Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
TABLE OF CONTENTS
I.
INTRODUCTION .............................................................................1
A. Organization of Reply ........................................................................2
B. Appellees Other Grounds and Type-Volume of Reply ................3
II.
III.
IV.
CONCLUSION ................................................................................69
TABLE OF AUTHORITIES
CASES
Abagnin v. AMVAC Chemical Corp., 545 F.3d 733 (9th Cir. 2008) .......................14
Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970).................................................36
Antoine v. Byers & Anderson, Inc., 508 U.S. 429, , 432-37 (1993) ................. 40, 50
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) .......................................................52
Arnold v. Bostick, 339 F.2d 879 (9th Cir. 1964)......................................................48
Ashcroft v. American Civil Liberties Union, 542 U. S. 656 (2004).........................70
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................27
Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) ................................. 39 et passim
Babcock v. Tyler, 884 F.2d 497 (9th Cir. 1989) ......................................................40
Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) ....................35
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ....................................................17
Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994).......................................................19
Burns v. Reed, 500 U.S. 478 (1991) ........................................................................49
Butz v. Economou, 438 U.S. 478 (1978) ..................................................................43
Cary v. Curtis, 44 U.S. 236 (1845) ..........................................................................51
Connick v. Thompson, 131 S. Ct. 1350 (2011) ........................................................44
Craig v. Harney, 331 U.S. 367 (1947).....................................................................43
Dahl v. City of Huntington Beach, 84 F.3d 363 (9th Cir. 1996) .............................29
Dennis v. Sparks, 449 U.S. 24 (1980) ......................................................................41
Detabali v. St. Lukes Hosp., 482 F.3d 1199 (9th Cir. 2007) ..................................52
Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001) ....................................48
Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998) .......................................70
Gaiardo v. Ethyl Corp., 835 F2d 479 (3rd Cir. 1987) .............................................72
4
Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) .........................20
Galvez v. Kuhn, 933 F.2d 773 (9th Cir. 1991) .........................................................52
Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) ............................................44
Gomez v. Toledo, 446 U.S. 635 (1980) ....................................................................38
Gray v. Evercore Restructuring L.L.C., 544 F3d 320 (1st Cir. 2008) .....................38
Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir.
1987) ....................................................................................................................32
Gregoire v. Biddle, 177 F. 2d 579 (2nd Cir. 1949) ................................................43
Griffin v. Breckenridge, 403 U.S. 88 (1971) ...........................................................59
Harlow v. Fitzgerald, 457 U.S. 800 (1982) .............................................................42
Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) ..................................................51
Hearns v. San Bernardino Police Dep't, 530 F.3d 1124 (9th Cir. 2008) ................13
Hoffman v. Harris, 511 U.S. 1060 (1994) ...............................................................50
Hurles v. Ryan, 706 F.3d 1021 (9th Cir.2013) ........................................................64
In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716 (9th Cir.
2013) ....................................................................................................................14
Indus. Bldg. Materials, Inc. v. Interchemical Corp., 278 F. Supp. 938 (C.D. Cal.
1967) ....................................................................................................................30
ITSI T.V. Prods., Inc. v. Agric. Associations, 3 F.3d 1289 (9th Cir. 1993) .............32
Kadamovas v. Stevens, 706 F.3d 843 (7th Cir. 2013)..............................................19
Kalina v. Fletcher, 522 U.S. 118 (1997) .......................................................... 40, 49
Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621 (9th Cir. 1988) .............21
Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) ........................70
Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163 (1993) .....................20
Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377 (2014)......52
Liteky v. United States, 510 U.S. 540 (1994) ...........................................................65
Lockerty v. Phillips, 319 U.S. 182 (1943) ...............................................................51
2
I.
INTRODUCTION
A. Organization of Reply
To enable a single consolidated joint reply, this brief replies to the Answering
Briefs in the following organization:
Section II replies to statement of facts in answering briefs, setting forth misstatements contrary to the presumed-true FAC allegations, or extraneous to the
record below;
Section III responds to standard of review controversy;
Section IV responds to Appellees arguments directed at the issues presented
in Appellants Joint Opening Brief (AOB; DktEntry 43) following the
organization of the Joint Opening Brief (see AOB CONTENTS, DktEntry 43, pp.
2-51). Where multiple appellees join or argue the same issue, this Reply combines
the multiple appellee arguments within the same sub-section and responds.
Section V responds to the many new issues raised by Appellees which were
not grounds for appeal analyzed in the AOB.
accompanying motion to dismiss the other grounds arguments as untimely crossappeals or, in the alternative, to permit further proceeding according to cross-appeal
procedure provided in Federal Rule of Appellate Procedure 28. See Motion to
1
II.
COUNTER-STATEMENT OF FACTS
The tactic coincides with Appellees improper re-assertion of RookerFeldman and Heck v. Humphries defenses which re-attempt disgruntled litigant
theories which Appellees lost below, and were not cross-appealed. The issues, and
5
facts related to them, are not properly presented in this appeal. See Motion to
Dismiss.
6
articulated though generations of Supreme Court precedent going back at least as far
as Pierce v. Society of Sisters, 268 U.S. 510 (1925), are derived from the first, fourth,
fifth, and fourteenth amendments to the United States Constitution, and guarantee a
unique genus of liberties of association, free speech, and privacy, and entitled to
heightened protections of due process and equal protection.
California Coalition has spotlighted this well-established bundle of
fundamental rights of association, privacy, expression and conscience to distinguish
the unique context in which traditional constitutional rights are treated by United
States courts, and by this action seeks prospective relief to protect their exercise.
2. Stuart Has Never Attempted to Appear as Counsel for
California Coalition
Appellees reference the district courts initial misunderstanding that Stuart
was attempting to represent California Coalition. Jud. Brf. p. 25. Stuart has only
appeared in pro se, and has never attempted to appear for California Coalition.
California Coalitions counsel Mr. Dean Webb was retained prior to filing the initial
Complaint and at all times represented California Coalition. See caption, Doc. No.
1; 94 (pro hac vice appointment); ER 18, 21, 23-24, 35. The Complaint and all
pleadings prior to Mr. Webbs admission accurately note Mr. Webb was arranging
to appear pro hac vice.
7
subsequent efforts to thwart and retaliate for Appellants efforts to investigate his
participation in the criminal enterprises, report his activities to state and federal law
enforcement, and obtain his arrest and prosecution. FAC claims 1.6, 1.10 (ER 155,
163). Doyne at no time functioned as a Superior Court Judge, and his attempt to join
immunity argument (each and every argument) in the Judicial Appellees brief is
inappropriate.
E. Lawyer Defendants Contradict The FAC (DktEntry 64)
3. Lawyer Defendants Participated In the Planning and Execution
of the Stuart Assault, Were State Actors, and RICO Persons
Lawyer Appellees incorrectly assert FAC alleges only Lawyer Appellees . .
. were panelists at a San Diego County Bar Association . . . and nothing else. Law.
Brf. p. 11-12, 13.
Stuart was previously a member of the bars of three states and five districts. ER 202206 (FAC Claims 3.2-3.5). All allegations relating to Stuarts bar memberships are
accurate and necessary to support numerous FAC claims. See, e.g, Stuarts Position
Under the United States ER 254-257 (Section 1985(1), (3) claims); ER 202-206)
(Malicious Prosecution Claims 3.2-3.5).
12
III.
Hearns v. San
Bernardino Police Dep't, 530 F.3d 1124, 1129 (9th Cir. 2008).
B. Fritz Standards of Review are Inaccurate (DktEntry45)
Fritz cites Rhoden v. United States, 55 F.3d 428, 432 (9th Cir. 1995) in support
of argument that a district court has discretion to dismiss a complaint for failure
to comply with Rule 8. Fritz Brf. p. 29. This is a misrepresentation of Rhoden. In
Rhoden this Court reversed a district courts grant of summary judgment against a
Section 1983 plaintiff, remanding the case to the district court. On appeal, the
plaintiff-appellant apparently also asked this Court for leave to amend the complaint
to add a Bivens action. Rhoden at 432. This Court determined that because the
case was being remanded, the request to amend was properly remanded to the district
court. Id. and n. 9. Rhoden advised on remand: We note, however, that [a] pro se
litigant must be given leave to amend his or her complaint unless it is absolutely
clear that the deficiencies of the complaint could not be cured by amendment Id.
at n.9.
