Petition for Writ of Certiorari — Fairechild v. United Airlines, Inc.

Supreme Court, U.8,

A FILED

97.178 APR30 1997

No. OrFiue OF IHE CicKnK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

DIANA FAIRECHILD,

Petitioner,

We

UNITED AIRLINES, INC AND

PACIFIC INSURANCE COMPANY,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF HAWAII

JOSEPH A. RYAN #647-0

4614 Kilauea Ave. No. 559

Honolulu, Hawaii 96816

Tel. No. (808) 734-2811

Attorney for Petitioner,

DIANA FAIRECHILD.

“hee

c

o.

TABLE OF CONTENTS Page(s)

(a) Questions Presented... .....2.20~. First pages

after cover

(>) Table of Comtemis............:4....8. i

(c) Table of Authorities. .......2.2.~. «kk, ii, i

(d) Reference to Official and

Umotiveial Reports... ..... 2.2... www ke. 3

(e) Jurisdictional Grounds... ........2.. 4

(f) Constitutional Provisions,

Statutes @m@ Rules. ................. 5

(g) Statement ofthe Case................. 6

(h) How Federal Question... .....2. «2. dk. 13

Was Raised

(i) 28 U.S.C. Sec. 2403(a) may apply... .. 2... 15

(j) Reasons why Writ should be granted... .... .. 15

(k) Appendix. See Separate Volume.

proof of service accompanies this

document

TABLE OF AUTHORITIES

Page(s

CASES

Diana Fairechild v. United Airlines, Inc.,

et al. No. C-96-1775 JSB, United States

District Court Northern Distnct of

CR 2 ee ee re ee . ay te OP

Dred Scott v. Sanford, 60 US 393 (1857)... . .. . 4,5,20

Hodges v. United States, 203 US 1(1905). . 2. 2... 4,15

Prigg v. Pennsylvania, 41 US 539, 16 Peters

EEE 3s «5 3S nl ee oe 4,5, 14, 15, 16, 20

Slaughter House Cases, 83 US 36, 21 L. Ed.

See Ctered. ss 6 oS oe eee 4,15

UNITED STATES CONSTITUTION

Agee we ew ee eee 4,5,17

Amendment XII]. ........ 1, 2, 4, 5, 15, 16, 17, 19, 20

Amendment XIV Due Process. ..... 1, 2, 4, 5, 17, 19, 20

Amendment XIV Equal Protection. . . .1, 2, 4,5, 17, 19, 20

UNITED STATES CODE

we UG. eee Tre. . ww ce cea 4

2m Ue, OU DR ws wa we 15

il

ieeneenenemmmeeaeemenetmemeiaameaen

CALIFORNIA LABOR CODE

section 3602/6) (2)... . 2... we ww el. 6, 12,19

HAWAII REVISED STATUTES

eS re 1, 5,6, 11, 18, 19

MS oF ir Pao Ss oh eS 1, 5,6, 11, 18, 19

REVISED RULES OF THE SUPREME

COURT OF THE UNITED STATES

I MUGS GSPN oe i ia See oie eee 13

RE ee etre ie eg ty kg 4,13

ae ee ee a 13

EE a ae ee 15

HAWAII RULES OF APPELLATE PROCEDURE

Me Se A ee ek Cw Seale a 5, 6, 20

OTHER REFERENCES

Encyclopedia Britannica.................. 14

Melloni’s Medical Dictionary ............... 12

ill

a. QUESTIONS PRESENTED

1. Does a State via its laws impose a condition of slavery

upon all employees within the state when its laws give the

employers the right to intentionally injure the employees

without recourse to the common law by the employees in

violation of Amendment XIII?

2. Has the State of Hawaii via Sections 386-5 and 386-6

Hawaii Revised Statutes (HRS) subjected all employees to a

form of Involuntary Servitude by making it part of every

employment contract that the employers can willfully and

with premeditation poison the employees and at the same

time deprive the willfully injured employees of their common

law rights?

3. Has the State of Hawaii via Sections 386-5 and 386-6

HRS subjected this employee to incidents of Slavery by

making it part of her employment contract that her Master

could intentionally poison her while she was working in her

Master’s cabin and deny her the right to be free from such

cruel and brutal treatment and deny her the freedom to hold

the Master liable under the Common Law?

(a) Does the State thereby impose upon the Servant and

enforce against the Servant an incident of Involuntary

Servitude in violation of Amendment XIII?

4. When the highest State Court approves of and enforces

said restraint, refuses to hear oral argument by the Servant

and uses a “Memorandum Opinion” to dispose of the

Servant’s complaint against the Master:

(a) Does the State thereby endorse and/or enforce an act

of slavery in violation of Amendment XIII?

