Appeal from the Howell County Circuit Court

37^th Judicial Circuit

Honorable Ronald J. Garrett

Case # CV398-699CC

Lee Allen Martin

7050 County Road 2810

West Plains Missouri, 65775

Lee Allen Martin

State V. Mayo 915 S. W. 2d 758

5^th and 14^th amendments to the Constitution of the United States

Jennings v Director of Revenue 986 S.W.2d 513 (Mo.App. 1999)

Elbert v Elbert 883 S.W. 2d 884,885(mo. App. 1992)

#1

The Court of the 37^th Judicial Circuit of the Honorable Judge Ronald J. Garrett did abuse its discretion by refusing to recognize the Subject Matter Jurisdiction that did and does properly lie in said Court. Respondent points will be examined as follows:

Defect in the Appellant's Petition for Trial De Novo from Administrative Action (L.F. 55-57)

The respondent in his first point of argument finds failure of the appellant/plaintiff's petition in that it failed to note the Director of Revenue in the caption and no service was made upon the Director of Revenue by the Appellant/plaintiff. It should be noted that the respondent, on page 14 of the Respondent Brief, does cite RSMo 302.311 insisting that the local prosecutor be designated to represent respondent in the circuit court. This affirmation made by the learned council for the respondent that the local prosecuting attorney did and does and continues to represent the respondent, Director of Revenue, in the cause is binding on the respondent. This statute and argument that the prosecuting attorney does represent the director pursuant to 302.311 was first brought before the court on the 21^st day of September 1998, and so noted in the transcript on the 5^th day of October 1998, page 6 of the Official Transcript, by the plaintiff/appellant. Further, the Respondent on the 7^th day of August 1998, did inform the plaintiff/appellant that 302.311 was governing in the Final Notice, page 57 of the Legal File, and for the respondent and their counsel to cry that on the 21^st day of September 1998 and 5^th day of October 1998 that respondent was uninformed of the wording of said statute is unethical. The respondent position that their attorney is some how different than the respondent carries no merit. The respondent can not have it both ways. Missouri Supreme Court Rule 43.01 (b) requires that service be made upon the attorney for the defendant. The language of the Mo. S. CT Rule 43.01(b) is not ambiguous; the service "shall" be made upon the attorney unless service upon the party is ordered by the Court. "The Court" in the case at hand would be the court of the Honorable Ronald J. Garrett of the 37^th Judicial Circuit. Further, on the 21^st day of September 1998 the Honorable Court did take to issue an order designating that Mr. Michael P. Hutchings would act as attorney for the defendant/respondent, page 7 of the Legal File. It should be noted said entry is not in the handwriting of the honorable trial judge, and if the learned counsel for the respondent would insist on making an issue of the veracity of said docket entry the Plaintiff/appellant would acquiesce said point. As respondent position that the failure of the trial court to protect the veracity of the trial court record is prejudicial to all parties, would support the argument #2 of the plaintiff/appellant's Brief. Appellant will stand on the Mo. S. CT Rule 43, as to proper service, and would further offer that a copy of the 1^st amended Petition for Trial de Novo From Administrative Action, page 53 of the legal file, was served upon the respondent which he did take to Answer, page 46 of the official Legal File. The Certificate of Service states that the petition was delivered by hand to the prosecutor's office on the 4^th day of September 1998.

