Petition for Writ of Certiorari — Morrissey v. Jackson

Suprema Cour, U.& ;

FILED

No 981985 Fray 1996

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1999

*

IN RE: DOROTHY L. MORRISSEY,

Petitioner (Habeas Corpus)

DOROTHY L. MORRISSEY,

By Catherine M. Jackson and Michael J. Mormissey,

daughter and son of petitioner and her next-of-friends,

Petitioner,

V.

GREER JACKSON,

Respondent.

*

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Fourth Circuit

¢

PETITION FOR A WRIT OF CERTIORARI

*

Dorothy L. Morrissey,

By her children as her next-of-friends, pro se,

Catherine M. Jackson and Michael J. Morrissey

7910 Topaz Road

Richmond, Va. 23228

(804) 266-6093

QUESTIONS PRESENTED

l. Whether, in a Habeas Corpus petition for unlawful

civil confinement in a nursing home against a person's will

by a stranger appointed as guardian, the District Court can

refuse to hear the petition brought by the petitioner's adult

children on the ground that the Federal court does not have

jurisdiction because it is a "domestic relations" matter.

» & Whether, in a Habeas Corpus petition for unlawful

civil confinement of a competent adult in a nursing home

against that person's will by a stranger appointed as guardian,

the District Court can refuse to hear issues of wrongful

deprivation of one's Liberty, Privacy, Due Process, the

Taking of Property without a hearing, and violation of

Familial Rights, all on the ground that the Federal court does

not have jurisdiction over domestic relations matters.

3. Whether, in a Habeas Corpus petition for unlawful

civil confinement of an adult in a nursing home by a stranger

to her, where the guardianship hearing was held in the

absence of the respondent to that hearing, and where her

power of attorney was excluded and denied participation in

the hearing, the District Court can refuse to hear the petition

brought by the petitioner's adult children alleging a violation

of Due Process and other rights on the ground that the

Federal court does not have jurisdiction to decide these

alleged federal Constitutional violations by ruling this to be a

domestic relations case.

4. Whether, in a Habeas Corpus petition for unlawful

civil confinement of an adult in a nursing home against her

will by a guardian, where the guardian was given total power

and control, without limitation, over the person and property

of the confined adult without any reference or application of

the least restrictive means rule, the federal court can dismiss

the action and avoid the issue on the ground that it has no

jurisdiction of this as a domestic relations case.

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PARTIES IN THE COURT BELOW

The parties to the proceeding below were Petitioner,

Dorothy L. Morrissey, by her daughter Catherine M. Jackson

and her son Michael J. Morrissey, as her adult children and

next-of-friends. Dorothy Morrissey, being confined and

under the control of respondent, did not have access to the

court herself. Her adult children who lived with, and in the

same neighborhood as their mother, Dorothy L. Morrissey,

appeared pro se.

Respondent was Greer Jackson, who, over said

children's objections, was appointed guardian to Dorothy L.

Morrissey and by the broad sweeping control given him, is

the one responsible for the civil imprisonment of Dorothy L.

Morrissey away from her home and family.

RULE 29.6 STATEMENT

Petitioner, and her adult children, are individuals, and

no company, business or corporate affiliation or ownership is

involved in this case.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED. ..........0.ccccccecceeseceseeeseees

PARTIES IN THE COURT BELOW..........cccsceeeeeeeees iii

TABLE OF AUTHORITIES. ...........cccccceeseeeeeeeseeee V

OPINIONS BELOW...........cccccecccececseeeseceseeseeesees

JURISDICTION. ...00000:secoviesssoncyeeveesdisejancecevereseens

STATUTES INVOLVED..........ccccccceeccesceeseeeseeen 2

STATEMENT OF THE CASE. ........c00cccsceeeeeseceseees 3

REASONS FOR GRANTING THE WRIT............02-« 13

I. THE DISTRICT COURT'S RULING

THAT IT DID NOT HAVE JURISDICTION

BY LABELING THIS AS A “DOMESTIC

RELATIONS” MATTER IS CONTRARY

TO WELL-ESTABLISHED FEDERAL

HABEAS CORPUS CASE LAW THAT

PROTECTS THE FAMILY BOND AND

INDIVIDUALS IN THEIR FREEDOM AND

RIE W nvinchscunvvansaswaassadeneoumiodanuas 13

II. THE THREE CASES RELIED ON

BY THE DISTRICT COURT AS THE SOLE

LEGAL AUTHORITY CITED FOR ITS

DISMISSAL ARE CLEARLY

DISTINGUISHED FROM THE PRESENT

CASE AND DO NOT PROVIDE

PRECEDENT FOR DISMISSAL OF THIS

iv

HABEAS PETITION FOR LACK OF

JURISDICTION

CONCLUSION

CERTIFICATE

APPENDIX

TABLE OF AUTHORITIES

Cases Page

Addington vs. Texas, 441 U.S. 418, 425-27,

60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979) 5

Bellotti v. Baird, 428 U.S. 132, 147-148, 96 S. Ct.

2857, 2866-2867, 49 L. Ed. 2d 788 (1976) 19

Carter v. Procunier, 755 F.2d 1126 (C.A. 5 (Tex.),

1985). 16

Clark v. Jeter, 486 U.S. 456, 464, 108 S. Ct. 1910,

1915-1916, 100 L. Ed. 2d 465 (1988) 19

Cleveland Bd. Of Education v. LaFleur, 414 U.S. 632,

639-640, 94 S. Ct. 791, 796, 39 L. Ed. 2d 52 (1974) 21

Collins vs. Straight, Inc, 748 F.2d 916

(4" Cir., 1984, E.D. Va., 1983) 20

Doe v. Bolton, 410 U.S. 179, 194-195, 199, 93 S. Ct.

739, 748-749, 751, 35 L. Ed. 2d 201 (1973) 17

Eisenstadt vs. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029,

1038, 31 L. Ed. 2d 349 (1972) 21

Griswold v. Connecticut, 381 U.S. 479, 496; 85

S. Ct. 1678, 1688, 14 L. Ed. 2d 510 (1965) 24

Hemon et al. v. Office Of Public Guardian,

878 F. 2d 13 (1" Cir. 1989) 28

Hill v. Rose, 579 F. Supp. 1080 (D.C.Tenn, 1983) 16

vi

“Se eee SS eee ee - ei ee ee ta

Hodgson et al. vs. Minnesota, et al., 497 U.S.

at 455, 469, 110 S. Ct. 2926, 2955, 111 L. Ed.

2d 344 (1990) 17,19

In re Burris, 136 U.S. 586, 593-94 (1890) 27

Jones v. Shell, $72 F.2d 1278 (C.A. 8 (Ark.), 1978) 15

Lehman et al. vs. Lycoming County Children's

Services Agency, 458 U.S. 502 (1982) 27

Lehr v. Robertson, 463 U.S. 248, 261, 103 S. Ct.

2985, 2993, 77 L. Ed. 2d 614 (1983) 25

May v. Anderson, 345 U.S. 528, 533 [73 S. Ct.

840, 843, 97 L. Ed. 1221] (1953) 23

Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S. Ct.

625, 626-627, 67 L. Ed. 1042 (1923) 22, 23, 24

Moore v. East Cleveland, 431 U.S. 494, 499,

97 S. Ct. 1932, 1935, 52 L. Ed. 2d 531 (1977) 22

McKinney v. Boles, 254 F.Supp. 433 (D.C. W. Va.,

1966) 16

Parham v. J.R., 442 U.S. 584, at 604-608, 99 S. Ct.

2493, at 2505-2507, 61 L. Ed. 2d 101 (1979) 17

Pfoltzer et al. vs. County of Fairfax, et al.,

775 F. Supp. 874 (E.D. Va., Alex. Div., 1991) 14-15

Pierce v. Society of Sisters, 268 U.S. 510, 535,

45 S. Ct. 571, 573, 69 L. Ed. 1070 (1925) 21, 24

Planned Parenthood of Central Mo. v. Danforth,

428 U.S. at 90-91, 96 S. Ct. at 2850-2851,

Vii

49 L. Ed. 2d 844 (1976) 19

Poe v. Ullman, 367 U.S. 497, 551-552, 81 S. Ct.

1752, 1781, 6 L. Ed. 2d 989 (1961) 22, 26

Preiser v. Rodriguez, 93 S. Ct. 1827, 411 U.S.

475, 36 L. Ed. 2d 439 (N.Y. 1973) 15

Prince v. Massachusetts, 321 U.S. 158, 166,

64 S. Ct. 438, 442, 88 L. Ed. 645 (1944) 20, 22, 23-24

Roberts v. United States Jaycees, 468 U.S. 609,

618-620, 104 S. Ct. 3244, 3249-3250, 82 L. Ed.

2d 462 (1984) 21-22

Rogers, et al. vs. Orrin, M.D.., et al., 478 F.Supp.

1342, 1362 (USDC, D. Mass., 1979, Tauro, J.) 14

Ross v. Wainwright, 451 F.2d 298, certiorari denied

93 S.Ct. 98, 409 U.S. 884, 34 L. Ed. 2d 14]

(C.A. Fla., 1971) 16

Skinner v. Oklahoma, 316 U.S. 535, 541 [62 S. Ct.

1110, 1113, 86 L. Ed. 1655] (1942) 23, 24

Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct.

1208, 1212, 31 L. Ed. 2d 551 (1972) 25

Strader v. Blalock, 405 F. Supp. 1155

(D.C. Va., 1975) 15

Turner v. Safley, 482 U.S. at 97, 107 S. Ct., at

2266, 96 L. Ed. 2d 64 (1987) 17,19

U.S. ex rel. Rush v. Ziegele, 335 F. Supp. 434,

affirmed 474 F.2d 1356 (D.C.N.J., 1971) 16-17

Vill

aise |

Whiteley v. State of Wyo., 293 F. Supp. 381,

affirmed 416 F. 2d 36, reversed on other grounds

91S. Ct. 1031, 401 U.S. 560, 28 L. Ed. 2d 306

(D. C. Wyo., 1968) 15

Whorley v. Brilhart, 359 F.Supp. 539

(D.C. Va., 1973) 16

Wisconsin v. Yoder, 406 U.S. 205, 232. 92 S. Ct.

1526, 1538, 32 L. Ed. 2d 15 (1972) 21

Constitution of the United States

Constitutional Guarantees, general 3, 11-12, 24-25

The Due Process Clause

of the Fourteenth Amendment 3, 11-12, 24

The Equal Protection Clause of the

Fourteenth Amendment 24

The Eighth Amendment to the U.S. Constitution

(cruel and unusual punishment) 1]

The Ninth Amendment to the U. S. Constitution 24

Federal Code

28 U.S.C. Section 2254 3, 15

28 U.S.C. Section 1254(2) 28

iX

State Code

Virginia Code Section 37.1-134 et seq.

Virginia Code Section 37.1-133.1

Rules of the supreme Court of the US

Rule 20.4.(a)

Other

American Bar Association, “Agenda for Reform”

(1989)

The Declaration Of Independence, In Congress,

July 4, 1776

26-27

PETITION FOR A WRIT OF CERTIORARI

Dorothy L. Morrissey, by her adult children

Catherine M. Jackson and Michael J. Morrissey as her next-

of-friends, respectfully petitions for a writ of certiorari to

review the judgement of the United States Court of Appeals

for the Fourth Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is Petitioner’s

Exh. 1. The opinion of the District Court is Petitioner's Exh

2. Neither opinion was officially reported. The District

Court’s denial of petitioner’s Motion for Reconsideration is

Exh. 3.