(b) Does the State thereby endorse and/or enforce an act

of Involuntary Servitude in violation of Amendment XIII?

(c) Has the State thereby denied the intentionally injured

Servant due process, in violation of Amendment XIV?

(d) Has the State thereby denied the Servant the equal

protection of the law in violation of Amendment XIV?

5. Whether the Labor and/or Workers’ Compensation

Laws of the Several States, as written and/or as interpreted

and enforced are dividing (or have divided) the United States

into “Free States and/or Slave/Involuntary Servitude States”:

in violation of Amendments XIII and XIV, our heritage,

culture, and history?

6. Whether the record demonstrates that the Labor and/or

Workers’ Compensation Laws of the Several States, as

written and as construed and enforced against employees are

a continuation of a type of “Fugitive Slave Act” in violation

of Amendments XIII and XIV?

7. Whether, in view of the fact that Amendment XIII,

designated herein as “The Freedom Law,” is not self-

executing, it is the duty of the Federal Courts and the Judges

and Justices thereof to enforce the prohibition of Slavery and

Involuntary Servitude, sua sponte, whenever the facts in the

case demonstrate the presence of the brutal and cruel

incidents and badges of Slavery and/or Involuntary Servitude?

b. THE NAMES OF ALL THE PARTIES ARE IN THE

CAPTION

N

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

DIANA FAIRECHILD,

Petitioner,

V.

UNITED AIRLINES, INC AND

PACIFIC INSURANCE COMPANY,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF HAWAII

d. OFFICIAL AND UNOFFICIAL REPORTS

Copies of the official and unofficial reports are presented

in a separate volume “Appendix.” They are:

“A” Memorandum Opinion dated 01/16/97 “A”

Supreme Court, State of Hawaii

“B” Order denying Motion for Reconsideration dated

02/05/97 “B” Supreme Court, State of Hawaii

“C” Order granting defendant’s Motion for Judgment

on pleadings dated 12/23/96 U.S. District Court

Northern District of California “C”

io Copies of communications between USDC

Northern District of California and Hawaii State

Supreme Court “D”

“E” Decision and Order dated 12/02/94 Hawaii State

Labor and Industrial Relations Appeals Board “E”

e. GROUNDS OF JURISDICTION

Jurisdiction is invoked pursuant to 28 USC Section 1257

(a), Rule 13.1 Revised Rules of the Supreme Court of the

United States and Article III and Amendment XIII of the

Constitution. Petitioner relies on the case of Dred Scott v.

Sanford, 60 US 393 (1856) and Prigg v. Pennsylvania 41 US

539 (1842) and other pre-Civil War cases wherein the

Supreme Court exercised jurisdiction and researched the

history and traditional application of the “Law of Slavery”

and vigorously enforced said law. Petitioner also relies on

post Civil War cases such as the Slaughter House Cases 83

US 36, 21 L. Ed 394 (1873) and Hodges v. United States, 203

US 1, (1905) wherein the United States Supreme Court in

exercise of its jurisdiction researched the history of the Law

of Slavery as well as the Law of Freedom (Amendment XIII)

and identified “badges and incidents of slavery” that are

absolutely prohibited under the flag of the United States and

within the exclusive jurisdiction of this Honorable Court. One

of the cruelest incidents of slavery was the rule that a human.

no matter how brutally treated by a Master was denied the

freedom to seek a common law remedy and trial by jury

against the Master for fair and adequate compensation for the

intentional (assault and battery) injuries and dehumanization.

Petitioner’s initial attorney failed to recognize that she, as

well as all employees in Hawaii, are subjected to cruel and

unusual punishment (intentional physical injury)—“purposeless

and needless imposition of pain and suffering”—by a State of

Hawaii law, which said law the State writes into every

employment contract. Said attorney failed to raise the

constitutional issues and subjected her to the “exclusive”

Workers’ Compensation Law of Hawaii. After substitution of

attorneys, Petitioner raised the issues involved herein by filing

her claim as preserved under the Labor Law of California.

She was injured on a flight to San Francisco and she was ill in

California (Appendix “C”). The two courts, Hawaii Supreme

4

i

}

Court and the U.S. District Court, Northern District of

California exchanged letters relative to Petitioner's cases and

she was subjected to urgings by her Master that she was not

free to assert her nghts under the California Law. A result,

similar to the rule imposed in Dred Scott and Pngg was

imposed on her, “Once a slave; always a slave.”

After denying her oral argument, the State of Hawaii

Supreme court entered a “Memorandum Opinion” denying

her any relief on January 16, 1997 (Appendix “A”). A Motion

for Reconsideration was timely and pointed out that the

Thirteenth and Fourteenth Amendments were being violated

(Appendix “G,” Supporting Affidavit). On February 5 1997,

an Order denying her Motion for Reconsideration was entered

without a hearing. Rule 13.1 provides that this Petition must

be filed by May 6, 1997.

