Petition for Writ of Certiorari — Culp v. Hood

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\Y 96 696 OCT 28 19%

Case No. 96-

IN THE

SUPREME COURT OF THE

UNITED STATES

October 1996 Term

ROBERT CULP,

Petitioner

HAROLD HOOD and ROBERT J. DANHOF, (Retired)

Judges of the Michigan Court of Appeals and

JEANNE STEMPIEN, Wayne Circuit Judge and

Acting Michigan Court of Appeals Judge,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

E. R. WHINHAM

Attorney for Petitioner

9541 W. Gulf Boulevard No. 1

Treasure Island, FL 33706-3360

(813) 367-9021

Questions Presented

Whether a cause of action grounded upon

provisions of Title 42 Section 1983 of the

United States Code, charging the Respondents

with violations of rights protected by the

First, Fifth and Fourteenth Amendments to the

Constitution of the United States are made

moot by a decision of the Respondents that did

not address the charges made in the 42 USC

1983 cause of action when the decision of the

Respondents is denied leave to appeal by the

Supreme Court of Michigan and this Court

denied a Petition for a Writ of Certiorari

directed to the Michigan Supreme Court.

Whether Petitioner’s cause of action

authorized by the provisions 42 U.S.C. 1983 is

made moot when decisions of the federal courts

never reached the merits of the questions, the

District Court deciding the matter should be

dismissed because of judicial immunity and an

absence of any rights in Petitioner and the

United States Court of Appeals deciding the

cause should be dismissed because of mootness.

Whether Petitioner’s cause of action can be

considered moot when allegations contained in

the First Amended Complaint regarding the Pre-

Hearing procedures of the Michigan Court of

Appeals were never addressed on the merits.

Whether rules and customs regarding the

issuance by United States Courts of Appeal of

unpublished decisions are out of date and

subject to abuse where computer retrieval of

Courts of Appeal decisions has alleviated the

problems the rules and customs regarding

unpublished decisions sought to correct.

TABLE OF CONTENTS

OS ea ee er ere ee oS |

ee OE ge 6s 6k bee 6 ce ee « ehbt

pO ey ee ee |

Additional Parties to the Proceeding. . .. .1-2

ee ee ae ay ay ea

NS 26 ee ee ee a ka: cece 6 eh?

Constitutional Provisions, Treaties,

Statutes, Rules and Regulations Involved. .18-21

peecememe Of the Case . 2. 2 + 2 0 sw oe 0 tenes

I tk ie ienks

RSE Rg re Gk Rey Se Gar ae SO Sienna

IR altho Rt a al eee ay 6 om ROR TE

District Court Opinion granting

Respondents’ Unpublished Opinion in Petitioner's

judicial review of his workers’ compensation

gat PRE TS Te ee oe Gy ee ae oe Gat Ee ee ee ee eee ee

District Court Order-Opinion granting

Respondent's Motion to Dismiss. . .. . .13a-20a

District Court's Order Denying Rehearing. 2la-22a

Sixth Circuit Court of Appeals Opinions of

March 19,1996 and June 27, 1996... . .24a-35a

Order of the Sixth Circuit Court of Appeals

of July 30, 1996, denying rehearing,

I re ee ig re gs ea 6S ce ee eheeeowsTa

iii

TABLE OF AUTHORITIES

Cases

Brown v Allen

344 U.S. 443, 97 L.Ed2d 469 (1953) . . «. « « « 35

Culp v Wismer & Becker

115 S. Ct. 1958, lv. dn.;

115 S. Ct. 2655, rhg. dn.. . «- aoe ar

Dation v Ford Motor Co.

S14 Mick 252 CiSGGl «6 eae Se ee

Hughes Tool Co. v Trans World Airlines

409 U.S. 363, 97 L.Ed2d 707 (1973). . «© 2 « «© e392

Maryland v Baltimore Radio Show

336 0.8. ‘Siz C950) ss 6 6 8 ae. bie eee eee

Mitchum v Foster

407 U.S. 225, 32 baBa2e 70S. Ck9T2). 6. « Ba She oF

Morgan v United States

298 U.S. 468 (1936), 304 U.S. 1 (1938). . . 39, 40

Powell v McCormack

359 U.S. 119 (1969) 2 2 6 ee we ee ee ew ee OS

i it RRS A tT Ry CRITE toh N=

Pulliam v Allen

466 U.S. 522; 80 L. Ed2d 565 (1984). . .25, 26, 31

Sobctka v Chrysler Corp.

