In its ongoing Racketeering and Civil Rights litigation, California Coalition has recently engaged Kamala Harris, Attorney General for the State of California, on issues relating to the potential immunity of various statewide entities and county courts. Here we pass along our work product and summary advice to litigants and counsel considering a civil rights action against the State of California or a state agency.
The recent history of asserting civil rights claims against the State of California in U.S. District Court has evidence a series of failures by plaintiffs—particularly pro se plainitffs—in civil rights claims. The unfortunate trend has now created a “record” on which state agencies represented by the Attorney General are relying as “proof” that the State or various of its agencies are entitled to immunity from suit in federal court. This is a myth.
California Coalition has explained the issue in its briefing in the Racketeering and Civil Rights lawsuit against the State of California, and offers the briefing to litigants and counsel here. In short, the State of California and its top-level officers may be protected by Eleventh Amendment immunity for suits for damages—but not for prospective relief. However, the question of whether state agencies are also entitled is less clear than the Attorney General represents in litigation. The string of cases do not, as she has argued, foreclose the analysis necessary to determine whether an agency or its employees are in fact agents of the state. Before an agency or employee may assert immunity, they must prove their status as a sovereign. From California Coalition’s briefing:
Commission Defendants asserted only sovereign immunity under the Eleventh Amendment. The Commission made no attempt at a factual showing to establish that it was an “arm of the state” entitled to Eleventh Amendment immunity, instead relying on this Circuit’s precedent in cases extending Eleventh Amendment Immunity to the Commission without performing an “arm of the state” analysis required under Supreme Court and this Circuit’s precedents. See, e.g., Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir. 1987); Shaw v. State of California Department of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir.1986).
Plaintiff opposed arguing the Commission’s failure to establish it is a state or arm of the state, that Commission employees were acting ultra vires, and noted that dismissal of individual capacity claims is unavailable after Ex Parte Young. Commission Oppo. 21:4-24:11.
JUDICIAL DEFENDANTS assert an Eleventh Amendment Attack on Count 7 on behalf of Superior Court, Judicial Council, and Administrative Office of the Courts. Doc. No. 139, 5:20-6:12. BATTSON and SIMI attack at Doc. No. 134, 2. The attacks are analyzed jointly here.
The Supreme Court has construed the Eleventh Amendment to restrict federal jurisdiction over sovereign States unless the State consents. Hans v. Louisiana, 134 U. S. 1 (1890); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984). This construction is contrary to the clear language of the Eleventh Amendment, yet tolerated by some. Justice Stevens has described Eleventh Amendment jurisprudence as creating “two Eleventh Amendments,’ one narrow and textual and the other—not truly a constitutional doctrine at all—based on prudential considerations of comity and federalism.” Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 52 (1994) (Stevens, J, concurring) (citing Pennsylvania v. Union Gas Co., 491 U. S. 1, 23-29 (1989) (Stevens, J., concurring). Justice Stevens teaches that fictitious construction “is not merely misguided as a matter of constitutional law; it is also an engine of injustice. . . . [T]hroughout the doctrine’s history, it has clashed with the just principle that there should be a remedy for every wrong. See, e. g., Marbury v. Madison, 1 Cranch 137, 163 (1803). Sovereign immunity inevitably places a lesser value on administering justice to the individual than on giving government a license to act arbitrarily.” “Arising as it did from the peculiarities of political life in feudal England . . . sovereign immunity is a doctrine better suited to a divinely ordained monarchy than to our democracy.” Hess at 53-54.
