaintiff who has been injured

should have to SACRIFICE THEIR LIVELIHOOD

TO OBTAIN JUSTICE. As discussed earlier

husband tried to get a deferment to

remain in Missouri and other dispensation

from the military to keep him stationed

as close as possible so as to do what he

could to resolve our problems (supra 22-

23>. He was so desperate for help and so

concerned about leaving me behind in such

a hostile situation he almost ended his

career in the process. We can only be

grateful that the Air Force did not grant

Jim his request to leave the Air Force.

We have needed the income to fight this

legal battle.

The Air Force expects their service

people to go where they want them to go

when they want them to go, to put the Air

Force and the defense of their country

first. I am concerned that many Judges

may not understand what military life is

like. They may have never served, or if

so as legal officers, or pilots entitied

to certain protections such as crew rest.

Such duty may be quite different from

other servicemen. Wormally one has

little control over when and where you

are sent. Life is uncertain because our

national defense needs can change

rapidly. For a plaintiff to have to

consider abandoning a career which the

U.S. government may have spent many

thousands-in some cases millions training

the individual for, seems unreasonable,

especially in the case of a plaintiff.

I have selected parts of Jim's letter

dated May 5, 1988 that you may wish to

read to more fully understand what was

said to the District Court on this matter

(17a-25a). These parts particularly

irene some of the probiems he faced in

regards to his career and duty. This is

the letter the Court required him to

write and is referred to in the District

Court orders (6a-13a). My husband did

every thing he could. For military

plaintiffs to have to be so concerned

about civilian legal problems is not in

the interest of either the serviceman or

the country he serves.

I can understand that career military

plaintiffs present a different problem to

the courts with regards to sections 521

and 525 than those who enlist for a short

time. However, nearly all officers are

on indefinite assignments. The except-

ions being primarily those with short

term commitments made because of Govern-

ment provided schooling. Many NW.C.O.

even though they have a discharge date

are none the less career persons. With

sec. 525 the same time passes. I do not

see anything-in the Act or sec. 521 that

would preclude the court from granting a

stay with conditions. Section 524 (77a-

78a) provides for the stay to be SUBJECT

TO SUCH TERMS AS MAY BE JUST.

It seems reasonable that the court

could include language that would subject

the stay to re-examination if it could be

shown the plaintiff had been reassigned

to the jurisdiction of the court and had

been there for more than 90 continuous

days and had not sought to proceed with

the action himself, as most plaintiffs

would want to do. This would seem to

protect ail parties.

I don't know if a stay could include

any language that would allow any

discovery to preserve evidence without

violating the stay itself, but if that

could be done it seems that it should be

something the military plaintiff should

be able to initiate when duty would

permit, if he had an attorney to help him

and if a time convenient for the

defendants could also be found. I can ~

see where in many cases a military

plaintiff may not be able to proceed with

the action, but may be able to initiate

come limited discovery and that might be

desirable for all if it was possible

under the stay.

6. This question addresses the

application of abstention to this case.

The 3rd Cir.Ct. sets out 3 criteria for

applying this doctrine in:

DECK HOUSE v WEW JERSEY ST. BD. OF

ARCHITECTS (1982) 531 F.Supp. 633 at

642 "...¢i) the state proceedings

reflect strong and compelling state in-

terests; (ii) the state proceedings are

adequate to vindicate federal claims,

and ‘(iii)» federal intervention

would be substantial and

disruptive....”

In our case the state proceedings do

not even address the problems in this

case, Lynch (41a-47a). In this Federal

case we are trying to get equal

protection and other federal interests

addressed and they are no part of the

state action. The state proceedings will

not address the federal claims and our

other rights including those under the

14th amendment.

ZWICKLER v KOOTA (1967) 88 S.Ct 391 at

395 (4) this Court held that the federal

judiciary is to give due respect toa

suitor's choice of a federal forum and:

KUSPER v. PONTIKES (1973) 94 S.Ct. 303

at 306 (2,3) "...abstention would

amount to shirking the solemm respon-

sibility of the federal courts to

‘guard, enforce, and protect every

right granted or secured by the

constitution of the United States...”

