Superintending Control Response 7

THE GRIEVANCE ADMINISTRATOR ABUSED HIS DISCRETION IN FAILING TO FULLY AND PROPERLY INVESTIGATE ALL ASPECTS OF PLAINTIFF’S COMPLAINT: FACTS: Plaintiff filed his request for investigation, pursuant to the Rules of the AGC on or about June 25, 2007 alleging numerous instances of misconduct by the three (3) attorneys referenced therein. Specifically, Plaintiff’s Request for Investigation centered on “(1) for violation of the Michigan Rules of Professional Conduct and (2) the perpetration of a “fraud upon the court” (See Exhibit “C” of the Complaint for Superintending Control, which is incorporated herein by reference). Further, Plaintiff’s Request for Investigation set forth specific portions of the Michigan Rules of Professional Conduct which the misconduct of the respondent attorneys had violated; MPRC 3.1,3.3(a)(1),(2),(4)(b);3.4(a),(b),(d),(e),(f)(1) and(2), 3.5(a) and (b). The AGC Administrator makes no mention, whatsoever, of the results, if any be had, to the allegations contained in the Request for Investigation relative to the numerous violations of the MRPC.

1

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL

STATUTE OF LIMITATIONS CRIMINAL PROSECUTION: The AGC Administrator, in its response to this Court, seemed to limit its investigation to the sole issue of whether or not AG COX and Assistant AG WEILER, were aware that the statute of limitations had expired prior to the initiation of the criminal prosecution. (See Pg 2 of AGC Argument, foot note 1). It should be noted here, that Plaintiff provided “proof” that the AG and his Assistant were aware of the statute of limitations issue as early as October, 2000 by way of the transcript from a hearing before Judge Duncan Beagle where the FOC Attorney referenced the issue in “open court” (See Exhibit “G” of the Complaint for Superintending Control and is incorporated herein by reference). In reality, the statute of limitations for criminal prosecution of this Plaintiff for a failure to pay child support had already expired before the October 20, 2000 Court Hearing referenced in Exhibit “G”, supra. MCL 767.24(5) is the statute that imposes a six year limitations period for the prosecution of a violation of MCL 750.165 from the eighteenth birthday of the minor child. People v. Monaco, 474 Mich. 48, 710 NW2d 46 (2006).

2

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL

Plaintiff’s minor child emancipated on July 30, 1994, the six year period to initiate a prosecution of the Plaintiff expired in July, 2000. Statutes of limitations are statutes of repose representing a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” U.S. Kubrick, 44 U.S. 111 (1979). The Administrator’s position, that this Court’s determination in People v. Monaco, , id, (2006) finally decided the statute of limitations issue is flawed. In reality, this Court’s decision did not alter the Court of Appeals rationale on the question of the application of the statute of limitations but rather, overruled the holding of People v. Westman, 262 Mich. App. 184 (2004), to the effect that violations of MCL 750.165 were “continuing offenses”. Additionally, this Court held that carrying an arrearage did not violate MCL 750.165 as amended. People v. Monaco, id. As such, for the AGC Administrator to assert that his discretion was not abused by failing to investigate the misconduct of the Attorney General and his Assistant, on this allegation, is itself, an abuse of discretion as it “exceeds the bounds of reason, considering all the circumstances”. Yeap v. Leake, 60 Cal. App. 4th 591, 70 Cal.Rptr 2d 680 (1997). 3

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL

THE FRAUD UPON THE COURT: In addition to the foregoing, Plaintiff’s Request for Investigation, set forth specific facts relative to the manner in which the “fraud upon the court” was perpetrated by the offending attorneys’ misconduct, to wit, “[t]hese same attorneys perpetrated a “fraud upon the court” by alleging in the initial and amended indictment that a Court Order purportedly ordered the undersigned to pay support for his child (who was then fully emancipated) during the period of 05/03 thru 01/05 . . . In reality, no such Court Order existed and attorneys WEILER, COX and BARKEY were fully aware of this fact prior to the initiation of the criminal prosecution of the undersigned.” See Plaintiff’s Request for Investigation, Set forth in full at Exhibit “C” of the Complaint for Superintending Control also See Exhibit “H” of the Complaint for Superintending Control for the Indictments). No such Court Order existed and all three (3) of the attorneys complained of herein, knew that when they lied to the Court and perjured themselves to initiate a constitutionally impermissible criminal prosecution of an innocent citizen in violation of the 4th Amendment, U.S. Constitution; 5th Amendment, U.S. Constitution, 14th Amendment, U.S. Constitution, People v. Monaco, id.

