-Caveat Lector-
U.S. SUPREME COURT DOCKET NO.
IN THE UNITED STATES SUPREME COURT
CHARLES AUGUST SCHLUND, III
and RANDY D. LANG,
Petitioners
vs.
THE UNITED STATES OF AMERICA, et al,
Respondents.
ON APPEAL FROM THE JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
C.A. NO. 00-15-126
(D.CT. NO. CIV-98-1875-PHX-RCB)
PETITION FOR WRIT OF CERTIORARI
Charles August Schlund, III
8520 N. 54th Drive
Glendale, AZ 85302
(602) 670-2017 (M)
Petitioner In Pro Per
Randy D. Lang
11024 N. 28th Dr., Ste. 200
Phoenix, Arizona 85029
(623) 878-7270 (O)
Petitioner in Pro Per
I. QUESTIONS PRESENTED FOR REVIEW.
A. Was the joint failure and refusal of the Central District
Court and Appellate Court to issue, per Petitioner's repeated
written requests, findings of fact and conclusions of law a gross
departure from the normal and customary course of procedure any
of the Questions for Review stated below, justifying the Supreme
Court's supervisory review? (See, Appendix Nos. 3,4,5, and 7-12).
B. Did the Central District Court and the Ninth Circuit Court of
Appeals violate Petitioners' constitutional due process rights by
continuously failing and refusing to make any findings of fact
and conclusions of law, despite Petitioners' repeated written
requests for the courts to do so? (See Appendix Nos. 3,4,5 and
7-12).
C. Did the District Court's failure and refusal to make any
findings of fact and conclusions of law, in disregard of the
Federal Rules of Civil Procedures, Rules 43, 52(c), and 65 and
Petitioners' repeated written request and Petitioners' request
per Federal Rules of Evidence 201 (to take mandatory judicial
notice of such requests) and such rules cause prejudicial error
by eliminating Petitioners' factual and legal basis for review by
the Supreme Court under Supreme Court Rule 14(i)(h)(i)(ii) and
(vi)? (See Appendix Nos. 3,4,5 and 7-12).
D. Whether the District Court's satisfaction of the Government's
fabrication of facts and no affidavits or any other evidence but
mere attorney ipse dixit opinion to support its two-page Motion
for summary Judgement result in prejudicial error, violating
Petitioners' constitutional rights. Likewise, the Ninth Circuit
Appellate Court's notification causing same result? (See
Appendix Nos. 6, 9, 10, and 12).
E. Whether the Ninth Circuit Court of Appeals' refusal and
failure to issue findings of fact and conclusions of law on any
of Petitioners' appellate motions on appeal, per their i
continuous written requests, caused prejudicial error and
violated their constitutional due process rights, leaving them
without an adequate record for review by the Supreme Court?
(See, U.S. Sup. Ct. Rule 14 (h)(i)(vi) [...findings of fact and
conclusions of law...]).
ii
II. LIST OF ALL PARTIES
All parties and the Solicitor General of the United States have
been served by First Class Mail (U.S. Sup. Ct. Rule 29) this 14th
day of March, 2001 as follows:
Charles August Schlund, III
8520 N. 54th Drive
Glendale, AZ 85302
(602) 670-2017 (M)
Plaintiff/Appellant/Petitioner In Pro Per
Randy D. Lang
11024 N. 28th Dr., Ste. 200
Phoenix, Arizona 85029
(623) 878-7270 (O)
Plaintiff/Appellant/Petitioner in Pro Per
Richard G. Patrick
Assistant U.S. Attorney
4000 United States Courthouse
230 North First Avenue
Phoenix, AZ 85025
(602) 514-7500
Attorney for Defendant/Appellees/Respondent
U.S. Department of Justice, Drug Enforcement Administration
Solicitor General of the United States
Room 5614, Dept. Of Justice
950 Pennsylvania Ave.
N.W. Washington D.C. 20530-0001
Interested Non-named Party (U.S. Sup. Ct. Rule 29(4)(a))
by:
Randy D. Lang
iii
TABLE OF CONTENTS
Page
I. QUESTIONS PRESENTED FOR REVIEW i
II. LIST OF ALL PARTIES iii
III. INTEREST OF PETITIONERS v
IV. TABLE OF AUTHORITIES vi
V. PETITION FOR WRIT OF CERTIORARI 1
VI. OPINION BELOW 1
VII. STATEMENT OF JURISDICTION 1
VIII. UNITED STATES CONSTITUTION, STATUTORY PROVISIONS, 1
AND THE PROTECTION AGAINST TORTURE AND HUMAN
RIGHTS ACT
IX. STATEMENT OF THE CASE AND THE FACTS 2
X. LEGAL ARGUMENTS
A. The Court Erred in Interpreting The Supreme Court's Decision
11 of Celotex Corp. V. Catrett And Failed to Make Findings of
Fact And Conclusions of Law, Despite Petitioners Requested Such
For Review on Appeal.
