Julian Assange: Google is not what it seems

"The fable has it that the boundaries of this sector are respected by actors from government and the “private sector,” leaving a safe space for NGOs and nonprofits to advocate for things like human rights, free speech, and accountable government.
        This sounds like a great idea. But if it was ever true, it has not been for decades. Since at least the 1970s, authentic actors like unions and churches have folded under a sustained assault by free-market statism, transforming “civil society” into a buyer’s market for political factions and corporate interests looking to exert influence at arm’s length. The last forty years has seen a huge proliferation of think tanks and political NGOs whose purpose, beneath all the verbiage, is to execute political agendas by proxy."

https://wikileaks.org/google-is-not-what-it-seems/

First Rhinos, then Elephants, now Pangolins

http://www.weightiermatter.com/law/ninth-circuit-court-appeals-briefing-monumental-challenge-family-court-immunity-constitutionality-today-underway/5063/

Family Court On Trial in Ninth Circuit: Judicial Immunity, Constitutionality Challenges Filed Today

OCTOBER 23, 2014 BY CCFCEDITOR 1 COMMENT

October 23, 2014—San Diego, CA—California Coalition for Families and Children, PBC, today announces filing of its Opening Brief with the Ninth Circuit Court of Appeals in California Coalition for Families and Children v. San Diego County Bar Association, Case No. 14-56140.

California Coalition’s Opening Brief

In the appeal, California Coalition asks the Ninth Circuit Court of Appeals to reverse rulings of the United States District Court for the Southern District of California made in July of this year.

California Coalition is advancing three arguments critical to families in domestic disputes.

1. Limiting Judicial Immunity For All Judges

First, California Coalition is asking the Court of Appeals to reexamine a critical 1986 case that extended broad judicial immunity to judges accused of wrongdoing in office.  Under the case–Ashelman v. Pope—county and state court judges today claim absolute immunity for any act in their “official capacity”—including crimes, corruption, malicious acts, and acts intended to harm litigants.

California Coalition argues that the startling broad immunity of Ashelman is inconsistent with the narrower judicial immunity stated in a 1978 United States Supreme Court case, Stump v. Sparkman.  California Coalition offers the Court of Appeals a meticulous analysis of the history of judicial immunity from the seminal 1872 case of Bradley v. Fisher, and its Twentieth Century progeny ofPierson v. Ray, Monroe v. Pape, and Pulliam v. Allen, explaining that the Ninth Circuit’s decision in Ashelman betrayed the Supreme Court’s instructions to examine whether a judge was performing a “judicial act” that was immune as of 1871—when the Civil Rights Act was passed into law by Congress.

From the brief’s Summary of Argument:

SUMMARY OF ARGUMENT

The Honorable Gladys Kessler, Senior Judge, United States District Court for the District of Columbia, in the preface to her 1,683-page Final Opinion in the fifteen-year-long United States v. Phillip Morris tobacco industry RICO litigation determining that tobacco product producers, scientific research firms, public relations firms, and their outside lawyers engaged in a fifty-year-long racketeering enterprise to conceal the lethal effects of smoking wrote:

Courts must decide every case that walks in the courthouse door, even when it presents the kind of jurisprudential, public policy, evidentiary, and case management problems inherent in this litigation.

Regarding the “role of lawyers in this fifty year fraud scheme,” Judge Kessler concluded:

What a sad and disquieting chapter in the history of an honorable and often courageous profession.

 United States v. Philip Morris, 449 F.Supp. 2d 1, 29 (2006).

The $50 billion annual divorce industry is a ravenous parasite on California families and children which has captured the public and private processes for resolving domestic disputes, perverted their legal functioning to the industry’s advantage, and monopolized the marketplace to exclude competitors offering legal, efficient, and far healthier alternatives to the divorce industry’s debaucherous sham.  To engage the obscene wealth and power of this orgiastic public-private enterprise, California Coalition marshals the “heavy artillery”  of racketeering and civil rights conspiracy laws, which notoriously require complex pleading, and pose unusual case management challenges in the district court.  MTJN Exs.1-4.  The complaints at issue are lengthy and detailed—as they must be.  The district court dismissed the FAC sua sponte on insufficient grounds not properly noticed or briefed in the Omnibus round because defendants failed to mount even a single persuasive attack in their mountain of specious paperwork.  In dismissing, the district court construed Rule 8(a)(2) contrary to the unambiguous language of the rule, criticizing length, “argument,” “verbosity” supportive detail, and multi-theory claims—none of which may be prohibited by law.

The dismissal with prejudice follows from the court’s improvident grant of Superior Court’s initial Rule 12(b)(6) motion, which attacked the complaint on Rule 8 “clarification” issues that are not enabled through a Rule 12(b)(6) motion.  Rather than deny the motion on defendants’ unwise insistence on dismissal with prejudice, the court dismissed with leave to amend, instructing California Coalition to plead “plausible facts” and “nonfrivolous argument,” imposing illegal restrictions on pleading, and repeatedly threatening Rule 11 sanctions for failure to comply—at a first hearing.  California Coalition complied as lawfully able, amending to plead “plausible facts” and “nonfrivilous argument,” unavoidably protracting pleading.  Both complaints satisfy the sole purpose of Rule 8—to provide defendants notice of the legal theories and factual foundations asserted.  The court and defendants cannot deny they had notice—they mounted hundreds of pages of pointed, aggressive attack in both pleading rounds.

