CALIFORNIA COALITION FORFAMILIES AND CHILDREN., aDelaware Public Benefit Corporation,and COLBERN C. STUART, anindividual,Plaintiffs,vs.SAN DIEGO COUNTY BARASSOCIATION, a CaliforniaCorporation;
-i- OPPO. TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Colbern C. Stuart III Email: [email protected]4891 Pacific Highway Ste. 102 San Diego, CA 92110 Telephone: 858-504-0171 Facsimile: 619-231-9143 In Pro Se Dean Browning Webb (pro hac vice pending) Email: [email protected]Law Offices of Dean Browning Webb 515 E 39th St. Vancouver, WA 98663-2240 Telephone: 503-629-2176 Attorney for Plaintiffs California Coalition for Families and Children, PBC, and Lexevia, PC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, et al., Plaintiffs, v. SAN DIEGO COUNTY BAR ASSOCIATION, et al., Defendants Case No. 13-cv-1944-CAB (BLM) Judge: Hon. Cathy Ann Bencivengo OPPOSITION TO COMMISSION ON JUDICIAL PERFORMANCE, LAWRENCE SIMI, BRAD BATTSON’S MOTION TO DISMISS COMPLAINT Date: December 19, 2013 Time: 3:30 p.m. Courtroom:4C ORAL ARGUMENT REQUESTED SUBJECT TO COURT APPROVAL Complaint Filed: August 20, 2013
Transcript
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Colbern C. Stuart III Email: [email protected] 4891 Pacific Highway Ste. 102 San Diego, CA 92110 Telephone: 858-504-0171 Facsimile: 619-231-9143 In Pro Se Dean Browning Webb (pro hac vice pending) Email: [email protected] Law Offices of Dean Browning Webb 515 E 39th St. Vancouver, WA 98663-2240 Telephone: 503-629-2176 Attorney for Plaintiffs California Coalition for Families and Children, PBC, and Lexevia, PC
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, et al.,
Plaintiffs,
v.
SAN DIEGO COUNTY BAR ASSOCIATION, et al.,
Defendants
Case No. 13-cv-1944-CAB (BLM)Judge: Hon. Cathy Ann Bencivengo
OPPOSITION TO COMMISSION ON JUDICIAL PERFORMANCE, LAWRENCE SIMI, BRAD BATTSON’S MOTION TO DISMISS COMPLAINT Date: December 19, 2013 Time: 3:30 p.m. Courtroom:4C ORAL ARGUMENT REQUESTED SUBJECT TO COURT APPROVAL Complaint Filed: August 20, 2013
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TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................... 1
II. DISCUSSION .......................................................................................................... 1
A. Facts As Alleged ................................................................................................... 1
B. Defendants’ Burden on Sovereign Immunity at the Rule 12 Stage ..................... 6
C. Commission Defendants Ignore The Critical “Arm of the State” Analysis ........ 8
D. The Commission’s Proposed Expansive Interpretation of Eleventh Amendment
Immunity is Disavowed by Controlling Authority ................................................... 10
E. Commission Defendants Cannot Establish “State Level” Status On the Present
Record ....................................................................................................................... 13
1. The Commission’s Own Admissions Defy its Motion ................................... 15
2. Individual Claims: SIMI and BATTSON Have Not Shown Entitlement to
Eleventh Amendment Immunity for Their “Specific Functions” As Being State
While this issue is Defendants’ burden here, given that the Commission is
staunch independence from voter influence, it is hard to imagine that, even given
opportunity to assert the issue to trier of fact, the Commission could satisfy the
relevant test. The Commission appears not merely to operate an independent balance
sheet/budget from the State, but has actual ownership of hard currency funds. As
with its co-defendants Administrative Office of the Courts and Judicial Council, it’s
operation are highly insulated from voter control. It’s members are appointed by the
State Supreme Court or it’s Chairperson, Defendant Cantil-Sakauye. These entities
have created themselves as independent from the “micromanagement” of the
California State Legislature who, according to the former Chairperson of these
entities, “don’t understand” the operations of courts. See, Ronald M. George, Chief:
The Quest for Justice in California (2013), pp. 452-54. As an entity with
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independent funds, rules, control, and jurisdiction, the voters of the State have little or
no control over it—as intended by both the Commission and the State1—and is
therefore not entitled to the “dignity” of sovereignty available under Eleventh
Amendment immunity. See, e.g., Lake County, Hess, supra. Any injunction
regarding the Commission’s operations—all of which are by design distinct from the
State—would not bind the State of California. As such, any assertion of Eleventh
Amendment immunity appears futile.
