Michael Field Virginia Mandamus Petition 2012

7/28/2019 Michael Field Virginia Mandamus Petition 2012

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In The

Supreme Court of Virginia

Record No.

In re: Michael Field,

Petitioner

PETITION FOR WRIT OF MANDAMUS AND PROHIBITION

Michael Field, Petitioner1340 North Great Neck Road#1272-384Virginia Beach, VA 23454(757) [email protected]


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TABLE OF CONTENTSPage

Table of Contents......1

Table of Authorities........2

Table of Exhibits.........8

Table of Appendices...10

Petition for Writ of Mandamus and Prohibition......11

Facts and Memorandum of Law....16

Preface......16

Taking of Evidence...18

Background...24

Mandamus....26

Prohibition......26

Due Process......29

1: Inspection and Preservation of Court Records.......31

2: Reports of Commissioners in Chancery.43

3: Default Judgments....46

4: Recovery of Statutory Costs and Damages...49

5: Opportunity to be Heard, Counterclaim..59

6: Responsibility for the Quality of Justice...66

Prayer for Relief...71

Notarized Certification.....71

Appendices..72


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TABLE OF AUTHORITIES Page

CONSTITUTIONS

United States Constitution*.....passim

Virginia Constitution*

............passim

STATUTES

Va. Code 8.01-227*........15

Remedy by motion on certain bonds

Va. Code 8.01-271.1*.......61, 63

Signing of pleadings, motions, and other papers; oral motions, sanctions

Assignment of Claims

Va. Code 8.01-12*..20

Suit by beneficial owner when legal title in another.

Va. Code 8.01-13*......20

Assignee or beneficial owner may sue in own name.

AttachmentsVa. Code 8.01-535.....56

Jurisdiction of Attachments; trial or hearing of issues

Va. Code 8.01-537.1*.....15

Plaintiff to File Bond

Va. Code 8.01-567.....52

Principal defendant may also file counterclaims or defenses

Va. Code 8.01-568*...............15, 52, 53, 56, 63

Quashing attachment or rendering judgment for defendant

*Indicates a violation of the statute, rule, or canon by a court official occurred


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Comm issioners in Chancery

Va. Code 8.01-609*......46

Commissioners in Chancery - Duties; procedures generally

Courts of Record

Va. Code 17.1-123*..42

How orders are recorded and signed

Va. Code 17.1-124*..42

Order books

Va. Code 17.1-129*

..42

Filing date and time to be noted on papers

Va. Code 17.1-208*..31

Records, etc. open to inspection; copies; exception

Va. Code 17.1-215...42

Process book

Va. Code 17.1-247*..42

When and how clerk to verify his record.

Va. Code 17.1-248...42

Clerk to make index to each of his books

Va. Code 17.1-249...42

General indexes for clerks office; daily index

Va. Code 17.1-250*..42

Correction of indexes



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Jury Trial of Right

Va. Code 18.1-336*........34

Jury trial of right; waiver of jury trial; court-ordered jury trial;

RULES OF THE SUPREME COURT OF VIRGINIA

Va. Sup. Ct. Rule 1:4*..61, 62

General Provisions as to Pleadings

Va. Sup. Ct. Rule 1:13*......61

Endorsements

Va. Sup. Ct. Rule 3:8*

........46

Answers, Pleas, Demurrers and Motions

Va. Sup. Ct. Rule 3:19*......49

Default

Va. Sup. Ct. Rule 3:23*.15, 44, 46

Use of and Proceedings Before a Commissioner in Chancery

Va. Sup. Ct. Rule 5:7.......11, 71

Petitions for Mandamus and Prohibition

Va. Sup. Ct. Rule 5:10*..12

Record on Appeal: Contents

Va. Sup. Ct. Rule 5:11*.....13, 22, 37

Record on Appeal: Transcript or Written Statement

Va. Sup. Ct. Rule 5:13*..12

Record on Appeal: Preparation and Transmission



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CANONS OF JUDICIAL CONDUCT Page

Canon 1*.....passim

A Judge shall uphold the integrity and independence of the judiciary.

Canon 2*.passim

A Judge shall avoid impropriety and the appearance of impropriety

in all of the Judges activities.

Canon 3*.passim

A Judge shall perform the duties of judicial office impartially and diligently.

(Part Six, III of the Rules of the Supreme Court of Virginia integrates

the Canons of Judicial Conduct for the State of Virginia stated above.)

RULES OF PROFESSIONAL CONDUCT

Preamble:A Lawyers Responsibilities*...........66

A lawyer is an officer of the legal system.

Rules 1.1 - 1.18: Client-Lawyer Relationship*......passim

Rules 3.1 - 3.9: Advocate*.............passim

Rules 4.1 - 4.4: Transactions with Persons other than Clients*.passim

(Part Six, II of the Rules of the Supreme Court of Virginia integrates the

Professional Guidelines and the Rules of Professional Conduct stated above.)



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CASES Page

Ableman v. Booth.34

Aetna Casualty Co. v. Supervisors....66, 70

Ancient Art Tattoo Studio, Ltd. v. City of Virginia Beach.....28

Anthony v. Kasey...65

Attorney Grievance Commission of Maryland v. Ira Stephen Saul...17

Barnes v. American Fertilizer Company......... 65

Britt Construction, Inc. v. Magazine Clean, LLC..16

Caperton v. A. T. Massey Coal Company...30

Carolina, C & O Ry. v. Board of Supervisors...28

Coleman v. Virginia Stave Company...65

Collins v. Shepherd....65

In re: Commonwealths Attorney for the City of Roanoke..27

Commonwealth v. Lancaster....68

Connecticut v. Doehr.59

Cowan v. Fulton.....28

Daniels v. Truck & Equip. Corporation.....68

Dovel v. Bertram....27

Early Used Cars, Inc. v. Province.....28

Estate of Hackler v. Hackler......68

Evans v. Smyth-Wythe Airport Commission...65
https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=V3K10j6b7vefLEUMEH%2f2T5vRaPkYtwX2TWLcKCi%2fqKSRKzeha5kOOHAvesq7gkbLJ7%2f4Co2N35Gk24W1WeaUZ8uSRrGdRWoH%2flwEiS2nvsvc1Nwzfyk4wHc0aAzhm3hQ&ECF=Anthony+v.+Kasey%2c++83+Va.+338%2c+340https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=V3K10j6b7vefLEUMEH%2f2T5vRaPkYtwX2TWLcKCi%2fqKSRKzeha5kOOHAvesq7gkbLJ7%2f4Co2N35Gk24W1WeaUZ8uSRrGdRWoH%2flwEiS2nvsvc1Nwzfyk4wHc0aAzhm3hQ&ECF=Barnes+v.+American+Fertilizer+Co.%2c++144+Va.+692%2c+706https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=V3K10j6b7vefLEUMEH%2f2T5vRaPkYtwX2TWLcKCi%2fqKSRKzeha5kOOHAvesq7gkbLJ7%2f4Co2N35Gk24W1WeaUZ8uSRrGdRWoH%2flwEiS2nvsvc1Nwzfyk4wHc0aAzhm3hQ&ECF=Barnes+v.+American+Fertilizer+Co.%2c++144+Va.+692%2c+706https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=V3K10j6b7vefLEUMEH%2f2T5vRaPkYtwX2TWLcKCi%2fqKSRKzeha5kOOHAvesq7gkbLJ7%2f4Co2N35Gk24W1WeaUZ8uSRrGdRWoH%2flwEiS2nvsvc1Nwzfyk4wHc0aAzhm3hQ&ECF=Barnes+v.+American+Fertilizer+Co.%2c++144+Va.+692%2c+706https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=V3K10j6b7vefLEUMEH%2f2T5vRaPkYtwX2TWLcKCi%2fqKSRKzeha5kOOHAvesq7gkbLJ7%2f4Co2N35Gk24W1WeaUZ8uSRrGdRWoH%2flwEiS2nvsvc1Nwzfyk4wHc0aAzhm3hQ&ECF=Barnes+v.+American+Fertilizer+Co.%2c++144+Va.+692%2c+706https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=V3K10j6b7vefLEUMEH%2f2T5vRaPkYtwX2TWLcKCi%2fqKSRKzeha5kOOHAvesq7gkbLJ7%2f4Co2N35Gk24W1WeaUZ8uSRrGdRWoH%2flwEiS2nvsvc1Nwzfyk4wHc0aAzhm3hQ&ECF=Barnes+v.+American+Fertilizer+Co.%2c++144+Va.+692%2c+706https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=V3K10j6b7vefLEUMEH%2f2T5vRaPkYtwX2TWLcKCi%2fqKSRKzeha5kOOHAvesq7gkbLJ7%2f4Co2N35Gk24W1WeaUZ8uSRrGdRWoH%2flwEiS2nvsvc1Nwzfyk4wHc0aAzhm3hQ&ECF=Barnes+v.+American+Fertilizer+Co.%2c++144+Va.+692%2c+706https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=V3K10j6b7vefLEUMEH%2f2T5vRaPkYtwX2TWLcKCi%2fqKSRKzeha5kOOHAvesq7gkbLJ7%2f4Co2N35Gk24W1WeaUZ8uSRrGdRWoH%2flwEiS2nvsvc1Nwzfyk4wHc0aAzhm3hQ&ECF=Anthony+v.+Kasey%2c++83+Va.+338%2c+340


