Special Action Before Supreme Court

FOR SALE
SUPREME COURT OF ARIZONA ISSUES ORDER TO HEAR SPECIAL ACTION AGAINST
COURT OF APPEALS JUDGE MAURICE PORTLEY AND OTHER JUDGES REGARDING THE CLAIM OF
USURPATION OF JUDICIAL POWER IN AN EVICTION CASE WHERE A BANKRUPTCY ESTATE
WAS ROBBED BY ARMED FORCE.

By: Honest Durden, September 29, 2008

According to the August 7, 2008 order rendered by Court of Appeals Judge Maurice Portley, the issue before that court was whether the forcible detainer action held against John and Shirley Stone was valid; and if valid, then whether the issue was ruled on before, which the defendants' claim as their defense.

Res Judicata consequences will not be applied to a void judgment which is one which, from its
inception in a complete nullity and without legal effect, Allcock v. Allcock, 437 N.E.2d 392 (Ill.App. 3 Dist. 1982).

Authority of law provides that in order for a defense of "res judicata" issue heard before can be accepted as a defense, the judgment must be valid. In order to determine if the judgment is valid, the court that issued the judgment must have had jurisdiction and authority of law to do so.

This means, that in order for the Court of Appeals to fairly determine if the case had been heard before, then jurisdiction and the authority of law to proceed had to first be determined.

In a long and venerable line of cases, the Supreme Court has held that, without proper jurisdiction,
a court cannot proceed at all, but can only note the jurisdictional defect .....and dismiss the suit.
See, e.g., Capron v. Van Noorden, 2 Cranch 126; Arizonans for Official English v. Arizona, 520 U.S. 43.
Bell v. Hood, supra; National Railroad Passenger Corp. v. National Assn. of Railroad
Passengers, 414 U.S. 453, 465, n. 13; Norton v. Mathews, 427 U.S. 524, 531;
Secretary of Navy v. Avrech, 418 U.S. 676 , 678 (per curiam); United States v.
Augenblick, 393 U.S. 348 ; Philbrook v. Glodgett, 421 U.S. 707, 721.

This all important first duty of the court was omitted by the Justice Court, the Superior Court, and based on Court of Appeals Judge Portley’s August 7, 2008 order, he was omitting that first duty, too.

On March 2, 2007, the Stones filed a civil complaint with the Maricopa County Superior Court asking for damages for the armed robbery of their personal and business property, as well as property of their bankruptcy estate.

Judge Robert Houser assigned to the case, took almost two months before he denied the Stones’ claim providing no legal grounds, but stating the decision was based, “on what the defendants said”.

The defendants, Kent Harding, the President of Lighthouse Mortgage, USA., Scott M. Clark Law Offices, attorneys Scott M. Clark and Paul A. Henderson, told Judge Houser that the federal court had already ruled the issues of the forcible detainer action and had dismissed the claim, because the judgment, although issued while the bankruptcy stay was in effect, was still valid.

The appeal was scheduled to be heard by Judge Portly and two other judges this month.

According to the special action, “the circumstances are exceptional” in that the judges had usurped judicial power.

The Stones say that, although the validity of the forcible detainer action is very apparent in the record, the judges ignored the record and ignored the fact that they had no legal authority to proceed with or validate the forcible detainer transaction. Yet, they did, and so did Judge Portley.

"Courts are constituted by authority and they cannot go beyond that power delegated to them.
If they act beyond that authority, and certainly in contravention of it, their judgment
and orders are regarded as nullities; they are not voidable, but simply void
and this even prior to reversal." Williamson v. Berry, 8 How. 945, 540 12 L. Ed. 1170, 1189 ( 1850 ).

The Court of Appeals was already provided with the documents, which prove that on August 10, 2005, Maricopa County Justice of the Peace Lex Anderson issued a counterfeit (void) judgment and writ of restitution without legal authority; that Anderson, realizing that he had no authority and had violated substantive laws, got rid of the writ the next day, but did not mention the judgment.

The judgment, although still counterfeit, was held by Scott M. Clark Law Offices, for their client the landlord, Kent Harding.

Then attorneys failed to file the claim that they told the bankruptcy court they would file when they asked the court to lift the stay. Iinstead, they used the counterfeit (void) judgment to obtain the new writ and executed the new writ with Anderson’s unlawful approval. The defendants committed fraud on the court while Anderson was still without jurisdiction and that time, violated state and federal laws.

