# Appendix — Johnson v. District of Columbia (No. 06-897)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2006

## Text

Supreme Court U8
06-897 55° 27 2006

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6 Che ‘eS i dew § wi,

IN THE
Supreme Court of the United States

KENNETH W. JOHNSON,
Petitioner.

MARRION BARRY JR. MAYOR OF THE
DISTRICT OF COLUMBIA. e7 al..
Respondents.

On Petition For Writ Of Certiorari ,
To The District Of Columbia Court Of Appeals

APPENDIX TO
PETITION FOR WRIT OF CERTIORARI

Kenneth W. Johnson

Pro se litigant of Record
Y803 Allentord Circle, Apt. 203
North Potomac. Md. 20850
Telephone: (240) 314-7188

TABLE OF CONTENTS

Appendix A

District of Columbia Court of Appeals
Memorandum Opinion and Judgment
Kenneth W. Johnson vy. District of Columbia,
04-CV-115 & 04-CV-442 (November 21, 2006)...... 1A

District of Columbia Court of Appeals
Memorandum Opinion and Judgment
Kenneth W. Johnson vy. District of Columbia,
04-CV-115 & 04-CV-442
CHOCIDUE DB, GN ss kactidecincksecsasescncaaaven 2A-5A

Appendix B

Superior Court of the District of Columbia
Order denying Plaintiff's Request
For Oral Argument and Motion to Vacate Prior
Judgment Under Rule 60(b)
CRamaty Ua, Beis siesccassscansyaxenvanadeiesseazenl 6A-8A

Appendix C

Superior Court of the District of Columbia
Order denying Plaintiff's Motion
for Reconsideration and Motion to Admit
Videotape Evidence (March 24, 2004)................. 2A

Appendix D
Superior Court of the District of Columbia

Order Granting Motion to Dismiss
Plaintiffs Complaint (July 15, 1998).................. LOA

Appendix E

Superior Court of the District of Columbia
Complaint in Civil Action 3837-98
Kenneth W. Johnson v. District of Columbia

(TH[E] COMPLAINT) (May 21, 1998) ........ 1LA-24A
Appendix F

Affidavit of Service served Marion Barry, Jr.,

Mayor or the District of Columbia..................... 25A
Appendix G

Affidavit of Service served
Corporation Council of the

i a OD . cocecccccvevceseesscecooeess 27A
Appendix H

Affidavit of Service served

DC Metropolitan Police Department .................. 29A
Appendix |

Defendant District of Columbia’s Motion
to Dismiss Plaintiff's Complaint, or in the
Alternative, for Summary Judgment............. 31A-32A

Appendix J

Memorandum of Points and Authorities in

Support of Defendant’s Motion to Dismiss,

or, in the Alternative, for

INL, .cvcccscecosceversecoveveses 33A-36A

Appendix K

Superior Court for the District of Columbia
Acquittal and findings of fact,
United States of America vs.
Kenneth W. Johnson
Ne Bila OO iicietdtnscancbcncivecescaen 37A-43A

Appendix L

Superior Court for the District of Columbia
Complaint in Civil Action 3875-98
Kenneth W. Johnson v. James O’ Boyle
(Temporary Restraining Order)
SN dlc: We innccecusdcankidaiaviageatnonaunciren ta 44A-47A

Appendix M

Superior Court Rules — Civil (SCR-Civil) Rules,
Introductory Note: Rules 1-86 hereof are
derived directly from the correspondingly
numbered Federal Rules and are in many
GHG SEIT Civic cd cccnvsccncanvicctevecsuactasans 48A

Appendix N

Superior Court Rule of Civil Procedure 60(b)
(which is identical to Federal Rule of

Civil Procedure GOCD)). ........cccccsccccccscccccss 49A-50A
Appendix O

Federal Rule of Civil Procedure 60(b).......... S1A-52A
Appendix P

FECA Se WS Bec vccncsecssvnresccascens eae

Appendix Q

14" Amendment to the

United States Constitution..................cceceeeeeees 55A
Appendix R
Se eS Ee Ot ic cbicvvccovsnasevesbeneuscgssvineaes S6A

Appendix S

HAZEL-ATLAS GLASS CoO. v.
HARTFORD-EMPIRE CO.
De Wile FAs Oe Rs COB siacsccciensbexseseess 57A-78A

Appendix T

JOHN DEMJANJUK, v.

JOSEPH PETROVSKY, et al.,

F.3d 338; 1993 U.S. App. LEXIS 29694;

27 Fed. R. Serv. 3d (Callaghan) 437............... T9A-116A

Appendix U

En Banc decision of the United States Court of
. Appeals for the District of Columbia held:
“We hold that appellant’s noncompliance
with 12 D.C. Code § 309 cannot bar his
federal claims.”--Brown v. United States,
239 U.S.App.D.C. 345, 356-357............. 117A-143A

Appendix V

Attorney James A. DeVita: The former attorney

for the District of Columbia is now in private

practice specializing in, “Fraud-individuals

injured due to misrepresentations of facts by

SNE uadissavaveewesstbasinvasennaeeunteoane 144A-146A

Appendix X

Pertinent parts of the October 24, 2003
Memorandum that was filed in the Superior
Court of the District of Columbia in support
of Plaintiffs Rule 60(b) motion to vacate
prior judgment on the basis of

“fraud upon the court”. The memorandum
was titled: “MOTION UNDER RULE
60(b) TO VACATE PRIOR JUDGMENT
UNDER RULE GROUNDS OF

“FRAUD UPON THE COURT”

AS HEREIN SET OUT BY THIS
MOTION AND MEMORANDUM

OF LAW AND POINTS AND

Fees SE sicsatcnccsiacestencseaces 147A-152A

1A

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 04-CV-115 Pte
04-CV-442 IT Nov 21 2006

DISTRICT OF COLUMBIA
COURT OF APPEALS

KENNETH W. JOHNSON, APPELLANT,

V. CA-3837-98
DISTRICT OF COLUMBIA, et al., APPELLEES.

BEFORE: Washington, Chief Judge; Farrell, Ruiz, Reid,
Glickman, Kramer, Fisher, Blackburne-Rigsby, and
Thompson, Associated Judges.

ORDER

On consideration of appellant’s pro se petition for
rehearing en banc; and it appearing that no judge of this
court has called for a vote on the petition for rehearing en
banc, it is

ORDERED that the petition for rehearing en banc is
denied.

PER CURIAM
Copies to:
Honorable Michael L. Rankin
Clerk, Superior Court
Kenneth W. Johnson
9803 Allenford Circle

Apartment 203

North Potomac, MD 20850
Todd Kim

D.C. Solicitor General

2A

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 04-CV-1L15/8
04-CV-442

DISTRICT OF COLUMBIA
COURT OF APPEALS

KENNETH W. JOHNSON, APPELLANT,

vi. CA-3837-98
DISTRICT OF COLUMBIA, et al., APPELLEES.

Appeals from the Superior Court of the
District of Columbia
Civil Division

(Hon. Michael L. Rankin, Trial Judge)
(Submitted September 27, 2006 Decided September 28,
2006)

Before FARRELL and KRAMER, Associate Judges, and
NEBEKER, Senior Judge.

MEMORANDUM OPINION AND JUDGMENT

PERCURIAM: These appeals are from the denial of
appellant’s motion under Super. Ct. Civ. R. 60(b) filed over
five years after his case had been dismissed, and from the
denial of his successive motions to reconsider the denial of
the Rule 60(b) motion. The crux of appellant’: argument,
aside from his numerous assertions regarding the merits of
the underlying action, ' is that the District of Columbia

' Appellant sued the Metropolitan Police Department (MPD) — and
arguably the District of Columbia —- in May 1998 alleging false arrest
or malicious prosecution. The Superior Court dismissed the suit
without stating reasons, and appellant took no appeal from the
dismissal.

3A

committed fraud upon the court by making a number of
allegedly fraudulent statements in its June 1998 motion to
dismiss his complaint. The trial court found no merit to the
claims of fraud, and neither do we. We accordingly affirm.

Rule 60 (b) allows fraud to be asserted as a basis for
relief from a judgment in two ways: by motion under Rule
60(b)(3) asserting fraud or other misconduct of an adverse
party; and by “an independent action... to set aside a
judgment for fraud upon the court.” A motion under Rule
60(b), however, must be made no more than one year after
the judgment. See Rule 60(b); Clivarius v. Stanley J.
Sarnoff Endowment for Cardiovascular Science, Inc.,858
A.2d 457, 464 (D.C. 2004). Appellant’s belated motion
plainly does not qualify for relief under that provision. Nor,
as will appear, does it meet the substantive requirements for
an independent action for fraud —- assuming, solely for the
sake of argument, that it was filed “within a reasonable
time” after the 1998 dismissal, as Rule 60(b) demands for
such an action.

Appellant contends that the District, in moving to
dismiss his 1998 suit, made three misstatements amounting
to fraud on the court: one, that he had sued only the MPD,
which is not sui juris, when in fact he also sued the Mayor
and the District of Columbia generally; two, that an earlier
complaint he had filed in Superior Court, also dismissed,
barred the present suit on res judicata grounds; and three,
that his suit was barred for failure to give the District prior
notice under D.C. Code § 12-309, when (he alleged) he
raised federal civil rights claims to which that statute does
not apply. Our decisions make clear, however, that none of
these assertions make out a claim of fraud upon the court
sufficient to meet the requirements of an independent
action.

4A

The concept of fraud upon the court, we have said,
“should be narrowly construed and ‘confined to the most
egregious cases, such as bribery of a judge or juror, or
improper influence exerted on the court by attorney, in
which the integrity of the court and its ability to function
impartially is directly impinged.’” Partnership Placements,
Inc., v. Landmark Ins. Co., 722 A.2d 837, 844 (D.C. 1998)
(citation omitted). Moreover, “[f]raud on the court... is
fraud which is directed to the judicial machinery itself and
is not fraud between the parties or fraudulent documents,
false statements or perjury. The concept refers only to very
unusual cases involving far more than an injury to a single
litigant.” Olivarius, 858 A.2d at 465 (internal quotation
marks and citation omitted). Finally, we have held that an
independent action under Rule 60 (b) is an equitable one of
last resort carrying with it stringent requirements. See, e.g.
Threat v. Winston, No. 04-CV-191, 2006 D.C. App. LEXIS
511, at *13-14 (D.C. September 21, 2006). Relief in equity
is available “only to prevent a grave miscarriage of justice”
and “equitable relief will not be granted where the plaintiff
has a complete and adequate remedy at law.” /d. at *16
(internal quotation marks and citations omitted). “[I]f a
Rule 60(b) motion is available, there is an adequate remedy
and the independent action may be dismissed.” /d. (internal
quotation marks and citation omitted).

Appellant’s claims of fraud fall well short of
meeting these standards. He alleged no bribery or improper
influence exerted on the court, and at most claimed that the
District had made questionable legal arguments or
misstatements about his complaint — matters that did not
“involv[e] more than an injury to a single litigant” and
certainly did not portend “a grave miscarriage of justice”
(indeed, the adversary process is designed to allow for
correction of such statements by an opposing litigant).
Moreover, Rule 60(b)(3) furnished appellant with an
“adequate remedy of law’, one he failed to pursue within

SA

the time permitted. Lastly, as the District points out,
appellant never opposed its 1998 motion to dismiss, nor
took an appeal from the dismissal, thus foreclosing his
claims under the principle that “an independent action for
fraud may not be entertained if there was an opportunity to
have the ground now relied upon to set aside the judgment
fully litigated in the original action.” Olivarius, 858 A.2d at
468 (internal quotation marks and citation omitted); see
also Fleming v. District of Columbia, 633 A.2d 846, 849
(D.C. 1993).

Affirmed.
ENTERED BY DIRECTION

OF THE COURT:
**s/Garland Pinkston, Jr’’

GARLAND PINKSTON, JR
Clerk of the Court
Copies to: ;

Hon. Michael L. Rankin
Clerk, Superior Court
Kenneth W. Johnson, pro se
9803 Allenford Circle, #203
North Potomac, MD 20850

Edward E. Schwab, Esq.
AGDCO

* Because appellant’s arguments in support of his motions to reconsider
are the same as those made in his Rule 60(b) motion, the trial court did
not abuse its discretion in denying those motions: See, e.g., Wallace v.
Warehouse Employees Union #730, 482 A.2d 801, 810 (D.C. 1984).

6A

SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION

KENNETH JOHNSON,
Plaintiff, : Civil Action No. 98-3837
: Calendar 2
v. : Judge Michael L. Rankin

FILED
DISTRICT OF COLUMBIA : CIVIL ACTION BRANCH
et al : Jan 15 2004
. Pe . Supenor Coart
Defendants. : a ~~

ORDER DENYING PLAINTIFF’S REQUEST FOR
ORAL ARGUMENT AND MOTION TO VACATE
PRIOR JUDGMENT UNDER RULE 60(b)

This matter is before the court on plaintiff's motion
to vacate prior judgment and request for oral argument on
such motion. Upon consideration of the motion, District of
Columbia’s opposition, plaintiff's follow-up request, and
the record herein, both of plaintiff's motions are, this 12"
of January 2004, hereby DENIED.