647 Wiek 1 (TOSSES e Oe 1Se Tn ses

a7, Zee Se

198 Mich App 445 (1993). . «© «© © «+ 2+ ee © * * «ll

Williams v Grossman

399 Mich 888 (1977) lv. grt. - +++ ++ ee > 39

409 Mich 67 (1980) «© «- e-e«ee rv eo eee -40

Constitutions

Constitution of the United States

Semi oS bok ee ee Re RRS 18

eS 6 ek ee ee a ee eee ee oe 18

ie BI. og aos Os ee ee Ee Se 18

Statutes

United States Code

Title 28, Section 1254; 28 USC 1254... . 17

Title 42, Section 1983; 42 USC 1983. -16, 19,

23, 33, 346 :35s: 3%. 37

Court Rules

United States Court of Appeals Rules --

Sixth Circuit

ake 2A CB Sg 5 ce Bm @ eR SS 19, 42

Michigan Court Rules of 1985

Rule 7.215(B); MCR 7.215(B) . ... + + 20,5 42

Sule 7.215(G): WOR 7.21) ce nck ww 8

IN THE SUPREME COURT

OF THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner, ROBERT CULP, respectfully

prays that 4a writ of certiorari issue to

review the decision of the United States Court

of Appeals for the Sixth Circuit of march 19,

1996, Amended Decision issued June 27, 1996,

Petition for Rehearing and Rehearing En Banc

denied July 30, 1996.

ADDITIONAL PARTIES TO THE PROCEEDINGS

This case was started against the

Respondents on January 19, 1994 in the United

| States District Court for the Eastern District

of Michigan. It sought, among others things

to enjoin a proceeding in the Michigan Court

——————————

of Appeals which was a judicial review of an

administrative decision by the Michigan

Workers’ Compensation Appeal Board. The other

parties to that administrative determination

were named as parties in the Complaint because

each of them had an interest in opposing the

seeking of injunctive and declaratory relief.

The District Judge, sya sponte, dismissed

these parties at the hearing on Petitioner’s

Motion for a Preliminary Injunction and these

parties have not participated in any of the

proceedings since being dismissed sua sponte.

They appear as parties in Case No. 94-1460;

cert. Gav iis Si Co. 1966; fag. GA. ais o-

Ct. 2635 (1995), a seeking of a writ of

certiorari from this Court from the decision

of the Respondents of May 19, 1994, leave to

appeal denied by the Michigan Supreme Court on

November 30, 1994.

OPINIONS BELOW

The opinions and decisions below are the

unpublished opinion of the Michigan Court of

Appeals of May 10, 1994, the unpublished Order

Granting Defendants Motion to Dismiss or for

Summary Judgement of the United States

District Court for the Eastern District of

Michigan of September §&8, 1994, The Order

Denying Plaintiff's Motion for Reconsideration

by the United States District Court for the

Eastern District of Michigan, the unpublished

Opinion of the United States Court of Appeals

for the Sixth Circuit of March 19, 1996, the

unpublished Amended Opinion of the United

States Court of Appeals for the Sixth Circuit

of June 27, 1996 and the unpublished Order

Denying Rehearing En Banc of the United States

Court of Appeals for the Sixth Circuit of July

30, 1996.

JURISDICTION

This is a cause of action that was brought

under the authority of Title 42, Section 1983

of the United States Code and sought

injunctive and declaratory relief regarding

the treatment given and about to be given by

Respondents to the Petitioner’s judicial

review of a worker’s’s disability compensation

administrative determination, and,

additionally, regarding a practice of the

Michigan Court of Appeals and all Michigan

Court of Appeals panels accepting secret Pre-

Hearing reports prior to submission of for

decision.

The worker’s disability compensation case

of the Petitioner sought permanent and total

disability benefits for a statutorily defined

condition of loss of industrial use of the

legs, MCLA 418.361(3) (g). It was

Petitioner’s contention during the

administrative proceeding that it was

conclusively established that he had

entitlement to these benefits. The contention

was based upon testimony of an orthopedic

Surgeon retained for multiple examinations and

reports by several employer interests and

produced to give evidence by the last of

Petitioner’s numerous employers. This expert

medical witness testified that Petitioner had

no useful function of his lower limbs and that

this condition was caused by a fall of 25 feet

to a concrete floor that caused multiple

fractures of both legs, both feet, and

derangement of both knees, and strenuous work

as a millwright following recuperation from

the injuries caused by the fall.

Entitlement to permanent and total

—

disability benefits for loss of industrial use

of both legs is established at the time such a

condition exists. The time at which this

condition was shown to exist was in 1977 when

the orthopedic surgeon described above

testified as to when he first concluded that

the condition existed. The motivation for the

last employer producing this testimony was

that it established entitlement to. the

broadest, most compensated, longest continuing

without reduction for aging, disability weekly

benefits long before Petitioner was ever

employed by that employer, thus exempting that

employer from any liability.