Fritz Appellees cite In re W. States Wholesale Natural Gas Antitrust Litig.,
715 F.3d 716 (9th Cir. 2013) cert. granted sub nom. Oneok, Inc. v. Learjet, Inc., 134
S. Ct. 2899 (2014) for the claim that leave to amend is not automatic. Fritz Brf.
p. 29. W. States is inappositethere plaintiffs were seeking to amend under Rule
13
15 to add a treble damages antitrust claim based on the same facts as the non-treble
damages state law claims of their original complaint. This Court affirmed denial of
leave because the treble damages claim was based on the same facts as the original
claims, and could have been brought at the outset of the litigation. Id. at 738.
Plaintiffs delay in seeking the late-stage amendment adding new claims and theories
caused prejudice to defendants, making amendment inappropriate. Id. at 739.
C. Other Grounds are Reviewed De Novo
Appellees asserting other grounds
standard of review. The district courts July dismissed with prejudice for Rule 8
aloneit made no decision regarding the other grounds defendants assert,
meaning there is no decision in the district court on other grounds to review. See
Motion to Dismiss filed herewith.
See, e.g., Doyne Brf. (DktEntry 64-1 at 8), Statement of Issues 2 Whether
other grounds for dismissal raised by Defendant/Appellee Doyne, including the
statute of limitations, abstention, the Rooker-Feldman, quasi-judicial immunity,
immunity for reporting child abuse under Penal Code 11172(a) and failure to state
facts sufficient to constitute a cause of action support dismissal of the First Amended
Complaint.
14
IV.
See
standard of pleading that must be enabled by other rules such as Rule 12(b)(6), (e),
or 41. AOB p. 35. The courts dismissal on grounds not noticed was improper.
Judicial Appellees attempt to defend the district courts sua sponte dismissal
with a bald assertion that a motion to dismiss for failure to comply with Rule 8 was
also appropriate. Jud. Brf. 40. This is an inaccurate statement of lawthe Rules
contain no motion to dismiss for failure to comply with Rule 8. The remedy for
an allegation lacking sufficient specificity to provide adequate notice is, of course, a
Rule 12(e) motion for a more definite statement. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 597 (2007). If a pleading fails to specify the allegations in a manner that
provides sufficient notice, a defendant can move for a more definite statement under
Rule 12(e) before responding. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514
(2002).
The discretion Appellees reference arises after a district court has first
accurately determined first the issue of law that is Rule 8; then second properly
weighed the five Thompson factors. Hearns at 1129. Appellees cite no authority
supporting the ridiculous contention that a court has discretion to dismiss for
failure to comply with Rule 8 alone.
2. The District Court Bypassed Rule 41(b) Because Appellants
Successfully Objected to the Evidentiary Lucas Declaration
Neither the San Diego County Bar Association (represented by Mr. Lucas)
nor any Appellee dispute that the district court disregarded the evidentiary Lucas
declaration and Omnibus 41(b) analysis based thereon.
3. The District Court Referenced, But Did Not Analyze Under PreTwombly Authority
Judicial Appellees misconstrue the district courts treatment of McHenry,
Nevijel, and Schmitd. Jud. Brf. (DktEntry 51-1) 34-35. The district court lifted
16
quotes7 from those cases describing complaints there at issueThe Ninth Circuit
has affirmed . . . ER 5:8-14. The district court did not find the FAC committed
those sins. The court instead accused length, acronyms and defined terms, and a
general reference to unmanageable, argumentative, confusing, and frequently
incomprehensible ER 8, 10.
4. McHenry, Nevijel, and Schmitd Are Inapposite
a. McHenry Applied Abrogated Forms Of Action Standard and Abrogated
Circuit Law
Appellees rely heavily on McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996).
McHenry applied abrogated pre-1937 Federal Rules form of action standards.
Judge Kleinfeld wrote: The forms of action we have buried, but they still rule us
from their graves. . . . [T]here are good reasons why the forms of action still shape
pleadings, though the rules no longer require pleadings to conform to the ancient
forms. Id. at 1180 (quoting F.W. Maitland, The Forms of Action At Common Law
2 (1909)). Judge Kleinfeld dismissed despite finding the magistrate identified
several cognizable claims. Id. at 1176-77.
This astonishing reach into the graves of the obsolete forms of action to
uphold dismissal with prejudice of a viable complaint has been error since the 1938
Rules Enabling Act, which expressly buried the ancient forms of pleading in favor
of a single formthe civil action. The court may at any time unite the general
rules prescribed by it or cases in equity with those in actions at law so as to secure
one form of civil action and procedure for both. Ch. 651, Pub.L. 73415, 48 Stat.
1064, enacted June 19, 1934. In burying the forms the Act provides: All laws in
conflict with such rules shall be of no further force or effect after such rules have
taken effect. 28 U.S.C.A. 2072 (West). Notwithstanding Judge Kleinfelds
A tome approaching the magnitude of War and Peace, try to fish a gold
coin from a bucket of mud. Jud. Brf. p. 36-37.
17
fondness for Professor Maitland and the ancient forms of action, his foundation for
the holding of McHenry remainsgratefullylong-interred.
McHenry also invoked a comparison with the skeletal Form 9 to the Rules, a
standard which has been sadly abandoned since Twombly. The Forms Appendix to
the civil rules, with its beautifully brief model complaints, is a fossil remnant of the
era of reform that produced the civil rules in 1938 . . . Kadamovas v. Stevens, 706
F.3d 843, 844-45 (7th Cir. 2013). Dissenting in Twombly, Justices Stevens and
Ginsberg berated their majority for abandoning Form 9 by rewrite[ing] the Nation's
civil procedure textbooks and call into doubt the pleading rules of most of its States
. . . . Bell Atl. Corp. v. Twombly, 550 U.S. 544, 579 (2007) (Stevens, J., Ginsburg,
J., dissenting). [T]he Court has announced a significant new rule that does not even
purport to respond to any congressional command . . . . Id. at 596. McHenrys
invocation of Form 9 even further diminishes its authority in the present case
asserting complex conspiracies against many defendants subject to Twomblys
plausibility standards that compel detail and abandonment of Form 9s simplicity.
McHenry also cited to Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) which
was overruled in Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1121 (9th Cir.
2002) as defying then-controlling Supreme Court authority of Leatherman v.
Tarrant County Narcotics Unit, 507 U.S. 163 (1993). See also CrawfordEl v.
Britton, 523 U.S. 574, 599 (1998) and Swierkiewicz v. Sorema N. A., 534 U.S. 506,
508 (2002). Branch, too, is long dead.
It would be difficult to identify a more morbid assembly of dead law in a live
case than McHenry. Yet McHenry is beloved by some desiring error. California
Coalition respectfully suggests this Court could serve beneficial ends by ending
McHenrys death struggle with the final stake of abrogation.
18
In Hearns v. San
Bernardino Police Dep't, 530 F.3d 1124, 1129 (9th Cir. 2008) this Court revisited
Nevijels application of the abuse of discretion standard, holding We review a
Rule 41(b) dismissal for abuse of discretion. To do so, we must necessarily consider
the legal question of whether the district court correctly dismissed without prejudice
the original complaint on Rule 8 grounds. A district court by definition abuses its
discretion when it makes an error of law. Id. at 1129 (internal citations omitted).
This Court in Hearns declined to follow Nevijel, reversing the district courts
dismissal under Rule 41(b) as an abuse of discretion because, by misapplying Rule
8, the district court committed an error of law. Id.
Other courts have declined to follow Nevijal. See Fid. Nat. Title Ins. Co. v.
Castle, 2011 WL 6141310 (N.D. Cal. 2011) (RICO complaint against 52 defendants,
12 counts, 44 pages, 565 pages of exhibits, 13 plaintiffs, with claims broken into
19
Id.;
Sathianathan v. Smith Barney, Inc., C 04-2130 SBA, 2004 WL 3607403 (N.D. Cal.
June 6, 2005), n. 15 (declining to follow Nevijel where plaintiff proceeding in pro
se); Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988)
(declining to follow Nevijel where plaintiff proceeds in pro se).