Plaintiff first filed suit against the District of
Columbia, the Metropolitan Police Department, and its
officers in May of 1998, claiming that defendants had
maliciously prosecuted him in criminal court. On July 15,
1998, the court dismissed the lawsuit for plaintiffs failure
to comply with the mandatory notice requirements, as
stipulated in D.C. Code § 12-309. Plaintiff now moves this
court to vacate the judgment under Superior Court Civil
Procedure Rule 60(b) on grounds that defendant District
had defrauded the court in its opposition to plaintiff's
earlier motion.

Although Rule 60(b) permits the vacating of a
judgment when so warranted, it was specifically designed
to safeguard the finality of judgments; therefore, only in
exceptional circumstances will the court grant post-

TA

judgment relief. Lynch v. Meridian Hill Studio Apts., Inc.,
App. D.C., 491 A.515 (1985). The court, moreover, has
broad discretion with which to decide a motion to vacate a
default judgment. See Watkins v. Carty’s Automotive Elec.
Ctr., Inc., App. D.C., 632 A.2d 109 (1993).

Where, as here, the plaintiff asks the court to vacate
judgment due to fraud, he must show the following
elements with respect to defendants’ behavior: (1) a false
representation, (2) in reference to a material fact, (3) made
with knowledge of its falsity, (4) with the intent to deceive,
anid (5) action taken in reliance upon the representation.
Cobb v. Cobb, 116 WLR 1993 (Super. Ct. 1988).
Assuming the plaintiff proves all five of the above
elements, the court may then set aside the earlier decree,
even if the present case was filed well after the general
year-long limitation. Yet ii is only in “unusual and
extraordinary” or egregious circumstances, which justify
overriding the policy of finality, that the court will reverse
judgment. See Starling v. Jephunneh Lawrence & Assocs.,
App.D.C., 495 A.2d 1157 (1985). In such instances, the
court will vacate the improper judgment so long as the
plaintiff has filed his Rule 60 motion within a reasonable
amount of time —-"reasonable", here, being defined
according to the facts of the case.

In this case, plaintiff alleges that defendant District
of Columbia, and its agents, has committed fraud upon the
court by making false representations. Plaintiff, however,
offers no proof to substantiate this claim. Further, he offers
no solid argument showing that he should have been
granted judgment the first time around. As the District
points out, the plaintiff failed to meet the statutory
requirements of D.C. Code § 12-309, in that he neglected to
properly notify the mayor of his suit. Notwithstanding the
dismissal based on this statutory preclusion, plaintiff
thereafter filed a similar suit in District Court. This too was
dismissed, although its cause was failure to file within the
proper statute of limitations.

8A

In its opposition to plaintiff's Rule 60 motion to set
aside the judgment, defendant states that the motion, having
been filed much longer than a year after judgment, is out of
time and, for that reason alone, should be denied. ‘True, in
most instances the court will observe a one-year time limit
by which parties must file their motions to reverse
judgment. But, as noted above, that rule is not hard-lined,
and under extenuating circumstances the court will waive
this otherwise enforced deadline. Here, though, plaintiff has
not shown that the District has committed any fraud
whatsoever and, so, regardless of any time limitation he is
not entitled to the requested relief. *

It is so ORDERED.
**s/Michael L. Rankin’’

MICHAEL L. RANKIN
Judge
(Signed in Chambers)

January 12, 2004
Copies to:

Keiuneth Johnson
11103 Knights Court
Germantown, Maryland 20874

Holly M. Johnson

Assistant Corporation Counsel

441 4" Street, NW, 6" Floor South
Washington, DC 20001

* tn his motion, plaintiff claims that he had, in keeping with 12-309
statutory requirements, notified the Mayor of F< suit by naming him in
the complaint. Yet, as the law stipulates, mere mc. ion of the Mayor’s
name does not satisfy the statutory obligation; rather, submission of a
letter does.

9A

SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION

KENNETH JOHNSON, :
Plaintiff, : Civil Action No. 98-3837
: Calendar 2
v. : Judge Michael L. Rankin

DISTRICT OF COLUMBIA : FIL ED

s et al., CIVIL ACTION BRANCH

Defendants. : Mas £3 2004

ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION, SECOND MOTION FOR
RECONSIDERATION, THIRD MOTION FOR
RECONSIDERATION, AND MOTION TO ADMIT
VIDEO TAPE EVIDENCE

The court hereby, this 24" day of March, 2004
DENIES the following motions filed bu plaintiff in the
above-captioned case:

Plaintiff's motion for reconsideration
Plaintiffs second motion for reconsideration
Plaintiff's third motion for reconsideration
Plaintiff's motion to admit videotape evidence

Further, the plaintiff is prohibited from filing any
additional motions until further order of this court.

It is so ORDERED.
**s/Michael L. Rankin’’

MICHAEL L. RANKIN
Judge
(Signed in Chambers)

10A

SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION

KENNETH W. JOHNSON, : ‘
Plaintiff : Civil Action No. 98-3837
: Cal. #2 J. Gardner
v. : Next Event Sched. Conf.
; : 8/21/98
"D.C. METROPOLITAN
POLICE DEPARTMENT" Toa 6 ero
(SIC) AIS
: Jul 15 1998
Defendants’ : of The Dow of Columbia
; Washington, DC
ORDER

Upon consideration of defendant District of
Columbia’s unopposed motion to dismiss plaintiffs
complaint, the record herein, it is ORDERED, that the
defendant’s motion is GRANTED, this 15" day of July
1998.

‘*s/Wendell P. Gardner’”’

WENDELL P. GARDNER
Judge
Copies To:
James A. DeVita
Assistant Corporation Counsel, D.C.
1 Judiciary Square, Room S-86
441 4" Street, N.W., 6" Floor
Washington, D.C. 20001

Kenneth W. Johnson
2122 24" Place, N.E.
Unit B

Washington, D. C. 20018

11A

SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION

Kenneth W. Johnson
2122 24" Place Unit B NE Washington DC 20018
Plaintiff
CAL 2
v. Civil Action No. 0003837-98

D. C. Metropolitan Police Department.
300 Indiana Ave NW Washington DC 20001
(General Counsel Office) rm 4125

Marrion Barry Jr. Mayor of the District of Columbia

(or designee rm 10-S-04) and

Corporation Council of the District of Columbia (Janes
Stokes

441 4° Street. N.W., 6" Floor South, Washington, D.C.
20001

Defendants F ILED

CIVIL. ACTION BRANCH

May 21 1998

Supenor Coun
of The District of Colca
Washington, D.C

1. Jurisdiction of this Court is founded on D.C. Code
Annotated, 1973 edition, as amended, Sec. 11-921.

COMPLAINT

See Attachment

Wherefore, Plaintiff demands judgment against
Defendant in the sum of $ 100,000,000.00 with interest and
costs.

301 497-4428

Phone
DISTRICT OF COLUMBIA, SS
Kenneth W Johnson, being first duly sworn on oath
deposes and says that the forgoing is a ‘ust and true
statement of the amount owing by defendant to the

12A

plaintiff, exclusive of all set-offs and just grounds of
defense.

‘**s/Kenneth W Johnson’’

(Plaintiff — Agent)

Subscribed and sworn to before me this 21‘ day of May
1998

**s/Debra A. Cheek”’

(Notary Public/Deputy Clerk)

Debra A. Cheek
- Notary Public
District of Columbia
My Commission Expires
August 14, 2001

K.W.J. ENTERPRISES, Inc.
2122 24” Place NE
Washington, DC 20018

May 18, 1998
Dear Chief Ramsey,

This is a formal complaint of misconduct by Police
Officers and Officials working on your Department. |
would first like to inform you that a 5" District Officer with
the last name Rodrigez, I believe if this is not his correct
name I would recognize him on sight. This officer
attempted on numerous occasions to extort money from me
by threating to close down my nightclub, if I did not
comply with his demands. Secondly, my nightclub has been
frequented a numerous amount of times by an MPD Sgt.
His name is Boyle or Doyle, again if I have it wrong I
would recognize him on sight. This sergeant along with
some Officers have been harassing myself, club employees,

13A

and other people, and have in several instances created a
malicious interference to my business and that of other
businesses involved. There are several companies who
make money from these events taking place and there
employees as well as me and my employees, adding up to
lots of people job’s are being affected as well as companies
income. Note: in all the years that I have been in business
there has only been to date one arrest of any customer of
mine which was in the bathroom. I have done everything I
could think of to combat any illegal activity. | have wrote
the Chief of Police Office requesting them to allow me to
have off duty police. I have submitted names of police
officers, Lieutenenants, Sergeants, who want to work for
me in there spare time. I have purchase $2,400.00 in
insurance to cover the DC Metropolitan Police Department
against lawsuits as they require to hire there police. | have
hired armed SPO companies, I have hired Club Security
Personnel. I have posted flyers at Police Stations to hire off
duty police and I have personally encouraged police
officers countless times to do there jobs and arrest any
person they see in or about my club doing anything illegal.
On one occasion for example, this past Friday, which was
May 15, 1998, the Sergeant Boyle came into my nightclub
ordered me out of my ticket booth as I monitored the
band’s cashier collecting money, of which % is paid to me.
He then told me that he smelled marijuana in the air in my
club. I told him then he needs to arrest anybody he see with
any drug or doing anything illegal, after all he is a police
officer and has that responsibility. He states to me that if he
smells it again he is going to throw my customers into the
street, keep in mind we’re talking about hundreds and
hundreds of people at one time and shut my club down
causing thousands and thousands of dollars to be lost at one
time that evening alone, not to mention the long term
damage it will cause in these people not returning to my
business to patronize it, were talking liquid damages in the
hundreds of thousands of dollars and even millions if

14A

sustained long enough. Also, out of all these people and the
Sgt. Boyle and his officers probing throughout my
nightclub on every visit they did not lock up not one
person, there are as many as 300 people in my place at one
time and through the course of a night there can be as many
as 500 hundred coming in and out. To spite my efforts, I
have been harassed and my business maliciously interfered
with, band members, myself, customers have been forced
to give there names to the same people over and over again.
This Sgt. Boyle has made a habit of threating me even
though he himself has not caught anyone doing anything
that he can arrest then for, | don’t have a gun or a badge or
a police radio, nor do | have his authority to handcuff an
arrest people. I cannot take any more threats from this man
nor can | allow people jobs to be destroyed because of this
Sergeant and other officers: This Sergeant has me terrified
to leave my business at 3:00am or 4:00am when it closes,
given the history of this and other experiences. | am
concerned that in an act of retaliation this man might try to
plant some drugs on me or at my business. I should not
have to live with these fears. | have a business that is not
only legal but is licensed by the DC Government and | have
all of the Licenses and Occupancy permits needed to
Lawfully operate my business. My right to do so is being
breached by your employees, please do something about it
before more damage is caused.*‘s/Kenneth W_Johnson’’
Kenneth W. Johnson CEO/President

As of May of 1997 I was falsely arrested. | was charged
with Operating a Disorderly House, I was later acquitted of
the only charge which again was operating a disorderly
house. I had the same judge for trial as the one who signed
off on my arrest warrant and even though I had no jury he
even said no way not guilty. He found that in the three
elements necessary to charge me with this crime, two of
them did not exist the only one that existed is the
government having to prove that the business belong to me

ISA

and certainly we do not dispute that | am the owner of the
nightclub through my corporation (Corporate President).
The judge told the prosecution that in so many words that
he struggled not to acquit me base on the prosecutor’s case
alone. The prosecutor tried to convince the judge they had
the right to prosecute me, there is a lot of evidence of
wrong doing on the part of the police department in my
trial and should be in my transcripts, I will order them
soon, I have been told it could take up to six months
especially since my trial was tape recorded with no court
reporter present. I hope the government won’t try to destroy
or alter these transcripts in an attempt to limit the
consequences of there actions. In addition, to being
humiliated by being arrested in front of my nightclub, all of
my customers hundreds and hundreds of them were treated
unfairly, the police were ordering everybody out as they
raided my place. They were all over the street and all over
the inside of my club. Prior to this the police department
call my Landlord in Virginia Beach, VA and asked for a
copy of my lease, which is none of there business and
clearly an invasion of my privacy, then told him I was a
drug dealer and that | was using his place for illegal
activity, think how this made me feel here I have never
done anything illegal in my life. I don’t even smoke or
drink at all. Furthermore, I am licensed by the DC
Government to operate my business and | have all the
permits and licenses to conduct my business. I had to here
all these false accusations from my Landlord’s son and be
threaten to have my lease terminated as this was my only
source of income, you can imagine the fear and stress I
went through, being threaten for lies that had been told by
the police. The police came in and took all my business
records and has yet to return them almost 6 months to date
after | won my case. They took $1,700.00 dollars out of my
pocket the night they arrested me some of the meney |
made that night, that I needed to pay my rent creating
another hardship for me, it took a court order from a judge

several months after I won my case to get that money back,
they knew I had a legal business that the money was earned
legally, but took it anyway. The prosecutor never tried to
use it against me in court, they just felt they had an excuse
to rob me of my money and could get away with it. My
defense was based on that what the government is
describing to the judge is not even a crime our defense was
that even by the government’s position if you take
everything there saying happened they way they said its
still not a crime on my behalf. The government was saying
stuff like, if there is a homicide a block away from my
nightclub that nobody knows is going to happen that has
nothing to do with my own personal actions that I am not
even aware of, that know I’m a criminal because 1 own a
business up the street. | never heard of something so
ridiculous and neither did the judge as he acquitted me,
scolded the police department saying if they spent half the
time trying to stop these crimes as they did trying to
shutdown my nightclub, we wouldn’t have these problems.
They set up cameras’s ouside my club, video tape my club,
ran undercover in and out of the 500 people approximately
a night overall those months of doing these things the
police caught and locked up one person smoking in the
bathroom in fact in all the years I have been in business this
is the only arrest of a customer. I have done everything
from spending $1,200.00 a year on a issurance policy that
insures the police department against lawsuits, so I can hire
off duty police as the police department requires to hire
there police. { have wrote a lot of letters to the chief of
police requesting police assistances. I have passed out fliers
at police stations but the officers who want to work for me
get turned down by the department. [ have hire private
security company and club security, which the police
admitted. We have very thorough security at my club. We
even make people take off there shoes and empty there
pockets to get in, we can strip search people so it is not an
invincible system, if a girl puts something in her bra or a

17A

guy in his pants we are not going to violate our customers
tights, to satisfy the police but we do all we can. The police
want to seek revenge against me and this is how they are
trying to do it. [ am so scared that they are going to try to
plant something on me or my business that I am afraid to
go to and leave my business. I should not have to live like
that when I am doing nothing wrong, nothing they have
done has worked so they can’t stop me from making legal
money so the next thing is to frame me, which | am
thankful that they have not done yet. I can remember Det.
Hagerdy telling me as we drove to the station after my
arrest you know you don’t get know jury for this and then
laughing as though my life was some cat and mouse game
the police were playing. After this devastating experience
my customer base collapsed, all my income stopped from
this incident from my nightclub. I lost a deal on a car
dealership that was in the works as I struggle to save and
rebuild my nightclub. The police have harassed me by
constantly asking me and the band how much money we
make. I was maliciously prosecuted. I had to go out and
pay for a lawyer. After winning my case in December
1997, I am still being harassed by the police department in
the same ways pursuant to my acquittal as outlined in my
complaint against Officer Rodrigez and Sgt. Boyle and
other MPD Officers dated May 18, 1998. I have suffered
economic harm, and emotional distress.

