Plaintiff's Brief *

Table of Authorities *

Laws *

Statement of the Case *

Arguments *

Exhibits *

1. Obviously there are two or more persons involved.
2. The object to be accomplished is to collect a judgement obtained through fraud, to cover up criminal conduct, and to avoid liability.
3. The Defendants clearly had a unity of purpose or a common design and understanding in their joint efforts to avoid liability and conceal criminal activity. Judge Syler’s actions were clearly improper and directly benefited the other defendants. There is no other explanation as to why this judge would break the rules to cover up criminal activity other than that he had joined into a common purpose with the other defendants. When Judge Syler asked Defendant Sharp if he was going to be a witness, and Mr. Sharp said "No", a meeting of the minds occurred. The Judge expected the Defendant to lie and the defendant lied.
4. The unlawful acts are Tampering with Physical Evidence, False Affidavit, Perjury, Obstruction of Justice, and Suborning Perjury.
5. This has cost the Plaintiff a lot of time and money.

Judicial Immunity

Plaintiff is well aware that Judge Syler as judicial immunity from liability. The law is clear that judges have absolute immunity for liability for damages under 1983. E. g. Pierson v. Ray 386 U.S. 547 (1967). Plaintiff is not suing the judge for damages but only for declaratory and injunctive relief. In Pulliam v. Allen the Supreme Court held that judicial immunity does not extend to declaratory and injunctive actions and that it was no bar to and award of attorney's fees. This suit seeks and order to prevent this judge from further infringing on the rights of the plaintiff. This suit falls within the immunity limits set by this Supreme Court decision.

Color of State Law

Civil rights complaints under 42 U. S. C. § 1983 require that the defendant acted under color of law. Normally you can sue a private party for violations of civil rights. A plaintiff must prove that the defendants deprived him of a constitutional right under color of state law. In Adickes v. S.H. Kress & co. 398 U.S. 144, 150 (1970) it was held:

"Private persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law for purposes of the statute. To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents," United States v. Price, 383 U.S. 787, 794 (1966)."

However, you can sue a private person under civil rights laws if the private person was jointly engaged with the public official in the challenged action (Dennis v. Sparks 449 US 24, 101 S Ct 183 (1980)). The Plaintiff must establish that the defendants were a "willful participant in joint activity with the State or its agents". In this case Plaintiff is alleging that the Defendants conspired with the judge, and that the judge acted in behalf of the Defendants to deprive the Plaintiff of his property and due process rights under the 14^th Amendment. The Plaintiff has alleged facts that indicate that there was a "meeting of the minds" between the Judge and the defendant attorneys. Manis v. Sterling 862 F.2d 679, 681 (8^th Cir. 1988). The Plaintiff has also alleged sufficient facts to support the allegation of conspiracy. Thus the Plaintiff has met the burden required in order to bring a 1983 action against private parties.

Respondent Superior

The Bar Plan is a defendant under the doctrine of Respondent Superior. The case of GEORGE M. MADSEN v. JAMES LAWRENCE 366 S.W.2d 413 defines the concepts of the doctrine as follows:

"'A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.

"'A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or subject to the right of control by the master.

"'An independent contractor is a person who contracts with another to do something for him, but who is not controlled by the other nor subject to the other's right of control with respect to his physical conduct in the performance of the undertaking.'" Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 58. See also Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Talley v. Bowen Construction Company, Mo. Sup., 340 S.W.2d 701.

In this case The Bar Plan hired Defendant Duncan and his law firm to represent their interests and liability. Defendant Duncan, in his capacity as an attorney, represented The Bar Plan. However, Mr. Duncan will claim that he is not an employee, but an independent contractor and that The Bar Plan is not liable under the doctrine of Respondent Superior. The case of ADA USREY v. DR. PEPPER BOTTLING COMPANY, 385 S.W.2d 335 defines the test of the existence of a master/servant relationship.

The test almost universally applied in determining whether or not respondent superior applies to torts is, did the person sought to be charged as master have the right or power to control and direct the physical conduct of the other in the performance of the act. If there was no right to control there is no liability; for those rendering service but retaining control over their own movements are not servants. Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Reiling v. Missouri Insurance Co., 351 Mo. 1179, 175 S.W.2d 761. And the relationship (of servant and master) begins only when the person charged as master has the right to direct the method by which the master's service is performed. Restatement, Agency 2d § 233.

