Petition for Writ of Certiorari — Duncan v. Cobb

CASE NO.: ___ , GS

SUPREME COURT OF THE UNITED STATES

OCTOBER, 1992 TERM

; CARL J. DUNCAN,

Plaintiff,

Vv.

WARREN H. COBB,

JACQUELINE R. GRIFFIN,

CHARLES M. HARRIS,

EARLE W. PETERSON, JR.,

and WINIFRED J. SHARP,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

CARL J. DUNCAN

Pro Se

459 Inkwood Lane

Tallahassee, FL 32310

(904) 674-5901, ext 172

QUESTIONS FOR REVIEW

On a motion to dismiss pursuant to Rule 12(b)(1), Fed.R.Civ.P.,

may a federal district court contrary to law deny due process and

equal protection in order to grant an improper and illegal affirma-

tive defense?

May the affirmative defense that district courts are barred to

review final state court decisions be premised on known and

admitted null and void non-final state court orders?

Does the affirmative defense that a federal district court is barred

to review final state court decisions bar the district court from

viewing the record(s) of state court actions to see if the decisions

are valid and final in order to determine its own jurisdiction?

May a federal district court seek grounds to deny the jurisdiction

vested in it by Acts of Congress in order to keep from hearing and

determining an action Congress ordered it to determine but over

which the district court seemingly has no desire to conduct?

May a federal court of appeals sanction a departure from the

usual course of judicial proceedings and a departure from the

essential requirements of law, the results(s) of which inflict

irreparable harm on the injured party?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW ............

STATEMENT OF PARTIES AND CORPORATE

DISCLOSURE STATEMENT! .............0e0e0ees i

TABLE OF CONTENTS .......000scsceccevcecvss i

TABLE OF AUTHORITIES ...............000 e000 iv

REFERENCE TO OFFICIAL AND UNOFFICIAL

REPORTS OF OTHER COURTS .............0.000- 1

JURISDICTIONAL STATEMENT .............00-. 1

LROAL AUTHORITIES... (0..<sses eee 2

PRELIMINARY STATEMENT ..............0-000. 5

STATEMENT OF THE CASE ............-0-0e0ee- 5

AMTOMENT 2... 0.05. 000 eee »

APPUMEEK ....<06555i «00930 12

1. |. MANDATE, Duncan y. Cobb, et al.,

989 F.2d 1198 (llth Cir. 1993) ...........0 00. 13

» ORDER, Duncan v. Cobb, et al.,

Case No.: 92-139-CIV-ORL-92 (unpublished) .... 14

' All parties are listed in the citation on the cover. There are

no interested corporations or subsidiaries.

ii

Endorsed Order Denying Rehearing Duncan y.

Cobb, et al., Case NO. 92-139-CIV-ORL ........ 16

ORDER Duncan y. Duncan

Case No. 89-12080-FD-D (18th Jud. Cir., Fla.) .... 17

ORDER OF DISMISSAL, Duncan vy. Duncan

Case No. 89-12080-FD-D (18th Jud. Cir., Fla.) .... 19

MOTION TO DISMISS, Duncan y. Cobb, et al.

ee

Case No.: 92-139-CIV-ORL-19 ............... 21

Act of Dec. 29, 1979, Pub. L. 96-170, s. 2, 93

Stat. 1284, U.S.C., Title 28, s. 1343(a) .......... 29

ili

TABLE OF AUTHORITIES

CASES PAGE(S)

Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691,

reg@ & {| Ff: -: Serer ere eer 8, 9, 11

Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct 1116,

56 Ee EE fc ns oka eae ees haben a enews 10

Elliott v. Piersol, 1 Pet. 328, 7 L.Ed. 164, (1828) ......... 4G

Hoffman v. Jones, 280 So.2d 431 (Fla. 1975) ............ 7

Hughes v. Rowe, 449 U.S. 668, 101 S.Ct. 173, 66 L.Ed.2d

PPP eee Teer CRT Eee Tee eee 9

McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct.