On October 7, 1994, I had left my vehicle directly in front
of 2122 24" Place, N.E., Washington, DC, which is a
building being leased by my corporation. The vehicle was a
1990 Mercedes 300E. Sometime that night I road home
with my girlfriend Catrina, I was to tired to drive myself
home. Then next morning at about 12:00 or 1:00 p.m., I
had returned with Catrina and a building inspector, as |
approached my car in Catrina’s car I observed two police
lieutenants in which I do not know standing outside my car,
both were tall white males approximately 220lbs. I would

I8A

recognized them by sight. At any rate one of these two Lt.
order me to pull over and step outside Catrina’s car in
which | did, he approached and stopped me at Catrina’s
driver side door, just after I stepped out of the vehicle. He
stated that they had searched my vehicle prior to my
arrival. I stated to him what is the problem and why did you
search my vehicle while I was gone. He stated to me that he
found a lot of receipts in my car and demanded to know
what I was doing with a lot of receipts in my car, he further
more stated that he knows I was suspended for a year
without pay and demanded to know where | got the money
to be buying a lot of things. . I stated to him that did he
know that I my car in court and was found not guilty by
virtue of self defense and that I had a police trial board
hearing in which two police captains (Wisemen, and
Brown) and a police inspector (Lingerfelt), who concurred
with the courts after hearing the evidence and concluded
that no disciplinary action what so ever would be taken
against me. I went on to state that did he know that a few
months ago the department back paid me for tine on
suspension in one lump sum of about $26,000-$27,000. He
demanded over and over again an answer as to why I had
receipts in my car. I said to him Lieutenant is there
semething illegal about having receipts in my car. He stated
that I look suspicious and that he might impound my car for
an administrative investigation, which I thought to myself
how can you take someone’s car because you employee
them and for no other reason than an administrative
investigation. I stated to the Lt. that I have done nothing
wrong. He stated to me that he found a stack of credit cards
and we might have a possible credit card fraud. | stated to
him that well Lt. aren’t all the credit cards in my name, he
paused and thought about it and said well maybe you
reported them stolen and charged on them afterwards, I said
well if | had reported them stolen the first thing the banks
would do is cancel them rendering them useless, so that
dosen’t make sense. Also, | told him that they were already

19A

canceled because I couldn’t make payments on them
because of my one year suspension and attorney fees. He
was fishing and trying to come up with anything. | asked if
I could see these receipts and see how old each was and
how much they were for, I explained that I have a lot of old
receipts in my car, nevertheless, he would not let me go to
my car after | had requested to be allowed to retrieve and
look for in an effort to retrieve these receipts. He denied me
this. I then reached in my girlfriend Catrina’s car and took
out my keys and stated to the Lt. that I am going to let the
building inspector in to my building, in which he didn’t
object so I went to my front door and unlocked it, the
building inspector was so alarmed at my interrogation by
the Lt., that he though I had done something wrong. He
said he was not going in, I said to Lt. look what you have
done you have me all upset and the building inspector ail
upset, he thinks | have done something wrong, and all
because I’ve got receipts in my car and because I have a lot
of credit cards. The building inspector spoke up and said
I’m not scared anymore, I see whats going on now, what
they are doing to you is wrong, you should take legal action
against them. | stated that its know way all this could be
because of no receipts, I said to him is it because you all
don’t want me to open a business and make a lot of money.
I’m under the strong impression that this is being prompted
By jealously, the fact that here the low man on the totum
poll just an officer, is trying to open his on business and
brighten his financial future and spiritual future, and a
black man at that. At least in my eyes this seems like a
much more logical reason all though equally as wrong for
what happened to me that my privacy was being violated
by non consential searches and falsely accused of erroneous
and ludicrious accusations. Non-consential searches of my
car as weil as my building, or rather the building of the
corporation to which I am a stockholder and formally
represent. Which brings me to the building shortly after I
unlocked the door for the building inspector and him only

20A

and after argument in sued between myself and Lt. he and
an officer took it upon themselves to rush inti my building
and conduct a search while I was to stand out on the front
with another Lt. who advised me that the inspector was on
his way. When the inspector got on the scene he at some
point approached me and the two Lts. By this time the one
who did the search with the other officer had come back
out just prior to inspector Behilia’s arrival I began to
explain the inspector in so many words stated that he was
not concerned about the past things that the Lt. brought up
about my back pay and all that. He asked the Lt. had I done
anything criminal and the Lt. said no, so then the inspector
said well then let him go, let him go. Also, they had called
Lt. Metillo from the second district, which is wgere I am
employed as a police officer, to respond to the scene. He
apparently was briefed by the other Lt. because he ordered
me to hand over my credit cards, in which I complied he
then returned them to me after about 15 minutes. | would
also like to add that | remember distinctly locking my car
door as | always do and my girlfriend remembers me doing
it before I left. | never leave my car unlocked not only did I
lock my doors, but I secured by steering wheel and brake
with a device similar to the club people use in there car,
this device locks the steering wheel to the brake, this device
was still placed and locked to my brake and sterring wheel.
All of my personal papers were all over the floor from the
search of my glove compartment, nothing was stolen and
no windows were broke or any other physical damage other
than the driver side lock cylinder being missing, which still
locks automatically with the other locks and this damage
was already present prior to me parking my car. This makes
it hard for me to believe someone else other than the police
broke into my car prior to there search, just to take nothing
not even one of the ten credit cards the Lt. was so
concerned about. Also, my glove compartment was still
open with ail the prior contents of it displayed all over the
floor of my car. It had been ramsaked, it was not left in this

21A

order. I stated to the Lt. prior to me seeing the inside of the
car that sometimes I know I might have some receipts lying
around in the car in somewhat of a fashion. This was far
beyond that I also would like to state that the Lt. told me
and the building inspector that the reason he was at my
building was that a burglar alarm was going off in the
building. The building inspector and I said him well how
come we didn’t here it. He certainly doesn’t have a code to
turn it off. | went back to the second district and with some
help did a computer check which revealed that no call for a
burglar alarm was ever received by the police department
or assignment dispatched to 2122 24" Place, N.E.,
Washington, D. C. or even one in 2100 block of 24" Place
on that day being October 8, 1994. I also explained to the
Lt. that legally this building is not being leased by me the
lease is between the landlord and a corporation in which I
own stock and at such time that it is converted in to a
business it will be a business owned by that corporation and
not and individual since by law a corporation is view as a
separate entity and stockholders do not own the assets and
the stockholders own stock. Nevertheless, I believe it says
in the 14" Amendment that all U.S. citizens are entitled by
right to the right of free enterprise and it also addressed that
corporations have the right under the U. S. constitution to
free enterprise and to own and operate a business | will
make it a point in the near future to obtain a copy of the
14" Amendment and read it thoroughly so that I maybe
able to speak on this subject with more precisiveness and
will have a clearer focused understanding of this right as set
forth and how they may apply to me by the 14 amendment
and alleviate any misconceptions that | might have, If |
have any. I would also like to say that the inspector Behila
told me that he had been hearing in community meetings
about the business I had proposed at 2122 24" Place, N.E.,
and that he though it was a good idea. With exception of
this last comment by inspector Behila. This experience has
depressed me and made me feel violated. It makes me

22A

wonder how far individuals on the police department
primarily officials will go. It makes me think that the next
time an official might try to plant something illegal on my
property, or something out of spite or jealously or racial
prejudice just to try to bring me down or as a retaliation to
me taking a stand against what happened any future
occurrences. Without a doubt I feel my civil rights were
violated. | was restricted from movement from the scene
and was not allowed to enter my building or my vehicle I
was deprived of my right to go about my way, my freedom
was taken away until the inspector Behila order that Lt. let
me go and even after the inspector left or disappear from
my sight or my awareness of his presents, I was still made
to remain. My freedom was further taken from me as I was
ordered to give up my credit cards and remain on the scene
which I felt | had been arrested, my right to leave under my
own will had been taken from me all though I was not
handcuffed. | was order to remain on the scene, | was
ordered not to go into my building, | was ordered not to go
to my car or near it. | was told I was a suspect for
something I did not do, I was threaten that my car would be
impounded for an administrative investigation and not
aloud the return of my right to freedom and free to move on
until shortky after the inspector Behila order that | be let go
twice (Let him go, Let him go), I quote the inspector, and
further interrogation, as | was interrogated throughout this.
_ In addition, tre Lt. that | do not know him or his name, who
I have been speaking of also questioned me at the end
about how much money is my car note, I told him | pay
$1,900.00 a month after taxes. This has compromised my
piece of mind, I feel like I have been targeted by police
officials and eventually they are going to railroad me even
if they have to break the Law to do it. I can’t even function
on my job correctly wondering constantly if my job will be
sabotage or some officials will constantly do me on the job
for anything possible or have someone do it because of
what I am trying to accomplish. I definitely know | have

23A

been targeted. I feel my job is an unsafe place to work, a
place of treachery and dishonest and contempt against me. |
wish to make a formal complaint of unlawful search and
seizure of my car and my building and unlawful arrest,
violation of my civil rights, harassment, and defamation of
character along with mental anguish, pain and suffering,
and racial discrimination. I would like to say that the onr
Lt. who’s name I do not know of I think I saw the name
smith the on his name tag, although I’m not sure but I
definitely know him if I saw him.

1.
>
3.

_

It.

I cannot sleep

I want to request stress leave but to scared to.

I cannot function on my job properly because of
flashbacks constantly wondering where or rather
when I will finally be railroad.

How long I can survive before being set up or frame
because of hate prompted by racial injustice and
jealously

I cannot sleep at night wondering what will happen
next, my nerves are shot because of my job and
existence threatened.

My driving is effected when flashbacks of what
happen occurs such as driving around the same
block 7 to 10 times.

I mentally blanking out while driving.

I notice myself trembling, it is hard to keep my
hands still when I’m thinking or having flash backs
about what happen and that maybe in store for me.
Even my breathing is effected during the stressful
periods brought on by this.

. | blankout when walking through stores, I worry

about when they finally railroad me what effect it
will have on me and my family, and how will they
survive without me and how will I survive after this.
| am afraid to come to work.

12.

13.

24A

I am afraid and terrified togo to my building that my
corporation is leasing and that I am the president of
at 2122 24" Place, N.E.

I feel unsafe and terrified there if I don’t have
someone with me as a witness if the police officials
come back and do something to me. I am terrified to
leave my car unattended for fear that they will break
in or jimmy the locks and invade my privacy, try to
plant drugs or damage my car or do the same to my
building.

25A

SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION

Kenneth W. Johnson )

)
VS. ) No. 98CA003837

) FILED

DC Metropolitan Police Department, ) | ova HL ED

et al. ) |May 27 1998
) of tote ota ruta

Washington, oc

AFFIDAVIT OF SERVICE

to wit: Washington, DC )

I, RONALD A. MURDOCK, II, having been duly
authorized to make service of the Summons, Complaint,
Initial Order, Memorandum dated May 18, 1998 direct to
Chief Ramsey, General Order Concerning motions
Procedure Effective January 1, 1998 and Notice of Hearing
in the above entitled case, hereby depose and say:

That my date of birth is 12-27-72.

That my place of business is 1827 18" Street, N.W.,
Washington D.C. 20009-5526.

