STATE OF MINNESOTA
IN SUPREME COURT
_____________________________________________________________________________ Joshua J. Israel, PETITION FOR REVIEW OF DECISION
Petitioner, OF COURT OF APPEALS v. APPELLATE COURT CASE NO.
A11-1487
Pierson Pizza,
Respondent, DATE OF FILING OF COURT OF APPEALS
DECISION: September 20, 2011
_____________________________________________________________________________ To the Supreme Court of the State of Minnesota: The Petitioner, Joshua J. Israel, requests Supreme Court review of the above-entitled decision of the Court of Appeals based upon the following undisputed grounds of legal issues.
STATEMENT OF LEGAL ISSUES
1. The legal issues presented to the Court of Appeals are as follows:
(a) Does the district court deny Petitioner his rights guaranteed by Article 1, Section 8, of the Minnesota Constitution by refusing to consider controlling authority from the Minnesota Supreme Court and the Minnesota Appellate Court?
(b) Does the district court deny Petitioner the rights guaranteed by Article 1, Section 8, of the Minnesota Constitution by refusing a judgment that is conformable to Appellate rules of law for the district courts of Minnesota?
(c) Does Cannon 2, Rule 2.15 require a district judge to sanction and report counsel for its violation of Minnesota Rules of Lawyer Professional Conduct?
STATEMENT OF CRITERIA RELIED ON FOR REVIEW
2. Pursuant to Article VI, Section 2, of the Minnesota Constitution, this Supreme Court has original supervisory jurisdiction over all courts to regulate procedure and evidentiary matters, and over attorney and judge discipline; and therefore, pursuant to Rule 117(2)(c)(d)(3), of the Minn. R. of Civ. App. P., the criteria relied upon to support this petition is where the lower court’s have so far departed from the accepted and usual course of justice as to call upon an exercise of the Supreme Court’s supervisory powers, where the question is likely to recur again unless resolved by the Supreme Court; and, where the lower court’s are engaged in actions prejudicial to the administration to enforce an unconstitutional “law-of-the-case†upon Petitioner, and deny Petitioner overall case management and a fair trial.
STATEMENT OF CASE FACTS AND PROCEDURAL HISTORY
3. This appeal arises out of the First Judicial District, of Scott County, Minnesota, and the Presiding Judge is Carol A. Hooten. This action began as a separate filing on the 18th day of October, 2010, where Petitioner demonstrated his ability to move for summary judgment in a Minnesota Human Rights Act (MHRA) claim (PA-6, fn 2); and, Petitioner did plead that his summary judgment efforts were to save costs and expenses of litigation. When said motion was denied, the MHRA claim was dismissed “without†any prejudice or restriction against the right of Petitioner to commence other proceedings to secure the rights sought (PA-1). Thereafter, Respondent’s counsel violated Minn. Stat. 481.07 to abuse the judicial machinery and to collude with trial court administration to deny Petitioner his right to be heard on a second MHRA claim, and to eliminate Petitioner’s ability to move for summary judgment in later proceedings. To effectively do so, the Fafinski Law Firm, convinced the Trial Court to violate Minn. Stat. 645.17(5) and render judgment in favor of the private interests of the Respondent and said law firm (PA-2). To favor the Respondent, the Trial Court incorrectly applied the (45) day statute of limitations, and did dismiss 10/18/2010 MHRA claims in disregard of the Minn. Stat. 541.18 Savings Statute. When inconsistent and contradictory positions, by both the Respondent and the Trial Court, did deprive Petitioner of MHRA claims (PA-4), said dismissal was achieved by deceptively converting Defendant’s motion to dismiss, as untimely (PA-6, p.7), into the Trial Court’s weighing of facts and evidence in its own summary judgment, for failure to state a claim (PA-6, p.6), without notice or opportunity for Petitioner to present the genuine issue of material facts brought forth in the previous motion for summary judgment (PA-1).