BGR Dee Re SE CE ob kk vec e aa cd asd ngheaes 10

Miller v. Fortune Insurance Co.

ew Be eG err ee 7

Peoples Natural Gas Co. v. Federal Power Comm., 127 F.2d

153, 75 U.S. App. DC 235 (1942), cert. den., 316 U.S. 700,

GRD Ba: ee ee Ne ob bi cn 0 SSE Ree SOx G

Polk Co. v. Glover, 305 U.S. 5, 59 S.Ct. 15, 83 L.Ed. 6,

to Pere eee TT ee ee eee ry ere eee 8

Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683,

ee Rh ee ee ee re ee 8

Smart v. Jones, 530 F.2d 64 (Sth Cir. (1976), reh. den.,

$32 F.2d 1375, cert. den., 429 U.S. 887, 97 S.Ct. 240,

50 L.Ed.2d 168, reh. den., 429 U.S. 1125, 97 S.Ct. 1166,

em + bs Peer eT Ter eee eT ore ee eee re 10

iV

Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 381, (1829) ...... Q

OTHER AUTHORITIES

ee | 10

Amendment 14 Section 1, U.S. Const. ................ 10

og Se Rk Be re re rere 11

oe ee 10

oe eR ee re eee 10

oe A eee 11

oe ge A ree 11

cg ee ee 11

PU MRIS oe ccc eck ce cess cdeneesd caves 7

FE SO PUOONNIES 6 kbc ke rtdewesesntenrantene 7

CO 6 hk 6 a6 Whew ans wae bee ewe OS 11

Ee I I 6 0 ee eek aN een wk oe 6 oe mcew se 11

Title 28, United States Code, Section 1331 ............. 11

Title 28, United States Code, Section 1343 ............. 11

Title 42, United States Code, Sections 1983 ............ 11

Title 42, United States Code, Sections 1985 ............ 11

REFERENCE TO OFFICIAL AND

UNOFFICIAL REPORTS OF OTHER COURTS

Duncan v. Duncan, Case No. 89-12080-FD-D,

Eighteenth Judicial Circuit (Brevard County, Florida)

ORDER dated May 23, 1990

Duncan v. Duncan, Case No. 89-12080-FD-D

Eighteenth Judicial Circuit (Brevard County, Florida)

ORDER OF DISMISSAL dated March 29, 1991

Duncan v. Duncan

571 So.2d 482 (Fla. 5th DCA 1990)

Duncan v. Cowan,

584 So.2d 997 (Fla. 1991)

Duncan v. Duncan

590 So.2d 427 (Fia. 5th DCA 1991)

Duncan v. Cobb, et al.,

92-139-CIV-ORL-19 (unpublished order)

JURISDICTIONAL STATEMENT

The "PER CURIAM: AFFIRMED" without opinion order of the

United States Circuit Court of Appeals for the Eleventh Circuit was

entered April 2, 1993. There was no motion for rehearing. This

Court has jurisdiction pursuant to the Act of June 27, 1988, Public

Law 100-352, 102 Statute 662, United States Code, Title 28,

Section 1254(1).

‘LEGAL AUTHORITIES INVOLVED

"The Congress shall have power: * * * To constitute tribunals

inferior to the Supreme Court." Art. I S. 8.(9), U.S. Const.

"The Congress shall have power * * * To make mules for the

government...." Art. I S. 8.(14), U.S. Const.

"The Congress shall have power * * * To make all laws which

Shall be necessary and proper for carrying into execution the

foregoing powers, and all other powers vested by this Constitution

in the Government of the United States, or in any department or

officer thereof." Art. I S. 8.(18), U.S. Const.

"The judicial power of the United States, shall be vested in one

Supreme Court, and in such inferior courts as the Congress may

from time to time ordain and establish." Art. III S. 1, U.S. Const.

"The judicial power shall extend to all cases, in law and equity,

arising under this Constitution, and laws of the United States... ."