That at 10:27 am on May 22, 1998, I served Marion
Barry, Jr., Mayor or the District of Columbia at 441 - 4"
Street, N.W., 6" Floor, Washington, D.C. 20001 by serving
Herman Bunch, Staff Assistant in Mayor’s office,
authorized to accept. Described

SEX- MALE
AGE- 30
HEIGHT- 5°10”
HAIR- BLACK

WEIGHT- 160
COLOR- BLACK

26A

I do solemnly declare and affirm under the penalty
of perjury that the matters and facts set forth herein are true
to the best of my knowledge, information and belief.

**s/Ronald A. Murdock, II’’

RONALD A. MURDOCK, II
Our File#- 34376-01

SUBSCRIBED and SWORN to before me this 26" day of
May, 1998.

**s/Denise L Daldm’’

NOTARY PUBLIC

My commission expires: 11-30-01

27A

SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION

Kenneth W. Johnson )
)
vs. ) No. 98CA003837
)
DC Metropolitan Police Department, ) FILED
CIVIL ACTION BRANCH
et al. ) May 27 1998
) | eee
Washingion. D.C
AFFIDAVIT OF SERVICE
to wit: Washington, DC )
)

I, RONALD A. MURDOCK, II, having been duly
authorized to make service of the Summons, Complaint,
Initial Order, Memorandum dated May 18, 1998 direct to
Chief Ramsey, General Order Concerning motions
Procedure Effective January 1, 1998 and.Notice of Hearing
in the above entitled case, hereby depose and say:

That my date of birth is 12-27-72.

That my place of business is 1827 18'" Street, N.W..,
Washington D.C. 20009-5526.

That at 10: 30 am on May 22, 1998, I served
Corporation Council of the District of Columbia c/o Janice
Stokes at 441 — 4" Street, N.W., 6" Floor, Washington,
D.C. 20001 by serving Donice Hancock, Receptionist to
Corporation Counsel, authorized to accept. Described
herein: E

SEX- FEMALE
AGE- 32
HEIGHT- 5°10”
HAIR- BLACK

WEIGHT- 140

28A

COLOR- BLACK
I do solemnly declare and affirm under the penalty
of perjury that the matters and facts set forth herein are true

to the best of my knowledge, information and belief.

**s/Ronald A. Murdock, II’’

RONALD A. MURDOCK, II
Our File#- 34376

SUBSCRIBED and SWORN to before me this 26" day of
May, 1998.

**s/Denise L Daldm’’

NOTARY PUBLIC

My commission expires: 11-30-01 .

29A

SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION

Kenneth W. Johnson )
)
vs. ) No. 98CA003837
)
DC Metropolitan Police Department, ) € i L F D
et al. ; May 27 1998
att
AFFIDAVIT OF SERVICE
to wit: Washington, DC )

)

I, MARTIN CARROL, JR., having been duly
authorized to make service of the Summons, Complaint,
Initial Order, Memorandum dated May 18, 1998 direct to
Chief Ramsey, General Order Concerning motions
Procedure Effective January 1, 1998 and Notice of Hearing
in the above entitled case, hereby depose and say:

That my date of birth is 01-16-59.

That my place of business is 1827 18" Street, N.W.,
Washington D.C. 20009-5526.

That at 12:29 pm on May 26, 1998, I served DC
Metropolitan Police Department at 300 Indiana Avenue,
N.W. Washington, D.C. 20001 by serving Ms. Clark,
Subpoena/Warrents Clerk, authorized to accept. Described

herein:
SEX- FEMALE
AGE- 35
HEIGHT- 5°10”
HAIR- BLACK

WEIGHT-_ 145

30A

COLOR- BLACK
| do solemnly declare and affirm under the penalty
of perjury that the matters and facts set forth herein are true

to the best of my knowledge, information and belief.

**s/MARTIN CARROL, JR.”’

MARTIN CARROL, JR.
Our File#- 34376-02

SUBSCRIBED and SWORN to before me this 26" day of
May, i998.

a

**s/Denise L Daldm’”’

NOTARY PUBLIC

My commission expires: 11-30-01

31A

SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION

KENNETH W. JOHNSON, :
Plaintiff : Civil Action No. 98-3837
: Cal. #2 J. Gardner
Vv. : Next Event Sched. Conf.
: 8/21/98
"D.C. METROPOLITAN
POLICE DEPARTMENT 3 ILED

(SIC) . CIVIL ACTION BRANCH
Jun 22 1998

Defendants =: of The Disuict of Colemsbia
; Washmgion, D.C

DEFENDANT DISTRICT OF COLUMBIA’S
MOTION TO DISMISS PLAINTIFF’S COMPLAINT,
OR IN THE ALTERNATIVE, FOR SUMMARY
JUDGMENT

Pursuant to Superior Court Rule of Civil Procedure
12(b)(6) and 56, defendant District of Columbia moves this
Honorable Court to dismiss plaintiff's complaint, or in the
alternative, grant summary judgment in defendant’s favor.
Defendant is entitled to dismissal or summary judgment
because: 1) the District of Columbia Metropolitan Police
Department is not a sui juris entity; 2) this claim is barred
by issue preclusion, collateral estoppel and res judicata; and
3) plaintiff has failed to satisfy D.C. Code Section 12-309.

In further support of this motion, defendant refers
this Court to the memorandum of points and authorities
attached.

Respectfully Submitted,

32A

John Ferren

Corporation Counsel, D.C.

Martin Grossman

Deputy Corporation Counsel, D.C.

Civil Division

Arabella W. Teal

Chief, General Litigation Section I
By: ‘‘s/James A. DeVita’’

James A. DeVita #370578

Assistant Corporation Counsel, D.C.
| Judiciary Square, Room S-86

441 4" Street, N.W., 6" floor
Washington, D.C. 20001
202-727-6295, ext. 3409

Certificate of Services

I hereby certify that a copy of the foregoing Notice
of Hearing was mailed, this 19" day of June, 1998, to:

Kenneth W. Johnson
2122 24" PI. N.W., Unit B
Washington, D.C. 20018

‘*s/James A. DeVita’’

James A. DeVita
AssistantCoporation Counsel, D.C.

33A

SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION

KENNETH W. JOHNSON, :

Plaintiff : Civil Action No. 98-3837
: Cal. #2 J. Gardner
v. : Next Event Sched. Conf.
: 8/21/98
"D.C. METROPOLITAN
POLICE DEPARTMENT"
(SIC)
Defendants

MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANT’S MOTION TO
DISMISS , OR IN THE ALTERNATIVE, FOR
SUMMARY JUDGMENT

PRELIMINARY STATEMENT

On May 21, 1998, plaintiff filed his complain in the
above-captioned matter alleging, inter alia, that he was
subjected to harassment by the District of Columbia
Metropolitan Police Department. On May 22, 1998,
plaintiff filed a virtually identical complaint in the case of
Johnson v. O’ Boyle C.A. 98-3875, in which he also alleged
that he was the victim of police harassment. (A copy of the
complaint in Johnson v. O’Boyle, C.A. No. 98-3875 is
attached hereto as Exhibit # 1). On May 26, 1998, a hearing
was held on plaintiff's motion for a temporary restraining
order in the O’Boyle case. At that hearing, Judge Zinora
Rankin denied plaintiffs motion for a temporary
restraining order and dismissed plaintiff's complaint with
prejudice.

34A

The only defendant that plaintiff has named in the
instant case is the Metropolitan Police Department. Plaintiff
has failed to provide Mayor of the District of Columbia
with notice of his claim as is required by D.C. Code
Section 12-309. (See the affidavit of Tonia Robinson
attached hereto as Exhibit #2). Defendant’s favor.

As demonstrated below, the District of Columbia is
entitled to dismissal and/or summary judgment because: 1)
the District of Columbia Metropolitan Police Department is
not a sui juris entity; 2) this claim is barred by issue
preclusion, collateral estoppel and res judicata; and 3)
plaintiff has failed to satisfy D.C. Code Section 12-309.

ARGUMENT

1. The District of Columbia Metropolitan Police
department is not sui juris entity.

Plaintiff's complaint must be dismissed, or, in the
alternative, summary judgment must be entered in favor of
defendant because plaintiff has not amed a sui juris entity
as a defendant. Hinton v. Metropolitan Police Department,
726 F. Supp. 875 (D.D.C. 1998). Since the District of
Columbia Metropolitan Police Department is only an
agency of the District of Columbia government, it is not an
entity that can be sued in its own right. Id.

2. This claim is barred by issue preclusion, collateral
estoppel and resjudicata,

Since the instant complaint is virtually identical to
the complaint with was dismissed with prejudice in
Johnson v. O’ Boyle, C.A. 98-3875, plaintiff's claim in the
instant case is barred by the doctrines of issue preclusion,
collateral estoppel and res judicata. Johnson vy. Fairfax
Village Condo. TV 641 A.2d 495, 503 (D.C.App. 1994).

35A

3. Plaintiff has failed to satisfy D.C. Code Section 12-309,

Plaintiff's common law claims for false arrest and
police harassment must be dismissed or summary judgment
granted due to plaintiff's failure to provide the District of
Columbia with notice of his claim within six months of the
date upon which he suffered injury. D.C. Code Section 12-
309 (1995 Kep!. Volume). District of Columbia Code 12-
309 provides:

‘An action may not be maintained against the

istrict of Columbia for unliquidated damages to

person or property unless, within six months after

the injury or damage was sustained, the claimant ,

his agent, or attorney has given notice in writing to

the Mayor of the District of Columbia of the
approximate time time, place, and circumstances of
the injury or damage. A report in writing by the

Metropolitan Police Department, in regular course

wt duty, is a sufficient notice under this section.”

The purpose of this notice requirement is to ensure
that District of Columbia officials are given prompt notice
of claims for potentially large sums of money so that they
can 1) quickly investigate before evidence became lost or
witnesses unavailable; 2) correct hazardous or potentially
hazardous conditions and 3) settle meritorious claims.
Gwinn v. District of Columbia, 434 A.2d 1376, 1379 (D.C.
1981). This notice requirement is mandatory and if there is
no timely written notice, plaintiff is precluded from
litigating his claim. Id.

In the instant case, plaintiff clearly failed to send a
notice letter to the Mayor of the District of Columbia
within six months after his May 17, 1997, arrest date as
required by D.C. Code Section 12-309. (See the affidavit of
Tonia #otinson attached hereto as Exhibit #2). Given
plaintifi’s faiture to submit a letter to the Mayor within the
time period required by D.C. Code 12-309, the District is

entitled to dismissal and/or to summary judgment with
respect to plaintiff's common law claims for false arrest.

4. Conclusion

In conclusion, defendant respectfully request that its
motion for dismissal and/or summary judgment be granted
for all of the reasons noted above.

Respectfully Submitted,

John Ferren

Corporation Counsel, D.C.

Martin Grossman

Deputy Corporation Counsel, D.C.
Civil Division

Arabella W. Teal

Chief, General Litigation Section I
**s/James A. DeVita’’

James A. DeVita #370578

Assistant Corporation Counsel, D.C.
1 Judiciary Square, Room S-86

44) 4" Street, N.W., 6" floor
Washington, D.C. 20001
202-727-6295, ext. 3409

37A

SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA
CRIMINAL DIVISION

---X
UNITED STATES OF
AMERICA
ve - -M 7630-97
KENNETH W. JOHNSON
Defendant.
4
Washington, D.C.

December 12, 1997

The above-entitled action came on for a hearing before the
Honorable RONALD WERTHEIM, Associate Judge, in
Courtroom Number 45.

APPEARANCES:
On behalf of the Government:

NEIL MCBRIDE, Esquire
Assistant United States Attorney

On behalf of the Defendant:

ROBERT MANCE, Esquire
Washington, D.C.

Recorder:

Jacqueline Hogue

Official Court Transcriber Telephone: 879-1757

38A

misses the point. | mean, Mr. Johnson is making money at
this club. The only evidence that we have is the testimony
or documentary evidence in this case is the exhibit, the
door sheet, that was introduced by the Government that I
asked Mr. Johnson about. On the evening in question 75
people paid five dollars, 101 people paid ten dollars, 350
people paid fifteen dollars. By my math, Your Honor, that’s
$5, 250 just for those individuals. 1 don’t know if there
were more that night but $5,250.

Now, Mr. Johnson said, and if we are to credit his
testimony in this respect, well, the band subtracted their
costs and then | took half of what was left. Well, on that
particular night there were $5, 250 in gate receipts. There
was rounded up, $1,500 for the band, which leaves an
amount that when defendant shared, Mr. Johnson’s share
for half of that, what was remaining would have been
$2,557 for that night. That was his half that remained after
the band expenses were deducted, one night over — a little
over $ 2500 which is by my math about $5100 for
weekend, which for a year, give or take, is over $250,000.
Your Honor, as the —

THE COURT: That’s almost as much as lawyers
make.

MR. MCBRIDE: Similar, Your Honor, yes. As the
Raleigh case said, Your Honor, while a bawdy-house —
quote, while a bawdy-house may prove profitable to its
operator, its existence scarcely enriches either specific
neighborhood in which it is located or the overall
community. And I would suggest that that is what
happened here. Mr. Johnson may have been doing well by
- the club, but the ten people who were shot, weren’t doing
well by ihe club. The neighbors whose property were
trashed, weren’t doing well by the club. The young people
that came to this club for entertainment and otherwise,
werefi t doing well, it certainly wasn’t a good example —
good environment for them.