JURISDICTION

The judgment of the Court of Appeals was entered

November 3, 1998. Petitioner's first petitioner for writ of

certiorari was timely made but was returned to correct

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format errors, and this filing is made within the time

extension granted for this corrected filing. The jurisdiction

of this court is invoked under 28 U.S.C. §1254(1) and by 28

U.S.C. 1651(a).

In accordance with this Court’s Rule 20.4. (a)

concerning relief sought in the district court, Petitioner states

that her guardian (respondent herein) refused to pursue an

appeal in the state court. Petitioner’s son did file an appeal to

the appellate state court which was denied because he was

not a party in the case below, based on the state trial court's

denial of his motion to participate as a party to the

proceeding involving his mother DLM.

Petitioner did file her habeas corpus in federal court

and it is from the denial of that habeas corpus petition that

this petitioner for writ of certiorari is taken.

This Petition shows that the granting of the writ will

be in aid of the Court’s appellate jurisdiction, that

exceptional circumstances warrant the exercise of the

Court’s discretionary powers, and that adequate relief cannot

be obtained in any other form or from any other court.

4

STATUTES AND CONSTITUTIONAL PROVISIONS

The Constitution of the United States, and the

guarantees therein to life, liberty and the pursuit of

happiness; the right of Liberty, Privacy and to the enjoyment

and protection of Familial Rights of the family. The Due

Process Clause of the Fourteenth Amendment to the

Constitution of the United States.

28 U.S.C. 2254 (d\1), (d)(2), d(6) and (d)(7) (habeas

corpus relief).

STATEMENT OF THE CASE

INTRODUCTION AND SYNOPSIS

The District Court denied the Petition for Writ of

Habeas Corpus by making the mistake of labeling, and

looking at this, as a domestic relations case. On the basis of

this mis-label, it then held that questions of custody belong

in state court. In support of this conclusion, the District

Court made a most significant factual error as it incorrectly

said that petitioners object to their sister having custody over

Dorothy L. Morrissey (DLM). This statement is incorrect and

contrary to the unopposed facts of the filings. That distant,

out-of-state sibling (one Lu Morrissey) does not now, and

has never had or sought, custody of her mother, DLM. No

~

dispute has ever been presented between family members as

to which one is to have custody. In fact, no custody of DLM

by anyone was ever at issue. DLM is her own person in being

financially independent and active in her own home, now

fully paid for over her life’s work. The District Court was

wrong on this fact finding. Thus its ruling, based on this

misstatement of fact, was erroneous and this contributed to

its incorrect characterization of the case as being one of

domestic relations from a family dispute over which one is

to have custody. That is not what this case is about.

The issue is not about custody, just as the issue in a

wrongful jail imprisonment habeas case is not about who has

custody of a cell block during any particular shift. The issue

here is one of wrongful control and confinement exerted

over another adult by a stranger, without any compelling

State interest and in violation of the guarantees of the

Constitution of the United States. The forced civil

imprisonment of DLM against her will destroys her and her

family. It violates petitioner’s fundamental right to her

pursuit of Liberty and enjoyment of her Familial Rights in

her own home and with her family. 1/

1/ “We hold these truths to be self-evident, that all men are

created equal, that they are endowed by their Creator with

certain unalienable Rights, that among these are Life, Liberty

and the pursuit of Happiness.” The Declaration Of

Independence, \n Congress, July 4, 1776, at page 1.

» PF

This case is about wrongful control and

imprisonment of another competent adult, against that

person's will, where that control is exercised by a stranger,

outside of the family. The imprisonment exists in the

confines of a so-called nursing home where the facts are that

little nursing exists there and it certainly is not a home.

Respondent’s contro! over DLM, over DLM’s own adult

children even, rests on the purported authority of a state

court to appoint that stranger as a result of a hearing —

conducted in DLM’s absence and without her knowledge —

that gave him instant, total control over the person and

property of DLM. As this Court has warned, control by

outside persons, especially to the exclusion of an

individual’s own family and expressed preference for her

family, leads too often to civil commitments that present an

extraordinary possibility of abuse to individual liberty.

Addington vs. Texas, 44] U.S. 418, 425-27, 60 L. Ed. 2d

323, 99 S. Ct. 1804 (1979),

FACTS OF THE CONFINEMENT

Respondent Greer Jackson was appointed by the

Henrico County Circuit Court (Richmond, Va. metro area) as

guardian for Petitioner Dorothy L. Morrissey (DLM) on June

23, 1997. DLM was not present at the hearing which was

held in her absence, despite the fact that the nght of any

responding party to a case to be present to cross-examine

witnesses, present their evidence, and be present at all

x

incidents of the trial is one of the most fundamental

protections in our legal system. Further, DLM's son, Michael

J. Morrissey (MJM) was her power of attorney (POA) at the

time and this POA status was confirmed by the court at that

hearing. Yet MJM too was excluded from the hearing. The

court at first granted MJM's motion to participate as his

mother's POA but limited that participation to any matter

which sought to affect that POA status. However, the state

trial court never followed up on that ruling and excluded

MJM from the entire hearing, without explanation. Thus, the

case went to hearing without the very two persons against

whom the case was directed being allowed to be present.

The case was styled as a Petition for Guardianship,

and was filed by a distant, out-of-state daughter of DLM who

has a history of drug abuse, a criminal drug record, is an

admitted alcoholic, and has long been removed from her

mother's life. The facts showed that when this daughter,

named Lu Morrissey (LM) learned that DLM had given her

son MJM her POA, this daughter LM became enraged with

jealously and sought to cash in on her mother’s property and

disengage DLM from her daily life with her two closest

children, Catherine M. Jackson (CAM) and MJM, who both

lived with and in the neighborhood with DLM in Richmond,

Va. The state court, at the conclusion of a June 23, 1997

hearing, said that there was "a dispute between the children"

and, therefore, it was going to appoint a guardian. The state

ties

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court did this over DLM and her children CMJ and MJM’s

objections. It did so in the absence of DLM and in barring

DLM’s POA (her son) from participating.

Without reason, the court by-passed naming MJM or

CAM as guardian to their mother, as was the logical choice

as the immediate family of and closest people to DLM, and

instead named a stranger. The state court, further, gave that

stranger (respondent herein) complete control, without

limitation, over the person and property of DLM, a person he

had never met. Greer Jackson knew absolutely nothing about

her. There was never any mention, much less application, of

the required use of only the "least restrictive means" before

the wholesale takeover of the person and property of

petitioner.

DLM was not at the hearing because, just three days

earlier on June 20th, she had undergone a full hip

replacement surgery due to an unexpected break of her

hipbone. DLM was actually still under anesthesia in the

hospital at the time of the hearing. Despite the presence of a

guardian ad litem for DLM at that hearing, that guardian ad

litem said nothing, and the case proceeded in DLM's

absence. The importance of a respondent in a guardianship

hearing to be present and participate at all proceedings is

emphasized by the Virginia Code section in 37.1-134 et seq.,

at section 37.1-133.1, which adds the Statutory requirement

that a respondent be notified and given the right to be present

x =

at every stage of the proceeding. See, Exh. 4. The state court

violated both DLM's Constitutional nght, and its reinforced

Statutory mandate under Virginia law, by excluding both

DLM, and her son as her POA, from the hearing. At the

conclusion of that hearing, the state court ruled clearly that

DLM was to continue living in her own home, with her

family. As to her living anywhere else, the court held “that is

not the situation here”. See, Exh. 6. Yet, by respondent’s

subsequent conduct, this court ruling was violated and

DLM's happy and financially independent life as she had

known it was taken, in its entirety, from her. DLM was also

taken from her closest adult children, CMJ and MJM. The

three of them had shared a close and loving family life

together on a daily basis.

On July 8, 1997, DLM was discharged from

Chippenham hospital from her hip surgery, and medical

directives were given for DLM's foliow-up with the

necessary physical therapy that everyone must receive in

order to walk again. DLM's orthopedic doctor, Dr. Steven

Jones, reported that the $50,000+ surgery went excellent,

and DLM should be up and walking in a short time "better

than ever". Under this guardianship control, DLM has never

walked since. Instead, she has been confined to the solitude

and isolation of a nursing home, and suffered the most

agonizing pain, physically and emotionally, since then. One

set of photographs of DLM is a part of the record of this

«ft.

case. It vividly shows the emotional pain on petitioner's face,

amidst one instance of the many and repeated physical

injuries she has been forced to endure. See, Exh. 5.

It is significant that the state court had ruled, at the

June 23, 1997 hearing, that the case was not at all about

DLM living anywhere else but her home. At various times

the court said that there was no issue about her living

anywhere else, and it wanted to make that clear. Mrs.

Morrissey was to continue living in her home. Exh. 6.

Despite this directive, respondent, in pursuit of his own

financial gain, never allowed DLM to return home. While

keeping DLM imprisoned at a nursing home under almost

inhumane conditions, respondent also failed to provide DLM

with the necessary physical therapy to complete her recovery

from surgery. This physical therapy was essential to allow

DLM to gain full use of her new hips, and return to her full

and active life.

An order was entered on January 10, 1998 against the

respondent by the Henrico County court when Greer Jackson

wrongly tried to interfere with DLM's property. DLM owns

her home which is fully paid for, and respondent sought to

take that from her for what was seen as an obvious attempt

of respondent to further his own financial gain. The court

blocked that attempt. In so doing, the court cited

respondent's violation of Virginia law. It was also learned

that an independent agency had filed a complaint against

-9.

respondent due specifically to his conduct with respect to

Mrs. Morrissey, saying that Mr. Jackson was to correct his

problems “before he receives another guardianship case”.

A series of medical emergencies followed, with DLM

being rushed to a hospital emergency room on December 31,

1997 in a life-threatening situation due to neglect in her care.

Respondent barred the nursing home from telling DLM's

children anything about her. Respondent blocked DLM's

adult children from even attending a care-planning meeting

at the facility that is routinely held with family. Respondent

refused to say why is was not allowing DLM to return to her

home, as the state court had directed and as DLM's

orthopedic doctor had recommended in a letter he later

wrote, out of frustration at her not getting the important

physical therapy. DLM's church wrote respondent asking if

DLM could be moved closer to her neighborhood so her

church members and friends could visit her. Respondent

disregarded that letter, never even answering it. Meanwhile,

DLM's condition continued to severely deteriorate due to the

isolation, inferior care, and lack of any physical or mental

activity. It was obvious that her situation was again life

threatening. Yet, respondent continued to do nothing and he

continued to ignore the pleas of those closest to DLM.

On February 20, 1998, DLM's closest children, CMJ

and MJM, filed on behalf of DLM a Petition for Writ of

Habeas Corpus in the U. S. District Court for the Eastern

-10-

District of Virginia in Richmond. Exh. 7. A Memorandum

was also filed in support of the issuance of a Temporary

Restraining Order against Greer Jackson to enjoin him from

continuing this confinement of DLM and separating her from

her home and family. See, Exh. 8. The Petition (Exh. 7)

alleges, among other things, a wrongful civil imprisonment

of DLM and a violation of her Constitutional rights to

Liberty, Freedom and Privacy. It also alleges a violation of

the Constitutional Familial Rights of DLM as well as those

of CMJ and MJM as her immediate children [Pet., para.