The testimony produced as here described

was unopposed. The Second Injury Fund

produced a witness who concluded that

Petitioner was not fit for even wheelchair

assisted employment. He concluded the cause

of such disability was not related to

employment but this testimony was not believed

by any administrative fact finder and the

courts have no fact finding function in

workers’ disability compensation cases.

The positions of the defendants, other

than the last employer, were essentially that

Petitioner did not become disabled as found

and described by the orthopedic surgeon

presented as a witness by the last employer

while he was in their employ so the liability

for his disability belonged to some other

employer.

The Magistrate of the Michigan Worker’s

Disability Compensation Bureau, by a decision

issued October 16, 1985, ruled that plaintiff

was not permanently and totally disabled, that

he was totally disabled because

of work occurrences not attributable to a

Single event and that because such was the

cause of his total disability, Petitioner was

entitled to weekly benefits from his last

employer.

Petitioner and the last employer each

sought administrative review from the Michigan

Workers’s Compensation Appeal Board.

Incredulously, in a two to one decision,

issued December 23, 1991, the Workers’s

Compensation Appeal Board found Petitioner

only partially disabled and entitled to

partial disability benefits from the last

employer. The dissenting member of the

Michigan Workers’ Compensation Appeal Board

found Petitioner to be permanently and totally

disabled because of loss of industrial use of

both legs in accord with the unopposed

testimony of the orthopedic surgeon presented

by the last employer.

The Workers’ Compensation Appeal Board

made no determination as to the extent of

entitlement to weekly benefits of the

Petitioner for partial disability.

The Petitioner and the last employer each

sought leave to appeal to the Michigan Court

of Appeals. The Michigan Court of Appeals

denied the Application for Leave to Appeal of

the last employer. It granted leave to appeal

to the Petitioner, but appeal was limited to a

determination of how to determine the extent

of Petitioner’s entitlement to partial

disability benefits.

The last employer sought leave to appeal

from the Michigan Supreme Court. Petitioner

sought a By Pass Application for Leave to

appeal from the Michigan Supreme Court.

When Petitioner filed his by pass

application for leave to appeal, it was

opposed by the last employer who contended

that by unpublished decisions of the Michigan

Court of Appeals, copies of ten such decisions

being attached to its opposition brief, the

definition of partial disability had been

changed and that because of these unpublished

decisions the determinations of partial

disability by the Workers’ Compensation Appeal

Board was proper. One of these decisions was

an unpublished opinion of the Michigan Court

of Appeals in the case of Sobotka vy. Chrysler

Corp.

The tortuous path of the case of Sabotka

vy. Chrysler is related in a decision of the

Michigan Supreme Court Sobotka v. Chrysler

Corp. 447 Mich 1, 9-15 (1994). This case,

particularly in the lead opinion of Justice

Boyle, also shows that from at least 1986 the

Michigan Court of Appeals was consistently

issuing unpublished, peremptory orders on

employers’ Applications for Leave to Appeal

from decisions of the Michigan Workers’

Compensation Appeal Board which sought to

impose an erroneous definition of partial

disability and an erroneous method of

calculating weekly compensation benefits and

that the Michigan Court of Appeals in such

cases never on its own motion issued a

published decision, even though there were two

extensive opinions issued in S§obotka v.

Chrysler Corp, Michigan Court of Appeals

proceedings. The final Michigan Court of

Appeals decision in that case is reported in

198 Mich App 445 (1993) on the grant of a

motion for publication filed on behalf of

Chrysler Corp.

Although I; as counsel for the

ceieaaaa ata ataaias

Petitioner, have had considerable experience

in Michigan workers’ disability compensation

law and practice, until I received copies of

ten unpublished decisions by the Michigan

Court of Appeals, I was unaware of the program

of the Michigan Court of Appeals which sought

by unpublished decisions, primarily peremptory

orders, to change the law as to the definition

of partial disability and how partial

disability weekly benefits were calculated.

However, upon receipt of the last employer’s

opposition brief to my seeking a by pass leave

to appeal to the Michigan Supreme Court, the

writing was on the wall as to why judicial

review was limited to considering how partial

disability benefits were calculated and to

what the determination of the Michigan Court

of Appeals would be. Thus, on January 19.

1994, I started this cause of action in the

—————— Te

United States District Court for the Eastern

District of Michigan.

At the hearing on Petitioner’s Motion for

a Preliminary Injunction, on February 1, 1994,

the appendices of the parties in Sobotka v.