39A

And my last point, Your Honor, and then | will sit
down, is Mr. Mance said that this case is unique, that
there’s no other recorded cases like that. I believe that is
true insofar as there — as we have said, very few disorderly
houses case prosecutions from this century, most of them
have been under the bawdy prong and statute. But the
disorderly prong still remains.

Mr. Mance wants to wrong away from the fact that
Harris notwithstanding that it’s dealing with the statute
looks to common law and looked to common-law in
considerable depth to see how it should be guided. So while
this case may be different, Your Honor, from what
happened in 1837, times change and this law, while short in
words is crafted in a way that it can move with the time.
The Raleigh court said it’s a very broad statute. Your
Honor, the Government submits that it is broad enough.
The disorderly prong of this statute is indeed long and
broad enough to apply to an establishment like the Taj
Mahal that when taken together there’s this synergy of
events and incidents, things that have happened that
indicate it is a criminal nuisance that is a nuisance it is a
place which ~ a magnet for activity which disrupts the
public peace and order. corrupts the public morals. And for
all these reasons, Your Honor, the Government asks that
you find Mr. Johnson guilty of maintaining a disorderly
house at the Taj Mahal.

Thank you.

THE COURT: Thank you, counsel.

It is correct that the specific facts are almost entirely
undisputed in this case, and that’s very rare for a criminal
case in my experience. It is also true that this is a criminal
case which requires proof of the essential elements of an
offense beyond a reasonable doubt. It also means that mens
rhea is an element of guilt. Some kind of mental state that
the law finds wrongful that must be found before a
convictions can be entered.

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1 mention that in taking up first the question of the
third element set out by Harris that the proprietor knows or
should know of the acts and does nothing to prevent them. |
suppose, taken literally, as the Government suggests, it
can’t be sufficient that the mere waving of a hand is enough
to defeat that requirement. | think it is elaborated a little
further later in the Raleigh case, which is more recent,
although not much. There the Court quotes from an old
D.C. case that suggests that the requirement is that the
defendant either procured it, that is, the unlawful act to be
done or permitted it to be done or did nothing to prevent it.
In any event, Harris does state the law of the jurisdiction. It
is an en banc decision. The instruction 4.95 the
Government referred to yesterday, has set forth the
elements of operating a bawdy-house not the elements of a
disorderly house.

Now, Harris says the Government must prove first
that acts take place on the premises that disturb the public
or constitute a nuisance per se. And nuisance per se is to
find as in the nature of a gambling house or a bawdy-house.
The acts that either disturb the public or constitute a
nuisance per se must be acts that take place on the
premises. And I find that that requires the Court to make a
clear distinction between activities that occurred inside the
Taj Mahal and Those that occurred out on the street.

It is not and was not during the period in which this
offense was allegedly committed the responsibility of Mr.
Johnson or of any other private citizen to police the
neighborhood of the Taj Mahal Club. It was the
responsibility of the Metropolitan Police Department to do
that. Their utter failure to perform that responsibility does
not transfer the blame to Mr. Johnson. Mr. Johnson had no
authority to police that area and would have subjected
himself to great risk had he even attempted to do so.

Most of the acts of which the Government -
complains and certainly those to which neighbors complain
were acts that took place outside the premises. Now, what

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took place inside the premises? Up to five hundred young
people, perhaps as many as three hundred at any one time
occupied these premises and listened to music of the type
that they happened to enjoy and danced. They were search
before they went in. On four occasions when officers
entered the club —well, on those four occasions there was
only one time that any officer saw illegal activity, and that
was the occasion when a juvenile came out of the restroom
smoking a marijuana cigarette. Even that activity, the
juvenile apparently thought it necessary to go hide in the
restroom rather than commit it out openly in the larger
room. The undercover officer saw no illegal activity.
Detective Haggerty saw no illegal activity. No one saw
illegal activity during the four times that the police entered
this club other than that one marijuana cigarette.

Now, much is made of the snow. One witness said
the snow was worst on a March visit. It was less on the next
visit and even lesser on the third visit. What was found
when the place was search? A few blunts, six items that
were submitted to the DEA for analysis. Two out of the six
were found to contain illegal drugs. That’s totally Less than
four ounces of — I mean, four grams of marijuana and less
than one gram of cocaine in a place occupied by up to five
hundred young people that was dark and where their
activities would be unobserved.

In the Court’s view that ts a rather petty yield for all
the efforts that the Government or the police department
put into its efforts to build a case against the Taj Mahal
Club. It hardly is enough to say that the club was regularly
resorted to for the commission of thee acts. It was regularly
resorted to listen to music and to dance. And as a defense
has contended there is nothing unlawful about that activity.
It’s certainly not a nuisance per se even though some
people might in their personal opinion find it objectionable.

The Government’s argue that the connection to the
activities outside is a responsibility of Mr. Johnson because
those unlawful activities, the trashing of the neighborhood,

42A

the shootings and so on would not have happened but for
the existence of the Club. In the Court’s view, such a but
for test is contrary to the claimant that every element of an
offense be proven beyond a reasonable doubt and that mens
rhea is required for conviction of the criminal offense.

It is equally true that this activity outside would not
have happened but for the Metropolitan Police
Department’s neglect of it’s duties in this neighbor hood.
Ten shootings in ten months, numerous cars broken into or
windows broken, cars stolen, all the other stuff that we’ve
heard about I’ve not in four, five — four days of trial heard
of a single instance in which a police presence was effected
during the hours of operation of this club. The police were
much more interested in trying to patch together a case for
closing down the club than they were in preventing the
activity of which the Government now complains. | think
the Government’s argument that the activity emanated from
the Club is a little bit too metaphysical.

We don’t know whether the people who committed
these offenses ever were in the club in most instances. And
they certainly unlike the cases that the Government relies
upon, there is no way of showing, for example, as in the old
Skylark case that it was a consumption of some substances
on the premises that led to the individuals behaving in the
way they did after they left. That’s also why the dam
analogy that the Government makes, doesn’t work. There
was water that came through that dam and did damage. But
there is nothing that came out of this club and did damage.
In order to find this Club a nuisance, the Court would have
to conclude that it is unlawful to cater to young people and
to their taste in music at hours of the night when it is not
unlawful in this city for them to be out. That is — would
come close to being a cultural discrimination. In any event,
the Court believes that it erred in denying the defense’s
motion for judgment of acquittal at the end of the
government’s case and it grants that motion at this time.

Parties mat be excused.

43A

1 wish there were a way you could appeal because
it’s a close question, Mr. McBride, on the law and it would
be interesting to see what the Court of Appeals does with it.
I will state that it’s my view that the law requires an
acquittal and had the issue been framed in such a way that
it would have permitted an appeal, I would have been glad
to see it go upstairs. And I should add, also that it was well
tried by counsel for both sides.

MR. MCBRIDE: Thank you, Your Honor.

THE COURT: We will recess now. Don’t forget to
get your exhibits back. Thank you, everyone. Have a nice
Christmas.

(Thereupon, the proceedings were concluded.)

CERTIFICATE OF TRANSCRIBER

I, Jacqueline Hogue, an Official Court Transcriber
for the Superior Court of the District of Columbia, do
hereby certify that in my official capacity I prepared from
electronic recordings the proceedings had and testimony
adduced in the matter of UNITED STATES OF AMERICA
versus KENNETH JOHNSON, Docket Number: M-7630-
97, in said Court, on the 12" day of December, 1997.

I further certify that the foregoing 52 pages were
transcribed to the best of my ability from said recordings.

In witness whereof, I have subscribed my name this
the 27" day of November, 2002.

**s/J. Hogue”’

Official Court Transcriber
RECEIVED

2002 Nov 27 P 2:12
CENTRAL RECORDING &
RECORDPRODUCTION
OFFICE

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SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA CIVIL DIVISION

Kenneth W. Johnson
2122 24" Place Unit B NE Washington DC 20018

Plaintiff
CAL I1

v. Civil Action No. 0003875-98
James O’ Boyle
1805 Bladensburg Rd NE Washington DC 20002

Defendants FILED

COMPLAINT =| May 22 1998
‘Veg Do

1. Jurisdiction of this Court is founded on D.C. Code
Annotated, 1973 edition, as amended, Sec. 11-921.

This is a request for equitable relief, | am requesting that
the Court issue a temporary restraing order against one
MPD Sergeant James O’ Boyle of 1805 Bladensburg Rd NE
Washington DC 20002 as he has made threats to close
down a Lawful business Operating Lawfully under the
rules and regulations of the District of Columbia having all
necessary Licenses & Permits He has no lawful reason to
do this See Attached Paper Work for Complaint.

Wherefore, Plaintiff demands judgment against
Defendant in the sum of | - with interest
and costs.

301 497-4428

Phone
DISTRICT OF COLUMBIA, SS
Kenneth W_ Johnson, being first duly sworn on oath
deposes and says that the forgoing is a just and true
statement of the amount owing by defendant to the

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plaintiff, exclusive of all set-offs and just grounds of
defense.

**s/Kenneth W Johnson”’

(Plaintiff — Agent)

Subscribed and sworn to before me this 22% day of May
1998

**s/Debra A. Cheek’’

(Notary Public/Deputy Clerk)

Debra A. Cheek
Notary Public

District of Columbia

My Commission Expires
August 14, 2001

K.W.J. ENTERPRISES, Inc.
2122 24" Place NE
Washington, DC 20018

May 18, 1998
Dear Chief Ramsey,

This is a formal complaint of misconduct by Police
Officers and Officials working on your Department. |
would first like to inform you that a 5" District Officer with
the last name Rodrigez, I believe if this is not his correct
name I would recognize him on sight. This officer
attempted on numerous occasions te extort money from me
by threating to close down my nightclub, if I did not
comply with his demands. Secondly, my nightclub has been
frequented a numerous amount of times by an MPD Sgt.
His name is Boyle or Doyle, again if I have it wrong |

460A

would recognize him on sight. This sergeant along with
some Officers have been harassing myself, club employees,
and other people, and have in several instances created a
malicious interference to my business and that of other
businesses involved. There are several companies who
make money from these events taking place and there
employees as well as me and my employees, adding up to
lots of people job’s are being affected as well as companies
income. Note: in all the years that I have been in business
there has only been to date one arrest of any customer of
mine which was in the bathroom. I have done everything I
could think of to combat any illegal activity. | have wrote
the Chief of Police Office requesting them to allow me to
have off duty police. I have submitted names of police
officers, Lieutenenants, Sergeants, who want to work for
me in there spare time. I have purchase $2,400.00 in
insurance to cover the DC Metropolitan Police Department
against lawsuits as they require to hire there police. I have
hired armed SPO companies, | have hired Club Security
Personnel. I have posted flyers at Police Stations to hire off
duty police and I have personally encouraged police
officers countless times to do there jobs and arrest any
person they see in or about my club doing anything illegal.
On one occasion for example, this past Friday, which was
May 15, 1998, the Sergeant Boyle came into my nightclub
ordered me out of my ticket booth as I monitored the
band’s cashier collecting money, of which % is paid to me.
He then told me that he smelled marijuana in the air in my
club. I told him then he needs to arrest anybody he see with
any drug or doing anything illegal, after all he is a police
officer and has that responsibility. He states to me that if he
smells it again he is going to throw my customers into the
street, keep in mind we’re talking about hundreds and
hundreds of people at one time and shut my club down
causing thousands and thousands of dollars to be lost at one
time that evening alone, not to mention the long term
damage it will cause in these people not returning to my

47A

business to patronize it, were talking liquid damages in the
hundreds of thousands of dollars and even millions if
sustained long enough. Also, out of all these people and the
Sgt. Boyle and his officers probing throughout my
nightclub on every visit they did not lock up not one
person, there are as many as 300 people in my place at one
time and through the course of a night there can be as many
as 500 hundred coming in and out. To spite my efforts, I
have been harassed and my business maliciously interfered
with, band members, myself, customers have been forced
to give there names to the same people over and over again.
This Sgt. Boyle has made a habit of threating me even
though he himself has not caught anyone doing anything
that he can arrest then for, | don’t have a gun or a badge or
a police radio, nor do I have his authority to handcuff an
arrest people. I cannot take any more threats from this man
nor can I allow people jobs to be destroyed because of this
Sergeant and other officers. This Sergeant has me terrified
to leave my business at 3:00am or 4:00am when it closes,
given the history of this and other experiences. I am
concerned that in an act of retaliation this man might try to
plant some drugs on me or at my business. [ should not
have to live with these fears. I have a business that is not
only legal but is licensed by the DC Government and I have
all of the Licenses and Occupancy permits needed to
Lawfully operate my business. My right to do so is being
breached by your employees, please do something about it
before more damage is caused.

**s/Kenneth W Johnson’”’

Kenneth W. Johnson
CEO/President

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DC R RCP Rules, Introductory Note

Superior Court Rules -— Civil (SCR-Civil) Rules,
Introductory Note

WEST’S DISTRICT OF COLUMBIA RULES OF
COURT SUPERIOR COURT RULES OF CIVIL
PROCEDURE
Copr. © 2006 Thomson/West.

Current with amendments received through 7/1/2006

INTRODUCTORY NOTE TO THE SUPERIOR COURT
RULES OF CIVIL PROCEDUE

“One of the primary objectives in drafting and
adoption of the following Superior Court Rules of
Civil Procedure has been to provide an integral and
convenient rules structure modeled closely on that
of the Federal Rules of Civil Procedure. Thus, the
practitioner should understand that these Civil Rules
are of three kinds:

(1) Rules 1-86 hereof are derived directly from the
correspondingly numbered Federal Rules and are in
many cases identical thereto.”

