Appealing the Case
In response to the Appellee's brief, I filed this response. It details
my arguments and lays out my arguments in a manner that when this court
rules against me, (I'm a pessimist), that I can move it up to the next
highest court, the United States Supreme Court.
I would love to get the chance to argue this case in front of the Supreme Court. Last time I was in Washington I sat for hours on the Supreme Court steps looking out over the capital. It was a hot summer day and I thought about taking my clothes off and skinny dipping in the fountian there and get arrested just for the hell of it. But I didn't.
Here's the text of my response:
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DISTRICT
CIVIL COMPLAINT
---------------
Marc Perkel - pro se )
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vs. ) No. 95-3398-CV-S-3
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Supreme Court of Missouri )
Disciplinary Counsel )
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Plaintiff:
Marc Perkel
411 North Sherman, Suite 300
Springfield Mo. 65802
417-866-1222 (office)
Use Email (fax)
marc@ctyme.com (electronic mail)
Defendant:
Supreme Court of Missouri
Office of the Chief Disciplinary Counsel
John E. Howe #22615
Carl Schaeperkoetter #30467 (Staff Counsel)
3335 American Ave.
Jefferson City Mo. 65109
573-635-7400 (voice)
573-635-2240 (fax)
RESPONSE TO APPELLEE'S BRIEF
============================
In the Appellee's arguments he admits, "The only right Mr. Perkel has is
the right to complain to the Defendant." What does he mean by the words,
"right to complain"? Since the State Bar is the only authority to hear
complaints it seems logical that the "right to complain" directly
implies the right to complain and have the complaint heard and
considered to see if the complaint merits action. If the "right to
complain" did not imply the right to have the complaint considered then
the "right to complain" would be meaningless.
The Appellee makes the argument that based on "Saier vs. State Bar of
Michigan" that the Disciplinary Counsel has the absolute right to refuse
to prosecute a complaint at it's own discretion. I do not argue this
point and accept that they may indeed have this right.
However, this case is very different from "Saier". In "Saier" the State
Bar considered the merits of his complaint and rejected it. In this case
the Disciplinary Counsel is refusing to consider the merits of my
complaint. I accept that the Disciplinary Counsel does not have the duty
to discipline in every case. But I do have the right to have my
complaint considered on its own merits.
The Appellee states that I admitted in my filing that I suffered no
actual or punitive damages. This isn't accurate. The fact that I haven't
asked the court to award me damages should not be construed to imply
that I was not damaged. In fact I have suffered severe damages which I
will demonstrate by example in this document. It is therefore my
position that the argument that I have no standing based on lack of
damages is not valid.
The Appellee admits (indirectly) that the status of my complaint is
pending and will eventually be acted on at the conclusion of my civil
litigation. It is my position that this isn't good enough. This "office
procedure" which this lawsuit asks the Federal Court to overturn in
effect gives lawyers and judges absolute immunity from disciplinary
action during the time a case is open no matter how grievous the
offenses these judges or lawyers offenses might be. There is no
precedent in law giving any other group of people these kinds of
superior rights. Neither the President of the United States nor members
of Congress enjoy the level of immunity given to judges and lawyers.
The United States Constitution creates three branches of government.
These are the Executive, Legislative, and Judicial branches. The
Judicial branch is responsible for the judicial processes against
individuals in all three branches including itself. Since the Judicial
branch is charged with the incestuous job of self policing and self
prosecution, and in recognizing this incestuous situation the
preamble of Supreme Court Rule 4 states as follows:
"The legal profession's relative autonomy carries with it special
responsibilities of self government. The profession has a
responsibility to assure that its regulations are conceived in the
public interest and not in furtherance of parochial or
self-interested concerns of the bar."
Clearly, this rule states that the interests of the public takes
precedence over the self-interested concerns of attorneys. It is my
position that this office procedure puts the self-interest of the bar
ahead of the interests of the citizens whom the court system is supposed
to serve, and therefore violates my civil rights.
It is also clear that the policy of granting lawyers and judges this
kind of immunity clearly violates both the spirit and letter of Rule
4 which I believe was written to specifically give citizens such as
myself the standing to bring a suit such as this one against the bar.
The Appellee sites the "Younger Doctrine" arguing that the Federal
Court doesn't have the jurisdiction to interfere with matters that are
to be handled by state agencies and that this case should be dismissed
on the basis of state sovereignty. I do not argue that the sate doesn't
have the right to handle it themselves. My complaint is that the state
is refusing to handle it. It is my contention that I have a right to
have my complaint heard and as determination made based on the merits of
my complaint and that my "right to complain" is being denied.
In the Appellee's brief he refers to "The fact that Mr. Perkel is
attempting to use the attorney discipline process as a hammer". This
statement speaks to the root cause that underlies this lawsuit. It
implies that he has already decided the case in favor of the attorneys
without hearing my arguments or evidence.