Chrysler Corp. supra , which was then pending

in the Michigan Supreme Court at the time,

February 1, 1994, were submitted into

evidence. They contained records from numerous

cases of the Michigan Court of Appeals which,

by peremptory, unpublished, erroneous orders,

were a part of a program of the Michigan Court

of Appeals to change the definition of partial

disability and how weekly benefits for partial

disability were to be calculated, grossly

reducing the lawful obligations of employers

and their insurers.

The Michigan Supreme Court directed that

the last employer’s seeking of leave to appeal

from the denial of leave by the Michigan Court

of Appeals be remanded for full consideration

to the Michigan Court of Appeals.

Petitioner’s by pass application for leave to

appeal to the Michigan Supreme Court was

denied and a motion for reconsideration

seeking only the same full review as was

granted the last employer was also denied.

On May 10, 1994, the Michigan Court of

Appeals issued an unpublished decision in the

consolidated appeals. Briefs on behalf of

Petitioner to the Court of Appeals and the

opening statement on oral argument to the

Respondents sought to present all of

Petitioner’s grievances. The briefs were

struck and the request for a meaningful oral

argument on behalf of Petitioner and his real

grievances was denied.

On September 8, 1994, the United States

Me ee 3 he ett

District Court for the Eastern District of

Michigan issued an order-opinion which, on the

basis of judicial immunity, and in a footnote,

on the basis of no rights in the Petitioner

owed by Judges of the Michigan Court of

Appeals to Petitioner because his only method

to acquire Michigan Court of Appeals

jurisdiction was by leave to appeal which was

discretionary, dismissed Petitioner’s Civil

Rights cause of action against the

Respondents.

On August 30, 1994, the Michigan Supreme

Court, by a majority of concurrences, reversed

the Court of Appeals decision in Sobotka vs

Chrysler Corp, Subra.

On September 17, 1994, a Motion for

Reconsideration on behalf of Petitioner was

filed in District Court, citing the decision

of the Michigan Supreme Court in Sebotka.

Supra. It was denied on October 27, 1994.

An Application for Leave to Appeal from

the unpublished decision of the Michigan Court

of Appeals of May 10, 1944 was sought by

Petitioner from the Michigan Supreme Court.

It was denied on November 30, 1994. A

Petition for a Writ of Certiorari was sought

from this Court to review the Michigan

judicial proceedings involving Petitioner’s

workers’ disability Compensation claim. This

Petition was denied by this Court; Culp v.

Wismer & Becker, 115 S. Ct. 1958 lv. dn; 115

S. Ct. 2655, rhg. dn (1995).

This 42 USC 1983 case was argued to the

United States Court of Appeals for the Sixth

Circuit on October 2, 1995 before a panel of

Circuit Judge Boggs, Senior Circuit Judge

Jones and District Judge Coffman. An

unpublished opinion based upon mootness

because of the decision of the Respondents,

the discretionary actions of the Michigan

Supreme Court in denying leave to appeal and

of this Court in denying a Petition for a Writ

of Certiorari, Culp v. Wismer & Becker, supra,

was issued March 19, 1996. An Amended

Opinion was issued on June 27, 1996 with no

meaningful changes in its reasoning. A denial

of a rehearing and a rehearing En Banc. on a

timely filed Petition for Rehearing, was filed

on July 30, 1996.

Jurisdiction of this Court is provided by

the Title 28 Section 1254 of the United States

Code.

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, RULES AND REGULATIONS

INVOLVED

Constitution of the United States

Amendment I

Congress shall make no law...abridging

the free of speech ... or the right

of the people...to petition the

Government for a redress of grievances.

Amendment V

No person shall ... be deprived of life,

liberty or property, without due process

of law.

Amendment XIV, 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 citizen of

the United States; nor shall any State

deprive any person of life, liberty

or property, without due process of law;

nor deny any person within i t S

jurisdiction the equal protection of the

law.

eis ORES 4

Statutes of the United States

Title 42, Section 1983; 42 U.S.C. 1983

Every person who, under color of any

statute, ordinance, regulation,

custom, or usage, of any State or

Territory or the District of Columbia,

subjects, or causes to be subjected, any

citizen of the United States or

other person within the jurisdiction

thereof to 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.