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DC R RCP Rule 60
Superior Court Rules ~ Civil (SCR-Civil) Rule 60

WEST’S DISTRICT OF COLUMBIA RULES OF
COURT SUPERIOR COURT RULES OF CIVIL
PROCEDURE VII. JUDGMENT
Copr. © 2006 Thomson/West.

Current with amendments received through 7/1/2006

RULE 60. RELIEF FROM JUDGMENT OR ORDER

“(b) Mistakes, Inadvertence; Excusable Neglect;
Newly Discovered Evidence; Fraud, etc. On motion
and upon such terms as are just, the court may
relieve a party of a party’s legal representative from
a final judgment, order, or proceeding for the
following reasons: (1)mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have
been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an
adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should have
prospective application; or (6) any other reason
justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time,
and for reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding was
entered or taken. A motion under this subdivision
(b) does not affect the finality of a judgment or
suspend its operation. This Rule does not limit the

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power of a court to entertain an independent
action to relieve a party from a judgment, order,
or proceeding, or to set aside a judgment for
fraud upon the court.” Writs of coram nobis,
coram nobis and audita querela, and bills of review
and bills in the nature of a bill of review, are
abolished, and the procedure for obtaining any relief
from a judgment shall be by motion as prescribed in
these Rules or by an independent action.
Comment

Identical to Federal Rule of Civil Procedure 60
except for deletion from section (b) of the
inapplicable reference to 28 U.S.C. § 1655 dealing
with lien actions in the United States District
Courts.”

FRCP

Federal Rules of Civil Procedure Rule 60

United States Code Annotated Currentness
Federal Rules of Civil Procedure . for the United States
District Courts (Refs & Annos)
VII. Judgment
—Rule 60. Relief From Judgment or Order

“(b) Mistakes, Inadvertence; Excusable Neglect;
Newly Discovered Evidence; Fraud, etc. On motion
and upon such terms as are just, the court may
relieve a party of a party’s legal representative from
a final judgment, order, or proceeding for the
following reasons: (1)mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have
been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an
adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or |
discharged, or a prior judgment upon which i is
based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should have
prospective application; or (6) any other reason
justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time,
and for reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding was
entered or taken. A motion under this subdivision
(b) does not affect the finality of a judgment or
suspend its operation. This Rule does not limit the
power of a court to entertain an independent
action to relieve a party from a judgment, order,

S2A

or proceeding, or to grant Trelief to a defendant not
actually personally notified as provided in Title 28,
U.S.C., § 1655, or to set aside a judgment for
fraud upon the court.” Writs of coram nobis,
coram nobis and audita querela, and bills of review
and bills in the nature of a bill of review, are
abolished, and the procedure for obtaining any relief
from a judgment shall be by motion as prescribed in
these Rules or hy.an independent action.

NOTE: COPIES OF THE RULES ARE AVAILABLE AT:

http://web2.westlaw.com/signon/default.wl?bhcp=1&fn=%
5Ftop&newdoor=true&rs=WLW6%2E1 | &vr=2%2E0

om

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arch — | Result — No terms specified
Lexis.com/research/retrieve?_ m=473c996c087 16a5d23...

Source: Legal > Federal Legal — U.S. > United States Code
Service (USCS) Materials > United States Code Service —
Titles 1 through 50

TOC: United States Code Service — Titles 1 through 50 >
TITLE 42. THE PUBLIC HEALTH AND WELFARE >
CHAPTER 21. CIVIL RIGHTS > GENERALLY > § 1983.
Civil action for deprivation of rights (Part 1 of 8)

42 USCS § 1983

UNITED STATES CODE SERVICE
Copyright © 2005 Matthew Bender & Company, Inc.,
One of the LEXIS Publishing (TM) companies
All rights reserved

*** CURRENT THROUGH P.L. 109-2, APPROVED
2/18/05

TITLE 42. THE PUBLIC HEALTH AND WELFARE
CHAPTER 21. CIVIL RIGHTS
GENERALLY

@ GO TO CODE ARCHIVE DIRECTORY FOR THIS

JURISDICTION

42 USCS § 1983 (2005)

THE CASE NOTES SEGMENT OF THIS DOCUMENT
HAS BEEN SPLIT INTO 8 DOCUMENTS. THIS IS
PART 1. USE THE BROWSE FEATURE TO REVIEW
THE OTHER PART(S).

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§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory of
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding
for redress, except that in any action brought against a
judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purpose of this
section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of
the District of Columbia.

HISTORY:
(R.S. § 1979; Dec. 29, 1979, P.L. 96-170, § 1, 93 Stat.
1284; Oct. 19, 1996, P.L. 104-317, Title IIL, § 30%c), 110
Stat. 3853.)

HISTORY; ANCILIARY LAWS AND DIRECTIVES

Explanatory notes:
This section formerly appeared as 8 USC § 43.
R.S. § 1979 was derived from Act April 20, 1871, ch 22,
§ 1, 17 Stat. 13.

Amendments:
1979. Act Dec. 29, 1979 inserted “or the District of
Columbia” and “For the purposes of this section, any Act
of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the
District of Columbia.”.

1996. Act Oct. 19, 1996 inserted”, except that in any ©
action brought against a judicial officer for an act or
omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was
unavailable.”.

USCA CONST Amend. XIV-Full Text
U.S.C.A. Const. Amend. XTV-Full Text
Constitution of the United States
Annotated
Amendment XIV. Citizenship; Privileges and
Immunities; Due Process; Equal Protection;
Apportionment of Representation; Disqualification of
Officers; Public Debt; Enforcement (Refs & Annos)
—Amendment XIV. CITIZENSHIP;
PRIVILEGES AND IMMUNITIES; DUE
PROCESS; EQUAL PROTECTION;
APPOINTMENT OF REPRESENTATION;
DISQUALIFICATION OF OFFICERS;
PUBLIC DEBT; ENFORCEMENT

Section 1, 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 or 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.

http://web2.westlaw.com/signon/default.wl?bhcp=1&fn=%
5Ftop&newdoor=true&rs=WLW6%2E 1 | &vr=2%2EO

DC CODE s 12-309

DC ST § 12-309
Formerly cited as DC ST 1981 § 12-309

District of Columbia Official Code 2001 Edition
Currentness
Division II. Judiciary and Judicial Procedure
Title 12. Right to Remedy. (refs & Annos)
Chapter 3. Limitation of Actions.
—§ 12-309. Actions against District of Columbia
for unliquidated damages; time for notice.

An action may not be maintained against the District of
Columbia for unliquidated damages to person or property
unless, within six months after injury or damage was
sustained, the claimant, his agent, or attorney has given
notice in writing to the Mayor of the District of Columbia
of the approximate time, place, cause, and circumstances of
the injury or damage. A report in writing by the
Metropolitan Police Department, in regular course of duty,
is sufficient notice under this section.

CREDIT(S)

(Dec. 23, 1963, 77 Stat. 511, Pub. L. 88-241, § 1; July 29,
1970, 84 Stat. 551, Pub. L. 91-358, title I, § 141(2); Apr.
30, 1988, D.C. Law 7-104, § 2 (b), 35 DCR 147.)

HISTORY AND STATUTORY NOTES

Prior Codifications

1981 Ed., § 12-309

1973 Ed., § 12-309
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5Ftop&newdoor=true&rs=WLW6%2E 1 1 &vr=2%2E0

STA

HAZEL-ATLAS GLASS CO. v. HARTFORD-EMPIRE
CO.

No. 398
SUPREME COURT OF THE UNITED STATES

322 U.S. 238; 64 S. Ct. 997; 88 L. Ed. 1250; 1944 US.
LEXIS 1200; 61 U.S.P.Q. (BNA) 241

February 9, 10, 1944, Argued
May 15, 1944, Decided

PRIOR HISTORY:

CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE THIRD CIRCUIT.

CERTIORARI, 320 U.S. 732, to review an order of the
Circuit Court of Appeals denying relief in a bill of review
proceeding commenced in that court.

DISPOSITION: 137 F.2d 764, reversed.
CASE SUMMARY .

PROCEDURAL POSTURE: Petitioner challenged a
decision of the United States Circuit Court of Appeals for
the Third Circuit that entered judgment in favor of
respondent when the court found that the fraud was not
newly discovered and that the court lacked the power to set
aside the lower court's decree because of the expiration of
the term during which the previous decision had been
rendered.

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OVERVIEW: Petitioner commenced suit in the appellate
court by filing a petition for leave to file a bill of review in
the district court to set aside a judgment entered by the
district court nine years prior pursuant to the appellate
court's mandate. Petitioner contended that the appellate
court's judgment had been obtained by fraud; it supported
the charge with affidavits and exhibits. The action was
spurred on by respondent's allegations that petitioner was
infringing upon its patent. Certain issues were not made
known to petitioner until nine years later, when it decided
to institute the present suit. The appellate court held that the
fraud was not newly discovered and that it lacked the
power to set aside the district court's decree because of the
expiration of the term during which the previous decision
had been rendered. The United States Supreme Court
granted certiorari to review the appellate court's decision,
and it reversed the appellate court's decision and held that
the appellate court had the power to set aside the judgment
and remand the issue to the lower court because every
element of the fraud demanded the exercise of the power to
set aside fraudulently begotten judgments.

OUTCOME: The United States Supreme Court reversed
the iower court's decision when the court found that, under
certain circumstances, one of which was after discovered
fraud, relief would be granted against judgments regardless
of the term of their entry. The Court held that the appellate
court had both the duty and the power to vacate its own
judgment and to give the trial court appropriate directions.

CORE TERMS: patent, decree, investigator, infringement,
expiration, equitable, leave to file, practiced, glass,
interviewed, diligence, infringed, procured, expired,
settlement, authorship, feeding, gob, original jurisdiction,
preparation, extrinsic, spurious, perjury, denying relief, first
instance, perpetrated, wrongdoer, interview, modify, vacate

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Lexi » ‘+ is(R) Headnotes «Hide Headnotes

Civil Procedure > Judgments > Entry of Judgments >
General Overview

Civil Procedure > Judgments > Relief From Judgment >
Motions to Alter & Amend

HN1:

Federal courts, both trial and appellate, long ago
established the general rule that they would not alter or set
aside their judgments after the expiration of the term at
which the judgments were finally entered.

Civil Procedure > Judgments > Relief From Judgment >
Excusable Neglect & Mistakes > General Overview
Civil Procedure > Judgments > Relief From Judgment >
Fraud

HN2:

Under certain circumstances, one of which is after-
discovered fraud, relief will be granted against judgments
regardless of the term of their entry.

Civil Procedure > Judgments > Relief From Judgment >
Fraud

Civil Procedure > Judgments > Relief From Judgment >
Independent Actions

HN3:

Equitable relief against fraudulent judgments is not of
statutory creation. It is a judicially devised remedy
fashioned to relieve hardships which, from time to time,
arise from a hard and fast adherence to another court-made
rule, the general rule that judgments should not be
disturbed after the term of their entry has expired.

60A

Patent Law > Remedies > Bad Faith Enforcement

HN4:
To grant full protection to the public against a patent
obtained by fraud, that patent must be vacated.

LAWYERS' EDITION HEADNOTES:
[***HN1]

JUDGMENT, §303
alteration or setting aside after term. —

Headnote: [1]

As a general rule federal courts, both trial and appellate,
will not alter or set aside their judgments after the
expiration of the term at which the judgments were finally
entered.

[***HIN2}

EQUITY, §47 ~
relief after term from judgment procured by fraud. --

Headnote: [2]

A court of equity may grant relief against a judgment
because of after-discovered fraud, regardless of the term of
its entry, but such power should be cautiously exercised.

[***HN3]

EQUITY, §47

JUDGMENT, §303
relief against adjudication of infringement of patent --
effect of expiration of term. —

61A

Headnote: [3]

Equity will set aside a decree in a patent infringement suit
that the patent is valid and infringed where both the court
and the Patent Office were influenced by fraudulent
misrepresentations that the patented device was an advance
in the art and where, although the terms of court at which
such decree was mandated by a circuit court of appeals and
entered by a district court has expired, no equities have
intervened through transfer of the fraudulently procured
patent or judgment to an _ innocent purchaser.

[***HN4]

EQUITY, §48
relief against judgment -- lack of diligence. —

Headnote: [4]

Because of the public interest involved, equitable relief
against a judgment obtained by fraud in a patent
infringement suit will not be denied because the party
seeking it has not exercised the highest degree of diligence
in uncovering the fraud.

[***HN5]

ESTOPPEL, §65
by own wrong -- fraud. —

Headnote: [5]

Where the plaintiff in a patent infringement suit on appeal
from a district court's decision that there had been no
infringement, urged upon the attention of the circuit court
of appeals a trade magazine article, representing the device
in question as an advance in the art, purporting to have
been written by a disinterested third person, but in fact
prepared by plaintiff, and was successful in obtaining a
determination that the patent was valid and infringed,

62A

plaintiff is in no position to dispute the effectiveness of the
article in bringing about the decision and may not be
permitted to escape the consequence of the deceptive
attribution of authorship to a third person on the ground
that what the article stated was true.

