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Questions Presented For Review On September 10, 2012, Petitioner, Montgomery Blair Sibley filed an original jurisdiction petition with the District of Columbia Court of Appeals. On September 17, 2012, the Respondent in that action filed its Motion to Dismiss that Petition. The following day, on September 18, 2012, before Petitioner had received let alone replied to the Motion to Dismiss, the District of Columbia Court of Appeals reviewed, relied upon and then granted Respondents Motion to Dismiss. Accordingly, presented for review are the following questions: WHETHER, the arbitrary refusal of the District of Columbia Court of Appeals to hear Petitioner in opposition to the Motion to Dismiss before granting that Motion was a denial of a meaningful hearing before an impartial tribunal and, therefore, a denial of due process in the constitutional sense. WHETHER, this Court is to permit nay encourage the continued erosion by the lower courts of the fundamental right of audi alteram partem by denying Certiorari in this matter.

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Table of Contents Questions Presented for Review . . . . . . . . . . . . . . . . i Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . iii Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Constitutional Provisions, Treaties, Statutes, Ordinances and Regulations Involved . . . . . 2 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . 2 Reasons for Granting the Writ . . . . . . . . . . . . . . . . 6 I. There Must Be a Remedy to a Court That Refuses to Hear Before Deciding .................................... 7 This Court Must Rule upon the Permissible Scope, if Any, of Sua Sponte Dismissals . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

II.

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Contents of Appendix . . . . . . . . . . . . . . . Appendix-1 The September 18, 2012, order . . Appendix-2 The October 2, 2012, order . . . . . Appendix-4

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Table of Authorities Cases

Bullock v. Carter, 405 U.S. 134 (1972) . . . . . . . . . . 9 Burson v. Freeman, 504 U.S. 191 (1992) . . . . . . 5, 9 Day v. McDonough, 547 U.S. 198 (2006) . . . . . . . . 8 Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 10

In re Murchison, 349 U.S. 133 (1955) . . . . . . . . . . 7 Lane v. Wilson, 307 U.S. 268 (1939) . . . . . . . . . . 10 Neitzke v. Williams, 490 U.S. 319 (1989) . . . . . . . . 8 Peters v. Kiff, 407 U.S. 493 (1972) . . . . . . . . . . . . . 7 Powell v. Alabama, 287 U.S. 45 (1932) . . . . . . . . . 7 Smith v. Allwright, 321 U.S. 649 (1944) . . . . . . . 10
Other Authorities William Howard Taft, Three Needed Steps of Progress, 8 American Bar Association Journal 36 (Jan. 1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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Petition for Writ of Certiorari to the District of Columbia Court of Appeals Petitioner, Montgomery Blair Sibley (Sibley), prays that a writ of certiorari issue to review the orders of the District of Columbia Court of Appeals (Court of Appeals) entered on September 18, 2012, and October 2, 2012. If this Court is going to keep the promise of Chief Justice Taft made in 1922 to Congress in support of the Justice Bill which established the certiorari jurisdiction of this Court that: the most careful consideration, would be given to each matter and only frivolous cases or cases addressed to principals of law that were well settled would be summarily denied, then review is mandated as the Court of Appeals: (i) decided an important question of federal law that has not been, but should be, settled by this Court under its supervisory authority, and (ii) has decided an important federal question in a way that conflicts with relevant decisions of this Court. Opinions Below The September 18, 2012, order is attached to the Appendix hereto, Appendix-2. The October 2, 2012, order is attached to the Appendix hereto, Appendix-4.

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Jurisdiction The jurisdiction of this Court is invoked under Article III and the Ninth Amendment to the United States Constitution and 28 U.S.C. 1257. Jurisdiction of the Court of Appeals was invoked pursuant D.C. Code 2-510 and 11-722. Constitutional Provisions, Treaties, Statutes, Ordinances and Regulations Involved D.C. Code 2-510(a) states in pertinent part: Any person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Mayor or an agency in a contested case, is entitled to a judicial review thereof in accordance with this subchapter upon filing in the District of Columbia Court of Appeals a written petition for review. D.C. Code 2-502(8) defines contested case as: a proceeding before the Mayor or any agency in which the legal rights, duties, or privileges of specific parties are required by any law (other than this subchapter), or by constitutional right, to be determined after a hearing before the Mayor or before an agency . . .. Statement of the Case On November 11, 2011, Sibley formally announced his candidacy for the Office of President and qualified as a Write-In candidate for that Office by filing with the District of Columbia Board of

