No. IN THE SUPREME COURT OF THE UNITED STATES

Transcription

1 No. IN THE SUPREME COURT OF THE UNITED STATES Lester G. Murphy Sr., Petitioner v. Humphreys County Juvenile Court, Judge Anthony Sanders, US Department of Health and Human Services Mike Leavitt, Tennessee Department of Children Services, Viola P. Miller, et al. Respondents On Petition for a writ of Certiorari to the UNITED STATES COURT of APPEALS for the SIXTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI Lester G. Murphy Sr. pro se Appellant 236 Thuss Ave. Nashville TN

2 i. QUESTIONS PRESENTED FOR REVIEW 1) Whether or not the Rooker-Feldman Doctrine was improperly interpreted and / or applied by the lower courts. 2) Whether or not the Eleventh Amendment, in this case, shields the Respondents from suit. 3) Whether or not a jurisdictional error occurred in the State Court.

3 ii. TABLE OF CONTENTS QUESTIONS PRESENTED i TABLE OF CONTENTS ii TABLE OF AUTHORITIES...v 1) Constitutional Provisions At Issue.v 2) Cases At Issue.v 3) Statutes At Issue..vii OPINIONS BELOW...1 JURISDICTION...1 CONSTITUTIONAL PROVISIONS... 1 STATEMENT OF THE CASE.2 A) Facts Giving Rise To This Case...2 B) The District Court Proceedings...6 C) The Appellate Court Proceedings 7 REASONS WHY CERTIORARY SHOULD BE GRANTED...8 1) The Rooker Feldman Doctrine 8

4 iii. 2) The Eleventh Amendment and 42 USC ) The Fourteenth Amendment..16 SUMMARY.18 CONCLUSION..20 APPENDIX 6 th Circuit Court affirmation.....app.1 District Court s final judgment.... App. 7 District Court s order releasing Defendant Miller. App. 8 District Court s order releasing Defendant Sanders..App. 13 Petition for custody in the Humphreys County Juvenile Court, May 8 th, 1997 App. 17 Custody order in the Humphreys County Juvenile Court, Respondent Sanders presiding, May 9 th, 1997 App. 18 Custody order in the Humphreys County Juvenile Court, Respondent Sanders presiding, heard on May 22 nd, signed on May 30 th, filed on June 6 th, App. 19 Petition for custody in the Humphreys County Juvenile Court, September 22 nd, App. 20

5 iv. Order for trial in the Humphreys County Juvenile Court, Respondent Sanders presiding, heard on October 9 th, signed October 24 th, set for October 30 th, App. 21 Order of Reference in the Humphreys County Juvenile Court, Respondent Sanders presiding, heard on December 4 th, signed on December 11 th, set for February 5 th, App. 22 Custody Order in the Humphreys County Juvenile Court, Respondent Sanders Presiding, heard on February 5 th, signed February 18 th, filed February 24 th, App. 22 Order releasing DCS of protective services in the Humphreys County Juvenile Court, Respondent Sanders presiding, heard on July 9 th, signed July 30 th, filed August 4 th, App th Circuit Court denial for rehearing.. App USC App USC App. 25 Tennessee Code Annotated (1997 supp) Kinship Foster Care App. 26 Tennessee Code Annotated Legislative Intent; Construction of part. App. 27

6 v. TABLE OF AUTHORITIES CONSTITUTIONAL PROVISIONS Fourteenth Amendment to the United States Constitution 1 Eleventh Amendment to the United States Constitution 2 CASES Foster v. Harris 633 S W 2d 304, 305 (TN 1982)..8 McCrosky v. Bryant Air Conditioning Co. 542 S W 2d 478, (TN 1975)..8 Old Wayne Mut.L. Assoc. v. McDonough, 204 U. S S. Ct. 236 (1907) S. Ct (1980) 9 Smith v. Organization of Foster Families, 431 U S 816(1977) 9 Yates v. Village of Hoffman Estates, Illinois, 209 F. Supp.757 (N. D. Ill 1962).10 Pennoyer v. Neff, 95 U.S. 714, (1878)...10 Exxon Mobil Corp. v. Saudi Basic Industries Corp. 544 US 280, 125 S. Ct. 1517, 161 L. Ed. 2d Long v. Shorebank Development Corp.182 F.3d 548 (C.A. 7 Ill. 1999) 11