[***HN6]

REVIEW, §10
bill of -- power of Circuit Court of Appeals to relieve
against own decision obtained by fraud. —

Headnote: [6]

A circuit court of appeals has both the duty and the power
to relieve against a decree entered in a district court
pursuant to its mandate, upon a bill of review after the
expiration of the term, for fraud practiced upon it, and is
not bound to remit the complainant to the district court for
relief.

[***HN7]

EQUITY, §47
relief against fraudulent judgment -- nature of remedy. —

Headnote: [7]

Equitable relief against fraudulent judgments is not of
statutory creation, but is a judicially devised remedy
fashioned to relieve hardships which from time to time
arise from a hard and fast adherence to the court-made rule
that judgments should not be disturbed after the term of
their entry has expired.

[***HN8]

REVIEW, §15

63A

application to appellate court for leave to file bill --
necessity. —

Headnote: [8]

Where a judgment, the setting aside of which is sought by
bill of review, was entered upon the mandate of an
appellate court, permission to file the bill must be sought in
the appellate court upon appropriate averments supported
by affidavits or other acceptable evidence; and such court
may, in the exercise of a proper discretion, reject the
petition, in which case the bill of review cannot be filed in
the lower court.

[***HN9]

DISMISSAL AND DISCONTINUANCE, §17
involuntary -- suit for infringement of patent. —

Headnote: [9]

Fraud in obtaining a patent for an invention, and in
representations to the court bearing on the question of its
validity, requires a complete denial of relief to the patentee
against a claimed infringement.

[***HN10]

PATENTS, §361
vacation -- who may sue. —

Headnote: [10]

Vacation of a patent for an invention because of fraud in
obtaining it can only be accomplished in a direct
proceeding brought by the Government, and may not be
decreed in a suit for its infringement.

SYLLABUS: Upon appeal from a judgment of the District
Court denying relief in a suit by Hartford against Hazel for

64A

infringement of a patent, the Circuit Court of Appeals in
1932 held Hartford's patent valid and infringed, and upon
its mandate the District Court entered judgment
accordingly. In 1941, Hazel commenced in the Circuit
Court of Appeals this proceeding, wherein it conclusively
appeared that Hartford, through publication of an article
purporting to have been written by a disinterested person,
had perpetrated a fraud on the Patent Office in obtaining
the patent and on the Circuit Court of Appeals itself in the
infringement suit. Upon review here of an order of the
Circuit Court of Appeals denying relief, held:

1. Upon the record, the Circuit Court of Appeals had the
power and the duty to vacate its 1932 judgment and to give
the District Court appropriate directions. P. 247. -

(a) Even if Hazel failed to exercise due diligence to
uncover the fraud, relief may not be denied on that ground
alone, since public interests are involved. P. 246.

(b) In the circumstances, Hartford may not be heard to
dispute the effectiveness nor to assert the truth of the
article. P. 247.

2. The Circuit Court ef Appeals is directed to set aside its
1932 judgment, recall its 1932 mandate, dismiss Hartford's
appeal, and to issue a mandate to the District Court
directing it to set aside its judgment entered pursuant to the
1932 mandate, to reinstate its original judgment denying
relief to Hartford, and to take such additional action as may
be necessary and appropriate. P. 250.

COUNSEL: Mr. Stephen H. Philbin, with whom Mr.
Henry R. Ashton was on the brief, for petitioner.

Mr. Francis W. Cole, with whom Messrs. Walter J. Blenko,

65A

Edgar J. Goodrich, and James M. Carlisle were on the brief,
for respondent.

Solicitor General Fahy, Assistant Attorney General Shea,
and Messrs. Robert L. Stern and Melvin Richter filed a
brief on behalf of the United States, as amicus curiae,
urging reversal.

JUDGES: Stone, Roberts, Blacks, Reed, Frankfurter,
Douglas, Murphy, Jackson, Rutledge

OPINION BY: BLACK

OPINION: [*239] [**998] [***1252] MR. JUSTICE
BLACK delivered the opinion of the Court.

This case involves the power of a Circuit Court of Appeals,
upon proof that fraud was perpetrated on it by a successful
litigant, to vacate its own judgment entered at a prior term
and direct vacation of a District Court's decree entered
pursuant to the Circuit Court of Appeals’ mandate.

Hazel-Atlas commenced the present suit in November,
1941, by filing in the Third Circuit Court of Appeals a
petition for leave to file a bill of review in the District
Court to set aside a judgment entered by that Court against
Hazel in 1932 pursuant to the Third Circuit Court of
Appeals’ mandate. Hazel contended that the Circuit Court
of Appeals' judgment had been obtained by fraud and
supported this charge with affidavits and exhibits. Hartford-
Empire, in whose favor the challenged judgment had been
entered, did not question the appellate court's power to
consider the petition, but filed counter affidavits and
exhibits. After a hearing the Circuit Court concluded that
since the alleged fraud had been practiced on it rather than
the District Court it would pass on the [*240] issues of

66A

fraud itself instead of sending the case to the District Court.
An order was thereupon entered denying the petition as
framed but granting Hazel leave to amend the prayer of the
petition to ask that the Circuit Court itself hear and
determine the issue of fraud. Hazel accordingly amended,
praying that the 1932 judgments against it be vacated and
for such other relief-as-might be just. Hartford then replied
and filed additional exhibits and affidavits. The following
facts were shown by the record without dispute.

In 1926 Hartford had pending an application for a patent on
a machine which utilized a method of pouring glass into
molds known as "gob feeding." The application, according
to the Circuit Court, “was confronted with apparently
insurmountable Patent Office opposition." To help along
the application, certain officials and attorneys of Hartford
determined to have published in a trade journal an article
[**999] signed by an ostensibly disinterested expert which
would describe the "gob feeding" device as a remarkable
advance in the art of fashioning glass by machine.
Accordingly these officials prepared an article entitled
"Introduction of Automatic Glass Working [***1253]
Machinery; How Received by Organized Labor," which
referred to "gob feeding" as one of the two "revolutionary
devices" with which workmen skilled in bottle-blowing had
been confronted since they had organized. After
unsuccessfully attempting to persuade the President of the
Bottle Blowers’ Association to sign this article, the Hartford
officials, together with other persons called to their aid,
procured the signature of one William P. Clarke, widely
known as National President of the Flint Glass Workers'
Union. Subsequently, in July 1926, the article was
published in the National Glass Budget, and in October
1926 it was introduced as part of the record in support of
the pending application in the Patent Office. [*241] January
3, 1928, the Patent Office granted the application as Patent
No. 1,655,391.

67A

On June 6, 1928, Hartford brought suit in the District Court
for the Western District of Pennsylvania charging that
Hazel was infringing this “gob feeding" patent, and praying
for an injunction against further infringement and for an
accounting for profits and damages. Without referring to
the Clarke article, which was in the record only as part of
the "file-wrapper" history, and which apparently was not
then emphasized by counsel, the District Court dismissed
the bill on the ground that no infringement had been
proved. 39 F.2d 111. Hartford appealed. In their brief filed
with the Circuit Court of Appeals, the attorneys for
Hartford, one of whom had played a part in getting the
spurious article prepared for publication, directed the
Court's attention to "The article by Mr. William Clarke,
former President of the Glass Workers' Union." The
reference was not without effect. Quoting copiously from
the article to show that “labor organizations of practical
workmen recognized" the "new and _ differentiating
elements" of the "gob feeding" patent owned by Hartford,
the Circuit Court on May 5, 1932, held the patent valid and
infringed, reversed the District Court's judgment, and
directed that court to enter a decree accordingly. 59 F.2d
399, 403, 404.

At the time of the trial in the District Court in 1929, where
the article seemingly played no important part, the
attorneys of Hazel received information that both Clarke
and one of Hartford's lawyers had several years previously
admitted that the Hartford lawyer was the true author of the
spurious publication. Hazel's attorneys did not at that time
attempt to verify the truth of the hearsay story of the
article's authorship, but relied upon other defenses which
proved successful. After the opinion of the Circuit Court
came down on May 5, 1932, quoting the spurious [*242]
article and reversing the decree of the District Court, Hazel
hired investigators for the purpose of verifying the hearsay

68A

by admissible evidence. One of these investigators
interviewed Clarke in Toledo, Ohio, on May 13 and again
on May 24. In each interview Clarke insisted that he wrote
the article and would so swear if summoned. In the second
interview the investigator asked Clarke to sign a statement
telling in detail how the article was prepared, and further
asked to see Clarke's files. Clarke replied that he would not
“stultify" himself by signing any "statement or affidavit";
and that he would show the records to no one unless
compelled by a subpoena. At the same time, he reinforced
his claim of authorship by asserting that he had spent seven
weeks in preparing the article.

But unknown to Hazel's investigator, a representative of
Hartford, secretly informed of the investigator's view that
Hazel's only chance of reopening the case "was to get an
affidavit from someone, to the effect that this article was
written" by Hartford's attorney, also had traveled to Toledo.
Hartford's representative first went to Toledo and talked to
Clarke on May 10, three days before Hazel's investigator
first interviewed Clarke; and he returned [***1254] to
Toledo again on May 22 for a five-day stay. Thus at the
time of the investigator's second interview with Clarke on
May 24, representatives of both companies were in touch
with Clarke in Toledo. But though Hartford's representative
knew the investigator was there, the latter was unaware of
the presence of the [**1000] Hartford representative. On
May 24, Hazel's investigator reported failure; the same day,
Hartford's man reported "very successful results." Four
days later, on May 28, Hartford's representative reported
his "success" more fully. Clarke, he said, had been of "great
assistance" and Hartford was in a "most satisfactory
position"; it did not "seem wise to distribute copies of all
the papers" the representative then had or [*243] to "go into
much detail in correspondence"; and Hartford was "quite
indebted to Mr. Clarke" who "might easily have caused us
a lot of trouble. This should not be forgotten. . . ." Among

69A

the “papers” which the representative had procured from
Clarke was an affidavit signed by Clarke stating that he,
Clarke, had "signed the article and released it for
publication.” The affidavit was dated May 24 -- the very
day that Clarke had told Hazel's investigator he would not
"stultify" himself by signing any affidavit and would
produce his papers for no one except upon subpoena.

Shortly afterward Hazel capitulated. It paid Hartford $
1,000,000 and entered into certain licensing agreements.
The day following the settlement, Hartford's representative
traveled back to Toledo and talked to Clarke. At this
meeting Clarke asked for $ 10,000. Hartford's
representative told him that he wanted too much money and
that Hartford would communicate with him further. A few
days later the representative paid Clarke $ 500 in cash; and
about a month later delivered to Clarke, at some place in
Pittsburgh which he has sworn he cannot remember, an
additional $ 7,500 in cash. The reason given for paying
these sums was that Hartford felt a certain moral obligation
to do so, although Hartford's affidavits deny any prior
agreement to pay Clarke for his services in connection with
the article.

Indisputable proof of the foregoing facts was, for the first
time, fully brought to light in 1941 by correspondence files,
expense accounts and testimony introduced at the trial of
the United States v. Hartford-Empire Company et al., 46
F.Supp. 541, an anti-trust prosecution begun December 11,
1939. On the basis of the disclosures at this trial Hazel
commenced the present suit.

Upon consideration of what it properly termed this "sordid
story," the Circuit Court, one Judge dissenting, held, first,
that the fraud was not newly discovered; second,
{*244] that the spurious publication, though quoted in the
1932 opinion, was not the primary basis of the 1932

T0A

decision; and third, that in any event it lacked the power to
set aside the decree of the District Court because of the
expiration of the term during which the 1932 decision had
been rendered. Accordingly the Court refused to grant the
relief prayed by Hazel.

(***HR1) [1]

[***HR2] [2]

HN1f Federal courts, both trial and appellate, long ago
established the general rule that they would not alter or set
aside their judgments after the expiration of the term at
which the judgments were finally entered. Bronson v.
Schulten, 104 U.S. 410. This salutary general rule springs
from the belief that in most instances society is best served
by putting an end to litigation after a case has been tried
and judgment entered. This has not meant, however, that a
judgment finally entered has ever been regarded as
completely immune from impeachment after the term.
From the beginning there has existed alongside the term
rule a rule of equity to the effect that HN2T under certain
circumstances, one of which is after-discovered fraud,
relief will [***1255]be granted against judgments
regardless of the term of their entry. Marine Insurance Co.
v. Hodgson, 7 Cranch 332; Marshall v. Holmes, 141 U.S.
589. This equity rule, which was firmly established in
English practice long before the foundation of our
Republic, the courts have developed and fashioned to fulfill
a universally recognized need for correcting injustices
which, in certain instances, are deemed sufficiently gross to
demand a departure from rigid adherence to the term rule.
Out of deference to the deep-rooted policy in favor of the
repose of judgments entered during past terms, courts of
equity have been cautious in exercising their power over
such judgments. United States v. Throckmorton, 98 U.S.
61. But where the occasion has demanded, where
enforcement of the judgment is "manifestly [*245]
unconscionable,” Pickford v. Talbott, 225 U.S. 651, 657,

they have wielded the power {[**1001] without hesitation.
ni Litigants who have sought to invoke this equity power
customarily have done so by bills of review or bills in the
nature of bills of review, or by original proceedings to
enjoin enforcement of a judgment. n2 And in cases where
courts have exercised the power, the relief granted has
taken several forms: setting aside the judgment to permit a
new trial, altering the terms of the judgment, or restraining
the beneficiaries of the judgment from taking any benefit
whatever from it. n3 But whatever form the relief has taken
in particular cases, the net result in every case has been the
same: where the situation has required, the court has, in
some manner, devitalized the judgment even though the
term at which it was entered had long since passed away.

nl See, e. g., Art Metal Works v. Abraham & Strauss, 107
F.2d 940 and 944; Publicker v. Shallcross, 106 F.2d 949;
Chicago, R. L & P. Ry. Co. v. Callicotte, 267 F. 799;
Pickens v. Merriam, 242 F. 363; Lehman v. Graham, 135
F. 39; Bolden v. Sloss-Sheffield Steel & Iron Co., 215 Ala.
334, 110 So. 574, 49 A. L. R. 1206. For a collection of
early cases see Note (1880) 20 Am. Dec. 160.

n2 See Whiting y. Bank of the United States, 13 Pet. 6, 13;
Dexter v. Arnold, 5 Mason 303, 308-315. See, also,
generally, 3 Ohlinger’s Federal Practice pp. 814-818; 3
Freeman on Judgments (Sth ed.) § 1191; Note ieee 20
Am. Dec. 160, supra.

n3 See 3 Freeman on Judgments (Sth ed.) §§ 1178, 1779.