Entities “beneath state level” are not co-equals with the United States, and may not escape the jurisdiction of federal courts. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397 (1997); Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978); Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987). When an entity attempts to assert itself as a sovereign, it must establish its status. Id.; Wolfe v. Strankman, 392 F.3d 358, 364 (9th Cir. 2004). A government entity that is not a state may is not entitled to State status “unless it is simply ‘the arm or alter ego of the State.” Moor v. Alameda Cnty., 411 U.S. 693, 717 (1973). “Alter-ego” is a question of fact, the burden of proving which rests with the party asserting it. Id.; Butler v. Elle, 281 F.3d 1014, 1021 (9th Cir. 2002). “We must look behind the pleadings to determine whether a decree in the case would operate in fact against the sovereign. If the judgment would actually run against the state treasury, the action is barred.” Zolin at 1110. A trier of fact must look to whether the “beneath State level” entity is accused for activity that is (1) a “State level” function, (2) controlled by the State, (3) for which the State is liable and (4) the State will be bound for any injunctive remedy sought. Id.; Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464 (1945). This analysis is necessary for any “beneath State level” entity—both individuals and municipalities—accused of a function that is an “arm of the State”: Where such facts are not apparent from the face of the Complaint, the defense is not apparent “with certitude. Gray v. Evercore Restructuring L.L.C., 544 F3d 320, 324 (1st Cir. 2008). Where facts necessary to prove an element of a claim are beyond control of a Plaintiff, they may be alleged generally, and a motion to dismiss prior discovery is inappropriate. Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997).
Federal courts approach assertions of Eleventh Amendment immunity with suspicion. “By its terms, the protection afforded by [the Eleventh] Amendment is only available to ‘one of the United States.’ It is true, of course, that some agencies exercising state power have been permitted to invoke the Amendment in order to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself. But the Court has consistently refused to construe the Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a `slice of state power.’ ” Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 400-401 (1979). In Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 (1994), the Supreme Court declined to extend Eleventh Amendment immunity to an entity owned and operated by two States, reasoning that entities “not subject to the unilateral control of any one of the States that compose the federal system” were too distant from “voters who may exercise their will to direct state policy,” and thus not entitled to the cloak of sovereign immunity. Id. at 42. Such “joint control” entities—even though operated by States themselves—are not entitled to immunity “[u]nless there is good reason to believe that the States structured the new agency to enable it to enjoy the special constitutional protection of the States themselves, and that Congress concurred in that purpose.” Id. at 43-44 (citing Lake County, supra). Both Courts in Lake County and Hess declined to extend Eleventh Amendment immunity to State-level entities despite complete control by the States. Id.
In our own Circuit, extending Eleventh Amendment immunity to non-State entities has been described as “strong medicine,” and has been undertaken with caution by federal courts. See, e.g., Del Campo v. Kennedy, 517 F.3d 1070, 1075 (9th Cir. 2008); N. Ins. Co. of New York v. Chatham Cnty., Ga., 547 U.S. 189, 194 (2006); Alden v. Maine, 527 U.S. 706, 713 (1999); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 143 (1993). Caution in doing so her would seem wise.
1. Defendants Fail to Establish Sovereignty
Entities that are not States, but seek to defend themselves as if they were a State, must prove entitlement to State status in two steps: “The first step of the analysis concerns how the State has structured the entity.” Fresenius Med. Care Cardiovascular Res., Inc. v. Puerto Rico & Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 65 (1st Cir. 2003). Relevant factors include (a) the extent of state control over the entity, (b) whether the state appoints controlling members, (c) how the enabling legislation characterizes the entity, (d) whether the state has “veto” power over the entity’s actions, (e) whether the entity’s functions are readily classifiable as state functions or non-state (local or non-governmental) functions, and (f) whether the state bore legal liability for the entity’s debts. Hess at 44–46. In the second step, “the vulnerability of the state’s purse is the most salient factor in the Eleventh Amendment determination. Where it is clear that the state treasury is not at risk, then the control exercised by the state over the entity does not entitle the entity to Eleventh Amendment immunity.” Fresenius 65.
The OMNIBUS (Doc. No. 131-1, 12:1-12), BATTSON and SIMI (Doc. No. 134, 2-3), and the SUPERIOR COURT, AOC, and JUDICIAL COUNCIL separately (Doc. No. 139, 5:20-6:12) fail to traverse this analysis to make the factual showing to establish status as a sovereign.
Sovereignty Cannot Be Established by Preclusion
Instead of traversing the analysis, some Defendants cite other district court adjudications of Eleventh Amendment issues for the proposition that “it is well-established that such entities are arms of the state.” The tactic invites clear error.