In this case the master/servant has an attorney/client relationship. The Plaintiff has alleged facts that support that the attorney committed fraud and suborned perjury. The issue is if a client can be held responsible for the sins of his lawyer. Plaintiff contends that a client can.

The question rests on if The Bar Plan had the right or power to control and direct the physical conduct of the Mr. Duncan in the performance of the act. Could The Bar Plan have ordered his lawyer to obey the law? Clearly the answer is yes. Did he have a duty to do so? Again, clearly the answer is yes.

Lawyers are professionals and generally when a client hires a professional the client defers to the professional’s judgement, or let the professional do his job. In this case however, the client is an insurance company with their own legal staff, and is therefore much more aware of legal issues than the average client. If the client is warned repeatedly that their attorney is engaging in improper activity and urged to investigate it, and the client ignores those warnings, then the client becomes liable for the improper activities of the attorney.

In this case the Plaintiff wrote insurance company informing them that their attorney had averred to the Court in its depositions that there was a deposition. When Mr. Sharp, the insured, revealed in his interrogatories that there was no court reporter present, Mr. Duncan had a duty to take remedial measures to avoid fraud upon the court. The Bar Plan failed to respond to the Plaintiff in any manner.

Then Defendant Duncan and Defendant Sharp filed their responses to the Plaintiff’s Motion for Summary Judgement that contained Exhibit B that had been altered. Plaintiff alleged that the altered exhibit constituted criminal Tampering with Evidence and again wrote a letter to The Bar Plan informing them that their attorney was now possibly a party to a criminal act. Plaintiff again urged The Bar Plan to take remedial measures, and again the Plaintiff was ignored.

The Plaintiff filed a second motion for summary judgement alleging criminal conduct. In response, Defendant Duncan, in his capacity as an attorney, proffered Defendant Sharp’s false affidavit to the Court claiming that Mr. Sharp’s highlighter photocopies to solid black. The Plaintiff, for a third time, contacted The Bar Plan informing them of the facts and again urging them to take remedial action, and again the Plaintiff was ignored.

Clearly The Bar Plan had the power and the right to order Mr. Duncan to obey the law. A client has the right to control the conduct of his lawyer, especially if his lawyer is engaged in improper and/or illegal activities. As an insurance company with a legal staff, The Bar Plan can hardly claim they didn’t know or understand the gravity of the charges the Plaintiff had warned them about. Therefore, The Bar Plan clearly falls within the parameters of Respondent Superior.

Tort of Bad Faith

An insurance company has a duty to exercise good faith in evaluating and negotiating third party claims against its insured. This duty is explained in the case of CLIFFORD E. DUNCAN AND GAYLE DUNCAN, RESPONDENTS, v. ANDREW COUNTY MUTUAL INSURANCE COMPANY, 665 S.W.2d 13;

"By way of explication, an insurer's right to control settlement and litigation under a policy of liability insurance creates a fiduciary relationship between insurer and insured. Concomitantly, an insurer owes a duty to exercise good faith in evaluating and negotiating third party claims against its insured and may be held liable in tort (commonly referred to as the tort of bad faith) by its insured for a third party judgement in excess of the policy limits in the event it fails to exercise good faith in the performance of its fiduciary obligation. It is the existence of this fiduciary relationship between insurer and insured under a policy of liability insurance, beyond and apart from any subsisting implied covenant of good faith and fair dealing on the part of an insurer under a policy of insurance, which exposes an insurer to liability in tort for failure to exercise good faith in evaluating and negotiating third party claims against an insured."

In this case the Plaintiff wrote The Bar Plan three letters. In the first letter the Plaintiff pointed out that Defendant Sharp admitted that he had the Plaintiff sanctioned for a deposition when he had no court reporter present to take his deposition. This by itself should have caused The Bar Plan to offer a good faith settlement. The Plaintiff filed his Motion for Summary Judgement based on this revelation. In response the insured Defendants proffered documents to the court in which they altered the date. However, the insured Defendants got caught Tampering with Physical Evidence, a crime under Missouri law. Again the Plaintiff wrote The Bar Plan trying to settle. Plaintiff filed a second Motion for Summary Judgement based on the altered evidence. In response the insured Defendant, Mr. Sharp made a false affidavit swearing to the court that his highlighter pen photocopies to solid black, a claim that is scientifically impossible. Again the Plaintiff wrote to The Bar Plan.