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Page

Evans v. Virginia...18

Fauquier Nat'l Bankv. Hazelwood Savings & Trust Company.....56

Ferry Company v. Commonwealth.65

Gannon v. State Corp. Commonwealth..27

Hazel-Atlas Glass Co. v Hartford-Empire Co....31

Lapidus v. Lapidus65

Lugar v. Edmondson Oil Company.57

Marbury v. Madison.59, 69, 70

Owens-Corning Fiberglas Corp v. Watson.25

Parratt v. Taylor.58

Richlands Med. Assn v. Commonwealth.........26, 27

Shapiro v. Younkin...37

Singh v. Mooney...65

Sniadach v. Family Finance Corporation....57

Super Fresh Food Mkts. of Va., Inc. v. Ruffin.....68

Watkins v. Watkins...65

Williams v. Commonwealth...16

Winfree v. Mann.........55
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TABLE OF EXHIBITS

Exhibit Page

1 Email from counsel regarding threats.17

2 Judge Kemler Transcript August 8, 2012...18

3 Baker Plaintiffs Opposition Page 6.21

4 Baker Plaintiffs Opposition Page 6.....21

5 Baker Plaintiffs Opposition Page 11...21


7 Outlaw Trial Testimony Page 4...23

8 Judge Kemlers Order granting Baker Plaintiffs Non-Suit....23

9 Judge Kemler August 8, 2012 Transcript.......32

10 Mr. Fields Motion for a Report in Compliance with the Rules..33

11 Judge Kemler August 8, 2012 Transcript...33

12 Mr. Fields Written Statement of Facts....36

13 Judge Kemlers 1/21/05 Order to Report Trustees Position....39

14 Legal Bill for ex parte conference with Judge Kemler...40

15 Judge Browns 2/9/05 Ex Parte Order to Report Trustees Position40

16 Judge Kemler and Mr. Field August 8, 2012 Transcript....41

17 Judge Kemler and Mr. Field August 8, 2012 Transcript....45



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Exhibit Page


20 Judge BrownMr. Fields Hearing to Quash Attachment....51

21 Counsel for GMAC re: Statutory Right to Damages..52

22 Judge Kloch re: Facts did not support the seizure..54

23 Report of the Committee of District Courts.55

24 Statutory Right to Damages. ..60


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TABLE OF APPENDICESAppendix

Transcript August 8, 2012.A

Ancillary Background SynopsisB

Order Approving Sale and Assignment of Claims to Michael Field...C

Certified Table of Contents of Baker v. Field...D

Report of the Commissioner in ChanceryE

August 15, 2005 Index CL 04-001130...F

December 20, 2005 Index CL 04-001130....G

March 20, 2006 Index CL 04-001130.H

Unendorsed December Order CL 04-001130.....I

December Order Filed as Exhibit in Civil Action 1:05CV1507........J

Unsigned Amended Pleading...K

Transcript and MP3 of Voicemail from Judge Kemlers Law Clerk 9/18/12..L

Communications Chain with Judge Kemlers Law Clerk and Clerks Office.MVirginia State Bar Inquiry Request Ira S. Saul.N

Judicial Review and Inquiry and Review Commission Kemler...O

Judicial Review and Inquiry and Review Commission WeiserP

Report of the Committee on District Courts.....Q

Electronic Case History dated December 8, 2012..R

Fax Cover Sheet obtained from Deputy Brian Grenadier...S

December 6, 2011 Letter to Judge Kemler and Delivery Receipt..T

December 6, 2011 Index CH 04-001230 & CL 05-001284.....U

December 12, 2011 Index CH 04-001230 & CL 05-001284...V


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PETITION FOR WRIT OF MANDAMUS AND PROHIBITION

COMES NOW, the undersigned Petitioner, pursuant to Article VI of the

Virginia Constitution and Rule 5:7, et seq. of the Rules of the Supreme Court of

Virginia, respectfully moves this Honorable Court to issue a Writ of Mandamus and

a Writ of Prohibition to the court officials in the Circuit Court for the City of

Alexandria.

The Petitioner (Mr. Field) has requested and the court officials have refused

to perform certain required ministerial acts in obedience to the mandate of legal

authority without regard to, or the exercise of, their own judgment, bias, or self

interests. The court officials act outside their authority, outside their jurisdiction, and

in violation of the Rules of the Supreme Court of Virginia, the Virginia Code, the

Canons of Judicial Conduct, the Rules of Professional Conduct, the Virginia

Constitution and the United States Constitution.

The court officials are purposefully infringing upon Mr. Fields constitutionally

protected interests. The court officials are depriving Mr. Field of his fundamental due

process rights including the rights to notice, an opportunity to be heard, equal

protection under the law, an impartial arbiter, an ethical arbiter, access to inspect

and copy the record, and trial by jury. This Petition seeks to address these

constitutional violations and compel the performance of the ministerial duties.


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The court officials known at this time are: the Clerk of the Court Edward

Semonian Jr., the Commissioner in Chancery Michael Weiser, the Honorable Chief

and Presiding Judge Lisa B. Kemler, and attorney Ira S. Saul. The proceedings

referenced by this Petition are: CL 04-001130, CH 04-001230, and CL 05-001284.

Mr. Field has a lawful right to the relief requested. Mr. Field has no other

adequate legal remedy and requests the issuance of a writ of mandamus and a writ

of prohibition to the court officials of the Circuit Court for the City of Alexandria for

the purpose of preventing a defect or failure of justice, to provide adequate post due

process deprivation remedies, to provide a process sufficient to remedy the ongoing

due process deprivations that conveys to Mr. Field the feeling that the State is

treating him justly, to ensure that Mr. Field is afforded equal protection under the

law, to prohibit future violations of Mr. Fields rights and more specifically to:

1.) Allow Mr. Field, his counsel and his forensic science experts to inspect or be

fully informed of the original records, papers, and material ex parte

communications of the circuit court and the clerks office related to these

proceedings and furnish copies of the following records:

a.) all items which constitute portions of the record on appeal of these

proceedings under Rule 5:10 which were not prepared and transmitted to

the Supreme Court as required by Rule 5:13 , and


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b.) the report of the Commissioner in Chancery Weiser which Judge Kemler

claimed, on August 8, 2012, indicates a finding of no assets, and

c.) all of the exhibits offered into evidence on September 28, 2011 including

those which were objected to and not admitted into evidence by Judge

Kemler during the trial held, absent a jury though duly demanded, and a

copy of the receipt or other records evidencing the Baker Plaintiffs

payment of the fee as ordered by Judge Kemler required to reopen CL

05-001284, and

d.) the order and process books and all associated indexes for the dates of

May 25, 2005 , December 15, 2005, and September 28, 2011, and

e.) the BakerPlaintiffs motion for non suit and Judge Kemlers order granting

non-suit regarding Defendant Allen C. Outlaw, and

f.) Mr. Fields written statement of facts, testimony, and other incidents of the

case, which included or consisted of a portions of the transcriptsigned by

the trial judge within ten days after notice of objection was filed with the

clerk pursuant to Rule 5:11(g) or other records indicating Judge Kemler

complied with the requirements of Rule 5:11(g)(1-5). Records related to

ex parte communications referenced in the voicemail from Judge Kemlers

law clerk, the existence of which was subsequently denied by the same

law clerk (Appendix L and M), and


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g.) all records and ex parte communications related to the filing of surety

bond(s) by Plaintiff GMAC with the court or clerk including records

showing the fact that bond was given endorsed on the process, or certified

by the clerk to the serving officer. If it was certified by the clerk, records

showing that the serving officer returned the certificate with the process,

and any ex parte communications between the Alexandria Circuit Court

judges and the Sheriffs department and/or their counsel and

h.) all records or ex parte communications indicating the dates that the court

initially came into possession of the Order Approving Sale and

Assignment of Claims to Michael Field (Appendix C), and

i.) all records or ex parte communications between counsel for the Baker

Plaintiffs and the court as ordered on January 21, 2005, and

j.) all records or ex parte communications between the Baker Plaintiffs (or

their counsel) and the court as ordered on February 9, 2005, and

k.) the entire courts fax related to the unendorsed order dated December 15,

2005 (Appendix J) and related ex parte communications, and

l.) all records or communications related to the ex parte conference call that

occurred between the court and counsel for the trustee of AutoMall Online

on February 8, 2005.

