Marc Perkel - pro se

The respondent complains of the appellant's jurisdictional statement as being insufficient. The jurisdictional statement was lifted from the recommended form from "Missouri Practice Volume 24 Appellate Practice" by Daniel P. Card II and does state the jurisdiction of the court. Mr. Sharp, the respondent's attorney, agreed that this court has jurisdiction and consented to jurisdiction, so the appellant is confused as to what Mr. Sharp's issue is.

Although the respondent doesn't agree apparently with the form of the appellant's statement of facts, the appellant's statement of facts are, in fact, a fair concise statement of the relevant issues in compliance with the rules. Mr. Sharp doesn't dispute any of the facts.

Mr. Sharp supplemented the facts in his brief as he has a right to do under the rules. Although Mr. Sharp states more facts, he doesn't add anything that's relevant to the issues before this court other than facts that would indicate that the appeal is timely.

The respondent raises three points. However, these points relied on are not in proper form.

In point one, the respondent appears to complain that the appellant's brief should be dismissed for failing to comply with the rules. Failure to comply with the rules is not an issue on appeal. Although it is unusual for a pro se litigant to have to give an attorney legal advice, the proper procedure would have been for Mr. Sharp to file a separate motion to dismiss the appeal rather than to insert it as a point relied on. Even if the court were to liberally construe point one as a motion to dismiss, it fails to pray for the court to take specific action and doesn't come up to the minimum standards of a motion. It should therefore be ignored.

Similarly, point three appears to be a motion for sanctions for frivolous appeal. Again, a pro se litigant should not have to instruct an attorney that the issue of frivolous appeal is not an issue on appeal before this court and that if Mr. Sharp wishes to file a motion, he should do so according to the rules. A seasoned attorney who is asking to be paid $135 per hour for his legal skills should at least be required to file his motion for attorney's fees in proper form. The appellant sees no rules or case law allowing a party to insert motions of attorney's fees in the form of points relied on within a respondent's brief.

Finally, point two is the only point that addresses any of the issues on appeal before this court. The respondent argues that the appellant has waived his rights do to timeliness and estoppel. In general, the appellant would agree that had a judge signed the maintenance order that the appellant would not have a cause of action for the reasons the respondent cited. However, a judge did not sign the "maintenance order". No one signed it, and therefore, there was no order.

Without rearguing his case, the appellant contends that there was no maintenance order because a hand written document that lacks any signature, initials, or anything that identifies the author is not an order of the court. This hand written order isn't even on the commissioner's or the court's letterhead. If there is no order, there is no order to appeal. The order is void and never existed. A void order is void forever and the only thing a court can do with a void order is to recognize its voidness, which can be done in any proceeding, including an action for declaratory judgement, which is the proper procedure for declaring an order void.

Mr. Sharp claims that the initials on the docket sheet constitute a signature. These initials are not a signature. There were apparently entered into the computer by some other unknown person and not by Commissioner Winston Davis. If the name "Winston G. Davis" were written on the document with an "X" next to it representing a signature, the appellant would accept it as an act of authentication. The unknown clerk does not have the authority to either sign or initial orders in behalf of a commissioner. And the letters "WGD" are not the initials of family court Judge Thomas McGuire, who is the one who is supposed to sign the orders.

What Mr. Sharp is claiming would be the equivalent of bringing an unsigned check to a bank to be cashed and having the bank teller type in the name of the account holder and cashing the check. That's not the way we handle signatures in society.

Recently the Eastern District court of appeals ruled on a case similar to this one. In Keck v. Keck No. 75021 (Mo.App. ED 05/11/1999) the court was faced with the issue of trying to retroactively convert the "findings and recommendations" of Commissioner Winston G. Davis into an appealable judgement by nunc pro tunc amendment. The court failed to do so stating:

This further adds to the argument that this "order" is not only broken, but it can't be fixed.

All we know about the author of the handwritten order is that he (or she) knew that commissioners were prohibited from making orders of the court because the author crossed out the part about making "findings and recommendations" and replaced it with an order of the court. Mr. Sharp is accusing Commissioner Davis of committing a crime by impersonating a judge. The appellate believes what might have happened is that Commissioner Davis asked Mr. Sharp to write the order, and that Mr. Sharp is the author, and he took it to the Clerk of the Court presenting it as coming from Commissioner Davis. Doesn't one have to presume that Commissioner Davis knows that orders have to be signed? Or are the procedures so sloppy that the Rules of Court requiring signatures are ignored? In that case the appellant contends that would be a reason to declare the writing void.