5. Rule 41(b) Sanction Would Be Error
Judicial Appellees concede the district court did not specifically reference
Rule 41(b), but assert nevertheless the courts analysis under Rule 8 would have
been sufficient under Rule 41(b). Jud. Brf. 37. Judicial Appellees are incorrect.
First, in ruling on California Coalitions Objections and Motion to Strike the
district court agreed to disregard the entire Omnibus Rule 41(b). AOB p. 34, ER 14.
Judicial Appellees are attempting to overcome judicial sanction by an unearned
second bite.
Second, Judicial Appellees themselves do not present an issue under Rule
41(b) in this appeal: The issues presented in this appeal are: (1) whether the district
court abused its discretion in dismissing the action for failure to comply with Federal
Rule of Civil Procedure 8. California Coalition does not present an issue under rule
41(b): Can a district court dismiss a complaint with prejudice sua sponte for failure
to comply with Rule 8(a)(2), without analyzing grounds for dismissal under Rule 12
or 41(b)? Apparently all parties agreedismissal under Rule 41(b) is not presented
on appeal.
Yet, even if this Court elects to analyze under Rule 41(b), Judicial Appellees
attempt to salvage grounds for a Rule 41(b) dismissal fails.
20
a. The District Court Construed Rule 8(a)(2) Contrary to the Unambiguous Rule
and Rules 8(d) and (e)
No appellee contests California Coalitions assertion that the district court
construed Rule 8(a)(2) contrary to the face of the rule, and that the extra-textual
construction deprived California Coalition of fundamental rights constituting a
violation of the Rules Enabling Act. AOB at 38-40. This Court may reverse on
these concessions alone.
b. Defendants and The District Court Demonstrate They Understood Most
Claims, Satisfying Rule 8
Other than lifting pithy blurbs other cases, Appellees do not contest California
Coalitions assertion that they and the district court8 understood most claims. AOB
at 40. Appellees demonstrate this dispositive fact again in this Court through their
improper other grounds arguments re-asserting the same vigorous, pointed attacks
from the Omnibus. Their behavior demonstrates the FAC gives notice sufficient to
satisfy Rule 8.
c. Post-Twombly Pleading Under Rule 8(a)(2) Requires Detail
No appellee contradicts that post-Twombly pleading of conspiracy requires
greater factual detail. In their other grounds answers, Appellees re-assert attacks
in the district court accusing insufficient detail to establish plausibility. These
attacks were unpersuasive in the district courtlikely because they were asserted
contrary to the multi-stage process set forth in Iqbal and Moss I. AOB p. 43.
8
unsuccessfully re-pled volume of circumstance that could not vault the fraud hurdle,
simultaneously corrupting her short, plain pleading. Id. Here, Appellants plead
to lower thresholds, and successfully allege many cognizable claims.
Judge Easterbrooks displeasure with acronyms arose because they referenced
concepts and documents that were external to the complaint: The acronyms alone
force readers to look elsewhere Id. Here, the FAC acronyms and defined terms
refer only to internal concepts each defined in the complaints. See DktEntry 12
(Motion to Take Judicial Notice) p. 5-6.
Most importantly, Judge Easterbrook conceded that if plaintiff would had pled
even a single false claim (Section 3729) claim (Rule 8), all pleading sins are
forgiven: A concise statement of the claim illustrated by 400 concrete examples of
fraud would be one thing, but 400 variations on the kind of paragraph we have
quoted are quite another. Id. at 378. Here, Appellees cannot deny the FAC pleads
many cognizable claims.
e. Acronyms and Defined Terms Enable Short, Plain Claims
Tagging enables efficient pleading of short, plain claims while eliminating
repetition. For example, the FAC alleges facts describing California Coalitions
interaction with state and federal authorities seeking the investigation, arrest, and
9
See also AOB p. 42, Motion To Take Judicial Notice (DktEntry12) p. 4-6.
22
prosecution of several defendants at FAC 76-97 (ER 124-131), tags the section as
DUE ADMINISTRATION OF JUSTICE and incorporates the allegations into
multiple short, plain claims:
Common Allegations (FAC 107-116; ER 135-137);
Stuart Assault: Claims 1.1-1.13 (FAC 149-309; ER 143-171);
City Attorney Malicious Prosecution/Obstruction of Justice (and anticipatory
pleading of statute of limitations tolling and estoppel, accrual issues): Claims
3.1-3.6 (FAC 349-508; ER 177-207)
Commission Conspiracy/Obstruction of Justice: Claims 5.2, 5.5 (FAC 581625; ER 222-230);
Conspiracy to Interfere With Rights (Section 1985): Claim 9.2 (Section
1985(2) (FAC 774-789; ER 257-261), Claim 9.3 (Section 1985(3)(a)) (FAC
790-793; ER 261-262);
The definition of the domestic dispute industry marketplace (FAC 956; ER
197);
Racketeering Count 3: Kidnapping (FAC 1039-1073; ER 324-329);
Racketeering Claim for Relief 4.2: Extortion (FAC 1079-1082; ER 330331);
Racketeering Claim for Relief 5.1: Obstruction of Justice (FAC 1083-1130;
ER 331-340);
Racketeering Count 6: Violent Crime in Aid of Racketeering (FAC 11311134, ER 341);
All conspiracy and aiding and abetting Racketeering Counts (Racketeering
Counts 7-10) (FAC 1135-1176; ER 341-348);
Prospective Relief Count 1: Section 1514(b) Witness Harassment Restraining
Order (FAC 1192-1197; ER 351-352); and
23
For
example, the district court may have regarded allegations describing California
Coalitions petitioning and free speech interaction with the Family Law
Community at the Stuart Assault as generalized grievances. The passage is not
merely generalized grievances, but instead an operative concept in several claims.
The section is tagged as ENGAGEMENT (FAC 64-70; ER 121-123)) and
incorporated into Counts 1, 2, 3, and most others.
Similarly, federal supremacy-related reform and petition activity is described
as Family Federal Rights Reform, Exercise, Support and Advocacy and tagged as
FFRRESA (FAC 71-75; ER 123-124) and incorporated into to civil rights,
obstruction of justice and prospective relief counts, enterprise (RICO) allegations,
tolling, estoppel, and accrual (statute of limitations anticipatory pleading), and
anticompetitive practices (RICO and Lanham Act). California Coalitions presence
and purposes in the domestic dispute industrys commercial marketplace and
competition with defendants is tagged as PUBLIC BENEFIT ACTIVITY (FAC
98-106; ER 131-135) and incorporated into Lanham Act and racketeering counts;
and many others.
Its difficult to conceive a more effective method of pleading short, plain
claims. The practice is common. See DktEntry 12 (MTJN) Exs. 1-4.10
10
Several Appellees repeat the district courts error asserting the FAC contains
terms with no discernable meaning (ER 8). The accusation is error because the
FAC defines black hat at 955 (ER 304), and poser advocacy paperwad and
kite bomb at 985 (ER 312).
f. Peonage Predicates Are Properly Pled
Appellees do not contest authority such as Sedima, Turkette, and Philip
Morris holding that indirectly-accusing predicates are properly pled to establish
RICO elements of enterprise, continuity, and defendants participation in the
enterprise. Appellees do not contest that RICO enables a broad dragnet to capture
anyone associated with organized crime, including conductors such as Mr. Jahr and
operators such as Ms. Levin. Appellees do not contest Appellants observations that
the district court alone attacked peonage predicates sua sponte, and that the district
courts plausibility attack must proceed under the multi-stage process established in
Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009) and Moss v. U.S. Secret Serv., 572 F.3d
962, 970 (9th Cir. 2009) (Moss I). See AOB p. 42-43.
FAC alleges Appellees are already in possession of relevant public records and
evidence. See ER 179, 194, 196, 198, etc. Defendants have not and cannot allege
impairment.
h. Public Policy Favors Adjudication on Merits.
In cases that implicate important public policy concerns, the court should
weigh the public interest in the case and the preference for disposing of cases on
their merits prior to granting dismissal. United States v. National Medical Enters.,
Inc., 792 F.2d 906, 913 (9th Cir.1986); Dahl v. City of Huntington Beach, 84 F.3d
363, 366 (9th Cir. 1996). This case is aimed to remedy conditions critical to millions
of families and children within this Circuitdishonest legal and social services,
criminal enterprises involving statewide Family Court psychologists, prosecutors,
and county judges, and the integrity of the statewide Family Court system itself.
