FRAUDULENT CONCEALMENT

 

1. A few of the definitions of “fraudulent concealment” are discussed in: Woods v. Davis, 11 U.S. 271 (1812) quoting,

 

“Party having superior knowledge who takes advantage of another’s ignorance of the law to deceive him by studied concealment or misrepresentation can be held responsible for that conduct. Fina Supply, Inc. v. Abilene Nat. Bank, 726 S.W.2d 537, 1987. Knowing failure to disclose material information, necessary to prevent statement from being misleading, or making representation despite knowledge that

it has no reasonable basis in fact, are actionable as fraud under [the] law.” Rubinstein v. Collins, 20 F.3d 160, 1990.

 

 

Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud. Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 1994.

 

When circumstances impose duty to speak and one deliberately remains silent, silence is equivalent to false representation. Fisher Controls International, Inc. v. Gibbons, 911 S.W. 2d 135, 1995.

 

When a person sustains to another a position of trust and confidence, his failure to disclose facts that he has a duty to disclose is as much a fraud as an actual misrepresentation. Blanton v. Sherman Compress Co., 256 S.W. 2d 884, 1953.

 

1. Petitioner’s right of review under 5 USC 702 statutorily defined:

1. “A person suffering legal wrong because of … or adversely affected or aggrieved … within the meaning of a relevant statute, is entitled to judicial review thereof. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.”(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 94–574, § 1,Oct. 21, 1976, 90 Stat. 2721.)

 

1. Neither law nor equity may be invoked to redress a wrong.

The courts should not lend their aid to willful violations of the law.  See

Clouse v. Myers, 753 S.W.2d 316 (Mo. Ct. App. S.D. 1988) See also: Glazier v.

Lee, 171 Mich.App. 216, 429 N.W. 2d 857 (1988); Preston v. State, 152 A.D.2d

943, 543 N.Y. S.2d 823 (4th Dept. 1989; Picture Plays Theater Co. of Tampa v.

Williams, 75 Fla. 556, 78 So. 674, 1 A.L.R. 1 (1918).

 

In Freeman on Judgments, 5th Ed., Sec. 338, pg. 678 it is said:

 

[“There must be some appropriate application invoking the judicial power of the court in respect to the matter sought to be litigated; for such as the filing of a petition, complaint or other proper pleading, for it is this manner that the court’s power over the subject matter is invoked.”]

 

 

“Fundamental” Liberties

 

 

In the parlance of United States constitutional jurisprudence, a “fundamental” right is a civil liberty of paramount importance. Whenever an individual can show that the government is interfering with an exercise of a “fundamental” civil liberty, the government has the burden to prove to a court that the government action can survive the “strict scrutiny” standard of court review.

The strict-scrutiny test upholds state intervention as proper only if (1) an authorizing state regulation exists that can be justified by a compelling state interest, (2) the means chosen are essential to furthering that interest, (3) there is a clear and present danger to the interest the state may lawfully protect, and (4) the tactic used is narrowly tailored and the least restrictive means of discharging the government’s compelling interest.

 

“Non-Fundamental” Rights

 

In contrast to a “fundamental” liberty, other rights are entitled to very limited protection. Whenever an individual can show that the government is interfering with an exercise of a “non-fundamental” civil liberty, [i.e. private-power of attorney contract] the individual has the burden to prove to a court that the government action fails the “rational basis” standard.

The rational-basis test stops state intervention as improper only if (1) the governmental action does not represent a reasonable means to a legitimate state interest, and (2) the relationship between the reasonable means and the legitimate state interest is not at least debatable. The test does not require the government to use the least intrusive or most creative regulatory scheme to achieve legitimate state ends.

 

In the case of Ableman v. Booth, 62 US 506 – Supreme Court 1859.  “complex character of our Government, and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers, and each within its sphere of action, prescribed by the Constitution of the United States, independent of the other.”

 

The 10th Amendment (Amendment X) to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15th, 1791.  It expresses the principal of federalism, which strictly supports the entire plan of the original Constitution for the United States of America, by stating the federal government possesses only those powers delegated to it by the United States Constitution.  All remaining powers are reserved for the States or the people.  However, once the State incorporates and begins operating in commerce, it loses part of its once dejure sovereign status or what is considered to be a misnomer, operates under its quasi-sovereign corporate defecto alter-ego as a legal fiction, i.e. corpus ficti in exchange for participation for federal grants to the States through fund incentive programs Congressionally approved as b) the instrumentalities of interstate commerce. . . . under PL 89-97 during the 89th session that involve special “demonstration” projects and/or public private contractual arrangements which are nothing more than, “express lanes to abuses” of federally protected fundamental civil rights.

1. “The state citizen is immune from any and all government attacks and procedure, absent contract.” see, Dred Scott vs. Sanford, 60 U.S. (19 How.) 393 or as the Supreme Court has stated clearly, “…every man is independent of all laws, except those prescribed by nature.”

 

1. “He is not bound by any institutions formed by his fellowmen without his Consent.” CRUDEN vs. NEALE, 2 N.C. 338 2 S.E. 70.

 

1. “The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no such duty [to submit his books and papers for an examination] to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution.”

 

1. “Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights.” (See Hale v. Henkel, 201 U.S. 43 at 47)

 

Many federal question cases have applied state law to issues involving state-created rights where the result were of such application would not be contrary to a strong federal interest. E.g. Helvering v. Stuart, 317 US 154 (1942); Blair v. Comm’r, 300 US 5, (1936); Security Mortgage Co., v. Powers, 278 US 149 (1928); See Prudence Realization Corp v. Geist, 316 US 89, 95 (1942); Huron Holding Corp., v. Lincoln Mine Operating Co., 312 US 183 (1941); Kavanugh v. Fowler, 146 F.2d  961 (6th Cir 1945); United States v. Michaelson, 58 F. Supp. 796 (D. Minn 1945).