Jurisdiction is also grounded on the fact that Amendment

XIII, the Freedom Law, is not self-executing and its respect,

integrity, and enforcement are vested in the Supreme Court of

the United State via Amendment III.

f. CONSTITUTIONAL PROVISION

STATUTES AND RULES INVOLVED

UNITED STATES CONSTITUTION

Amendment XIII

Amendment XIV, Due Process and Equal Protection.

HAWAII REVISED STATUES (HRS)

HRS Section 386-5

HRS Section 386-6

CALIFORNIA LABOR CODE Section 3602(b) (2)

HAWAII RULE OF APPELLATE PROCEDURE (HRAP)

HRAP, Rule 35 Opinions

The above are presented in Appendix “F”

5

g. STATEMENT OF THE CASE

INTRODUCTION: This is a Master—Servant relationship

that has been converted into a Master—Slave relationship via

the laws of the State of Hawaii, Sections 386-5 and 386-6

Hawaii Revised Statutes (HRS), and Rule 35 Hawaii Rules of

llate Procedure (Memorandum Opinion). When

construed and applied together with California Labor Code

Section 3602 (West 1996), this case identifies California as a

“Free State” and Hawaii a “Slave State.” The record

demonstrates that if the Servant had been hired in California,

rather than Hawaii, her freedom to protect herself from her

Master’s intentional foggings (spraying pesticide on her) and

her common law right to trial by jury, general damages for

conscious pain and suffering, special damages, punitive

damages, and injunctive relief would have been preserved.

She would have been as free as all of the other employees

hired in California and entitled to the equal protection of the

law.

BACKGROUND: The Servant was an international flight

attendant who started her service in 1966. Her Master was

Pan Am (Tr. 9/27/89, p.5). In 1986, Pan Am was “bought out”

by United Airlines at the Servant’s home port in Hawaii and

said Servant, who had 19 years seniority, was continued in

service by a new Master (Tr. 7/19/91, pp. 17-18). United

Airlines required her to undergo a physical examination by its

physician prior to entering its service. This Servant was free

from any illness (R. 635, 1216-1217; Tr. 9/27/89, p. 5, and Tr.

7/18/91, p. 31; R. 1217-1218).

On the Australia and New Zealand routes of each Master,

prior to permitting the employees and passengers to

disembark, everyone on board was intentionally sprayed with

a poison, which both Masters informed her and other

employees and said passengers was not harmful to human

beings (Tr. 7/18/91, p. 20). This poisoning of the employees

6

and passengers was performed by the Master sealing everyone

in its aircraft cabins, even shutting down the air-conditioning

in the aircraft, and requiring the Servants to instruct its

passengers that the spray was not toxic. This poisoning of the

employees and the passengers was performed by the Master

intentionally assaulting and battering their exposed skin, eyes,

nasal passages, lungs and other exposed areas including lips,

mouths, ears, and hair for a fifteen-minute (15-minute)

Saturation (uninterrupted assault and battery) period (Tr.

7/18/91, p. 20).

For eighteen of her nineteen years with her prior Master

(Pan Am), this Servant was able to perform her duties as

demanded of her during and after these intentional poisonings

without manifesting any permanent or chronic physical injury

or harm from being so fogged with said poison spray (Tr.

7/18/91, p. 22). Then, in January 1985, after cabin foggings in

New Zealand and Australia, this Servant began to experience

feeling of disorientation, headaches, and burning in her nose,

sinuses, and throat. She was seen by an allergy specialist

hired by Pan Am, Arthur Neilson, M.D., on January 21, 1985

(Appendix “E” Par 5). Dr. Neilson found no stigmata of

allergic disease. “He opined that Claimant’s reaction to the

insecticide spray was not an allergic reaction, but an irritative

response of the mucus membrane of the respiratory tract and

the conjunctivae” (Ibid).

On February 11, 1985, this Servant sought a consultation

with George Ewing, M.D. an American Board Certified

Allergist and Immunologist at Straub Clinic & Hospital,

Honolulu (Tr. 7/18/91, pp. 24, 56; Tr. 9/16/91, p. 19). Dr.

Ewing tested her to determine if she was sensitive to any

chemicals, in particular to D-Phenothrin, the principal

chemical in the spray used to fog the cabins and occupants of

the airplanes. On February 14, 1985, Dr. Ewing performed a

provocation-neutralization test on her. Using the pesticide

from the airplane in a double-blind study, Dr. Ewing’s nurse

placed three droplets of the diluted pesticide under Diana

7

ee

Fairechild’s tongue. Diana reacted with symptoms that

included rapid heart beat, shooting pains under the right ribs,

burning on the tongue, headache, and anxiety. This specific

test is approved by the Academy of Otolaryngic Allergy. Dr.