United States Court of Appeals Rules--Sixth

Circuit, Rule 24 (A)

The following criteria shall be

considered by panels in determining

whether decisions will be designated for

publication in the Federal Report:

(I) whether it establishes a new rule of

law, or alters or modifies

an exiting rule of law, or applies

an established rule to a novel

fact situation;

(ii) whether it creates or resolves

a conflict of authorities either

within the circuit or between this

circuit and another;

(iii) whether it discusses a legal or

factual issue of continuing

public interest.;

(iv) whether it is accompanied by 4

concurring or dissenting opinion;

(v) whether it reverses the decision

below, unless:

(a) the reversal is caused by an

intervening change in law or

fact, or,

(ob) the reversal is a remand

(without further comment) to

the district court of a case

reversed or remanded by the

Supreme Court;

(vi) whether it address a lower court or

administrative agency decision that

has been published; or,

(vii)whether it is a decision which has

been reviewed by the United States

Supreme Court.

Michigan Court Rules of 1985, Rule 7.215(B)

MCR 7.215 (B)

(B) Standards for Publication. A court

opinion must be published

Ea ow

(1) establishes a new rule of law;

(2) conmstrues a provision of a

constitution, statute,

ordinance, or court rule;

(3) alters or modifies an exiting

rule of law or extends it to a

new factual context;

(4) reaffirms a principle of law

not applied in ae recently

reported decision;

(5) involves a legal issue of

continuing public interest;

(6) criticizes existing law; or

(7) creates or resolves an apparent

conflict of authority, whether

or not the earlier opinion was

published.

(C)

Precedent of Opinions

(1)

An unpublished opinion is not

precedentially binding

under the rule of stare

decisis. A party who cites an

unpublished opinion must

provide a copy of the opinion

to the court and to opposing

parties with the brief or

other paper in which the

citation appears.

————_

STATEMENT OF THE CASE

The chronological history of this case

has been set out in the Statement of

Jurisdiction.

The issues presently raised concern as to

when a cause of action becomes moot; which

brings to consideration whether there is a

“live dispute”. This will require examination

as to whether what has been put to question by

Petitioner’s cause of action has_ been

resolved, or, if not resolved, is there any

principle of law which shields the Respondents

from the exercise of judicial authority.

. Our argument will show that there is a

“live dispute”; that there never has been any

resolution of the challenges as to the color

Se hapless, Bain asia

of law, federal rights denying conduct of the

Respondents and that denying Petitioner the

opportunity of establishing the wrongs done to

him by Respondents and granting him

declaratory and injunctive relief has been

accomplished by the use of specious reasoning.

We contend that the use of unpublished

decisions, by both state and federal appellate

courts, in this litigation, has been abused

and that there presently exists a need for

rule changes regarding the issuance of

unpublished appellate decisions.

The basis for federal jurisdiction is

contained in the Civil Rights Acts and

particularly Title 42, Section 1983 of the

United States Code; 42 U.S.C. 1983.

ARGUMENT

The Petitioner’s cause of action stated

facts as to how he was treated by Respondents,

Judges acting on his case in the Michigan

Court of Appeals, and by amendment to his

initial pleading, how his cause of action

would be treated in the future because of a

universally applied secret submission to Court

of Appeals Judges in the form of a pre-hearing

report. For these claimed color of law

deprivations, Petitioner sought only

injunctive and declaratory relief.

At the hearing on Petitioner’s Motion for

a Preliminary Injunction, the District Judge,

sua sponte, dismissed as parties all of the

Defendants in the Petitioner’s worker's

disability compensation case then on judicial

Ate hee Ta in,

pil eat cwantie eal eae st

oar teint an erat b

RID item $i faa POEM He as

review before the Respondents. There were

seventeen employers, each with their insurer

and each had an interest in maintaining and

continuing the judicial review before the

Respondents.

That interest led me to believe that they

were parties and entitled to participate.

None the less, the District Court dismissed

them as parties and thereafter granted the

Respondents’ Motion to Dismiss and for Summary

Judgment. The stated basis for dismissal was

judicial immunity and, by footnote, that

because Michigan Court of Appeals Jurisdiction

was acquired by the exercise of discretion in

granting limited judicial review, Petitioner

had no rights at all.

The judicial immunity basis is grossly

unsound. Mitchum vy Foster 407 U.S. 2253 925

Ct. 2151; 32 L Ed 2d 705 (1972), Pulliam _v

Allen, 466 U.S. 522 104 S. Ct. 1970; 80 L Ed

2d 565 (1984). If a remedy other than damages

is sought, judicial immunity is not a bar to a

42 U.S.C. 1983 action.

The footnote reason based on the remedy

being discretionary does not give rise to

unfostered rights in the judiciary after

discretion is exercised, with no State or

Federal Constitutional limitations nor

limitations imposed by the oath of office and

the obligations of judicial integrity.

It is to be noted during the pendency of

this case, both in the District Court and in

the Sixtn Circuit Court of Appeals, that by a

programs of longstanding (since 1986 as best

we can tell), the Michigan Court of Appeals,

on applications for Leave of Appeal filed on

behalf of employers and their insurers or on

behalf of self insured employers, had been

26.

