Case No. 14-56140 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, PBC, a Delaware public benefit corporation, COLBERN C. STUART, III Plaintiffs-Appellants v. SAN DIEGO COUNTY BAR ASSOCIATION, et al. Defendants-Appellees Appeal From The United States District Court For The Southern District of California Case No. 03-cv-1944 CAB (JLB) The Honorable Cathy Ann Bencivengo APPELLANTS’ JOINT CONSOLIDATED REPLY BRIEF Colbern C. Stuart III, J.D. President, California Coalition for Families and Children, PBC 4891 Pacific Highway Ste. 102 San Diego, CA 92110 Telephone: 858-504-0171 [email protected]Plaintiff-Appellant In Pro Se Dean Browning Webb, Esq. Law Offices of Dean Browning Webb 515 E 39th St. Vancouver, WA 98663-2240 Telephone: 503-629-2176 [email protected]Counsel for Plaintiff-Appellant California Coalition for Families and Children, PBC Case: 14-56140, 02/04/2015, ID: 9409771, DktEntry: 119, Page 1 of 79
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Case No. 14-56140
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, PBC, a Delaware public benefit corporation, COLBERN C. STUART, III
Plaintiffs-Appellants
v.
SAN DIEGO COUNTY BAR ASSOCIATION, et al.
Defendants-Appellees
Appeal From The United States District Court For The Southern District of California
Case No. 03-cv-1944 CAB (JLB) The Honorable Cathy Ann Bencivengo
APPELLANTS’ JOINT CONSOLIDATED REPLY BRIEF
Colbern C. Stuart III, J.D.
President, California Coalition for Families and Children, PBC
Blanchet, National Family Justice Center Alliance (Alliance Brf.);
DktEntry 111: City of San Diego, Jan Goldsmith, and Emily Garson (City Brf.);
DktEntry 114: Robert A. Simon (Simon Brf.)
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 mis-
statements 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. Appellants have filed an
accompanying motion to dismiss the “other grounds” arguments as untimely cross-
appeals 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 All “p.” page references follow ECF-stamped consecutive pagination (blue
typeset) if available. References to the district court docket (Doc. No.) similarly follow the district court’s ECF-stamped consecutive pagination, if available. Excerpts of record are referenced by party-assigned pagination.
Appellees devote substantial effort contesting the presumed-true fact
allegations of the FAC. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003)
(en banc). Statements of fact contrary to, or outside of, the FAC are inappropriate
and may be disregarded or stricken. Id. See accompanying Motion to Strike
Improper Excerpts. This counter statement section spotlights inappropriate fact
controversy.
A. The District Court Dismissed Under Rule 8(a)(2), Not 41(b)
Appellees assert inconsistent reasons for the district court’s dismissal—some
asserting merely Rule 8(a)(2), others asserting Rule 41(b). See, e.g., Fritz Brf. p. 7;
Jud. Brf. p. 37-40. The July 9 Order dismissing with prejudice references only Rule
8(a)(2). See AOB p. 34.
Doyne and Federal accurately recognize that the district court did not rely on
Rule 41(b), but Rule 8(a)(2) only (“This action is presented on appeal after the
district court dismissed Appellants' FAC with prejudice for failure to comply with
FRCP, Rule 8(a)(2).”). Doyne Brf. p. 8, 13; Fed. Brf. 12-13. Fritz identifies a
standard of review for only Rules 8 and 12. Lawyer Appellees assert the district
court dismissed pursuant to Rule 8. Law. Brf. p. 14, 15. ABC&K, Blanchet, Viviano,
Family Justice Center assert the same. ABC&K Brf. (DktEntry 95-1) 7, 14.
B. Judicial Appellees Distort and Contradict the FAC (DktEntry 51-1
and Joinders)
Judicial Appellees and joiners attempt to rewrite the FAC to erase California
Coalition to convert the case into a convenient “disgruntled litigant” claim.2 Jud.