Ewing’s diagnosis was that Diana had a sensitivity to the

pesticide used on the airplanes whose principal chemical was

D-Phenothrin (Appendix “E” Par. 7). On May 17, 1985, Dr.

Ewing cautioned her that she could develop sensitivities to

other chemicals if exposures to D-Phenothrin continued.

Diana avoided further exposures during her remainder of

employment with Pan Am (Appendix “E” Ibid).

Diana did not lose any time from work as a result of this

sensitivity to D-Phenothrin during her employment with Pan

Am. Due to the fact there were no recurring symptoms and

she was able to perform her duties to full capacity, she did not

pursue a Workers’ Compensation claim with Pan Am (Tr.

7/18/91, pp. 24-29; M.R. 5/26/89, p. 12).

The next year, 1986, United Airlines became her new

Master. Even though United Airlines was fully informed of

her sensitivity to the pesticide used inside the aircraft on

certain routes, she was hired.

Working conditions were different with this Master

(United) than with the previous Master (Pan Am). United

flew DC10s, whereas Pan Am flew 747’s. On the DC10s, the

economy smoking section was in front of the no-smoking

section. The Galley was between the economy smoking

section and the first class smoking section. This Servant was

required to go through a smoking section to serve anyone in

the Master’s plane. In addition, the Master allowed its

passengers to stand around the Galley and smoke cigarettes

(R. 1306). The Servant’s workplace was always filled with

tobacco smoke and it was very stuffy because it was the

Master’s standard operating procedure to reduce the air

supply as a way to reduce operating costs. The procedure

helped the Master to reduce the amount of fuel used and

related expenses (Tr. 7/18/91, pp. 31-34; R. 1127-1129, 1280-

8

1281, 1242-1243). This Servant’s work shifts were often in

excess of eighteen (18) hours on overnight flights (R. 817-

821, 1243-1244).

On August 12, 1986, on a United Airlines flight to New

Zealand, the Master fogged its cabin with pesticide and this

Servant and others as well as the passengers for fifteen (15)

minutes. This Servant became very ill. Her immediate

symptoms from this fogging in the Master’s cabin included

headache, body aches, and an eye condition which the

Master’s physician referred to as blepharitis (bugged out eye

rimmed with red scaly skin) (Tr 7/18/91, pp. 35-37. See also

Finding of Fact #12. Appendix “E” p. A5 thereof.). “She

described them as looking like ‘golf balls,’ with a pus-like

discharge. She also described dark circles under her eyes, and

scaly skin around the eyes.” Prior to August 12, 1986, she had

not been fogged with this alleged “non-toxic” insecticide

since January 1985 (Appendix “E” Finding of Fact #13). This

was the first time she became ill while in the service of this

Master (Tr. 7/18/91, p. 36).

The Servant filed for Workers’ Compensation benefits

and she was awarded reimbursement of medical expenses (Tr.

7/18/91, p. 36). That claim or case was never reopened.

After the New Zealand cabin-fogging injury, the Servant

appeared to gradually recover because she no longer had

blepharitis; however, she still experienced other symptoms

including headache, conjunctivitis, chest pain, nausea and

increased mucous during and immediately after all her flights

which were all smoking flights, even though she and the

cabins had not been fogged for the fifteen-minute saturation

period (Tr. 7/18/91, pp. 44-55; MR. 6/13/89, pp. 44-55;

Appendix “E: para 17). Also, many of the cabins of the planes

in which she worked had been fogged with the poison spray

on the flights immediately before her flights, and thus

contained residue of the chemical poison in the upholstery,

carpets, and walls (Tr. 7/18/91, pp. 51). The air on all her

flights was always filled with tobacco smoke (Tr. 7/18/91, p.

34) and always had a low oxygen content.

“On December 20, 1987, on a smoking flight to San

Francisco from Honolulu, Claimant flew on a plane that had

just made stops in New Zealand and Australia prior to landing

in Honolulu. Claimant alleged exposure to D-Phenothrin on

this date.” (Finding of Fact #23, Appendix “E”). The cabin of

that plane had been fogged with the pesticide three times in

the 24-hour period just prior to her flight (Tr. 7/18/91, pp. 53-

55). She was not ill before boarding. During the flight, she

experienced body aches, conjunctivitis, headache, fever and a

very bad cough (Tr. 7/18/91 54-55, Tr. 9/27/89, p. 17; M,/r,

5.26.89m o, 31 /r, 1186-87). She never recovered (Tr. 7/18/91,

p. 55). She continued to have flu-like symptoms for many

months. She suffered backaches, burning sensations, chest

pain, conjunctivitis, cough, depression, disorientation,

dizziness, ear aches, gall bladder pain, headaches, memory

loss, nausea, and swollen glands (M.R. Honolulu Medical

Group May 5, 1989, pp. 14-15, 17; Tr. 7/18/91, pp. 55, 57; Tr.