;

Pe a ROI SAS a Dein Pte

Add mas ttle pi Cee lg mead I RA not

Pe Beige WO Y

9K iba aR ats oh ae!

eet

issuing unpublished, peremptory orders

directing the Worker’s Compensation Appeal

Board to apply on erroneous standard of

disability and an erroneous standard of

calculating weekly benefits. This was shown

by examples of such unpublished, erroneous,

peremptory orders introduced in the District

Court in exhibits that were the Michigan

Supreme Court appendices of the parties in the

case of Sobotka v. Chrysler Corp,, supra. The

District Court was also given a list of

fourteen cases in the Michigan Supreme Court

that were being held in abeyance sending

decision in Sobotka. supra, in the Michigan

Supreme Court. They were all Applications for

Leave to Appeal on behalf of employees in

worker’s disability compensation cases, for

Sobotka v. Chrysler Corp... supra, was a one

issue case and there are no known Michigan

Court of Appeals decisions during that time on

that one issue that followed the established

law that established proper compensation

entitlement.

What was shown by the above described

materials was that for at least eight years

all of the fully active Judges of the Michigan

Court of Appeals were repeatedly participating

in a program that by unpublished, peremptory,

erroneous decisions, sought to materially

reduce proper payment of compensation benefits

by forcing a patently erroneous definition of

partial disability and a patently erroneous

method of calculating weekly benefits on the

Worker’s Compensation Appeal Board. The

Michigan Supreme Court opinion in Sobotka vy.

Chrysler Corp... supra showed seven instances

in addition to the four Sobotka instances of

such a program. The cases held in abeyance by

SU le

the Michigan Supreme Court showed another

fourteen instances and others of like identity

were revealed in the Supreme Court appendices

of the parties in Sobotka v,. Chrysler Corp,

The situation of the Petitioner is revealed as

a Michigan Court of Appeals’ limitation of his

seeking of judicial review to fit his

compensation claim into the nefarious program.

Calling what was revealed to the District

Court and the Sixth Circuit Court of Appeals a

“program” of the Michigan Court of Appeals is

an attempt at being politically correct. What

it patently was and continued to be at least

from 1986 to 1994 and the decision in Sobotka,

supra, was repeated occurrences of judicial

decisions being fixed. By either term, the

cituation was one that reeked malodorously.

If the Respondents had to respond to

charges supported by such evident facts all

taken from the records of the Michigan Supreme

Court, they would be hung out to dry and every

regularly sitting Michigan Court of Appeals

Judge that served from 1986 to 1994 would be

Similarly implicated and endangered.

Watergate was one occasion of burglary.

Here, there are about 30 instances where it is

shown that injured workmen were robbed of

their rights to compensation benefits and the

evident probability of such instances being

multiplied upon full investigation is most

significant. Woodward and Bernstein, The

Washington Post, The National Enquirer, The

Star could find that their past revelations

would pale with such a comparison.

The District Court chose judicial

immunity as the method that would circumvent

even an answer, but would most assuredly

prevent a decision on the merits. Such a

Tew ARTS RE

choice is shown to be meritless, Mitchum vy.

Foster, _supra, Pulliam v. Allen. supra. The

United States Court of Appeals for the Sixth

Circuit chose mootness.

A cause of action is moot when there is

no longer a live dispute, Powell _v,. McCormack

359 ...0.3. 119, (1969). This requires

examination as to when and where the contest

between the Petitioner was resolved.

The Court of Appeals for the Sixth

Circuit points to the decisions of the

Michigan Court of Appeals, the Michigan

Supreme court in denying leave to appeal and

this Court denying certiorari as causing

mootness.

The entire unpublished opinion of the

Michigan Court of Appeals is reproduced in the

appendix. It does not decide, nor even

mention the challenges made by Petitioner’s 42

iii dala

U.S.C. 1983 claim. The are almost treated as

if they were non-existent.

An area of peculiarity in the Michigan

Court of Appeals ‘s opinion that is of

pertinence to Petitioner’s Civil Rights Cause

against Respondents is that the opinion does

not mention the limitations placed upon

Petitioner’s judicial review. What is related

would promote the belief that Petitioner and

the last employers, Wismer and Becker, each

had been grated a right of full judicial

review when, in truth, the last employer had a

right to full review, but Petitioner was

limited to making contentions only regarding

the issue of the choosing of the Michigan

Court of Appeals (how partial disability

benefits were calculated); issues regarding

which no party had made any contentions

administratively and for which there was no

Ye SNe So

authority presented to the Michigan Court of

Appeals by way of a copy of any unpublished

decision of the Michigan Court of Appeals, MCR

7.215 (c) (1). The failure to disclose the

limitations court placed on Petitioner’s

judicial review and the preparing of the

opinion to make it appear that both Appellants

had a full and equal right of judicial review,

is a tacit admission by the Respondents that

the portion of Petitioner’s 42 U.S.C. 1983

cause that claimed the Michigan Court of

Appeals and the Respondents denied him equal

protection of the law and due process of the

law was and is correct.