4.(4)]. The petition also alleges a violation of the Eight

Amendment against cruel and unusual punishment [Pet.,

para. (5)}.

Respondent never filed a reply to any of Petitioner's

court filings and never denied the factual allegations of this

case.

With DLM facing an increasing life-threatening

situation, a request for an expedited and emergency review

of the petition was requested by a separate filing on February

26, 1998.

On March 12", the U.S. District Court issued an

order and one page Memorandum denying the petition by

labeling it as a matter of domestic relations and Claiming this

is outside of federal court jurisdiction. The court's order and

Memorandum does not address the Constitutional violations

Cie

alleged. It gives only a string cite of three cases as the legal

basis for its action. Further, the court incorrectly said that the

petition sought "to challenge their sister's guardianship of

their mother". The distant sister has never had, nor even

sought, guardianship of DLM. She is far removed from her

mother and has been most of her adult life. The factual error

of this statement in the court's dismissal action was brought

to the court's attention in petitioner's Motion for

Reconsideration and for Extension of Time filed March 18".

On April 6", petitioner filed her 45-page

Memorandum in support of Reconsideration. In it, petitioner

distinguished in detail the facts and the law of each of the

three cases relied on by the court (Memorandum filing, pgs.

7-14), and again addressed the error of the court's statement

that the distant, out-of-state sister was guardian. The

Constitutional violations conferring federal court jurisdiction

by this wrongful civil confinement were also covered

(Memorandum filing, pgs. 5-7; and pgs. 15-23; and pgs. 32-

40). The violation of the "Least Restrictive Means" rule was

raised with amply legal supporting authority cited. Also

pointed out was the absence of any requisite compelling state

interest to justify what is seen as a most grievous wrongful

court intrusion into a private family's life (Memorandum,

pgs. 32-44).

By order of April 14, 1998, the District Court denied

petitioner's Motion for Reconsideration without discussing

it.

any of the issues presented, and without correction of its

misstated factual premise about the distant daughter having

guardianship over DLM.

On April 10, 1998, petitioner filed her Notice of

Appeal. Exh. 9. On September 4”, she was granted /n Forma

Pauperis status due to the wholesale takeover of all of her

property and with it, the destruction of her rightful pride in

her financial independence.

On September 10", the U.S. Court of Appeals for the

Fourth Circuit issued its order to proceed on Informal Briefs.

Petitioner, on October 5", filed her appellate brief in support

of federal habeas corpus jurisdiction, and separately,

submitted her Points and Authorities in support thereof.

On November 3, 1998, in an unpublished, one-

paragraph decision, the appellate court affirmed the District

Court's action without further comment.

REASONS FOR GRANTING THE WRIT

I. THE DISTRICT COURT'S RULING

THAT IT DID NOT HAVE JURISDICTION BY

LABELING THIS AS A “DOMESTIC

RELATIONS” MATTER IS CONTRARY TO

WELL-ESTABLISHED FEDERAL HABEAS

CORPUS CASE LAW THAT PROTECTS THE

FAMILY BOND AND INDIVIDUALS IN THEIR

FREEDOM AND LIBERTY

+:

A. The Federal Court Does Have Jurisdiction Over

Matters Of Guardian Or Other Third Party Abuse That

Violates Individual Rights

It is the guardian who is the "means" for insuring the

individual's protection. When the guardian fails in that duty,

the federal court will step in.

“The (person's) right is not to get a guardian.

It is to be free from unwarranted government

intrusion. The guardian is merely a means for

protecting that freedom”.

Rogers, et al. vs. Orrin, M.D., et al., 478 F.Supp. 1342, 1362

(USDC, D. Mass., 1979, Tauro, J.) (federal court jurisdiction

applied to correct a wrongful civil confinement).

Federal Jurisdiction Exists To Review This Very

Type Of Habeas Corpus Claim

“Among the state’s many powers, none Is

more fearsome than the power to take a child

away from a parent. Challenged exercises of

this power deserve close judicial scrutiny.”

Pfoltzer, et al. Vs. County of Fairfax, et al., 775 F. Supp. 874

(E.D. Va., Alex. Div., 1991).

A decision to interfere with the family relation

implicates the constitutional rights of all members involved

ets

in that it impacts on, aggrieves and affects, the makeup of

that family. Pfoltzer, et al., supra.

It is the duty of the federal district court on a petition

for habeas corpus to make an independent determination that

due process had been observed in factual and legal support

for the state adjudications. Whiteley vs. State of Wyoming,

293 F. Supp. 381, affirmed 416 F. 2d 36, reversed on other

grounds 91 S. Ct. 1031, 401 U.S. 560, 28 L. Ed. 2d 306

(D.C. Wyo., 1968).

28 U.S.C. Section 2254 provides for swift, flexible

and summary determination of an incarcerated person’s

claim. Preiser vs. Rodriguez, 93 S. Ct. 1827, 411 U.S. 475,

36 L. Ed. 2d 439 (N.Y. 1973). The writ of habeas corpus

must be construed to afford swift and imperative remedy in

all cases of illegal restraint or confinement, otherwise the

writ is reduced to a sham. Jones vs. Shell, 572 F. 2d 1278

(CA. (Ark.), 1978). Where the procedure followed, or the

state law applied, impugns fundamental fairness or infringes

upon specific constitutional protections, habeas corpus relief

will lie in federal court. Strader vs. Blalock, 405 F. Supp.

1155 (D.C. Va., 1975).

A habeas corpus petitioner meets statutory “in

custody” requirements when, at the time she files her

petition, she is in custody pursuant to an order that she

attacks, or she is in custody pursuant to another order that is

positively and demonstrably related to that which she

aitih.

attacks. Carter vs. Procunier, 755 F. 2d 1126 (C.A. 5" (Tex.),

1985). “Custody” exists entitling petitioner to seek federal

habeas corpus relief when there exists some sort of

supervisory control over the person of petitioner in that her

conduct is subject in one degree or another to the direction

of a judicial officer, so to cause a restraint on her liberty.

Whorley vs. Brilhart, 359 F. Supp. 539 (D. C. Va., 1973).

The federal court is guided in federal habeas corpus cases by

federal due process standards, not by state criteria.

McKinney vs. Boles, 254 F. Supp. 433 (D.C. W. Va., 1966).

A federal writ of habeas corpus stands as a guaranty

to every citizen that he witt not be detained in violation of

fundamental liberties. Ross vs. Wainwright, 451 F. 2d 298,

certiorari denied 93 §. Ct. 98, 409 U.S. 884, 34 L. Ed. 2d 4

141 (C.A. Fla., 1971). Section 2254 authorizes use of federal

writ of habeas corpus to challenge a confinement or

imprisonment upon claims of disregard of the constitutional

rights of the applicant. Hill vs. Rose, 579 F. Supp. 1080 (D.

C. Tenn., 1983).

A habeas corpus proceeding in federal court is a civil

action contesting the legality of restraint of petitioner’s

personal liberty. Questions of federal dimension arise when

circumstances are presented which demonstrate fundamental

unfairness of the trial or hearing, or raise the infringement of

important constitutional rights. U.S. ex rel. Rush vs. Ziegele,

«ti.

335 F. Supp. 434, affirmed 474 F. 2d 1356 (D.C.N. J.

1971).

B. Petitioner's Imprisonment Violates Well-

Established Law

Two points must be established to support a

confinement amounting to an imprisonment of DLM: (1) that

this burden is “justified by a compelling state interest” and,

(2) that any outside control over another's life is “closely

tailored to further that interest.” Hodgson et al. vs.

Minnesota, et al., 497 U.S. 417, 455, 110 S. Ct. 2926, 2955,

111 L. Ed. 2d 344 (1990) (Marshal}, J., Brennan, J., and

Blackmun, J., concurring opinion). The law protects the

controlled person in such a situation by demanding specific

justification for any control forcibly exerted by another over

that person. Parham v. J.R., 442 U.S. 584, at 604-608, 99 S.

Ct. 2493, at 2505-2507, 61 1. Ed. 2d 101 (1979).

The law is clear: No individual conduct, statute or

court order imposing limitations on the person and property

of another can be constitutionally sustained “if the obstacles

it imposes are not reasonably related to legitimate state

interests.” Doe v. Bolton, 410 U.S. 179, 194-195, 199, 93 S.

Ct. 739, 748-749, 751, 35 L. Ed. 2d 201 (1973). In the

absence of this showing, a state’s action cannot be sustained.

Turner v. Safley, 482 U.S. at 97, 107 S. Ct., at 2266, 96 L.

Ed. 2d 64 (1987).

-|7-

No interest has ever been claimed in this Habeas case

by respondent. The fact is there is none, and respondent

chose not to reply at all rather than have to face the

impossibility of justifying his unjustifiable and egregious

conduct towards another human being

This record shows that DLM is being held pursuant

to a State court order that essentially gave a blank check to

respondent without any oversight to his conduct. But for that

court order of appointment, DLM would not be imprisoned.

So the District Court's suggestion that this makes DLM “not

in the custody of the state” and thus not subject to federal

habeas corpus review 1s also factually incorrect (District

Court's one page Memorandum of March 12, 1998, Exh.2-

B). Fact 1s, it 1s solely because of that state action that DLM

who has harmed no one and sought only to continue living

in the peace of her home with her family and nighbors -

suffers a civil imprisonment that ts totally void of any legal

justification, and under the most inhumane conditions as

well. In sum, there 1s no “legitimate state interest”, and none

has been asserted, that justifies DLM’s imprisonment and

family separation a day longer

c. The Record Lacks The Required Showing That

Actions Of Control Over DLM "Are Closely Tailored"

To Further Any Purpose Other Than The Respondent's

Own Financial Gain

Any legal confinement of DLM was required to have

been narrowly tailored to meet a legitimate interest. In

- 18 -

Planned Parenthood of Central Missouri vs. Danforth, . 428

U.S. at 90-91, 96 S. Ct., at 2850-2851, 49 L. Ed. 2d 844

(1976), the Court stated that the “... constitutional deficiency

les in the absolute limitation” of another person’s

established rights. The Court has approved efforts that

“carve out” or “tailor” a restriction to meet a legitimate state

interest. See, e.g., Bellotti v. Baird, 428 U.S. 132, 147-148.

96 S. Ct. 2857, 2866-2867, 49 L. Ed. 2d 788 (1976) [in

considering a less restrictive tailored approach]. But that is

not the case here.

The ease with which “less burdensome means” can

be adopted to protect another’s genuine interests is a factor

in determining whether actions complained of are

Constitutional. Clark v. Jeter, 486 U.S. 456, 464. 108 S. Ct

1910, 1915-1916, 100 L. Ed. 2d 465 (1988); Turner v.

Safley, 482 U.S., at 98, 107 S. Ct., at 2266.

In summary, the imprisonment of DLM and all its

adverse ramifications can further no legitimate state goal,

and none has been asserted. No attempt, much less actual

identification, of a “tailored” legitimate interest...a “carved

out” approach... so to limit any unnecessary control, has ever

been made. Accordingly, there can be no question that this

family's fundamental rights have been violated.

Respondent's conduct does “not pass the strict scrutiny

applicable to (the) restrictions on a ... fundamental right...”