9/25/91, pp. 22-25; Tr. 7/18/91, p. 55). She also had fevers,

rashes, and open sores (Tr. 7/18/91, 55, 57). As a result of the

August 1986 injury, she had become sensitive to many

chemicals in addition to the original sensitivity to D-

Phenothrin. After the December 1987 flight, she became

completely disabled with Multiple Chemical Sensitivity (Tr.

7/18/91, pp. 55-58; M.R. 5/26/89, pp. 13-17; Tr. 9/25/91, pp.

15-19).

Dr. Ewing wrote in August 1988 that her Multiple

Chemical - Sensitivity (MCS) was caused by the work

environment on United Airlines’ aircraft. This was her first

information that the disability she suffered was MCS due to

the pesticide foggings. He recommended that she avoid

chemicals that could aggravate her symptoms. He saw no

need for further work-up or laboratory testing” (Finding of

Fact No. 27, p. A9, Appendix “E”). After Dr. Ewing

diagnosed her with MCS, Dr. Yuen, a psychiatrist, brought

10

ee

his diagnosis of “adjustment disorder” current and diagnosed

her with “organic mood syndrome.” Dr. Yuen testified that he

considered her emotional difficulties or mood to be a product

of an organic, physical cause (Ibid, No. 29). Dr. Yuen

concluded that this was a chronic and disabling illness (Tr.

9/25/91, pp. 12-25; M.R. Honolulu Medical Group, 5/26/89,

pp. 13-17, 25).

On January 24, 1989, on advice of her former attorney

that Hawaii law restricted her to only the benefits of Workers’

Compensation (HRS Sections 386-5 and 386-6), she filed for

said relief by and through said attorney (R. 5). The claim was

denied on February 3, 1990 on the grounds that: 1) She

sustained no injury; 2) If she did have an injury, it was an

exacerbation of her chemical sensitivity while with United;

and 3) Her adjustment disorder was a consequence of her

original injury with Pan Am (R. 437-438).

She appealed on March 12, 1990 to the Hawaii Labor and

Industrial Relations Appeals Board (HLIRAB). Hearings took

place before the HILRAB on July 18, and September 16 and

25, 1991.

The Servant’s treating physicians and their consultants

testified that her illness was MCS and that is was caused by

exposure to the pesticide poison and other toxic chemicals on

United Airlines aircraft. Her medical expert witnesses were

George Ewing, M.D., Gregory Yuen, M.D., Steven Plavnick,

PhD., James Miller, M.D., and William Rae, M.D. (tr.

9/16/91 pp. 1-60; Tr. 9/25/91 pp. 17-18, 57-80; and R. 55,

123-127, 632-39). On November 2, 1994 (3 years after the

Hearings) the HILRAB filed its Decision (Appendix “E”)

Stating that, “We are unable to conclude that Claimant :

sustained an injury on December 20, 1987, as a result of

exposure to D-Phenothrin at work. At most, Claimant has

proven that she suffered an imitative reaction to D-

Phenothrin, in the form of blepharitis and conjunctivitis,

when she was exposed in 1985 and 1986. There was no

hata d i a re Civ

11

evidence that she suffered a similar reaction on December 20,

1987.” (Ibid p. Al6-17).

The HILIRAB rejected her treating physician’s and

consultants’ testimony and accepted the testimony of the

Master’s experts. The HILRAB wrote that its members

believed and accepted the “Opinions” of the Master’s experts.

They wrote, “We credit Dr. McDonnell’s opinions.” (Id p.

A12). We credit Dr. Comstock’s opinions.” (Id p. A13). Dr.

Comstock, who was presented as a “medical toxicologist”

diagnosed this Servant’s “current condition as an iatrogenic

chemophobic anxiety reaction to chemicals” (Appendix “E”

para. 38, p. Al3). “latrogenic,” according to Melloni’s

Illustrated Medical Dictionary, means: “Caused by a

physician; said of an illness unwittingly induced in a patient

by the physician’s attitude, treatment or comment.” The

HILIRAB had found as a fact that “Claimant currently lives in

a rural area in upcountry Maui. In order to minimize chemical

exposures. Claimant leads a reclusive existence, avoiding

traffic and most people.” (Ibid “E” p. A10).