(Mr. Field will pay the required fees for copies related to Request one.)


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2.) Compel Commissioner in Chancery Weiser to abide the Decree of

Reference dated November 30, 2011 and report back to the court in the

manner as mandated by Rule 3:23.

3.) Allow Mr. Field an opportunity to be heard on his motion for the entry of

default judgment against Defendant Outlaw, enter judgment in favor of Mr.

Field and impanel a jury to fix the amount of damages.

4.) Comply with Va. Code 8.01-568 and the established statutory pre-trial

attachment procedures by entering an order for the restoration of the effects

of the attachment, take all actions and enter all orders necessary to ensure

that Mr. Field shall recover his costs and damages for loss of use of the

Property, including but not limited to the requirement that a bond conforming

with 8.01-537.1 is posted until Mr. Field has actually recovered his costs

and damages for loss of use of the Property pursuant to 8.01-227.

5.) Allow Mr. Field an actual opportunity to file and an actual opportunity to be

heard regarding the counterclaim.

6.) Compel the court officials to perform their duties and make the disclosures as

required by the Rules of Professional Conduct, the Rules of this Court and

the Virginia Code for the misconduct as detailed in Mr. Fields reports as filed

with the Virginia State Bar and the Virginia Judicial Inquiry and Review

Commission.


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FACTS AND MEMORANDUM OF LAW

PREFACE

The relief sought in this Petition, such as access to inspect the records of

ones own proceedings, is so fundamental to Mr. Fields due process rights that a

memorandum of law seems superfluous.

The Petitioner has an undeniable legal right to the relief requested. The facts

are supported by the true record, the statutory language is unambiguous and the

Court is bound by the plain meaning of that language. Britt Construction, Inc. v.

Magazzine Clean, LLC, 271 Va. 58, 62, 623 S.E.2d 886, 888 (2006); Williams v.

Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003).

It is established that, on occasion, court officials refuse to perform certain

required ministerial acts in obedience to the mandate of legal authority without

regard to, or the exercise of, their own judgment, bias, or self interests.

In Virginia, the initial civil remedy for this improper behavior is a Petition for a

Writ of Mandamus or a Writ of Prohibition.

The initial civil remedy, in this instance, is frustrated by court officials acting in

concert in an unlawful and biased manner while protecting their own self interests.

The frustration of the remedy is amplified by the fact that some of the court

officials are scurrilous individuals determined by the courts to have poor moral

character and have disregarded the Canons and Rules of Professional Conduct as

well as their personal responsibility for the quality of justice.


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The court officials improper conduct is not limited to Mr. Field and the relief

sought in this Petition is of significant public importance. For example, had the court

officials performed their mandated ministerial duties in these proceedings, the

bankruptcy of General Motors and the governments subsequent multi-billion dollar

bailout of the new GM and the old GMAC would have been avoided.

Instead, Mr. Field and his counsel have been obstructed from seeking relief

and denied access to the records at the Circuit Court for the City of Alexandria by

threats of physical harm and the unethical behavior evidenced in this Petition.

Exhibit 1 - Exhibit admitted into evidence, over Mr. Fields objection that it contained attorney-client privilegedcommunications, by Commissioner in Chancery Weiser however omitted from his report and the certified record

Counsel for the Baker Plaintiffs, Ira S. Saul, was suspended from the practice

of law in Virginia and Maryland for many years after being convicted of four counts

of bank fraudcriminal acts reflecting adversely on his honesty, trustworthiness or

fitness as a lawyer in other respects. SeeAttorney Grievance Commission of

Maryland v. Ira Stephen Saul.


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One now retired court official, upon motion of Mr. Field, properly disqualified

himself from these and future proceedings with this Petitioner. This particular court

official, while aggressively avenging a deputy Sherriff of the City of Alexandria,

admitted that he knew, at the time, that he introduced false records into evidence to

obtain the death penalty. Evans v. Virginia , 471 U.S. 1025 (1985). He utilized

similar tactics while protecting the interests of the Sherriff, the court and the Plaintiffs

in these proceedings.

These court officials have an admitted and proven history of illegally infringing

upon the rights of others in order to achieve their self interests. This pattern of

behavior continues

Exhibit 2 - Judge Kemler Page 43 August 8, 2012 Transcript Page 2282 Certified Record, Appendix A

TAK ING OF EVIDENCE

This Petition calls into question the true status of material unresolved issues

and seeks the mandated ministerial execution of judgments in multiple proceedings

currently pending in the Circuit Court for the City of Alexandria, Virginia.

The court officials have systematically denied Mr. Field his due process rights

and then have compounded the effect of the deprivation by denying Mr. Fields right

to post deprivation remedies as established by the Virginia Code.


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Vigorously avoiding the ministerial execution of the prior judgments of the

court and refusing to address the unresolved issues, the court officials along with

the Plaintiffs and others are colluding by misstating and falsifying the true court

records to make it appear to the public and to the Supreme Court of Virginia, on the

surface, that the ministerial duties are completed or that valid Final Orders have

actually been entered in the proceedings.

The true record will show that ministerial duties, mandated by statute, are to

be performed and that material issues remain unresolved.

Mr. Field has been denied the right to notice, hearings, and trial by jury. Mr.

Field is denied access to the full court records for inspection and copying and has

been permanently restricted from filing certain documents with the clerk.

Documents filed by Mr. Field with the clerk related to the relief requested in this

petition have been discarded or disregarded by the court.

As a pro se litigant, Mr. Field is at an extreme disadvantage against these

dishonest and incestuous court officials as they blatantly abuse their positions of

authority to promote and protect their self interests.

For example, in one proceeding, the Baker Plaintiffs bragged about

fraudulently conspiring with a co-defendant and Judge Kemler to recover twice for

the same false claim a claim that was sold and assigned to Mr. Field in a


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bankruptcy auction pursuant to 363(f) and pursued via 8.01-12,13. See

Appendix B and C.

The Baker Plaintiffs, upset by the Bankruptcy Courts Order, explained to Mr.

Field that they were aware that Mr. Field had recently received a favorable ruling

against GMAC in the Alexandria Circuit Court and that they had an option to

resolve the dispute. The Baker Plaintiffs demanded that Mr. Field assign a few

million dollars of the damages owed by GMAC to Mr. Field to the Baker Plaintiffs

and a couple of hundred thousand dollars in favor of Judge Haddocks son as

attorney for the City of Alexandria.

Mr. Field rejected the extortive proposal. In response, the Baker Plaintiffs

boasted of their considerable influence over the Alexandria court officials and

explained that Mr. Field would soon experience the extreme prejudice of the court.

In the end, this was the Baker Plaintiffs only truthful statement. See Appendix B.

A few seasons of judicial perversion passed and, Michael Lee Pope, a

reporter for the Alexandria Gazette Packet, interviewed counsel for the Baker

Plaintiffs and reported that Outlaw eventually settled in an undisclosed agreement

with the plaintiffs, but Field maintained his innocence.

Mr. Field filed discovery requests related to the undisclosed settlement, a

short motion seeking disclosure of the terms of the settlement agreement and a

motion for the required adjustment to the judgment pursuant to 8.01-35.1.


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In response, the Baker Plaintiffs replied that Mr. Field was harassing the

Baker Plaintiffs because there was never a settlement and therefore sought

sanctions. The Baker Plaintiffs represented to the court:

Exhibit 3Baker Plaintiffs Opposition Page 6 Page 1931 Certified Record





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As a result of the Baker Plaintiffs representations and their request for

sanctions, Judge Kemler sanctioned Mr. Field with a record setting penalty in total

value of more than two million dollars.

Judge Kemler, a material fact witness in the dispute, concluded the hearing

with another, unwarranted, thinly veiled threat of arrest of Mr. Field. The Baker

Plaintiffs later reminded Mr. Field of their influence over Judge Kemler and chided

Mr. Field for his futile attempts to enforce his lawful rights.

Judge Kemlers order, which falsely recites sanctionable actions of Mr. Field,

is yet another fraud on the judicial machinery perpetrated by these court officials.

The court officials all know that Mr. Fields actions are righteous, that a

settlement was reached with Outlaw, that Judge Kemler entered an order granting

the BakerPlaintiffs motion for non suit, and that Mr. Field owns all of the claims.

Mr. Fields counsel recalled that the Baker Plaintiffs had non-suited claims

against Outlaw however the clerk refused Mr. Field access to confirm this fact in the

records. Mr. Field ordered Outlaws trial testimony that revealed the settlement

arrangement and filed a copy with the clerk. Judge Kemler refused to sign or correct

the transcript of the testimony as required by Rule 5:11 - testimony that was

admitted into evidence in violation of 8.01-35.1(A)(1).