4. On appeal to the Appellate Court, this Petitioner demonstrated that the judgment appealed from is final; because, certified entry of judgment by the Trial Court Administrator (PA-4), and the Notice of Filing of Order served upon Petitioner by the Respondent (PA-5 & PA-5a), under Rule 104.01(2), mandates that if review is not sought, when the issue is ripe, a failure to appeal will waive the issue at final adjudication Peterson v. BASF Corp, (MN S. Ct. 2004) 675 N.W.2d 57, 66-68 fn 1; and additionally, review is mandated because the issue becomes the “law-of-the-case,†whether or not the judgment does manifest injustice to Petitioner. Moreover, on appeal, Petitioner did move the Appellate Court to require the Trial Court to comply with Rule 109(b), and Minn. Stat. 563.01, and to require the Trial Court to make the required findings of fact for appellate review. Thereafter, in compliance with the Appellate Court’s Order to overcome the non-appealable issues raised by Respondent (PA-8), Petitioner brought forth evidence of Respondent’s Notice of Filing of Order served upon the Petitioner (PA-5 & PA-5A), and then it was demonstrated that Petitioner is deprived of Notice and Opportunity to be heard, in an orderly proceeding that is adapted to the nature of the case; where the Trial Court first consolidated the two separate cases (PA-3) based upon a deception that consolidation needs adjudication on all files, records, proceedings and arguments of counsel (PA-3); and then, in its adjudication of the motion to dismiss (PA-4a, p.7), the Trial Court only re-affirmed prior dismissals (PA-1 & PA-2) based upon its own new holdings of a failure to state a claim, and the Trial Court’s consolidation of dismissed-claims was only necessary to make a false showing that multiple claims existed, and dismissal of one of the claims is a partial-judgment that is not appealable (PA-8).
5. Furthermore, after appeal was sought “as a matter of right,†the lower courts refused to address the issue of lawyer misconduct, the violation of rules of procedure, and the violation of Minn. Const. Art.1, §8; therefore, said facts and issues are hereby undisputed (PA-6 & PA-7). In addition, an abuse of discretion is clearly demonstrated by the Trial Court’s disregard of the mandate of this Court, under Rule 109(b); and, since the Appellate Court did not require the Trial Court to comply with Minn. Stat. 563.01(3)(6), or Rule 109(b), a conflict is hereby created (PA-8) with the Appellate Court’s own holdings in Szanto v. Target Corp., (Minn. App. 2010) No. A09-109, A09-841.
BRIEF ARGUMENT IN SUPPORT OF REVIEW
6. This petition for review is brought forth because the scope of judicial power is to deliver remedies for wrongs and to render justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws Minn. Const. Art., 1, §8. As such, a fair an impartial district judge is to make findings of fact and conclusions of law in conformity with standards as set forth by this Court’s acceptance of the usual course of justice, which should grant the appropriate relief Clerk of Court’s Comp. Lyon Co. v. Lyon County Comm., (MN S. Ct. 1976) 241 N.W.2d 781, 786-787. Since the issues brought forth on appeal are undisputed (PA-6 & PA-7), the Trial Court has effectively blocked appeal relief from its certified entry of judgment, which has ended the litigation and leaves nothing but execution of the judgment Ta Schifsky & Sons Inc. v. Bahr Construction LLC, (MN S. Ct. 2009) 773 N.W.2d 783, 788, fn 5. While Petitioner’s appeal is blocked, the Respondent sets in motion a scheme to obtain unjust attorney fees if Petitioner does not obtain relief on appeal, within the 60 days allowed, under Rule 104.01(2), (PA-5 & PA-5a). Thus, the process of rendering a judgment Not conformable to the laws, and then blocking appeal relief, will only aid the personal pecuniary interests of the Fafinski Law Firm to obtain unjust attorney fees through its wrongful influence over judicial power. As a result, Petitioner is the victim of yet another unconscionable scheme constructed by the Fafinski Law Firm; and this time, the scheme is official extortion, under color of official right United States v. French, (8th Cir. 1980) 628 F.2d 1069, 1073-1075. Therefore, Petitioner must appeal from Respondent’s employment constructive discharge as well as an extortion of attorney fees constructed through lower court proceedings. Furthermore, since unjust attorney fees is the unconscionable scheme that the Fafinski Law Firm has an interest in pursuing, a violation of Minn. Stat. 481.07 was perpetrated in the Appellate Court (PA-5a); because, the Fafinski Law Firm did mandate Petitioner to seek appeal relief, pursuant to Rule 104.01(2), where the 60 days cannot be extended Ta Schifsky & Sons Inc. v. Bahr Construction LLC, (MN S. Ct. 2009) 773 N.W.2d 783, 788, fn 5; and yet, the Fafinski Law Firm inconsistently opposed this instant appeal as non-appealable (PA-7). Wherefore, once again, proof is provided demonstrating the Fafinski Law Firm’s pattern and practice of inconsistent and contradictory positions to deprive Petitioner of employment, as well as rights guaranteed by Minn. Const. Art.1, §8; and now, its extortion of attorney fees is clearly evident. By: ____________________________________
Joshua J. Israel / Petitioner Pro-Se
P. O. XXXX, SXXXX, MX XXXXX
(XXX) XXX-XXXX STATE OF MINNESOTA
IN SUPREME COURT
_____________________________________________________________________________ Joshua J. Israel, PETITION FOR REVIEW OF DECISION
Petitioner, OF COURT OF APPEALS v. APPELLATE COURT CASE NO.