The district court applied a startling scope of judicial immunity to claims against defendants “in their judicial capacity as officers of the court, running the family court system.” (ER 38), citing Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986).  ER 53.  Ashelman’s scope of immunity is starkly inconsistent with controlling Supreme Court authority which has repeatedly admonished that the “freewheeling” policy analysis contained in Ashelaman is error.  See Rehberg v. Paulk, 132 S.Ct. 1497 (2012).  Moreover, on any construction of judicial immunity, the affirmative defense cannot be derived from the face of the Complaint because it pleads around immunities and “admits” no defense.

Similarly, the district court granted the Commission on Judicial Performance Eleventh Amendment immunity without analyzing the Commission’s relationship the State of California, improperly relying on a single district court decision, Ricotta v. California, 4 F. Supp. 2d 961, 976 (S.D. Cal. 1998), that did not adjudicate the critical issue.

The court repeatedly backed its courtroom colloquy with vivid threats of Rule 11 sanctions, including improperly threatening California Coalition’s local counsel with sanctions as he was attempting to appear in the case. This threat so startled local counsel that he immediately withdrew his engagement, depriving California Coalition of highly-competent local counsel, amounting to deprivation of an impartial tribunal.

The district court erroneously denied California Coalition’s two motions for preliminary injunction without hearing or analysis, including (1) a motion for preliminary injunction regarding domestic violence restraining orders, and (2) a motion for preliminary injunction to protect appellants’ witnesses from ongoing harassment by the San Diego County Superior Court’s general counsel, Kristine Nesthus, who directed San Diego County Sheriff’s Department detectives and California Highway Patrol officers to threaten a half-dozen of California Coalition’s members, affiliates, process servers, and counsel.

Finally, in light of California Coalition’s defeat of San Diego County Superior Court’s two “cookie cutter” Rule 11 motions based on the same grounds as their two unsuccessful motions to dismiss, the district court’s denial of counter-sanctions to California Coalition was error.

California Coalition and the families and children who have yet to achieve a sustained voice in the courts of the United States are grateful for this Court’s generous attention to an over-length brief.  Defendants and the district court have demonstrated that the FAC provides notice sufficient to enable abundant ability to defend, and the court’s legitimate concerns may be dealt with through ordinary case management procedures.  California Coalition is acutely aware this action poses serious case management challenges for the district court, yet has proven a track record of proactive attention to litigation efficiency which will continue upon remand.

Appellants respectfully request relief as follows:

1. Reverse the July 9, 2014 dismissal with prejudice and remand with instructions that defendants shall filed answers to the complaint within 40 days;

2. Reverse the December 19 and 23 orders dismissing claims against judicial defendants as immune under Ashelman v. Pope and remand on instructions to proceed consistent with the historical analysis of immunity and function under Rehberg v. Paulk, and proceed with analysis of conspiracy claims involving judicial defendants consistent with the analysis of judge Caputo in Wallace v. Powell;

3. Reverse the December 23 order dismissing claims against the Commission on Judicial Performance and its employees under the Eleventh Amendment and California Constitution and remand with instructions to proceed with the necessity for receiving evidence prior to determining whether the Commission and its employees are alter egos of the State of California, or acting ultra vires to their duties;

4. Reverse the September 16, 2013 order (ER 67) finding appellant’s request for leave to file a motion for witness harassment restraining order as “moot” and remand with instructions that the district court to grant the motion, or grant leave to California Coalition to file a motion;

5. Remand the case to the district court with instructions that California Coalition shall be relieved of any requirement to obtain local counsel;

6. Grant Appellants leave or Rule 28-1(b) to incorporate briefing, or permit additional briefing regarding the preserved Motion for Preliminary Injunction (Doc. No. 109) (see sec. VI.H, supra); and

7. Reverse the December 23, 2013 denial of counter-sanctions to Stuart and remand with instructions that the district court award counter sanctions against the Superior Court of San Diego County in an amount consistent with the calculation offered in Stuart’ declaration sufficient to compensate Stuart and California Coalition for time expended in opposing both Rule 11 motions. Doc. No. 39-2.