SIMI and BATTSON cite district court opinions which involved their employer—the Commission on Judicial Performance—not its individual employees. Moreover, the cases cited involved unsophisticated pro se plaintiffs, the courts were not asked, and did not conduct, a “real party in interest” analysis. In Ricotta v. California, 4 F. Supp. 2d 961, 976 (S.D. Cal. 1998) this District Court was not requested to perform analysis of the relationship between the Commission and the State of California. This lack of analysis appears to follow from a poorly-pled complaint by a near-hysterical pro se plaintiff. The opinion reflects no awareness, much less analysis, of the Commission’s status as a “below-State level” entity aspiring to Eleventh Amendment immunity as an “arm of the state.” As the pro se plaintiff failed to recognize the issue, the court extended Eleventh Amendment immunity to the Commission on the Commission’s motion to dismiss, with no substantive analysis of the Pennhurst or Zolin real party in interest test. Id.
In Junho Hyon v. Sei Shimoguchi, No. CIV 12-1235 JAM EFB PS, 2012 U.S. Dist. LEXIS 74100 at *4 (E.D. Cal. May 29, 2012), plaintiff pro se proceeding in forma pauperis, alleged a Commission “staff counsel” was “negligent” in performing her duties “in violation of Federal Rule 1.01”. Without reaching the issue of whether there was, in fact, a “Federal Rule 1.01,” the District Court determined that “[t]he claim against Shimoguchi is also barred by the Eleventh Amendment since plaintiff’s claims against Shimoguchi are based entirely on Shimoguhi’s conduct in carrying out his/her official duties . . . .” Id. at *5. Like Ricotta, the pro se plaintiff failed to allege activity other than “negligent” performance of ordinary job responsibilities, and the court undertook no substantive analysis of the “State level” issue not raised by plaintiff. Id.
Similarly, in Borchardt v. Reid, CV 08-3086 DOC, 2008 WL 4810791 (C.D. Cal. Oct. 31, 2008) a pro se plaintiff sued various entities including the Judicial Council, Commission on Judicial Performance, AOC and county officials. Id. at *3. Defendants moved to dismiss for lack of jurisdiction under the Eleventh Amendment. In granting the motions, the District Court performed no “arm of the state” analysis under Zolin, Pennhurst, and Hess whatsoever, merely summarily concluding “plaintiff has sued the following state officials” and listing each defendant—including even the county officials which are clearly not arms of the state. Id. at *3. Borchardt’s summary analysis is error in light of Zolin, Hess, and Pennhurst’s “arm of the state” test. Defendants’ assertions that cases which failed to adjudicate the “arm of the state” test “settle” any Eleventh Amendment issue is frivolous. See Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (no preclusion absent an adjudication on the merits).
BATTSON and SIMI’S employer can clearly notch its belt for deflecting a series of pro se plaintiff cases with motions to dismiss similar to the one it presents here—without any argument relating to the critical “arm of the state” test it must achieve. See Zolin, Pennhurst, supra. The streak ends here.
Defendants cite these prior rulings not as legal authority, but in a reach for an issue preclusion here. In order to preclude litigation of the Eleventh Amendment affirmative defense not previously litigated here or anywhere between these parties, defendants must establish parities of parties, facts, or issues necessary for a preclusion. They cannot, and the rulings of other district courts are a nullity in this courthouse. See White v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012).
Defendants Cannot Establish “State Level” Status On the Present Record
The FAC does not name the State of California, does not concede that the State is the “alter ego” of any defendant, or that any defendant is the State of Californi’s “arm.” Defendants therefore are faced with the burden of proving that the face of the FAC establishes that they are otherwise entitled to Eleventh Amendment immunity “with certitude.” Gray v. Evercore, supra. Defendants’ burden in proving an entitlement to immunity will be significant. They must establish:
(i) State Financial Liability: “The general rule is that a suit is against the sovereign if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,’ or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act.’” Dugan v. Rank, 372 U.S. 609 (1963); Pennhurst, supra; Edelman v. Jordan, 415 U.S. 651, 663 (1974); Shaw v. State of California Department of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir.1986).
