THE GRIEVANCE ADMINISTRATOR

ABUSED HIS DISCRETION IN FAILING

TO FULLY AND PROPERLY INVESTIGATE ALL

ASPECTS OF PLAINTIFF’S COMPLAINT:

FACTS:

Plaintiff filed his request for investigation, pursuant to the Rules of the AGC

on or about June 25, 2007 alleging numerous instances of misconduct by the

three (3) attorneys referenced therein. Specifically, Plaintiff’s Request for

Investigation centered on “(1) for violation of the Michigan Rules of

Professional Conduct and (2) the perpetration of a “fraud upon the court”

(See Exhibit “C” of the Complaint for Superintending Control, which is

incorporated herein by reference).

Further, Plaintiff’s Request for Investigation set forth specific portions of the

Michigan Rules of Professional Conduct which the misconduct of the

respondent attorneys had violated;

MPRC 3.1,3.3(a)(1),(2),(4)(b);3.4(a),(b),(d),(e),(f)(1) and(2), 3.5(a) and (b).

The AGC Administrator makes no mention, whatsoever, of the results, if any

be had, to the allegations contained in the Request for Investigation relative

to the numerous violations of the MRPC.

1 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S

ANSWER AND BRIEF REGARDING THE COMPLAINT FOR
SUPERINTENDING CONTROL
 STATUTE OF LIMITATIONS

CRIMINAL PROSECUTION:

The AGC Administrator, in its response to this Court, seemed to limit its

investigation to the sole issue of whether or not AG COX and Assistant AG

WEILER, were aware that the statute of limitations had expired prior to the

initiation of the criminal prosecution. (See Pg 2 of AGC Argument, foot

note 1).

It should be noted here, that Plaintiff provided “proof” that the AG and his

Assistant were aware of the statute of limitations issue as early as October,

2000 by way of the transcript from a hearing before Judge Duncan Beagle

where the FOC Attorney referenced the issue in “open court” (See Exhibit

“G” of the Complaint for Superintending Control and is incorporated herein

by reference).

In reality, the statute of limitations for criminal prosecution of this Plaintiff

for a failure to pay child support had already expired before the October 20,

2000 Court Hearing referenced in Exhibit “G”, supra.

MCL 767.24(5) is the statute that imposes a six year limitations period for

the prosecution of a violation of MCL 750.165 from the eighteenth birthday

of the minor child. People v. Monaco, 474 Mich. 48, 710 NW2d 46 (2006).

2 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S

ANSWER AND BRIEF REGARDING THE COMPLAINT FOR
SUPERINTENDING CONTROL
Plaintiff’s minor child emancipated on July 30, 1994, the six year period to

initiate a prosecution of the Plaintiff expired in July, 2000.

Statutes of limitations are statutes of repose representing a pervasive

legislative judgment that it is unjust to fail to put the adversary on notice to

defend within a specified period of time and that the right to be free of stale

claims in time comes to prevail over the right to prosecute them.” U.S.

Kubrick, 44 U.S. 111 (1979).

The Administrator’s position, that this Court’s determination in People v.

Monaco, , id, (2006) finally decided the statute of limitations issue is

flawed. In reality, this Court’s decision did not alter the Court of Appeals

rationale on the question of the application of the statute of limitations but

rather, overruled the holding of People v. Westman, 262 Mich. App. 184

(2004), to the effect that violations of MCL 750.165 were “continuing

offenses”. Additionally, this Court held that carrying an arrearage did not

violate MCL 750.165 as amended. People v. Monaco, id.

As such, for the AGC Administrator to assert that his discretion was not

abused by failing to investigate the misconduct of the Attorney General and

his Assistant, on this allegation, is itself, an abuse of discretion as it “exceeds

the bounds of reason, considering all the circumstances”. Yeap v. Leake, 60

Cal. App. 4th 591, 70 Cal.Rptr 2d 680 (1997).