A review of the Michigan Court of

Appeals’ opinion discloses that only by a

failed attempt at misleading that supports

Petitioner’s 42 U.S.C. 1983 contentions, has

the Michigan Court of Appeals given my

perenne no nreraec wr EE Te

considerations to the issues of the Civil

Rights cause of action that has been the

subject of this action in federal courts.

However, if we hypothetically assume that

the decision of the Michigan Court of Appeals

considered and decided all of the issues of

Petitioner’s 42 U.S.C. 1983 cause of action,

and decided all issues against the Petitioner,

thus being the cornerstone to the Sixth

Circuit Court of Appeals’ ruling that denial

of leave to appeal by the Michigan Supreme

Court and denial of certiorari by this Court

makes Petitioner’s 42 U.S.C. 193 cause of

action moot, there is a critical flaw to such

reasoning. The cornerstone to such a

conclusion is that the Respondents are the

creators of the cornerstone. They can create

their own judicial immunity by deciding that

they did not make color of law in judgments

upon the rights of Petitioner. Any conclusion

that Respondents can create the cornerstone to

a proposition that would free them from the

scrutiny of a 42 U.S.C. 1983 proceeding is

asinine.

Additionally, it is evident that

unwarranted significance is being placed upon

denial of leave to appeal and denial of

certiorari. It is Hornbook law that in

instances where there is no dissent to a

denial of certiorari such a denial means no

more than fewer than four members of this

Court thought it should be granted, Maryland v

Baltimore Radio Show, 338 U.S. 912 (1950);

Hughes Tool] Co, V Transworld Airlines, 409

U.S. 363, 34 L. Ed 2d 707 (1973); Brown yv

Allen. 344 U.S. 443, 97 L. Ed 2d 469 (1953).

Prior to the adoption of the Michigan

Constitution of 1963 the method of obtaining

judicial review of an administrative decision

in a worker’s disability compensation case was

to seek a writ of certiorari from the Michigan

Supreme Court. There is now an intermediate

appellate court in Michigan, but seeking

review in compensation cases from the Michigan

Supreme Court is done as it always has been

done, but with a different title on the

pleadings. The title is now “Application for

Leave to Appeal”. The denial of leave to

appeal should have the same significance as

denial of certiorari.

The decision of the Michigan Court of

Appeals neither considered or resolved any of

the Civil Rights claims of the petition

although phrasing in the opinion relates

favorably to the soundness of this 42 U.S.C.

1983 cause of action. Hypothetically,

assuming that the Michigan Court of Appeals,

1 SAARI

through the actions of the Respondents, could

consider and decide the issues in Petitioner’s

Civil Rights claim would allow the Respondents

to create there own immunity and defeat the

purpose of 42 U.S.C. 1983 and its application

to the judiciary as determined by this Court

in Mitchum v Foster, supra.

Neither the District Court nor the Sixth

Circuit Court of Appeals has found any valid

reason for affording protection to the

Respondents and to other Judges of the

Michigan Court of Appeals that by their

participation in numerous other cases are

similarly situated.

There is another facet to Petitioner’s

Civil Rights claim that is of significant

importance, yet has received little

consideration of consequence by any of the

members of the judiciary acting in this case.

—

This part of Petitioner’s Civil Rights cause

concerns a practice of all panels of the

Michigan Court of Appeals wherein they receive

secret submissions suggesting a result prior

to consideration. This practice of receiving

secret submissions is well known; it was the

theme of a best selling novel written by the

late United States Administrative Law Judge,

William J. Coughlin, Death Penalty,

HarperCollinsPublishers, 1992. It is a veiled

account of the occurrence of the deals of

Michigan Court of Appeals Judge Jerome Bronson

who died by his own hand after being charged

with attempting to sell the report and his

influence to a lawyer whose client had a

substantial tort judgement against a very

collectible defendant that was bing reviewed

by the Michigan Court of Appeals. Similar

alleged conduct by Judge Richard Maher is the

likely cause of his premature retirement to

avoid proceedings before the Michigan Judicial

Commission, such conduct being cause in

disbarment proceedings for this judge and a

practicing lawyer.