We believe isianes ten eeiset and a Stay

under 50 USC Appx section 501 et seq.

should have beer granted and Federal

jurisdiction should have been retained by

the Federal District:

"... Once the state proceedings are

terminated, any further action in

federal court would interfere with

important stat: interests no more than

does any other suit brought under

section 1983."" WILLIAMS v RED BANK BD.

OF ED. (3rd. Cir. 1981) 662 F.2d

1008,1024. and;

Art. If, eeac. 2, par. i (Sa

Without some sort of injunctive

relief, and/or a ruling from this Court

on question seven, we will suffer

irreparable injury. We have already been

deprived of our rights and suffered great

loss over a number of years because of

this unequal treatment and should not

have to suffer further.

7. This question goes to the default of

—_ -—

Dallas County and whether this Court or

any court or clerk can address the

default and such issues that may be part

of the relief prayed for when a request

for a stay is acted upon under 50 USC

Appx. sec. 501 et seq. In the interest

of brevity and because of the need to

know if this Court will consider the

constitutional questions and injunction

prayed for, as it relates to Dallas

County, we will keep _— commentary

short. The injunction requested contains

within it subsidiary questions of

constitutional law (36a-39a).

First, I wish to present why ! believe

good service was had and why I believe we

are intitled to a default judgement. The

law was complied with: Fed.R.Civ.P. Rule

4 (80a); Missouri laws 506.140, 506.150

(83a-84a) as applicable when the

complaint was filed (33a-39a). Summons

were servec twice and this Court has

copies on file (Filed: May 26, 1989),

The prosecutor, who answered for

himself, had a duty to answer for both

Dallas County and the State of Missouri

or find someone else to do it for him Mo.

law 56.060 (84a-85a). He could have had

the court appoint someone if he felt it

was not proper for him to make the

Selection of a substitute attorney Mo.

law 56.110 (87a). The exceptions to this

duty is covered by Mo. Law 56.070 (86a).

When a county counselor should be

appointed to handle the exceptions is

covered by Mo. Law 56.631 (88a). Dallas

County is not a first or second class

county so there were no exceptions. It

was Mr. Wayne K. Rieschel’s duty to act.

Fed.R.Civ. P. Rule 55 (81a-82a)

provides for a default judgement against

Dallas County. Any neglect of a duty by

county officials does not affect the

validity of the service or judgment we

are entitled to: KNOX COUNTY vy HARSHMAH

’

(1890) 10 S.Ct.257 at 258. When Mr. Cox

and Mr. Rieschel answered for themselves

they can hardly say that they did not

have any knowledge or notice thereof or

that county officials were uninformed.

This Court held under such circumstances

the county has no right to question such

actions that may result from their

default and that plaintiffs do not need

to go through the normal procedure of

proving their case to obtain the judgment

or other relief desired:

UNITED STATES v COUHTY COURT (1887)

7 S.Ct 1171 at 1175. "...The averment

to that effect in the petition in the

action, if material and traversable,

was confessed by the default .... If

the defendant had denied it by a proper

pleading, the fact would have been put

in issue, and the plaintiff would have

been bound to prove it....”

However, I do believe we are obligated to

present more that has been presented thus

far.

Missouri law 56.360 (87a-88a) allows

the private practice of prosecutors in

places like Dallas County. Mo.Law 56.065

(85a-86a) prohibits private practice in

certain first and second class counties.

Private practice is allowed in Dallas

County under 56.360 and as a result of

this we have been deprived of the

peaceful enjoyment of our home and

personal property just as surely as Mrs.

Freenstra was in KIRCHBERG v FEENSTRA 450

US 455 at 460,461 This Court held that

to have to”... made a ‘declaration by

authentic act’..."” to protect her

interests did not redeem the basic

inequality and "...the ‘absence of an

insurmountable barrier’ will not redeem

an otherwise unconstitutionally

discriminatory law...”