3 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S

ANSWER AND BRIEF REGARDING THE COMPLAINT FOR
SUPERINTENDING CONTROL
 THE FRAUD UPON THE COURT:

In addition to the foregoing, Plaintiff’s Request for Investigation, set forth

specific facts relative to the manner in which the “fraud upon the court” was

perpetrated by the offending attorneys’ misconduct, to wit, “[t]hese same

attorneys perpetrated a “fraud upon the court” by alleging in the initial and

amended indictment that a Court Order purportedly ordered the undersigned

to pay support for his child (who was then fully emancipated) during the

period of 05/03 thru 01/05 . . . In reality, no such Court Order existed and

attorneys WEILER, COX and BARKEY were fully aware of this fact prior

to the initiation of the criminal prosecution of the undersigned.” See

Plaintiff’s Request for Investigation, Set forth in full at Exhibit “C” of the

Complaint for Superintending Control also See Exhibit “H” of the

Complaint for Superintending Control for the Indictments).

No such Court Order existed and all three (3) of the attorneys complained of

herein, knew that when they lied to the Court and perjured themselves to

initiate a constitutionally impermissible criminal prosecution of an innocent

citizen in violation of the 4th Amendment, U.S. Constitution; 5th

Amendment, U.S. Constitution, 14th Amendment, U.S. Constitution, People

v. Monaco, id.

4 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S

ANSWER AND BRIEF REGARDING THE COMPLAINT FOR
SUPERINTENDING CONTROL
In addition, the misconduct of the complained of attorneys violated the

provisions of the Elliott-Larsen Civil Rights Act, MCL 37.2302, et seq, by

substantially and illegally interfering with the “public services” rendered to

Plaintiff. Plaintiff was not “free” to walk away from the authority that the

ATTORNEY GENERAL and his ASSISTANT ATTORNEY GENERAL had

illegally exercised over him through the institution of felony criminal

proceedings premised on an indictment they knew to be false. Diamond v.

Witherspoon, 265 Mich.App. 673, 696 N.W.2d 770 (2005).

The misconduct of the offending attorneys complained of herein also had the

net effect of creating a hostile or offensive public services environment

causing additional violations of MCL 37.2302, et seq. And, they also denied

Plaintiff the full and equal utilization of public services in further violation

of MCL 37.2302. All of the foregoing was premised on Plaintiff’s race and

his religion in contravention of MCL 37.2302, et seq.

This violates MRPC 3.1 as there was never a “meritorious claim” to be

raised against the Plaintiff herein. In addition, MRPC 3.3 is violated

because these attorneys (1) made materially false statements of fact to the

tribunal, they also (2) failed to disclose a material fact to the tribunal when it

became necessary to avoid assisting a criminal or fraudulent act, (4) they

also offered evidence which they knew to be false and further failed to take

5 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S

ANSWER AND BRIEF REGARDING THE COMPLAINT FOR
SUPERINTENDING CONTROL
remedial measures. The foregoing misconduct also violates MRPC 3.4 (a),

(b), (d) (e) and (f).

The failure of the AGC Administrator to fully and fairly investigate that

particular allegation is an abuse of discretion because “there was no

justification or excuse for the ruling made” Alken-Ziegler v. Waterbury

Headers, 419 Mich. 219 (1999); and “resulted in a clearly untenable ruling

that unfairly deprives a litigant of a substantial right and a just result”,

Burke v. Harman, 6 Neb.App. 309, 574 N.W.2d 156 (1998). The AGC

refusal or failure to properly investigate Plaintiff’s complaints, “exceeds the

bounds of reason, considering all the circumstances”. Yeap v. Leake, 60

Cal. App. 4th 591, 70 Cal.Rptr 2d 680 (1997).

EX POST FACTO VIOLATIONS:

The only “Order” actually admitted into evidence in the underlying criminal

case was the 1978 Order, which, by its own terms, expired in July, 1994.