(ii) State Authority: The legal authority or jurisdiction, if any, the entity or individual asserting immunity is acting under, both generally and with respect to the specific acts accused. The scope of the authority and nature of the acts and other facts relating to the alleged malfeasance has also been an issue often in contention. Zolin, supra;
(iii) State is Bound: Whether any equitable relief on the individual would effectively bind the State of California. Pennhurst, Zolin, supra.
Defendants have failed this undertaking, and their motions may be denied on this basis alone.
2. Defendants Have Waived or Consented to Federal Jurisdiction in Due Process and Equal Protection Claims
“Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000). The Fourteenth Amendment to the United States Constitution provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Amend. XIV, sec. 1. The Amendment, passed by representatives of the States in the Senate, and Congress as a whole in 1868, nearly 84 years after the 1795 ratification of the Eleventh Amendment constitutes unequivocal consent by the states, through their representatives in the Senate, to be bound by this federal law. The Amendment specifically prohibits “States”, and specifically grants rights to “citizens of the United States.”
Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in § 1 by enacting “appropriate legislation.” Amend. XIV, § 5; Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 365 (2001). The subsequent passage of the 1871 Civil Rights Act, modernly codified as sections 1981-1988 of Title 42 containing the sections 1983, 1985, 1986, and 1988 under which this Action is brought, also enacted through a majority of the Senate and the House of Representatives, was a specific embodiment of Congress’ power under section 5, empowering citizens to bring suit under the Fourteenth Amendment, and further articulating the State’s consent to be sued in federal court for its violations of the Fourteenth Amendment.
3. States are Not “immune under the Eleventh Amendment” for Discrimination
Title 42 U.S.C. 2000d-7 provides:
(a) General provision
(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 794], title IX of the Education Amendments of 1972 [20 U.S.C. 1681 et seq.], the Age Discrimination Act of 1975 [42 U.S.C. 6101 et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
(emphasis added). The States of California receives generous funding from federal taxation through sources far too numerous to list, including interstate highways, education, agriculture, housing and urban development, energy, justice, labor, social insurance and welfare, and medical insurance, subsidies, and special funding. Many of these federal funds find their way directly to present defendants in programs relating to child care, social services, domestic violence (VAWA) programs, incentive “matching” payments to States for child support enforcement and family programs under Titles I, IV-A and –D, X, XI, XIV and XVI of the Social Security Act and the Act of July 5, 1960 (24 U.S.C. chapter 9)—funds delivered directly to Family Court government entities administering the policies, conspiracies, and enterprises accused herein. Family Court orders enjoy full faith and credit recognition and enforcement in all States under 28 U.S.C. § 1738 (“Acts, records, and judicial proceedings” of “any State … of the United States … shall have the same full faith and credit in every court within the United States … as they have by law or usage in the courts of such State … from which they are taken.”) and in federal courts and military courts under 18 U.S.C. §§ 2261(a)(1), 2265 (FAC ¶962). White v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012). Family Court child support orders may be enforced in foreign Countries through bilateral international treaty between the United States and foreign nations, and are enforceable by the U.S. State Department in refusing to issue, honor, or revoking passports of U.S. citizens. 42 U.S.C. §§ 652(k), 654(31). There are perhaps no local government entities more tightly interwoven with and dependent upon United States laws, treaties, and institutions for funding, operation, and enforcement for their orders and decrees than Family Courts.
As present defendants are recipients of federal financial assistance, they are subject to suit in federal court for violations of the Fourteenth Amendment for Actions brought under the Civil Rights Act—a “Federal statute prohibiting discrimination.” 42 U.S.C. § 2000d-7. This Action asserts numerous such violations against the EQUAL PROTECTION CLASSES. FAC ¶ 163, and each section 1983 Claim. As Defendants in their official capacities have received abundant benefits of federal resources and laws, they have subjected themselves to the jurisdiction of that sovereign in claims they have not administered those resources according to federal law. Even if mere “arms of the state”, all defendants are subject to suit in this courthouse.