“An order terminating the automatic stay permits a party to re-initiate its lawsuit, or start another one, after the termination order is entered, but does not affect the status of actions taken between the filing of the bankruptcy petition and the entry of the termination order; such actions are void ab initio.
Refractories Co., Inc. v. Forth Eight Insulations, Inc. F.3d 169 (2d Cir. 1998)
“The mere termination of the stay does not validate actions taken in violation of it.
In re Eden Associates, 13 B.R. 578 (S.D.N.Y. 1981)

Armed with the counterfeit judgment and new counterfeit writ, Harding and Constable Ron Meyer solicited the aid of other constables and the Peoria police, ambushed and forced the Stones from their residence and confiscated and disposed of their personal, business and bankruptcy estate property.

After almost three-years and on June 20, 2008, Maricopa County Judge Pro Tempore Justice of the Peace Richard Haworth issued the order that destroyed the counterfeit (void) judgment.

“Where a judgment is vacated or set aside by a valid order or judgment, it is entirely destroyed and the rights of the parties are left as though no such judgment had ever been entered. No further steps can be legally taken to enforce the vacated judgment.”In re Hollensbee’s Estate, 67 So.2d 275, 276 (Ms. 1953)

The order not only destroyed the void judgment just as Anderson had previously destroyed the writ issued the same day for the same reason, but Haworth’ order brought forth the unimpeachable evidence that the prior courts had intentionally ignored.

What the courts were intentionally disregarding was the fact that Anderson’s judgment and new writ were counterfeit, and no judge can make a invalid/void judgment, enforceable. In fact, to do so is a crime of trespass.

The U.S. Supreme Court stated that if a court is "without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)

Haworth’s order unequivocally supports the Stones’ claim filed with the Superior Court now on appeal for part of the damages sustained from the armed robbery and subsequent cover-up, so Justice Haworth was immediately approached to change his June 20th order.

However, on July 8, 2008, before Haworth could change his order, the Stones forwarded copies of Haworth’s order to the Court of Appeals, informing the court that the determination of the validity of the forcible detainer action had been subsequently determined invalid by the original trial court.

Case law provides that when an independent action to vacate, was filed pursuant to Arizona Rules of Civil Procedure, Rule 60(c), the court no other authority, but to vacate the void judgment. Although the independent action should not have been necessary, it was a formality the Stones’ felt they had to institute, since the courts were deliberately ignoring the record that the court had no jurisdiction and could not validate the forcible detainer action.

“Where Rule 60(c) is properly invoked on the basis that the underlying judgment is void, “relief is not a discretionary matter; it is mandatory.” 1Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994)
(quoting V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n.8 (10th Cir 1979)

The special action against Judge Portley contends that, once Portley was noticed that the counterfeit judgment had been lawfully destroyed, he too had no jurisdiction, no authority of law, and as a matter of law, had to vacate Judge Houser’s order and remand the case back to Superior Court.

However, Judge Portley, intentionally disregarded the order that had done what he said was before him to do, furthering the three-year cover-up of the armed robbery, and delayed the Stones’ just damages.

The Stones contend that they are being subjected to injustices, oppression, restraint of liberty and legal right. That the past rulings of the courts concerning the forcible detainer action held against them, are obstructing justice and that Judge Portley’s order is an obstruction of justice, too.

Judges are charged in this case with conspiracy to defraud the United States by
corruptly administering or procuring the corrupt administration of an Act of
Congress. The crime charged in distinct from his official acts. It might have
been consummated without the performance of a single judicial act on his part.
The crime was complete when the unlawful agreement was made and an overt act
was consummated by any one of the conspirators, even though such overt act be
not one laid in the indictment. United States v. Manton, supra; United States v.
Downing, 2 Cir., 51 F.2d 1030, 1031

In addition, the Stones say that Judge Portley’s August 7, 2008 order gave the Manistee Justice Court the assurance that they could proceed on August 13, 2008, to reverse the valid order that destroyed the counterfeit (void) judgment to make it appear that the judgment was reinstated and therefore, still valid.

That issue is not addressed to the Arizona Supreme Court, but is addressed in a special action now before the Maricopa County Superior Court.

Meanwhile, the Stones' contention that Judge Portley’s lacked jurisdiction and authority of law when rendering the August 7, 2008 order denying the remand, is scheduled to be heard October 28, 2008, in the Arizona Supreme Court.

More on this story coming soon in "URGENT PUBLIC ISSUE, William E. Morris Institute for Justice’s “Injustice in No Time” Investigation Confirmed and Validated".

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