Art. III S. 2.(1), U.S. Const.

“In all cases ... in which a State shall be party, the Supreme

Court shall have original jurisdiction. In all other cases before

mentioned, the Supreme Court shall have appellate jurisdiction,

both as to law and fact, with such exception, and under such

regulations as the Congress shall make." Art. III S. 2.(2), U.S.

Const.

“This Constitution, and the laws of the United States which shall

be made in pursuance thereof ... shall be the supreme law of the

land; and the judges in every State shall be bound thereby... ." Art.

VI(2), U.S. Const.

"Congress shall make no law ... abridging ... the right of the

people ... to petition the Government for a redress of grievances."

Amend. 1, U.S. Const.

"All persons bom 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."

Amend. 14 S. 1, U.S. Const.

"The district courts shall have original jurisdiction of all civil

actions arising under the Constitution, laws ... of the United

States." Act of Dec. 1, 1980, Pub. L. 96-486, S. 2(a), 94 Stat. 143,

U.S.C., Title 28, s. 1331.

Act of Dec. 29, 1979, Pub. L. 96-170, s. 2, 93 Stat. 1284, U.S.C.,

Title 28, s. 1343. (See Appendix)

"Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State ... 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." Act of Dec. 29, 1979, Pub. L. 96-

170, 93 Stat. 1284, U.S.C., Title 42, s. 1983.

"{I]f two or more persons conspire for the purpose of impeding,

hindering, obstructing, or defeating, in any manner, the due course

of justice in any State ... with intent to deny to any citizen the

equal protection of the laws, or to injure him or his property for

lawfully enforcing, or attempting to enforce, the right of any person

... to the equal protection of the laws;

"If two or more persons in any State ... conspire ... for the

purpose of depriving, either directly or indirectly, any person ... of

the equal protection of the laws, or of equal privileges and

immunities under the laws; ... in any case of conspiracy set forth

a

in this section, if one or more persons engaged therein do, or cause

to be done, any act in furtherance of the object of such conspiracy,

whereby another is injured in his person or property, or deprived

of having and exercising any right or privilege of a citizen of the

United States, the party so injured or deprived may have an action

for the recovery or deprivation, against any one or more of the

conspirators." Act of 1979, Pub. L. 96-170, 93 Stat. 1284, U.S.C.,

Title 42, s. 1985(2)&(3).

PRELIMINARY STATEMENT

The petitioner is referred to as C. DUNCAN or the plaintiff and

the respondents as the defendants. This is consistent with their

designations in the district and circuit courts.

STATEMENT OF THE CASE

On February 11, 1992 C. DUNCAN, plaintiff, non-attomey pro

se, filed in the United States District Court for the Middle District

of Florida, Orlando Division a complaint against five judges of the

Florida Fifth District Court of Appeal seeking mandatory injunctive

relief for civil rights violations under the authority of the Act of

1871, Public Law 96-170, 93 Statute 1284, United States Codes,

Title 42, Sections 1983 and/or 1985.

The plaintiff contended that the defendants refused to issue valid

judgments and were denying his civil rights by issuing non-final

null and void orders in violation of law. He stated numerous

reasons. The defendants did not file an answer but did move for

dismissal on grounds of judicial immunity, Eleventh Amendment

Bar and lack of subject matter in that a federal district court is

barred to review final decisions of state courts. (APPENDIX 6).

The plaintiff opposed the motion to dismiss and filed motions for

separate trials and for a default on grounds that the defendants were

challenging the court’s authority to hear the action under Section

1983 but raised no objection to Section 1985 nor did they defend

or answer that authority. The plaintiff also moved for an evident-

iary hearing. The defendants did oppose the first two motions.

The district court denied the defenses of judicial immunity and

Eleventh Amendment Bar but granted the defense of lack of subject

matter jurisdiction on grounds it cannot review final state court

decisions. (APPENDIX 2). The plaintiff moved for rehearing

which was denied. (APPENDIX 3). The plaintiff then appealed.