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Elections and Ethics (BOEE) his Affirmation of Write-In Candidacy. On April 18, 2012, Sibley filed a Petition with the Court of Appeals seeking review of: (i) the January 9, 2012, BOEE written determination that Barack Hussein Obama, II (Obama) had met the qualifications to appear on the Democratic Party primary ballot for the Office of President of the United States and (ii) the April 18, 2012, BOEE written determination that Obama was eligible to appear on the November 6, 2012, ballot for President of the United States. That suit was assigned Case No.: 12-AA-516. On May 29, 2012, the District of Columbia Court of Appeals dismissed the petition in Case No.: 12-AA-516 holding in pertinent part: (i) Any petition for review from a purported order dated January 9, 2012, was untimely. . . . As to the April 18, 2012 certification that President Barack Obama won the Democratic Primary, petitioner did not vote in the primary and therefore, he is barred from seeking review with this court. In the interim, on April 19, 2012, Sibley, both as a voter in the District of Columbia and a candidate for President served on BOEE a written request (Request) that BOEE review the qualification of Obama to be eligible to be President and thus on the ballot for the November 6, 2012, election. That Request was accompanied by substantial and competent evidence that Obama was not a natural

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born Citizen and that his publicly proffered Certificate of Live Birth was a forgery. As BOEE had not responded to that Request by September 10, 2012, Sibley filed a second Petition with the Court of Appeals. That Petition was assigned Case No.: 12-AA-1498. In distinction to Case No.: 12-AA-516, the Petition in Case No.: 12-AA-1498 sought resolution by the Court of Appeals of Sibleys constitutional right both as a voter and qualified Write-In candidate in the November 6, 2012, Presidential election to have an election free of the taint of fraud. In particular, Sibley raised under the authority of D.C. Code 2-510(a) the first impression question of whether the BOEE denied Sibleys due process property rights as a voter and candidate when it refused to review the substantial evidence Sibley presented to BOEE that Obama was ineligible under Article II, 1, of the U.S. Constitution to be on the November 6, 2012, general election ballot as the Democratic candidate for President. Contemporaneously with the filing of the Petition, Sibley filed a motion to expedite and for oral argument. On September 17, 2012, the BOEE filed its Motion to Dismiss the Petition in Case No.: 12-AA-1498. The following day, September 18, 2012, before Sibley had received or replied to the Motion to Dismiss, the Court of Appeals denied Sibleys motion to expedite and for oral argument and then explicitly relying upon the arguments contained in BOEEs Motion to Dismiss dismissed the Petition stating: [R]espondents motion to dismiss is granted as this

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court has jurisdiction to hear only contested case agency appeals. See D.C. Code 2-510 (2001). Additionally, any petition for review from purported orders dated January 9, 2012, and April 18, 2012, is untimely. Further, petitioner did not challenge the validity of the nominating petition. See 3 DCMR 1404. Moreover, petitioner did not vote in the primary election and therefore he is barred from seeking review in this court of the April 18, 2012, certification that President Barack Obama won the Democratic Primary. See D.C. Code 1-1001.11(b)(l)(2011). Appendix-2. In response, Sibley filed on September 25, 2012, his Motion to Vacate the September 18, 2012, order and to disqualify the Panel, or alternatively, for reconsideration of the order granting the motion to dismiss. In that Motion, Sibley pointed out that he was raising in Case No.: 12-AA-1498 an issue not raised in Case No.:12-AA-516, to wit; whether Sibley had a constitutional right to a hearing arising from the property right that Sibley enjoyed both as a voter and qualified candidate. As to the former, Sibley argued that right flows from the constitutional right to cast a ballot in an election free from the taint of intimidation and fraud. Burson v. Freeman, 504 U.S. 191, 211 (1992). As to the latter, Sibley as a candidate in a republican form of government claimed that he has the property right to face only eligible candidates against whom he has to compete for the publics vote. On October 2, 2012, the Court of Appeals