The pre-hearing procedures of the

Michigan Court of Appeals are flagrantly in

violation of the holding of this Court in the

Morgan Cases; Morgan v United States 298 U.S.

468 (1936); 304 U.S. 1 (1938) and the Michigan

Supreme Court, Dation v Ford Motor Co,, 314

Mich 152 (1946). The Michigan Supreme Court

accepted the question of the lack of

Constitutional rights observances by the

Michigan Court of Appeals in the case of

Williams v Grossman, lv grt. 399 Mich 888

(1977) but failed to consider the issue while

giving the Plaintiff-Appellant a cause of

action against the Defendant-Appellee that had

been denied below; on a basis for which there

had no contention made in any forum in that

case, Williams v Grossman, 409 Mich 67 (1980).

Thus the Michigan Supreme Court, Sua sponte,

created new law regarding limitations of

action in decedents’ estates giving the

litigant who raised the issue of the

Constitutionality of Michigan Court of Appeals

pre-hearing procedures a victory, but failing

to decide whether the Michigan Court of

Appeals pre-hearing procedures can stand

Constitutional muster as determined in the

Morgan cases. supra and Dation v Ford Motor

Co... Supra.

It is to be noted that all of the

determinations of the Michigan Court of

Appeals which we complain are unpublished and

all of the decisions of the United States

Court of Appeals of which we complain are

Sunk

unpublished.

There was a time, not too long ago, when

concerns regarding the volume and expense of

printed material was a valid reason for

limiting publication of some appellate

decisions. That use of unpublished decisions

kept some decisions from public scrutiny was a

necessary evil.

Now, when a large computer manufacturer

regularly displays in its television

advertisements a conversation of an Iberian

scholar with a friend that with computer

equipment he now has access to all of the

contents of the library of Indiana University

the need to suffer the evil of absence of

public scrutiny is no longer necessary.

The use of unpublished appellate

decisions sends a message from the decision

makers. A view of the standards for

publication for the United States Court of

Appeals for the Sixth Circuit, United States

Court of Appeals Rules--Sixth Circuit, Rule

24(a), Supra, and the Michigan Court of

Appeals, Michigan Court Rules of 1985, Rule

res (B); 2 MER i e215 (B), Supra, are

significantly different in content. Sixth

Circuit Rule 24(a) leaves publication to the

discretion of the deciding panel. Michigan

Court Rules have strict standards, but

applying the seven expressed standards is a

direction the Michigan Court of Appeals

totally ignores for each of the seven express

standards would require publication of the

Michigan Court of Appeais opinion in this

case.

When viewed by the practice in this case

the standards of publication applied are

essentially the same--We keep it from public

scrutiny if that’s the way we feel about > 4

Almost inherent in an opinion being

withheld from publication is a tacit message

that this case is trivial. There is nothing

trivial regarding the integrity of the

judiciary. This case is not trivial. It is

vital to the protection of the rights of an

injured workman, who, to this point, has had

his fair entitlement to proper compensation

weekly benefits thwarted by unconstitutional

acts of the Michigan Court of Appeals and his

being so deprived is but one example among

scores of other similar situations.

Here, the message which is being sent by

the unpublished opinions is more than this

case is trivial. By giving the appellate

opinion the appearance of triviality the

message is also that those who chose non-

publication want to have their actions to

continue to be hidden from public scrutiny.

This court has rule making power that can

give public scrutiny to all opinions of the

federal appellate courts without unduly adding

to the volume and expense of printed material.

Require that all federal appellate court

opinions be published to be retrievable by

computer and let printed publication standards

remain the same. Westlaw and Lexis should be

co-operative in this regard. While such

action would have no direct effect upon

publication of state appellate court opinions,

such action would be instructive and

influential.

There are three Respondents who wish this

Court to issue a simple denial of the writ of

certiorari to keep their acts from public

scrutiny. There are fourteen United States

Court of Appeals Judges, a Senior Circuit

Judge, and a District Judge who wish to keep

their acts from public scrutiny. There are

twenty-one appellate judges who have furtively

slipped a dagger into the vitals of equality

who wish a denial of certiorari to occupy one

line under the title of this case in the

United States Supreme Court Reports.

E tu Rehnquist? Stevens? 0’ Connor?

Scalia? Kennedy? Souter? Thomas? Ginsburg?

Breyer?

RELIEF

WHEREFORE, Petitioner prays that a writ

of certiorari issue directed to the United

States Court of Appeals for the Sixth Circuit.

Respectfully submitted,

E. R. WHINHAM

Attorney for Petitioner

9541 W. Gulf Blvd. No. 1

Treasure Island, FL 33706

(813) 367-9021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.