From the brief section asking to reverse the Ninth Circuit’s 1986 Ashelman v. Pope decision:

California Coalition’s Motion to File the Overlength Brief Summarizes the Monumental Arguments of the Brief, Asking for Extra Pages

 The Supreme Court has repeatedly emphasized that an official claiming an affirmative defense of immunity bears the burden to prove that 1871 common law immunized the function accused in the complaint.  See, e.g., Malley v. Briggs, 475 U.S. 335, 339-340 (1986) (“Our initial inquiry is whether an official claiming immunity under § 1983 can point to a common-law counterpart to the privilege he asserts.”); Burns v. Reed, 500 U.S. 478, 498 (1991) (“An official seeking such immunity, however, must at the outset show that a “counterpart to the privilege he asserts” was recognized at common law in 1871, for “[w]here we have found that a tradition of absolute immunity did not exist as of 1871, we have refused to grant such immunity under § 1983.”).  The Supreme Court “has for that reason been quite sparing in recognizing absolute immunity for state actors.”  Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993).

…

The “function” analysis considers historical fact.  Malley at 342 (“We emphasize that our role is to 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.”); Tower v. Glover, 467 U.S. 914, 920 (1984) (“Section 1983 immunities are ‘predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.’”).

Courts investigating the intent of the 1871 42nd Congress have examined accounts of 1871 social and legal systems from Nineteenth Century caselaw, legal treatises, and the congressional record.  The Supreme Court undertook this historical analysis most recently in Rehberg v. Paulk,, 132 S.Ct. 1497 (2012), examining nineteenth century cases to determine that the function accused—testimony of a grand jury witness—enjoyed immunity at common law.  Id. at 1503-07.   Similar historical analyses are apparent in Monroe v. Pape, 365 U.S. 167, 172-85 (1961); Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 703 (1978); Pierson v. Ray, 386 U.S. 547, 559-62 (1967) (Douglas, J., dissenting); Owen v. City of Independence, Mo., 445 U.S. 622, 642 (1980) (“Nowhere in the debates, however, is there a suggestion that the common law excused a city from liability on account of the good faith of its authorized agents, much less an indication of a congressional intent to incorporate such an immunity into the Civil Rights Act”); Hoffman v. Harris, 511 U.S. 1060 (1994) (Thomas, J., dissenting from denial of cert.) (“The courts that have accorded absolute immunity to social workers appear to have overlooked the necessary historical inquiry; none has seriously considered whether social workers enjoyed absolute immunity for their official duties in 1871. If they did not, absolute immunity is unavailable to social workers under § 1983.  This all assumes, of course, that “social workers” (at least as we now understand the term) even existed in 1871. If that assumption is false, the argument for granting absolute immunity becomes (at least) more difficult to maintain.”); Kalina v. Fletcher, 522 U.S. 118, 132 (1997) (Scalia, J., concurring); and Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000) (finding no “firmly rooted tradition” of immunity for functions performed by private psychiatrists employed by prison).

An officer’s failure to prove up a common law analog is dispositive of the issue regardless of countervailing policy considerations. Rehberg at 1502-03 (“We do not simply make our own judgment about the need for immunity. We have made it clear that it is not our role ‘to make a freewheeling policy choice,’ and that we do not have a license to create immunities based solely on our view of sound policy.”).  Courts “do not have a license to establish immunities from § 1983 actions in the interests of what [the Court] judge[s] to be sound public policy.” Id at 922-923; Imbler v. Pachtman, 424 U.S. 409, 421 (1976) (“our earlier decisions on § 1983 immunities were not products of judicial fiat. . . .”).  Granting an immunity absent this historical analysis is error.  Scheuer v. Rhodes, 416 U.S. 232, 249-50 (1974) (“These cases, in their present posture, present no occasion for a definitive exploration of the scope of immunity available to state executive officials.”).

Superior Court Defendants proffered, and the district court undertook, no historical analysis of whether judicial defendants asserting immunities were performing functions immune at common law in 1871—both  merely citing Ashelman.  Doc. No. 16-1, 19; EER 48.  This fails to “affirmatively state” the defense, which was exclusively their burden.  Fed.R. Civ.P. 8(c); Rehberg, supra;Butler v. Elle, 281 F.3d 1014, 1021 (9th Cir. 2002).  The district court’s extending immunity on this record was error.

…

The district court’s order in reliance on Ashelman is error because Ashelman stands in error.  Ashelman held: “Judges and those performing judge-like functions are absolutely immune from damage liability for acts performed in their official capacities” and “[a]s long as the judge’s ultimate acts are judicial actions taken within the court’s subject matter jurisdiction, immunity applies.”  Ashelman at 1075, 1078.  Ashelman reached this analysis adopting a “four factor” test from the Fifth Circuit, as well as that circuit’s “policy” that the four factors “are to be construed generously in favor of the judge and in light of the policies underlying judicial immunity . . . to ensure independent and disinterested judicial and prosecutorial decisionmaking” and a policy of “liberal application of immunity.”  Id. at 1076, 77.  Ashelman extracted this analysis from Adamsv. McIlhany, 764 F.2d 294 (5th Cir. 1985), Dykes v. Hosemann, 776 F.2d 942 (11th Cir.1985) (en banc)), which in turn follow the Fifth Circuit’s seminal immunity case, McAlester v. Brown, 469 F.2d 1280 (5th Cir.1972).  Since Stump v. Sparkman, 435 U.S. 349 (1978), this analysis is error.