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denied Sibleys motion to vacate, disqualify and for reconsideration stating: Based on the facts alleged by petitioner, no reasonable observer could question this panel's impartiality. See: Kreuzer v. George Washington Univ., 896 A.2d 238,249-50 (D.C. 2006); York v. United States, 785 A.2d 651, 655 (D.C. 2001). Additionally, this court has the authority to decide its own jurisdiction sua sponte or by motion. It is FURTHER ORDERED that the motion for reconsideration is denied because this court previously considered and rejected all of petitioners arguments in his petition for review and alternative request for petition for writ of mandamus. Appendix-4. Reasons for Granting the Writ The first compelling reason for granting this Writ is to secure a remedy for a patent breach of the fundamental right to an impartial tribunal that hears before it decides something the Court of Appeals has clearly ignored. Alternatively, to deny this writ is to condone this grotesque emasculation of the fundamental right of audi alteram partem and thereby render void the fundamental compact between the People and their government upon which American Jurisprudence is grounded. The second compelling reason for granting this Writ is to establish the permissible scope, if any, of sua sponte dismissals. Such a determination is necessary to prevent the denial of access to court such a dismissal creates when courts such as the Court of Appeals here abuse that authority by refusing to

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allow a hearing prior to a sua sponte dismissal. I. There Must Be a Remedy to a Court That Refuses to Hear Before Deciding

It is beyond dispute that [a] fair trial in a fair tribunal is a basic requirement of due process. Fairness, of course, requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. In re Murchison, 349 U.S. 133, 136 (1955). Likewise, in Powell v. Alabama, 287 U.S. 45 (1932) this Court stated: If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party . . . it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense. Id. at 69. Moreover, even if there is no showing of actual bias in the tribunal, this Court has held that due process is denied by circumstances that create the likelihood or the appearance of bias. Peters v. Kiff, 407 U.S. 493 (1972). Here, by arbitrarily refusing to hear Sibley before ruling on BOEEs Motion to Dismiss, the impartiality of the Court of Appeals most certainly creates the appearance of bias in favor of BOEE. Accordingly, in order to insure that the [a] fair trial in a fair tribunal remains a basic requirement of due process, this Court must act decisively to secure that right by providing the remedy of granting

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the prayed for Writ in this matter. II. This Court Must Rule upon the Permissible Scope, if Any, of Sua Sponte Dismissals

to any authority, the Court of Appeals in their order of October 2, 2012, stated: Additionally, this court has the authority to decide its own jurisdiction sua sponte. Appendix-4. Notably, in its Order of September 18, 2012, the Court of Appeals made no mention of its dismissal being sua sponte, instead expressly relying upon BOEEs motion to dismiss. Significantly, this Court has not had occasion to pass judgment, however, on the permissible scope, if any, of sua sponte dismissals under Rule 12(b)(6). Neitzke v. Williams, 490 U.S. 319 (1989). Nonetheless, subsequent to Neitzke, in an analogous area, this Court made clear that: In sum, we hold that district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoners habeas petition. . . . Of course, before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions. Day v. McDonough, 547 U.S. 198, 209 (2006)(Emphasis added). Here, acting ex post facto sua sponte, the Court of Appeals did not accord Sibley an opportunity to present his position. If they had, the presumption and plain error of the Court of Appeals concluding

Ex post facto and ex cathedra without citation

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that this court previously considered and rejected all of petitioners arguments in his petition for review would be shown to be simply wrong. Appendix-4. If the Court of Appeals is referring to their decision in Case No.: 12-AA-519, Sibley never raised the issue of the constitutional right of a voter and/or candidate to an election free from frivolous or fraudulent candidacies Bullock v. Carter, 405 U.S. 134, 145 (1972) and to cast a ballot in an election free from the taint of intimidation and fraud. Burson v. Freeman, 504 U.S. 191 (1992). Indeed, the issue in Case No.: 12-AA-519 solely dealt with review of BOEEs January 9, 2012, and April 18, 2012, written decisions. Alternatively, if the Court of Appeals is referring to Case No.: 12-AA-1498, such a holding is inane: Sibley never was given the opportunity to present any arguments in opposition to BOEEs Motion to Dismiss, hence the Court of Appeals is simply prevaricating when it holds that it considered and rejected such arguments. Appendix-4. Either way, Sibleys fundamental right to audi alteram partem has been eviscerated because this Court has left the scope of sua sponte dismissals undefined. Thus, as with the harm the improper application of the Rooker-Feldman doctrine caused which resulted in thousands losing access to federal court while this Court waited decades to rein-in the lower courts abuse of the Rooker-Feldman doctrine the lower courts unchecked use of sua sponte