B. The District Court Greatly Departed From The Accepted And 14
Usual Course of Judicial Proceedings, Which The Appellate Court
Ratified When it Accepted The Government's Fabrication of Fact to
The Doran Case And Then Refused to Make Findings of Fact And
Conclusions of Law, Requested by Petitioners, Requiring The
Exercise of The United States Supreme Court Supervisory Power to
Protect Petitioner's Constitutional Rights.
XI. CONCLUSION 16
XII. NOTICE OF CERTIFICATE OF COMPLIANCE 18
XIII. PROOF OF SERVICE 19
v
III. INTEREST OF PETITIONERS
All the parties listed on the List of All Parties, incorporated
here by reference, are interested parties in the matter.v
IV. TABLE OF AUTHORITIES
CASE LAW PAGE
Statutes and Constitutional Provisions
Protection Against Torture Act 2
The Civil Rights Act, now known as the Electronic 2
Communications Act of 1986 (18 U.S.C. §§ 2510-2520) (1988)
[Title I]) and The Omnibus Crime Control and Safe Streets Act of
1968 (18 U.S.C. §2510-2520) (1968) [Title III]) including,
however not limited to the aforesaid.
Anderson v. Liberty Lobby, Inc., 15
477 U.S. 242 (1986)
Celotex Corp. v. Catrett 2, 11, 12, 13, 15
477 U.S. 317, 106 S.Ct. 2548 (1986)
Central Intelligence Agency v. John Cary Sims and Sidney M.
Wolfe, 7
471 U.S. 159, 85 L.Ed. 2d 185 S.Ct. 1881 (1965)
Doran v. McGinness, 158 F.R.D. 383 (1994) 2, 14, 15
[ “Mental telepathy mind control”]
Matsushita Electric Industry Co. v. Zenith Radio Corp. 12
475 U.S. 574, 587 (1986)
Siderman De Blak v. Republic of Argentina, 2, 14
946 F.2d 1450 (9th Cir. 1991) [Torture]
Thomas v. Wichita Coca Cola Bottling Co., 12
968 F.2d 1022 (10th Circ.) cert. denied, 506 U.S. 1013 (1992)
U.S. v. Koyomejian, 970 F.2d 536 (9th Cir. en banc), cert.
denied. 14 946 F.2d 1450 (1991) [This case was only interpreted
facts pertaining to the criminal context. Electronic-force
excessively intrudes to grossly violate rights to privacy,
especially as to other parties coming in contact with subject
target of surveillance activities]
vi
TABLE OF AUTHORITIES (Con't)
Legislative and Executive Materials and Rules
Federal Rules of Civil Procedure, Rule 43 10, 16
Federal Rules of Civil Procedure, Rule 52 8, 9, 10, 16
Federal Rules of Civil Procedure, Rule 56 7, 8, 10, 11, 12, 16
Federal Rules of Civil Procedure, Rule 65 10, 16
Federal Rules of Civil Procedure, Rule 201(b)
Restatement 702 10
Supreme Court Rule 14(h)(i)(ii) and (vi) 10, 16
vii
IN THE UNITED STATES SUPREME COURT
CHARLES AUGUST SCHLUND, III
and RANDY D. LANG,
Petitioners
vs.
THE UNITED STATES OF AMERICA, et al,
Respondents.
V. PETITION FOR WRIT OF CERTIORARI
Appellant Charles August Schlund, III and Randy D. Lang
(“Petitioners”) in Pro Per, respectfully petitions for a Writ of
Certiorari to review the Judgment of the United States Court of
Appeals for the Ninth Circuit in this case.
VI. OPINION BELOW
The opinion of the Court of Appeals (Appendix No. 1) was ordered
not for publication.
The opinions of the District Court (Appendix No. 2) are unreported.
VII. STATEMENT OF JURISDICTION
The Court of Appeal entered its decision on December 14, 2001
(Appendix No. 1). No Petition for Rehearing was filed. The
jurisdiction of this court is invoked under 28 U.S.C. 1254(1).
VIII. UNITED STATES CONSTITUTION, STATUTORY PROVISIONS AND THE
PROTECTION AGAINST TORTURE AND HUMAN RIGHTS ACT.