…

Six years later Justice White in Sparkman considered McAlester’s four factor test as well as “the relevant cases” from other circuits, including this Court’s decision in Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974).  Sparkman at 361.  He declined opportunity to adopt McAlester’s four factors, instead articulating a two factor test to determine whether an accused act is “judicial in nature”: (1) “the nature of the act itself, i.e., whether it is a function normally performed by a judge,” and (2) “the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.”  Id. at 362.

Sparkman thus rejected McAlester’s “precise act” factor, and de-emphasized McAlester’s focus on location of the act being in “chambers” relating to a “pending case,” or during a “visit” to a judge.  Id.  In rejecting McAlester’s factors Justice White cited favorably this Court’s decision in Gregory, which held that physically evicting a litigant from a courtroom is not an act “of a judicial nature.”  Sparkman at 370, fn. 10.  He also cited a Sixth Circuit decision, Lynch v. Johnson, 420 F.2d 818 (6th Cir. 1970), holding that a county judge who had a plaintiff “forcibly removed” from a “fiscal court” and jailed was not immune: “A judge does not cease to be a judge when he undertakes to chair a PTA meeting, but, of course, he does not bring judicial immunity to that forum, either.”  Id. at 820.  Clearly Justice White cited these examples to refute McAlester’s emphasis on “precise act”, and to emphasize that even if a judge acts “in chambers,” or relating to a “confrontation” or “pending” case, the judge’s “precise act” may not be “judicial in nature.”  After Sparkman, McAlester’s “discernment” from Bradley and Pierson was a dead end.

…

Appearing not to recognize Sparkman’s superior authority terminating McAlester’s four factor test, seven years after Sparkman, the Fifth Circuit in Adams resurrected and expanded the four factor test.  Adams at 297 (“The four factors generally relied upon by this circuit in determining whether an act is “judicial”…”) (emphasis added).  Adams analyzed under McAlester’s test rather than Sparkman, reciting the “official capacity” and “precise act” factors specifically rejected by Justice White.  Adams at 197.

Adams also proselytized the emergence of the “freewheeling” pro-immunity policy, citing to McAlester, Bradley, and Pierson.  These cases support nothing close to a “pro-immunity” policy.  See McAlester at 1282-83.  Indeed the Supreme Court has consistently observed the opposite policy: “This Court has . . . been quite sparing in recognizing absolute immunity for state actors.” Buckley at 269; Forrester v. White, 484 U.S. 219, 224 (1988); Burns v. Reed, 500 U.S. 478, 491 (1991); Kalina, etc.

…

In the Eleventh Circuit’s contemporaneous case of Dykes v. Hosemann, 776 F.2d 942 (11th Cir.  1985) dissenting Judge Hatchett expressed outrage at his majority’s immunity “policy,” accurately predicting nefarious consequence: “[T]he en banc court holds that judicial immunity is complete, unqualified, and without exception. . .  As the majority concedes, no precedent, Supreme Court or otherwise, requires such a broad definition and application of the judicial immunity doctrine.  [N]o policy considerations justify such a result. . . .  Judges . . . will be able to deal willy nilly with the rights of citizens without having to account for willful unconstitutional actions.”  Dykes at 954.  Judge Hatchett forewarned of judges conspiring with politicians to quash a political movement by illegally arresting and imprisoning its leaders:  “[I]n a state with a political climate which is hostile to freedom of association, a judge could repeatedly interfere with constitutional rights without being held accountable.”  Id. Though Judge Hatchett felt need to defend his prediction as not “far fetched,” his warning perhaps underestimated the lawless audacity of modern family courts—a notorious “climate hostile to freedom of association.”

Ashelman’s “Expansion” of Immunity is An Illegal Incursion Into Legislative Authority

No United States court can “expand” Sparkman.  Pierson and Sparkman’s controversial  “interpretations” of the Civil Rights Act have been apologetically qualified as the “outer perimeter” of Article III judicial power.  See, e.g., Pulliam v. Allen, 466 U.S. 522, 543 (1984) (“[I]t is for Congress, not this Court, to determine to what extent to abrogate the judiciary’s common-law immunity.”);Wood v. Strickland, 420 U.S. 308, 321 (1975) (“Absent legislative guidance, we now rely on those same sources”); Butz at 489.Ashelman’s “expansion” of Sparkman illegally “legislated” a narrower version of Section 1983.  “Just as a court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied, see Alexander v. Sandoval, 532 U.S. 275, 286–287 (2001), it cannot limit a cause of action that Congress has created . . .” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1388 (2014).

Section 1983’s facial clarity and the intent of Congress to hold judges accountable is incontrovertible.  Monroe v. Pape, supra. Ashelman’s disobedient “expansion” of Sparkman to cavort with the Fifth Circuit cases perpetuating the indulgent analysis ofAdams is a startling—indeed shameful —incursion into Article I sec. 2 cl. 1 congressional authority, rightfully condemned by the Supreme Court in Rehberg, and for generations prior:  “if it states a rule undesirable in its consequences, Congress can change it. We add only to the instability and uncertainty of the law if we revise the meaning of [the Civil Rights Act] to meet the exigencies of each case coming before us.” Monroe v. Pape, 365 U.S. 167, 185 (1961).