The Thompson balancing test weighs overwhelmingly against a sanction of
dismissal of an initial complaint on curable pleading technicalities.
i. Legitimate Manageability Concerns Are Not Grounds for Dismissal
Appellees cite no authority supporting the district courts assertion of
manageability concerns as warranting dismissal with prejudice.
Because
manageability is not relevant to Rule 8(a)(2), and never sufficient grounds for
dismissal with prejudice, this Court may disregard the heavy reliance on
manageability. Philip Morris, 449 F.Supp. 2d 1, 29 (2006).
j. California Coalition Requested to Amend
Appellees do not deny that the Omnibus was a first attack for all but Superior
Court and Commission Appellee, or that California Coalition made numerous
representations of ability and willingness to amend. They offer no defense of the
district courts refusal to permit amendment, particularization, or deployment of the
Civil RICO Case Statement made available by the Southern District for precisely
this circumstance. Indus. Bldg. Materials, Inc. v. Interchemical Corp., 278 F. Supp.
27
938, 949 (C.D. Cal. 1967) (drastic remedy of sanction only appropriate where no
less drastic measures available).
B. The Superior Courts Initial Rule 12(b)(6) Motion Asserted
Clarification Issues Not Enabling Dismissal
Judicial Appellees defend their initial decision to seek only dismissal with
prejudice under Rule 12(b)(6) (rather than 12(e)) by stating that a motion to dismiss
for failure to comply with Rule 8 was also appropriate. Jud. Brf. p. 40. This misstates Appellants point: Appellants do not claim that a motion to dismiss under rule
12(b)(6) based on an alleged failure of Rule 8 was unavailable, but instead assert
that Judicial Appellees made a tactical error of grossly overreaching for a Rule
12(b)(6) insisting on only dismissal with prejudice against an initial complaint for
curable pleading technicalities more properly addressed under Rule 12(e)or by the
voluntary process proposed in California Coalitions Meet and Confer. See Doc.
No. 21-1 Ex. A.
The district court salvaged Judicial Appellees overreach by granting leave to
amend, yet the proper disposition of the overreach was to deny the motion to dismiss.
This disposition was error, which all defendants compounded in the Omnibuss
assertion of failure to comply with the improvident order.
improvident dismissal with leave, there is insufficient basis for the Omnibus request
for sanction, and this case proceeds toward adjudication in the district court.
The initial dismissal was an interlocutory order in error, precipitating the July
dismissal with prejudice. This Court may reverse on either error alone.
C. Defendants Did Not Prove Factual Foundations for Judicial or
Eleventh Amendment Immunity
Commission and Judicial Appellees concede that judicial and Eleventh
Amendment immunities are (1) affirmative defenses (2) turning on facts, (3) for
28
which they bear the burden of proof, (4) on the face of the complaint at this stage,
(5) with certitude.11
1. The Commission Has Not Proven Statehood
Commission Appellees concede the critical issues necessary to reversethe
issue of state-funding was unsolved by the district court. Comm. Brf. (DktEntry:
62) p. 18. They thus concede that Eleventh Amendment Immunity requires receipt
of facts the Commission did not (and could not at the pleading stage) introduce in
the district court. See Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812
F.2d 1103, 1110 (9th Cir. 1987) (We must look behind the pleadings . . .); Fed.R.
Civ.P 8(c)(1); ITSI T.V. Prods., Inc. v. Agric. Associations, 3 F.3d 1289, 1291 (9th
Cir. 1993). The Commission concedes this Court has no precedent precluding the
factual issue of the Commissions relationship with the State of California. Comm.
Brf. p. 19.
Commission incorrectly claims Appellants assert Eleventh Amendment
immunity may not be raised in a motion to dismiss. Jud. Brf. 14. The AOB argues
the oppositethat immunity may be adjudicated on a motion to dismiss in unusual
circumstanceswhere the face of the Complaint admits the defense . . . with
certitude. AOB 47. Commission Appellees did not assert that the original
11
Complaint admitted the Commission as a State with certitude, and must concede
it asserted the opposite factthe Commission is an entity beneath state level.
AOB at 48; Compl. 18, 172. These factual allegations are presumed true. Ashcroft
v. Iqbal, 556 U.S. 662, 664 (2009).
a. Commission Concedes Ricotta is Insufficient
Commission Appellees also concede the single case relied on by the district
courtRicotta v. California, 4 F. Supp. 2d 961, 976 (S.D. Cal. 1998)did not
engage in an extensive Eleventh Amendment assessment. Comm. Brf. p. 20. That
is a vast understatementRicotta did not engage in any Eleventh Amendment
assessment because Mr. Ricotta, appearing in pro se, unwisely conceded he
erroneously sued the state when naming the Commission. Ricotta at 976.12
These concessions alone are sufficient to reverse the district courts dismissal
based solely on Ricotta. See AOB at 47-48.
b. Commission Appellees Improperly Assert New Facts Contrary to the FAC
At this pleading stage, the only source of facts under the Eleventh Amendment
analysis are those pled in the initial Complaint (Doc. No. 1). The Commission
cannot contest that the presumed-true allegations describe Commission Defendants
12
masters (rather than state legislators); its independent ability to hire, manage,
reimburse, and pay medical and other experts and reporters and independent
special counsel from funds available to it (Id. at 19) (emphasis added).
These sections also do not evidence the state Constitutions establishment
of the Commission. They are rules like any other state law governing behavior
how the Commissions members are appointed, length of terms served, and how
judges are disciplined. The California Constitution references many entities
which are well-recognized as beneath State-level, including counties (Art. 11 1),
cities (Art. 11, 6), county courts (Art. 6, 1), schools and school districts (Art. 9
5, 6, 14), the Regents of the State of California (Art. 9, 9), and the public
corporation that is the State Bar of California (Art. 6 9).
If California law becomes admissible as evidence at some stage, it will
undermine Commissions claim to unity with the State.
d. The State of California Has Waived or Consented to Federal Jurisdiction in
Due Process and Equal Protection Claims
The Fourteenth Amendment provides: No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of
the laws. U.S. Const., Amend. XIV, sec. 1. The Amendment, passed by
representatives of the States in the Senate in 1868, nearly 84 years after the 1795
ratification of the Eleventh Amendment, constitutes unequivocal consent by the
States, through their representatives in the Senate, to be bound by this federal law.
Section 5 of the Fourteenth Amendment grants Congress the power to enforce
the Section 1 guarantees against States by enacting appropriate legislation. Bd. of
Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 365 (2001). The 1871 Civil
Rights Act, also enacted by representatives of States in the Senate, was a specific
deployment of Congress power under section 5, empowering citizens to bring suit
32
under the Fourteenth Amendment, and further articulating the States consent to be
sued in federal court for its violations of the Fourteenth Amendment.
Therefore something is uniquely amiss in a society where the government,
the authoritative oracle of community values, involves itself in racial
discrimination. Adickes v. S. H. Kress & Co., 398 U.S. 144, 190-91 (1970)
(Brennan, J., concurring in part and dissenting in part).
Justice Brennans
35
The FAC alleges many acts of each defendant judge in many claims,13 yet
Judicial Appellees fail to identify any claim accusing a judicial act within the
jurisdiction of any court. Appellees fail to carry their formidable burden.
c. Ashelman Stands In Error Under Controlling Supreme Court Authority
Judicial Appellees do not dispute AOB analysis demonstrating that Ashelman
v. Pope, 793 F.2d 1072 (9th Cir. 1986) illegally expanded Sparkman, but defend
Ashelman as binding precedent in this Circuit. Jud. Brf. p. 43. The defense fails.
In Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc) this Court
addressed a strikingly similar question:
A goal of our circuit's decisions, including panel and en banc decisions, must
be to preserve the consistency of circuit law. . . . That objective, however,
must not be pursued at the expense of creating an inconsistency between our
circuit decisions and the reasoning of state or federal authority embodied in a
decision of a court of last resort.
Id. at 900. Miller considered whether the district court or circuit panel was bound
by circuit precedentBabcock v. Tyler, 884 F.2d 497 (9th Cir. 1989)that was, like
Ashelman, fundamentally inconsistent with the reasoning of Supreme Court
authority of Kalina v. Fletcher, 522 U.S. 118, 127-29 (1997), and Antoine v. Byers
& Anderson, Inc., 508 U.S. 429 (1993). Miller at 893. Because Babcock was
fundamentally inconsistent with superior and subsequent authority, Miller held
that neither the district court nor circuit panel was bound by circuit precedent. Id.