2. Individual Claims: SIMI and BATTSON Have Not Shown Entitlement to
Eleventh Amendment Immunity for Their “Specific Functions” As Being State
Functions
As individuals, SIMI and BATTSON face even greater challenges to invoke
the “misguided engine of injustice” of Eleventh Amendment immunity. They must
show that the specific functions they are alleged to have performed are “State level”
functions, making them an “arm of the state.” Pennhurst, Zolin, supra. Such a
proposition is plainly futile on the present record, and would appear to be so on any.
In Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103,
1106 (9th Cir. 1987), the plaintiff, a public interest organization for the deaf, sued the
Los Angeles County Superior Court and its Jury Commissioner alleging injury
caused by the defendants’ refusal to provide sign-language interpreters to enable deaf
citizens to serve as jurors. Id. at 1107. The District Court tried the case (Greater Los
Angeles Council of Deafness, Inc. v. Zolin, 607 F. Supp. 175, 179 (C.D. Cal. 1984)),
finding that the County would be answerable to any damages charged to individual
employee defendants. The Court of Appeals found that on these facts, the individual
court employees were not entitled to Eleventh Amendment immunity. “A functional
approach governs the eleventh amendment's application to actions for money
damages against state officials. Such actions are considered to be suits against the
state, and thus barred, if ‘the state is the real, substantial party in interest.” Id. at 1110
1 Quest for Justice, supra, at 236-280; 453.
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(citing Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984)).
Because facts at trial showed that “the state treasury is not in jeopardy” for the
“specific functions” performed, the individual employees were not entitled to
Eleventh Amendment immunity. Zolin, 812 F.2d at 1110.
a. BATTSON and SIMI in “Official Capacity”
As with the Commission, the analysis for SIMI and BATTSON turns on facts
which cannot be derived from the face of the Complaint. The Commission references
Complaint paragraph 20 naming BATTSON in his official capacity, and therefrom
concludes that “the Complaint alleges only conduct pursuant to official duties.”
Comm. MTD 5:3-4. This assertion grossly misrepresents the allegations of the
Complaint. The Complaint avers numerous ultra vires acts, criminal acts, and acts in
furtherance of conspiracy. Sec. II.A, supra. Further, even while performing an
“official task”, to the extent BATTSON and SIMI were doing so in furtherance of a
criminal enterprise or conspiracy, each “ceased acting in his official capacity when he
actively participated in the criminal conspiracy among defendants.” Vierria v.
California Highway Patrol, 644 F. Supp. 2d 1219, 1240 (E.D. Cal. 2009). While
arguably certain of Mr. BATTSON’S activities were innocent official duties, the
Complaint alleges that at least the vast majority were not. The same analysis applies
to Mr. SIMI in his supervisorial and policymaker roles. Compl. ¶¶19, 152, 162-175.
b. BATTSON as Outside Counsel
The Commission’s assertion that Mr. BATTSON is similarly situated to the
outside attorney Defendant in Junho Hyon is also disingenuous. The Commission
MTD asserts—without foundation and in direct contravention to the Complaint’s
averments—that BATTSON is a “Commission Attorney.” (Compare MTD 5:6-7
“Commission Attorney” with Complaint ¶20 describing BATTSON as “an individual
employed as an investigator for DEFENDANT CJP. BATSON at all times herein
mentioned was the representative, agent, and employee of the CJP.”).
Whatever theory Commission may build for a jury, on the relevant question,
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the Complaint does not allege that Mr. BATTSON is a “Commission Attorney.”
BATTSON is a Commission employee participating in a criminal conspiracy and
enterprise, forebearing on his duty to investigate, oversee, and facilitate the discipline
of those over whom he has the power to “prevent or aid in preventing,” and aiding
and abetting in the commission of crimes setting in motion the events precipitating
the counts alleged against him. See, Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir.