Yet, the offending attorneys, ATTORNEY GENERAL COX and

ASSISTANT ATTORNEY GENERAL WEILER, decided to prosecute

Plaintiff under the amendments to MCL 750.165.

The Statute under which Plaintiff was prosecuted was amended by the

Michigan Legislature and those changes took effect in November, 1999, see

MCLA 750.165.

6 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S

ANSWER AND BRIEF REGARDING THE COMPLAINT FOR
SUPERINTENDING CONTROL
The problem emerges however, in the application of the 1999 modifications

to Plaintiff. The 1978 Court Order regarding support for his minor child

expired, by its own terms in July, 1994. This was a full five (5) years prior

to the enactment of the legislative changes. No part of the 1978 Order was

in effect at the time of the 1999 modifications. People v. Westman, 262

Mich.App. 184, 685 NW2d 423 (2004).

As such, Plaintiff could not, constitutionally speaking, be subjected to the

pains and punishments contained in the 1999 amendments because his

alleged conduct (1) was committed prior to the effective date of the statute’s

amendments and (2) his conduct was innocent when committed. People v.

Callon, 256 Mich.App. 312, 662 NW2d 501 (2003), People v. Haynes, 256

Mich.App. 341, 664 NW2d 225 (2003).

STATUTE OF LIMITATIONS HAD EXPIRED ON COLLECTION:

The version of the MCL 600.5809 that would have been applicable to the

Plaintiff was the version in effect in 1994. Rzadkowolski v. Pefley, 237

Mich. App. 405, 603 N.W.2d 646 (1999). Under that provision, the ten year

period of limitations begins to run against each payment when that payment

became due, see MCL 600.5809(3). Chase v. Sabin, 445 Mich. 190, 516

NW2d 60 (1994).

7 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S

ANSWER AND BRIEF REGARDING THE COMPLAINT FOR
SUPERINTENDING CONTROL
Under the foregoing analysis, there was nothing owing under the 1978 Order

of support that was collectable by the defendants.

UTILIZATION OF EX POST FACTO JUDICIAL DECISIONS

VIOLATES DUE PROCESS

ATTORNEY GENERAL COX, and ASSISTANT ATTORNEY GENERAL

WEILER, made a conscious decision to mislead the tribunal by arguing that

certain Michigan Court of Appeals cases, all of which were rendered in

2004, contained the appropriate standard for the trial Court to review

Plaintiff’s motions to dismiss against.

However, utilization of judicial decisions, that are entered after the conduct

had long since happened, constitutes a due process violation which prohibits

utilization of judicial ex post facto decisions. Bouie v. City of Columbia,

378 U.S. 347 (1964).

This misconduct violates MRPC 3.3(1) because they knowingly made false

statements of material fact to the Court; and (2) they failed to disclose a

material fact when disclosure was necessary to avoid a criminal or

fraudulent act; they also (4) offered evidence that the lawyer knew to be

false. Further, this misconduct violates MRPC 3.2 as these lawyers knew

that they did not have a “meritorious claim or contention”.

8 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S

ANSWER AND BRIEF REGARDING THE COMPLAINT FOR
SUPERINTENDING CONTROL
 DISCUSSION:

The failure of the AGC Administrator to fully and fairly investigate those

particular allegations constitute an abuse of discretion because “there was no

justification or excuse for the ruling made” Alken-Ziegler v. Waterbury

Headers, 419 Mich 219 (1999).

The failure of the AGC Administrator to fully and fairly investigate all

allegations raised in the Request for Investigation has resulted in a clearly

untenable ruling that unfairly deprived this litigant of a substantial right and

a just result, Burke v. Harman, 6 Neb.App. 309, 574 N.W.2d 156 (1998).