Because the text of the citations are too voluminous, Petitioner
hereby complies with Rules of the Supreme Court of the United
States (“Rule”) Rule 14(f). The referenced U.S. Constitutional
Provisions, Federal Statutes, Executive Issuances include: the
First, Second, Fourth, Fifth, Seventh, Ninth, Fourteenth and
Seventeenth Amendments to the United States Constitution; Federal
Torts Claim Act, 28 U.S.C. §§2671 through 2680; 28 U.S.C.
§1346(b); 18 U.S.C. §1964; 42 U.S.C. §§1983 and 1988; Protection
of Human Rights Act; The Convention Against Torture and Cruel,
Inhumane or Degrading Treatment or Punishment of June 26, 1987;
Federal Rules of Civil Procedure, Rules 43, 52, 56, 65 and
Federal Rules of Evidence 201(b); and the conflicting decisions
of (1) Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Doran v.
McGinness, 158 F.R.D. 383 (1994); Siderman De Blak v. Republic of
Argentina, 946 F.2d 1450 (9th Cir. 1991) [Torture].
IX. STATEMENT OF THE CASE AND FACTS
1. Under the Federal Torts Claim Act, 26 U.S.C. §§2671-2680; 28
U.S.C. §1356(b); 42 U.S.C. §§1983 and 1988; The Protection of
Human Rights Act; The Convention Against Torture and Cruel,
Inhumane, or Degrading Treatment or Punishment; and the Civil
Rights Act all serve the purpose of preventing the violation of
individual rights guaranteed under the First, Second, Fourth,
Fifth, Seventh, Ninth, Fourteenth, and Seventeenth Amendments of
the Constitution of the United States. These Acts have been
integrated and are now known as the Electronic Communication
Privacy Act of 1986 (18 U.S.C. §§2510-2520 (1988) [Title I]) and
the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.
§§2510-2520 (1968) [Title III]) and applied to other domestic
statutes to the states as well, which are omitted in the
interests of judicial economy but reserved as a matter of right.
There have been a few cases (Koyomejian, Siderman De Blak, Doran,
of most important) which have focused primarily on the criminal
context of their application to illegal torture under color of
authority and illegal invasion of privacy on the issues of (1)
the gross intrusive level of invasion of privacy through modern
electronic means and (2) the use of modern or state-of-the art
electronic methodology used to torture individual citizens,
including the torture of political witnesses against corrupt
Government officials. Although there are inconsistent Appellate
decisions in the United States Appellate Court and the sparse
publication of such opinions, there is a gross lack of continuity
in the application of law in these areas nationwide, now
requiring Supreme Court Review (Appendix No. 5).
2. Appellant Schlund, an ex-United States Marine, was solicited
by the United States Drug Enforcement Agency (“DEA”) to
participate in various activities of an illegal nature. He
refused. He was then set up by the DEA with fabricated evidence
and arrested and charged as being an alleged drug manufacturer in
Cave Creek, Arizona. The conspiracy by the DEA to fabricate the
evidence was a planned scheme designed to enable them to create a
reasonable suspicion and probable cause for creating an
investigation task force to place Appellant Schlund under
surveillance, to invade his privacy, due process, remoe Schlund
as a witness to corruption in the DEA, and other constitutional
protection and those of whom he comes in contact with. Also, to
discredit him as a political witness and utilize electronic
surveillance for information gathering concerning all those of
whom he comes in contact with, including, but not limited to, the
attorney-client privilege, physician-patient privilege,
clergyman-penitent privilege, privacy of voting privilege,
privacy of association, privacy of speech, etc. The gross
intrusions were also made of his body, personal residence,
papers, affects and things. He asserts in his verified Complaint
(“Complaint”) and many affidavits filed in the case that during
one or more of the episodes of intrusion, subcutaneous body
implants of a CIA design were used by the DEA (“Electronic
Implants”) and separately various forms of electronic vibration,
sounds, magnetic fields, radio waves, and other unknown forms of
torture have been imposed upon him through electronic force
resulting in torturing of him as a form of retaliation and
violation of his civil rights, causing him extensive losses and
damages, personally and in his commercial activities.
3. Petitioner Lang asserted a single declaratory relief cause of
action, asserting the Government does not have the right to use
sophisticated surveillance telecommunications activities and
other integrated devices and methodologies to violate his rights
to privacy and association with Schlund or other members of the
public. Or to harass, torture, or otherwise violate his or other
third parties of whom he associates, or violate protective
privileges also set forth above. Lang asserted the course of
intervention for a declaratory judgment is necessary to prevent
violations under color of authority or retaliate against him for
his association with Petitioner Schlund (Appendix Nos. 3-5).
4. Petitioner Schlund's Criminal Acquittal. Despite the fact
the DEA violated their oath of office while acting under color of
law for the purpose of fabricating evidence, perjured testimony,
and other illegal acts outside the course and scope of their
authority, and in violation of Petitioner Schlund's rights
(Appendix No. 5), Petitioner set the matter for a jury trial.