2 The tactic coincides with Appellees’ improper re-assertion of Rooker-
Feldman and Heck v. Humphries defenses which re-attempt “disgruntled litigant” theories which Appellees lost below, and were not cross-appealed. The issues, and
Fritz controverts FAC allegation of “an extended series of conflicts between
California Coalition and the San Diego Family Law Community.” Frtz. Brf. p. 9.
Fritz asserts this action “has nothing to do” with the history between the parties
because “California Coalition did not come into existence until the very day before
the original complaint was filed in this case.” Id. He supports this controversion
with purported evidence he submitted in support of a pleading-stage motion below—
his Supp. ER 1. Frtz. Brf. p. 9. Bierer engages in similar controversy. Bierer Brf.
19-20.
The controversy ignores the allegations of the FAC:
(1) alleging California Coalition membership as “mothers, fathers, and
children who have withstood abundant hardship resulting from the current practices
of what is generally described as the “Family Law Community” (ER 121);
(2) that “since 2008 California Coalition has assisted mothers, fathers, and
children in defending and supporting family autonomy in relations with one another
and government interests with related jurisdiction” (ER 131) (emphasis added);
(3) that “California Coalition is active in protecting, empowering, and
promoting parents and children through education, community support, lobbying,
litigation, and public and private entity awareness” (ER 131);
(4) detail describing California Coalition’s long history of efforts to redress
those grievances through petition, expression, political action, and commercial
competition3 (ER ER 121-137);
3 “In February, 2010, California Coalition members learned of a Seminar to
be hosted by SDCBA for various San Diego Family Law Community” which California Coalition attended “to raise awareness . . . promote CALIFORNIA COALITION alternatives to what it regarded as illegal, harmful business practices
(5) FAC exhibits consisting of photographs and documentation dating
California Coalition’s operations for years prior to filing this action (FAC Ex. 28).
Fritz’s focusses on the distinction between California Coalition for Families
and Children, PBC, a Delaware public benefit corporation, and successor to
California Coalition for Families and Children, Inc., a California corporation formed
in 2008, which was merged with California Coalition, PBC upon its formation in
August, 2013. These transactions are referenced at Doc. Nos. 114, 129 (sealed
declarations of Colbern Stuart in opposition to motions of Eric Ching to withdraw).
The PBC successor entity is the only existing corporate entity.
2. Stuart v. Stuart and People v. Stuart
Fritz controverts the FAC by offering pleadings from Stuart’s family court
dissolution and City Attorney prosecution. See Fritz Supp.ER 1-50. The evidence
was not admitted below and is irrelevant to this appeal. See accompanying Motion
to Strike Improper Excerpts.
3. Stuart’s Bar Status
Fritz controverts FAC allegations that Stuart was “admitted to practice law in
California, Arizona, and Nevada” before his disbarment by Defendant Garson’s
illegal persecution. Frtz.Brf. p. 11. The district court considered Fritz’s credibility
attack below and resolved the attack against Fritz. See ER 54-55 (“You can
represent yourself, that’s not a problem.”).
The FAC concedes Stuart’s disbarment as part of the retaliatory prosecution
of Garson and Goldsmith. ER 192-193; AOB p. 19. The FAC accurately alleges
of the Family Law Community, and continue CALIFORNIA COALITION’S PUBLIC BENEFIT ACTIVITIES” (ER 136) (emphasis added) at which “CALIFORNIA COALITION created promotional pamphlets and exhibits to distribute, and large “poster”-sized signage to display, and organized volunteers to participate in the SDCBA ENGAGEMENT.” ER 137; Doc. No. 90-1, Exhibits 26-28.
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.
Plaintiff’s 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” 4 provide inaccurate statements of
standard of review. The district court’s July dismissed with prejudice for Rule 8
alone—it 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. Appellees sought dismissal on the “other
grounds” below under Rule 12(b)(6), review of which is de novo. Abagnin v.