There is no overwhelming state interest

in continuing with this provision, such

as there was when the state was new, when

travel by horse and buggy could take a

day for twelve miles and there were no

phones. If our state of Alaska can

manage with a approximately twelve

district prosecutor system, Missouri,

much smaller and with more and better

means of communication can manage also

with district prosecutors that are not

allowed private practice. There are

endless numbers of people ready and

willing to do the job if the changes are

made in Mo. law 56.010 (84a). This

provision now weibe to assure that a

local fellow will be prosecutor and tends

to perpetuate the local problems as far

as those coming into the county with

different ideas, skin color, etc.

To allow this unholy marriage of a

private persons interests with the power

of the state by allowing a private person

to hire a county prosecutor has enabled

the private person to influence, if not

command, the degree of law enforcement

protection and other services provided to

us. Certainly everything that has

happened here, criminal acts included,

appear to have been done with the full

Support and permission of the Dallas co.

authorities.

Both private practice and the current

selection to office method used in a area

such as Dallas County puts those on the

state pay role in the position of having

their livelihood depend on their

decisions. They do not need to simply

perform tueir job, and dispense justice,

but they must consider if they will loss

their jobs if they do not bend to the

prejudices and whims of both their

private clients and their friends,

relatives, aunts, uncles, cousins: the

local electorate, who put and keep them

in public office.

Private practice by prosecutors allows

someone who makes judge like decisions

about who is to be prosecuted, when law

enforcement is to act, who is allowed to

do as they please, to have "substantial

pecuniary interests” and adjudicate

disputes from an unlevel playing field.

GIBSON v BERRYHILL, (1973) 93 S.Ct 1689

at 1699 (7). Even the slightest

pecuniary interest of any officer,

judicial or quasi judicial invalidates

his decisions TUMEY v STATE OF OHIO

(1927) 47 S.CT. 437 at 441.

A personal, substantial pecuniary

interest by a decision maker violates the

14th amendment and due process. Statutory

provisions to over sie such an

inequality are not sufficient under

principles laid down by this Court in

WARD v VILLAGE OF MONROEVILLE, OHIO

(1972) 93 S.Ct. 80 at 82-84 (1) [2,3] [4]

Ability to ask for a special prosecutor

does not overcome the basic inequality.

The incentive needs to be directed to

justice and support of the U.S.

Constitution rather than to the above

pecuniary incentive. The 14th amendment

and Art VI par.2 & 3 (56a-58a) creates a

further obligation on local government,

below the federal level, to be certain

the laws are ones that achieve those ends

to the greatest possible degree at the

current point in history, understanding

of undesirable consequences, current

techaaiaay, and still achieve an orderly

society. There is also a county duty to

run the schools and to train officials to

better understand their constitutional

duties and individual rights in an effort

to combat local prejudices that clearly

lead to i4th amendment (58a) violations.

There is a special obligation when:

groups known to have such violation of

equality as their main goals and claim to

want to pass(ed) laws to accomplish their

objectives (48a-49a); when such groups

are known to be active in the area (47a-

48a); when they claim to have infiltrated

the system itself (50a-53a); and official

action tends to lend support to such

groups (49a -50a, 52a, 54a).

We as a nation can do better in the

Dallas Counties of America.

KUSPER v PONTIKES (1973) 94 S.Ct. 303

at S07 (5). If freedom to associate is a

protected right under the constitution

than certainly we bioula be able to have

and enjoy our Indian grandchildren and

friends regardless of their skin color at

our property in Dallas County and we

should all be able to enjoy the property

with the expectations of fair and equal

treatment from Dallas County, Art. IV,

sec.2, par.1 (56a), 14th amendment (58a).

Without the relief asked in regards to

the county in the complaint we will

suffer further irreparable injury. We

have already been deprived of the

peaceful use of our farm, our home and

personal property all these years since

1984; put to great expense to only be

able to protect our interests in a very

limited way; required medical treatment

for the resulting physical problems;

denied protection from criminal acts or

even investigation into the acts; and

suffered a break in this spring reported

to the court and attorneys for the

imeriee and prosecutor, but no return

communication was received on the matter,

plus much, much more.