It was established at the trial that the Government used an
alleged “informant” who lied to induce Schlund by means of
illegal entrapment to come to the location of a laboratory under
false pretenses. The laboratory was set up by the Government to
suck Schlund into the entrapment posture to remove Schlund as a
witness against the DEA to conceal massive corruption in the DEA.
Petitioner Schlund did go to the location, where he was recorded
by electronic surveillance cameras and other telecommunications
related devices and methodology, showing Schlund performing
various activities at the Government's (DEA) directions at the
property located in Arizona (Appendix No. 5). Petitioner Schlund
then left the residence where the so-called laboratory was
located and was followed by the Government surveillance agents
who then arrested him without a warrant and alleged on probable
cause they believed he was operating an illicit methamphetamine
laboratory (Appendix Nos. 3 and 5).
5. Later, on January 3, 1979, Petitioner Schlund after a jury
trial, was “acquitted” in the United States District Court,
Phoenix, Arizona of all charges of conspiracy, etc. related to
the trumped up drug charges that were created to remove
Petitioner Schlund sa a witness against the DEA. The Dept. of
Justice (“DOJ”) appealed that decision, and the decision was
sustained in favor of Schlund (Appendix No. 5).
6. NOTE BENE: Judge Lacey of the United States District Court
aggressively and severely reprimanded and told the governmental
officials and the prosecutor they were “in contempt” and demanded
they be “arrested” for committing “perjury” and “obstructing
justice in his court” and for fabricating evidence against
Petitioner Schlund. The acquittal was upheld on appeal; and on
March 3, 1980 the DOJ and the DEA were advised by the United
States Attorney General, Daniel R. Dray, there would be no
further prosecution on the grounds of lack of evidence, and
presumably because Judge Lacey noted there was “outrageous
prosecutorial misconduct” which included withholding crucial
evidence critical to Petitioner Schlund's defense (Appendix No.
5).
7. Despite the acquittal, the conspiracy, illegal surveillance,
illegal invasion of privacy, and the electronic torture of
Petitioner Schlund was and is continuous and ongoing to present.
Petitioner Schlund has asserted in his verified Complaint that
the DEA tortures him and continues to invade his privacy, based
on personal knowledge he possesses relating to documentation he
personally analyzed and reviewed contained in files known as the
“Don Boles Papers.” That he is a political witness, and the
torture etc. is done to discredit him to protect the corrupt
governmental officials who are involved in the corrupt activity
of the Government's covert operations, which include controlling
federal and state judges in the judicial system. In fact,
Petitioner Schlund filed a Motion to Recuse United States
District Judge, the Honorable Robert C. Broomfield, based on his
personal knowledge as set forth in Petitioner Schlund's Motion
for Refusal and Affidavit in Support of the Motion. The judge
was assigned to his case after the Honorable Rosalyn Silver
recused herself on the grounds she was an ex-United States
Assistant Attorney in the DEA's office for over ten years
(Appendix Nos. 3, 4, and 5), although this was not disclosed by
her and later discovered by Petitioners.
8. On December 18, 1998, the Government filed its two page
pleading entitled “Motion to Dismiss” or, alternatively, “Motion
for Summary Judgment,” asserting only (1) no basis in reality
existed as set forth in the verified Complaint and (2) that
Petitioner Schlund could not prove the existence of the nature of
the electronic technology used by the Government with any
tangible or scientific evidence (Appendix No. 6). Further, that
because Lang's declaratory relief action was based on Schlund's
facts alleged in the Complaint, it was not a viable cause of
action (Appendix Nos. 5 & 6). The Motion to Dismiss was denied.
The Motion for Summary Judgment, oddly enough, was only supported
by a ipse dixit statement asserted in a footnote to the motion
(Appendix 6) that the Government relied exclusively and solely on
Plaintiff's detailed verified Complaint which asserts extensive
specific facts supporting each of the causes of action (Appendix
No. 5). The Government did [not] submit a single foundational
piece of evidence supporting any personal or other factual
knowledge supporting the U.S. attorneys bias, prejudicial, and
self-serving interest “opinion” contrary to the Verified
Complaint - Affidavit. There literally is and was no factual
basis for the attorney's opinion which is not evidence in any
event sufficient to support a Motion for Summary Judgment
(Appendix No. 6). The Court entered judgment on the motion,
despite Petitioners' objections and requests for findings of fact
and conclusions of law (Appendix No. 7).