AMVAC Chemical Corp., 545 F.3d 733, 737 (9th Cir. 2008).
4 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.”
a. The District Court Construed Rule 8(a)(2) Contrary to the Unambiguous Rule and Rules 8(d) and (e)
No appellee contests California Coalition’s 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
Coalition’s 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 court—likely because they were asserted
contrary to the multi-stage process set forth in Iqbal and Moss I. AOB p. 43.
8 The district court also recognized causes of action, stating: “It is a complaint
that is in the nature of the sort of thing I might expect to see from an uneducated person who is in custody who knows nothing about the law and has simply pulled out books and statutes and recited the causes of action without any recitation to facts or relationship to the defendants in the case.” ER 53 (emphasis added). Stuart—an intellectual property lawyer—was in custody when he drafted the Complaint (FAC ¶453; Doc. Nos. 114, 129, 155-1 (sealed)), did “pull out books” from jail libraries—there being nothing else to “pull”—and vigorously asserts the claims do not lack “recitation to facts or relationship to the defendants.”
Prospective Relief Count 2: Declaratory Judgment and Restraining Orders
(for Article III standing purposes) (FAC ¶¶1198-1203; ER 353-355).
The district court accused tagged passages as “pages of generalized
grievances about the family courts.” ER 47. The accusation is incorrect—each
tagged section provides necessary factual foundation for several claims. For
example, the district court may have regarded allegations describing California
Coalition’s 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 Coalition’s presence
and purposes in the domestic dispute industry’s 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.
It’s 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 Appellees understand the usefulness of acronyms—their answering briefs
define over a dozen. See “AOC” or “Administrative Office of the Courts” (DktEntry 51-1); (“AOB” or “Appellants’ Opening Brief” (DktEntry 45-1); “AJOB” is nowhere defined but presumably means “Appellants’ Joint Opening Brief”
Several Appellees repeat the district court’s 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
court’s 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.
(DktEntry 62); “CCFC OB” is nowhere defined but presumably references “California Coalition for Families and Children Openning Brief” (DktEntry 64-1); “OB” defined as “Opening Brief of Appellant” (DktEntry 64-1); “CJP or “Commission on Judicial Performance” (DktEntry 51-1); “AOC” or “Administrative Office of the Courts” (DktEntry51-1); “SDCBA” or “San Diego County Bar Association” (DktEntry 65-1); “SER-F” or “Supplemental Excerpts of Record-Federal” (DktEntry 65-1). “ACFEI” or “American College of Forensic Examiners International” (DktEntry 55); “CCFC” or “California Coalition for Families and Children” (DktEntry 60, 64-1); “SER” or “Supplemental Excerpts of Record” (DktEntry 51-1); “DSER” or “Doyne Supplemental Excerpts of Record” (DktEntry 64-1); “MTD” or “Motion to Dismiss” (DktEntry 51-1); “RJN” is nowhere defined but presumably references “Request for Judicial Notice” (DktEntry 64-1)
immunity may not be raised in a motion to dismiss.” Jud. Brf. 14. The AOB argues
the opposite—that immunity may be adjudicated on a motion to dismiss “in unusual
circumstances—where the face of the Complaint ‘admits’ the defense . . . ‘with
certitude.’” AOB 47. Commission Appellees did not assert that the original
11 Commission Appellees must prove these facts: (1) A money judgment
against the commission “would expend itself on the public treasury.” Dugan v. Rank, 372 U.S. 609 (1963); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Shaw v. State of California Department of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir.1986); (2) The specific acts accused in the Complaint were the exercise of state-level authority. Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987); and (3) The State of California would be bound by any injunctions issued by the district court below. Pennhurst, supra.; Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 400-401 (1979); Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 (1994). It is insufficient that the Commission may exercise a “slice of state power.” Id.