13
An even stronger case for release from Ashelmans several errors is present.
Ashelmans broad grant of immunity is starkly inconsistent with Rehberg v. Paulk,,
132 S.Ct. 1497 (2012) and decades of prior controlling Supreme Court authority
repeatedly admonishing that the freewheeling policy analysis contained in
Ashelman is error. See analysis at AOB p. 51-55.
Appellees also persist in resurrecting Ashelmans adoption of McAlesters
encounter with a judge, precise act and act itself debris.14 Jud. Brf. p. 42, 45,
48. The concepts did not survive Sparkman. [A]s the language in Stump indicates,
the relevant inquiry is the nature and function of the act, not the act itself.
Mireles v. Waco, 502 U.S. 9, 13 (1991). See also al-Kidd v. Ashcroft, 580 F.3d 949,
960 (9th Cir. 2009) rev'd on other grounds, 131 S. Ct. 2074 (2011). Immunity turns
on function, not act or actor. AOB p. 52.
Ashelmans ultimate act is also fundamentally inconsistent with superior
and subsequent authority.
14
588 F.2d 124, 125 (5th Cir.) on reh'g, 604 F.2d 976 (5th Cir. 1979) aff'd sub nom.
Dennis v. Sparks, 449 U.S. 24 (1980). If Judge Carillo were still sittingbacked by
an indemnity agreementplaintiffs surely would have pled their case differently. If
so, under Pierson and Sparkman Carillos immunity for the inchoate conspiracy
must be analyzed separately. See AOB 56-61. See also Sparkman v. McFarlin, 601
F.2d at 264-68 (Sprecher, J., concurring); Lopez v. Vanderwater, 620 F.2d 1229,
1237 (7th Cir. 1980).
The Fifth Circuit en banc decision in Sparks v. Duval Cnty. Ranch Co., 604
F.2d 976 (5th Cir. 1979) recognized that the expansion of Justice Whites test
would be error: The rule is a harsh one, laden with potential for unredressed wrong.
As such, its scope should not be extended beyond that necessary to preserve the
judge's independence of mind and judgment . . . Id. at 980.
Neither the district court nor a panel of this Court is bound by Ashelmans
several fundamentally inconsistent errors.
d. Bradley Does Not Support Ultimate Act
In Bradley, Justice Field described his fear that a vindictive plaintiff could
easily defeat immunity merely by ascribing an allegation of malicious intent to a
judicial act, thereby forcing a judge to stand trial. Few persons sufficiently irritated
to institute an action against a judge for his judicial acts would hesitate to ascribe
any character to the acts which would be essential to the maintenance of the action.
Bradley at 348.15
15
16
Sparkman v. McFarlin, 601 F.2d 261, 267 (7th Cir. 1979). Judges are
certainly not so fragile today. See Pennekamp v. State of Fla., 328 U.S. 331, 349
(1946) (For this to follow, there must be a judge of less than ordinary fortitude
without friends or support or a powerful and vindictive newspaper bent upon a rule
or ruin policy, and a public unconcerned with or uninterested in the truth or the
protection of their judicial institutions.); Craig v. Harney, 331 U.S. 367, 376
(1947).
No court has ever denied that absolute immunity inflicts a monstrous
injustice on wronged litigants, and taxes the credibility and integrity of judicial
institutions. Gregoire v. Biddle, 177 F. 2d 579, 581 (2nd Cir. 1949); Butz v.
Economou, 438 U.S. 478, 521 (1978). It has been justified as a necessary evil to
protect the ardor of judges and prosecutors. Id. While one might reasonably have
concluded that our efforts to assure justice is done17 would have been betterdirected toward inculcating ardor through discipline and integrity than by
expanding immunity, the issue is moot. Today the monstrosity of immunity is no
longer the least restrictive means of promoting the substantial state interest of
judicial efficiency. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991).
368 (Stewart, J., Powell, J., dissenting).
16
See Note, Liability of Judicial Officers Under Section 1983, 79 YALE L.J.
322, 329-334 (1969) (hereinafter Yale Note) (When courts first formulated the
doctrine of judicial immunity, a plaintiff who pleaded properly could force a judicial
officer to go to trial. This, of course, is no longer true in the federal courts.); J.
Feinman, R. Cohen, Suing Judges: History and Theory, 31 S. C. L. Rev. 201, 268269 (1979) (hereinafter Suing Judges)
17
Connick v. Thompson, 131 S. Ct. 1350, 1365 (2011)
39
18
reflects a command that that the FAC better damn well not be more than 30 pages
long, sir. AOB at 22; ER 61. The December 23 written order withdrew limitation
on length (ER 46:27-28), yet the July 9 order dismissed citing a failure to comply
with the oral command regarding length: plaintiffs amended complaint . . . is even
longer than the original . . . . ER 10. At hearing on December 19, 2013, the district
judge commanded to include plausible facts and non-frivolous argument in
anticipation of affirmative defenses (AOB 25-27; ER 46, 57, 62).
California
Coalition complied (AOB 23-27), yet the July dismissal with prejudice (ER 6-12)
criticized argument and plausible facts detail pled under command: plaintiffs
amended complaint remains unmanageable, argumentative, confusing, and
frequently incomprehensible. ER 10.
Most importantly, even though the courts several threats to impose sanctions
at both hearings did not find their way into the written orders (compare ER 38, 5960 with ER 12, 42, 49), the district judge took her commands at hearing very
seriouslythe July dismissal reveals she was contemplating not only sanctions, but
a sua sponte citation for contempt against Appellants filing the FAC.
Few
41
December 23 order (ER 48), is inconsistent with Sparkman (AOB 52),19 and refuted
by multiple authorities denying immunity for rulings or decisions of a judge in
official capacity which are not judicial acts or are in excess of jurisdiction. AOB
p. 52-53.
g. County Judges Are Subject to Prospective Relief
Judicial Appellees assert this Courts decision in Moore v. Brewster, 96 F.3d
1240 (9th Cir. 1996), extends immunity in their favor against actions for
declaratory, injunctive and other equitable relief. Jud. Brf. p. 41. Correctly stated,
Moore stands for the exact opposite proposition:
The judicial or quasi-judicial immunity available to federal officers is not
limited to immunity from damages, but extends to actions for declaratory,
injunctive and other equitable relief. Cf. Pulliam v. Allen (state officials enjoy
judicial or quasi-judicial immunity from damages only).
Moore at 1243-44 (internal citations omitted) (emphasis added). The longstanding
rule for state and local officials under Pulliam is that judicial immunity is not a bar
to prospective injunctive relief. Pulliam v. Allen, 466 U.S. 522 at 541-42 (1984).
h. Conclusion: Ashelman and the District Court Should be Reversed
I answer it is better to invade the judicial power of the States than permit it to
invade, strike down, and destroy the civil rights of citizens. A judicial power
perverted to such uses should be speedily invaded.
Remarks of Representative Lawrence (House sponsor of the Civil Rights Act of
1866), Cong. Globe, 39th Cong., 1st Sess. 1837 (1866).
Ashelman has stood in error for 28 years. In error it has deprived scores of
westerners remedy for intentional criminal wrongdoing. In the backwaters of county
Family Courts Ashelmans expansion over Congress has expanded the $50
19
and found absolute immunity. Id. Duvall did not analyze 1871 common law or any
function specific to a divorce tribunal.
In Arnold this Court found immunity for a claim that the judge issued an
illegal contempt citation against plaintiff for violating an order excluding the
plaintiff from his family home. Citing only to Bradley, this Court found the judge
immune for the contempt functionthe court did not analyze immunity for the
underlying exclusion order. Arnold at 880. Arnold cited Bradleys freewheeling
policy languagenot 1871 common lawand is thus error. Malley at 352.
Meyers did not consider judicial immunity of a divorce judge, but
prosecutorial immunity of social workers in initiating a dependency proceeding, and
quasi-judicial immunity of court employees performing a statutorily-mandated
conciliation session with custody litigants. Meyers at 1158-59. This Court found
the Family Conciliation Court counselors were entitled to a qualified quasijudicial immunitylimited in scope to acts specifically authorized by statute. Id.
at 1159.