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Exhibit 7 Outlaw Trial Testimony Page 4 Page 2242 Certified Record

The Alexandria Circuit Court Clerk refused Mr. Fields requests to inspect the

official record so Mr. Field visited the Clerk of the Supreme Court of Virginia to

review the records that were certified and forwarded from Alexandria last month.

Serendipitously, Judge Kemlers order granting the Baker Plaintiffs non-suit

of claims against Outlaw is found at page one, however, the Baker Plaintiffs motion

for non-suit does not appear in the records as recently certified by the clerk.

Exhibit 8 - Judge Kemlers Order Granting Plaintiffs Non-Suit Motion Page 1 Certified Record

Mr. Field, the Supreme Court of Virginia and counsel for the court officials are

at an extreme disadvantage in properly adjudicating the merits of this Petition


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because the original court records have been restrictively secreted in judges

chambers rather than securely maintained in the offices of the clerk of the court.

Mr. Field requests that the entire original record of the proceedings be

forwarded to the Clerk of the Supreme Court of Virginia for review and verification

by the parties including but not limited to the documents specifically described in

Request number one of this Petition.

This cause rests upon the record. The record has been unlawfully disturbed

and Mr. Field requires access to the documents listed in Request number one in

order to fully proceed. Unfortunately, the taking of additional evidence will be

necessary for the complete resolution of this Petition.

Background

Ever since Mr. Field refused the extortive threats to pay millions of dollars to

the Baker Plaintiffs and Judge Haddock, and to cease attempting to collect costs

and damages from GMAC, the court officials have refused to act when they must

act, acted outside their jurisdiction and appear to be actively engaged in a collective

scheme to defraud Mr. Field, the Supreme Court of Virginia and the public by

obscuring the actual record of these proceedings.

These proceedings have been plagued since their inception with continuous

due process violations including the concealment of material ex parte

communications, the refusal to allow an opportunity to be heard, denial of trial by


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jury, lack of proper notice, falsification and concealment of portions of the record,

extortion, alleged bribes, collusion, obstruction, fraud, and the appearance of bias.

Mr. Field has a legal right to a fair and impartial adjudicatory process and the

relief requested in this Petition relief which has been continually obstructed and

denied by these subordinate court officials acting in a deliberate, considered and

planned manner.

The misconduct and failure to act by the court officials described herein is the

species of extrinsic fraud which tampers with the judicial machinery and subverts

the integrity of the Court itself. Owens-Corning Fiberglas Corp v. Watson 413

S.E.2d 630 (1992)

This Petition does not seek the review orundoing of any previous judgment

of the Court and the factual root causes of the due process violations are not the

subject of this Petition Mr. Field simply seeks enjoyment, protection and

enforcement of his lawful rights as established and mandated under the United

States and Virginia Constitutions, the Virginia Code, the ethical rules and the Rules

of the Supreme Court of Virginia.

The underlying misconduct evidenced in this Petition, and described in more

detail in Appendix B, is not necessary to support the Petition however the details

disclosed shed light on the motivation of the court officials failure to comply with

their duties and provides the Supreme Court of Virginia additional information to


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assist in the formulation of the mandates and prohibitions necessary to restore

order, prevent a failure of justice, and remedy the sinful political atmosphere of the

Alexandria Court which fosters these Constitutionally repugnant activities.

Mandamus and Prohibition Generally

The granting of a writ of mandamus or prohibition by the Supreme Court of

Virginia is a rare occurrence. The published caseload reports of the Supreme Court

of Virginia indicate that of the 520 petitions filed during the past five years, none

were awarded.

This Petition does not seek to correct erroneous decisions of the court

officials and does not seek to review any instance in which the court may have

abused its discretion. This Petition seeks to take the first steps necessary to prevent

a complete defect or failure of justice.

Mr. Field has a clear and indisputable right to the issuance of a writ to cause

the inferior court to lawfully exercise its jurisdiction according to the mandatory

directives of the Rules of the Supreme Court of Virginia, the Virginia Code, the

ethical rules and the Constitutions of Virginia and the United States.

Mr. Field has exhausted all of his adequate legal remedies and must now

petition the Supreme Court of Virginia for a writ of mandamus and prohibition.

Mandamus is an extraordinary remedy employed to compel a public official

to perform a purely ministerial duty imposed upon him by law. Richlands Med.


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Assn v. Commonwealth, 230 Va. 384, 386, 337 S.E.2d 737, 739 (1985); accord In

re: Commonwealths Attorney for the City of Roanoke, 265 Va. 313, 317, 576

S.E.2d 458, 461 (2003), Gannon v. State Corp. Comm'n, 243 Va. 480, 481-82, 416

S.E.2d 446, 447 (1992).

A ministerial act is one which a person performs in a given state of facts and

prescribed manner in obedience to the mandate of legal authority without regard to,

or the exercise of, his own judgment upon the propriety of the act being done.

Richlands Med. Assn, 230 Va. at 386, 337 S.E.2d at 739 (quoting Dovel v.

Bertram, 184 Va. 19, 22, 34 S.E.2d 369, 370 (1945)).

As this Court previously explained: Mandamus may be appropriately used

and is often used to compel courts to act where they refuse to act and ought to act,

but not to direct and control the judicial discretion to be exercised in the

performance of the act to be done; to compel courts to hear and decide where they

have jurisdiction, but not to pre-determine the decision to be made; to require them

to proceed to judgment, but not to fix and prescribe the judgment to be rendered.

Page v. Clopton, 71 Va. (30 Gratt.) 415, 418 (1878).

When the action of a court is a simple refusal to hear and decide the case;

and this Court having held that no appeal lies from such refusal, it is exactly the

case to which the highly remedial writ of mandamus is most frequently applied, in


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order to prevent a defect or failure of justice. Cowan v. Fulton, 64 Va. (23 Gratt.)

579, 584 (1873). This is such a case.

When there is a clear right to the relief sought, a legal duty to perform the

requested act, and no adequate remedy at law, a writ of mandamus should be

issued.Ancient Art Tattoo Studio, Ltd. v. City of Virginia Beach, 263 Va. 593, 597,

561 S.E.2d 690, 692 (2002)

As Mr. Field has no adequate avenue at law, the remedy of mandamus is

required in order to prevent a defect or failure of justice.Cowan, 64 Va. (23 Gratt.)

at 584.

This Court has further noted that to be adequate, the legal remedy must be

equally as convenient, beneficial, and effective as the proceeding by mandamus.

Carolina, C & O Ry. v. Board of Supervisors, 109 Va. 34, 37, 63 S.E. 412, 413

(1909).

In Davis v. Sexton, 211 Va. 410, 177 S.E.2d 524 (1970), the Supreme Court

of Virginia held that a judges ruling in direct contravention of a specific statutory

provision was not within his discretion.

The writs should be issued in this matter because Mr. Field has a clear right

to the relief sought, the respondent has a legal duty to perform the act which Mr.

Field seeks to compel, and there is no adequate remedy at law." Early Used Cars,

Inc. v. Province, 218 Va. 605, 609, 239 S.E.2d 98, 101 (1977).


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A purpose of the writ of mandamus, which is an extraordinary remedy, is the

promotion of substantial justice. See Gannon, 243 Va. at 482, 416 S.E.2d at 447;

Railroad Company, 206 Va. at 162, 142 S.E.2d at 548; Richmond-Greyhound

Lines, 200 Va. at 151-52, 104 S.E.2d at 816.

This promotion of substantial justice has served as a prerequisite to the

issuance of a writ of mandamus in this Commonwealth for almost 200 years.

For example, the Court stated in Commonwealth v. Justices of Fairfax

County Court,4 Va. (2 Va. Cas.) 9, 13 (1815) "A mandamus is a prerogative writ;

to the aid of which the subject is entitled upon a proper case previously shown to

the satisfaction of the Court. The original nature of the writ, and the end for which it

was framed, direct upon what occasions it shall be used. It was introduced to

prevent disorder from a failure of justice, and defect of police. Therefore, it ought to

be used upon all occasions where the law has established no specific remedy, and

where in justice and good government there ought to be one."

This is such an occasion.

Due Process

The fourteenth amendment provides that no state shall "deprive any person

of life, liberty, or property, without due process of law." The due process clause

contains guarantees of both "substantive" and "procedural" due process.

Substantive due process requires that governmental action have a rational


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relationship to a legitimate end of government while procedural due process

requires that notice and an opportunity to be heard be given to persons whose

liberty or property interests will be affected by governmental actions.

Generally, due process requires some notice and an opportunity to be heard

prior to the deprivation of a protected interest. In certain cases, however, a post-

deprivation remedy is adequate. Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 542 (1985) Mr. Field seeks enforcement of his post-deprivation remedies.

The court officials refusals to act are violations of procedural due process.