…

Most recently Judge Caputo of the Middle District of Pennsylvania in the infamous “Kids for Cash” Wallace v. Powell case analyzed the question head-on.  Judge Caputo found Luzerne County, Pennsylvania juvenile court Judges Mark Ciavarella and Michael Conahan “indecently, cavalierly, baselessly, and willfully” entered into extra-judicial conspiracies which “set in motion” deprivations of juvenile litigants’ rights to impartial tribunal. See Wallace v. Powell, 2009 WL 4051974 (M.D. Pa. Nov. 20, 2009).  Judge Caputo found that Judge Ciavarella was immune from the deprivations of the children’s’ rights to counsel and jury trial inside of his courtroom, but he was not immune for his actions in entering into conspiracies to build juvenile detention centers into which he sentenced the juvenile offenders because such acts were not functions normally performed by a judge. Wallace v. Powell, supra, at *9-11.  See Doc. No. 163 (Wallace v. Powell Memorandum of Order).

Consistent with Rankin, Judge Caputo found Ciavarella’s and Conahan’s behavior to be perversions of justice—the “antithesis of the ‘principled and fearless decision-making’ that judicial immunity exists to protect.”  Rankin at 847.  Such behavior not entitled to a “pro-immunity” policy, but punishment.  Id.; Imbler v. Pachtman, supra at 429 (“This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights on the strength of 18 U.S.C. § 242”).  The Supreme Court has for generations been, and today remains postured in accord.  See Rehberg, supra at 1507, fn. 1 (“Of course, we do not suggest that absolute immunity extends to all activity that a witness conducts outside of the grand jury room.”) (citing Kalina, Malley, and Buckley).

2.  Eliminate Judicial Immunity for Family Court Judges and “Custody Evaluators”

Second, California Coalition is asking the Ninth Circuit to reverse the district court’s ruling granting family court judges immunity for operation of the child custody evaluator operations that have beguiled, defrauded, and extorted families for many years.

Excerpts of the Record From the District Court Vol. I Contains the District Court Transcripts and Orders at Isssue

The brief details the history of family courts as a purely American invention of the mid-Twentieth Century—with no relationship to Nineteenth Century common law inherited from England.  Divorce, marriage, and separation in the Nineteenth Century were almost entirely religious rituals.  Yet modern courts have stepped in to take over many of these “church” functions, and in so doing, the brief explains, family courts have entered an area for which there is no absolute judicial immunity.  From the brief:

Judicial official defendants from divorce tribunals did not, and will not identify a common law analog to any modern divorce court function because at 1871 common law, no civil judicial tribunal possessed jurisdiction over marriage or divorce or child custody.  “It is elementary that in the early history of jurisprudence in England the common law courts exercised no jurisdiction over divorce cases, jurisdiction in such matters resting entirely with the ecclesiastical courts of the realm.” Peterson v. Peterson, 24 Haw. 239, 246 (1918).  Neither was child custody justiciable at common law, which without exception followed the rule that fathers retained sole custody of their children after separation or divorce.  King v. DeManneville, 102 Eng. Rep. 1054, 1055 (K.B. 1804); Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 LAW AND CONTEMP. PROB. 226, 234 (1975).

Post-revolutionary American States severed divorce and custody matters from civil courts by necessity of the church/state wall.  U.S. Const. Amend 1; McGowan v. State of Md., 366 U.S. 420, 443 (1961).  Every function relating to divorce was relinquished to the church side of the wall.  Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 227 (1963) (“the church . . . and church law usually governs such matters as baptism, marriage, divorce and separation, at least for its members and sometimes for the entire body politic.”).  The only civil function of divorce was related to property: Divorce cuts off inheritance, and remarriage reassembles it.  Paul H. Jacobson, American Marriage and Divorce (New York 1951).  Throughout the Nineteenth Century until about 1897, the civil process of divorce was performed by legislatures—not courts—granting a divorce in the same way a bill is made into law.  G. Howard, A History of Matrimonial Institutions 77 (1904).

American divorce law has no common law foundation; it is entirely a statutory creation.  Nineteenth Century states codified independent, often wildly different rules.  N. Blake, The Road To Reno, A History of Divorce in the United States 56 (1962).  States such as New York all but banned divorce, while others such as Massachusetts permitted it liberally.  Id.  In the Twentieth Century Nevada created a boom industry under liberal state law and the U.S. Constitution’s full faith and credit clause.  Id.