On appeal the plaintiff noted that the defendants and the court by

law must take as truth all averments of the complaint; that the trial

court judge could not accept citations in West’s Florida Cases as

better evidence than the original or verified, conformed copy

iain

thereof pursuant to law; that citations in West’s Florida Cases does

not give validity to null and void decisions; that the lower court is

barred by the United States Supreme Court to enforce null and void

orders or judgments; that a motion to dismiss is by law limited to

the four-comers of the complaint and may not be extended to

unwarranted affirmative defenses or the introduction of extemal

evidence; that the plaintiff is entitled to an evidentiary hearing to

defend against an affirmative defense if he asks for it; and that the

court could not refuse to hear an action authorized by an Act of

Congress.

The defendants argued that the district court did not err by

dismissing the action for the reasons stated in the order. The

appellate court affirmed the lower court’s decision. (APPENDIX

1).

ARGUMENT

The plaintiff seeks certiorari of the decision of the United States

Eleventh Circuit Court of Appeals (APPENDIX 1) on grounds the

circuit court has authorized a district court to veer from the

accepted and usual course of judicial proceedings to an extent as to

constitute a departure from the essential requirements of law thus

denying due process, equal protection and other privileges and

immunities guzranteed to the plaintiff which has resulted in

irreparable harm if not redressed; and because the decisions of both

the district and circuit courts are in conflict with law and prece-

dence of the Supreme Court of the United States.

As noted in the complaint, the defendants knew at the time the

initial brief was filed in Duncan v. Duncan, 571 So.2d 482 (Fla.

Sth DCA 1990) that when the petitioner in the original state court

action had attempted to enforce the "final judgment", C. Duncan

had beaten it back by proving the judgment was null and void ab

initio for want of subject matter jurisdiction and that the trial court

had estopped all further attempts to enforce the judgment by

declaring it satisfied notwithstanding it allowed withdrawal of the

motion for contempt. (APPENDIX 4). This the defendants also

knew because the state trial court judge later refused to vacate the

judgment since the defendants had illegally affirmed it but also

refused again to allow its enforcement because the trial court never

had subject matter jurisdiction. (APPENDIX 5). In Duncan v.

Duncan, 590 So.2d 427 (Fla. Sth DCA 1991) the defendants were

not only aware of all this but they were also aware that the Florida

Supreme Court had seen all this, agreed that the state trial court

judgment was null and void ab initio and the state trial court never

had jurisdiction, had authorized federal attack and why it had done

SO, was aware that pursuant to Miller v. Fortune Insurance Co., 484

So.2d 1221, 1224 (Fla. 1986) they were compelled to reverse the

lower court’s refusal to entertain a motion for relief and that

pursuant to Hoffman v. Jones, 280 So.2d 431 (Fla. 1975) this was

a mandatory ministerial duty and not a discretionary function.

From the foregoing, the preceding Statement of the Case, and the

orders of the district court (APPENDIX 2) and the circuit court

(APPENDIX 1), it should be quite clear as to what happened.

Since the defendants did not file an answer, they waived the right

to raise affirmative defenses and estopped themselves from so

doing. However, that is exactly what they did!

Affirmative defenses can only be raised when joined to and

included in a pleading. A motion is not a pleading! Rule 8(c),

Fed.R.Civ.P., says "In pleading to a preceding pleading, a party

shall set forth" the cited defenses "and any other matter constituting

an avoidance or affirmative defense." On the other had Rule 12(b),

Fed.R.Civ.P., clearly allows for the filing of any one or more

specifically stated defenses in a responsive motion in lieu of an

answer, but such is limited specifically to those enumerated

defenses.

A look at the defendants’ motion to dismiss filed in the district

court shows that it contains three affirmative defenses and no

defenses cited under Rule 12(b). (APPENDIX 6). The defenses

cited in numbered paragraphs one and three are on their faces

affirmative defenses of judicial immunity and Eleventh Amendment

Bar. However, the district court’s order says that the plaintiff

defeated these on the merits in that it specifically denies the

defense of judicial immunity and implies denial of the defense of

Eleventh Amendment bar by omission of any verbiage granting it.