7 vi. Wood v. Strickland, 420 US 328, 95 S Ct 992 (1975)...12 Carey v. Piphus, 435 US 247, 253 (1978) 13 Rankin v. Howard 633 F.2d 844 (9 th Cir. 1980).13 Gomez v. Toledo, 446 U. S. 635 (1979).14 Harlow et al v. Fitzgerald, 457 U. S. 800, (1981)...14 Scheuer v. Rhodes, 416 U. S. 232 (1974).15 International Postal Supply Company v. Bruce, 194 U. S. 601, 48, L. Ed. 1134, 24 S. Ct...16 Kulko v. Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978) 13 In re Wellman, 3 Kan.App.100, 45 P.726,727(1896).14 Moore v. City of East Cleveland 431 U.S. 494 (1976)...16 Wisconsin v. Yoder 406 U.S. 205 (1972)..17 Hawk v. Hawk 855 S.W.2d 573, 579 (Tenn.1993).18 Prince v. Massachusetts 321 U.S. 158,166 (1944).17 Stantosky v. Kramer 455 U.S. 745 (1982)...17 Meyer v. Nebraska 262 U.S. 390 (1923)..17

8 vii STATUTES Rosenberg supra note 7, 849, USC USC 1983 App.32 Tennessee Code Annotated App. 27 Tennessee Code Annotated App.26.

9 1. OPINIONS BELOW The opinions below are not recommended for full text publication. All pertinent lower Court opinions are attached in the appendix including pertinent documents as related to the original complaint. JURISDICTION The Sixth Circuit Court of Appeals filed its decision on December 30, 2010 and entered an order denying Petitioners motion for rehearing en bank on May 20, The jurisdiction of this Court to review the Judgment of the Sixth Circuit is invoked under 28 USC 1254 (1) CONSTITUTIONAL PROVISIONS Fourteenth Amendment to the United States Constitution All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

10 2. Eleventh Amendment to the United States Constitution The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. STATEMENT OF THE CASE Facts Giving Rise to This Case In September of 1993, after three years of marriage Petitioner and wife divorced. The marriage produced two children and Petitioner s wife was awarded physical custody. At the outset of the divorce proceedings Petitioner s ex-wife returned with the children to her adoptive parent s home to live. After the conclusion of divorce proceedings the ex-wife and children remained. All attempts of the Petitioner to visit with the children were obstructed by the in-laws and the Petitioner s feelings were that the abrasive environment created when he attempted to visit was detrimental to his children. With no chance of unhindered visitation and reconciliation with the ex-wife impossible, the Petitioner moved to San Diego, California. On May 8, 1997, the maternal grandfather filed a petition in the Humphreys County Juvenile Court

11 3. for emergency custody of the two minor children. (App. 17) The petition alleged abandonment by the mother and on May 9, 1997, temporary custody was granted. The Tennessee Department of Children s Services was ordered to supervise the custody and make attempts to locate the mother. The matter was continued by the Respondent Judge until May 22, There was no mention of the father. (App. 18) On May 22, 1997 the Respondent Judge entered an order in the case. The order dated May 30, 1997, states, upon a home study report, testimony of the mother, and the entire record the court finds that custody should remain with Mr. Larry Baker as previously ordered. Ordered as follows: #1. That custody of Lester Murphy and Gerald (sic) Murphy remain with Larry Baker. #2, The court reserves the question of child support. There was still no mention of the father. (App. 19) On September 22, 1997, the mother Ellen Murphy filed a petition for return of custody. The petition stated that she had completed the court ordered parenting classes, was buying a home, and could care for her children. However, there is no such order in the Juvenile Court record requiring the mother to attend parenting classes. (App. 20) The petition was heard by the Respondent Judge on October 9, 1997, and the order issued was hereby set for trial on October 30, However,