4. Individual Defendants Have Not Shown Entitlement to Sovereignty for Their “Specific Functions” As Being State Functions
BATTSON, SIMI and certain individual JUDICIAL DEFENDANTS appear to assert status as sovereigns. Individuals face even greater challenges to invoke the “misguided engine of injustice” of the Eleventh Amendment. 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 sovereignty status. “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 (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.
Ultra Vires Acts Are Not Immune
The FAC avers numerous ultra vires acts, criminal acts, and acts in furtherance of conspiracy. Each claim asserting California Constitution Article I, sec. 26 is an assertion of ultra vires activity that cannot be actions of the State of California. California Constitution Art I, § 26 (Count 13, FAC ¶ 493). See Ex parte Virginia, 100 U. S. 339, 348-349 (1880); Ex Parte Young, 209 U.S. at 155–56 (1908). Further, even while performing an “official task”, to the extent any individual defendant was furthering 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 individual activities were innocent official duties, the FAC alleges many that were not.
Individual Defendants have not, and cannot carried the significant burden they faces in achieving sovereignty Eleventh Amendment immunity.
Participation in Private Enterprise Not a State “Central Function”
Individual Defendants 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. 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). The Third Circuit Court of Appeals affirmed the criminal RICO conviction of a Pennsylvania state court judge involved in that “kids for cash” public corruption in United States v. Ciavarella, 716 F.3d 705 (3d Cir. 2013) (RICO criminal conviction of honest services and mail fraud affirmed). See Plaintiffs’ RJN Ex. A.
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. 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).
5. All “Beneath State Level” Defendants Are Subject to Prospective Relief
As the Complaint articulates several bases for invoking equitable remedies against all Defendants, Eleventh Amendment sovereign immunity cannot shield them from this Court’s plenary jurisdiction to enforce federal law. 18 U.S.C. § 1964(a); 28 U.S.C. §§ 2201-2202; 28 U.S.C. § 1337; 15 U.S.C. §§ 1116(a), 1117, 1118; 42 U.S.C. § 1988(a); Fed.R.Civ.P. 57, 65. The Eleventh Amendment does not bar actions for prospective declaratory or injunctive relief against state officers in their official capacities for 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). 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). False description of services and facilitation of unfair business practices may be enjoined in federal court. 15 U.S.C. §§ 1116(a), 1117, 1118, 1125; Bus & Prof. C. §§ 17200, 17500. Racketeering is subject to prohibition, mandamus, divestiture, and other equitable remedies exclusive to United States courts. 18 U.S.C. § 1964(a), (c), and (d).
Standing to Issue Injunctions
BATTSON and SIMI assert an attack in their Eleventh Amendment jurisdictional defense analysis that should be asserted through an attack on Plaintiff’s standing to assert prospective relief. Because Defendants raise it here it is addressed here.
SIMI and BATTSON assert that this Court lacks the authority “to force Defendants Simi and/or Battson to take any particular action” (BATTSON, SIMI Doc. No. 134, 2, fn. 2) citing Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973). The assertion that a United States District Court cannot enjoin color of state law actors from violating citizen rights is staggering. Linda R.S. did not re-write the Fourteenth Amendment, but is an early case in what was in 1973 the Supreme Court’s developing Article III standing doctrine on the third “speculative” prong, later articulated in more mature form in Lujan, infra.
In Linda R.S., Plaintiff, an unwed mother, was unsuccessful in obtaining child support from her child’s father. She sought assistance from authorities to prosecute the father under a Texas child support enforcement law. The District Attorney refused to prosecute, articulating the despicable proposition that Texas courts construed the law to apply only to the benefit of “legitimate” children.