The system in Missouri cities may be

very good. But the playing field will

not be level in places like Dallas County

until another method of selecting

prosecutors and local Judges is devised

rather than Mo. Law 56.010 and Mo. Const.

Art. 5 sec. 16. "...associate circuit

judges shall be elected in the county in

which they are to serve.” (adopted Aug.

3,1976) and private practice is ended

(supra 43-47).

States that build up sites to honor

those who divided this nation:

confederate monuments and museums with

tax payers money rather than civil war

historical sites certainly help to foster

racist beliefs within their borders

(54a). We find what is going on in

Dallas county and Missouri to be

outrageous and eksthing, yet the facts

are there (47a-54a). The facts, as I see

them, places those responsible as coming

very close to giving aid and comfort to

the enemies of democracy in violation of:

Art. III, sec.3, par 1; Art. I, sec.10,

par.1 (55a) and in neglecting to uphold

Art.VI, par.3 (55a-56a), our whole

Constitution all amendments, including

the Bill of Rights and the 14th amend-

ment. The oath required in Art. VI, par.

2 & 3 (56a) should also bind them to

positive action in training subordinates

and teaching school children about equal-

ity and respect for others rights, etc.

It seems self evident that a judicial

system as described in the statement

beginning this petition, such as Dallas

County has, violates the 14th amendment

and the laws passed under it (56a-70a).

It is wise that Judges and prosecutors

are immune from being sued in their

official capacity, they need as much

independence as justice will allow.

However, the reasons behind such immunity

are compromised when prosecutors and

Judges are chosen by a vote in a place

like Dallas County. The local citizens

can and will turn them out of office if

they do not do their will to a very large

degree. Their independence is only an

illusion and in such places and an

impartial decisionmaker and a fair

decision process does not exist. The

conflict of interest is too great to be

overcome. Where does that leave the

outsider wit views, beliefs,

skin color, etc? Add to that the private

practice and someone like us faces an

insurmountable wall of inequality.

The right to vote for representation

and those that pass our laws is nearly

sacred in a democracy and guarenteed

under our form of government, but our

founding fathers made ne such provision

for the selection of those chosen to

interpret our laws, in fact on the

federal level it is quite to the

contrary. Prosecutors have to be

considered with Judges because of the

nature of their duty. They must make

judgments about the law when they decide

whether or not to prosecute.

The Mo. rural system may have made good

sense a century ago and was perhaps the

best that could be done than, but today

we as a nation can do better. Only this

: 53

Court can mandate such a consideration o:

this matter of such magnitude. It is in

the interest of the legal system, judges.

eo lawyers, prosecutors, the general public

and all those of good will with a sense

of justice and fair play that you do so

consider this matter. Not to allow

replacement with another unequal systen,

but to mandate safe guards built in to

give confidence to the stranger or

minority that justice will truly prevail

and if they believe it does not, a well

known place to go to lodge compiaints

that will be taken into consideration

upon selection or reselection of those

for office or advancement.

Unless "all persons” as the amendment

reads, are able to count on the whole

government: State, Federal, and the

Courts to treat them all equally under

the law we will again soon have "A Watior

Divided” part protected by the law and

EEE

part not protected. The hostility that

will grow from that will undo all the

progress America has made. It will be a

Nation different than we want for either

cur Indian or white grandchildren or for

our friends of many colors.

CONCLUSION

For the foregoing reasons, the writ of

certiorari should be granted.

Respectfully submitted,

James A. Marker, Jr., and

Beverly J. Marker, pro se.

P.Q. Box A

Langley AFB, Va 23665

(804) 766 2196

Beverly J. Marker

217 East 2nd St. So.

Newton, Iowa 50203

(alternate address

when in midwest)

— ee

APPENDIX

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT Marker v Rieschel, et al.