4

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL

In addition, the misconduct of the complained of attorneys violated the provisions of the Elliott-Larsen Civil Rights Act, MCL 37.2302, et seq, by substantially and illegally interfering with the “public services” rendered to Plaintiff. Plaintiff was not “free” to walk away from the authority that the ATTORNEY GENERAL and his ASSISTANT ATTORNEY GENERAL had illegally exercised over him through the institution of felony criminal proceedings premised on an indictment they knew to be false. Diamond v. Witherspoon, 265 Mich.App. 673, 696 N.W.2d 770 (2005). The misconduct of the offending attorneys complained of herein also had the net effect of creating a hostile or offensive public services environment causing additional violations of MCL 37.2302, et seq. And, they also denied Plaintiff the full and equal utilization of public services in further violation of MCL 37.2302. All of the foregoing was premised on Plaintiff’s race and his religion in contravention of MCL 37.2302, et seq. This violates MRPC 3.1 as there was never a “meritorious claim” to be raised against the Plaintiff herein. In addition, MRPC 3.3 is violated because these attorneys (1) made materially false statements of fact to the tribunal, they also (2) failed to disclose a material fact to the tribunal when it became necessary to avoid assisting a criminal or fraudulent act, (4) they also offered evidence which they knew to be false and further failed to take 5

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL

remedial measures. The foregoing misconduct also violates MRPC 3.4 (a), (b), (d) (e) and (f). The failure of the AGC Administrator to fully and fairly investigate that particular allegation is an abuse of discretion because “there was no justification or excuse for the ruling made” Alken-Ziegler v. Waterbury Headers, 419 Mich. 219 (1999); and “resulted in a clearly untenable ruling that unfairly deprives a litigant of a substantial right and a just result”, Burke v. Harman, 6 Neb.App. 309, 574 N.W.2d 156 (1998). The AGC refusal or failure to properly investigate Plaintiff’s complaints, “exceeds the bounds of reason, considering all the circumstances”. Yeap v. Leake, 60 Cal. App. 4th 591, 70 Cal.Rptr 2d 680 (1997). EX POST FACTO VIOLATIONS: The only “Order” actually admitted into evidence in the underlying criminal case was the 1978 Order, which, by its own terms, expired in July, 1994. Yet, the offending attorneys, ATTORNEY GENERAL COX and ASSISTANT ATTORNEY GENERAL WEILER, decided to prosecute Plaintiff under the amendments to MCL 750.165. The Statute under which Plaintiff was prosecuted was amended by the Michigan Legislature and those changes took effect in November, 1999, see MCLA 750.165. 6

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL

The problem emerges however, in the application of the 1999 modifications to Plaintiff. The 1978 Court Order regarding support for his minor child expired, by its own terms in July, 1994. This was a full five (5) years prior to the enactment of the legislative changes. No part of the 1978 Order was in effect at the time of the 1999 modifications. People v. Westman, 262 Mich.App. 184, 685 NW2d 423 (2004). As such, Plaintiff could not, constitutionally speaking, be subjected to the pains and punishments contained in the 1999 amendments because his alleged conduct (1) was committed prior to the effective date of the statute’s amendments and (2) his conduct was innocent when committed. People v. Callon, 256 Mich.App. 312, 662 NW2d 501 (2003), People v. Haynes, 256 Mich.App. 341, 664 NW2d 225 (2003). STATUTE OF LIMITATIONS HAD EXPIRED ON COLLECTION: The version of the MCL 600.5809 that would have been applicable to the Plaintiff was the version in effect in 1994. Rzadkowolski v. Pefley, 237 Mich. App. 405, 603 N.W.2d 646 (1999). Under that provision, the ten year period of limitations begins to run against each payment when that payment became due, see MCL 600.5809(3). Chase v. Sabin, 445 Mich. 190, 516 NW2d 60 (1994).