It is my position that perhaps the Disciplinary Counsel has prejudged
all cases filed against lawyers and judges while cases are still open.
It implies that they have decided that there is no possible valid reason
that could possibly occur where action against lawyers or judges should
be called into question while a case is still open. It is my position
that would be ridicules.
In most cases where lawyers or judges commit ethical violations, the
violation occurs during the time while the case is open. There seems to
be an assumption that the judge in the case would be in a position to
correct this ethical behavior. That in fact, because of this policy of
not acting while the case is open it becomes the sole responsibility of
judges to enforce the ethical behavior of lawyers and it becomes the
sole responsibility of higher judges to enforce the ethical behavior of
lower judges. A ruling in favor of the Appellee forces judges to do the
work that the Disciplinary Counsel was created to do and a decision by
the court in favor of the Appellee would saddle judges with
responsibilities they neither want nor are equipped to handle.
It seems to me reasonable to require the Disciplinary Counsel to be
required to have in place a procedure to handle the possibility that a
citizen might have a legitimate complaint that needs to be acted on by
the Disciplinary Counsel while a case is still open. To rule otherwise
is to imply that there could not exist a situation which would require
the enforcement of ethical rules during open cases.
The Appellee argues that my complaint is not being ignored and it is
merely suspended until such time that it becomes "ripe". Many court
cases can take years to resolve and can be extremely expensive. If
ethical violation were allowed to continue till the closing of the case,
a person like myself may be so damaged that I could no longer have the
resources to sustain a complaint. I may be irreversibly damaged by
ethical abuses that could be prevented if the Disciplinary Counsel acted
in a timely matter. This policy prevents timely action the Disciplinary
Counsel might use to prevent damages from unethical behavior but in fact
serves to protect unethical behavior at the expense of the public.
Proper ethics enforcement is a necessary part of the judicial system.
Without it lawyers and judges would be tempted to abuse their judicial
powers which would erode the credibility and integrity of the justice
system. Such erosion would be bad for the public as well as for judges
and lawyers.
EXAMPLE SITUATION - MY DIVORCE CASE
===================================
I'm going to explain what has actually happened to me. Since it is my
perspective and I'm biased, I'll submit this account as a hypothetical
example of what could occur and why the court should rule in my favor
and take action to correct this problem. Suppose for a moment and for
the purpose of argument that the following might be true:
In September of 1994 my wife filed for a divorce. In December we had a
separate maintenance hearing. The commissioner, Winston Davis, ordered
that I pay some maintenance, some attorneys fees, and that I give my
wife access to my business, Computer Tyme Inc. to use the computer
network and printing equipment in spite of the fact that at an earlier
date he had granted a restraining order to keep her out of Computer Tyme
Inc.
The reason she needed access to the equipment was that she wanted to
produce a brochure for an event called the "World Peace Meditation" for
which her lawyer, Bill Wear, was the key speaker. I was rather "amazed"
that a family court commissioner had the authority to order a corporation
to provide equipment and materials for the benefit of the petitioner's
attorney.
I told my attorney that I couldn't comply and that I wanted a hearing
where I could appear in person and testify. He advised me not to ask for
that because it would "piss off the judge". My wife's presence at the
business would have been highly disruptive and to give her access to the
company computer network would have been foolhardy. I fired my lawyer
and decided to represent myself.
When the file was turned over to me I noticed on the letterhead of my
wife's attorneys the name "Evelyn Gwin". I saw one of my wife's
attorney's the next day at the courthouse, Jim Sharp, and pointed out
that Evelyn Gwin had a client with a pending $100,000 lawsuit against
Computer Tyme Inc. and asked him if he knew that. He said he'd check
into it.
I followed it up with a letter pointing out the conflict. I got an angry
response from Bill Wear who immediately scheduled depositions for the
next week. Based on Rule 61.01a I filed my timely objections to the
discovery request. After the date of the depositions we had a hearing
about my failure to show up for depositions. Commissioner Scott Tinsley
made it very clear that he didn't like people representing themselves
pro se and ruled against me apparently out of spite to send me a message
that I'd better get a lawyer. For a commissioner to rule against someone
as a message to get a lawyer is not ethical.
But the abuses don't end there. I got the message that Tinsley seemed to
be sending and hired a lawyer. The next hearing was the separate
maintenance hearing in front of Commissioner Winston Davis. I figured that
by getting a lawyer that I had redeemed myself as a reasonable person in
the eyes of the court. Davis had privately told my lawyer how glad he
was that I was represented.
However, when the decision came down Mr. Davis gave my wife more money
than her lawyer requested and ordered me to pay the health insurance and
car insurance of her daughter who is not my child and who I never
adopted. The amount of money was more that 50% of my income. And this
was after she testified that she was a legal secretary, typed 115 words
a minute, had computer skills, and just chose not to work.