9. On September 14, 1999, Petitioner filed a Motion for
Reconsideration of the Court's Sept. 1, 1999 Order granting
Summary Judgment and on September 30, 1999 filed Supplemental
Points and Authorities in support of the motion. Petitioner
strenuously urges the Supreme Court to carefully focus on the
Supplemental (Appendix No. 7) as it goes into great detail as to
not only the triable issues of fact, but Supreme Court case law
which supports Petitioner's position previously dealt with by
this Court involving the wide range of scientific and other
electronic-force technologies used not only by the United States
Government but others as well. See, Central Intelligence Agency
v. John Cary Sims and Sidney M. Wolfe, 471 U.S. 159, 85 L.Ed. 2d
185 S.Ct. 1881 (1965) (Appendix Nos. 9 & 10). Petitioner
abundantly laid out the avalanche of triable issues of material
fact set forth in the verified Complaint which was exclusively
relied upon by both the Petitioner and the Government (Appendix
Nos. 5 and 6). Obviously, since the verified Complaint was of
the personal knowledge of Petitioner Schlund and which was
further supported by numerous affidavits (Appendix Nos. 5 7, 8,
9, 10 and 12) and the Government lacked all personal knowledge of
every nature and kind whatsoever, and the U.S. Attorney's
self-serving opinion which is not evidence by any stretch of the
means, especially when only asserted in the two page motion as a
conclusion (Appendix No. 6), the initial burden required under
the Federal Rules of Civil Procedure, Rule 56 was not satisfied;
and no burden shifted to the Petitioner to overcome the motion as
a matter of law (Appendix Nos. 3-5 and 7-12). On December 14,
1999, the District Court entered its Order denying Plaintiff's
Motion for Reconsideration (Excerpt 2).
10. Because the Government relied exclusively on the verified
Complaint (as did Petitioner), and failed to file a separate
Statement of Facts required under F.R.C.P. Rule 52 and 56,
Petitioner did not file a formal Opposition; and Petitioner
relied on his pleading on grounds the Government did not assert
any issues relevant or actually involved as asserted in the
Petitioner's verified Complaint. Petitioner advised the court of
this fact only for the purpose to explain that the Government did
not file an answer to the verified Complaint, its Motion for
Summary Judgment was based on facts not asserted in the verified
Complaint but made up and fabricated by the Government (“mental
telepathy”, which was never pled), and the Petitioner had no
controverting issues or arguments to its own verified pleading,
solely relied upon by both the Government and the Petitioner.
The Government did not file any opposition to Petitioner's Motion
for Reconsideration on the issues (Appendix Nos. 3, 4, 5, and 7).
11. Petitioner filed his Notice of Appeal and Appellate Opening
and Reply Briefs (Appendix Nos. 3 and 4). Petitioners filed an
injunctive relief Notice and Motion for Order for Relief from
Governmental Invasion of Privacy, Harassment and Torture of
Petitioner Schlund on July 21, 2000 (Appendix Nos. 8 & 9) to stop
the irreparable harm which was summarily denied (Appendix No. 8)
on September 20, 2000. The Appellate Court then noticed the
parties the court was ready for calendaring. The court continued
failed and refused to render findings of fact and conclusions of
law as specifically requested in the motion (Appendix Nos. 3-5
and 7-12).
12. Petitioners filed an Notice and Motion for Order for
Clarification of Order of Denial of Plaintiff's Motion for Order
for Relief on the grounds (1) the denial order did not specify
the reasons for the denial adequate for appeal or review required
under F.R.C.P. Rule 52 and 56, (2) the motion involved three
distinct and independent reasons for the granting of such motion,
relative to the different causes of action asserted by the
separate Petitioner's positions on appeal on the merits, (3) the
denial of the motion without specific reason leads to the awkward
impression the court is intentionally disregarding the testimony
under oath and ratifying the electronic torture of Petitioner
Schlund, and (4) both Petitioners specifically requested findings
of fact and conclusions of law in support of the motion for an
adequate record for further review by special writ, which
violated Petitioner's due process, resulting in prejudicial error
by depriving the Petitioners an adequate record for appeal to the
United States Supreme Court on the injunctive issues (Appendix
No. 9).
13. Petitioner filed a Notice of Request for Oral Argument
(Appendix No. 10), along with a Notice of Request for Disclosure
of Case Classification (Appendix No. 11) related to the case
under Federal Rules of Appellate Procedure, “Court Structure and
Procedures,” E [Court Procedures for Processing and Hearing of
Cases] (1) Classification of Cases by Type, Issue, and
Difficulty. Petitioners were concerned that the “weight of a
case” is not merely an indication of the relative amount of
judicial time that will probably be consumed in disposing of the
appeal but the fact it is possibly a “pretext” under the Rule for
the unconstitutional and improper “profiling” of a case
selectively targeted for dismissal without any findings of fact
and conclusions of law, such as here. All of the aforesaid were
either (1) not responded to at all by the Ninth Circuit Court of
Appeals or (2) summarily “denied” without the repeatedly
requested findings of fact and conclusions of law under F.R.C.P.