In all the attempts to settle this case with the insurer, The Bar Plan ignored the Plaintiff and didn’t even acknowledge that they even received the Plaintiff’s offer. Plaintiff contends that The Bar Plan has committed a Tort of Bad Faith and is therefore directly liable to the Plaintiff.

Rights Violated

The Defendants deprived the Plaintiff of property under color of state law. The Defendants acted under color of state law in a conspiracy with a judge that resulted in allowing defendants to take money from the Plaintiff in their execution of a judgement obtained through fraud. Judge Syler made a ridiculous ruling that defendants could represent other defendants. Judge Syler’s ruling that a defendant should be permitted to represent another defendant shows an absolute disregard for the integrity of the judicial system and the Missouri Rules of Court. There is no way that a person can go through law school, pass the Bar, become a lawyer and then a judge without knowing that a defendant cannot represent another defendant.

Judge Syler then suspended the trial process making the Plaintiff take his cause all the way to the United States Supreme Court. Judge Syler refused to hear the Plaintiff's motion for an injunction to prevent execution of a fraudulent judgement. Judge Syler shut down discovery when it was revealed through discovery that the Defendants may have committed a criminal act of Tampering with Physical Evidence. Judge Syler now refuses to act to investigate a sworn affidavit by Defendant Sharp which is clearly false.

Judge Syler is clearly obstruction justice and is denying the Plaintiff his due process and property rights as defined my the 14^th Amendment, and he is doing so in behalf of and in a conspiracy with the other Defendants. Thus Judge Syler violated 42 U.S.C. § 1983 and 42 U.S.C. § 1985(2), and because he acted under color of state law in behalf of the other defendants, they too have violated the Plaintiff's rights under color of state law. (Dennis v. Sparks)

Obstructing Justice

Plaintiff contends that the facts support a violation of 42 U. S. C. § 1985(2) in that the Defendants conspired to obstruct justice.

In a well-reasoned opinion, in the only post-Griffin case which provided relief to a plaintiff under § 1985(2), a Texas United States District Court in Britt v. Suckle, (1978) 453 F Supp 987, reasoned:

"In utilizing the Griffin criterion, then, the first question is whether the class-based animus requirement of § 1985(3) also applies to § 1985(2).... and, if so, whether it is most appropriately applied exactly in an action under § 1985(3) or in some more refined form adapted to the language and intent of § 1985(2). Of the few courts which have considered § 1985(2) since Griffin, most have concluded, with little or no analysis, that its class-based animus requirement for claimants under § 1985 applies with full force to § 1985(2) claimants as well, (numerous citations omitted), 453 F Supp, at 995....[T]he conspiracies prohibited in the pertinent part of § 1985(2) are those of which the purpose is to obstruct the due course of justice, while § 1985(3) is directed toward conspiracies, for the purpose of which is to deprive persons of equal protection of the laws or equal privileges and immunities under the law....Two crucial distinctions between § 1985(2) and....§ 1985(3) indicate different applications of the class-based animus requirement.

First viewed as dealing with particularly access to state courts, § 1985(2) has its own built-in limitations, for this section could not be read as the 'general federal tort law' which § 1985(3) threatens to expand (citing footnote 16, 453 F Supp, at 996: 'It is instructive in this regard to consider how many of the cases brought under § 1985(3) could not even plausibly fit the language of § 1985(2) (citation omitted).... Second, the class-based animus required in Griffin is a product of statutory interpretation. In Griffin, the court's construction of § 1985(3) centered on conspiracies broadly purposeful of deprivation of equal protection of the laws. When the purpose of the conspiracy is more precisely focused on the courts, as it is in § 1985(2), to a sphere of particular Congressional concern, then the content of the requisite animus must change also.