California’s “Family Courts” are a creation of the 1970s after the 1966 California Report on the Governor’s Commission on the Family.  L. Friedman, Rights of Passage: Divorce Law in Historical Perspective 63 OR. L. REV. 649, 667 (1984).  The function of “psychologist-as-judge” custody evaluator was unknown to a divorce courtroom until the mid-1990s “as the supply of psychologists continued to increase and stricter third-party payer regimens were imposed for mental health treatment (Gould, 2006). [C]ustody evaluation services generally are neither highly regulated nor institutionalized, but rather may be characterized as a cottage industry (Schepard, 2005).” Robert F. Kelly, Sarah H. Ramsey, Child Custody Evaluations: The Need for Systems-Level Outcome Assessments, 47 FAM. CT. REV. 286, 291 (2009).

On the church side of the wall, religious tribunals enjoyed no sovereign immunity for marriage and divorce rituals because unlike the church/state entity in England, American churches cannot be sovereigns, but are purely voluntary associations. Jones v. Wolf, 443 U.S. 595, (1979).  The “immunity” of a religious association is derived from the members’ First Amendment rights of association and free exercise.  Paul v. Watchtower Bible & Tract Soc. of New York, Inc., 819 F.2d 875, 883 (9th Cir. 1987).  Civil courts were prohibited from interference with religious ritual—including divorce—and thus given wide deference by civil institutions to “superintend” the faithful.  Id.; See also Watson v. Jones, 80 U.S. 679, 703 (1871); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1576-77 (1st Cir. 1989) (“we deem it beyond peradventure that civil courts cannot adjudicate disputes turning on church policy and administration or on religious doctrine and practice.”).

The Twentieth century expansion of family court jurisdiction into territory previously within the sphere of the church cannot annex the first amendment liberties of the church; a civil court is a sovereign, and cannot possess or acquire a right of expression or free exercise.  “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).  Indeed, a state law derived from a religious ideology may be a violation of the establishment clause.  See Van Orden v. Perry, 545 U.S. 677, 690 (2005).  Whatever “immunity” ecclesiastical tribunals may have enjoyed at common law, they are derivative of rights—not sovereignty—and thus non-transferable currencies upon the family court’s Twentieth Century annex of religious ritual.

3. Conform Illegal Restrictions on Civil Rights Claim Pleading 

Third, California Coalition sets for arguments that will make pleading for plaintiffs in civil rights cases easier.

Excerpts of the Record Vol. II of II Contains the Complaint the District Court Found Confusing

The district court in July dismissed California Coalitions’ lengthy 250 page brief, criticizing it for being “verbose.”  California Coalition acknowledge that its brief was lengthy and complex, but responded that the racketeering and complex civil rights conspiracy laws under which the complaint is pled are also complicated, and require such complexity.  California Coalition has asserted that the divorce industry operates as a unit—with judges, lawyers, psychologists, and a host of appendage “service providers” collaborating to defraud, extort, and harm unwary families in the crisis of a domestic dispute.  To do so, the brief argues, complex pleading is necessary.  California Coalition cites to a string of recent cases which acknowledge that after the 2006 Supreme Court case of Bell Atlantic v. Twombly, plaintiffs alleging conspiracies must plead much more detail supporting conspiracy theories, and therefore its lengthy, detailed complaint was appropriate.

California Coalition asks the Court of Appeals to articulate a “post-Twombly” briefing standard to recognize such practice.  From the brief:

The district court construed Rule 8(a)(2) inconsistent with Rules 8(d) and (e) to render restrictions Rule 8 does not give, such as prohibitions against concepts such as “prolixity,” argument, and length, or that a complaint be “manageable.”  The court lifted these concepts from pre-Twombly decisions of this Court in which a plaintiff was out of court proffering return by amendment, or where a disorganized complaint defeated even a single claim.  ER 46-47 (“argumentative, prolix, replete with redundancy, and largely irrelevant;” McHenry v. Renne, 74 F.3d 1172, 1177-80 (9th Cir. 1996); “verbose, confusing and conclusory,” Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981); or “impossible to designate the cause or causes of action attempted to be alleged in the complaint,” and Schmidt v. Herrmann, 614 F.2d 1221, 1223 (9th Cir. 1980)).  The court concluded from these cases that the FAC was defective because it contained “verbiage, argument, and rhetoric” (ER 49), “prolix, replete with redundancy,” “verbose,” (ER 10, 52), and “surplusage and argumentative text” (ER 11, 47).

These cases construe Rule 8 is contrary to the unambiguous meaning of the Rule.  “We give the Federal Rules of Civil Procedure their plain meaning. . . .  When we find the terms … unambiguous, judicial inquiry is complete,” Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123 (1989); In re Ioane, 227 B.R. 181, 183 (B.A.P. 9th Cir. 1998).  Rule 8(a)(2) requires merely that a pleading contain “a short, plain statement of the claim showing that the pleader is entitled to relief.”  It is a threshold, not a ceiling; it prohibits nothing.  “The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim. . . . The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.”  Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002).  See also Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1132 (9th Cir. 2008).  “Complaints just launch the case.” Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003).  “No technical form is required.”  Rule 8(d).  Rule 8 does not require a claim to plead a prima facia case, recite elements, track a jury instruction, or be persuasive.  Thomas v. Kaven, 765 F.3d 1183, 1197 (10th Cir. 2014) (“A complaint might sometimes contain sufficiently detailed facts to allow for a qualified immunity inquiry, but such is not the case here.”).  Rule 8 is a lower threshold of pleading than even the State of California’s liberal Code of Civil Procedure, which governs complaints as a whole, and requires complaints to be “certain” and “intelligible.”  Cal.C. Civ.P. § 430.10(f).