It should be noted that the cause was a Petition for Trial De Novo from Administrative Action, (L.F. 55-57). The scope of the review by the circuit court is limited by statute and the Plaintiff in this case did attach the Final Decision of the Director of Revenue (L.F. 57). To which the Plaintiff/Appellant did make reference to the director of revenue, Final Decision, Chapter 536 and RSMo 302.311, RSMo 302.010.3, Southern District Court of Appeals #21211-1, date 2-9-98, and date 8-13-92. Facts were stated in the pleading, and The Petition for Trial De Novo from Administrative Action, page 55 of the legal file, was taken up on the 21^st day of September, 1998 to which the Respondent fails to note in the Respondent Brief. The Appellant/Plaintiff would ask this Honorable Court of Appeals not to forget the record noting hearing held on the 21^st day of September 1998, and the testimony of the Official Court Reporter in her sworn testimony, page 21 line 23 of the supplemental transcript, stating that said hearing did occur. The appellant contends that the hearing on the 21^st day of September 1998 was on the record and the issues of failure to state a claim were taken up by the Circuit Court of the Honorable Ronald J. Garrett and was found in favor of the Appellant/Plaintiff, and thusly reset for hearing on the 5^th day of October 1998. Plaintiff/Appellant agrees that the Petition was dismissed with the allowing of 15 days to amend on the 5^th day of October 1998.On the 5^th day of October 1998 the plaintiff did take to explain, orally, the Petition to further eliminate any confusion as to the request for relief that the Petition may have failed to address, page 7 line 15 through 19 of the Transcript. The plaintiff/appellant would at this time point out that at no time did the learned attorneys for the respondent ever take to raise the issue of prejudice as to the technical failures of the appellant/plaintiff petition. Further, the Respondent in their brief fails to address the issue of prejudice as to their inability to prepare a defense to the allegations presented in the plaintiff/appellant Petition. The issue before the Honorable Court of Appeals is whether the Trial Judge did abuse his discretion in the failure to recognize the Subject Matter Jurisdiction in light of the Mo. S. CT. Rule 67.06 which states that the court shall freely grant leave to amend. Appellant argues that once a petition is timely filed as in the case at hand that the court does have discretion to see justice is served. Notwithstanding Renfro v. Director of Revenue, 810 S.W. 2d 723 (Mo.App.1991) The Supreme Court in Jackson v. Director of Revenue, 893 S.W.2d 831 (Mo.banc 1995) stated:

The Supreme Court is explicit in the Jackson case that technical difficulties should not render a Petition for review of a driver's license revocation fatally flawed. The Subject Matter Jurisdiction is merely the court's power to hear and determine the matter involved in the case. The respondent does not at any time make an argument that the plaintiff/appellant's cause was filed in the wrong court. In fact the only argument on the part of the respondent is some technical inadequacy of the petition. Jackson is binding upon the trial court as well as upon the Honorable Court of Appeals. If the Action is brought in the proper jurisdiction the honorable trial court should allow the amending of the petition, and rule on the merits of the case at hand. The trial court's failure to do so is the abuse of discretion that is complained of in the Appellant Brief. It also bears mention that respondent was in no way prejudiced by the defect in the petition The respondent at no time has argued that any defect in the appellant/plaintiff's petition in any way prejudiced the respondent.

On page 9 of the Respondent's Brief the Respondent takes to misquote the plaintiff/appellants facts as conclusions of law. Facts are stated:

1. 1) director of revenue's final decision of August 7, 1998.

2) Final judgment affirming conviction was on 2-9-98.

2. 3) In appeals #21211-1
3. 4) No privilege was applied for.
4. 5) Driving privilege has been revoked since 8-13-92.

These facts are incontrovertible, and the plaintiff/appellant did attach the director's final decision, and signed and dated and addressed the original petition with his address in Howell County, page 56 of the Legal File, the same address that he has maintained in court Actions in the 37^th Judicial Circuit since 1992. It should be noted that the director at no time notified the plaintiff/appellant of any hearing on the status of his driver's license. These are facts and though issues of law are also brought forward as to how these facts apply they are facts nevertheless.

Plaintiff/appellant does quote State V. Mayo 915 S. W. 2d 758 in his petition. He furthers states in paragraph 2 of the Petition "that the revocation beyond the statutory limits set by 302.010(3) is where the error of the director occurred." If the appellant would have been granted an opportunity to be heard at the hearing held on the 8^th day of August 1998 he could have presented the fact of the date of the Memorandum, and this could have all been avoided. The respondent failed to notify the plaintiff/appellant of any administrative action upon his privilege, and further used the honorable trial court as a tool to continue to deny Constitutional Rights provided by the 5^th and 14^th amendments to the Constitution of the United States. The respondent relies on Jennings v Director of Revenue 986 S.W.2d 513 (Mo.App. 1999) that it makes no difference when the Memorandum or final decision is issued, and the statutory language of 302.010.3 is not binding on the Director until director is notified. This in and of it self denies the plaintiff/appellant equal protection of the statutes of the state of Missouri. The Plaintiff/appellant should not be punished for the malfeasance of state operatives. This continued malfeasance of the courts clerks in their failure to timely notify the Director of decisions of the courts of the state of Missouri allows for the capricious and arbitrary enforcement of the statutes of the State of Missouri. This is unconstitutional via the 14^th amendment of the United States' equal protection clause. The state would be better served by prosecuting court personnel for malfeasance of office rather than punish the plaintiff/appellant beyond the statutory limits. The language of 302.010.3 is unambiguous in that the verb in use is "shall" and is not "may". 302.010.3 explicitly states that "and the date of final judgment affirming the conviction shall be the date determining the beginning of any license suspension or revocation pursuant to section 302.304." What ambiguity is there in the wording of said statute?