Se a eT

T2A

[***HR3] [3]

Every element of the fraud here disclosed demands the
exercise of the historic power of equity to set aside
fraudulently begotten judgments. This is not simply a case
of a judgment obtained with the aid of a witness who, on
the basis of after-cdiscovered evidence, is believed possibly
to have been guilty of perjury. Here, even if we consider
nothing but Hartford's sworn admissions, we find a
deliberately planned and carefully executed scheme to
defraud not only the Patent Office but the Circuit Court of
Appeals. [*246] Cf. Marshall v. Holmes, supra. Proof of
the scheme, and of its complete success up to date, is
conclusive. Cf. United States v. Throckmorton, supra. And
no equities have intervened through transfer of the
fraudulently procured patent or judgment to an innocent
purchaser. Cf. Ibid; Hopkins v. Hebard, 235 U.S. 287.

[***HR4] [4]

The Circuit Court did not hold that Hartford's fraud feil
short of that which prompts equitable intervention, but
thought Hazel had not exercised proper diligence in
uncovering the fraud and that this should stand in the way
of its obtaining relief. We cannot easily understand how,
under the admitted facts, Hazel should have been expected
to do more than [*** 1256] it did to uncover the fraud. But
even if Hazel did not exercise the highest degree of
diligence, Hartford's fraud cannot be condoned for that
reason alone. This matter does not concern only private
parties. There are issues of great moment to the public in a
patent suit. Mercoid Corporation v. Mid-Continent
Investment Co., 320 U.S. 661; Morton Salt Co. v. G. S.
Suppiger Co., 314 U.S. 488. Furthermore, tampering with
the administration of justice in the manner indisputably

T3A

shown here involves far more than an injury to a single
litigant. It is a wrong against the institutions set up to
protect and safeguard the public, institutions in which fraud
cannot complacently \be tolerated consistently with the
good order of society. Surely it cannot be that preservation
of the integrity of the judicial process must always wait
upon the diligence of litigants. The public welfare demands
that the agencies of public justice be not so impotent that
they must always be mute and helpless victims of deception
and fraud.

[***HR5] [5]

The Circuit Court also rested denial of relief upon the
conclusion that the Clarke article was not "basic" to the
Court's 1932 decision. Whether or not it was the primary
basis for that ruling, the article did impress the Court,
as [*247] shown by the Court's opinion. Doubtless it is
wholly impossible accurately to appraise the influence that
the article exerted on the judges. But we do not think the
circumstances [**1002] call for such an _ attempted
appraisal. Hartford's officials and lawyers thought the
article material. They conceived it in an effort to persuade a
hostile Patent Office to grant their patent application, and
went to considerable trouble and expense to get it
published. Having lost their infringement suit based on the
patent in the District Court wherein they did not
specifically emphasize the article, they urged the article
upon the Circuit Court and prevailed. They are in no
position now to dispute its effectiveness. Neither should
they now be permitted to escape the consequences of
Hartford's deceptive attribution of authorship to Clarke on
the ground that what the article stated was true. Truth needs
no disguise. The article, even if true, should have stood or
fallen under the only title it could honestly have been given
-- that of a brief in behalf of Hartford, prepared by
Hartford's agents, attorneys, and collaborators.

T4A

[***HR6] [6]

We have, then, a case in which undisputed evidence filed
with the Circuit Court of Appeals in a bill of review
proceeding reveals such fraud on that Court as demands,
under settled equitable principles, the interposition of
equity to devitalize the 1932 judgment despite the
expiration of the term at which that judgment was finally
entered. Did the Circuit Court have the power to set aside
its own 1932 judgment and to direct the District Court
likewise to vacate the 1932 decree which it entered
pursuant to the mandate based upon the Circuit Court's
judgment? Counsel for Hartford contend not. They concede
that the District Court has the power upon proper proof of
fraud to set aside its 1932 decree in a bill of review
proceeding, but nevertheless deny that the Circuit Court
possesses a similar power for the reason that the term
during [*248] which its 1932 judgment was entered had
expired. The question, then, is not whether relief can be
granted, but which court can — grant it.

[***HR7] [7]

[***HR8] [8]

HN3 ft Equitable relief against fraudulent judgments is not
of statutory creation. It is a judicially devised remedy
fashioned to relieve hardships which, from time to time,
arise from a hard and fast adherence to another court-made
rule, the general rule that judgments should not be
disturbed after the term of their entry has expired. Created
to avert the evils of archaic rigidity, this equitable
procedure has always been characterized [***1257] by
flexibility which enables it to meet new situations which
demand equitable intervention, and to accord all the relief
necessary to correct the particular injustices involved in
these situations. It was this flexibility which enabled courts
to meet the problem raised when leave to file a bill of
review was sought in a court of original jurisdiction for the

T5A

purpose of impeaching a judgment which had been acted
upon by an appellate court. Such a judgment, it was said,
was not subject to impeachment in such a proceeding
because a trial court lacks the power to deviate from the
mandate of an appellate court. The solution evolved by the
courts is a procedure whereby permission to file the bill is
sought in the appellate court. The hearing conducted by the
appellate court on the petition, which may be filed many
years after the entry of the challenged judgment, is not just
a ceremonial gesture. The petition must contain the
necessary averments, supported by affidavits or other
acceptable evidence; and the appellate court may in the
exercise of a proper discretion reject the petition, in which
case a bill of review cannot be filed in the lower court.
National Brake Co. v. Christensen, 254 U.S. 425, 430-433.

We think that when this Court, a century ago, approved this
practice and held that federal appellate courts have the
power to pass upon, and hence to grant or deny, petitions
{*249] for bills of review even though the petitions be
presented long after the term of the challenged judgment
has expired, it settled the procedural question here
involved. Southard v. Russell, 16 How. 547. n4 To reason
[**1003] otherwise would be to say that although the
Circuit Court has the power to act after the term finally to
deny relief, it has not the power to act after the term finally
to grant relief. It would, moreover, be to say that even in a
case where the alleged fraud was on the Circuit Court itself,
the relevant facts as to the fraud were agreed upon by the
litigants, and the Circuit Court concluded relief must be
granted, that Court nevertheless must send the case to the
District Court for decision. Nothing in reason or precedent
requires such a cumbersome and dilatory procedure. Indeed
the whole history of equitable procedure, with the
traditional flexibility which has enabled the courts to grant
all the relief against judgments which the equities require,
argues against it. We hold, therefore, that the Circuit Court

76A

on the record here presented n5 had [*250] both the duty
and the [***1258] power to vacate its own judgment and to
give the District Court appropriate directions.

n4 See also Tyler v. Magwire, 17 Wall. 253, 283:
"Repeated decisions of this court have established the rule
that a final judgment or decree of this court is conclusive
upon the parties, and that it cannot be reexamined at a
subsequent term, except in cases of fraud, as there is no act
of Congress which confers any such authority." (Italics
supplied.)

n5 We do not hold, and would not hold, that the material
questions of fact raised by the charges of fraud against
Hartford could, if in dispute, be finally determined on ex
parte affidavits without examination and cross-examination
of witnesses. It should again be emphasized that Hartford
has never questioned the accuracy of the various documents
which indisputably show fraud on the Patent Office and the
Circuit Court, and has not claimed, either here or below,
that a trial might bring forth evidence to disprove the facts
as shown by these documents. And insofar as a trial would
serve to bring forth additional evidence showing that Hazel
was not diligent in uncovering these facts, we already have
pointed out that such evidence would not in this case
change the result.

Moreover, we need not decide whether, if the facts relating
to the fraud were in dispute and difficult of ascertainment,
the Circuit Court here should have held hearings and
decided the case or should have sent it to the District Court
for decision. Cf. Art Metal Works v. Abraham & Strauss-~
supra, Note 1.

TTA

[***HR9] [9]

The question remains as to what disposition should be
made of this case. Hartford's fraud, hidden for years but
now admitted, had its genesis in the plan to publish an
article for the deliberate purpose of deceiving the Patent
Office. The plan was executed, and the article was put to
fraudulent use in the Patent Office, contrary to law. U. S.
C., Title 35, § 69; United States v. American Bell
Telephone Co., 128 U.S. 315. From there the trail of fraud
continued without break through the District Court and up
to the Circuit Court of Appeals. Had the District Court
learned of the fraud on the Patent Office at the original
infringement trial, it would have been warranted in
dismissing Hartford's case. In a patent case where the fraud
certainly was not more flagrant than here, this Court said:
"Had the corruption of Clutter been disclosed at the trial . . .
, the court undoubtedly would have been warranted in
holding it sufficient to require dismissal of the cause of
action there alleged for the infringement of the Downie
patent." Keystone Driller Co. v. Excavator Co., 290 U.S.
240, 246; cf. Morton Salt Co. v. G. S. Suppiger Co., supra,
493, 494. So, also, could the Circuit Court of Appeals have
dismissed the appeal had it been aware of Hartford's
corrupt activities in suppressing the truth concerning the
authorship of the article. The total effect of all this fraud,
practiced both on the Patent Office and the courts, calls for
nothing less than a complete denial of relief to Hartford for
the claimed infringement of the patent thereby procured
and enforced.

Since the judgments of 1932 therefore must be vacated, the

7T8A

case now stands in the same position as though Hartford's
corruption had been exposed at the original trial. [*251]} In
this situation the doctrine of the Keystone case, supra,
requires that Hartford be denied relief.

{***HR10] [10}

HN4? To grant full protection to the public against a
patent obtained by fraud, that patent must be vacated. It has
previously been decided that such a remedy is not available
in infringement proceedings, but can only be accomplished
in a direct proceeding brought by the Government. United
States v. American Bell Telephone Co., supra.

[**1004] The judgment is reversed with directions to set
aside the 1932 judgment of the Circuit Court of Appeals,
recall the 1932 mandate, dismiss Hartford's appeal, and
issue mandate to the District Court directing it to set aside
its judgment entered pursuant to the Circuit Court of
Appeals' mandate, to reinstate its original judgment
denying relief to Hartford, and to take such additional
action as may be necessary and appropriate.

Reversed.

T9A

JOHN DEMJANJUK, Petitioner-Appellant, v. JOSEPH
PETROVSKY, et al., Respondents-Appellees. Upon
Reconsideration of an DEMJANJUK

No. 85-3435

UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT

10 F.3d 338; 1993 U.S. App. LEXIS 29694; 27 Fed. R.
Serv. 3d (Callaghan) 437

September 3, 1993, Argued
November 17, 1993, Decided
November 17, 1993, Filed

SUBSEQUENT HISTORY: [**1] Rehearing En Banc
Denied February 24, 1994, Reported at: 1994 U.S. App.
LEXIS 3678.

PRIOR HISTORY: Appeal from the United States
District Court for the Northern District of Ohio. District
No. 85-01226. Frank J. Battisti, District Judge. Thomas A.
Wiseman, Jr., District Judge.

CASE SUMMARY

PROCEDURAL POSTURE: Defendant immigrant
appealed a decision from the United States District Court
for the Northern District of Ohio, which denied his petition
for habeas corpus relief from an extradition warrant.
Specifically, defendant argued on appeal that plaintiff had
omitted exculpatory evidence tending to show that
defendant's identity was wrongfully confused with that of a
war criminal.

80A

OVERVIEW: Defendant immigrant was prosecuted in a
federal district court for alleged criminal activity that he
conducted during World War II. After trial, the district
court found him guilty and ordered his extradition to Israel
to undergo trial and probable capital punishment if
convicted. In response, defendant appealed, arguing that he
was entitled to habeas corpus relief because plaintiff
engaged in severe misconduct by failing to disclose
discovery information that could have incriminated another
war criminal. The court appointed a Special Master after
defendant's trial to evaluate the weight of the evidence, and
to determine whether plaintiff withheld material
information. Upon a final determination, the court vacated
defendant's extradition order on the grounds that plaintiff's
withholding of evidence, regardless of whether it was
knowingly accomplished, amounted to a severe fraud on
the court. In addition, the Special Master's findings as to
the likely culpability of the alternative party sufficed as
further evidence that plaintiff's discovery error prejudiced
defendant.

OUTCOME: Defen

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1956%3A2. Public record. Not legal advice.