Complaint “admitted” the Commission as a State “with certitude,” and must concede
it asserted the opposite fact—the 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
court—Ricotta 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 understatement—Ricotta 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 court’s 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 Commission Appellees cite this Court’s 1998 unpublished decision in
Ricotta in violation of Circuit Rule 36-3(c). Commission Brf. p. 20, n.3. The illegal citation is aggravated by the fact that the Commission implies the Supreme Court’s denial of certiorari on Mr. Ricotta’s unsuccessful petition (528 U.S. 864 (1999)) supported the district court decision. Appellants respectfully request leave of Circuit Rule 36-3(c) to submit rebuttal (not authority) refuting the Commission’s citation to the unpublished decision. The Supreme Court’s denial of Mr. Ricotta’s petition on the unusual outcome of this Court’s (unpublished) opinion cannot be construed to affirm a finding that the Commission was entitled to Eleventh Amendment immunity. The district court’s (published) adjudication of Eleventh Amendment immunity issues (4 F. Supp. 2d 961 (S.D. Cal. 1998)) was not adjudicated in the unpublished decision. In an extremely unusual outcome, only a Rooker-Feldman issue that was not presented in the district court or on appeal was dispositive in this Court’s (unpublished) opinion, and thus on petition.
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 sitting—backed by
an indemnity agreement—plaintiffs surely would have pled their case differently. If
so, under Pierson and Sparkman Carillo’s 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 White’s 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 Ashelman’s
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 Ironically Justice Field’s rationale reveals profound distrust of the
institution he comprises. Conceiving a more disturbing “no confidence” vote is impossible. Field’s contemporaries were not so jaded. “I cannot bring myself to believe that officers in command would hesitate to give orders which a sense of duty required . . . from any idle apprehension of being harassed by vexatious actions." Dawkins v. Lord Paulet, L.R. 5 Q.B. 94, 108 (1869) (Cockburn, C.J., dissenting); Pulliam at 529-544; See also Pierson at 565 (Douglas, J, dissenting); Sparkman at
Modernly a judge’s distrust of her institutional colleagues is mitigated by
procedural barriers provided in Harlow v. Fitzgerald, 457 U.S. 800 (1982) and
Pearson v. Callahan, 555 U.S. 223 (2009) which protect against a mere “ascription”
of culpable intent. These are bolstered by Twombly’s plausibility test, and Rule 56
thereafter. 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 done”17 would have been better-
directed 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, 268-269 (1979) (hereinafter “Suing Judges”)
17 Connick v. Thompson, 131 S. Ct. 1350, 1365 (2011)
billion divorce industry over of a vulnerable core of our communities—families in
crisis—whose dishonest representatives have through schemes described in the FAC
defrauded, extorted, and blockaded access to federal remedies and institutions the
primary purpose of which is to prevent exactly such “expansion.” Ashelman and the
despotic exploitation it fosters must end today.
Appellants respectfully request this Court reverse the district court’s
interlocutory orders, utterances, and final orders, and shrink Ashelman to its well-
deserved grave.
3. Family Court Judges Cannot Identify an Accused Function that is Immune
No appellee refutes the fundamental truth that the 42nd Congress—and every
one before or since20—is forbidden to immunize most Family Court function. U.S.
Const. Amend. 1; McGowan v. State of Md., 366 U.S. 420, 443 (1961); AOB §
VI.D.4. Judicial Appellees cite three twentieth century cases, asserting “It is well-
established that judicial immunity applies to judges in divorce proceedings”: Duvall
v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001), Arnold v. Bostick, 339 F.2d 879,
880-81 (9th Cir. 1964), and Meyers v. Contra Costa County Dept. of Soc. Servs., 812
F.2d 1154, 1158-59 (9th Cir. 1986). Jud. Brf. p. 49. These support nothing close to
a “well-established” tradition at 1871 common law extending immunity to Family
Court functions accused in the FAC.