This was not appealed by the defendants or the plaintiff and is now

moot. (APPENDIX 2).

What the district court erroneously granted and the circuit court

affirmed was paragraph 2 of the defendants motion to dismiss

which in fact is the affirmative defense of bar to review a final

state court decision but which was deceptively labelled as "lack of

subject matter jurisdiction" with the apparent intent to mislead the

courts.

This Court in Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7

L.Ed.2d 663 (1962) defined lack of subject matter jurisdiction. It

said that in determining such the court must find that none of the

following criteria apply: (1) the cause is not one arising under the

Federal Constitution, laws or treaties; (2) the complaint shows that

it is not a "Case or controversy” within the meaning of the laws as

stated in question number one; and, (3) the cause is not described

by any jurisdictional statute. That IS the controlling test!

In Baker, U.S. at 199 the court said,

Dismissal of the complaint upon the ground of lack

of jurisdiction of the subject would, therefore, be

justified only if that claim were "so attenuated and

unsufficient as to be absolutely devoid of merit,”

Newburyport Water Co. v. Newburyport, 193 U.S.

561, 576, or "frivolous", Bell v. Hood, 327 U.S. 678,

683. That the claim is unsubstantiated must be "very

plain,” Hart v. Keith Vauderville Exchange, 262 U.S.

271, 274.

This is in accord with other rulings made by this Court on

motions to dismiss. In Polk Co. v. Glover, 305 U.S. 5, 9 - 19, 59

S.Ct. 15, 17 - 21, 83 L.Ed. 6, 10 - 16 (1938) this Court held that

a motion to dismiss must be denied if it asks the court to dispose

of fact raised by the pleadings in advance of trial in due course.

Surely due process was denied when the trial court granted validity

to state court decisions known to be null and void. In Scheuer v.

Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90

(1970) this Court held that on a motion to dismiss the judge accept

as truth the validity of the allegations of the complaint even if he

believes the plaintiff will not prevail at a trial on the merits. This

Court still held this true in Hughes v. Rowe, 449 U.S. 5, 10, 101

S.Ct. 173, 176, 66 L.Ed.2d 163, 170 (1980), citing Cruz v. Beto,

405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972).

In Peoples Natural Gas Co. v. Federal Power Comm., 127 F.2d

153, 157 supra, 75 U.S. App. DC 235 (1942), certiorari denied, 316

U.S. 700, 62 S.Ct. 1298, 86 L.Ed. 1769 the court held that where

there are multiple grounds for jurisdiction cited and the defendants

do not plead to, deny or challenge each and everyone of them, they

admit that the court has jurisdiction under those not challenged.

The rationale appears to be that if the court is given authority to

hear the merits, it will find that it does have jurisdiction.

In the matter before the district court, the defendants challenged

only 42 United States Code Section 1983 so ceded that the district

court has jurisdiction under 42 United States Code Section 1985.

Further, the defendants argued that the district court could not

review final state court decisions but did not argue the issues raised

in Baker v, Cart, Id. As such they did not challenge subject matter

jurisdiction but attacked the merits which they had already

conceded and admitted were true, to-wit: that the state district

court of appeal orders are null and void and non-final. As such

they admitted that there was no bar to the court’s jurisdiction. This

is consistent with federal precedence that null and void judgments

may not be enforced. Elliott v. Piersol, 1 Pet. 328, 340, 7 L.Ed.

164, 170 (1828); Thompson v. Tolmie, 2 Pet. 157, 161 & 167, 7

L.Ed. 381, 383 & 385 (1829). Granting a bar on null and void

judgments is a violation of law. Elliott v. Piersol, Id. This the

court must have found out for itself.

The defendants and the district court also appear to have felt that

when C. Duncan went to the Florida Supreme Court on a petition

for writ of mandamus in Duncan vy. Cowart, 584 So.2d 597 (Fla.