Hodgson, supra, 497 U.S. at 461, 110 S. Ct. at 2951.

-19-

D. The Federal Court Protects Deprivation Of

Liberty By False Imprisonment

In the Fourth Circuit, Collins vs. Straight, Inc, 748

F.2d 916 (4" Cir., 1984; E.D. Va., 1983) presented

Constitutional issues and federal court jurisdiction arising

from the forced confinement of an adult, and the prevention

of the person from returning to their own home. Collins

bears a close analogy to the present case. Collins addressed

the wrongful civil confinement of an adult in a facility

against their will (just like DLM). In finding for plaintiff, the

Court rejected third party “best interests” arguments by the

defendant. The federal court also rejected a requested

defense jury instruction as to the “reasonableness” of the

confinement (affirmed on appeal). Said the Fourth Circuit:

Any argument of reasonableness is irrelevant. It is sufficient

that the imprisonment was done against the adult’s will.

E. The Right To Liberty Under The Due Process

Clause Generally Precludes An Outsider From

Substituting Its Decision In Place Of That Which Belongs

To A Family

A family’s right is to care for one another, both

parent and child regardless of age. This right has been

particularly affirmed against state interference (wrongful

intrusion) in family matters. Prince v. Massachusetts, 321

U.S. 158, 166, 64S. Ct. 438, 442, 88 L. Ed. 645 (1944)

(Supreme Court decisions “have respected the private realm

of family life which the state cannot enter”). See also,

~ -

Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S. Ct. 1526,

1538, 32 L. Ed. 2d 15 (1972); Pierce v. Society of Sisters,

268 U.S. 510, 534-535, 45 S. Ct. 571, 573-574, 69 L. Ed.

1070 (1925).

DLM’s personal decisions all constitute her right to

Liberty and components thereof (its penumbras); decisions

such as where and how to live, and with whom she chooses

to associate; to make choices affecting her own person, her

right to possess and enjoy her property. These can be

summarized by DLM’s right to plan and follow, in her own

way, her pursuit of life, liberty and happiness. This right to

Liberty is protected by the Due Process Clause of the

Fourteenth Amendment to the Constitution. Cleveland Bd.

Of Education v. LaFleur, 414 U.S. 632, 639-640, 94S. Ct.

791, 796, 39 L. Ed. 2d 52 (1974). This Clause protects an

individual’s right to make such decisions independently and

privately, free of unwarranted governmental intrusion.

Eisenstadt vs. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029,

1038, 31 L. Ed. 2d 349 (1972).

F, Federal Jurisdiction Exists On The Constitutional

Issue Of Privacy That Was Presented As One Basis For

The Habeas Corpus Relief

Within the family, there is a privacy familial interest

which is protected by the Constitution against undue state

interference. See, Wisconsin v. Yoder, 406 U.S. 205, 233-

234, 92S. Ct. 1526, 1537, 32 L. Ed. 2d 15 (1972); Roberts v.

2} -

United States Jaycees, 468 U.S. 609, 618-620, 104 S. Ct.

3244, 3249-3250, 82 L. Ed. 2d 462 (1984).

The Law of this land has long held that there exists a

“private realm of family life which the state cannot enter.”

Prince v. Massachusetts, 321 U.S., at 166, 64 S. Ct., at 442.

Thus, when the government intrudes on choices concerning

the arrangement of the household, the U.S. Supreme Court

has carefully examined the “governmental interests

advanced and the extent to which they are served by the

challenged regulation.” Moore v. East Cleveland, 431 US.

494. 499, 97S. Ct. 1932, 1935, 52 L. Ed. 2d 531 (1977)

(plurality opinion), see also, Meyer v. Nebraska, 262 US.

390, 399-400, 43 S. Ct. 625, 626-627, 67 L. Ed. 1042 (1923).

Therefore, the parent’s natural biological children

who have demonstrated that level of commitment to his or

her parent, and the parent who has acted in kind, are entitled

to freedom from government intrusion to live their family

life in autonomy, free of state interference.

G. The Familial Rights Violation Confers Federal

Court Jurisdiction

The Familial Right of petitioner, “into which no

government should intrude”, is a fundamental Liberty that

invokes the Court’s “strict scrutiny”. The “sanctity” of the

parent-child bond is not affected by the age of those

committed to that bond. Poe v. Ullman, 367 U.S. 497, 81 S.

Ct. 1752, 6 L. Ed. 2d 989 (1961).

When such procedural as well as substantive

obstacles are imposed against DLM, they burden her and her

family’s ability to freely exercise their Familial

Constitutional rights. The constitutionally protected Familial

Rights apply to both parent and children in the family unit,

and are jointly and individually enforceable.

“The Court has frequently emphasized the

importance of the family. The rights to

conceive and to raise one’s children have

been deemed “essential”, Meyer v. Nebraska,

262 U.S. 390, 399 [43 S. Ct. 625, 626, 67 L.

Ed. 1042] (1923).

The child-parent relation is one of the “basic

civil rights of man”. Skinner v. Oklahoma,

316 U.S. 535, 541 [62 S. Ct. 1110, 1113, 86

L. Ed. 1655] (1942).

The child-parent bond is guarded by “[r]ights

far more precious...than property rights”. May

v. Anderson, 345 U.S. 528, 533 [73 S. Ct.

840, 843, 97 L. Ed. 1221], (1953).

“It is cardinal with us that the custody, care

and nurture of the child reside first in the

parents, whose primary function and freedom

28.

include preparation for obligations the state

can neither supply nor hinder.” Prince v.

Massachusetts, 321 U.S. 158, 166 [64 S. Ct.

438, 442, 88 L. Ed. 645], (1944).

In addition to the explicit, constitutionally protected

Familiar Right violation that is implicated, the integrity of

the family unit has also found protection in the Due Process

Clause of the Fourteenth Amendment, Meyer v. Nebraska,

supra, 262 US. at 399, 43 S. Ct. at 626; in the Equal

Protection Clause of the Fourteenth Amendment, Skinner v.

Oklahoma, supra, 316 U.S. at 541, 62 S. Ct. at 1113; and in

the Ninth Amendment, Griswold v. Connecticut, 381 U.S.

479, 496; 85 S. Ct. 1678, 1688; 14 L. Ed. 2d 510 (1965)

(Goldberg, J. concurring).

H. The Serious Liberty Violations Alleged Supported

Federal Court Jurisdiction

The Liberty interest at issue is not only that of DLM,

but also that of her family who have chosen to seize that

opportunity to be with her. As the Court stated in Pierce v.

Society of Sisters, 268 U.S. 510, 535, 45 S. Ct. 571, 573, 69

L. Ed. 1070 (1925), the fact of a direct biological family

relation merely offers those family members “an

opportunity...to develop a (committed) relationship”. For

those family members who value this committed family

relation and choose to nourish it, the demonstration of this

a

commitment gives a Liberty interest. The law requires that

when outsiders threaten this interest, the Court's “strict

scrutiny” standard is invoked to protect each individual’s

Liberty interest in their “sacred” familial relation. The Court

has so stated for purposes of this case by analogy to the

constitutionally protected Liberty interest a parent acquires

in the relationship with its child:

The demonstration of commitment to the

child through the assumption of a personal,

financial or custodial responsibility may give

the natural parent a stake in the relationship

with the child rising to the level of a Liberty

interest. See Stanley v. Illinois, 405 U.S. 645,

651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551

(1972). Lehr v. Robertson, 463 U.S. 248, 261,

103 S. Ct. 2985, 2993, 77 L. Ed. 2d 614

(1983).

This same type of commitment and resulting Liberty

interest equally applies...indeed, more so...between adult

children with their adult parents (where the law does not

mandate such a commitment as it does in a parent-minor

child relation). Each has an enforceable Liberty interest in

that familial relation.

23.

1. Property Taken Without A Hearing Raises

Constitutional Issues Within The Jurisdiction Of The

Federal Court

“Certainly the safeguarding of the home does

not follow merely from the sanctity of

property rights. The home derives its pre-

eminence as the seat of family life. And the

integrity of that life is something so

fundamental that it has been found to draw to

its protection the principles of more than one

explicitly granted Constitutional night.”

Poe v. Uliman, 367 U.S. 497, 551-552, 81 S. Ct. 1752, 1781,

6 L. Ed. 2d 989 (1961) (Harlan, J., dissenting).

J. Grave Forewarnings Have Been Made By

Concerned Groups About Outsider Control Where

Confinement Is Brought About By Third-Party

Indifference And Pursuit of Their Own Financial Gain

The American Bar Association and others have

warned of the severe Constitutional violations inherent in the

use of guardianship, or lack of close oversight by the court.

“Guardianship should be viewed as a measure of last resort.

Thus, there shuld be sufficient available alternatives so that

guardianship will be used only in those cases in which it

clearly benefits thel ward.” Alternatives “to suport

x -

3

4

independence in the home” should be applied. “These

alternatives should be explored first, and guardianship and/or

instiltutionalization should be relied on only as a last resort

to provide needed services.” 2/

II. The Three Cases Relied On By The District Court

As The Sole Legal Basis Cited For Its Dismissal Do Not

Provide Precedent For The Dismissal On A Claimed Lack

Of Federal Court Jurisdiction

Lehman et al. vs. Lycoming County Children's

Services Agency, 458 U.S. 502 (1982), cited by the District

Court in support of its dismissal, involves the involuntary

termination of parental rights by a mother over her three sons

(ages 18, 16 and 12). This was after she had voluntarily

placed them in foster homes. It bears no analogy to the

present case.

In re Burris, the second case relied on by the District

Court to support its dismissal on jurisdictional grounds, is an

1889 Supreme Court case that deals with a dispute over a

child's father and its grandfather over which could provide

the better custody for the child. The decision explicitely

finds that there had been no restraint of the child's liberty and

no withholding of the child from the careand enjoyment of

its family. This case too has no analogy to the present case.

2/ From the American Bar Association's “Agenda for

Reform” (1989) at pages 3-4 (The ABA’s critical look at

guardianship, and its urging for the use of other alternatives)

«MF.

Hemon et al. v. Office Of Public Guardian, 878 F. 2d :

13 (1" Cir. 1989) deals with a fact situation in which there is

uncertainty as to where an adult wants to live. Also, it deals

with the question of whether one family member or another

is better suited to provide needed care... not whether a

stranger can imprisonment a family member away from their

family and home community.

Thus, the three cases relied on clearly do not provide

proper analogies, or valid legal precedent, for the court's

dismissal of the present Habeas petition.

+

CONCLUSION

The petition for a writ of certiorari should be granted.

This case is appropriate for Summary Reversal, rather than

remand, given the uncontested facts, the clarity of the law on

such a wholesale take over of a person’s entire person and

property without the person, or her POA, being allowed to

atttend and participate in the hearing, and the lack of any

response by respondent throughout the case.

Petitioner moves that the Court consider and decide

the entire matter of the Habeas petition. 28 U.S.C. 1254(2).

The Court should enter Summary Reversal and grant the

petition for the writ of habeas corpus. This is necessary to

free petitioner from this unlawful and barbaric confinement.

Time is short. Without this relief, this imprisonment will

° 28 «

take petitioner's life in the midst of her despair due to this

most cruel, unjustified, and excruciating painful suffering

that is being forced on her by respondent, a stranger to her.