Mr. Field has been deprived of his constitutionally protected property interests;

through state action; and the procedures utilized for doing so are constitutionally

inadequate. Mr. Field has the right to the equal enjoyment of the rules of judicial

procedure and the equal treatment there under.

In Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (2009), the United

States Supreme Court held that the Fourteenth Amendment requires a judge to

disqualify himself not only when actual bias has been demonstrated or when the

judge has an economic interest in the outcome of the case, but also when "extreme

facts" create a "probability of bias."

One judge properly disqualified himself from these proceedings under these

circumstances. The facts in this Petition evidence deceptive behavior of the court


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officials, create the probability of bias, warrant investigation and certainly require the

disqualification of Judge Kemler and others in the Alexandria Court.

The extensive violations by the court officials as detailed in this Petition are

evidence of a deliberately planned and carefully executed scheme to defraud not

only Mr. Field and the Supreme Court of Virginia but also the Federal Courts and

the public.

This Court has the power and authority to correct and prevent a failure of

justice caused by not only the court officials failures to act but also caused by the

fraud upon the judicial process which will be presented once the record is made

available. Hazel-Atlas Glass Co. v Hartford-Empire Co., 322 U.S. 238 (1944)

Request 1: Inspection and Preservation of Court Records

Mr. Field has made repeated requests and motions to inspect and obtain

copies of the records described in Request 1 of this Petition to the court officials and

all requests have been denied.

Va. Code 17.1-208 mandates that any records and papers of every

circuit court that are maintained by the clerk of the circuit court shall be open to

inspection by any person and the clerk shall, when requested, furnish copies

thereof.

The court officials have taken measures, in concert, and given instructions

preventing Mr. Field access to the court records. The Clerk of the Court has


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transmitted portions of the record of these proceedings to this Court and Mr. Field

was able to access these partial records. Mr. Field simply desires to review all of the

items which constitute the entire actual record, not just those items the court officials

have selectively transmitted to the Supreme Court of Virginia.

On July 7, 2012 Mr. Field filed and noticed a motion for Commissioner in

Chancery Weiser, to submit a report in compliance with the rules and for the court

to rule on Mr. Fields objections.

On August 8, 2012 Judge Kemler, a principal fact witness of the controversy,

denied Mr. Fields motions on the basis that the Commissioners report indicated a

finding of no assets.

Exhibit 9 Judge Kemler August 8, 2012 Page 2209 Certified Record Appendix A


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Exhibit 10 Mr. Fields Motion Page 2143 Certified Record

Exhibit 11 Judge Kemler Page 43 August 8, 2012 Transcript Page 2282 Certified Record Appendix A

Mr. Fields copy of the report from the Commissioner attached asAppendix E

makes no such finding and the court officials refuse to allow Mr. Field to inspect and

copy the report Judge Kemler relied upon at the hearing.


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On September 28, 2011 Judge Kemler conducted a trial regarding the factual

ownership of certain claims in the proceedings. Judge Kemler ordered that the

proceedings were reopened after the payment of a fee by the Baker Plaintiffs. The

Petitioner had timely filed a demand for a jury pursuant to 8.01-336 and the

Constitutions however Judge Kemler refused a trial by jury.

As detailed in Judge Kemlers order dated September 28, 20111, the court

made certain determinations, improperly contradicting a federal court order, based

upon the exhibits admitted into evidence as well as the ore tenus of attorney Wayne

Lee. Ableman v. Booth, 62U.S. 506(1859)

Mr. Field attempted to enter numerous exhibits into evidence however the

court sustained each and every objection by the Baker Plaintiffs.

The exhibits, including those that were objected to and not admitted into

evidence do not appear in the records as transmitted to this Court. Mr. Field has

been denied access to these records and denied access to records evidencing

payment of the fee by the Baker Plaintiffs to reopen the case.

There are suspicious circumstances surrounding the orders dated December

15, 2005 (Appendix I and J), May 25, 2005, and September 28, 2011. Mr. Field has

been refused access to the indexes necessary to review and take proper action

regarding the circumstances related to these three orders.
http://en.wikipedia.org/wiki/United_States_Reportshttps://supreme.justia.com/us/62/506/case.htmlhttps://supreme.justia.com/us/62/506/case.htmlhttp://en.wikipedia.org/wiki/United_States_Reports


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The Baker Plaintiffs claim that Outlaw was never officially non-suited however

the first document in the record transmitted to the Supreme Court is an order signed

by Judge Kemler granting the Baker Plaintiffs motion to non suit. See appendix D.

The corresponding motion to non suit was not in the records transmitted and Mr.

Field desires a copy of these record.

Mr. Field timely filed a written statement of facts, testimony, and other incidents

of the case, which included or consisted of portions of the transcript.

Mr. Field timely filed atranscript of the August 8, 2012 hearing (certified record

page 2238 and Appendix A) and a transcript of the testimony of Outlaw (certified

record 2178) in which the Baker Plaintiffs called Outlaw as a witness and proffered

testimony from him regarding the fact he had entered a settlement agreement with

the Baker Plaintiffs.

Mr. Field filed the concise written statement of facts as a measure to circumvent

the clerks refusal to allow Mr. Field to inspect the original records of the case and

Judge Kemlers refusal to disclose the ex parte communications described in this

Petition.


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Exhibit 12 Mr. Fields Written Statement of Facts Page 2159 Certified Record

The Baker Plaintiffs filed objections to the statement but did not specify what

they believed to be erroneous.


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Thereafter, Mr. Field learned from a third party that Ira Saul and Judge Kemler

had been communicating on an ex parte basis and that each were taking steps in

violation of the Rules in order to limit the scope of Mr. Fields potential appeal.

Judge Kemlers law clerk subsequently denied he possessed the transcript

however he failed to realize Mr. Field retained his earlier voicemail. See Appendix L

and M.

Mr. Field has requested and been denied access to the records signed by Judge

Kemler within ten days after notice of objection was filed with the clerk pursuant to

Rule 5:11(g) or other records indicating Judge Kemler complied with the

requirements of Rule 5:11(g)(1-5). This Court has recently discussed the Courts

requirements under Rule 5:11(g) in Shapiro v. Younkin 688 S.E.2d 157 (2010).

GMAC was ordered by the court to file a conforming bond in the amount of

twenty one million dollars prior to conducting the pretrial seizure. The Petitioner

seeks the records showing the fact that bond was given endorsed on the process,

or certified by the clerk to the serving officer. If it was certified by the clerk, records

showing that the serving officer returned the certificate with the process.

Mr. Field and his counsel learned from Deputy Sherriff Grenadier, the senior

duty deputy who handled the levy and seizure, that on the day of the attachment

and multiple occasions afterwards, Deputy Grenadier and counsel for GMAC


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consulted with the judges of the court, ex parte, regarding the fact that a conforming

bond had not been posted.

Deputy Grenadier provided copies of his records to Mr. Field which included a

fax cover sheet dated the day of the levy and seizure indicating that seventeen

pages were sent to the court and that the original bond was being sent by overnight

delivery. See Appendix S.

Mr. Field has requested to inspect the original papers of the case and the

request has been rejected. The judges and counsel for GMAC never revealed the

fact that ex parte communications had been occurring regarding the bond nor were

the contents of such communications ever revealed to Mr. Field.

The ownership of the claims in the Baker proceeding was in dispute. On January

21, 2005 Judge Kemler ordered that counsel for the Baker Plaintiffs discuss the

status of the dispute with the trustee forAutoMall Online, Inc. (AMOL) and report

the trustees position to the court. The report was ex parte and not disclosed so, it is

unclear whether, at the time, counsel for the Baker Plaintiffs falsely informed Judge

Kemler that the trustee elected to sell the claims to the Baker Plaintiffs and that Mr.

Field was not granted standing to pursue the counterclaims or whether counsel told

the court the truth and Judge Kemlerelected to overrule and disregard the trustees

decision to sell the claims to Mr. Field and grant him standing as ordered by the

bankruptcy court via a 363(f) sale of disputed assets under federal bankruptcy law.


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Exhibit 13 January 21, 2005 Order Judge Kemler

Mr. Field never received notice of counsels communication to the court in

response to this order. This communication is material and Mr. Field has requested

and been denied access to inspect the communication.

The records, at one point, in time contained a fax from counsel for the Baker

Plaintiffs to Judge Kemler scheduling a conference call to discuss the sale of all of

the claims to the Baker Plaintiffs. The fax contained hand written notes which

appeared to be those of Judge Kemler indicating the claims were being sold to the

Baker Plaintiffs.

The bill for legal fees for counsel for the AMOL trustee indicates that a

conference call did occur. Mr. Field was not informed about the conference call at

the time it occurred and only learned of it via later investigations. This ex parte


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conference was material in that it related to the sale of the claims to the Baker

Plaintiffs.