An analogy is the traditional two-tiered analysis employed by the Supreme Court under the equal protection clause of the Constitution. See San Antonio Independent School District v. Rodrigez, 411 US 1. Under this approach, if no particular fundamental right is threatened, ordinarily a suspect classification (for example, discrimination against a particular racial group) is required before the law is struck down; 453 F Supp, at 996. However, where a fundamental right is implicated....all distinctions among classes, whether or not traditionally discriminated against, require close judicial scrutiny; 453 F Supp, at 996-997. Correspondingly, in § 1985(3), where no right is specifically identified, the class-based must be along racial, or perhaps other analogous lines. The language of § 1985(2), conversely, by its heavy emphasis on access to the state's legal system suggests the existence of invidious distinctions other than racial as denials of equal protections. This reading of § 1 985(2) does not imply that the class-based animus requirement of Griffin can be dispensed with completely in § 1985(2) suits. For example, in one of the most commonly cited for the proposition that a class-based animus must be alleged in a § 1985(2) claim, Phillips v. Singletary, 350 F Supp 297 (DSC 1972), it can readily be seen that the complaint was deficient in this respect.

In sum, defendant's intent, as alleged by plaintiff [Britt], is to obstruct the due course of justice, the hearing and vindication of state claims of the affected class members in state courts; the defendant's discriminatory intent is not directed toward any personal or accidental characteristic, but is trained upon the nature of the claim sought to be heard and maintained. While the degree of generality might not suffice under § 1985(3), conspiracies to bar from state courts a class of plaintiffs defined by their desire to vindicate a particular right granted them by state law is sufficiently invidious to fall within the proscription of the section [1985(2)]," 453 F Supp, at 997.

This case is similar to the Britt case in that the Defendants' intent was to obstruct the due course of justice. In ruling that defendants can represent defendants and refusing to consider many important motions of the Plaintiff, and in the failure of the court to act when faced with overwhelming evidence of criminal conduct, the Defendants are denying the Plaintiff his day in court. Based on Britt, when the challenged conduct infringes on a fundamental right. In Britt, "where a fundamental right is implicated....all distinctions among classes, whether or not traditionally discriminated against, require close judicial scrutiny; 453 F Supp, at 996-997"

Although this case is similar to Britt, in some ways it's a better case than Britt. Where Britt won a 1985(2) case without a class distinction, this case has a class distinction in that the Plaintiff is a pro se litigant, and the Plaintiff's right were violated because he was pro se.

Pro Se is an Invidious Class

For the purposes of this suit, the Plaintiff is a member of a class of pro se litigants. As a member of this class, the defendants conspired to deprive the Plaintiff right of equal protection of the law. Plaintiff contends that the Defendants took advantage of the fact that the Plaintiff is pro se to deny him due process of law. Plaintiff contends that the Defendants conspired to obstruct justice.

In JAYNE BRAY v. ALEXANDRIA WOMEN'S HEALTH, 113 S. Ct. 753, 122 L. Ed. 2d 34, 61 U.S.L.W. 4080 the justices of the Supreme Court gave this example of class based discrimination: "A tax on wearing yarmulkes is a tax on Jews." The reasoning here is that Jews are a class of people and they are a unique class in that they wear yarmulkes. So to tax the wearing of yarmulkes would be a tax that is targeted against a specific class of people because the act in question targets unfairly a characteristic unique to those class members in violation of their constitutional right to equal protection.

This case is similar. In this case the Plaintiff alleges that he is a member of an invidious class, and the Defendants conduct violated his civil rights based on his membership in this class of pro se litigants. If the Plaintiff can establish that because he is pro se that his rights were violated, then the Plaintiff can support an argument that his right to equal protection was violated. And although an invidious classification isn't necessary for a 1985(2) claim (per Britt), it helps.

The Plaintiff brought a lawsuit against Defendant Stringfellow and Defendants Wear and Sharp. In that suit the Plaintiff alleged a fraudulent conspiracy and that each defendant committed acts of fraud. Although they were both defendants, Mr. Wear and Mr. Sharp entered an appearance as counsel for their codefendant, Ms. Stringfellow. Mr. Duncan entered an appearance as counsel for Wear and Sharp.