The respondent assumes there was an order, and that the author is Commissioner Winston Davis, that the order is legally signed, and that Commissioner Davis had the authority to make orders of the court. The appellant contends that there is no order; that the author is unknown; that there is no signature; that there is nothing to indicate that Commissioner Davis is the author; that there is reason to raise doubt that he is the author; and that Commissioner Davis had no authority to make orders. There is nothing to indicate that the "order" was a finished work and was not a rough draft or some unknown person's notes.

Furthermore, in dismissing the case, Judge McBeth did not rule the void order valid. The void order is still void and can still be challenged in any other proceeding including this appellate proceeding. (Rufus Rhine V. M. E. Montgomery, Magistrate Judge Of Scott County, Missouri, 422 S.W.2d 661) A dismissal can not be construed as a judgement in favor of the respondent.

In addition to the fact that an unsigned order is void, and in violation of the plain language of the Rules, the appellant contends that handwritten unsigned documents is a sloppy way for the courts of Missouri to do business and that policies that permit handwritten orders, initialing, and other sloppy procedures undermine the integrity of the court in the mind of the public. Although the issue of sloppy management is not a point on appeal, the appellant contends that it is the duty of this court to look into the policies and practices of the circuit courts and to discourage conduct that, although might be legal, makes the 31^st Circuit look like a bunch of ignorant hicks. The fact that the unsigned document was even filed by the clerk as an order of the court is a disgrace. If a pro se litigant is required to know that he's supposed to sign is pleadings and motions, then why shouldn't judges be required to sign orders of the court? The appellant contends that the courts set a sorry example and that it's an embarrassment that a pro se is held to a higher standard than a judge and has to teach the courts how to practice law.

Furthermore, this court routinely issues "orders" that are signed by the clerk of the court. The decision in Slay v. Slay, 965 S.W.2d at 845 made it clear that only judges can issue orders of the court and that any order not signed by a judge is void. The appellant therefore questions if this court is capable of issuing a fair and constitutional decision when its own practices of allowing non-judges to sign orders violates the plain language of the rules. How can this court fairly rule on the appellant's issues on appeal when it violates the same rules complained of?

The appellant believes in the need for judicial integrity. Rule 4-8.3, "Reporting Professional Misconduct" section (b) requires that lawyers, "having knowledge that a judge has committed a violation of the applicable rules of judicial conduct that raised a substantial question as to the judge's fitness for office shall inform the appropriate authorities."

Although the appellant is not a lawyer, he feels he has a duty to raise issues of judicial misconduct and has done so in his motion for reconsideration. The judicial misconduct is clear an in the record and the appellant feels that his words in response to the misconduct are entirely justified. The appellant believes it is clear on the face of the record the Judge McBeth, through his hostile ruling against the appellant, intended to use an award of attorney's fees as a means of denying the appellant his constitutional right to due process of law for no other reason than the appellant is a pro se litigant. Judge McBeth also failed to sign the original order, which the appellant believes indicates that he doesn't understand the concepts and reasons behind signing orders, and raises substantial questions about his qualifications to hear a case on the issue dealing with the necessity that orders of the court be signed by a judge. For these reasons, the appellant feels that a spirited discussion of the issues under these circumstances is warranted.

It's no secret that the appellant is dissatisfied with the way he's been treated by the courts and that he has expressed his frustrations publicly. It is also no secret that the appellant's confidence in this court to rule according to the law is low. The appellant contends that the court should obey its own rules and adhere and enforce its own ethical standards. This case is in fact an example of this issue. The Rule is that a judge shall sign an order of the court. The situation is that we have an order that is not signed, and the purported author is not a judge. The pro se appellant believes, based on case law, that one can make a reasonable argument that the order might be void and that the case is at least worth considering.

It is true that the appellant and the Law Firm of Wear and Sharp have engaged each other in a number of legal battles over issues involving the ethical conduct of lawyers. The reason these issues continue is because the courts have failed to address the issue of enforcing their own rules of ethical standards. The appellant's statements in his motion for new trial that Mr. Sharp characterizes as "discourteous and insulting" are, in fact, true and accurate and the appellant further contends that it would be proper for this court to address the issues raised in the Motion for New Trial. There's nothing in the appellant's brief that is discourteous or insulting to this court. The appellant contends that Mr. Sharp's fraud upon the court is more insulting and discourteous than the emotional ramblings of a frustrated pro se litigant who is intentionally being denied justice by the courts.

The appellant only asks that this court follow its own rules and enforces its own standards of professional responsibility. If judges don't have to sign orders, then the rules should say that. If the court isn't going to follow it's own rules then why have rules?

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Marc Perkel * Appellant * 11-15-99