Exhibit 14Counsel for AMOL Trustees Bill for Conference Call with Circuit Court

On February 9, 2005 Judge Brown also ordered that counsel for the Baker

Plaintiffs report the trustees position to the court. Mr. Field was not noticed of this

hearing and was not notified that the order was entered.

Exhibit 15 February 9 Order Judge Brown

Again, Mr. Field never received notice ofcounsels communication to the

court in response to this order. This communication is highly material and Mr. Field

has requested and been denied access to inspect the communication.

While the initial plan of the AMOL trustee was for the claims to be quickly sold

to the Baker Plaintiffs, Judge Mayer intervened and established a fair judicial

process that resulted in the transfer of the claims to Mr. Field. See Appendix C.


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Exhibit 16 Judge Kemler, Mr. Field August 8, 2012 Page 2221 Certified Record Appendix A

The record of each circuit court proceeding is an extremely important element

that assures each parties interests are protected during the course of the resolution

of a dispute.


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The legislature, together with the Supreme Court of Virginia have established

numerous safeguards such as statutes, oaths, rules and other measures to ensure

that the record is accurately reflected and free from corruption.

Va. Code Title 17.1 relates generally to the Courts of Record while Chapter 2

of the title deals specifically with the Clerk of the Court and the record keeping

requirements and procedures of the court.

Va. Code 17.1-123 states how orders are recorded and signed, Va. Code

17.1-124 requires the clerk to maintain Order Books, Va. Code 17.1-129 requires

the filing date and time to be noted on papers, Va. Code 17.1-215 requires the

clerk to maintain a process book, Va. Code 17.1-247 details when and how clerk

is to required to verify his record, Va. Code 17.1-248 requires the clerk to make an

index to each of his books, Va. Code 17.1-249 requires the clerk to maintain

general indexes for the clerks office as well as maintain a daily index of court

proceedings, and Va. Code 17.1-250 details the steps required to make

corrections of the required indexes.

Rule 5:10(a)(3) states that each exhibit offered in evidence, whether admitted

or not, and initialed by the trial judge is part of the record of a proceeding.

Mr. Field has a clear right to inspect the original records so his team is

properly prepared to enforce his lawful rights. The clerk has a mandated,

unambiguous, ministerial duty to maintain and allow inspection of these records.


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Request 2: Reports of Commissioners in Chancery

A Decree of Reference to Commissioner in Chancery Weiser was entered by

the court on November 30, 2011 related to the interrogation of Mr. Field.

Mr. Field twice traveled from Virginia Beach to Alexandria for two days of

interrogations and delivered hundreds of documents that were admitted into

evidence over Mr. Fields stated and written objections.

The transcript will show that, during the interrogations, Commissioner Weiser

overruled all of Mr. Fields objections without reading them or considering the basis

for the objections at all.

Mr. Field was forced, under threat of arrest, to reveal attorney client

communications, court ordered sealed documentation, confidential settlement

agreements and information wholly unrelated to the statutory purpose of the

interrogation process. All of Mr. Fields documents were entered as Exhibits and

transferred, over objection, to the possession of Ira Saul and never returned.

The Decree itself and the Rules require that Commissioner Weiser file a

report. Mr. Field made a written request to Commissioner Weiser to file the report

which was ignored.

Commissioner Weiserfiled a two page report that did not contain findings of

fact, conclusions of law, all exhibits admitted into evidence or a transcript of the

proceedings as required by the Rules. See Appendix E.


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Commissioner Weisers report gives the false impression that only two

exhibits were entered into evidence, Def. A and Def. B, while hundreds of

documents were actually entered into evidence, over Mr. Fields objections, and

secreted away by Commissioner Weiser and Ira Saul.

Mr. Field filed exceptions to the report within ten days regarding the fact that

the Commissioners report was missing numerous items and was not in compliance

with Rule 3:23.

For many months, the court officials took no actions regarding the

proceedings so Mr. Field filed and scheduled a motion with the court requesting

Commissioner Weiser file a report that complied with the rules so the objections

could be properly ruled upon.

Ira Saul, counsel for the Baker Plaintiffs, opposed Mr. Fields request for a

report to be filed in compliance with the Rules. Notably, one of Mr. Fields objections

to the proceedings before Commissioner Weiser was that the Decree of Reference

was entered by Judge Haddock for improper purposes. The interrogatories were

not intended to discover Mr. Fields assets for the purposes of collecting on a

judgment. The interrogatories were conducted by the court officials to intimidate Mr.

Field, to reinforce the Baker Plaintiffs claims of control over the Alexandria court,

and to conduct an illegal search and seizure of Mr. Fields private information.


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Exhibit 17 Judge Kemler, Mr. Field August 8, 2012 Page 2212 Certified Record Appendix A

MR. FIELD:


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Va. Code 8.01-609 details the general duties and procedures of a

Commissioner in Chancery and states that Every commissioner shallexamine,

and report upon, any matters as may be referred to him by any court. The

proceedings before a commissioner in chancery shallbe conducted as set forth in

this chapter and the Rules of Court. (emphasis added)

Rule 3:23(d) states that the commissionershallprepare a report stating his

findings of fact and conclusions of law with respect to the matters submitted by the

decree of reference. The commissioner shallfile the report, together with all

exhibits admitted in evidence and a transcript of the proceedings and of the

testimony, with the clerk of the court. (emphasis added)

Mr. Field has a clear right to procedural due process. Commissioner Weiser

has a mandated, unambiguous, ministerial duty that has yet to be performed.

Request 3: Default Judgments

Outlaw was personally served with a copy of the complaint and hired counsel

to represent his interests in the proceeding. Outlaw never filed an answer of any

type to the complaint pursuant to Rule 3:8.

There was a dispute over the ownership of the claims against Outlaw. The

dispute was between Mr. Field, co-defendant AMOL and the Baker Plaintiffs. AMOL

filed and noticed a motion to be heard regarding the ownership dispute however the

Alexandria Circuit Court refused to hear and decide the motion.


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Mr. Fields counsel noticed the hearings for the Demurrers on three

occasions however the court unilaterally removed the hearings from the docket and

instructed the parties to settle the dispute.

As a portion of the Baker Plaintiffs demand for settlement, Mr. Field was to

agree not to pursue any further claims against GMAC and Mr. Field was required to

deliver a payment to Judge Haddocks son, as attorney for the City of Alexandria, of

over two hundred thousand dollars. See Appendix B.

Mr. Field refused to accept the Baker Plaintiffs demands and essentially

ignored their various threats. As a result of the court officials refusal to allow a

hearing or enter a ruling on AMOLs demurrer, AMOL filed for bankruptcy protection

and the ownership dispute was ordered to be decided by an auction of the claims.

Meanwhile, Outlaw, by counsel, filed a motion to stay the entire circuit court

proceeding acknowledging that Outlaw had not yet responded to the complaint.

Outlaw represented to the court that he had entered a settlement agreement

with the Baker Plaintiffs who determined the agreement required approval by the

court. Outlaw claimed he had tendered his shares in AMOL and provided

information to the Baker Plaintiffs and was simply awaiting court approval of the

settlement and for the Baker Plaintiffs to non-suit their claims against him.

Outlaw, by counsel, alternatively requested that the scheduling order be

adjusted pending the outcome of the claim auction in the bankruptcy court.


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The court denied Mr. Outlaws motion to stay the proceedings however

Judge Brown entered an order continuing the existing scheduling order until

counsel for the Plaintiffs notified the court regarding the trustees position on the

dispute regarding the claims.

The Baker Plaintiffs and Mr. Field submitted bids to buy the claims. All of the

claims in the proceeding, including all claims against Outlaw were ordered sold and

assigned, free and clear of all other liens, encumbrances or interests, to Mr. Field.

See Appendix C.

The settlement was never approved. Outlaw never filed an answer.



Mr. Field sought a hearing for entry of default and judgment against Outlaw.

The court refused to allowed Mr. Field to be heard and the court refused to exercise

jurisdiction over the remaining Outlaw claims.


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The Baker Plaintiffs argue that they never officially non-suited any Outlaw

claims and that the Outlaw claims simply disappeared from the proceedings. The

real record will show that the Baker Plaintiffs non-suited two claims against Outlaw

and that eight counts, owned by Mr. Field, remain undisturbed and unanswered by

Outlaw.

Mr. Field is not seeking relief in this Petition specifically related to the Baker

Plaintiffs collusion regarding the Outlaw claims and their concerted fraud in

concealing the nature of their settlement agreement with Outlaw. Mr. Field has the

remedy of a separate litigation to resolve this issue.

Mr. Field is seeking to resolve the issue that at least eight of the claims

against Outlaw remain unanswered and unresolved in these proceedings and is

seeking to enforce his lawful right to a hearing regarding the entry of default and

judgment for the amount of related damages.

Outlaw was properly served, retained counsel, and never responded at all.