Ho. 88-1905 ORDER Filed: April 7, 1989

"A petition for rehearing and rehearing

en banc was denied March 8, 1989, and the

mandate of this court issued March 17,

1989. Since that time appellants have

filed a motion for stay on March 21,

1969. As the mandate has issued, this

court has no further jurisdiction in this

case. Appellants are notified that

further filings may result in imposition

of sanctions.”

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT Marker v Rieschel, et al.

No. 88-1905 OPINION Filed: Jan. 9, 1989:

"James and Beverly Marker appeal pro se

from the district court (1) order dis-

(1) The Honorable Russell G Clark, United States

District Judge for the Western District of

Missourl

missing their complaint without

prejudice. We affirm.

The Markers filed this diversity suit

on Wovember 27, 1987, alleging various

constitutional violations arising out of

a boundary-line dispute with their

neighbors, Earnie and Mae Burtin. Samed

as defendants in their complaint were

Wayne Rieschel (the county prosecuting

attorney) ,—Jerry Cox ‘(the county

sheriff>, and the Burtins. Included in

the complaint was a request for a stay

pursuant to the Soldiers’ and Sailors’

Civil Relief Act of 1940, 50 U.S.C.

section 521, until the year 1995, when

James Marker completes his military

service, and 4 request for an injunction

of a pending state court action involving

the same property dispute.

On February 9, 1988, the district court

granted the Markers a temporary stay

until May 13, 1988, and directed them to

advise the court of any facts which

materially affected their ability to

prosecute their case. The Markers

responded that James Marker’s military

service interfered with his effective

prosecution of the case, and requested

the court to stay the cause of action

until 1995.

The district court dismissed the

Markers’s complaint without prejudice,

finding there were no facts to support a

stay. In reaching this result, the court

noted that the underlying property

boundary dispute was pending in state

court, and that the issue was not complex

nor would it take an extended period of

time to resolve. In addition, the court

noted that the Missouri statute of

limitations governing the Markers’ cause

of action tolled during James Marker's

military service, and that it was not in

the interests of the defendants, the

Markers, or of the court to have the case

pending until 1995. This appeal followed.

Title 50 U.S.C. section 521 provides

that the court in which an action is

pending has the discretion to stay the

proceedings if the ability of the

plaintiff to prosecute the action is

‘materially affected by reason of his

military service.’ The stay provision is

not mandatory and the court has the

ultimate discretion in determining, from

all the circumstances of the case,

whether a stay is warranted. Boone v.

Lightner, 319 U.S. 561, 564-65 (1943);

Taber v. Miller, 389 F.2d 645, 647 (3d

Cir.), cert. denied, 391 U.S. 915 (1968).

The stay provision applies only to

persons in military service. Growder v.

Capital Greyhound Lines, 169 F.2d 674,

ers <o.G. Gir. ix966).

Title 50 U.S.C. section 535 mandates

that the statute of limitations governing

a suit in which a serviceman is a party

be tolled during that person’s military

service. Bickford v. United States, 656

F.2d 636, 640 (Ct. Cl. 1981). Spouses of

servicemen are not entitled to the

benefits of the tolling provision of this

section. Lester v. United States, 487 F.

Supp. 1033, 1039 (H.D.Tex. 1980).

We find no abuse of discretion in the

district court's refusal to stay the

Markers’ cause of action until 1995,

particularly considering that the

applicable Missouri statute of

limitations is tolled during James

Marker's military service. Although the

Markers correctly note that Mrs. Marker

does not receive the benefits of the

tolling section, she also is not entitled

to a stay.

Furthermore, as noted by the district

court, there is currently a quiet-title

action pending in state court which

addresses the underlying property dispute

in this case. Principles of abstention

are particularly appropriate when state’s

property rights are involved, Luecke v.

Mercantile Bank of Jonesboro, 720 F.2d

15, 16-17 «8th Cir. 1983), and as a state

action is pending, the state law

questions can be resolved without lengthy

delay. Edwards v. Arkansas Power & Light

Co., 683 F.2d 1149, 1157 («8th Cir. 1982).