In Duvall this Court applied the “four-factor” test from McAlester
(inconsistent with Sparkman (See AOB 51-53)) to immunize a judge for failing to
accommodate plaintiff’s hearing disability at trial. Plaintiff argued denial of ADA
accommodation in the courtroom was an “administrative” act. This Court disagreed,
20 Including the California Legislature: “The Legislature shall make no law
respecting an establishment of religion.” Cal. Const. art. I, § 4; Cory v. Cory, 70 Cal. App. 2d 563, 569, (1945) (holding free exercise forbade divorce from considering “unpatriotic” religious beliefs in custody determination.).
because court reporters did not appear until the late 19th century).
Meyers supports California Coalition’s assertion that family court judges
exercise specific jurisdiction, and therefore if they have any immunity, it is narrow—
i.e., qualified—limited 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 Ashelman’s 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 Coalition—whether the Constitution’s 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 judge’s instructions. Id. If the Meyers plaintiffs had made an allegation of corruption or malice, California Coalition submits this Court could not—under any relevant authority—have justified extending immunity to the social workers or court employees. See Burns v. Reed, 500 U.S. 478, 486–487 (“The presumption is that qualified rather than absolute immunity is sufficient . . . .”).
Picking’s immunity holding because it preceded Tenney v. Brandhove. Tenney examined legislative speech privilege and is inapposite to Picking’s separate analysis of jurisdiction. See IV.D.3 infra. Picking’s observation of Article III jurisdiction is incontrovertible absent constitutional amendment.
23 And even more forceful dissents. See AOB 50-51.
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 Malley’s command we examine only congressional
intent.
The other half has found an absolute immunity in the unambiguous statute
because—it is said—“The 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, 554-
555 (1967). The “presumption” is as worthy as any speculation. It overlooks the
most obvious evidence of congressional intent—the unambiguous language of the
statute itself. Moreover, actual analysis of the congressional record, and history of
judicial immunity reveals Chief Justice Warren’s 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
presuming, he failed to conduct any analysis of the common law of judicial
immunity—citing only to Bradley’s (post-Civil Rights Act) holding and Scott v.
Stansfield, 3 Law Reports, Exchequer, 220.24 Pierson at 554. Chief Justice
Warren’s analysis went no deeper. Dissenting, Justice Douglas did go deeper,
supporting his forceful conclusion: “The Court's ruling is not justified by the
admitted need for a vigorous and independent judiciary, is not commanded by the
24 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.”
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
lawmaker’s behavior at a contempt hearing. Id.
Justice Frankfurter traced the history of English common law preserving
legislative privilege as derivative of liberty—an 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 presumed—analyzing no legislative history—that the 42nd Congress would
25 This Court found—correctly—no privilege. Brandhove v. Tenney, 183 F.2d
121, 124 (9th Cir. 1950). 26 That privilege is narrow: “The Senators and Representatives . . . shall in all
Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” The privilege is against arrest—not civil liability—does not extend to felonies or treason, or “breach of the peace”— a misdemeanor. Arrest outside of “Session” is permitted, and members maybe “questioned” for activity other than “speech or debate.” Tenney at 377 (citing Kilbourn v. Thompson, 103 U.S. 168 (1880) (false imprisonment not privileged); Marshall v. Gordon, 243 U.S. 521 (1917). Even so limited Jefferson was fearful of the power it gave legislators. Tenney at 375. Hamilton was not so fearful of “the least dangerous branch”—because it exercised no similar liberty. The Federalist No. 78 (Alexander Hamilton) (1788).
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 Privilege—Judges Are Sovereigns Possessing Not “Rights” but Delegated Authority
Judicial authority and legislative freedom are night and day. Judges exercise
jurisdiction as sovereigns—not 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 law—she is given law. Other than necessary for
faithful execution of the law, a judge’s “freedom of conscience” is irrelevant to
judicial function—relevant “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 Dissenting in Tenney, Justice Douglas observed that “No other public
official has complete immunity for his actions”—including of course judges. Tenney at 382 (Douglas, J., dissenting). “I see no reason why any officer of government should be higher than the Constitution from which all rights and privileges of an office obtain.” Id.