Additional action is claimed to be responsibility of the Respondent as to the violation of state law concerning a driver's license. However, the respondent does note that Director is in no way responsible for the decrease of points against a driving privilege that has not been reinstated. This in the humble opinion of the Appellant/Plaintiff is a policy or statute that does deny the citizen of the state of Missouri equal protection under the law. However, Respondent's argument would have been better served at the trial level. The issue before the Honorable Court of Appeal is whether the Trial Court did abuse its discretion in the failure to recognize Subject Matter Jurisdiction. Respondent's Argument and the citing of Creech are done to distract from Appellant/Plaintiff's argument and have no relevant place in the Respondent's Brief. The Respondent's citation of Creech only tends to undermine the respondent's argument that no facts were cited in Appellant/plaintiff's original Petition.

The respondent would have the Honorable Court of Appeals believe that the present citation of RSMo 577.041 is the same that resulted in the litigation in 1992 and 1995. It is not and the learned attorney for the respondent fails to note that 577.041 was amended because it did in fact violate the constitutions of the State of Missouri and the Constitution of the United States. Further, respondent argument would best be heard in the trial court, as it is not a matter before the Honorable Court of Appeals. Once again the Learned Attorney for the Respondent is arguing issues that are not before the Court. This argument only proves that facts were presented to the trial court in the petition for trail de novo review that did and does produce substantive points of law.

On page 11 of the Respondent Brief the Respondent finally gets to the issue before the Honorable Court of Appeals. That being whether the failure of the appellant to state his address in the body of the pleading does render it fatally flawed. In light of Jackson v. Director of Revenue 1995, The Supreme Court firmly announced what subject matter jurisdiction is. Further the Supreme Court of the State of Missouri has long held that technical failure asserting mere theoretical prejudice is not fatal:

It would seem to the appellant that the reason the Supreme Court has allowed the statutory encumbrances that only allow 30 days to file for trial de novo is because of the statutory nature of Trial De Novo from an administrative revocation of a drivers license. The issue is defined, and the defendant in such a proceeding is very aware of the issues before the trial court because they thoroughly reviewed the case in its particular prior and within 30 days of the petition being filed in the trial court. Trail De Novo is a review set by statute. The facts of the case are very limited, and should not represent questions and issues that would be apparent in other civil proceedings. The facts in this case have all been judicially determined, res judicata.

Respondent continues his argument that the Petition for Trial De Novo must be filed in the county of residence. Yet, no time does the respondent attack the residency of the appellant/plaintiff. Respondent mailed Final Notice to Appellant/Plaintiff to his official addresses 7050 County Road 2810, West Plains, and Missouri 65775 on the 7^th day of August 1998. The Plaintiff/Appellant was a candidate, at the time of the litigation, for the Office of Circuit Court Clerk for Howell County, and did so announce to the Honorable trial court his residency, page 20 of the Appellant Brief. Respondent argument that Petition must be brought in the county of residence and said petition by the appellant/plaintiff was filed in the county of Howell would mean that it was appropriately filed. Plaintiff/appellant believes it is technical failure to list the Director in the caption of a trial de novo and it is also technical failure to overlook the plaintiff's address in the body of the petition. It should be that the trial court in the interest of justice allows the amending of the petition and allow a ruling on the merits. Learned counsel for the respondent has failed to inform the Honorable Court of Appeals of any prejudice that was put on the defendant/respondent for any technical failure of the original petition. The Supreme Court of the State of Missouri has so found in State of Missouri v. Brown 502 S.W.2d 295:

Technical failure in the petition for review of an administrative action should not be held to a higher standard than that of any other civil proceedings. In fact due to the 30-day time limit for the filing for review, Renfro, would tend to show that there are fewer issues in controversy and that both parties already know the facts. Technical failure in a petition must have prejudiced the opposing party. It cannot be asserted that prejudice may have occurred, or might occur. The respondent has the obligation to prove prejudice. The respondent must show that the petition did and does deny the respondent any way to make a defense. They have not asserted that the defendant/respondent was ever prejudiced by the technical failure of plaintiff/appellant's Petition.