However, the interest of the state may not be too great, or in many instances unarticulated. In any event it can be argued that the federal policy of encouraging private anti-trust enforcement would override any contrary state policy.

Our Federal courts have addressed the matter of courts “usurping authority” that is not delegated to them by constitution or statute. See Dellenbach v. Letsinger, 889 F.2d 755 (7th Cir 1989): “Where there is clearly no jurisdiction over the subject- matter, any authority exercised is usurped authority, and for the exercise of such authority, when want of jurisdiction is known to the judge, no excuse is permissible.” According to CHIEF JUSTICE, WAITE in MEYER v. CONSTRUCTION COMPANY; 100 U.S. 457 (____)

 

RULE 81 EXCEPTIONS

A civil action filed in a state court may be removed to federal court [under any one of the enumerated provisions cited below] if the claim is one “arising under” federal law. § 1441(b). To determine whether the claim arises under federal law, we examine the “well pleaded” allegations of the complaint and ignore potential defenses: “[A] suit arises under the Constitution and laws of the United States only when the plaintiff’s statement of his own cause of action shows that it is based upon those laws or that Constitution.

Avco Corp. v. Machinists, 390 U. S. 557 (1968). We later explained that holding as resting on the unusually “powerful” pre-emptive force.  Avco stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.” Franchise Tax Bd., 463 U. S., at 23–24 (footnote omitted).

“The necessary ground of decision [in Avco] was that the pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts between an employer and a labor organization.’ Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Avco stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.” 463 U. S., at 23–24 (footnote omitted).

 

Similarly, in Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 (1987), we considered whether the “complete preemption” approach adopted in Avco also supported the removal of state common-law causes of action. Thus, a state claim may be removed to federal court in only two circumstances—when Congress expressly so provides or when a federal statute wholly displaces the state-law cause of action through complete pre-emption. When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law. This claim is then removable under 28 U. S. C. § 1441(b), which authorizes any claim that “arises under” federal law to be removed to federal court where the federal statutes at issue provided the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action. Of course, a state claim can also be removed through the use of the supplemental jurisdiction statute, 28 U. S. C. § 1367(a), provided that another claim in the complaint is removable.

 

Title 28 USC § 1331 states:

This so-called “arising under” or “federal question” jurisdiction has long been governed by the well-pleaded complaint rule, which provides that “federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U. S. 386, 392 (1987). A federal question “is presented” when the complaint invokes federal law as the basis for relief.

 

28 U.S. Code § 1443 – Civil rights cases

 

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:

 

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;

 

(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law. (June 25, 1948, ch. 646, 62 Stat. 938.)

Petitioner will -reuse- his Prayer for Relief in his certificate of appealability application.

Special Note:  https://www.law.cornell.edu/wex/nonfederal_grounds

 

APPEALABILITY OF CASES ON REMAND

In any event, the appealability of remand orders was reinstated by 28 U.S.C. § 1447 (d) (1964) (originally enacted as Civil Rights Act of 1964, § 901, 78 Stat. 266) (see note 19 infra); Note, 43 N.C.L. REv. 628 (1964). This provision has been upheld by recent court of appeals’ decisions, see, e.g., New York v. Galamison, 342 F.2d 255, 257 (2d Cir.), cert. denied, 380 U.S. 977 (1965), and by the United States Supreme Court, see Georgia v. Rachel, supra at 786-87 & n.7. -9 28 U.S.C. § 1447 (d) (1964) (originally enacted as Civil Rights Act of 1964, § 901, 78 Stat. 266) provides in part: ” an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.” There is substantial indication in the legislative history that Congress enacted § 1447 (d) to provide an opportunity for the appellate courts to reinterpret the Strauder-Powers cases. See, e.g., 110 CONG. Rec. 2770, 2773 (1964) (remarks of Representative Kastenmeier, who favored lifting the appeal bar to remand orders); id. at 2771-73 (remarks of Representative Dowdy, who was opposed to lifting the appeal bar); id. at 6551 (remarks of Senator Humphrey); id. at 6564 (remarks of Senator Kuchel); id. at 6955-56 (remarks of Senator Dodd). 20 Compare Baines v. City of Danville, 357 F.2d 756 (4th Cir.), aff’d mem., 384 U.S. 890 (1966), and Wallace v. Virginia, 357 F.2d 105 (4th Cir.), aff’d mem., 384 U.S. 891 (1966), with Peacock v. City of Greenwood, 347 F.2d 679 (5th Cir. 1965), aff’d in part and rev’d in part, 384 U.S. 808 (1966), and Rachel v. Georgia, 342 F.2d 336 (5th Cir. 1965), aff’d, 384 U.S. 780 (1966). See Johnson, supra note 17, at 139-49; Note, 44 N.C.L. Rev. 1152 (1966); 44 Texas L. Rev. 200 (1965); notes 95-96, 146, 194 infra and accompanying text. 21 384 U.S. 780 (1966). 22384 U.S. 808 (1966).

Petitioner, Brian Van Akin, submits that he has fulfilled the preemptive requisites necessary to pursuit this claim in federal court. Petitioner has indicated in the last sentence (Initial EMERGENCY Petition) that which fulfills, if not exceeds the plain statement of facts requirement under Title 28 USC 1446(a) allowing this Court to proceed under both federal question and Constitutional & Public Policy Questions whereas both venue and jurisdictional basis have been satisfied as grounds for this Emergency Petition for Declaratory Relief be permitted to advance through this Court the ends of justice, so require.