1978); Starr v. Baca, 652 F.3d 1202, 1215-16 (9th Cir. 2011), cert. denied, 132 S. Ct.
2101 (2012); Vierria v. California Highway Patrol, 644 F. Supp. 2d 1219, 1240 (E.D.
Cal. 2009). He is also alleged to misrepresent his and the Commission’s duties,
policies, neutrality, role, and processes constituting obstruction of justice. Compl. ¶¶
112, 124, 129-136, 173-174, 184-89, These are not tasks of an outside licensed legal
representative, but the acts of a government employee acting ultra vires to his duties
to the citizens he is sworn to serve, while fraudulently misrepresenting that he is
fulfilling those same duties.2
The Commission’s Motion cannot carry the significant burden it faces in
achieving Eleventh Amendment immunity for itself or its employees. Given that the
Commission has raised this issue unexpectedly, Plaintiff was has not fully pled all
facts and evidence of which it is aware on this issue showing the Commission’s
2 ”An impartial and independent judiciary is indispensable to our legal system. Of equal importance is public confidence in the independence and integrity of the judiciary, because the effective functioning of our legal system is dependent upon the public's willingness to accept the judgments and rulings of the courts. (Cal.Code Jud. Conduct, com. to canon 1.) As a consequence, California judges must act in accordance with high standards of conduct that foster the utmost trust of the public. In 1960, as a means of attempting to meet the public's expectations with regard to a fair and impartial judiciary, and in order to enforce rigorous standards of judicial conduct, California established the first permanent state judicial disciplinary commission in the nation, the Commission on Judicial Performance (hereafter the Commission). (See Cal. Const., art. VI, § 8; Shaman & Begue, Silence Isn't Always Golden: Reassessing Confidentiality in the Judicial Disciplinary Process (1985) 58 Temple L.Q. 755, 756. . . . An independent state agency, the Commission is authorized to investigate complaints of judicial misconduct and other conduct prejudicial to the administration of justice, to file formal charges, to hold adjudicative hearings and make findings, to order less serious discipline on its own authority, and to recommend the imposition of more serious discipline—including removal from office—by this court. (Art. VI, § 18.).” Adams v. Comm'n on Judicial Performance, 8 Cal. 4th 630, 637, 882 P.2d 358, 361-62 (1994) (George, Assoc. J.)
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independence. Plaintiff hereby proffers a present ability to amend to plead such facts,
and requests permission to do so if the Court concludes that the issue is appropriate
for consideration at the Rule 12 stage.
3. Participation in the DDICE Enterprises Not a State “Central Function”
BATTSON and SIMI are alleged to be participants in the criminal RICO
ENTERPRISES relating to the Domestic Dispute Industry. Acts in furtherance of a
commercial psychology enterprise are not “central functions” of the State of
California or any State—and are as such should not be shielded by the fiction of
immunity. The Complaint accuses the peculiar practice of the San Diego County
Superior Court Defendants in embarking on an entrepreneurial frolic to operate a for-
profit psychological enterprise purposed to privately “evaluate” parent and children
litigants in a cloistered, off the record, no-holds-barred forum in which they are
stripped of all of fundamental rights as litigants, citizens, and parents—and extorted
with threats of manipulation of process utter even a hint of autonomy. Compl. ¶¶216-
230. Such practice is not—and by grace of God shall never be—a “central function”
of any government created to serve its people. Recent atrocities by state court judges
acting in criminal enterprise with private co-conspirators to abuse the most vulnerable
of litigants—children—“indecently, cavalierly, baselessly, and willfully . . . for
personal gain” have recently been exposed, condemned, and rightfully severely
punished in our federal justice system. See H.T. v. Ciavarella, No. 3:09-cv-0357
(ARC) (M.D. Pa.) (November 20, 2009 Memorandum and Order, p. 19); U.S. v.
Ciavarella, (3rd Cir. May 24, 2013).
Our own Circuit has wisely rejected extension of sovereign immunity to state
actors conspiring with private commercial enterprises. See, e.g., Del Campo v.
Kennedy, 517 F.3d 1070, 1077 (9th Cir. 2008); Mitchell v. Los Angeles Community
College Dist., 861 F.2d 198, 201 (9th Cir.1988). Courts in other Circuits are
similarly wary of defendants’ invocation of the “misguided engine of injustice” of
Eleventh Amendment immunity to shield government’s entrepreneurial aspirations.