Further, the AGC Administrator’s refusal or failure to properly investigate all

aspects of the Request for Investigation ‘exceeds the bounds of reason,

considering all the circumstances’. Yeap v. Leake, 60 Cal. App. 4th 591, 70

Cal.Rptr 2d 680 (1997). The end result of the AGC Administrator’s actions

in this instance, based on the reasons given by the Administrator to justify its

position was “clearly untenable, legally incorrect, or amount to a denial of

justice; a ruling that reaches an end or purpose not justified by, and clearly

against, reason and evidence.” State v. Garza, 192 Ariz 171, 962 P.2d 898

(1998).

In the foregoing instance, the AGC Administrator clearly “abused his

discretion” as the refusal to fully and fairly investigate the well documented

9 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S

ANSWER AND BRIEF REGARDING THE COMPLAINT FOR
SUPERINTENDING CONTROL
allegations of misconduct are so “palpably and grossly violative of fact and

logic that it evidences not the exercise of will but perversity of will, not the

exercise of judgment but defiance thereof, not the exercise of reason but

rather of passion or bias….” Spalding v. Spalding, 355 Mich. 337, 94

N.W.2d 810 (1959).

2. HAS THE ADMINISTRATOR, BY FAILING TO ANSWER

OR OTHERWISE RESPOND, TO THE ALLEGATIONS
CONTAINED IN PARAGRAPH 11 OF THE COMPLAINT
FOR SUPERINTENDING CONTROL, ADMITTED, THE
TRUTH OF THE ALLEGATIONS CONTAINED THEREIN?

FACTS:

Plaintiff filed his Complaint for Superintending Control on the Defendant

Administrator and the AGC Administrator filed his Answer and Brief in

Support of same in this Court on or about January 30, 2008.

The Defendant, failed to answer or otherwise respond to paragraph 11 of the

Complaint for Superintending Control.

POINTS & AUTHORITIES:

MCR 2.111 (E) provides in pertinent part that; “[a]llegations in a pleading

that requires a responsive pleading, other than allegations of damage or the

nature of the relief demanded, are admitted, if not denied in the responsive

pleading.” See, generally, Daul v. Meckus, 897 F.Supp. 606 (1995).

10 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S

ANSWER AND BRIEF REGARDING THE COMPLAINT FOR
SUPERINTENDING CONTROL
 DISCUSSION:

As a result of the Defendant’s failure to answer or otherwise respond to the

allegations contained in paragraph 11 of the Plaintiff’s Complaint for

Superintending Control, the assertions contained therein are deemed

admitted for purposes of these proceedings, MCR 2.111(E).

CONCLUSION:

The AGC Administrator abused his discretion in failing and/or refusing to

fully and fairly investigate the documented instances of misconduct

contained in the Plaintiff’s Request for Investigation. Plaintiff prays this

Supreme Court enter its ORDER requiring, directing and/or compelling, the

AGC Administrator to conduct a full, fair and impartial investigation into all

properly pled and documented allegations of misconduct against

ATTORNEY GENERAL COX and ASSISTANT ATTORNEY GENERAL

WEILER and to proceed against them according to law and the Rules of

Procedure associated with same with respect to the evidence adduced

thereby. Leitman v. State Bar Greivance Bd., 387 Mich. 596 (1972).

Further, Plaintiff prays this Court appoint a Special Master to investigate the

allegations contained in paragraph 11 of the Complaint for Superintending

Control, which the Administrator has admitted by its failure to offer any

response in its Answer, see MCR 2.111(E).

11 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S

ANSWER AND BRIEF REGARDING THE COMPLAINT FOR
SUPERINTENDING CONTROL
DATED this 17th Day of February, 2008.

Respectfully submitted,

_____________________
Robert R. Parker, Jr., LL.B.

195 Morton Walk Drive

Alpharetta, Georgia 30022
213 798 8095
robertparker777@yahoo.com

12 PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S

ANSWER AND BRIEF REGARDING THE COMPLAINT FOR
SUPERINTENDING CONTROL