Under Rule 3:19 Outlaw is in default. Mr. Field filed a motion pursuant to Rule

3:19(c) however the court refuses to hear the motion or make a ruling.

Request 4: Recovery of Statutory Costs and Damages

Mr. Field is the assignee of all claims of and the trustee in dissolution of

Koons Buick Pontiac GMC, Inc. aka Field Auto City, Inc. or Field Mitsubishi which

was a General Motors and Mitsubishi dealership located in Alexandria, VA. Mr.


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Field and his wife Joyce Koons Field discovered and reported that General Motors

had been secretly utilizing their dealership to falsify General Motors financial and

sales records in an effort to boost GMs share price and portray a false sense of

corporate success to the public. See Appendix B.

Plaintiff GMAC falsely sued out, ex parte, and the court issued an order for

the pretrial seizure and levy of attachment of Mr. Fields property. The order

required a bond be posted in the amount of twenty-one million dollars to protect Mr.

Fields interests and ensure recovery ofhis damages in the event that the grounds

claimed by GMAC for the ex parte taking of Mr. Fields property were deemed

insufficient enough to allow the deprivation of Mr. Fields due process rights.

As requested by GMAC and as ordered by the court, the Sherriffs

department executed a pre trial seizure and levy of attachment of Mr. Fields

property an inventory of hundreds of new and used automobiles - emptying more

than six acres of vehicle display area.

Mr. Field immediately filed a motion to quash the attachment. GMAC was

notified of and appeared at the hearing to quash the attachment.

The original attachment was invalid on its face because in violation of 8.01-

537.1, the fact that bond had been given was not endorsed on the process, nor

certified by the clerk to the serving officer no conforming bond was actually posted

prior to the attachment.


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The court heard testimony from both parties and quashed the seizure and

levy of attachment on the basis that none of the grounds for attachment in 8.01-

534 existed and it did not appear to the court that there was a substantial likelihood

that the plaintiff's allegations would be sustained at the trial.

Exhibit 20 Page 218Mr. Fields hearing to quash attachment

The court entered an order quashing the attachment and ordered that the

attached property be returned to Mr. Field.

The attached property was not returned in the same condition as it was prior

to the attachment. Mr. Field incurred significant costs and damages due to the loss

of use of the property and has recovered nothing.

Counsel for GMAC succinctly explained to the court one of the remedies of

Mr. Field:


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Exhibit 21Counsel for GMAC arguing their Demurrer to Mr. Fields counterclaim of wrongful seizure

GMAC was partially correct. Mr. Field actually has three statutory remedies:

1.) The mandatory recovery of costs and damages pursuant to 8.01-568 as

the attachment was quashed on the basis that none of the grounds in

8.01-534 existed or because the attachment was invalid on its face or the

plaintiff is not likely to succeed on the merits of his underlying claim and / or,

2.) The mandatory entry of judgment in favor of Mr. Field and recovery of costs

and damages pursuant to 8.01-568 because there was no underlying

claim and / or,

3.) Optionally, a counterclaim filed pursuant to 8.01-567 if an actual underlying

claim was filed.

In response to GMACs demurrer to Mr. Fields counterclaim of wrongful

seizure, the court issued an Opinion stating Mr. Field has a statutory right to

damages and that the Defendants right to a hearing on the amount of damages

sustained would stand regardless of whether or not Mr. Field files a counterclaim.


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GMAC later filed an amended petition for attachment. The amended petition

is invalid on its face because it is unsigned, bears no signed verification and the fact

that bond had been given was not endorsed on the process, nor certified by the

clerk to the serving officer. See Appendix K.

Since that time, the court officials, in violation of Mr. Fields due process

rights, has refused to follow the statutory procedures and has continually hindered

Mr. Fields effort to recoverhis costs and damages.

The court officials have refused to allow a hearing on Mr. Fields costs and

damages, has refused to enter an order for the restoration of the attached effects,

and refuses Mr. Field any avenue to recover its costs and damages.

Mr. Field simply desires to recover its costs and damages as mandated by

8.01-568 related to the loss of use of the Property related to the quashed

attachment.

The court has not entered any order nor issued any opinion related to 8.01-

568. The issue has been raised by Mr. Field and the court refuses to rule and has

obstructed Mr. Field from accessing his post deprivation remedies through threats

of arrest, violence, destruction of the record, and other due process obstructions

described in this Petition.

The pre-trial attachment was quashed and law of the case is that the facts did

not support the seizure. Mr. Field is entitled to recover his costs and damages and


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is entitled to the order for the restoration of the attached effects. The code does not

create a self-executing judgment and the court is responsible for taking ministerial

steps in effectuating Mr. Fields remedy. The court officials refuse to complete the

steps related to the law of the case and refuses to acknowledge or officially refute

its duties.

Exhibit 22Counsel for GMAC arguing Demurrer to Mr. Fields counterclaim

An attachment is the act or process of taking, apprehending, or seizing

persons or property, by virtue of a writ, summons or other judicial order, and

bringing the same into custody of the court for purpose of securing satisfaction of

the judgment ultimately to be entered in the action. Virginia Circuit Court Clerks

Manual Civil Glossary Page 1 Rev 12/11

Attachment has been described by the Virginia courts as an anarchistic and

drastic remedy that deprives a defendant of the use and free alienation of their


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property before judgment, thus it is strictly prescribed by statute to protect the twin

aims of securing a debt owed, and protecting defendants due process interests.

Robert Baldwin of the Supreme Court of Virginia issued a report entitled The

Duties of Sheriffs in Executing Judgments and Attaching Property which essentially

questioned the constitutionality of the statutory framework as vague because the

provisions are scattered throughout the code, frequently written in archaic language

and often had gaps in the details of handling civil process.

Exhibit 23 Page 1 Report of the Committee of District Courts Appendix Q

The case law regarding Mr. Fields right to costs and damages is rare

because the right to the remedy is clear. Unfortunately, the General Assembly did

not adopt most of the recommendations contained in the report.

Attachment "is neither a formal action at law nor a bill in equity, but a statutory

procedure." Winfree v. Mann, 154 Va. 683, 692 (1930). Consequently, it is original

process and falls within a narrow definition.


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Because "attachment is purely a statutory remedy, a court, even of general

jurisdiction, cannot proceed by attachment unless the power rests upon express

statutory authority." Fauquier Nat'l Bankv. Hazelwood Sav. & Trust Co., 165 Va.

259,263 (1935).

The jurisdiction of attachments and the related trials or hearings of the issues

is established in the circuit court under 8.01-535 et seq.

8.01-568 is specifically entitled Quashing attachment or rendering

judgment fordefendant and sets forth the courts duty in the event an attachment is

quashed or judgment is entered for the Defendant.

Regardless of which outcome occurs, the statute requires that In either case,

he shallrecover his costs, and damages for loss of the use of his property, and

there shallbe an order for the restoration of the attached effects. The plaintiffshall

have the burden of proof in proceedings pursuant to this section. (emphasis

added)

The use of the word "shall" in a statute indicates that the procedures are

intended to be mandatory, imperative or limiting. Schmidt v. City of Richmond, 206

Va. 211, 218, 142 S.E.2d 573, 578 (1965)

Mr. Field has a lawful right to the recovery of his costs and damages for the

loss of use of his property and is entitled to an order for the restoration of the

attached effects. Mr. Fields lawful right to this remedy stems from the initial state


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sanctioned violation of Mr. Fields constitutional right to a notice and a hearing prior

to the seizure of his property.

Because no valid bond that conformed to the requirements of the Virginia

code was ever properly posted in these proceedings, Mr. Field lacks the alternative

safeguard or remedy of seeking payment from the bond obligor and is forced to turn

to this court for the purpose of preventing a defect or failure of justice.

Constitutionality

Constitutional requirements of due process apply to prejudgment attachment

procedures whenever state officers act jointly with a private creditor in securing the

property in dispute. Sniadach v. Family Finance Corp.,395 U. S. 337, Lugar v.

Edmondson Oil Co., Inc. - 457 U.S. 922.

The statutory framework of the pretrial attachment process in Virginia does

not allow the lower court official discretion in whether or not the successful

defendant recovers his cost and damages for the loss of use of his property and is

entitled to an order for the restoration of the attached effects.

The statutory language mandates the entry of an order for the restoration of

the attached effects and recovery of damages and costs related to the initial

deprivation of the defendants due process rights.

An interpretation of the statutory framework which allows discretion to the

court to deviate from the established statutory scheme by eliminating Mr. Fields


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post deprivation remedies is a violation of Mr. Fields rights to due process and

renders the Virginia pretrial ex parte attachment procedures unconstitutional.

In order for Virginias ex parte pre-trial attachment scheme to be

constitutional, it must provide a meaningful post deprivation hearing that fully

compensates the individual. In addition, procedural due process should do more

than merely provide the opportunity for an injured party to replenish his resources.