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See, e.g., Stewart v. Baldwin County Board of Education, 908 F.2d 1499, 1509 (11th
Cir.1990); Tuveson v. Florida Governor's Council on Indian Affairs, Inc., 734 F.2d
730, 732 (11th Cir.1984).
F. All “Beneath State Level” Defendants Are Subject to Prospective Relief
The Eleventh Amendment does not bar actions for prospective declaratory or
injunctive relief against state officers in their official capacities for their alleged
violations of federal law. See Ex Parte Young, 209 U.S. at 155–56 (1908); Pennhurst
State School & Hospital v. Halderman, 465 U.S. 89 (1984); Natural Resources
Defense Council v. California Dept. of Transp., 96 F.3d 420, 422 (1996).
1. Protected Federal Civil Rights Reform, Exercise, Support and Advocacy
(“FFRRESA”)Injunctions
Prospective Relief Counts 1 and 2 pray for injunctive and declaratory remedy
against the Commission Defendants’ ongoing and future violations of federal law.
Prospective Relief Count 1 seeks prohibitions relating to harassment and intimidation
of Plaintiffs’ FFRRESA—petitioning state and federal authorities relating to federal
parental rights (“FFR”, Compl. ¶76), lobbying, asserting, and seeking enforcement of
state and federal laws and constitutions (Compl. ¶¶77-80)—caused in pertinent part
by Commission Defendants’ illegal acts, forebearance to act, aiding and abetting, and
deliberate indifference in facilitation of conspiracy relating to state court judges
within their duty and ability to control. Compl. Counts 1, 2, 6, 12-14; Racketeering
Claims for Relief 3-13. Commission Defendants’ Racketeering includes diverting
citizens through the Commission’s “remedial” process—a dead-letter office maze of
time and resource-consuming diversions, absorbing enormous effort but yielding no
effective relief. Tellingly, the Commission’s own published statistics show that less
than 1% of citizen complaints make it past the “open the envelope” stage, while
remarkably nearly half of government lawyer, media, or other judges’ complaint
receive legitimate treatment. The Commission offers “budget”, “staffing” and “lack
of detail in complaint” excuses, yet devotes no resources to advocating for citizens
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who submit legitimate, but imperfectly pled Complaints. Compl. ¶¶83-86, 96, 261.F,
resources that would otherwise go toward assisting unsophisticated citizens with
apparently serious, but inarticulate complaints to investigations of “preferred
complainant” government lawyers. Those citizens it captures in its maze receive
little attention or support, but instead more red tape, forms, requests for information,
and not surprisingly become frustrated or exhausted while their statutes of limitation
in federal court run. In a very real sense, the Commission’s very existence is an
obstruction of justice. Compl. ¶¶348-367.
Defendants’ ongoing pattern and practice of HARASSMENT AND ABUSE,
retaliation, chilling, and obstruction of DUE ADMINISTRATION OF JUSITCE of
Plaintiffs includes allegations of affirmative policy and practice—by action, failure to
act in breach of duty, or deliberate indifference—directed to each of the EQUAL
PROTECTION CLASSES (Compl. ¶¶193-200, 207, 395.E). Such behavior may be
enjoined.
Injunctive relief may include both declaration, injunction, and mandamus
against federal officers failing to act in the face of a clear duty to do so. 28 U.S.C. §
1361; Han v. U.S. Dep’t of Justice, 1993 WL 13011266 (C.A.9) at *16; Barron v.
Reich, 13 F.3d 1370, 1374 (9th Cir. 1994); Wilbur v. United States, 281 U.S. 206, 218
(1930). The Complaint alleges sufficient factual basis for such jurisdiction over
Commission Defendants as FEDERAL LAW ENFORCEMENT OFFICIALS.
Compl. ¶86 et passim. Instant Defendants’ have jurisdiction over, but are not
comprised of, judicial officials. Cal. Const. Art. VI, §§ 8, 18. Their breach of clear
non-discretionary PROFESSIONAL DUTIES to act or refrain from acting (Compl.
¶¶152, 201; Ex. 39:P2242-2246) may be enforced by injunction, including
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