Around September of 1995 I ran out of money and decided I could no
longer afford a lawyer. I also knew that I sure didn't want to get
divorced in either Davis's or Tinsley's court. I managed to get both of
them to recuse themselves and ended up with the last family court judge
in Greene County, Judge McGuire.
Judge McGuire had been in the news quite a bit over the years because of
problems he had with drinking. I'd talked to quite a few lawyers about
Judge McGuire's drinking and they would say, "Well, he may get drunk at
night, but I've never seen him get drunk on the bench." There may be
people who believe that an alcoholic judge can get drunk in the evening
and in the morning have the ability to make decisions about the fate of
peoples lives, but I'm not one of them. However, he was the last judge
left.
Around that time the paper reported a story about him having an incident
where he allegedly got drunk and was shooting a gun through the walls
of his next door neighbors house. This incident apparently created some
serious public pressure and Judge McGuire decided to retire at the end
of the year, just 8 days before my divorce was to be heard.
After 6 weeks I got a notice that a visiting judge, Paul McGhee, was
appointed to hear the case. The first hearing in front of him was at a
time when I was going to be out of the area. I called him up and asked
if it could be rescheduled. He said that wouldn't be convenient and
suggested I hire a lawyer. About two weeks later I called him back and
told him I had hired a new lawyer. So I thought, finally, I might get
this case over with starting with a fresh lawyer and judge that didn't
already hate me.
Things seemed to go all right, had the trial in June. It lasted for 2
days. Then I waited 5 weeks for a decision. When I finally got the
decision it was absolutely beyond belief. I absolutely can't believe
that Missouri hires judges that are this incompetent! (See Attached
Copy of Judgement) Read the attached judgement now and then go on to the
next paragraph. The judgement speaks for itself. I'm not a lawyer and
I've never written a judgement and I can do better than that!
THE JUDGEMENT
=============
It orders me to give her more than 100% of my net worth. I'm to pay
$73,500 within 30 days and have no means to borrow the money. This
action forces me into bankruptcy! In the trial neither side presented
any evidence suggesting I had this kind of money.
Then, except for a calculation on my house, there's nothing that shows
any numbers as to how he is calculating the division of property. There
also is no reasoning as to why he made any of these decisions. He
apparently, without directly saying so, saying that Computer Tyme Inc.
is marital property. Computer Tyme Inc. was formed 5 years before the
marriage with me as it's sole shareholder. If this is to be ruled
marital, there needs to be a reason for this, but none is given.
He also awards the 78 acre farm (with no house on it) to my wife and
gives her the debt for this land. This doesn't make sense because not
only had I made all the payments, but she has no income and the payment
is $1000/month. Even though I got my non-marital house, that house is
collateral on the farm. So even if she does make the payments for the
next 13 years, I can't sell or borrow money against my house. And
there's no provision for me to get the land should she default. But I
still am liable on the note.
The judge doesn't seem to understand what a corporation is because
several of the items he divides up are items that the corporation owns.
At the trial my tax returns were presented as evidence. I average about
$50,000 a year before taxes. These income figures were never disputed.
So how is a guy like me supposed to come up with $73,500 in 30 days?
Besides, I was only married 5 years and have no children. I was a good
father to her daughter and a good husband. She walked out of the
marriage. I don't believe that divorce laws were intended to punish
people for having a job.
CONCLUSION
==========
In the above example, if these events actually happened, according to
the policies of the Disciplinary Counsel I could not file a complaint
because the case is still open. Although this decision is appealable,
it could cost $50,000 and take years. Is this fair? Does this comply
with the preamble of Supreme Court Rule 4? Absolutely not!
The bottom line is, your honor, that the Disciplinary Counsel is not
doing their job and that it's policies like this that are the reason
that this state has judges that don't even know enough about the law to
understand what a corporation is. And it's high time that the Judicial
system fix itself and rule in my favor.
Your honor, I'm not a lawyer. I'm a computer programmer. The judicial
system is forcing me to be a lawyer. I want my life back. I want my
freedom.
Respectfully Submitted,
Marc Perkel
Plaintiff
08-07-96
CERTIFICATE OF SERVICE
======================
I, Marc Perkel, hereby certify that a copy of the foregoing instrument
was served upon the attorneys of record of the Defendant, at the
attorneys business address, and was delivered either by hand, mail, or
fax.
Supreme Court of Missouri
Office of the Chief Disciplinary Counsel
John E. Howe #22615
Carl Schaeperkoetter #30467 (Staff Counsel)
3335 American Ave.
Jefferson City Mo. 65109
314-635-7400 (voice)
314-635-2240 (fax)
Delivery occurred on this 7th day of August, 1996 by mail.
By: ________________________________
Suit
- Suit I filed in Federal Court.
Appeal
- Appealing this to the Eighth Circuit Court.
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