Missouri Rule 4.2 that prohibits lawyers from communicating with parties represented by counsel. If the Plaintiff had a lawyer, the Plaintiff’s lawyer wouldn’t be allowed to communicate with Defendant Stringfellow’s lawyer because Defendant Stringfellow’s lawyer, Mr. Sharp is himself a defendant and is represented by Mr. Duncan. Only because the Plaintiff is pro se can Judge Syler get away with attempting to allow a defendant to represent another defendant because a pro se litigant isn’t subject to Missouri Rule 4.2. Thus Judge Syler took advantage of the Plaintiff’s invidious classification to deny him equal protection under the law and his rights to due process of law.

The key point is that if counsel represented the Plaintiff, Judge Syler could not have made the ruling to allow a defendant to represent another defendant based on Missouri Rule 4.2. Plaintiff contends that if he were represented by counsel that the Judge wouldn’t have attempted to allow a defendant to represent another defendant. The only reason he allowed it was that most pro se litigants are unfamiliar with the Rules and the judge took advantage of the fact that the pro se class is ignorant and that he could get away with pulling a fast one on the Plaintiff because of his invidious class. Plaintiff contends that Defendant Syler’s decision, to allow defendants to represent other defendants, is an act directed specifically against pro se litigants.

Additionally, Plaintiff alleges that Judge Syler ignored his motions while at the same time considered and ruled on Defendants’ motions. Plaintiff contends that his motions before the court were legally valid motions and deserved the same level of consideration as if a lawyer submitted them. Plaintiff contends that he is a victim of judicial discrimination on the basis of his being a member of the pro se class of litigants.

For example, shortly after Judge Syler was appointed by the Missouri Supreme Court to hear this case, the Plaintiff filed a motion for an injunction to stop the execution of the underlying divorce judgement obtained through fraud upon the court. Judge Syler ignored the Plaintiff’s motion because he was pro se. Had the Plaintiff been represented by counsel, the Court would have either granted the Plaintiff’s motion or denied that Plaintiff’s motion. Because the Plaintiff is pro se, the court treated the Plaintiff as if he had no right to have his motions considered.

The same thing happened when the Plaintiff filed his motion to disqualify counsel for conflict of interest and violation of the rules. Plaintiff argued that defendant should not be allowed to represent other defendants and asked the Court for an immediate ruling. The reason behind asking for an immediate ruling is that Judge Syler lives five hours away from the courthouse and if the Plaintiff was right, it would save the judge a trip to Springfield because if the Court ruled the representation improper, the Court wouldn’t have been able to rule on any other motions until the Defendants obtained proper counsel.

Again, had counsel represented the Plaintiff, Judge Syler would have either granted his motion or denied his motion. But because, and only because, the Plaintiff was pro se, Judge Syler ignored the motion, failing to either grant or deny it. Judge Syler’s non-ruling can be construed as a ruling that a pro se litigant is a non-person.

As a citizen of the United States the Plaintiff has an absolute right to bring suit and to have due process of law. This due process right includes the right to have his motions ruled upon. Judge Syler violated this right by failing to rule on the Plaintiff’s motion when he had a duty to do so. There is no rules or case law supporting the concept that a pro se litigant has fewer rights to due process of law than a represented litigant.

A pro se litigant, if anything, operates under a disability. In the interest of justice and equal protection under the laws, many courts have taken affirmative steps to ensure that pro se litigants have the same access as represented litigants. Many courts, for example, will allow a pro se litigant to get away with a greater number of procedural mistakes to fully consider the merits of the pro se litigant’s argument. Thus, if there is any difference in procedure between pro se and represented clients, it should be in favor of and not in discrimination against, the pro se litigant.

There is a word used in the English language. This word is a borderline word as to its use in polite company. The Plaintiff is going to use this word respectfully before this court because there is no other word that carries the same meaning and it is therefore necessary for the Plaintiff to use this word to make his argument before this honorable court. The word is "sucker".