Rule 52.
14. Petitioners filed a Notice and Motion for (1) Order of
Suspension of Motion Deadline and (2) Motion for Summary
Judgment, or Alternatively, (3) Partial Adjudication of the Facts
(Appendix No. 12), which was also summarily denied by the
Appellate Court.
15. The verified Complaint specifically requested findings of
fact and conclusions of law (Appendix No. 5 at p. 17, par. 5,
lns, 3-5) and continuously requested such findings of fact and
conclusions of law in every pleading and brief filed with the
Trial and Appellate Court and has never been waived (Appendix
Nos. 3-5 and 7-12). Despite these continuous written and
repeated requests for findings of fact and conclusions of law,
all have been rejected by the Trial and Appellate Court by simply
failing and refusing to comply with F.R.C.P. Rules 43, 52(c), 56,
65, and Restatement 702. Petitioners have no adequate record for
the Supreme Court to review per Supreme Court Rule 14(h)(i)(ii)
and (vi).
REASONS FOR GRANTING THE PETITION
As it stands, the Ninth Circuit Court of Appeals has entered
decisions in conflict with the decision of previous cases it
decided by simply refusing to respond to the important issues
raised in Petitioner's verified Complaint, Appellate Briefs and
Motions (1) which are directly in conflict with United States
Supreme Court decisions and other circuit courts on the same
important matter; (2) the District Court and Ninth Circuit Court
of Appeals failed to decide important federal questions of
genuine issues of material fact based on constitutional and
federal statutes prohibiting (a) invasion of privacy etc. and (b)
torture of a citizen; and (3) the District Court and the Court of
Appeals has so far departed from the accepted and usual course of
judicial proceedings, or the Appellate Court sanctioned such a
departure by the Central District Court as to now call for an
exercise of this Court's discretion of its supervisory power to
compel the Ninth Circuit Court of Appeals to make findings of
fact and conclusions of law for a proper appellate record, to
allow Petitioners to exercise their due process rights pursuant
to the Rules of the Supreme Court of the United States, Rule
14(1)(h)(i)(i)(ii) [This Rule specifically requests the Appendix
contain the order indicating the “findings of fact and
conclusions of law,” whether written or orally given and
transcribed, entered in conjunction with the judgment sought to
be reviewed, and any other “findings of fact and conclusions of
law” entered in the case.] Petitioner's due process rights have
been effectively cut off by not having findings of fact and
conclusions of law from which to present to the United States
Supreme Court, despite they were repeatedly requested by
Petitioners and never waived. Likewise, Petitioner specifically
requests the Honorable United States Supreme Court for findings
of fact and conclusions of law for purposes of this appeal as
well.
X. LEGAL ARGUMENTS
A. The Court Erred in Interpreting The Supreme Court's Decision
of Celotex Corp. V. Catrett And Failed to Make Findings of Fact
And Conclusions of Law, Despite Petitioners Requested Such For
Review on Appeal.
This Supreme Court, in the Celotex Corp. v. Catrett, 477 U.S.
317, 106 S.Ct. 2548 (1986) court decision established the
controlling standard and initial evidence shifting standard on
Motions for Summary Judgment under F.R.C.P. Rule 56(c)...“The
judgment sought shall be rendered forthwith if the
pleadings....together with affidavits, if any, show there is no
genuine issue as to any material fact; and the moving party is
entitled to a judgment as a matter of law...” Under (e) [Form of
Affidavits], “Supporting an opposing affidavit should be made on
personal knowledge, shall set forth fact as would be admissible
in evidence, and shall show affirmatively that the affiant is
competent to testify to the matter stated therein. Sworn or
certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith...when a
Motion for Summary Judgment is made and supported as provided in
this Rule, an adverse party may not rest upon the mere
allegations or denials of the adverse party's pleading, but the
adverse party's response...must set forth specific facts showing
there is a genuine issue for trial...”