Wherefore, Petitioner prays that her Petition for Writ

of Certiorari, and the Summary Entry of her Habeas Corpus

relief. be Granted.

Respectfully submitted,

DOROTHY L. MORRISSEY

oy Ourteareue ly Xba

Catherine M. Jackson and

Us sheah SF Un “4

Adult children of, and next-of-

friends to, Dorothy L

Morrissey.

7910 Topaz Road

Richmond, Va. 23228

(804) 266-6093

-.

APPENDIX

APPENDIX EXHIBIT #1

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 98-1550

MICHAEL J. MORRISSEY; CATHERINE M.

JACKSON,

Petitioners - Appellants,

versus

GREER JACKSON,

Respondent - Appellee.

Appeal from the United States District Court for the

Eastern District of Virginia, at Richmond. James R.

Spencer, District Judge. (CA-98-87)

Submitted: October 20, 1998 Decided: November

3, 1998

Affirmed by unpublished per curiam opinion.

APPENDIX EXHIBIT #1

Before WILKINS and HAMILTON, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

Michael J. Morrissey, Catherine M. Jackson, Appellants

Pro Se.

Unpublished opinions are not binding precedent in this

circuit.

See Local Rule 36(c).

PER CURIAM:

Michael Morrissey and Catherine M. Jackson

appeal the district court's order denying relief on a

petition filed on behalf of a third party under 28

U.S.C.A. section 2254 (West 1994 & Supp. 1998). we

have reviewed teh record and the district court's

opinion and find no reversible error. Accordingly, we

affirm on the reasoning of the district court. Morrissey v.

Jackson, No. CA-98-87 (E. D. Va. Mar. 12, 1998). We

dispense with oral argument because the facts and

legal contention are adequately presented in the

———.

APPENDIX EXHIBIT #1

materials before the court and argument would not aid

the decisional process.

AFFIRMED

SARS y ESE RS RIERA AGE RES PT BM,

|

APPENDIX EXHIBIT #2-A

IN THE UNITED STATES DISTRIT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

CATHERINE M. JACKSON AND

MICHAEL J. MORRISSEY

Petitioners,

V. Civil Action 3:98CV87

GREER JACKSON,

Respondent.

ORDER

In accordance with the accompanying

Memorandum, it is ORDERED that the action is

DISMISSED WITHOUT PREJUDICE.

The Petitioners may appeal! the decision of the

Court. Should the Petitioners wish to do so, written

notice of appeal must be filed with the Clerk of the

Court within thirty (30) days of the date of entry hereof.

Failure to do so may result in the loss of the right of

appeal.

Let the Clerk send a copy of the Order and

accompanying Memorandum to the Petitioners.

APPENDIX EXHIBIT #2-A

And it is so ORDERED.

Is/ James R. Spencer

UNITED STATES DISTRICT JUDGE

Richmond, Virginia

Dated: March 12, 1998

APPENDIX EXHIBIT #2-B

IN THE UNITED STATES DISTRIT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

CATHERINE M. JACKSON AND

MICHAEL J. MORRISSEY

Petitioners,

V. Civil Action 3:98CV87

GREER JACKSON,

Respondent.

MEMORANDUM

Catherine M. Jackson and Michael J. Morrissey

("Petitioners"), submitted a document labeled

“application for a writ of habeas corpus." Petitioners

allege that their mother "DLM" is "unlawfully detained of

her liberty by respondent Greer Jackson, and is now in

the custody of the said Greer Jackson at a place in the

far West End of Henrico County, known as “Bethany

Healthplex." Apparently, the Petitioners seek to invoke

this Court's jurisdiction under 28 U.S.C. section 2254 to

challenge their sister's guardianship of their mother.

APPENDIX EXHIBIT #2-B

Federal habeas corpus jurisdiction does not

extend to state court disputes over parental or child

custody, particularly when the individual is not in the

custody of the state. Lehman v. Lycoming County

Children’s Services Agency, 458 U.S. 502, 511 (1982)

(child custody); Hemmon v. Office of Public Guardian,

878 F. 2d 13, 15 (1st Cir. 1989 (parental custody). See,

In re Burrus, 136 U.S. 586, 593-94 (1890) ("The whole

subject of the domestic relations of a husband and wife,

parent and child, belongs to the laws of the States and

not to the laws of the United States."). The action will

be dismissed.

An appropriate Order shall issue.

/s/ James R. Spencer

UNITED STATES DISTRICT JUDGE

Dated: MAR 12 1998

APPENDIX EXHIBIT #3

IN THE UNITED STATES DISTRIT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

CATHERINE M. JACKSON and

MICHAEL J. MORRISSEY, For

themselves and on behalf of DLM

|

|

|

|

| |

Petitioners. |

|

V. | Civil Action

| 3:98CV87

GREER JACKSON, |

|

Respondent. |

|

ORDER

THIS MATTER came before the Court on

Petitioners’ Motion for reconsideration. Upon due

consideration, the Court hereby DENIES Petitioners’

motion. Petitioners’ Motion for Stay is MOOT. The

Court's March 12, 1998 Order shall remain in full force

and effect.

Let the Clerk send a copy of this Order to all

counsel of record.

And it is SO ORDERED.

APPENDIX EXHIBIT #3

/s/ James R. Spencer

UNITED STATES DISTRICT JUDGE

April 14, 1998

DATE

APPENDIX EXHIBIT #4

VIRGINIA:

IN THE CIRCUIT COURT OF THE COUNTY

OF HENRICO

IN RE: Michael J. Morrissey, Agent of

Dorothy Lux Morrissey, under a

Power of Attorney or otherwise

Case No.: CH97000742-00

CERTIFICATION PURSUANT TO

SECTION 37.1-133.1

Comes now Edwin A. Bischoff, Guardian Ad

Litem, appointed herein for Dorothy Lux Morrissey, and

certifies to the Court that at a personal meeting with

Dorothy Lux Morrissey on May 30, 1997, Dorothy Lux

Morrissey was advised of the following rights:

1. To be present at the hearing and all of the

stages of this proceeding:

2. To compel the attendance of witnesses at

the hearing;

3. To present evidence in her own behalf.

and

4. To confront and examine all witnesses

providing evidence, including persons who prepared

APPENDIX EXHIBIT #4

any comprehensive evaluation of the alleged

inompetent or incapacitated person.

Is/

Edwin A. Bischoff, guardian Ad Litem

8500 Mayland Drive

Richmond, Virginia 23294

| hereby certify that a true and exact copy of the

foregoing Certificate was mailed, postage prepaid, to R.

Shawn Majette, Esquire, P_O. Box 766, Richmond,

Virginia, 23218, Michael J. Morrissey, 2112 Oakwood

Lane, Richmond, Virginia, 23228, and to Peter Mellette,

Esquire, P.O. Box 1474, Richmond, Virginia 23212, this

16th day of June, 1997.

(Note that: on the original, the date was handwritten in,

and the month was typed as "April" which was

scratched through in handwriting, and “June”

handwritten above it, initialed by "EB")

Is/

Edwin A. Bischoff

APPENDIX EXHIBIT #5

fhe Siro donee

Ob BL BEAL ELSE

segs is,

APPENDIX EXHIBIT #6-A

From page 506, lines 17-21, of the official court

transcript of the hearing held on June 23, 1997 in the

Henrico County Circuit Court, Judge L. A. Harris, on

June 23, 1997.

THE COURT: Again, | think a lot of this is

really mistargeted. No one has asked me, you know, to

say this lady cannot stay at home, that this lady's going

to a nursing home or what have you. That is not the

issue here.

APPENDIX EXHIBIT #6-B

From page 517, lines 22-24, and page 518, lines 1-3, of

the official court transcript of the hearing heid on June

23, 1997 in the Henrico County Circuit Court, Judge L.

A. Harris, on June 23, 1997.

THE COURT:* * * Again, | don't think that

anyone should get the understanding of what is

happening here today is someone's saying all the while,

Ms. Morrissey, you're not going to be in your home,

you're going to a nursing home or that type thing. That

is not the situation.

oe ce RE al eh

APPENDIX EXHIBIT #7

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

- At Richmond -

CATHERINE M. JACKSON

7910 Topaz Road

Richmond, Va. 23228

and

MICHAEL J. MORRISSEY

7910 Topaz Road

Richmond, Va. 23228

Petitioners

No. 3:98CV8&7

VS

Petition for Writ of

Habeas Corpus

GREER JACKSON

8550 Mavland Drive

Richmond, Va. 23914

Respondent

In the Matter of the Application

of DLM for a Writ of Habeas Corpu

To the Honorable United States District Court for the

Eastern District of Virginia, at Richmond:

APPENDIX EXHIBIT #7

The petition of DLM respectfully shows:

DLM, by her daughter and son as her next of frends

living here in Richmond, makes application herein for a writ

of habeas corpus in that she is unlawfully detained and

restrained of her liberty by respondent Greer Jackson, and 1s

now in the custody of the said Greer Jackson at a place in the

far West End of Henrico County, known as Bethany

Healthplex

2 Petitioners, by her daughter Catherine Jackson and by

her son Michael Morrissey (“petitioners”), make application

herein on behalf of DLM, for a writ of habeas corpus in that

said DI.M is unlawfully detained and restrained of her liberty

by respondent Greer Jackson, and is now in the custody of

the said Greer Jackson at a place in the far West End of

Henrico County, known as Bethany Healthplex

3 The cause or pretext of such detention and restraint is

2

APPENDIX EXHIBIT #7

that the “guardian” of DLM says this is for her “best

interests’, or for her “safety”. Respondent says little more

than that, and operates in general secrecy. The respondent

was appointed guardian over DLM, over the objection of her

attorney and in her absence. Respondent was then and still 1s

a complete stranger to DLM He knows little about her, and

nothing about her vivacious personality, her dreams, wishes,

desires, preferences and lifestyle

A hearing was held against DLM on June 23, 1997,

at a time when she was recovering from hip replacement

surgery and still under the effects of anesthesia at

Chippenham hospital. She did not even know the hearing

was taking place, and DLM had never waived her nght to be

present and participate at that hearing DLM’s two local

children living close to her here in Richmond also strongly

objected to this guardianship appointment

The guardian has abused his position and has abused

DLM from the start. There is no court, medical or other

authority that has ordered DLM away from her home. In

3

APPENDIX EXHIBIT #7

fact, the court ruled just the opposite, that she IS to continue

living in her home. The guardian alone is responsible for

falsely imprisoning her. He is indifferent to her wishes. He

has said that “what she wants doesn’t really matter now”.

DLM’s foremost wish as a legally competent adult is to live

her lite as she chooses and with her privacy protected. Her

foremost desire is to return to her home of 30+ years here in

Richmond and be with her children.

4 Said detention and restraint is unlawful and

constitutes a wrongful imprisonment of DLM by respondent,

in that:

(1) It is against all of DLM’s so-called “best interests”.

Her extremely rapid decline and disregard towards her of

any human dignity and respect is glaring since she has

been under this guardian’s “control”. It is against any

notion of “safety”. DLM is continually subjected to

unsafe conditions, physically, medially, mentally and

emotionally. The guardian’s easy resort to such rhetoric

is motivated by his own self-serving agenda for financial

APPENDIX EXHIBIT #7

gain at DLM’s expense. The principle of Res ipsa

loquitur applies. Those who know and love DLM have

only to look at her to see how much she has been

neglected, and now it has advanced to extreme abuse,

with devastating consequences. “Heartwrenching” is how

one friend recently put it.