We have considered the Markers’

remaining points of error and find them

to be without merit.

Accordingly, we affirm.”

UNITED STATES DISTRICT COURT WESTERN

DISTRICT OF MISSOURI SOUTHERN DIVISION

Marker v Rieschel, et al. Wo.87-3650-

CV-S-4 ORDER Filed May 20, 1988

"On February 9, 1988, the Court entered

an order staying any action in the

above-captioned case through May 13, 1988

on the basis that one of the plaintiffs

James A. Marker, Jr. was in the military

service. The Court directed Major Marker

to file a report in writing advising this

Court of any facts existing at that time

which would materially affect his ability

to prosecute his action on or before May

6, 1988. Under date of May 5, 1988, the

Clerk received a nine and one-half page

single spaced typewritten report from

Major Marker. In conclusion he indicated

that he felt that his military service

would prevent him from prosecuting this

action until his release from same and

requested a stay until December 31, 1995.

Major Marker did not indicate any efforts

which he had made to obdtain a leave or

other dispensation from the military

authorities which would give him an

Opportunity to prosecute this action.

The Court is aware that there is a

quiet title action pending between Major

Marker’'s wife Beverly Jean Marker and

Farnie and May Burtin. In short, the

underlying dispute in this case is over a

property boundary line and the state

court action seeks to resolve that issue.

Disposition of this issue is neither

complex nor would it take an extended

period of time in which to try the issues

involved and dispose of that case.

The Court will accept the facts as set

forth in Major Marker'’'s letter dated

April 29, 1988 and filed in this case on

May 5, 1988 relative to the interference

of his military service in effectively

prosecuting this case. However, as

pointed out in the Court's Order of

February 9, 1988 the Missouri statute of

limitations is tolled pending Major

Marker's military service. It certainly

is not in the interests of the defendants

in this case to have it pending beyond

the date of December 31, 1995 nor is it

in the interest of the business of this

Court. This Court seriously doubts that

it is in the plaintiffs’ interest to

postpone the disposition of this case

until sometime after December 31, 1995.

It is the opinion of this Court that it

would be in the interests of justice and

in the best interests of all pzrties

concerned for the case to be dismissed

without prejudice to a refiling by

plaintiffs. Therefore, it is

ORDERED that the Clerk is directed to

enter a judgement of dismissal without

prejudice."

UNITED STATES DISTRICT COURT WESTERN

DISTRICT OF MISSOURI SOUTHERN DIVISION

Marker v. Rieschel, et al.

No. 87-3650-CV-S-4

JUDGEMENT IB A CIVIL CASE: May 20, 1988

"Decision by Court. This action came

to a determination before the Court. The

issues have been determined and a

decision has been rendered.

It is ordered and adjudged That this

case be dismissed without prejudice."

UNITED STATES DISTRICT COURT WESTERN

DISTRICT OF MISSOURI SOUTHERN DIVISION

Marker v Rieschel, et al. Wo. 87-3650-

CV-S-4 ORDER Filed: February 9, 1988

"A motion for a stay of the proceeding

in this case has been filed by Beverly

Jean Marker on behalf of James A. Marker,

Jr. who is presently in the military

service located at Homestead Air Force

Base at Homestead, Florida. She alleges

that because of the military service of

her husband, his ability to prosecute

this lawsuit is materially affected.

Under 50 U.S.C. section 521, it is

provided that upon the application of a

party in the military service or on

application by someone on his behalf, any

10 a

legal proceedings shall be stayed unless

in the opinion of the Court, the Court

determines that the service person's

military service does not materially

affect the person's ability to prosecute

or defend the action. Based upon the

allegations set forth in the motions of

Beverly Marker and facts set forth in the

letter of Robert K. Ask, James A Marker's

commanding officer, this Court is unable

to say that the ability of James A.

Marker, Jr. to prosecute this action may

not materially be affected by reason of

his military service.