12 4. there was no trial on October 30. There was still no mention of the father. (App. 21) On December , the Respondent Judge stated, finds that an Order of Reference issue and this matter be and is hereby reset for February 5, There was still no mention of the father. (App. 22) On February 5, 1998 there was no trial. The Respondent Judge s order simply states, upon petition of the natural mother, Ellen S. Murphy, It appearing to the court that custody should remain with Larry Baker and wife, Mary Nell Baker, and the court should set forth visitation privileges. Ordered as follows: #1, That the petition for custody be denied. #2 That the mother, Ellen S. Murphy, is granted reasonable visitation at the home of Larry Baker There was still no mention of the father. (App. 22) Aside from an amended order restricting visitation, the last order from the Respondent Judge was on July 9,1998, stating Ordered that the Department of Children s Services should be and is hereby relieved of protective services of the juvenile. There was still no mention of the father. (App. 23) Upon discovery by Petitioner of the custody status of his children a petition was filed in the Humphreys County Juvenile Court for return of custody. The petition was heard by the Respondent Judge. The matter was set for hearing on April 17,

13 at which time the Petitioner was jailed on what appeared to be unrelated charges. The Petitioner made bail and the charges were dismissed on the first hearing of same. The maternal grandfather threatened further charges and jailing if the custody matter was pursued. Specifically, each time the Petitioner made an appearance, he would be jailed. The Petitioner was unaware, due to the open court arrest, of any continuance date. The next correspondence was from the Juvenile Court Clerk in the form of a letter stating that the Respondent Judge wished to speak to the Petitioner concerning the petition. Several attempts were made to contact the Respondent Judge by phone, only to remain on hold indefinitely. The last correspondence was a letter from the same clerk informing of the dismissal of the custody petition. On or about November 1, 2008, Petitioner received a letter from the Child Support Enforcement Office warning of an impending suspension of his driver license for failure to timely pay child support arrearages totaling more than thirty thousand dollars. Petitioner began researching the legality of the arrearages amount ordered by the juvenile court. Very soon it became obvious that there was much more going on than just the arrearages judgment.

14 6. Petitioner discovered that his children, according to the State of Tennessee, were in foster care. (App (see Cir. Ap. Brief)). Petitioner further discovered that federal and state foster care laws, rules, regulations, and guidelines are unambiguous and the failure of the Respondents to adhere to these requirements created several constitutional infractions causing severe deprivations of well settled protected rights. The District Court Proceedings On November 21, 2008, The Petitioner filed the original complaint in the District Court at Nashville seeking declaratory and injunctive relief, provisional remedy, and declarations of pendent jurisdiction and prima facie. Alleging the Respondents conspired and did act in concert to deny him and his children of federally protected rights, Petitioner sought punitive and compensatory monetary damages. The District Court granted Respondent Sanders summary judgment based on the grounds of absolute immunity and the Rooker Feldman Doctrine. The District Court stated that Sanders raised many other grounds for summary judgment but determined those grounds need not be reached where absolute immunity bars Petitioners claims (District Docket Entry #42).

15 7. The District Court Granted Respondent Miller s motion for summary judgment based upon grounds of sovereign immunity and 1983 actions statute of limitations (District Docket Entry #63). Respondent Miller asserted that the Department had no duty to provide protective services to Petitioner s children (District Docket Entry # 9). The District Court dismissed Petitioners claims against Respondent Levitt on grounds of improper service. (District Docket # 69) Petitioner timely filed a notice of appeal. (District Docket Entry #72) The Appellate Court Proceedings The Petitioner timely filed an appeal in the Sixth Circuit Court at Cincinnati. On December 30, 2010 the Circuit Court affirmed the District Court s ruling based, in part, upon the Rooker- Feldman Doctrine (App. 1). Petitioner timely filed a request for a re hearing en bank. The en bank re hearing request was denied on May 20, 2011 (App. 24). In the Court s first order it is immediately acknowledged that the Petitioner s claims are due process and parental rights in nature (App. 1). The Petitioner raised several issues of error and abuse of discretion, including a jurisdictional challenge, with supporting citations, which went unanswered.