(2) It violates the Henrico Circuit court’s ruling that

DLM 1s to return to her home and continue living there.

When confronted about this contempt of the court’s

ruling, respondent’s reply was, “well, I didn’t know

about that”.

(3) It violates DLM’s own wishes which are to be the

most important in decisions about her life, especially

where she is to live.

(4) It violates her individual rights. (a) It violates her

right to Liberty; (b) to Privacy; (c) it violates her Familial

Rights, i.e. her mght to the care and maintenance of the

family unit; (d) it violates her right to Freedom of

Association, in this instance to associate, confide, and

APPENDIX EXHIBIT #7

live with the familiarity, companionship and love of her

two children who she has heretofore been with on close

to a daily basis. It violates her nght of association with

her neighbors, her friends and her close church members.

(e) It violates her nght to Freedom of Religion. DLM’s

religion has always been a central part of her life. Her

attendance at church, and her closeness with the nuns and

priests 1s most important to her. Her receiving of Holy

Communion, and attending services, is the spirituality

that has been so much a part of her. She has been denied

all this. (f) It violates her nght to Due Process. DLM was

not even present at the hearing at which her life was

taken from her. Now she is denied, solely due to the

guardian's conduct, her own home, without any hearing

having been held on the issue of taking that from her.

Her right to Liberty and her pursuit of happiness...to her

own autonomy... have all been stnpped from her without

any Notice.

(5) DLM’s present imprisonment also constitutes cruel

APPENDIX EXHIBIT #7

and unusual punishment. She is forced into isolation,

loneliness, physical pain and mental agony. She has been

placed in a “ward” of severe mental incompetents. Her

safety is jeopardized. Without any staff personnel in

sight, deranged persons are able to approach her

physically. One such person wearing a football helmet

approached her with verbal noises that were frightening

and unrecognizable. A family member was there at the

time to prevent any altercation.

Use of her legs has been taken from her due to the

guardian’s failure to provide her with the physical

therapy that everyone needs after a hip replacement

surgery. Her right arm became useless, without any

atteniion to it from the guardian. She has suffered

numerous falls, due to lack of sufficient attention. Her

mental anxiety is readily apparent on her face, in place of

the smile, laughter and love that she knew in her own

home.

APPENDIX EXHIBIT #7

The place she is presently imprisoned at is

notoriously understaffed. She suffers from

malnourishment, both in terms of insufficient food

and inadequate liquids. She has, and is especially

now, suffering enormous physical, mental and

emotional pain. The guardian has ruined her in this

regard, while he has also has greatly depleted her

assets.

(6) Further, the guardian has placed a “gag order” on

anyone telling the children about their mother. A

recent “care planning” meeting was held at which the

family is generally welcomed and encouraged to

attended under the facility’s policy and practice. Yet,

respondent prohibited the children from attending. He

has barred any of the facility personnel from telling

the children anything about the care and condition of

their mother.

(7) DLM’s life is now in danger from this abuse. This is

a matter of the utmost urgency. Time-is-of-the-

8

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é

4

ig

4

’ ‘}

APPENDIX EXHIBIT #7

essence is seeing to it that DLM’s fundamental nghts

are protected, and that she is able to continue living.

p DLM has no other adequate remedies. Her appeal is

pending at the Virginia Supreme Court, but that is such a

slow process that even in the event of a most favorable

result, no remedy would be realized until probably in the Fall

of 1998. DLM will not survive that long if she is left in this

environment so hostile to her. Motions for an expedited

review on this was denied.

6. No other application for this writ has heretofore been

made to any other court or judge.

WHEREFORE, petitioners pray that a writ of habeas

corpus issue herein directed to the said Greer Jackson,

commanding him to appear before this Court at a time and

date to be specified in said writ, and to show cause if he can,

as to the justification and legality of DLM’s detention, and

APPENDIX EXHIBIT #7

that DLM be ordered discharged from the detention and

restraint aforesaid.

CATHERINE M. JACKSON

/ Ss /

Catherine M. Jackson

7910 Topaz Road

Richmond, Va. 23228

(804) 266-6093

MICHAEL J. MORRISSEY

/s/

Michael J. Morrissey

7910 Topaz Road

Richmond, Va. 23228

(804) 266-6093

10

APPENDIX EXHIBIT #8

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

- At Richmond -

DOROTHY L. MORRISSEY,

CATHERINE M. JACKSON.

and

MICHAEL J. MORRISSEY

Plaintiffs

Civil Action

No. 3:98CV87

Vs

GREER JACKSON

i i i

Defendant

MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF PLAINTIFFS’ MOTION FOR

ISSUANCE OF A TEMPORARY RESTRAINING

ORDER

In further support of plaintiffs’ motion for entry of a

Temporary Restraining Order against the defendant, the

following points and authorities, and discussion, is

submitted.

INJUNCTIVE POWER OF THIS COURT

APPENDIX EXHIBIT #8

An Injunction will issue where complainant's civil

rights have been evaded. Brown vs. J.C. Penny Co.,

D.C Wyo. 1943, 54 F.Supp. 488. An injunction will issue to

protect and preserve basic civil rights. Clemons vs. Board of

Ed. Of Hillsboro, Ohio, C.A.Ohio 1956, 228 F.2d 853,

certiorari denied 76 S.Ct 651, 350 U.S. 1006, 100 L.Ed 868.

The federal courts have the fundamental power and

duty to protect individual rights. This is especially so against

an unlawful and unauthorized use of power. This protection

may be by means of an injunction requiring affirmative

action on the part of a defendant, particularly where the nght

is a constitutional one. Lester vs. Parker, C.A.Cal.1956, 235

F 2d 787, rehearing denied 237 F.2d 698.

Violations of constitutional rights, such as of the First

Amendment, constitute per se irreparable injury, for

temporary restraining order purposes, even where

impairment exists only for a minimal period of time. Doe by

Doe vs. Shenandoah County School Bd., W.D.Va. 1990, 737

F Supp. 913.

'

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APPENDIX EXHIBIT #8

An activity which will endanger human life may be

enjoined on the ground that a court of equity will not gamble

with human life, at whatever odds. For loss of life, there is

no remedy that is, in an equitable sense, adequate. Harris

Stanley Coal & Land Co. vs. Chesapeake & O. Ry. Co.,

C.C.A.Ky.1946, 154 F.2d 450, certiorar: denied 67 S.Ct.

111,329 U.S. 761, 91 L.Ed.656.

A District Court has the power to issue an injunction

to prevent an injury to any constitutionally protected nght,

such as the nght of privacy. Nixon vs. Sampson, D.C.D.C.

1975, 389 F.Supp. 107, dismissed 437 F.Supp. 654, reversed

on other grounds 591 F.2d 944, 192 U.S.App.D.C. 335.

Federal courts have power to enjoin harassment or

repeated invasions of privacy. Lewis vs. S.S.Baune,

C.A.La.1976, 534 F.2d 1115, rehearing denied 545 F.2d

1299.

As to unconstitutional interference with real property

rights, the federal court has held that tenants were entitled to

-

-3-

APPENDIX EXHIBIT #8

a preliminary injunction so to restrain the landlord from

enforcing a seizure and sale of property without prior notice

and hearing to its owner. Adams vs. Joseph F. Sanson Inv.

Co., D.C.Nev.1974, 376 F.Supp 61. A Temporary

restraining order is generally issued ex parte or after a

hearing of summary character. Dilworth vs. Riner,

C.A.Miss.1965, 343 F.2d 226.

A TRO without notice can issue for the purpose of

preserving the status quo and preventing irreparable harm.

Warner Bros. Inc. vs. Dae Rim Trading, Inc., C.A.2(N.Y.)

1989, 877 F.2d 1120.

The Guardian’s Conduct Violates DLM’s Right To

Liberty And Her Pursuit Of Happiness

Individual constitutional rights, guaranteed to every

citizen by the Federal and State constitutions, represent a

value judgment that unjustified search and seizure,

deprivation of Liberty which encompasses one’s right to the

enjoyment of life, unlawful invasions of privacy, and

sibs

APPENDIX EXHIBIT #8

malicious interference with the familial bond, are such

fundamental law that when conduct of anyone so greatly

threatens these individual liberties, it must be forever

condemned as a matter of constitutional principle.

“The makers of our constitution undertook to

secure conditions favorable to the pursuit of

happiness. They recognized the significance

of man’s spiritual nature, of his feelings and

of his intellect. They knew that only a part of

the pain, pleasure and satisfactions of life are

to be found in material things. They sought to

protect Americans in their beliefs, their

thoughts, their emotions and their sensations

(and associations). They conferred, as against

the Government, the right to be let alone —-

the most comprehensive of rights and the

right most valued by civilized men. To

protect that nght, every unjustifiable intrusion

by the Government upon the privacy of the

individual, by whatever the means employed.

must be deemed a violation of the Fourth

Amendment.”

Olmstead vs. United States, 277 US 438, 478, 72 L. Ed 2d 944, 48

S. Ct 564 (1928)[Brandeis, J., dissenting].

The continued, forced confinement of Dorothy L.

Morrissey (DLM) against her will, when she has the

approval of her orthopedic surgeon for her return to her

=

APPENDIX EXHIBIT #8

home, represents both Federal and State Constitutional

violations of Privacy and her Right of Liberty. It also

deprives DIM of her personal property. Due Process under

the Fourteenth Amendment mandates her right to be heard,

something that in the guardian’s flawed thinking, says

“doesn’t really matter at this point” (paraphrasing).

The deprivation continuing each day now against

DIM from her home, from her right to associate with others

ot her choosing, and from access to her property with the

privacy she is entitled to, implicates those very “fundamental

liberty interests” that were delineated (and upheld) in Roe vs.

Wade, 410 US 113, 35 L. Ed 2d 147, 93 S. Ct 705 (1973).

It is well-settled that once a State creates such a

constitutionally protected interest, the Constitution forbids it

trom depriving one of that interest arbitrarily. This rule

applies to all citizens, the poor and the rich, the free and the

imprisoned, the young and the old, without distinction.

Hewitt vs. Helms, 459 US 460, 469-472, 74 L. Ed 2d 675,

103 S. Ct. 864 (1983).

APPENDIX EXHIBIT #8

The Guardian’s Conduct Violates The Judicially

Enforced Sanctity of The Family

Among the relationships that this country’s highest

Court has shielded from state interference is the bond

between parents and their children. See, Wisconsin vs.

Yoder, 406 US 205, 32 L. Ed 2d 15, 92 S.Ct 1526 (1972),

also, Stanley vs. Illinois, 405 US 645, 31 L.Ed 2d 551, 92 S.

Ct 1208 (1972).

DLM’s continued incarceration at the rehabilitation

facility divorces her from her immediate family and loved

ones. A family relation receives the heightened

Constitutional protection, and invokes this Court’s “close

scrutiny’. As applied in an analogous prison context, one

Federal Judge has said that “[T]he ability of a man to

embrace his wife and his children from time to time during

the weeks or months while he is awaiting trial, 1s a matter of

great importance to him”. Denial of family contact in ANY

context drives a wedge in a relationship that is at the core of

APPENDIX EXHIBIT #8

our society. Such a denial is “very traumatic treatment”.