The form of affidavit exclusively relied upon by the Government
was the exact same affidavit relied upon by Petitioners—a
pleading—Petitioner's verified Complaint (Appendix Nos. 3, 4, and
5). Petitioners have personal knowledge of the facts stated in
the verified Complaint, while the Government did not (Appendix
No. 7). The Government did not satisfy the requirement under
Rule 56(e), made and supported as provided in this Rule, an
adverse party (Government) may not rest upon the mere allegations
... of the adverse [Government] party's pleading...” as the
Government did here. Thus, the Government has the “initial”
burden of filing their Motion for Summary Judgment, made and
supported as provided in the Rule, which requires it cannot
exclusively rest upon the mere allegations of Petitioner's
verified Compliant (Affidavit) for doing so. The Government
placed its lack of personal knowledge, lack of foundation, and
nothing more than merely the ipse dixit (the Assistant Attorney
General's personal opinion and conclusion), which is not
evidence, leaving the Government in a position of not satisfying
the initial burden under Rule 56(e) (Appendix Nos. 3, 4, and 5).
The court's granting of the Motion for Summary Judgment,
declaring there were no triable issues and material fact was
prejudicial error, requiring reversal (Appendix No. 8).
The District Court and the Ninth Circuit Court of Appeals,
upholding the decision, placed the Celotex decision in direct
conflict with the United States Supreme Court's decision in
Matsushita Electric Industry Co. v. Zenith Radio Corp. 475 U.S.
574, 587 (1986), “The initial burden is with the movant to point
to those portions of the record that demonstrate an absence of a
genuine issue of material fact given the relevant substantive
law.” Also citing Thomas v. Wichita Coca Cola Bottling Co., 968
F.2d 1022 (10th Circ.) cert. denied, 506 U.S. 1013 (1992), which
requires the court to view the evidence of the record and draw
all reasonable inferences in the light most favorable to the
non-movant (Petitioners). This Supreme Court established that
when a party (Government) relies on only conclusionary
allegations, it cannot defeat a properly supported Motion for
Summary Judgment, nor can a party make a Motion for Summary
Judgment relying on “conclusionary allegations,” especially with
nothing more than inadmissable attorney opinion and conclusions
such as here.
In other words, Petitioners filed a specific and detailed Motion
for Summary Judgement in the Appellate Court (Appendix No. 12)
requesting findings of fact and conclusions of law to compel the
Ninth Circuit Court of Appeals to establish a record for
Petitioners supporting, in fact, there were no genuine material
issues of fact raised in the verified Complaint pled on the
personal knowledge of Petitioner Schlund, contrary to the mere
attorney opinion filed in the District Court based on Celotex.
Instead of flushing out the truth of what genuine issues of
material fact did or did not exist, both the District Court and
the Ninth Circuit Court of Appeals failed and refused to issue
findings of fact and conclusions of law, despite being repeatedly
requested by Petitioners at every stage in the proceedings, which
have never been waived (Appendix Nos. 3-12).
Petitioners can only conclude the Honorable District Court, the
Ninth Circuit Court of Appeals Court, simply did not know what to
do in a perplexing situation in which both the Plaintiff and the
Defendant move for Motions for Summary Judgment relying on
exactly the same verified pleading, such as here (Appendix Nos.
5, 7, 8, and 12) [At the District Court level, the Government
relied on Petitioner's verified pleading and moved for Summary
Judgment on attorney's opinion; and Petitioner's move for Summary
Judgement, at the Appellate level, on the same set of pleadings,
requesting findings of fact and conclusions of law, at both
stages of the proceedings both courts failed and refused to
accommodate the request because of the reliance on this Court's
Celotex decision and its previous Ninth Circuit's decisions,
which have never dealt with this type of factual scenario. This
case is a case of first impression, requiring the United States
Supreme Court to exercise its discretion and use its supervisory
powers so there is continuity in the application of its decisions
concerning motions for summary judgement, such as here (Appendix
Nos. 4, 8, and 12).
B. The District Court Greatly Departed From The Accepted And
Usual Course of Judicial Proceedings, Which The Appellate Court
Ratified When it Accepted The Government's Fabrication of Fact to
The Doran Case And Then Refused to Make Findings of Fact And
Conclusions of Law, Requested by Petitioners, Requiring The
Exercise of The United States Supreme Court Supervisory Power to
Protect Petitioner's Constitutional Rights.
The Ninth Circuit Court of Appeals in Siderman De Blak v.
Republic of Argentina, supra [Torture] and The United States v.
Koyomejian, 946 F.2d 1450 (1991) [Gross Intrusion and Invasion of
Privacy Through Sophisticated Electronic Tele-Communication
Devices] should be interpreted together in support of
Petitioner's Motion for Summary Judgement filed with the Ninth
Circuit Court of Appeals requesting findings of fact and
conclusions of law on that issue, which it failed and refused to
do (Appendix Nos. 3-12). The Ninth Circuit Court of Appeals has
stated such technology does in fact exist, irrespective of
whether its ignored by the lower court (Appendix No. 4). The
Ninth Circuit Appellate Court clearly acknowledged the factual
reality of the Government's gross misuses of “technology and
devices” to violate innocent citizens privacy and “its” use of
“torture” by the Government on its citizenry (Appendix Nos. 3 and
4). The United States Supreme Court in Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986) again established, after its
Celotex decision that “the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his
favor.” The Government's exclusive reliance on Petitioner's
verified Complaint constitute a stipulation by the Government
that the additional factual averments, along with all justifiable
inferences, were to be drawn in favor of the Petitioner, not
reached in the Government's partial Motion for Summary Judgment.