16 8. In the Court s conclusions of law, the Respondents acted within their jurisdictional capacities and are protected by various forms of immunity. The Court also concludes that the Rooker-Feldman Doctrine bars the Petitioner claims. The Court also erroneously concluded that the Petitioner did not state that declaratory relief was unavailable. WHY CERTIORARI SHOULD BE GRANTED The Rooker Feldman Doctrine The Court should grant review to clarify the extent to which Rooker Feldman applies in cases where the underlying injury is not a state court judgment, but a state court judgment being a direct result of the underlying injury. The injuries pre date the monetary judgment by years. The judgment, when scrutinized by the Petitioner, revealed the actions of the Respondents. Please see; Foster v. Harris 633 S W 2d 304, 305 (TN 1982) where the Court reversed a summary judgment on the issue of tort. The Court noted that no cause of action could exist until a judicial remedy is available to the plaintiff. Id at 305 (citing McCrosky v. Bryant Air Conditioning Co. 542 S W 2d 478, (TN 1975)) Before the judgment, and the inevitable scrutiny, the Petitioner was completely unaware of

17 9. the manner in which the custody of his children changed. Please see Old Wayne Mut.L. Assoc. v. McDonough, 204 U. S. 8, 27 S. Ct. 236 (1907), where This Court determined that, A court cannot confer jurisdiction where none existed and cannot make a void proceeding valid. It is clear and well established law that a void order can be challenged in any court", also "The law provides that once State and Federal Jurisdiction has been challenged, it must be proven." 100 S. Ct (1980) The scrutiny became an investigation which led to the filing of the original complaint in the District Court. The original complaint was not the state court judgment but rather parental rights and due process in nature as is evident at District Docket Entry #1, page #1, paragraphs #1&2. Please see Smith v. Organization of Foster Families, 431 U S 816 (1977) where This Court stated, It is true that before a person is deprived of a protected interest, he must be afforded opportunity for some kind of hearing If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason

18 10. that to do so was thought to be in the children s best interest, I should have little doubt that the State would have intruded impermissibly on the private realm of family life which the State cannot enter An improper judgment, made by one who is acting not as a judge but as a minister of justice without proper jurisdiction, is void with no legal force or effect. Please see Yates v. Village of Hoffman Estates, Illinois, 209 F. Supp.757 (N. D. Ill 1962) where the Court held that not every action of a judge is in the exercise of his judicial function it is not a judicial function for a judge to commit an intentional tort even though the tort occurs in the courthouse. The judge loses subject matter jurisdiction and the judges orders are void, of no legal force or effect. Please see also Pennoyer v. Neff, 95 U.S. 714, (1878) where This Court stated, A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere. The judgment at issue in this case is a judgment that Rooker- Feldman specifically does not apply to. If the respondent Judges orders are void, of no legal force or effect, the judgment is a non issue.

19 11. In Exxon Mobil Corp. v. Saudi Basic Industries Corp.544 US 280, 125 S. Ct. 1517, 161 L. Ed. 2d 454 Justice Ginsburg delivered the opinion for This unanimous Court stating, The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Rooker-Feldman does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to statecourt actions. Please see Long v. Shorebank Development Corp.182 F.3d 548 (C.A. 7 Ill. 1999) A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court.

20 12. This eliminates the focus on the judgment and should redirect the focus to the original claims of deprivation of federally guaranteed due process and parental rights. These claims, which are superior in nature, are within the original jurisdiction of the District Courts. Please see 28 USC 1331 which states, The District Courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. (App. 25) The case before This Court cannot be described within the boundaries set by This Court to trigger Rooker Feldman as the judgment in question is a continuance of proceedings in which the Respondents failed to acquire proper jurisdiction. The Eleventh Amendment to the US Constitution and 42 USC 1983 The Court should grant review to enforce its holdings in cases where the Eleventh Amendment is not an absolute bar against claims for relief against State officials. 42 USC 1983 (App. 33) was clarified by This Court in Wood v. Strickland, 420 US 328, 95 S Ct 992 (1975) This Court explained that the qualified immunity analysis necessarily contains both objective and subjective elements. The analysis is subjective said the Court in that the defendant official, to receive protection, must have acted with a belief that he [was] doing right. (Wood 420 U. S.