Cited in Block vs. Rutherford, 82 L.Ed 2d 438.

The imposition of /imiting restrictions can be

equivalent to the denial of any contact between the parent

and child. See, e.g., Boudin vs. Thomas, 533 F. Supp 786,

792-793 (SDNY, 1982) [on the parent-child relationship].

Keeping her in an institution, after she is approved to leave

and does not need to be there, constitutes such a /imiting

restriction.

The Supreme Court has made clear its mandate on

the legal sanctity of family bonds:

“Our cases leave no doubt that a person’s

freedom to enter into, maintain, and cultivate

tamilial relations is entitled to constitutional

protection”.

Santosky vs. Kramer, 455 US 745, 753, 71 L.Ed 2d 599, 102

S.Ct 1388 (1982).

The Court-established special status of this

relationship in our constitutional scheme derives from the

fact that (1) traditionally it has been regarded as sacrosanct.

x?

APPENDIX EXHIBIT #8

Bellotti vs. Baird, 443 US 622, 638, 61 L.Ed 2d 797, 99 S.Ct

3035 (1979), Meyer vs. Nebraska, 262 US 390, 402, 67 L.

Ed 1042, 43 S. Ct 625 (1923).

Furthermore, the highest Court has (2), held the

family bond to be central to the emotional life of many

persons. See, Smith vs. Organization of Foster Families, 431

US 816, 844, 53 L. Ed 2d 14, 97 S.Ct 1932 (1977); and,

Pierce vs. Society of Sisters, 268 US 510, 535, 69 L. Ed

1070, 45 S.Ct 571 (1925).

Thus, a most compelling government interest, and a

very important public purpose, is required to sustain any

action that goes to sever, or even just adversely interfere

with, the family relation. Even incarcerated criminals retain

these important constitutional nghts. Lee vs. Washington,

390 US 333, 19 L.Ed 2d 1212, 88 S.Ct 994 (1968)[ equal

protection of the laws}. Surely an innocent person,

regardless of age, is entitled to no less. There is no iron

curtain drawn between the Constitution and the senior

-9-

APPENDIX EXHIBIT #8

citizens of this country. Wolff vs. McDonnell, 418 US 539,

41 L. Ed 2d 935, 94 S. Ct 2963 (1974).

The courts have insisted upon very persuasive

justifications for conduct that interferes with the parent-child

relation. This is even so for government regulations that

significantly, even though not prohibitively, interfere with

the free exercise of familial nghts. Cleveland Board of

Education vs. LaFleur, 414 US 632, 640, 39 L. Ed 2d 52, 94

S.Ct 791 (1974) [invalidating an administration regulation

that was found to impose a “heavy burden” on family rights].

A similar stringent test should be given meaningful

application here against the solitude, isolation,

imprisonment. lack of privacy and deprivation of her

property, that continues to be forced against DLM here, and

the exclusion of her children it causes from them being able

to be with her daily.

At a minimum, the person responsible for any of

these restrictions is required to show, with fact specifics, that

-10-

APPENDIX EXHIBIT #8

the violations advance a substantial government interest.

This the guardian has not only never done, but he has refused

to answer when the questions were asked.

With DLM now having been medically determined

not to require skilled care for her hip replacement recovery,

yet her being still detained in the rehabilitation facility

against her will and at a cost to her of $90+ a day (as she

lives on her retirement income), any party against her can

not, and has not, made such a showing of substantial

government interest to compel what amounts to, her

continued incarceration.

Furthermore, the continued confinement of DLM to

this condition amounts to the imposition of such lintiting

conditions so as to be equivalent to denying her from her

family and from daily seeing and associating with those who

have been so much a part of her life. This has gotten to the

point of being nothing less than punitive and malicious

conduct towards DLM by the guardian. Jackson has acted

with a reckless disregard of her rights or her health. It is this

ee

APPENDIX EXHIBIT #8

sacrosanct relationship that goes to the heart of mental

health. See, Bellotti vs. Baird, supra, and the other U.S.

Supreme Court cases cited above.

The Guardian’s Statement That “DLM’s Wishes Don’t

Matter Now” Confirms His Violation Of DLM’s Due

Process Rights

Jackson disregards DLM’s wishes, believing they

“don’t matter”. He denied DLM’s participation in what is

her own decision making. She would be furious if she knew

that Jackson was vacating her house and taking control of

her possessions (there is no oversight...no protection to

her...in allowing this type person unfettered access to her

property). DLM is being denied due process in being heard

from on matters that greatly affect her. One of the purposes

of the Due Process Clause is to reduce the incidence of error

in deprivations of life, liberty, or property. See, Fuentes vs.

Shevin, 407 US 67, 80-81, 32 L. Ed 2d 556, 92 S. Ct 1983

(1972).

- 12-

APPENDIX EXHIBIT #8

The Courts mandate against Jackson’s shunning of

DLM’s preferences, as it has been stated that one of ways

such error can be reduced is, in turn, by allowing persons

whose interests may be adversely affected by decisions that

affect them, to participate in those decisions. Mathews vs.

Eldridge, 424 US 319, 47 L. Ed 2d 18, 96 S. Ct 893 (1976).

In Jackson’s mind — and only his — DLM’s wishes

“don’t matter’...a mindset the tnal judge never anticipated.

Jackson routinely denies DLM’s participation in what is her

own decision making. DLM is being denied due process by

not being heard from on inileie that greatly affect her. One

of the purposes of the Due Process Clause is to reduce the

incidence of error in deprivations of life, liberty, or property.

See, Fuentes vs. Shevin, 407 US 67, 80-81, 32 L. Ed 2d 556,

92 S. Ct 1983 (1972).

Due Process consideration involves (1) a scrutiny of

the private interest that will be, or is being, affected by the

action contemplated, and (2) the risk that exists of an

“oe

APPENDIX EXHIBIT #8

erroneous deprivation of such a person’s interests through

the procedures used to accomplish the deprivation.

On the latter item (2), the risks are obvious: first,

there is a real risk that her hips will not, or are not, healing

properly, due to the lack of physical therapy she is not

getting, leading to permanent wheelchair confinement (DLM

Stays strapped in a wheel chair from Friday to Monday,

“because physical therapy does not work on week ends”, as

her children were told). This leads to the obvious eventuality

ot DLM being banished to a lite of isolation, abandonment,

rejection, declining mental and physical health, and death, in

the confines of some institutional facility.

As to tormer Due Process consideration item (1)

above, it is DLM’s entire real and personal properties that

are her “private interests”, as well as her interests in the nght

to pursue happiness, the peace and enjoyment of life

encompasses in her Liberty interest, and as former Supreme

Court Justice William O. Douglas put it, DLM’s right is

-14-

APPENDIX EXHIBIT #8

simply “to be let alone”. This is the crux of the Fourth

Amendment.

No elaboration should be needed on the personal

value that articles and artifacts within one’s home of long

standing bear on the “private interest” of the person that is

being affected. The home is her castle, and everything

therein 1s a part of her terrnitonal reign. Nor, need one’s

matenal possessions be grandiose. As one Court aptly

expressed it with respect to application of this same

constitutional protection for inmates:

“The possessions that a man is allowed to keep in his cell are

meager indeed, being limited to things like a few pictures,

magazines, cigarettes, candy bars, and perhaps an extra pair

of socks. Nonetheless, these items are cherished by the

inmates.” Hudson vs. Palmer, 82 L.Ed2d,104S.Ct. The

decision continued:

“Personal letters, snapshots of family

members, a souvenir, a deck of cards, a hobby

kit perhaps a diary or a training manual for an

apprentice in a new trade, or even a Bible — a

» }§-

APPENDIX EXHIBIT #8

variety of inexpensive items may enable a

prisoner to maintain contact with some part of

his past and an eye to the possibility of a

better future”.

Stevens, J., Id., concurring in part and dissenting in part.

The present situation is a prime example of wrongful

intrusion, with a deplorable lack of genuine interest, that a

stranger brings into the private life of another. It too often,

as here, produces the classic, unlawful -- but predictable --

eftect of causing unnecessary deprivations of liberty,

privacy, and substantial if not fatal depnvations of her

property and valued personal belongings. Logan vs.

Zimmerman Brush Co., 455 US 422, 435-436, 71 L. Ed 2d

265, 102 S. Ct 1148 (1982).

Where DLM has a legitimate claim of entitlement to

be in her home, and to stay in possession of it, it is her

property and her wrongful deprivation of it that falls within

the meaning and protections of the Due Process Clause”.

- }6-

APPENDIX EXHIBIT #8

Parratt vs. Taylor, 451 US 527, at 536, 68 L. Ed 2d 420, 101

S. Ct 1908 (1981).

Greer Jackson promised that DLM would be returned

to her home as soon as she was able after rehabilitation. The

facility charged with that rehabilitation itself says that DLM

no longer needs its skilled care. Greer Jackson has breached

his promised to DLM and the Court, and that breach, and the

severe damages occasioned thereby, are growing each day.

The Constitution requires the Government, if it

deprives people of their property, to provide due process of

law and to make just compensation for any taking. Due

process means that the person must be given the remedies

promised. Parratt vs. Taylor, supra, at 451 US 527, 537-544,

68 L. Ed 2d 420, 101 S. Ct 1908 (1981). Due Process

requires that DLM be given what she was promised...her

home.

The Guardian’s Discretion Is Not Absolute

It is well-settled that the discretion accorded a

guardian or other agency employee is not absolute. E.g.,

ies

APPENDIX EXHIBIT #8

Procunier vs. Martinez, 416 US 396, 405-406, 40 L. Ed 2d

224, 94 S. Ct 1800 (1974). Every individual retains those

constitutional nghts not inconsistent with legitimate

governmental objectives. United States vs. Edwards, 415 US

800, 39 L. Ed 2d 771, 94 S. Ct 1234 (1974).

Even in situations when an institutional involvement

into one’s life is justified (not the case here), the mandate has

consistently applied to all persons and government entities

that “there must be mutual accommodation between

institutional needs and objectives and the provisions of the

Constitution that are of general application”. Wolff vs.

McDonnell, 418 US 539, at 556, 41 L. Ed 2d 935, 94S. Ct

2963 (1974).

“Human Decency Requires No Less” — The Duty To

Protect

Misconduct and abusive conduct most often occur

towards those in the least position to defend themselves.

Thus it is that the courts are charged with a special

obligation to protect the rights of those less able to protect

- J8-

APPENDIX EXHIBIT #8

them themselves. United States vs. Bailey, 444 US 394,

423-424, 62 L. Ed 2d 575, 100 S. Ct 624 (1980) [Blackmun,

J., dissenting]. This Court has that higher duty to determine

whether the guardian is abusing his power, and a

constitutional mandate to maintain all DLM’s freedom and

fundamental rights using the “least intrusive” means

possible.

“The courts of this country, quite properly,

have the special responsibility for protecting

the constitutional rights of those unable to

assert those rights themselves. The court

must ensure that such persons, no less than

any other person, receive just protection. The

Constitution, as well as human decency,

requires no less”.

Justice O’Connor, concurring, in Hudson vs. Palmer, 82 L.

Ed 2d 393.