The Ninth Circuit Court of Appeals issued its grave concerns
about the Government's use of such technology, the fact of its
existence, and then failed and refused to issue Petitioner's
findings of fact and conclusions of law as to whether such
technology could actually be used to not only invade privacy but
to be used more modernly to torture Petitioner Schlund, causing
the injury and damages as pled in his verified Complaint
(Appendix Nos. 3, 4, 5, 8, 9 and 12). Petitioner Schlund has
continuously objected to various governmental departments,
including but not limited to the DOJ and DEA, but also the courts
concerning the torture of him, his witnesses, and his attorney
and altering of evidence (Appendix No. 5). The Government did
not file an Answer or any other document placing any of the
allegations in the Verified Complaint in dispute. Instead it
switched the fact, claiming Petitioners pled “mental telepathy”
and cited the Doran v. McGinness case as controlling and moved
for Summary Judgment, based on Celotex. Judge Broomfield failed
to recuse himself, although no opposition was ever filed to
Petitioner's Motion for Recusal then granted Summary Judgment and
disregarded Petitioner's repeated request for findings of fact
and conclusions of law on the basis of its decision (Appendix
Nos. 3, 4, and 8-12).
It ignored the facts stated on Petitioner Schlund's personal
knowledge in his verified Complaint and affidavits in support and
in opposition to the Summary Judgment, it accepted the
Government's conclusionary opinions the Complaint alleged “mental
telepathy” when it clearly did not, and it allowed the
application of the Doran decision to control on “mental
telepathy”, where no such factual issues were raised in the
verified Complaint or anywhere else by Petitioners. Thus, it
grossly departed from the normal rules of procedure and fairness
and allowed the creation of facts which didn't exist and attached
controlling law which was not at issue to such facts and
deliberately entered an order dismissing the action, depriving
Petitioners of a right to a jury trial, which has also never been
waived (Appendix No. 5, p. 1).
Needless to say, such grave departure and ratification of same
by the Appellate Court have the effect of ratifying not only
torture, gross invasion of privacy, denial of a right of a jury
trial through procedural gainsmanship, but also have resulted in
gross impropriety and destruction of the appearance of justice so
cherished by the honorable court system. Moreover, the gross
departure by both the lower and Appellate Court of the United
States Supreme Court's rules (Rule 14(h)(i)(ii) and (vi), federal
law, and case law decisions against torture and other violations
of constitutional right, including its Supreme Court rules for
procedure for the lower courts to follow (F.R.C.P. 43, 52, 56 and
65), now necessitate the discretion of the Honorable United
States Supreme Court to clarify for the lower courts such
departures should not be tolerated at the cost of its citizenry
and the dignitary powers of the United States Supreme Court's
rules, case law, and the federal enactments and provide
continuity again for the courts to follow.
CONCLUSION
The Petition for Writ of Certiorari should be granted.
Petitioners request the Court to vacate the Ninth Circuit Court
of Appeals' decisions and order it to make findings of fact and
conclusions of law for an adequate record for the Supreme Court's
review if it becomes necessary in the interests of justice.
Respectfully submitted,
Date
Charles A. Schlund, III
Petitioner in Pro Per
Date:
Randy D. Lang
Petitioner in Pro Per
XII. CERTIFICATE OF COMPLIANCE
Petitioners Petition for Writ of Certiorari complies with
Arizona Supreme Court Rules, Rules 10 et seq., where applicable
as to form and content.
March 14, 2001
Date Randy D. Lang
Petitioner In Pro Per
XIII. NOTICE OF PROOF OF SERVICE
I, Randy D. Lang, the undersigned, certify and declare that I am
over the age of 18 and reside in Maricopa County, State of
Arizona. On March 14, 2000, I served by First Class Mail (40)
copies of the Petition for Writ of Certiorari, and its Appendix,
and two copies to all parties listed on the List of Parties named
at the beginning of this document.
I declare, under penalty of perjury, that the foregoing is true
and correct to the best of my knowledge.
Date: March 14, 2001 By
Randy D. Lang, Declarant
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Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
The Best Way To Destroy Enemies Is To Change Them To Friends
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