21 13. at 321) The analysis is objective, This Court reasoned, in that officials could not receive protection where they ignorantly believed their actions to be appropriate when in fact their actions violated settled and indisputable law. The settled and indisputable law in the case before This Court is concerning the mechanisms that Congress deemed necessary to protect the rights of parents and their children. Please See Adoption and Safe Families Act of This Court articulated its sense of 42 USC 1983 in Carey v. Piphus, 435 US 247, 253 (1978), The purpose of the statute was to deter public officials from using the badge of their authority to violate persons constitutional rights and to provide compensation and other relief to victims of constitutional deprivations when that deterrence failed. In Rankin v. Howard 633 F.2d 844 (9 th Cir. 1980) the Court stated, If a court lacks jurisdiction over a party, then it lacks "all jurisdiction" to adjudicate that party's rights, whether or not the subject matter is properly before it. See, e. g., Kulko v. Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978) ("(i)t has long been the rule that a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant") (citations omitted); In re

22 14. Wellman, 3 Kan. App. 100, 45 P. 726, 727 (1896) (ex parte guardianship proceeding would be a "flagrant violation" of due process, rendering any order null and void). See Rosenberg, supra note 7, 849,50 "When a judge structures a controversy such that one side is necessarily precluded from presenting any evidence concerning the decision to be made, the court's actions properly can be viewed as a jurisdictional error rather than a mere error in the exercise of power." In Gomez v. Toledo, 446 U. S. 635 (1979) This Court spoke to the concern among plaintiffs that they had an impossible burden to meet by showing in their pleadings that the acts of the defendants were both unreasonable and in bad faith. This Court stated that Nothing in the language or legislative history of Sec.1983, however, suggests that in an action brought against a public official a plaintiff must allege bad faith in order to state a claim for relief. (Gomez at 640) This Court went on to instruct: Since qualified immunity is a defense, the burden of pleading rests with the defendant. See Fed. Rule Civ. Proc.8 (defendant must plead any matter constituting an avoidance of affirmative defense ) Id. In Harlow et al v. Fitzgerald, 457 U. S. 800, (1981) Justice Brennan wrote for himself and Justices Marshall and Blackmun and said,

23 15. I agree with the substantive standard announced today, imposing liability when a public-official defendant knew or should have known of the constitutionally violative effect of his actions This standard would not allow the official who actually knows that he was violating the law to escape liability for his actions, even if he could not reasonably have been expected to know Thus the clever and unusually well-informed violator of constitutional rights will not evade just punishment for his crimes (emphasis in original). In Scheuer v. Rhodes, 416 U. S. 232 (1974), This Court states, since Ex parte Young, 209 U. S. 123 (1908), it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law. Ex parte Young teaches that, when a state officer acts under a state law in a manner violative of the Federal Constitution, he comes into conflict with the superior authority of that Constitution, and he is, in that case, stripped of his official or representative character, and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from

24 16. responsibility to the supreme authority of the United States. Id at 209 U. S In International Postal Supply Company v. Bruce, 194 U. S. 601, 48, L. Ed. 1134, 24 S. Ct. at page 609 This Court states, No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the Government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our system of government, and every man, who, by accepting office, participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. The Fourteenth Amendment to the U. S. Constitution The Petitioner has clearly been deprived of protected rights and interests that are, at least in theory, inalienable. This Court has deemed the actions of the Respondents to be the antithesis of the protected family realm. In Moore v. City of East Cleveland 431 U.S. 494 (1976) This Court concluded that in Wisconsin v. Yoder 406 U.S. 205 (1972), the Court rested its