A11-1487
Pierson Pizza,
Respondent, DATE OF FILING OF COURT OF APPEALS
DECISION: September 20, 2011
_____________________________________________________________________________ CERTIFICATE OF SERVICE
The Petitioner, Joshua J. Israel, certifies that his Petition For Discretionary Review of Appellate Court decision is serviced to the Respondent’s legal counsel, and to the Clerk of Appellate Courts by first class mail through the U. S. Postal Service, on the 24th day of September, 2011, at the following address: Sarah West Hauble, Attorney Clerk of Appellate Courts
Fafinski Mark & Johnson P.A. Minnesota Supreme Court
Flagship Corporate Center 135 Minnesota Judicial Center
775 Prairie Center Drive, Suite #400 25 Rev. Dr. Martin L. King Jr. Blvd.
Eden Prairie, MN 55344 St. Paul, MN 55155 By: ____________________________________
Joshua J. Israel / Petitioner-Pro-Se Subscribed and sworn to before me
on this 6th day of October, 2011 _____________________________
Notary Public APPENDIX This Appendix consists of three prior judgments rendered by the trial court, the notice of filing of order served upon Petitioner by the Respondent, the Respondent’s opposition to the appeal herewith, and the decision of the Appellate Court. The Exhibits are labeled, PA, which stands for Petitioner-Appendix. (PA-1) is the order denying the motion for summary judgment brought forth by Petitioner. (PA-2) is the conclusion and order to dismiss with prejudice all MHRA claims. (PA-3) is in the order to consolidate cases based on all files, records, and proceedings. (PA-4) is the certified entry of judgment by the trial court administrator. (PA-4a) is the adjudication of the trial court to convert a motion to dismiss into summary judgment, and then to weigh the facts and evidence, before dismissing with prejudice all claims under the Minnesota Human Rights Act. (PA-5) is the notice of filing of order served upon Petitioner. (PA-5a) is the 2nd page of the notice of filing of order served upon Petitioner. (PA-6) is the Respondent’s opposition to Petitioner’s notice of appeal, and statement of issues. (PA-7) is the requested memoranda filed and served in the Minnesota Court of Appeals. (PA-8) is the Order and Decision of the Minnesota Appellate Court to deny appeal. These document are the true, the accurate, and the authentic copy of its original origin. By: ___________________________________
Joshua J. Israel / Petitioner Pro-Se STATE OF MINNESOTA IN SUPREME COURT A11-1487 Joshua J. Israel,
FILED
Petitioner, November 15, 2011
OFFICE OF
vs. APPELLATE COURTS Pierson Pizza, Inc., Respondent. ORDER Based upon all files, records, and proceedings herein. IT IS HEREBY ORDERED that the motion of Joshua J. Israel for leave to proceed in forma pauperis be, and the same, granted.
IT IS FURTHER ORDERED that the petition of Joshua J. Israel for further review be, and the same is, denied.
Dated: November 15, 2011.
BY THE COURT
_________________________________
Lorie S. Gildea
Chief Justice |