1991), such was an appeal notwithstanding that both Florida and

federal practice consider such to be a collateral attack. They also

argue that the refusal of the Florida Supreme Court to decide the

issue amounts to a ruling on the merits that the Florida Supreme

Court upholds subversion of the United States Constitution in that

it supports civil rights violations. This is a pretty heavy statement

and assumption for the district court to make and the circuit court

to uphold without first viewing the record and finding out for itself

when the plaintiff claims it is merely a sanction for federal

intervention; not to mention it is a ruling on the merits contrary to

the requirement that both the defendants and the district cour

admitted that the averments in the complaint were true. It is also

contrary to this Court’s constant rulings that actions under United

States Code, Title 42, Sections 1983 and 1985 are supplementary

to state court actions and refusal of a state court to decide an issue

thereunder amounts to a sanctioning for the federal district courts

to exercise their original jurisdiction. McNeese v. Board of

Education, 373 U.S. 668, 671 - 72, 83 S.Ct. 1433, 10 L.Ed.2d 622

(1963); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14

L.Ed.2d 22 (1965).

Here, again, are seen affirmative defenses to which the plaintiff

was entitled to present evidence to refute, particularly when he

timely requested it. The plaintiff submits that failure to stick to

usual procedure and failure to grant an evidentiary hearing are a

violation of due process and equal protection. This Court upheld

such in Smart v. Jones,530 F.2d. 64, 65 (Sth Cir. 1976), rehearing

denied, 532 F.2d 1375, 1376, certiorari denied, 429 U.S. 887, 97

S.Ct. 240, 50 L.Ed.2d 168, rehearing denied, 429 U.S. 1125, 97

S.Ct. 1166, 51 L.Ed.2d 576 where it was determined that during

preliminary proceedings it is proper to allow viewing of state court

records "as a means of eliminating possible fact issues."

The plaintiff submits that in both this matter and the action in the

district court he is entitled to a hearing or trial on the merits.

Amendment 1 of the Constitution of the United States says,

"Congress shall make no law ... abridging ... the right of the

people ... to petition the Government for a redress of grievance."

which implies that the petition must be tried on the merits. Such

is based in law in that it is Congress and Congress alone which has

the power to make all laws necessary to carry out the provision of

the Constitution. Art. I S. 8(18). That even applies to court rules:

"The Congress shall have power * * * To make mules for the

government... .". Art. I S. 8(14), U.S. Const.

Thus when Amendment 14 Section 1 of the United States

Constitution grants specific rights such as in the privileges and

10

immunities clause, the due process clause, and the equal protection

clause those rights may not be abridged. To enforce those rights

Congress enacted Title 42, United States Code, Sections 1983 and

1985 and it gave the district courts original jurisdiction to hear

actions pursuant to Title 28, United States Code, Section 1331 and

1343.

Further, it is Congress who constituted the tribunals inferior to

the Supreme Court. Art. I S. 8(9), U.S. Const. And the judicial

power is vested both in those inferior courts and the Supreme

Court. Art. II S. 1, U.S. Const. The Constitution and the federal

law are the supreme law of the land and no state judge may violate

it. Art. VI(2), U.S. Const. This Court is in like accord because in

Baker at U.S. 200 the court held that violation of a part of the

Federal law or Constitution does provide federal jurisdiction to a

district court as "defined in Art. III, S. 2, and so within the power

of Congress to assign to the jurisdiction of the District Courts."

For these reasons the plaintiff submits that pursuant to Supreme

Court Rule 16.1 this Court should summarily reverse on the merits

the order of the United States Court of Appeals and remand with

instructions to order the district court to reinstate the case and

proceed with the issues; alternatively, that pursuant to Supreme

Court Rule 16.2 this Court should grant certiorari to allow for

further development of these issues and a full determination on the

merits.

Respectfully submitted,

Cari J. Duncan

Pro Se

11