Meyers did not address the immunity of a judge, and did not analyze 1871
common to identify an analogue for the conciliation session function. If this Court
were to conduct that historical inquiry for Appellees asserting quasi-judicial
immunityincluding Doyne, Roddy, and othersit will find only a qualified
immunity. See Kalina v. Fletcher, 522 U.S. 118, 132 (1997) (Scalia, J., Thomas, J.,
concurring) (When public officials made discretionary policy decisions that did not
involve actual adjudication, they were protected by quasi-judicial immunity,
which could be defeated by a showing of malice, and hence was more akin to what
we now call qualified, rather than absolute, immunity.); Burns v. Reed, 500 U.S.
478, 500 (1991) (Scalia, J., concurring in judgment in part and dissenting in part).
Even qualified immunity has been doubted. See Hoffman v. Harris, 511 U.S. 1060
(1994) (Thomas, J., dissenting) (This all assumes, of course, that social workers
44
(at least as we now understand the term) even existed in 1871); Antoine v. Byers
& Anderson, Inc., 508 U.S. 429 (1993) (denying court reporter absolute immunity
because court reporters did not appear until the late 19th century).
Meyers supports California Coalitions assertion that family court judges
exercise specific jurisdiction, and therefore if they have any immunity, it is narrow
i.e., qualifiedlimited to acts within the narrow jurisdiction of their courts, not
done maliciously or corruptly. See Kalina, Burns, supra.21
Further, like Arnold, Meyers relied on Ashelmans erroneous freewheeling
policy holding and the four-factor test from McAlester which was error after
Sparkman. AOB p. 51-54.
Finally, all three cases draw on authority no older than Bradley, in which
Justice Field originated policy in 1872 that could not have been in the 42nd
Congress mind with the April, 1871 passage of the Act, and are thus irrelevant. See
IV.D, infra.
D. Like Ashelman, Pierson Was an Illegal Incursion into Congressional
Authority
Judicial Appellees incorrectly claim that Pierson is binding precedent on the
issue presented by California Coalitionwhether the Constitutions vesting of only
judicial power in the judiciary under Article III, and reservation of legislative power
to Congress under Article I, prohibits federal courts from narrowing the
unambiguous face and clearly-recorded intent of duly-enacted legislation. Appellees
21
The Meyers plaintiffs did not allege the social workers acted maliciously
or corruptly, but only that they disobeyed a judges instructions. Id. If the Meyers
plaintiffs had made an allegation of corruption or malice, California Coalition
submits this Court could notunder any relevant authorityhave justified
extending immunity to the social workers or court employees. See Burns v. Reed,
500 U.S. 478, 486487 (The presumption is that qualified rather than absolute
immunity is sufficient . . . .).
45
do not dispute that this issue was not presented or decided in Bradley, Pierson or
any of its progeny. This Court is thus presented with an issue of first impression.
As a case of first impression this Court is not bound by Pierson or its progeny, but
may consider those decisions as well as out-of-circuit decisions, treatises, or
academic journals as persuasive. Hart v. Massanari, 266 F.3d 1155, 1169-73 (9th
Cir. 2001).
1. United States Courts Exercise Limited Jurisdiction
Federal courts have no more power than that derived from the Constitution or
Congress: If congress has given the power to this court, we possess it, not otherwise
. . . . Turner v. Bank of North America, 4 U.S. 8, 10 n.1(a) (1799). The
Congressional power to ordain and establish inferior courts includes the power of
investing them with jurisdiction either limited, concurrent, or exclusive, and of
withholding jurisdiction from them in the exact degrees and character which to
Congress may seem proper for the public good. Lockerty v. Phillips, 319 U.S. 182,
187 (1943) (citing Cary v. Curtis, 44 U.S. 236, 245 (1845); For I agree there is no
liberty, if the power of judging be not separated from the legislative and executive
powers. The Federalist No. 78 (Alexander Hamilton) (1788). As recently as 2014
the Supreme Court rejected circuit decisions narrowing a statutes unambiguous
language and discernable congressional intent. Lexmark Int'l, Inc. v. Static Control
Components, Inc., 134 S.Ct. 1377, 1388 (2014) (reversing a Sixth Circuit decision
relying on a Second Circuit decision narrowing Lanham Act standing, and also
rejecting narrowing constructions from the Third, Fifth, Seventh, Eighth, Ninth,
Tenth, and Eleventh Circuits). This Court has followed. See Tourgeman v. Collins
Fin. Servs., Inc., 755 F.3d 1109, 1117 (9th Cir. 2014), as amended on denial of reh'g
and reh'g en banc (Oct. 31, 2014). See also United States v. Roach, 745 F.2d 1252,
1253 (9th Cir. 1984) (We will not go beyond the face of the statute to search for
Congressional intent when that intent is obvious from the language of the act.).
46
22
Cf. Bauers v. Heisel, 361 F.2d 581, 587 (3d Cir. 1966). Bauers rejected
Pickings immunity holding because it preceded Tenney v. Brandhove. Tenney
examined legislative speech privilege and is inapposite to Pickings separate analysis
of jurisdiction. See IV.D.3 infra. Pickings observation of Article III jurisdiction is
incontrovertible absent constitutional amendment.
23
And even more forceful dissents. See AOB 50-51.
47
interpret the intent of Congress in enacting 1983, not to make a freewheeling policy
choice, and that we are guided in interpreting Congress' intent by the common-law
tradition. Id. at 342. Under Malleys command we examine only congressional
intent.
The other half has found an absolute immunity in the unambiguous statute
becauseit is saidThe legislative record gives no clear indication that Congress
meant to abolish wholesale all common-law immunities . . . . The immunity of
judges for acts within the judicial role is equally well established [as the speech and
debate privilege], and we presume that Congress would have specifically so
provided had it wished to abolish the doctrine. Pierson v. Ray, 386 U.S. 547, 554555 (1967). The presumption is as worthy as any speculation. It overlooks the
most obvious evidence of congressional intentthe unambiguous language of the
statute itself. Moreover, actual analysis of the congressional record, and history of
judicial immunity reveals Chief Justice Warrens presumption is simply wrong.
a. Pierson Incorrectly Analyzed Legislative Privilege Rather Than Judicial
Immunity
In Pierson Chief Justice Warren presumed that the immunity of judges
was equally well established as the legislative privilege.
Remarkably, in
Pierson at 554.
Chief Justice
Analyzed in Bradley at n. 16. [A] judge of a county court was sued for
slander, and he put in a plea that the words complained of were spoken by him in his
capacity as such judge, while sitting in his court, and trying a cause in which the
plaintiff was defendant.
48
common-law doctrine of judicial immunity, and does not follow inexorably from
our prior decisions. Pierson v. Ray, 386 U.S. 547, 559 (1967) (Douglas, J.,
dissenting).
Instead of analyzing judicial immunity, Justice Warren adopted analysis of
legislative privilege from Tenney v. Brandhove, 341 U.S. 367 (1951). In Tenney
Justice Frankfurter considered whether a California legislative committee
conducting a contempt proceeding against a man circulating a flyer protesting the
committee was immune from an action under Section 1983. Id. at 377.25 The
question was whether a speech or debate privilege could be extended to a
lawmakers behavior at a contempt hearing. Id.
Justice Frankfurter traced the history of English common law preserving
legislative privilege as derivative of libertyan extension of the voters freedom of
speech and conscience. Id. at 372-73. He aligned the privilege with the federal
speech or debate analog in the United States Constitution at Article I, Sec. 6, cl.
1.26 He presumedanalyzing no legislative historythat the 42nd Congress would
25
not have intended to limit legislative privilege in enacting the 1871 Civil Rights Act
because Congress was itself a staunch advocate of legislative freedom. Id. at 376
(emphasis added).
Tenney extended the speech immunity to the contempt function because
legislators are directly-elected and immediately accountable to voters. Id. at 378.