The Servant appealed to the Supreme Court of the State

of Hawaii and the Appeal was assigned S.C. No. 18726. She

discharged her attorney and retained her present one. She also

retained Thomas J. Kaster, Esq. of San Francisco, California

and he filed a claim in California for her, claiming rights

under the California Labor Code, Section 3602. The history

of that case and the grounds of jurisdiction are contained in

Appendix “C,” which is a copy of the ORDER GRANTING

DEFENDANT’S MOTION FOR JUDGMENT ON THE

PLEADING, No. C-96-1775 JSB, United States District

Court, Northern District of California, DIANA FAIRECHILD

v. UNITED AIRLINES, ET AL., filed and entered December

20, 1996.

Before Appendix “C” was granted, Magistrate Judge

Joan S. Brennan and Chief Justice of the State of Hawaii

Supreme Court Ronald T.Y. Moon exchanged

12

isis

communications concerning both cases. Copies of said

communications are contained in Appendix “D.”

Subsequently, the Federal Court (California), upon the

persuasive argument of the Master’s attorney, dismissed the

Servant’s case under the Californian Labor Code, stating

“Hawaii's workers’ compensation statute is the applicable

law. Plaintiff's claim is barred under Hawaii’s Workers’

Compensation statute, which recognizes no exception for an

Master’s fraudulent concealment.” (Appendix “C” p. 10).

Thereafter the State of Hawaii Supreme Court, after

refusing to hear oral argument, issued a Memorandum

Opinion (Appendix “A”). The State Supreme Court endorsed

the finding of the State of Hawaii LIRAB, “that Claimant

does not suffer from an injury as claimed.”

Within ten days this Servant filed a Motion for

Reconsideration January 27, 1997. Appendix “G,” the

“Supporting Affidavit” in support of the Motion for

Reconsideration, points out to the State Supreme Court of

Hawaii that the Hawaii Statutes and Memorandum Opinion

impose upon and enforce upon the employees in Hawaii an

incident of slavery and involuntary servitude, specifically, the

right of the Master to intentionally whip, or otherwise

physically abuse a slave with the consent and protection of

the state.

On February 5, 1997, the State of Hawaii Supreme Court

denied the Motion for Reconsideration (Appendix “B”).

Pursuant to Rules 12 and 13. Petitioner has until May 6, 1997

in which to file this Petition.

h. HOW THE FEDERAL QUESTION WAS RAISED

The Federal Question was raised in the Supporting

Affidavit, Appendix “G.”

“Affiant verily believes that it was an incident of slavery

and involuntary servitude for a master to intentionally whip,

or otherwise physically injure a slave or peon with impunity.

13

eh A SAAD hats he

PT ee eS eee ane ee eee

“Affiant verily believes that the law of Hawaii and of the

United States via the Thirteenth and Fourteenth Amendments

prohibits an employer from intentionally poisoning an

employee in the course of employment.

“Affiant respectfully suggests to the Court that the

Memorandum Opinion in this case denies the injured

employee the Equal Protection of the Law as well as liberty

and property rights without due Process of Law.”

The Supreme Court of Hawaii responded by an Order

denying any argument or hearing on the Federal Question and

denied the Motion for Reconsideration summarily.

Petitioner also raised the issues of slavery and

involuntary servitude by fleeing to the State of California and

seeking relief from the conditions of slavery and/or

involuntary servitude impressed upon her via Hawaii law.

Appendix “C” shows that the Federal Court in California

followed the course of the fugitive slave laws. See

Encyclopedia Britannica, “Fugitive Slave Laws, a term

applied in the United States to the statutes passed in Congress

in 1793 and 1850 to provide for the return of Negro slaves

who escaped from one state into another or into a federal

territory. . . In 1842 the U.S. Supreme Court in the case of

Prigg v. Pennsylvania ruled that the state authorities could not

be forced to act in fugitive slave cases, but that federal

authorities must carry out the federal law. . .”

Petitioner herein had sued, as a free person, in the

California State Court. The Master (Respondent herein,

United Airlines) had the case removed to the USDC for the

Northern District of California) The Federal Court

(California) relegated this woman to the “exclusive”-slave

and involuntary servitude law of Hawaii (Appendix “C”). The

Hawaii Supreme Court then summarily disposed of her claim

by employing the Memorandum Opinion (Appendix “A”).

Once a slave; always a slave was the law of the United States

in 1842, Prigg v. Pennsylvania 41 U.S. 539 (16 Peters 539)

and Federal Judges vigorously enforced said law. However,

a

the fugitive slave law was repealed June 28, 1864.

Amendment XIII. The Law of Freedom, now prohibits all

judges, State and Federal, from enforcing any form of slavery

or involuntary servitude upon any employee anywhere under

the Flag of the United States. This Federal Question is raised

sua sponte. “The state (condition) of slavery is deemed to be a

mere municipal regulation, founded upon and limited to the

range of the territorial laws” (Prigg p. 611). The Hawaii Court

and the Federal Court (California) adapted the fugitive slave

laws to abrogate this intentionally injured Servant’s privileges

and immunities.