It would appear that a stay is being

sought through July 31, 1995 or at such

other time as plaintiff James A. Marker,

Jr. determines that his military service

does not materially affect his ability to

prosecute the action.

This Court has an obligation to see

that cases on its docket are processed in

a speedy and effective manner. To etay

the case until July, 1995 appears to this

Court to be to the great prejudice of

plaintiffs in that by that time, evidence

may be lost and witnesses misplaced. In

addition the defendants have a right to

an early determination of their liability

if any to the plaintiffs in this case.

50 U.S.C. section 525 tolls the statute

of limitations while the plaintiff James

A. Marker Jr. is in military service so

even on a dismissal of plaintiffs’

complaint, a later filing promptly after

Major Marker’'s discharge from service

would net be barred by the Missouri

statute of limitations. It appears to

the Court that it would be in the

interests of justice to promptly process

this case to a conclusion; however, in

view of the motion for stay, the Court is

of the opinion that it must stay the

action temporarily. The Court will grant

12 a

the motion for stay through May 13, 1988.

Plaintiff James A. Marker, Jr. will be

directed to inform the Court in writing

on or before May 6, 1988 as to the facts

existing at that time which support his

position that by reason of his military

service, his ability to prosecute this

action is materially affected. Any stay

beyond May 13, 1968 will result in the

Court either entering an order

statistically closing this file or

dismissing it without prejudice.

Therefore, it is

ORDERED that plaintiffs’ motion for

stay is granted through May 13, 1988; and

it is further

4 ORDERED that on or before May 6, 1988,

plaintiff James A. Marker, Jr. shall

report in writing to this Court any facts

existing at that time which would

materially affect his ability to

prosecute this action.”

13 a

UNITED STATES DISTRICT COURT WESTERN

DISTRICT OF MISSOURI SOUTHERN DIVISION

Marker v Rieschel, et al. Wo. 87-3650-

CV-S-4 LETTER REFERRED TO IB ABOVE

ORDER of February 9, 1988 From:

ROBERT K. ASH, JR., COLONEL, USAF

DEPUTY COMMANDER letter dated Dec 29,

1987 (Hote on page 7 above the name is

misspelled in the order as: Ask.)

"The purpose of this letter is to

provide current information on the

military service status of Major James

Marker. Be advised that I am currently

serving as the Deputy Commander, 3ist

Combat Support Group, Homestead Air Force

Base, Florida, and have been continously

assigned here since July 1985; first as

Director of Tersonnel, and now as the

Deputy Commander. In these capacities, |!

have been closely associated with Major

Marker and maintained control over his

service record.

14 a

Major Marker is on extended active duty

with the U.S. Air Force. He is presently

the Commander of the 3ist Security Police

Squadron and has been continuously since

May 1985. In this capacity, his duties

require his virtually constant presence

to include his frequent, immediate

availability during nonduty hours.

Please note that shortly after his

arrival from Whiteman Air Force Base,

Missouri, our mission changed from a

training wing to an operational Tactical

Fighter Wing. This change significantly

altered our security requirements and

proportionally compounded the complexity

and demands embraced in the key command

position he fills. During the past year

and a half, he faced a demanding schedule

of multiple, important wing exercises and

inspections that precluded predictable or

lengthly leaves away from his duties. As

the 31ist Tactical Fighter Wing continues

its preparation toward full operational

capacity, we face another series of

crucial inspections and other major wing

responsibilities which require Major

Marker's personal presence here at

Homestead Air Force Base. As a result,

he has been and will be unable to make

reqular or extended visits to Missouri to

pursue the interests addressed in the

case filed in U.S. District Court in

Springfield, Missouri, on 27 Wov 87,

# 87-3650-CV-S-4.

I have been briefed on the nature and

complexity of this case and believe the

requirements for a STAY as provided for

in the Soldiers and Sailors Civil Relief

Act, 50 USCA App 521, are met and are

both appropriate and fully supportable.