7

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL

Under the foregoing analysis, there was nothing owing under the 1978 Order of support that was collectable by the defendants. UTILIZATION OF EX POST FACTO JUDICIAL DECISIONS VIOLATES DUE PROCESS ATTORNEY GENERAL COX, and ASSISTANT ATTORNEY GENERAL WEILER, made a conscious decision to mislead the tribunal by arguing that certain Michigan Court of Appeals cases, all of which were rendered in 2004, contained the appropriate standard for the trial Court to review Plaintiff’s motions to dismiss against. However, utilization of judicial decisions, that are entered after the conduct had long since happened, constitutes a due process violation which prohibits utilization of judicial ex post facto decisions. Bouie v. City of Columbia, 378 U.S. 347 (1964). This misconduct violates MRPC 3.3(1) because they knowingly made false statements of material fact to the Court; and (2) they failed to disclose a material fact when disclosure was necessary to avoid a criminal or fraudulent act; they also (4) offered evidence that the lawyer knew to be false. Further, this misconduct violates MRPC 3.2 as these lawyers knew that they did not have a “meritorious claim or contention”.

8

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL

DISCUSSION: The failure of the AGC Administrator to fully and fairly investigate those particular allegations constitute an abuse of discretion because “there was no justification or excuse for the ruling made” Alken-Ziegler v. Waterbury Headers, 419 Mich 219 (1999). The failure of the AGC Administrator to fully and fairly investigate all allegations raised in the Request for Investigation has resulted in a clearly untenable ruling that unfairly deprived this litigant of a substantial right and a just result, Burke v. Harman, 6 Neb.App. 309, 574 N.W.2d 156 (1998). Further, the AGC Administrator’s refusal or failure to properly investigate all aspects of the Request for Investigation ‘exceeds the bounds of reason, considering all the circumstances’. Yeap v. Leake, 60 Cal. App. 4th 591, 70 Cal.Rptr 2d 680 (1997). The end result of the AGC Administrator’s actions in this instance, based on the reasons given by the Administrator to justify its position was “clearly untenable, legally incorrect, or amount to a denial of justice; a ruling that reaches an end or purpose not justified by, and clearly against, reason and evidence.” State v. Garza, 192 Ariz 171, 962 P.2d 898 (1998). In the foregoing instance, the AGC Administrator clearly “abused his discretion” as the refusal to fully and fairly investigate the well documented 9

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL

allegations of misconduct are so “palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias….” Spalding v. Spalding, 355 Mich. 337, 94 N.W.2d 810 (1959). 2. HAS THE ADMINISTRATOR, BY FAILING TO ANSWER OR OTHERWISE RESPOND, TO THE ALLEGATIONS CONTAINED IN PARAGRAPH 11 OF THE COMPLAINT FOR SUPERINTENDING CONTROL, ADMITTED, THE TRUTH OF THE ALLEGATIONS CONTAINED THEREIN? FACTS: Plaintiff filed his Complaint for Superintending Control on the Defendant Administrator and the AGC Administrator filed his Answer and Brief in Support of same in this Court on or about January 30, 2008. The Defendant, failed to answer or otherwise respond to paragraph 11 of the Complaint for Superintending Control. POINTS & AUTHORITIES: MCR 2.111 (E) provides in pertinent part that; “[a]llegations in a pleading that requires a responsive pleading, other than allegations of damage or the nature of the relief demanded, are admitted, if not denied in the responsive pleading.” See, generally, Daul v. Meckus, 897 F.Supp. 606 (1995).

10 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL

DISCUSSION: As a result of the Defendant’s failure to answer or otherwise respond to the allegations contained in paragraph 11 of the Plaintiff’s Complaint for Superintending Control, the assertions contained therein are deemed admitted for purposes of these proceedings, MCR 2.111(E). CONCLUSION: The AGC Administrator abused his discretion in failing and/or refusing to fully and fairly investigate the documented instances of misconduct contained in the Plaintiff’s Request for Investigation. Plaintiff prays this Supreme Court enter its ORDER requiring, directing and/or compelling, the AGC Administrator to conduct a full, fair and impartial investigation into all properly pled and documented allegations of misconduct against ATTORNEY GENERAL COX and ASSISTANT ATTORNEY GENERAL WEILER and to proceed against them according to law and the Rules of Procedure associated with same with respect to the evidence adduced thereby. Leitman v. State Bar Greivance Bd., 387 Mich. 596 (1972). Further, Plaintiff prays this Court appoint a Special Master to investigate the allegations contained in paragraph 11 of the Complaint for Superintending Control, which the Administrator has admitted by its failure to offer any response in its Answer, see MCR 2.111(E). 11 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL

DATED this 17th Day of February, 2008.

Respectfully submitted, _____________________ Robert R. Parker, Jr., LL.B. 195 Morton Walk Drive Alpharetta, Georgia 30022 213 798 8095 [email protected]

12 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S ANSWER AND BRIEF REGARDING THE COMPLAINT FOR SUPERINTENDING CONTROL