Responsive to Jackson’s abuse and misuse of his

position in planning this as a financial windfall for himself,

is the reminder of Thomas Jefferson’s admonition:

“Those that give up (one’s) liberty to get a

personal safety, deserve neither liberty nor

safety”

ois

APPENDIX EXHIBIT #8

Violation Of DLM’s Right To Privacy

The Privacy guaranteed to each of us by the Fourth

Amendment has been judicially held to be one of those

Constitutional rights that are of “general application” (as are

the other rights that are implicated). Its test, therefore,

requires that every search or seizure of “papers and effects”

-- as Jackson has threatened by eviction notices served at

DI.M’s residence against her wishes -- be evaluated for its

reasonableness.

Jackson’s Confinement Of DLM Constitutes An Ongoing

Seizure Of Her Person And Property

Jackson has impinged upon DLM two types of harm

under the Fourth Amendment: that of privacy violations and

that of possessory violations.

DLM’s privacy continues to be violated...indeed,

there is no privacy at all...by forcing her to stay,

involuntarily, at University Park, subject always to anybody

coming in, at any time, in disregard of her privacy. The

= 20-

APPENDIX EXHIBIT #8

Fourth Amendment applies with equal force to all rightful

expectations of privacy. Lyon vs. Farrier, 727 F 2d 766, 769

(CA8 1984).

DLM’s possessory rights also continue to be

violated...deprivation of her right to possession of her house

and her personal belongings therein. Jackson’s secretive

conduct has now been exposed, as others have learned that

he has done nothing towards DLM’s release. Jackson

continues even as he tries now to take over her property,

with his secretive attitude. |

' Not only does Jackson secrecy work to inflict

Fourth Amendment injuries, it imposes a considerable,

growing and insurmountable financial detriment to DLM.

She has a home to return to, but because of Greer Jackson's

inaction, DLM has being forced to pay for a period of time

approximate charges of $100 per day, and this is on her

social security retirement income. This altogether

unnecessary expense was for staying at the rehabilitation

facility whose skilled care they have said she no longer

needs, and from which, she desparately wants, and has

wanted continuously, to leave, to return to her home waiting

for her.

~2}-

APPENDIX EXHIBIT #8

Dmorrissey’s possession and embracement of her familial

bonds with her immediate familty is fundamental in our

Constitution, and is being ignored.

The Fourth Amendment protects DLM’s possessory

interests in her property, and her son’s possessory interest in

residing at that property, pursuant to his mother’s wishes.

This is entirely separate and apart from whatever personal

privacy interest DLM has in he

property and possessions that Jackson has violated or

intends to violate by his eviction threats and continued

detention of DLM at the rehabilitation facility. Hudson vs.

Palmer, 82 L. Ed 2d 393.

“The first clause of the Fourth Amendment

provides that the “nght of the people to be

secure in their...houses, papers and effects,

against unreasonable searches and seizures,

shall not be violated...”**. This text protects

two kinds of expectations. one involving

“searches,” the other “seizures”. A “search”

occurs when an expectation of privacy that

society is prepared to consider reasonable is

infringed. A “seizure” of property occurs

when there is some meaningful interference

«M2.

APPENDIX EXHIBIT #8

with an individual’s possessory interests in

that property.”

United States vs. Jacobsen,466 US__,_—s—, 80 L. Ed 2d

85, 104 S. Ct 1652 (1984).

The Fourth Amendment’s reasonableness of the

government’s ataiians of action is determined by

weighing the asserted governmental interests against the

particular invasion of the individual’s privacy and possessory

interests as established by the facts of the case. See, Terry

vs. Ohio, 392 US 1, 17-18, n 15, 20 L. Fd 2d 889, 88S. Ct

1868 (1968). The duration of a seizure (in this case

threatening to be perpetual) is a factor to be considered in

Fourth Amendment analysis. United States vs. Place, 462

US__,__, 77 L. Ed 2d 110, 103 S. Ct. 2637 (1983).

When the duration threatens to be permanent so to amount to

destruction of the possessory interest, that is to be taken into

consideration, favorably for the DLM, in finding a Fourth

Amendment violation. United States vs. Jacobsen, 466 US

__, __, 80 L. Ed 2d 85, 104 S. Ct 1652 (1984).

«M3

APPENDIX EXHIBIT #8

There is no doubt then that the facts presented here

adequately state a “seizure” within the meaning of the Fourth

Amendment by the guardian continuing to hold DLM in

confinement at University Park and depriving her of her

possessions at home. This has occurred since on or about

August 8, 1997, when DLM no longer needed skill care and

was available to be released. Jackson, in neglect of his

responsibility and duty as her guardian, and solely by a

misuse of the power entrusted to him in his role as guardian,

has wrongly asserted “dominion and control” over DLM’s

property to her exclusion and deprivation. Hence, Jackson’s

conduct “does constitute a seizure within the meaning of the

Fourth Amendment’. United States vs. Jacobsen, 466 US

,at___—, 80 L. Ed 2d 85, 104 S. Ct 1652.

The possessory interests the Fourth Amendment

protects are those of the citizen. From DLM’s standpoint, it

makes no difference what Jackson did, if anything, with her

property once it takes her away from it, or deprives her from

a.

APPENDIX EXHIBIT #8

going back to it. The fact is she has been deprived of her

possessory interest in it. 2/

Jackson’s Conduct Imposes Cruel And Unusual

Punishment Against All Plaintiffs In Violation Of The

Eighth Amendment

The Eight Amendment forbids “cruel and unusual

punishments.” Its proscriptions are measured by society’s

“evolving standards of decency”. Rhodes vs. Chapman, 452

US 337, 346-347, 69 L. Ed 2d 59, 101 S. Ct 2392 (1981).

While the Eight Amendment is usually invoked in criminal

Case settings, it is by no means limited to the criminal law

and its proscriptions are equally applicable to punishment

inflicted under the civil law. For example, wrongly

withholding one’s cherished possessions from an individual

has been said “not to comport with any civilized standard of

*/ In addition, the existence of remedies against the

State for this seizure is, of course, irrelevant to the Fourth

Amendment question since 42 USC 1983 [42 USCA 1983]

provides a remedy for damages for Fourth Amendment

violations supplemental to any state remedy that may exist.

Monroe vs. Pape, 365 US 167, 183, 5 L. Ed 2d 492, 81 S. Ct

473 (1961). Patsy vs. Board of Regents, 457 US 496, 73 L.

Ed 2d 172, 102 S. Ct 2557 (1982).

. -

APPENDIX EXHIBIT #8

decency” so to violate one’s Eighth Amendment protections.

Hudson vs. Palmer, 82 L. Ed 2d 393 (Justice O’Connor,

concurring).

Jackson’s conduct amounts to harassment of DLM

and of those close to her. Specifically to this Complaint and

requested TRO, those close to her include her children, who

were with her at home almost daily, DLM’s frend and tenant

Bill Drumeller, whom Jackson is trying to evict from DLM’s

house contrary to DLM wanting him to stay there.

The “intentional harassment” of any citizen cannot be

tolerated by a civilized society under the Eighth Amendment.

Hudson vs. Palmer, 82 L. Ed 2d 393 at 404. The continued

seizure of DLM being perpetrated by defendant, as exists

here, is in violation of Virginia law [(1) a guardian cannot

aftect real estate without prior court order; (2) the guardian is

to assist, not to replace, one who is only incapacitated

tollowing a physical surgery; (3) the lower court never held

that Dmorrissey’s wishes no longer matter, contrary to

Jackson's view], and serves no purpose except harassment

a.

APPENDIX EXHIBIT #8

(and possibly carry out a personal agenda of the petitioner

Lu Morrissey, as puppeteer of Jackson).

This, and the personal isolation and abandonment

that follows, constitute a violation against DLM of the

Eighth Amendment’s proscription against cruel and unusual

punishment.

Common Sense And Fundamental Notions Of Decency

Require DLM’s “Release”

This synthesis of the constitutional protections

accorded a person and their private property corresponds

with both common sense and cummon understanding. It is

not a fine point of law to be understood and interpreted only

by someone with Jackson’s ivory tower view of authority.

Common sense, 1.e., “the seat of the pants wisdom of

the average person’, mandates the immediate relief sought

herein for Mrs. Morrissey. Such deprivations, professionals

in the field have repeatedly confirmed, cause the individual

to devalue themselves and others, lose self-respect and

independence, and become prone to unusual behavior and at

-27-

APPENDIX EXHIBIT #8

times violence. Schwartz, Deprivation of Privacy as a

“Functional Prerequisite”. 63 J. Crim L. & Criminology

229 (1972). It is anomalous to take one into “elder custody”

for allegedly physical therapy for hip replacement recovery

in an effort to have her regain her independence and mobility

she previously enjoyed, while simultaneously subject her to

unjustified and degrading control over her every movement

and independent decision making.

When added to this is the betrayal dishonesty of her

guardian in promising the return to her home, yet in reality

doing nothing on that promise, then any label of

reasonableness put on this has to be so convoluted as to be

unrecognizable by anyone other than Jackson himself, who

by his inconsistent conduct, is no longer believable.

And lastly...

It is that Bill of Rights to which the Court must be

faithful that 1s to ensure that certain principles will not be

APPENDIX EXHIBIT #8

sacrificed to expediency, and hence the plea for entry of the

TRO:

“The very purpose of a Bill of Rights was to

withdraw certain subjects from the

vicissitudes of political controversy, to place

them beyond the reach of majorities and

officials and to establish them as legal

principles to be applied by the courts. One’s

right to life, liberty, and property,...and other

fundamental rights may not be submitted to

vote; they depend on the outcome of no

elections.”

West Virginia Board of Education vs. Barnette, 319 US 624,

638.87 L. Ed2d 1628, 63 S.Ct 1178, (1943).

WHEREFORE, for these reasons and in

consideration of the points and authorities as discussed, the

TRO should be, and is asked to be, entered.

Respectfully submitted,

DOROTHY LUX MORRISSEY

By: /s/

CATHERINE M. JACKSON

7910 Topaz Road

Richmond, Va. 23228

(804) 266-6093

- 29

APPENDIX EXHIBIT #8

/s/

MICHAEL J. MORRISSEY

7910 Topaz Road

Richmond, Va. 23228

(804) 266-6093

-30-

APPENDIX EXHIBIT #9

IN THE UNITED STATES DISTRICT COURT

At Richmond

CATHERINE M. JACKSON, and

MICHAEL J. MORRISSEY

For themselves and on behalf of

DLM

Petitioners

Civil Action

No. 3:98 CV 87

(Jdg. Spencer)

(Petition for

Writ of

Habeas Corpus)

VS.

GREER JACKSON

Respondent

PETITIONERS’ NOTICE OF APPEAL

Petitioners file this Notice of their Appeal to the

Court's March 12, 1998 order entered in this case.

/s/

CATHERINE M. JACKSON

/s/

MICHAEL J. MORRISSEY

Catherine M. Jackson

Michael J. Morrissey

7910 Topaz Road

Richmond, Va. 23228

APPENDIX EXHIBIT #9

(804) 266-6093

April 10, 1998

CERTIFICATE OF SERVICE

I hereby certify that on April 10, 1998, I did have a

copy of the foregoing “Petitioners’ Notice of Appeal” mailed

by first class mail, postage prepaid, to respondent Greer

Jackson, 8550 Mayland Drive, Richmond, Va.

/s/