Therefore, the Honorable Court of Appeals must find in the favor of the Appellant and acknowledge the Subject Matter Jurisdiction of the 37^th Judicial Circuit, Howell County. Further, the Honorable Court of Appeals should find the Trial Judge's ruling that it is not vested with Subject Matter Jurisdiction is an abuse of discretion, which does deny the appellant substantial and procedural due process of law.

In respondent first argument as to the assistant prosecuting attorney being allowed to represent the respondent after having been given leave to Withdraw by the Missouri Supreme Court, respondent admits that Motion to Withdraw was filed with the Supreme Court and granted. This is in contradiction with the statements of the Assistant Prosecuting attorney on the 17^th day of May 1999. The Assistant Prosecuting Attorney in fact denied that Motions to Withdraw were filed. Instead the Assistant Prosecuting Attorney insisted that he had only filed Motions to Dismiss for reasons "we did not want copies sent to us", page 4 of the supplemental transcript.

Respondent fails to address the issue of allowing a judge to take Judicial Notice of untruthful facts. For a judge to take judicial notice of facts, which are not in the record of the court, and that, are incorrect or false, is denial of appellant's substantial due process rights. The prejudicial effect is to deny a fair and impartial hearing on the merits of issues brought before the court. The allowing of misrepresentation by the assistant prosecuting attorney by the trial judge prevented the appellant any conceivable hope of receiving a ruling that in any way symbolized Justice.

The respondent acknowledges 302.311 as binding on the court as to the representation of the respondent. The exact opposite argument was presented to this Honorable Court in the preceding argument. Respondent has already argued in argument #1 that somehow the Director of Revenue is different than the statutory representation, prosecutor, in the notification and service. The respondent can not have it both ways. The representation provided for the director on the 17^th day of May 1999 was appropriate then the exact same counsel was appropriate at hearings held on the 21^st day of September 1998, 5^th day of October 1998, etc. Respondent's argument is convoluted at best and does not relieve the court error of allowing counsel to re enter after the filing of four Motions to Withdraw. The Trial Judge did error by not sanctioning the respondent counsel on the 17^th day of May 1999 for the blatant misrepresentation of the facts maintained in the official court record.

The respondent would have the honorable court of appeals believe that affixing the proper file stamp to a legal file is ancillary. Appellant contends that proper certification is compulsory and failure to do so leaves the reviewing court without a record in which to review, page 26 of the Appellant Brief. Thus requiring the case to be remanded back to the trial court so as to produce a record of veracity that will allow the reviewing court to make a decision. The statutes of the State of Missouri require that the court affix its stamp on all documents that are filed in the court. It also requires that a seal of the court be affixed to the Legal File. This is to remove any question as to the veracity of the record, Rel. Fairy M. Nassau v. Honorable Judge Kohn 731 S.W.2d 840. In the case at hand the veracity may be questioned, and although the respondent may argue clerical error on the part of the clerk's office, continued clerical error does serve to deny due process of law. For the respondent to continue and admit that this form of error is common in the courts of the State of Missouri only tends to increase the importance of appellant's argument. The failure of a court record to speak veracity does deny said court the status of a court of record. A court cannot be a court of record without maintaining a record that speaks veracity.

Respondent contends that the difference in the memory of the appellant concerning the actions of the trial court in the case at hand have any conceivable impact on the issues presented for this appeal. Appellant would so note that the Honorable Court has in their possession the affidavits of Mr. Robert L. Martin and Ms. Robin McDermott, Appellant's Objection To The Preparation of the Record on Appeal filed 5^th day of April 1999, that the official transcript has been altered. Mr. Martin and Ms. Mc Dermott both have signed affidavits that say the trial court created a record on the 21^st day of September 1998. Further the affidavits of these witnesses are in direct contradiction with the findings of the Trial Court on the 17^th day of May 1999. It is not the appellant's sole memory that contradicts the Court record.