The situation described in paragraph 33

of the case is accurate to the best of my

knowledge to include the likelihood of a

near-term reassignment from Homestead Air

Force Base."

16 a

UNITED STATES DISTRICT COURT WESTERS

DISTRICT OF MISSOURI SOUTHERN DIVISION

Marker v Rieschel, et ai. No. 87-3650-

CV-S-4 LETTER OF MAJOR JAMES A. MARKER,

JR. FILED WITH THE DISTRICT COURT May 5,

1986, letter reads in part:

"1. The purpose of this letter is: to

provide the information concerning facts

which would materially affect my ability

to prosecute this action....

3. Prior to my arrival here at

Homestead Air Force Base (HAFB). the

mission of the base was to train pilots

and to host the United States Air Force

Conference Center for top civilian and

military leaders from both our nation and

other nations. Additionally, the 3lst

Tactical Training Wing maintained a

Professional Military Education (PME)

school and other activities for members

from HAFB and other Air Force bases.

Since my arrival, the mission of HAFB has

changed from one of training to one of an

Operational tactical (eeter wing. The

base still hosts the United States Air

Conference Center and PME school, while

continuing with many other activities.

4. The full impact on activities that

changing the mission of a base has on

people’s working hours, especially

Commanders like myself, is difficult to

convey to someone like yourself not

involved in such a transition....Colonel

Ash, in his letter, gives you some idea

of what is involved with the transition

to the 3ist Tactical Fighter Wing, and

his expectations for the near future for

HAFB to fine tune our capabilities; we

will be very busy, ‘spelled Colonel Ash

not Colonel Ask).

5. Homestead Air Force Base (HAFB) is

located south of Miami, Florida. In fact

some of our base personal reside in

Miami. To the best of my knowledge HAFB

18 a

is the most southern military base that

the United States has located on the

mainland of the United States of America

(USA); we are the closest to Cuba and our

other neighbors to t. > south involved in

those issues in the news that are of such

vital concern to our nation at this point

in history.

6. My duties and responsibilities have

been covered to some degree by previous

communications from others, however it

seems desirable to touch on this subject

again, bearing in mind that there are

some subjects I can not cover due to

their sensitivity. As Chief of Police

here at HAFB and as 3lst Security Police

Squadron Commander (31st SPS/CC), I wear

"two hats” so to speak. I am responsible

for law enforcement at HAFB, working in

cooperation with the Metro Dade Police

Department, FBI, and various other law

enforcement agencies....close enough to

19 a

Miami that, unfortunately, criminal

activity bleeds over into the HAFB

community.

7. My squadron also provides the

security for all the resources on base,

including the fighter aircraft and the

equipment that supports a fighting

mission, as well as security for those

individuals that use the Conference

Center....the Air Force sent me to two

anti-terrorim schools. My men have all

been mobility trained in airbase ground

defense...One must remember the Air Force

has no infantry...From time to time, men

from my squadron are deployed to other

bases worldwide, wherever they are

needed. But that is about all I can say

on this issue.

8&8. My work days are long. I normally

spend twelve hours or more in the office

daily, plus time on the weekends,

holidays, down days, and evenings.

20 a

I routinely receive telephone calls at

night or communication by radio on law

enforcement or security matters...

(my note: here is listed 1/2 to 3/4

page of additional duties and meetings he

needed to keep on top of, this list would

take up several full pages here. )

11. Since filing the complaint, I have

been approached by Tactical Air Command

Headquarters at Langley Air Force Base,

Virginia, concerning overseas assign-

ments. In January 1988, they asked me if

I would take an assignment to Japan.

Because I still did not have anything in

writing about the Stay, and because of

concern for the safety of my wife, i told

them I would rather not take that assign-

ment. Again this month, they approached

me about an assignment to Ankara, Turkey,

working directly for the general in

charge there. I told them if I had to go

I would have to go without my wife

because we were waiting to hear about a

Stay in a Federal case. I was told the

general might not want me without my wife

there too. So far, I have not heard any