Mind Control ForumMy name is Charles Schlund and I would like to submit my lawsuit against the
United States for others to view to aid them the filing of such
lawsuits against those torturing them.
I am under heavy torture and my freedom of speech is almost totally
removed under this torture in retaliation for the filing of this lawsuit
before the Supreme Court. Chuck
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.
iv
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