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 nation’s 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 Note’s 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 rights—to protect the people from unconstitutional action under color of State law, whether that action be executive, legislative, or judicial.
d. Congress Could Not Have Intended Bradley’s Immunity “Policy”
Bradley was decided in 1872—a year after Congress passed Section 1983.
Congress could not have had it in mind while debating Section 1983. It is thus
irrelevant in analysis under Rehberg and Malley’s command. Neither are twentieth
century “expansions” of Bradley relevant. E.g., Pierson, Sparkman, Mireles.
Justice Field’s articulation of policy in Bradley was innovative—not
descriptive.34 Bradley “expanded” Randall v. Brigham, 74 U.S. 523 (1868)35—the
first federal case to consider absolute judicial immunity. Every authority cited in
Randall is from an English autocracy our nation fought wars to become independent
of.36 See Randall n. 14.37
Justice Field’s 1868 statement of monarchical of immunity for superior judges
was:
Statement of David A. Clarke, Chairperson, Committee on Judiciary, Government of the District of Columbia on the Act of Dec. 29, 1979, 93 Stat. 1284, PL 170 LH, 1st Sess. (Dec. 29, 1979) (emphasis added).
34 “Certainly, no broad rule of immunity existed prior to Bradley. For most of the history of the common law, judges had only a very limited immunity.” Suing Judges at 256; Yale Note at 323-327 (“[J]udicial immunity was not a universal doctrine.”).
35 Justice Field’s doctrinal epiphany From Randall to Bradley is well-documented. See C. Swisher, S. Field, Craftsman of the Law (1930); G. White, The American Judicial Tradition at 84-108 (1976); Graham, Justice Field and the Fourteenth Amendment, 52 YALE L.J. 851 (1943); McCurdy, Justice Field and the Jurisprudence of Government-Business Relations 61 J. AM. HIST. 970 (1975); Westin, Stephen Field and the Headnote to O'Neill v. Vermont, 67 YALE L.J. 363 (1958); Suing Judges at 243-249, 254-256.
36 “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.” Thomas Jefferson to Charles Hammond, 1821
37 See Suing Judges at 224-43 (analysis of pre-Bradley primary sources).
[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
Field’s qualification was warranted. Analyses of 1871 common law reveal
predominating inconsistency—nothing 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).
Bradley’s innovative policy exhortation—though perhaps persuasive in case
it one day finds its way onto the floor of Congress—cannot inform us of
congressional intent in 1871. Far from controlling, Bradley is the germ of the
38 These cases distinguish between superior judges—which enjoyed a
statutory “cap” on money damages, and judges of limited jurisdiction, justices of the peace, and magistrates—who remained fully liable. Yale Note 325. Justice Field’s characterization of those sporadic decisions was hardly recognition of a “firmly-rooted tradition” of uniform broad immunity. Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000).
his withdrawal—constituting a California tort causing deprivations of due process
and impartial tribunal in the district court. In Litkey the district judge acted to protect
a legitimate interest—protecting process and court resources. The district judge
below possessed no interest in interfering with California Coalition’s professional
relationships.
Further, unlike Litkey and Pesnell, Appellants allege impartiality arising from
“extrajudicial” factors—the district judge’s common professional community and
personal interests with judicial defendants accused of judicial wrongdoing. See
AOB at 65-66.40
Appellees suggest the district judge was merely expressing “frustration” (Jud.
Brf. p. 70; Bierer Brf. (DktEntry 60) p. 7, 23). The December 19, 2013 transcript of
the initial hearing reflects the district judge was highly engaged the moment she
entered the courtroom. See ER 52-60 (forceful ruling before argument); ER 61-66
(forceful vitriol in instructing to amend; forceful rejection of Stuart’s request for
immediate certification). At hearing on February 26 the district judge characterized
the atmosphere of the December 19 hearing as a “vortex.” ER 26-27.