Subject here is whether the trial court did fail to record error so prejudicial as to deny the appellant any semblance of justice. The trial court's failure to maintain a record of the 21^st day of September 1998 is questionable at best. The 21^st day of September 1998, the Honorable Ronald J. Garrett did call the case of #CV398-699CC. This is the first hearing on the matter before the honorable trial court, the handwritten entry of 9-9-98, page 7 of the Legal File, by the honorable trial judge calls counsel for defendant and petitioner "shall appear 9/21/98 at 1:00pm in div. I(Ho. Co.) court room for further proceedings-rjg-" The judge did set and call the case and never notes that anyone showed up. The docket entry of 9-21-98 , page 7 of the Legal File, has a handwritten entry, not in the judge's hand, "Michael Hutchings enter appearance for state cause set for 10/5/98 for discovery or pretrial. Ffw". The trial court fails to note the appearance of the parties, argument heard, or if any argument was heard. The court made a ruling concerning attorney for the respondent and either the trial court recognized the prosecutor's duty to represent the Director or Mr. Hutchings agreed to represent the respondent pursuant to 302.311. However, the scenario of the appointment of Mr. Hutchings on the 21^st day of September 1998, the entry of appearance does render all filings with the respondent attorney as if they were served on the person of the director. The problem with the official court entry of the 21^st day of September 1998, is that the pen of the clerk hand writes it, and it is initialed with the clerk's initials.

A reasonable man could assume that issues were brought before the court on the 21^st day of September 1998, and the trial court failed to make a record of the proceedings. This failure to maintain a record did deny the appellant the ability to preserve the record on appeal of all applicable issues. The appellant contends that the first hearing before the court it is required that entry of appearances of the parties should be entered into the official court record. The trial judge does call for a hearing on discovery or pretrial issues on the 5^th day of October 1998, page 7 of the legal file. The appellant does state that on the 21^st day of September 1998 the Trial Court did assume subject matter jurisdiction to hear the cause. The trial court did know that the plaintiff/appellant was a resident of Howell County and further was a litigant in his court on the underlying issues. In fact the rulings of his court is where the res judicata on many binding issues are maintained. With this understanding the trial court proceeded to set the cause for hearing on discovery or pre trial. It is the position of the appellant the resulting prejudice from the failure to maintain this record did and does deny the plaintiff/appellant due process of law.

The respondent cites Elbert v. Elbert 883 S.W.2d 884 (Mo.App.1992) as a basis for the accepting of the record on appeal in the appeal at hand. Elbert is a multi jurisdictional divorce case where the court of appeals did rule that the issues before the court could be determined with the record on appeal submitted even though it lacked a transcript of the proceedings. Here a transcript has been presented; it is not a divorce case containing the rulings of a foreign court. It is a question of whether the official Court Record speaks with veracity. Elbert is of no help to the respondent; here there is a lot of record, all of which has been attacked as lacking veracity. It should be noted that the plaintiff/appellant was not able to locate Elbert v. Elbert as cited. The correct citation is Elbert V. Elbert 833 S.W.2d. Appellant here, as in the allowing the late filing of the Respondent's Brief, that certain errors are harmless and in the best interest of the administration of justice should be the goal of the judiciary. Plaintiff/appellant request the court to note the correct citation for Elbert because it is of no help to the respondent.

The trial court's failure to meet even the most common of clerical duties of honorable members of the court should be seen as an abuse of discretion. The appellant requests that the case be remanded back to the trial level for a determination on the merits.

The respondents' sole position concerning argument # 1 in the appellant brief is that because of a dismissal as to technical failure and a filing of a petition by appellant within the 30 day time limit denies the trial court of Subject matter Jurisdiction. The Respondent goes on to say that the only error committed by the trial court was the allowing of an amended petition. Appellant stands on the History of the Missouri Supreme Court holding those Technical Failures are not fatal. In the recent Missouri Supreme Court case Jackson v. Director of Revenue, the court has so said technical failure is not fatal. If technical failure is not fatal flaw, then the trial court has always maintained subject matter jurisdiction and should be held to make a ruling. The respondent would ask the court allow the Administrative Agency circumvent the Bill of Rights and deny the Due Process Clause. They would capriciously and arbitrarily apply the statutes as they have done in this case.

The trial courts as shown in Argument #2 would fail to make a record of the proceedings before it and allow clerks to enter orders as a judge, fail in the most basic of job duties of timely notification of all parties of decisions of the court. Allow the honorable court personnel to misrepresent the official court record and then the trial judge could take judicial notice of facts that are incorrect, all to the detriment of the litigant seeking the constitutional right to redress of grievance. The Appellant contends that the trial court and the Department of Revenue, through the administrative process for review applied to the appellant in the review of his driver's license revocation has denied the appellant substantive and procedural due process rights. Appellant does request that the honorable court see the error on the part of the trial court and remand the case to the trial level or in the alternative provide whatever legal relief unto the appellant as the Court of Appeals is allowed to grant.

Respectfully submitted,

Lee Allen Martin, Appellant/Plaintiff

7050 County Road 2810

West Plains, Missouri 65775