The word "sucker" refers to a baby sucking at his mother’s breast and implies a person who is young and naïve, who doesn’t know the rules of life and can therefore can easily be taken advantage of. "Sucker" is also a verb. To "sucker" someone is to take advantage of his or her ignorance and inexperience. To "take someone for a sucker" is to take advantage of someone because they have a disability with regard to knowledge, customs, education, or experiences, using ethically compromised acts, in a manner that is detrimental to the sucker. But it’s not just the meaning of the word, but the mental flavor the word invokes that causes it to convey a concept that can’t be duplicated in proper language.

Thus having defined the term, the Plaintiff contends that Judge Syler violated the Plaintiff’s constitutional rights, in a conspiracy with the Defendant lawyers, and because the Plaintiff is a pro se litigant, abused his judicial power buy trying to take the Plaintiff for a sucker. Plaintiff contends that a judge trying to sucker a pro se litigant is morally equivalent to pushing a guy in a wheelchair down a flight of stairs. It’s an act that shocks the conscience.

Malice

The Defendants’ conduct included several criminal acts including Perjury by attorneys and Tampering with Evidence. The Defendant attorneys committed a crime against justice through fraud upon the court and conspiring with a judge to deprive the plaintiff of his right to due process of law. The conduct of Judge Syler can be characterized as treason to the Constitution. Defendant Stringfellow is using the justice system to defraud the Plaintiff for the purposes of greed and revenge.

Pro Se Standard of Review

Because the Plaintiff is pro se, the court has a higher standard when faced with a motion to dismiss. White v. Bloom, 621 F.2d 276 makes this point clear and states:

A court faced with a motion to dismiss a pro se complaint alleging violations of civil rights must read the complaint's allegations expansively, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972), and take them as true for purposes of deciding whether they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972). Moreover, "the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory." onner v. Circuit Court of St. Louis, 526 F.2d 1331, 1334 (8th Cir. 1975) (quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974)).

Thus, if this court were to entertain any motion to dismiss, this court would have to apply the standards of White v. Bloom.

Challenge to the Court

Attached to this brief is Defendant Sharp's sworn affidavit he proffered to the court in defense to Plaintiff's Second Motion for Summary Judgement. In this affidavit Mr. Sharp claims that his photocopier copies highlighted text to solid black.

Plaintiff also has attached a color test sheet of six colors of highlighters and a copy of this sheet using his copy machine. Also attached is Defendants' Exhibit B which is solid black.

The Plaintiff respectfully challenges this court to try it for yourself and see what you get on your photocopier(s) as a truth test to see who's telling the truth here. I'd like to see if anyone can reproduce the effect that Mr. Sharp swore on his oath to.

Conclusion

The judicial system is self-governing and is therefore responsible for policing itself. The preamble makes this responsibility clear by stating: "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. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves."

The United States is a government of the people, by the people, and for the people. The judicial system’s function is to serve the public by providing a means to serve justice and to resolve disputes. This can only be done in an environment where honesty, integrity, and high moral standards are strictly enforced. The Supreme Court uses disciplinary proceedings to protect the court and public from the official ministrations of lawyers unfit to practice law.

Bad lawyers hurt good lawyers. When a lawyer is allowed to abuse the judicial process for his own personal gain it taints the image of the court and that of all lawyers. As officers of the court, lawyers should be held to a higher standard of honesty and moral character, not a lower standard. It is therefore in the best interest of all lawyers to weed out those who willfully break the rules and are therefore unfit to practice law. Any organization that fails to take responsibility to police itself will eventually lose its autonomy. If the courts allow lawyers to use the court’s power to abuse the people, the people will rise up against the courts and strip them of their authority.

It's the actions of lawyers like Mr. Wear and Mr. Sharp who bring the lawyers into disrepute. Mr. Wear and Mr. Sharp are a pariah on society and the legal system. They make a living feeding off the misfortune of others and taking advantage of the lax enforcement of ethical standards to use the courts as an opportunity to steal from the public. It lawyers like these who cause people like me to hate the judicial system because it makes all lawyers look like a bunch of self serving crooks. These lawyers should not be allowed to get away with it. These lawyers should not be allowed to continue to practice law.