25 17. holding in part on the constitutional right of parents to assume the primary role in decisions concerning the rearing of their children. That right is recognized because it reflects a strong tradition founded on the history and culture of western civilization, and because the parental role is now established beyond debate as an enduring American tradition. Id at 232. In Prince v. Massachusetts 321 U.S. 158, 166 (1944) This Court states it is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. In Stantosky v. Kramer 455 U.S. 745 (1982) This Court states that freedom of personal choice in matters of family life is a fundamental liberty natural parents have a fundamental liberty interest in the care, custody, and management of their child. In Meyer v. Nebraska 262 U.S. 390 (1923) This Court concluded that parents have a substantive due process right to bring up children. It is clear that This Court has maintained the position that the family realm is protected and that the Petitioner, without any showing of unfitness, has inalienable rights to the care, custody, and control of his children.

26 18. The court in Tennessee found in Hawk v. Hawk 855 S.W.2d 573, 579 (Tenn.1993) the reasoning of federal constitutional cases convince[s] us that parental rights constitute a fundamental liberty interest under the Tennessee Constitution. The Petitioner had no opportunity to present the foregoing facts to any Tennessee Court. SUMMARY At issue in this case are the interpretations of jurisdiction, the Rooker Feldman Doctrine, 42 U.S.C. 1983, and the Eleventh and Fourteenth Amendments to the U. S. Constitution. Although Rooker Feldman may be considered a well settled doctrine within This Court, the lower courts have expanded their interpretation well beyond the boundaries laid out by This Court. The Petitioner has never been a litigant in a state sponsored court action prior to the original complaint filed in the District Court. Therefore, having not been in state court, the Petitioner cannot be a state court loser. The judgment in question is not the result of a state court loss, as the Petitioner was not a litigant and judgment was rendered in absentia, but a direct result of the deprivations for which relief is sought. The respondents did not acquire the required jurisdiction and thereby had no authority to make any findings or rulings whatsoever.

27 19. According to the letter of Rooker- Feldman, if the request of the Petitioner to reverse a state court judgment for arrearages is improper, this request does not nullify the complaint in its entirety if the complaint itself is not based upon the state court judgment. The foundation of the complaint is constitutional, not the state court judgment. The state court judgment was a direct result of the deprivations, not the other way around. The lower courts could have ruled on that issue individually and or advised the Petitioner to amend the original complaint. The lower courts, however, made no rulings in reference to the constitutional claims and quashed the entire complaint based, in part, on Rooker- Feldman. 42 U.S.C (App. 25) is likewise well settled within This Court and the meaning of 1983 is unambiguous. Having never been a party of or present at any of the proceedings, the Petitioner had no avenue for declaratory relief. The Petitioner s complaint is a perfect fit. This Court has repeatedly determined that the Eleventh Amendment, in these circumstances, offers no shield to the Respondents against suit. The Respondents failed to secure jurisdiction in the matters concerning the Appellant s children.

28 20. The Petitioner, absent any showing of unfitness, was the rightful person to take custody of the children as the Petitioner has a federally protected interest concerning the welfare of his children. The Respondents created ex parte proceedings which have been deemed by This Court and others as being unconstitutional. Without the ex parte proceedings there would be no judgment as the Petitioner would have gained custody of his children. The judgment for which relief is sought relates directly to these ex parte proceedings and this fact cannot be successfully argued against. It is undisputed that the Respondents made no attempts to contact the Petitioner concerning the custody status of his children. It has been claimed that there was no duty to do so. (District Docket Entry #9, pg. #2) CONCLUSION The Petitioner does not need a state law claim to press for his constitutional rights. The lower courts require the guidance of This Court. Therefore, This Court should grant Certiorari and issue an opinion that protects the wisdom from This Court concerning the protected family realm and the manner in which a Petitioner s claims are interpreted.

29 21. For the forgoing reasons Certiorari should be granted. Respectfully Submitted, Lester G. Murphy Sr. Petitioner