Claims may be pled in combination, in the alternative, and on inconsistent facts or theories, and “the pleading is sufficient if any one of them is sufficient.”  Id.  (emphasis added).  “[I]n the context of a multiparty, multiclaim complaint each claim should be stated as succinctly and plainly as possible even though the entire pleading may prove to be long and complicated by virtue of the number of parties and claims.” Wright & Miller, 5 Fed. Prac. & Proc. Civ., § 1217 (3rd ed.).  “Pleadings must be construed to do justice.”  Rule 8(e)(emphasis added).

The FAC “contains” many prima facia claims complying with Rule 8.  A prima facia case under section 1983 requires (1) action “under color of law” and (2) a deprivation of a constitutional right or a federal statutory right.  Parratt v. Taylor, 451 U.S. 527, 535-37 (1981).  A racketeering claim under 18 U.S.C. § 1962(c) requires (1) the conduct, (2) of an enterprise, (3) through a pattern (4) of racketeering activity.  Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495 (1985).  See Sec. VI.C.3 supra.

…

The district court’s reliance on McHenry, Nevijel, and Schmitd is further error as these cases are diminished after Bell Atl. Corp. v. Twombly, 550 U.S. 544, 548 (2007).  Judge Posner recently observed:

Since a plaintiff must now show plausibility, complaints are likely to be longer—and legitimately so—than before Twomblyand Iqbal. And anyway long before those decisions judges and lawyers had abandoned any effort to keep complaints in federal cases short and plain. Typically complaints are long and complicated. . . . 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 . . .

Unintelligibility is distinct from length, and often unrelated to it. A one-sentence complaint could be unintelligible.”  “The word “short” in Rule 8(a)(2) is a relative term. Brevity must be calibrated to the number of claims and also to their character, since some require more explanation than others to establish their plausibility —and the Supreme Court requires that a complaint establish the plausibility of its claims. . . .  But a complaint may be long not because the draftsman is incompetent or is seeking to obfuscate . . . but because it contains a large number of distinct charges.”

 Kadamovas v. Stevens, 706 F.3d 843, 844-45 (7th Cir. 2013).

…

The district court’s construction of rule 8 to reject “argument” and “surplusage” deprives California Coalition’s fundamental rights of due process, petition, and expression.  A district court—by rule, policy, or command—is restrained as any government from restricting the rights, privileges, and immunities of speech, petition, due process, and jury trial.  Hanna v. Plumer, 380 U.S. 460, 464-65 (1965). The Rules Enabling Act commands: “Such rules shall not abridge, enlarge or modify any substantive right.”  28 U.S.C.A. § 2072(b).  A district judge’s authority in giving orders on amendment is similarly restricted.  “All said about the rules of a district “court” must of course apply a fortiori to the rules of an individual judge.” 1988 Commentary to 28 U.S.C.A. § 2071 (West).

“Substantive rights” include rights of petition, expression, due process, and jury trial.  United States v. Wunsch, 84 F.3d 1110, 1119 (9th Cir.1996).  “The right of access to the courts . . . is founded in the Due Process Clause.”  Wolff v. McDonnell, 418 U.S. 539, 579 (1974).  The right to seek judicial redress is also guaranteed in the First Amendment. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972).  Rights of access are protected by the privileges and immunities clause of Article IV of the U.S. Constitution.  Chambers v. Baltimore & O. R.R., 207 U.S. 142, 148 (1907) (“The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship.”).

A complaint is perhaps the most important of the many petitioning events in litigation.  Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 648 (9th Cir. 2009).  A complaint against government officials the quintessential “petition.”  White v. Lee, 227 F.3d 1214, 1227 (9th Cir. 2000).  Even “chilling” such petition is illegal.  Id. at 1224.  A complaint is legitimate vehicle for alerting law enforcement, policymakers, interested third parties, and the public to lawlessness of public officials.  Nebraska Press Assn. v. Stuart, 427 U.S. 539, 606 (1976) (Brennan, J., concurring in judgment) (“[E]vidence implicating a government official in criminal activity goes to the very core of matters of public concern”).  Where prosecutors and judges are accused of criminal behavior the public’s interest in petition and expression is at its apex.  Morrison v. Olson, 487 U.S. 654, 727-728 (1988).  “It is as much his duty to criticize as it is the official’s duty to administer.’”  New York Times Co. v. Sullivan, 376 U.S. 254, 282-83 (1964) (internal citations omitted).