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dismissals have resulted in such dismissals being construed to extend far beyond the contours of the binding restrictions of audi alteram partem resulting as with the Rooker-Feldman doctrine in multitudes being denied their right to access court. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005). Accordingly, as sua sponte dismissals are clearly being abused and in order to give guidance to the lower courts when, if at all, sua sponte dismissals are permissible, this Court must grant this Petition to determine that scope. Conclusion As this Court has often noted, constitutional rights would be of little value if they could be . . . indirectly denied. Smith v. Allwright, 321 U.S. 649, 664 (1944). The Constitution nullifies sophisticated as well as simple-minded modes of infringing on constitutional protections. Lane v. Wilson, 307 U.S. 268, 275 (1939). This Petition presents this Court with the sole remedy available to Petitioner to prevent the infringment of his constitutional rights to an impartial tribunal and audi alteram partem. Therefore, in so much as this case raises matters that are neither frivolous nor addressed to principals of law that are well settled, this Court is obligated to grant this Petition or breach Chief Justice

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Tafts promise to Congress and the Citizens of these United States when this Court was granted certiorari jurisdiction.1 Montgomery Blair Sibley Petitioner 4000 Massachusetts Ave, N.W. Suite #1518 Washington, D.C. 20016

1 William Howard Taft, Three Needed Steps of Progress, 8 American Bar Association Journal 36 (Jan. 1922).

Appendix-1 Contents of Appendix Opinions Below The September 18, 2012, order . . . . Appendix-2 The October 2, 2012, order . . . . . . . Appendix-4

Appendix-2 District of Columbia Court of Appeals NO. 12-AA-1498 September 18, 2012 MONTGOMERY BLAIR SIBLEY, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent. _____________________________________/ BEFORE: Oberly and Easterly, Associate Judges, and Steadman, Senior Judge. ORDER On consideration of the petition for review, wherein it appears petitioner makes an alternative request for a petition for writ of mandamus, petitioner's motion to expedite and for oral argument, and respondent's motion to dismiss, it is ORDERED that respondent's motion to dismiss is granted as this court has jurisdiction to hear only contested case agency appeals. See D.C. Code 2-510 (2001). Additionally, any petition for review from purported orders dated January 9, 2012, and April 18,

Appendix-3 2012, is untimely. Further, petitioner did not challenge the validity of the nominating petition. See 3 DCMR 1404. Moreover, petitioner did not vote in the primary election and therefore he is barred from seeking review in this court of the April 18, 2012, certification that President Barack Obama won the Democratic Primary. See D.C. Code 1-1001.11(b)(l)(2011). It is FURTHER ORDERED that petitioner's motion to expedite and for oral argument is denied as moot. It is FURTHER ORDERED that petitioner's alternative request for a petition for writ of mandamus is denied. See: In re MO.R., 851 A.2d 503, 509 (D.C. 2004); Banov v. Kennedy, 694 A.2d 850,857 (D.C.1997). PER CURIAM

Appendix-4 District of Columbia Court of Appeals NO. 12-AA-1498 October 2, 2012 MONTGOMERY BLAIR SIBLEY, Petitioner. vs. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent. ______________________________________/ BEFORE: Oberly and Easterly, Associate Judges, and Steadman, Senior Judge. ORDER On consideration of petitioners motion to vacate and disqualify the panel, or, alternatively, for reconsideration of this court's September 18, 2012, order granting respondent's motion to dismiss, it is ORDERED that the motion to vacate and disqualify the panel is denied. Based on the facts alleged by petitioner, no reasonable observer could question this panel's impartiality. See: Kreuzer v. George Washington Univ., 896 A.2d 238,249-50 (D.C. 2006); York v. United States, 785 A.2d 651, 655 (D.C.

Appendix-5 2001). Additionally, this court has the authority to decide its own jurisdiction sua sponte or by motion. It is FURTHER ORDERED that the motion for reconsideration is denied because this court previously considered and rejected all of petitioners arguments in his petition for review and alternative request for petition for writ of mandamus. PER CURIAM