The post deprivation remedy must convey to the individual the feeling that the state

is treating him justly. Parratt v. Taylor 451 U.S. 527 (1981)

The procedural steps in obtaining the post deprivation remedy must be clear

to the average citizen - the statutory language clearly places this responsibility on

the court: he shall recover his costs, and damages for loss of the use of his

property, and there shall be an order for the restoration of the attached effects.

The code does not state that Mr. Field must take any action to obtain the remedy.

The code does not state Mr. Field must file a separate complaint, file a

motion, request a hearing, lodge a counterclaim. If the statutes are to be interpreted

that Mr. Field must take some sort of action, such directive is not clearly stated in

the code and such vagueness would render the statutory scheme unconstitutional.

Mr. Field has had no opportunity to replenish his resources and Mr. Field

absolutely does not feel that the state is treating him justly.


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The Virginia pre-trial ex parte attachment statutes which allow the taking of

property absent notice and absent an avenue for post deprivation redress are

repugnant to the Constitution and laws of the United States and would be

procedurally defective and void. Marbury v. Madison, 5 U.S. 137(1803)

To the extent Virginias pre-trial ex parte attachment procedures are

Constitutional, the continuing actions of the state officials in obstructing and denying

Mr. Fields recovery of the costs and damages as mandated by the statute are

actions which are secondly and separately unconstitutional deprivations of Mr.

Fields property and rights.Connecticut v. Doehr 501 U.S. 1 (1991)

In order for the ex parte pre-trial attachment statutes to be constitutional, Mr.

Field should have the clear right to the recovery of costs and damages. The court

has an unambiguous ministerial duty to enforce Mr. Fields statutory remedies.

Request 5: Opportunity to be Heard, Counterclaim

As part of a belts and suspenders strategy, Mr. Field initially filed a

counterclaim of Wrongful Seizure even though the statute provide a statutory

mechanism to collect damages. Plaintiff GMAC filed a Demurrer to the Wrongful

Seizure counterclaim on the basis that Mr. Fields rights to costs and damages were

statutory in nature and that a cause of action of Wrongful Seizure did not actually

exist.
http://en.wikipedia.org/wiki/United_States_Reportshttp://en.wikipedia.org/wiki/United_States_Reports


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At the hearing of GMACs demurrer to Mr. Fields counterclaim of wrongful

seizure, GMAC opened their argument by stating that Mr. Field had a statutory right

to damages and that there was no cause of action for a wrongful seizure:

Exhibit 24 Counsel for GMAC explaining Mr. Fields right to a hearing on damages

The court issued a letter opinion stating that Mr. Field was entitled to

damages by statute regardless of whether or not a counterclaim was filed and that

the counterclaim was simply superfluous.

In response to the courts written opinion and subsequent instructions, Mr.

Field amended the Counterclaim and removed the counterclaim for Wrongful

Seizure.


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At one point, Plaintiff GMAC sought leave to amend its initial petition because

the initial petition sought pre-trial seizure and there was no underlying claim. Mr.

Field objected to the amendment and sought to have the amended petition stricken

as it was unsigned and did not have the verification as required by statute. Plaintiffs

counsel has continually refused to sign the amended pleading as required by Rule

1:4(c) and Va. Code 8.01-271.1.

The court refused to strike the unsigned pleading and allowed the Plaintiff to

litigate and conduct discovery for years. The amended pleading remains unsigned

and is therefore a nullity. Although it is a nullity, the amended petition was ultimately

dismissed by the court.

See Appendix K also referenced as pages 350-357 in the Table of Contents.

Mr. Field and his counsel maintained copious records of the proceedings and

periodically requested copies of the clerks indexes of the proceedings. See

Appendices F, G, and H.

At some point in time after March 20, 2006, the court inserted an irregular

order into the papers of the case without notice to Mr. Field or his counsel. The

order is irregular in that: Mr. Field nor his counsel was ever aware the order was

sent to the court for entry or that it was entered, it bears no endorsement of counsel

under Rule 1:13, the Certificate of Service date does not exist, Counsel listed for Mr.

Field, Arthur Schwartzstein, was terminated from the case a week earlier as


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ordered by court, the order bears no stamp or mark from the clerks office, the order

was not indexed on the date of the order or for months thereafter, the order requires

impossible performance due to the dates required for compliance.

The order is essentially an attempt at a nunc pro tunc entry that requires the

answering of unsigned pleading. Mr. Field has obtained evidence that the order

was fraudulently altered after coming into possession of the court.

The order is vague and difficult to understand almost nonsensical. The

order was related to GMACs Demurrer to Mr. Field counterclaim of wrongful

seizure. GMAC argued that there was no cause of action for wrongful seizure and

that Mr. Field had a statutory right to damages via a hearing absent a jury.

Mr. Field only removed his counterclaim for wrongful seizure based upon

Judge Klochs instructions. To change positions on the issue, off the record and

without notice is a clear due process violation. Worse, the deadline in the order for

Mr. Field to file the wrongful seizure counterclaim was six months priorto the

alleged date the order was entered. Even if Mr. Field knew about the order,

compliance with the order was impossible.

Further, the order required Mr. Field to answer an unsigned pleading

answer a nullity.

Rule 1:4(c) requires that every pleading be signed by counsel or an

unrepresented party.


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Va. Code 8.01-271.1 requires that every pleading, written motion, and other

paper of a party represented by an attorney shall be signed by at least one attorney

of record in his individual name.

Va. Code 8.01-271.1 further mandates that if a pleading, written motion, or

other paper is not signed, it shall be stricken unless it is signed promptly after the

omission is called to the attention of the pleader or movant.

The fact that the amended Petition was unsigned was brought to the

attention of the court and GMACs counsel on numerous occasions yet GMAC and

their counsel refused to sign the pleading. This was a smart choice for GMACs

counsel because the amended Petition contained the same proven false claims as

were included in the original Petition.

To the extent the orderoverruled Judge Klochs written opinion allowing Mr.

Field a trial by jury, the information never reached the docketing system because

the cause remained set for a jury. To the extent the order requires Mr. Field to file a

claim for wrongful seizure, Mr. Fields counsel certainly would have done so had

notice of the entry of the order ever been provided.

Regardless of its validity, the order was singularly related to GMACs hearing

on demurrer, renewal of the bond and the issue of trial by jury. The issue of the post

deprivation remedy as mandated by 8.01-568 was never raised, discussed or


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decided upon because the court, GMAC and Mr. Field were at all times in

agreement that such relief was mandatory.

Void Orders

There are a number of void orders that were issued during these

proceedings. The orders are void ab initio due to lack of jurisdiction, based upon

unconstitutional statutes, unconstitutional procedures andextrinsicfraud by officers

of the court, and because the court has acted in a manner inconsistent with due

process of law.

Final OrderGMAC Proceeding

The order in which the lower court describes as final does mean the court

officials have no further obligation related to the dispute because the order is not

self-executing. The court has ministerial obligations under the statutes to ensure

Mr. Field recovers his costs and damages.

To the extent the order is to be interpreted to provide no avenue for the

restoration of the attached effects not Mr. Fields recovery of costs and damages,

then the order does not comply with the mandate of the attachment procedures and

the mode of procedure employed by the court was such that it could not lawfully

adopt. The order is therefore not a final order and to the extent the court intended,

by the order, to preclude Mr. Field from recovering its costs and damages, the order

is void ab initio.


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In Coleman v. Virginia Stave Co., 112 Va. 61, p. 75, 70 S.E. 545, Judge

Buchanan, speaking for the court in a case involving a sale of infant's land, said: 'It

seems to be settled law, that where a new jurisdiction is created by statute and the

mode of acquiring and exercising that jurisdiction by the court upon which it is

conferred is prescribed by statute, a substantial compliance therewith, at least, is

essential, otherwise the proceeding will be a nullity.'

An order is void ab initio, rather than merely voidable, if "the character of the

judgment was not such as the court had the power to render, or because the mode

of procedure employed by the court was such as it might not lawfully adopt." Collins

v. Shepherd, 649 S.E.2d 672, 274 Va. 390 (Va., 2007) Evans v. Smyth-Wythe

Airport Comm'n, 255 Va. 69, 73, 495 S.E.2d 825, 828 (1998); Lapidus v. Lapidus,

226 Va. 575, 579, 311 S.E.2d 786, 788 (1984); Watkins v. Watkins, 220 Va. 1051,

1054, 265 S.E.2d 750, 753 (1980); Barnes v. American Fertilizer Co., 144 Va. 692,

706, 130 S.E. 902, 906 (1925); Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176, 177

(1887)

An order that is void ab initio is a "complete nullity" that may

Michael Field Virginia Mandamus Petition 2012

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Transcript of Michael Field Virginia Mandamus Petition 2012