Tenney also held the narrow immunity was lost if there was a usurpation of
functions exclusively vested in the Judiciary or the Executive. Id.27
b. Judicial Immunity is the Opposite of Legislative PrivilegeJudges Are
Sovereigns Possessing Not Rights but Delegated Authority
Judicial authority and legislative freedom are night and day. Judges exercise
jurisdiction as sovereignsnot liberties from sovereigns. While judges have all the
rights of any citizen qua a citizen, a judge qua judge possesses no rights. First and
Fourteenth Amendments restrain only such action as may fairly be said to be that
of the States. United States v. Morrison, 529 U.S. 598, 621 (2000). [T]he
censorial power is in the people over the Government, and not in the Government
over the people. New York Times Co. v. Sullivan, 376 U.S. 254, 282-83 (1964).
There is no need for a judge to express opinions, experiences, or desires of her own
or those she represents to create lawshe is given law. Other than necessary for
faithful execution of the law, a judges freedom of conscience is irrelevant to
judicial functionrelevant conscience is given in the form of law that has matured
through free debate elsewhere. Judges do not function as a body, and (should) have
no one to debate. The Constitution does not extend a speech and debate privilege
to the judiciary because courts are not empowered to speak or debate. The function
27
28
29
I answer it is better to invade the judicial power of the States than permit it to
invade, strike down, and destroy the civil rights of citizens. A judicial power
perverted to such uses should be speedily invaded.
Cong. Globe, 39th Cong., 1st Sess. 1837 (1866) (remarks of Representative
Lawrence). The 1866 Act was vetoed by President Johnson because it abrogated
common law judicial immunity.30 In the fight to defeat the veto, Senate Judiciary
Committee Chairman Trumbull expressed revulsion at the entire concept of judicial
immunity: It is the very doctrine out of which the rebellion was hatched.31
Section 1 of the 1871 Act (now Section 1983) passed rapidly through
Congress because debate wasnt necessaryCongress recognized Section 1 as
merely adding a civil remedy to the 1866 Act. Debate instead focused on section
2 of the bill (modernly Section 1985) because of concerns over federalism and
regulation of private behavior. Griffin v. Breckenridge, 403 U.S. 88, 99 (1971).
The recorded debate demonstrates unequivocally that Congress intended to
abrogate common law judicial immunity:
[T]he decisions of the county judges, who are made little kings, with almost
despotic powers to carry out the demands of the legislature which elected
them-powers which, almost without exception, have been exercised against
Republicans without regard to law or justice, make up a catalogue of wrongs,
outrageous violations, and evasions of the spirit of the new constitution,
unscrupulous malignity and partisan hate never paralleled in the history of
parties in this country or any other.
30
52
Cong. Globe, 42nd Cong., 1st Sess. 186 (1871) (remarks of Representative Platt).
What is to be the case of a judge? . . . Is that State judge to be taken from his
bench? Is he to be liable in an action? ... It is the language of the bill: for there
is no limitation whatsoever on the terms that are employed, and they are as
comprehensive as can be used.
Id. (remarks of Senator Thurman).
[T]he judge of a State court, though acting under oath of office, is made liable
to a suit in the Federal Court and subject to damages for his decision against
a suitor, however honest and conscientious that decision may be . . .
Id. (remarks of Representative Lewis). Representative Arthur recognized the law
would be a drastic reversal of common law immunity:
Hitherto, in all the history of this country and of England, no judge or court
has been held liable, civilly or criminally, for judicial acts .... Willfulness and
corruption in error alone created a liability . . . .Under the provisions of this
section every judge in the State court. . . will enter upon and pursue the call
of official duty with the sword of Damocles suspended over him . . .
Cong. Globe, 42nd Cong., 1st Sess. (1871) 365-366.32
32
See also Yale Note at 328 and references to additional consistent comments
in n. 38. On three occasions during the debates, legislators explicitly stated that
53
Courts considering parallel questions have deferred to this vivid record. See,
e.g., Picking v. Pennsylvania R.R., 151 F.2d 240 (3rd Cir. 1945) (But the privilege
as we have stated was a rule of the common law. Congress possessed the power to
wipe it out. We think that the conclusion is irresistible that Congress by enacting the
Civil Rights Act sub judice intended to abrogate the privilege to the extent indicated
by that act and in fact did so . . . . The statute must be deemed to include members
of the state judiciary acting in official capacity.); Monell v. Dep't of Soc. Servs. of
City of New York, 436 U.S. 658, 665 (1978); Owen v. City of Independence, Mo.,
445 U.S. 622, 643 (1980); Pulliam v. Allen, 466 U.S. 522, 543 (1984).
Far from an intent to incorporate common law judicial immunity, Congress in
passing both Acts specifically intended to eliminate it as the source of the
monumental evil of state-sponsored oppression jeopardizing our nations existence
by precipitating civil warfare.33
judges would be liable under the [1871] Act. No one denied the statements. In
sum, the question of congressional intent seems relatively clear: there was no
universal acceptance of the broad English immunity rule in 1871, and the only
legislative history available supports the proposition that Congress intended Section
1983 to cover judges. Yale Note at 328. Yale Notes 1969 author left open the door
that the legislative history does not preclude entirely the Court's construction of the
statute if the policy reasons for judicial immunity are sufficiently persuasive. That
policy reasons door was closed eleven years later in Malley.
33
Congress intent to hold judges accountable is recorded as recently as 1979
by the 96th Congress:
[Section 1983] is an essential element of an extraordinary series of
congressional enactments that transformed the relationship between the
Federal Government and its constituent parts. [T]he very purpose of the 1983
was to interpose the Federal courts between the States and the people, as
guardians of the people's Federal rightsto protect the people from
unconstitutional action under color of State law, whether that action be
executive, legislative, or judicial.
54
[Was] the act done a judicial act, done within his jurisdiction? If it was not,
he can claim no immunity or exemption by virtue of his office from liability
as a trespasser; for if he has acted without jurisdiction, he has ceased to be a
judge.
Randall at 531. Inferior judges enjoyed only a qualified immunity. See Kalina v.
Fletcher, 522 U.S. 118, 132 (1997) (Scalia, J., Thomas, J., concurring). Justice Field
acknowledged decisions which denied an absolute immunity where the acts, in
excess of jurisdiction, are done maliciously or corruptly.38
Fields qualification was warranted. Analyses of 1871 common law reveal
predominating inconsistencynothing close to a firmly-rooted tradition. Few
American States had considered an immunity rule, and those that did disagreed. Yale
Note at 326-27. [A]s in England, the lower judges were most subject to suit, and
for many of them the rule was one of liability for extra-jurisdictional acts, malicious
acts, or both. Id. Justice Field's opinion in Bradley hastened the expansion of
immunity: [Bradley] was enormously influential in recasting the doctrinal analysis
of state courts, as well as their general approach to problems in this area. By the
early twentieth century, the law had begun to shift from a basic position of liability
to a preference for immunity, although the culmination of the change was very
recent. Suing Judges at 221 (emphasis added).
Bradleys innovative policy exhortationthough perhaps persuasive in case
it one day finds its way onto the floor of Congresscannot inform us of
congressional intent in 1871. Far from controlling, Bradley is the germ of the
38
of due process and impartial tribunal. They cite law analyzing denials of recusal
motions under 28 U.S.C. 1361. Jud. Brf. p. 69. California Coalition did not seek
recusal, but asserts deprivation in support of reversal and prays for remand
instructing relief from Southern District Local Rule 83.3(c)(5) requirement to appear
by local counsel. AOB at 66, 69. [A] biased decisionmaker [is] constitutionally
unacceptable. Withrow v. Larkin, 421 U.S. 35, 47 (1975); Hurles v. Ryan, 706 F.3d
1021, 1036 (9th Cir.2013) (fair trial in a fair tribunal is a basic requirement of due
process).
Judicial Appellees Authority Supports California Coalition
In Litkey plaintiff-appellants claimed the judge demonstrated impatience,
disregard for the defense and animosity by admonishing plaintiffs counsel to
refrain from grandstanding through an irrelevant political defense. Liteky v.
United States, 510 U.S. 540, 542 (1994). Plaintiffs did not dispute their crimes, but
argued that they were justified as furtherance of their political agenda to protest the
U.S. governments involvement in El Salvador. Id. at 543. The district judge
cautioned against using the trial as a political forum and instructed to focus on the
material issues at trial. Plaintiffs later moved to recuse, the district judge denied, and
the Eleventh Circuit and Supreme Court affirmed. Id.
The Supreme Court found plaintiff did not identify an extrajudicial source
of bias that could improperly influence the judges in-court behavior. Id. at 545.