The record reflects no behavior by any party or counsel to contribute to a
“vortex,” or even “frustration.” To Appellants’ knowledge, parties and counsel have
remained unfailingly polite toward one another and the district court on and off the
record—even joining stipulation when available—despite that some maintain
strongly opposed interests. The district court’s denial of Superior Court’s two
40 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 court’s pattern of unusual hostility, was excessive, impartial favoring defendants with whom she shares a professional community, and harmful error.” To comply with this Court’s 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).
sanctions motions confirms Appellants have not behaved unprofessionally or in bad
faith. Appellants’ pleadings and papers are meritorious—though no doubt
uncomfortable for many. These circumstances seem incapable of inspiring a
“vortex,” indicating the district judge was motivated by extrajudicial concerns.
Unlike Pesnell, California Coalition does not allege “mere” impatience or
anger, but vitriol and threats of sanction—including citation for contempt—express
bias (“unfortunately . . . ”), repeated sua sponte advocacy, and for committing a tort
depriving California Coalition of necessary representation.
California Coalition respectfully submits that the pattern of behavior,
combined with the extremely uncomfortable consequence of placing California
Coalition in possession of a tort adverse to the district judge, together rises to “such
a high degree of favoritism or antagonism as to make fair judgment impossible”
(Litkey at 555) constituting a deprivation of due process and impartial tribunal
sufficient to justify the modest relief requested.
F. California Coalition Was Entitled to File Motion for Witness
Harassment Restraining Order
Judicial Appellees defend the district court’s refusal to grant leave to seek a
witness harassment restraining order by asserting Superior Court counsel Kristine
Nesthus’s threats and coordination of California Highway Patrol detectives and San
Diego County Sheriff’s deputies41 was legal under State law and a Southern District
general order. Jud. Brf. (DktEntry 51-1) p. 56. Appellees concede that accurately
41 Including California Coalition members or affiliates who posted unredacted
copies of the original complaint on the Internet, their internet website hosting service providers, and threatening of California Coalition’s process servers (ER 208-214; Doc. No. 115 (letter to district judge from fearful California Coalition witness), and counsel (Doc. No. Doc. Nos. 114, 129 (sealed oppositions to local counsel Mr. Eric Ching’s motions to withdraw)),
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 Court’s Two Failed Sanctions Motions Entitles California
Coalition to Counter-Sanctions
Judicial Appellees claim the Superior Court’s two failed motions44 for
sanctions based on the Superior Court’s 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 Gaiardo’s 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. Webb’s cured pro hac vice status); b (Lexevia’s 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 Superior Court sought sanctions asserting California Coalition had
“absolutely no chance of success under the existing precedents, and []no reasonable argument can be advanced to extend, modify or reverse the law as it stands[,]” Judicial Appellees SER 97-99.
Appellees concede or do not contest most of California Coalition’s Opening
Argument, warranting reversal. They instead argue “other grounds” which were not
adjudicated by the district court in an irregular cross-appeal. Those grounds also
fail, but this court need not reach that determination as Appellees’ concessions and
meritless arguments are alone sufficient to reverse and remand as requested in
Appellants’ Joint Opening Brief.
As an additional prayer, Appellants respectfully request this Court
determine that California Government Code § 6254.21 is unconstitutional in
violation of the First and Fourteenth Amendments to the United States Constitution,
and Article I §§ 2(a) and 26 of the California Constitution.
Respectfully Submitted,
Dated: February 4, 2015 By: s/
Colbern C. Stuart, III President, California Coalition for Families and Children, PBC, in Pro Se
Dated: February 4, 2015 By: s/ Dean Browning Webb, Esq. Law Offices of Dean Browning Webb Counsel for Plaintiff-Appellant California Coalition for Families and Children, PBC