These lawyers have shown an absolute disdain for ethics, honesty, and the Rules of Professional Conduct. To them these rules are a joke. Their conduct was willful, deliberate and inexcusable. But what’s worse is when judges conspire with lawyers to cover up for each other as they abuse justice to rip off the public who they are supposed to serve. Lawyers become judges and judges go back to being lawyers and it would seem that the rule of law has less to do with justice that it has to do with the old idiom, "you have to go along to get along". And that’s clearly what happened in this case.

In this case the Plaintiff served the Judge and Defendant Sharp with notification that Mr. Sharp would be deposed. A defendant is automatically, by law, a witness, and both Judge Syler and Mr. Sharp know it. When Judge Syler asked the question if Mr. Sharp was going to be a witness, he did so with the expectation that Mr. Sharp would say the lie he expected to hear. Is this the way the justice system is meant to be run? Are our courts run by laws or by winks and nods? It would appear that winks and nods run Mr. Syler’s court. If you’re an insider, you win. If you’re an outsider, you lose. Justice is no more than a brand name that’s used as a marketing ploy to pacify the citizens so as to create the illusion of justice.

In the case of ELKINS ET AL. v. UNITED STATES, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 the court in speaking about the imperative of judicial integrity stated:

"In a government of laws," said Mr. Justice Brandeis, "existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

This court has a duty to the constitution to take an active role in making sure that this sort of corruption is not allowed to continue. The integrity of justice is at stake here and the Plaintiff hopes that this court will stand on the side of the law and not become part of the coverup. If you're not part of the solution, you're part of the problem.

 

________________________________

Marc Perkel - Plaintiff - 02-02-98

 

 

Exhibits

 

1. Sworn Affidavit of James R. Sharp.
2. Literature from Bic web site on their highlighters.
3. Literature from Magic Marker web site on their highlighters.
4. Plaintiff's highlighter color test using 6 highlighter colors.
5. Photocopies of color test using Plaintiff's photocopier on automatic settings.
6. Defendant's Exhibit B enlarged.

Footnotes:

"The special master found respondent had violated Rule 3.3 of Rule 4 of the Rules of Professional Conduct. Rule 3.3 provides in part: "a lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;" and "(4) offer evidence that the lawyer knows to be false."

"The special master found respondent had violated Rule 8.4(c) and (d) which provide it constitutes professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation" and "engage in conduct that is prejudicial to the administration of justice." The special master's finding as to Rule 8.4(c) and (d) is supported by the evidence."

IN RE: ELMER OBERHELLMANN, RESPONDENT. 873 S.W.2d 851

Disbarment is the appropriate sanction for respondent. Disbarment is appropriate when a lawyer, with the intent to deceive a court, makes a false statement or submits a false document to a court. In re Storment, No. 75335, slip op. at 8 (Mo. banc Mar. 22, 1994); ABA Standards for Imposing Lawyer Sanctions, Rule 6.11 (1986).

Pulliam v. Allen

1) Judicial immunity is not a bar to prospective injunctive relief against a judicial officer, such as petitioner, acting in her judicial capacity. Pp. 528-543.

(a) Common-law principles of judicial immunity were incorporated into the United States judicial system and should not be abrogated absent clear legislative intent to do so. Although there were no injunctions against common-law judges, there is a common-law parallel to the 1983 injunction at issue here in the collateral prospective relief available against judges through the use of the King's prerogative writs in England. The history of these writs discloses that the common-law rule of judicial immunity did not include immunity from prospective collateral relief. Pp. 528-536.

(b) The history of judicial immunity in the United States is fully consistent with the common-law experience. There never has been a rule of absolute judicial immunity from prospective relief, and there is no evidence that the absence of that immunity has had a chilling effect on judicial independence. Limitations on obtaining equitable relief serve to curtail or prevent harassment of judges through suits against them by disgruntled litigants. Collateral injunctive relief against a judge, particularly when that relief is available through 1983, also raises a concern relating to the proper functioning of federal-state relations, but that concern has been addressed directly as a matter of comity and federalism, independent of principles of judicial immunity. While there is a need for restraint by federal courts called upon to enjoin actions of state judicial officers, there is no support for a conclusion that Congress intended to limit the injunctive relief available under 1983 in a way that would prevent federal injunctive relief against a state judge. Rather, Congress intended 1983 to be an independent protection for federal rights, and there is nothing to suggest that Congress intended to expand the common-law doctrine of judicial immunity to insulate state judges completely from federal collateral review. Pp. 536-543.