The Court is respectfully requested to rule that the

Federal Question was timely and appropnately raised.

i. STATEMENT: 28 U.S.C. SECTION 2403(a) MAY

APPLY

j. REASONS WHY CERTIORARI SHOULD BE

GRANTED

Slavery and involuntary servitude are concepts of law

imposed upon humans by a state or a nation. The earliest

tribes had slaves. slavery and involuntary servitude are not

based on race, creed, national origin or sex (Hodges v. United

States 203 U.S. 1 (1905)). The “Law of Slavery” predates the

Talmud, the Koran, and the Holy Bible. Exodus is an historic

account of the escape from the law of slavery as enforced

against the tribes of Israel by the Egyptian empire. Slavery

and involuntary servitude are identified by “badges and

incidents” (Hodges, Ibid, p. 16).

A master flogging a servant with a whip while the servant

is performing services for the master in the confines of the

master’s cabin has always been recognized in the United

States as a brutal and cruel incident of slavery. The “Law of

Slavery” is a vital part of our history and the Court is

requested to take judicial notice thereof. The law of the slave

15

State protected the master by prohibiting the intentionally

injured and dehumanized servant from not only the freedom

to be free from assault and battery, but also the freedom to

exercise the common law remedy of an action for damages,

for pain and suffering, special and punitive damages,

injunctive relief, as well as a trial by a jury of free men and

women who decide whether medical expert witnesses are

credible or paid hirelings of a cruel and brutal master. The

fugitive slave laws required Federal Judges to enforce slavery

and prevent a slave from escaping to a “Free State.” (Prigg v.

Pennsylvania, supra).

When a master fogs a servant with a poisonous spray for

fifteen minutes while she is confined within its cabin and

performing her work, that should be recognized as a form of

brutal and cruel infliction of physical injury and

dehumanization. Such an assault and battery is more

dehumanizing that a flogging with a whip because a master

uses a whip to goad a horse, mule, ox or slave to perform

services. However, a master uses a poison to kill lower forms

of life such as lice, mice, bats, gnats, rats and things like that,

that are not his property and which he loathes.

The purpose of Amendment XIII was to forbid all shades

and/or forms of slavery and involuntary servitude. (Slaughter

House Cases, 83 US 36, 21 L.Ed. 394, 1873). However,

Amendment XIIi is not a self-executing law. When the

scholars of law, labor and history accidentally or intentionally

disregard the Law of Freedom (Amendment XIII) and find

sophisticated legalese with which to resurrect and enforce the

most cruel and brutal badges and incidents of slavery and

inflict them upon the total work force of a state, it will be an

obvious act of abuse of judicial discretion for the Supreme

Court of the United States to deny a petition for Writ of

Certiorari. The Supreme Court will be refusing to enforce the

Law of Freedom (Amendment XIII) with the same vigor

traditionally employed to enforce the Law of Slavery.

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It is respectfully submitted that this petition is also a

request that the Court exercise its constitutional authority

under Article III, as well as a petition to the discretion of the

Court. The Court should take this case because slavery and

involuntary servitude are absolutely prohibited everywhere

under the jurisdiction of this Honorable Court.

“Neither slavery nor involuntary servitude, except as

punishment for crime whereof the party shall have

been duly convicted, shall exist within the United

States, or any place subject to their jurisdiction.”

(Amendment XIII)

It is respectfully pointed out that there is no other power

on earth that can respect and enforce this absolute prohibition

if the Justices of this Honorable Court reject this petition.

This absolute prohibition is a vital part of the heritage,

culture, tradition and history of the United States. This

absolute prohibition is the most prominent feature with which

we face the entire world.

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges and immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.” (Amendment XIV).

All persons look to the Supreme Court of the United

States for scholarly instruction as to how to prevent

applications of law that are so sophisticated they convert an

ordinary master—servant relationship into a brutal form of

slavery. Certiorari should issue because the record

demonstrates that the state lawmakers, judges, and other

enforcers have resurrected said brutal forms without reason,

need or justification, and with apparent heedlessness.

17

ee ee

Employers do not need a protected nght to flog, poison,

rape, or brutalize any employee. In Hawaii, as elsewhere,

masters do not hire a servant and pay that servant wages so as

to have the nght to flog, poison, rape, or brutalize said servant

in the course of employment. Servants in Hawaii do not

contract and agree to have the master flog, poison, rape or

brutalize them for wages. It is the state who imposes this form

of slavery and/or involuntary servitude upon all employees in

Hawaii. See HRS Section 386-5: Exclusiveness of right of

compensation and HRS _ Section 386-6: Territorial

applicability. “If an employee who has been hired in the State

(Hawaii) suffers work injury, he shall be entitled to

compensation under this chapter even though the injury was

sustained without the State. The nght to compensation shall

exclude all other liability of the employer for damages as

provided in Section 386-5. ALL CONTRACTS OF HIRE OF

EMPLOYEES MADE WITHIN THE STATE SHALL BE

DEEMED TO INCLUDE AN AGREEMENT TO THAT

EFFECT.” (Emphasis added)

The aforesaid words are the bonds of slavery and

involuntary servitude that give the master the right to

intentionally injure the servant, provided the master pays the

dreadfully injured servant two-thirds base pay plus out-of-

pocket needed medical services.