The Court also found that the district judge did not err in refusing to recuse because
the in-trial comments were not wrongful or inappropriate because it was
undeserved, or because it rests upon knowledge that the subject ought not to possess
. . . or because it is excessive in degree . . . . Id. at 550.
California Coalition asserts that the district judges behavior was wrongful
or inappropriatevitriol and intimidating, yet specious, threat of sanction directed
at California Coalition and its retained co-counsel as he attempted to appear causing
58
See also DktEntry 11-2, pp. 78 (Appellants Joint Overlength Opening Brief
(submitted for review with Appellants Joint Motion to File Overlength Opening
Brief, DktEntry 11-1) in which Appellants asserted: The district courts pattern of
unusual hostility, was excessive, impartial favoring defendants with whom she
shares a professional community, and harmful error. To comply with this Courts
order (DktEntry 42) denying/granting in part Appellants motion (DktEntry 11-1) to
exceed type-volume limits, the phrase was eliminated from the shortened
Appellants Joint Opening Brief (DktEntry 43).
59
41
42
The district court sealed even Appellants redacted complaint (Doc. No. 8)
because it continues to identify the city in which the judges reside. Doc. No. 9.
61
See ER 358-372.
content based and (2) does not fall within the several traditional categories of
permitted restriction on the content of speech. United States v. Alvarez, 132 S. Ct.
2537 (2012). Statutes prohibiting speech based on content are presumed invalid.
Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 660 (2004). Section
6254.21 is content-based because one must look at the content of the speech to
determine if it falls within the statutes prohibition. Foti v. City of Menlo Park, 146
F.3d 629, 636 (9th Cir. 1998). The statute proscribes reference to the telephone
number and address of an elected or appointed official.
Communication containing public official residence and contact is expressive
as relevant to important political rights. An officials residence identifies voting and
electoral district for eligibility for office, neighborhood relationships, standard of
living, indicates political inclinations relevant to the officials identity, fitness, and
character. Contact information enables communication to the official of information
and opinions relevant to his or her office. See New York Times Co. v. Sullivan, 376
U.S. 254 (1964) (describing laws prohibiting expression regarding public officials
as a nullity, as absolute and as palpable as if Congress had ordered us to fall down
and worship a golden image.); Landmark Communications, Inc. v. Virginia, 435
U.S. 829, 839 (1978) (invalidating law restricting publication of confidential records
of judicial discipline proceedings).
fortitude and may be expected to receive and withstand intense public scrutiny and
criticism, including scrutiny of their lifestyles, neighborhoods, and places of abode.
Craig v. Harney, 331 U.S. 367, 376 (1947). Section 6254.21 burdens such activity,
is content-based, and therefore invalid.
The burden of resurrecting section 6254.21 from the presumption of invalidity
rests on the parties asserting it. Alvarez at 2549. Such an achievement seems
dubious.
63
Section 6254.21 does not to fall within any of the historic and traditional
categories of expression long familiar to the bar. Id. at 2544. The CPRA was
enacted in 1968long after the ratification of the First Amendment, and of course
could not have been contemplated as an exception by the Constitutions framers.
Further, the state interests protected by the CPRA are not privacy, but public
access to public records. Section 6250 of the CPRA describes the relevant state
interest:
In enacting this chapter, the Legislature, mindful of the right of individuals to
privacy, finds and declares that access to information concerning the conduct
of the people's business is a fundamental and necessary right of every person
in this state.
In addition, the CPRA proscription against disclosure on the internet
appears not to be the least restrictive means for protecting the privacy interest
asserted. See Aschcroft at 666. Address and telephone information is available from
numerous sources, including the county registrar of voters, online election campaign
financing forms, ordinary phone books, credit records, campaign financing records,
and many other public sources.
information include the officials own ability to refuse to disclose such information.
The district court relied in part on Appellees assertion of the CPRA in
denying Appellants motion for a witness harassment restraining order which is
appealed here (Issue 4, AOB 17, 66), and Appellees appear intent on asserting this
issue as a matter of law in defense of Count 4 of the FAC. The CPRAs validity is
thus at issue in this appeal.
Appellants submit California Government Code 6254.21 is an invalid
content-based restriction on speech protected under the First and Fourteenth
64
Amendments to the United States Constitution, and Article I 2(a) and 26 of the
California Constitution, and as an additional prayer for relief hereby respectfully
request this court adjudge the statute to be invalid.
G. Superior Courts Two Failed Sanctions Motions Entitles California
Coalition to Counter-Sanctions
Judicial Appellees claim the Superior Courts two failed motions44 for
sanctions based on the Superior Courts two failed motions to dismiss was faithful
litigation behavior. Jud. Brf. p. 70-72. Seeking Rule 11 sanctions concurrent with
a motion in order to leverage the motion is itself independently sanctionable.
Gaiardo v. Ethyl Corp., 835 F2d 479 (3rd Cir. 1987); Rich v. Taser Int'l, Inc., No.
2:09-CV-02450-ECR, 2012 WL 3155137, at *3 (D. Nev. Aug. 2, 2012) (A Rule 11
motion is not a proper vehicle for arguing the merits of a case . . . Plaintiffs will
therefore be awarded the reasonable expenses of defending such a motion. . . .).
Requesting sanctions is per se inappropriate where there exists legitimate
controversy. Committee Notes on Amendments to Federal Rules of Civil Procedure
146 FRD 401, 590 (1993). Superior Court fails to overcome Gaiardos presumption
that its leverage Rule 11 motion is a hardball tactic. See Gaiardo at 485.
Superior Court argues it did not withdraw grounds on which the sanctions
motion was brought. Jud. Brf. p. 72. This is false. Superior Court withdrew
grounds: a (Mr. Webbs cured pro hac vice status); b (Lexevias cured capacity
issue); d (filing a frivolous 1,300 page complaint (a length issue refused by the
district court; Appellees later conceded the complaint was only 175 pages); f
(Superior Court non-judicial administrator Roddy seeking a quasi-judicial
44
66
Superior courts Rule 11 motions were based largely on the other grounds
arguments Judicial Appellees assert here.45 Should this Court award Appellants any
relief requested, Appellants claims should be adjudged as not totally void of
merit and Superior Courts two sanctions motions based on such grounds should
be adjudged improper hardball tactics.
For all of the above reasons Appellants respectfully request an award of
counter-sanctions against the Superior Court.
H. Incorporation/Preservation of Motion for Preliminary Injunction
No Appellee objects to California Coalitions request to reverse the district
courts summary denial of California Coalitions Motion for Preliminary Injunction
Regarding Domestic Violence Restraining Orders (Doc. No. 109) for adjudication
here. See Judgment In a Civil Case (ER 4) and Order Dismissing Case with
Prejudice, Denying Motion for Preliminary Injunction (ER 6-12).
California
Coalition therefore respectfully requests this Court grant the relief as requested in
the Motion for Preliminary Injunction or, in the alternative, permit additional
briefing in this appeal to adjudicate the district courts summary denial of the motion.
45
V.
68
VI.
CONCLUSION
69
CERTIFICATE OF COMPLIANCE
The undersigned certifies under Rule 32(a)(7)(C) of the Federal Rules of
Appellate Procedure and Ninth Circuit Rule 32-1 and 28-4, that the attached reply
brief is proportionally spaced, has a type face of 14 points or more and, pursuant to
the word-count feature of the word processing program used to prepare this brief,
contains 19,055 words, exclusive of the matters that may be omitted under FRAP
32(a)(7)(B)(iii). To comply with FRAP 32(a)(7)(B)(ii) (A reply brief is
acceptable if it contains no more than half of the type volume specified in
32(a)(7)(B)(i)) and to permit a single joint reply California Coalition limits type
volume of this consolidated reply to one-half the 50,000 total words in answering
briefs, consistent with the type-volume limit proportions of FRAP 32(a)(7)(B)(i)(iii). By separate motion, California Coalition has moved this court for permission
to file this brief in excess of type-volume limits. See accompanying Motion To
Dismiss.
Dated: February 4, 2015
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on February 4, 2015 per Federal Rules of Appellate
Procedure Ninth Circuit Rule 25-5(g).
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system. Any other
counsel of record will be served by facsimile transmission and/or first class mail
this 4th day of February, 2015.