2) Judicial immunity is no bar to the award of attorney's fees under the Civil Rights Attorney's Fees Awards Act. Congress has made clear in the Act its intent that attorney's fees be available in any action to enforce 1983. And the legislative history confirms Congress' intent that an attorney's fee award be made available even when damages would be barred or limited by immunity doctrines. Pp. 543-544.

Dennis v. Sparks

Held : The action against the private parties accused of conspiring with the judge is not subject to dismissal. Private persons, jointly engaged with state officials in a challenged action, are acting "under color" of law for purposes of 1983 actions. And the judge's immunity from damages liability for an official act that was allegedly the product of a corrupt conspiracy involving bribery of the judge does not change the character of his action or that of his co-conspirators. Historically at common law, judicial immunity does not insulate from damages liability those private persons who corruptly conspire with a judge. Nor has the doctrine of judicial immunity been considered historically as excusing a judge from responding as a witness when his co-conspirators are sued, even though a charge of conspiracy and judicial corruption will be aired and decided. Gravel v. United States, 408 U.S. 606, distinguished. The potential harm to the public from denying immunity to co-conspirators if the factfinder mistakenly upholds a charge of a corrupt conspiracy is outweighed by the benefits of providing a remedy against those private persons who participate in subverting the judicial process and in so doing inflict injury on other persons. Pp. 27-32.

The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner's Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful; Monroe v. Pape, 365 U.S. 167 (1961); see United States v. Classic, 313 U.S. 299, 326 (1941); Screws v. United States, 325 U.S. 91, 107-111 (1945); Williams v. United States, 341 U.S. 97, 99-100 (1951). Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under 1983. 'Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute. To act "under color" of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents,' United States v. Price, 383 U.S. 787, 794 (1966)." 398 U.S., at 152.

In the Matter of Anthony Canzoneri 1960.MO.100

This is true because "the purpose of suspending or disbarring an attorney is to remove from the profession a person whose misconduct has proved him unfit to be intrusted with the duties and responsibilities belonging to the office of an attorney, and thus to protect the public and those charged with the administration of justice, rather than to punish the attorney." (5 Am.Jur. 411, Sec. 249, and cases cited; In Re Conner, 357 Mo. 270, 207 S.W.2d 492; In Re Richards, 333 Mo. 907, 63 S.W.2d 672.) The primary duty of every lawyer is to keep his own conduct above reproach (certainly above the minimum standards of the criminal law) because improper conduct of even a few persons lowers the prestige of the profession and its effectiveness in performing its duties and responsibilities.

In re Paul E. Panek, Respondent. 1979.MO.781

"It is not necessary to the exercise of the disciplinary powers of this court that the fraud committed by a lawyer be committed in his capacity as a lawyer, nor is it necessary that a lawyer be previously convicted of a criminal offense based upon fraudulent acts. This disciplinary power 'is not limited to those instances of misconduct wherein he has been employed, or has acted, in a professional capacity; but, on the contrary, this power may be exercised where his misconduct outside the scope of his professional relations shows him to be an unfit person to practice law. In re Williams, 233 Mo. App. 1174, 128 S.W.2d 1098, 1105 [4, 6, 8]; State ex rel. Clark et al. v. Shain, En Banc, 353 Mo. 542, 122 S.W.2d 882; In re Conner [357 Mo. 270, 207 S.W.2d 492]; In re Richards, 333 Mo. 907, 63 S.W.2d 672; 5 Am.Jur. pp. 426, 427, 276; 7 Am,Jur.2d pp. 72, 73, 44; 7 C.J.S. Attorney and Client 24, pp. 762, 764.' In re Wilson, 391 S.W.2d 914, 918 (Mo. banc 1965). . . .

"Respondent's retention as an officer of the court would be inimical to the public confidence and esteem essential to the courts and the bar in the efficient administration of justice. Additionally, the specific fraudulent conduct of respondent is such that he can no longer be allowed to represent clients and to have reposed in him the trust and confidence necessary to the proper representation of a client by a lawyer."