Such brutality caused the women of Hawaii to protest

and in 1992 the bonds of slavery and involuntary servitude in

HRS Section 386-5 that gave the master a protected right of

“sexual harassment, sexual assault, and infliction of

emotional distress and invasion of privacy” were cut away.

Unfortunately, the women and the scholars of law, history

and labor failed to recognize that sexual harassment, rape,

infliction of emotional distress (dehumanization) and

invasion of privacy are some of the less brutal incidents of

slavery and involuntary servitude.

Obviously, the law makers, enforcers and interpreters of

the law of the state need the assistance of the Supreme Court

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of the United States. Hawaii needs the help and understanding

of this Honorable Court via a Wnit of Certiorari.

The record also demonstrates that the entire nation needs

to have a Wnt of Certiorari issue in this case. The record

shows that this servant tried to escape the bondage imposed

upon her via HRS Sections 386-5 and 386-6. She has a work-

connection with the state of California. She was treated for

her injuries in California. California is a free state in that its

workers’ compensation law, California Labor Code Section

3602 (b) (1) and (2), provides freedom for the servant to

protect herself (himself) according to the common law and

Amendments XIII and XIV. The California law provides:

“(b) An employee, or his or her dependents in the

event of death, may bring an action at law for

damages against the employer, as if this division did

not apply, in the following instances:

(1) Where the employee’s injury or death is

proximately caused by a willful physical assault by

the employer.

(2) Where the employee’s injury is aggravated by the

employer’s fraudulent concealment of the existence

of the injury and its connection with the employment,

in which case the employer’s liability shall be limited

to those damages proximately caused by the

aggravation. The burden of proof respecting

apportionment of damages between the injury and

any subsequent aggravation thereof is upon the

employer.”

The servant, Petitioner herein, filed an action in

California against the master (United Airlines, et al) February

27, 1996 claiming a violation of California Labor Code. See

Appendix “C,” Diana Fairechild v. United Airlines, et al., No.

C-96-1775 JSB, United States District Court, Norther

District of California.

The California (Federal) Court and the Hawaii Supreme

Court exchanged communications concerming the case.

19

(Appendix “D”) The Hawaii Supreme Court denied the

Servant oral argument on the appeal, the California Court

denied the Servant the freedom to use the California Labor

Code and sent the servant back to Hawaii by determining that

the servant had no rights under the California Labor Code,

and then the Hawaii Supreme Court disposed of the servant's

claims via a Memorandum Opinion pursuant to Hawaii Rules

of Civil Procedure, Rule 35.

A Memorandum Opinion is not a precedent. It cannot be

cited as law in any subsequent case. In this case, it can be

compared with the act of the slaver closing the master’s cabin

door and keeping the moans and cries of the flogged (fogged

with poison) human inside and protecting the master from

being properly and lawfully charged with an action for assault

and battery, intentional infliction of emotional harm (a most

outrageous dehumanization), and sued by the human for

damages for pain and suffering, special damages, punitive

damages and injunctive relief. The Memorandum Opinion

also prevents the servant from ever having the people via a

civil trial by jury determine all of the facts and the amount of

the verdict. The master purchases expert opinions that the

dreadfully injured human was not injured by the poisonous

foggings, although her treating physicians swear she was

permanently so injured.

Copies of the communications between the Courts are

presented in Appendix “D.” In substance and effect the free

state of California, via the Federal District Court, and the

slave state of Hawaii devised a kind of fugitive slave act that

brings the sophistry and legalese found in Dred Scott_v.

Sanford and Prigg v. Pennsylvania into the 21st Century.

With all due respect to the Courts, and officials involved,

it appears obvious that all of the states, their institutions, and

people need the scholarly assistance of the Supreme Court of

the United Stated to restore the integrity of Amendments XIII

and XIV of the Constitution of the United States, and bestow

the blessing of liberty upon this employee and all employees,

20

and therefore, a Wnt of Certiorari to the Supreme Court of

the State of Hawaii should be granted.

Dates: Honolulu, Hawaii April A] , 1997

Respectfully submitted

[JOSEPH A. RYAN

Attorney for Diana Fairechild,

Petitioner