Restrictions to protect adjudicative process must survive high scrutiny.  Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991) (expression posing a “substantial likelihood of material prejudice”); Burlington N. R.R. v. Woods, 480 U.S. 1 (1987); Bus. Guides, Inc. v.  Chromatic Commc’ns Enterprises, Inc., 498 U.S. 533, 558 (1991)(sanctions permitted if “insubstantial” burden).  Even offensive or disruptive advocacy is protected.  Standing Comm. on Discipline of U.S. Dist. Court for Cent. Dist. of California v. Yagman, 55 F.3d 1430, 1436-37 (9th Cir. 1995).

A complaint enables important due process functions throughout the litigation such as defining the nature and scope of dispute, duties of disclosure, (see Rule 26).  It is a legitimate form of identification illegal behavior under settled law, but for plaintiff’s perspective of what should be illegal.  See, e.g., Neitzke v. Williams, 490 U.S. 319, 328 (1989) (“Close questions of federal law, including claims filed pursuant to 42 U.S.C. § 1983, have on a number of occasions arisen on motions to dismiss for failure to state a claim.”).  It is a vehicle to narrow issues, discover a defendant’s knowledge of facts, position, and admissions under Rules 8(b) and (c).  It frames Rule 12(c) or 56 motions, and sets foundation for relevance and issues at trial and on appeal.

Here, Stuart filed the original Complaint as a verified pleading and evidentiary foundation for an immediate Rule 65 motion for a Section 1514 witness harassment restraining order.  Prohibitions on the content of testimony are rarely legal.  Lane v. Franks, 134 S. Ct. 2369, 2379 (2014).

Construing Rule 8 to impose restrictions on “verbiage,” “rhetoric,” “argument,” “certain,” “manageable” and similar terms imposes invalid vague, and overbroad restrictions on fundamental rights.  Wunsch at 1119.  A pleader’s error in guessing at vague concepts risks pain of dismissal with prejudice—a deprivation of a Fifth Amendment right to remedy (See Marbury) and Seventh Amendment right to jury trial—Rule 11 sanctions—a deprivation of property and right to jury trial—and in the district court’s contemplation even a citation for contempt—a deprivation of liberty.  ER 12.  Vague restrictions are directly contrary to Rule 8(d): “No technical form is required.”

The district court’s expansion of Rule 8 to burden California Coalition’s fundamental rights and privileges with extra-textual construction was an egregious deprivation of fundamental rights, a violation of the Rules Enabling Act, and error.

Finally, California Coalition also requested the Court of Appeals find the district court judge’s unusual hostility toward California Coalition was so extreme that it deprived California Coalition of its right to a fair trial.  From the brief:

California Coalition’s Motion to Take Judicial Notice Attaches Copies of Other RICO Complaints Just as Lengthy and Complex as California Coalition’s

 The written transcript captures one aspect of the district judge’s unusual hostility toward appellants.  See ER 60-66; ER 59 (“laundry list of defendants”); ER 59-60 (“I will consider sanctions against you sir”); ER 64-65 (“have at it”); ER 26-27 (“not for me to do your homework, unfortunately”); ER 27 (I’ve had a moments where I was thinking about just sua sponte dismissing it.”); ER 23-24 (“that is your signature and you are attesting to it?”); ER 38 (“you’re really pushing your luck”); ER 28 (“you really want to do that?”).  Most of the judge’s utterances at hearing were accompanied by emphasizing intonation, facial expressions, or body language.  The judge’s hostility penetrated the July order, revealing that the court was considering a sua sponte citation of Stuart and California Coalition for contempt for filing the FAC.  ER 12.  The court ultimately declined to impose sanctions or contempt, yet the echo of those threats resonated throughout the case, foreseeably chilling Stuart and California Coalition’s advocacy.

The record better reflects the district judge’s hostility toward California Coalition’s local counsel, Mr. Adam Bram (erroneously identified in the transcript as “Graham”) while he was attempting to appear at hearing on February 26, 2014.  ER 38-39.  Mr. Bram had been engaged and working for California Coalition for several weeks.  Immediately after the recorded confrontation with the district judge, Mr. Bram terminated his representation of California Coalition and ceased all contact.

California Coalition respectfully submits that the district judge’s hostility rose to the level of a deprivation of impartial tribunal.  “The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases.”Marshall v. Jericho, 446 U.S. 238, 242 (1980).  “[I]t is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).  Interference with an attorney-client relationship is an actionable tort under California law.  See Skelly v. Richman, 10 Cal. App. 3d 844, 862 (Cal. Ct. App. 1970).

The district court’s pattern of unusual hostility, was excessive, impartial favoring defendants with whom she shares a professional community, and harmful error.  The error cannot be remedied by appellate relief alone.  However, California Coalition respectfully request that in the event of remand, this Court instruct that California Coalition be relieved of any requirement to obtain local counsel which might otherwise be required by a district judge under Southern District Local Rule  83.3 (c)(5).

Briefing on the appeal will continue through the fall and winter, with hearing expected in late 2014 or early 2015.

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