Plaintiff filed suit in district court, requesting “an injunction running against the district attorney forbidding him from declining prosecution on the ground that the unsupported child is illegitimate.” Linda R.S. at 616. She asserted an equal protection violation against a prosecutorial policy discriminating against “illegitimate” children. Id. The Court declined to reach the equal protection question, instead holding that Plaintiff lacked standing to force prosecution of the father because she “made an insufficient showing of a direct nexus between the vindication of her interest and the enforcement of the State’s criminal laws.” In other words, she could not show that enforcement of the law (jailing the child’s father), and the “vindication of her interest” in the care of her child—the father’s payment of child support.
This “nexus” argument was developed in subsequent decisions in L.A. v Lyons and B.C. v. Plumas, and is today recognizable as the third “speculative” prong described in Lujan. “Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
BATTSON and SIMI appear hopeful of establishing a rule that state administrators cannot be liable or subject to injunction for policies to refrain from enforcing equal protection laws on the behavior of those over whom they have the power and duty to control if, so long as possible injuries from unequal treatment are “speculative.” This of course ignores the fact that the very existence of behaviors and policies depriving a vulnerable class of citizens equal protection of the laws is in and of itself an outrageous affront to equal justice. Whether a plaintiff can “prove” injury from such an outrage is a response that only a lawyer—and deprived one even at that standard—could celebrate.
Moreover, in addition to being an outrageous insult to perhaps the most fundamental of our nation’s civic values of equal protection of the law (See Ex parte Commonwealth of Virginia, 100 U.S. 339, 345 (1879), U.S. Const., Amend XIV), is inconsistent with the ruling in Linda R.S. First, BATTSON and SIMI are not prosecutors—they’re administrative supervisors who, like any supervisor, may discipline their subordinates. While judges are perhaps entitled to a higher degree of autonomy for acts within their judicial discretion (none of which are accused in this Action), the act of policymaking, administering courts, a “forensic psychology” commercial enterprise, family law facilitator offices, equal protection violations, state constitutional violations, and crime, are not within judicial discretion, are not judicial functions, and are properly the subject of judicial discipline regardless of amenability to suit for civil damages or injunction. See, Imbler v. Pachtman, 424 U.S. 409, 424 (1976) (“We emphasize that the immunity of prosecutors from liability in suits under § 1983 does not leave the public powerless to deter misconduct or to punish that which occurs. 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 criminal analog of § 1983.”). A citizen’s imposed incapacity to protect herself does not excuse others who can from their duty to enforce the laws equally. In fact, their failure in conspiracy or as a policy, habit, or custom is itself actionable and indictable. See Count 10, below.
In addition, the “speculative” issue is not present in this case. In Linda R.S. Justice Marshall rationalized his decision that plaintiff lacked standing because prosecuting delinquent child support debtors of illegitimate children could assure such delinquent parents were jailed—but Justice Marshall reasoned it was too “speculative” to presume it would have an effect on their willingness to pay child support. That condition does not exist in this Action against SIMI and BATTSON. An illegal policy, habit, or custom of not prosecuting judges for abusing a class litigants directly and foreseeably will lead to more abuse. The condition Justice Marshall identified—a policy of not prosecuting person A for A’s not doing something A should (pay person B) was “speculative” to person B’s injury because even if person A was jailed, he may or may not pay person B.
That disjunction in proximity is not present here. The question is: Do BATTSON and SIMI’S activities in refraining from policing judges for abusing a class of citizens foreseeably “set in motion” more abuse that class of citizens? The answer is clear, and well-articulated by Justice White, joined by Justices Douglas, Blackmun, and Brennan, in the dissent from Linda R.S.:
[W]hy should only an actual or potential criminal defendant have a recognizable interest in attacking this allegedly discriminatory statute and not appellant and her class? They are not, after all, in the position of members of the public at large who wish merely to force an enlargement of state criminal laws. Appellant, her daughter, and the children born out of wedlock whom she is attempting to represent have all allegedly been excluded intentionally from the class of persons protected by a particular criminal law. They do not get the protection of the laws that other women and children get. Under Art. 602, they are rendered nonpersons; a father may ignore them with full knowledge that he will be subjected to no penal sanctions. . . . I had always thought our civilization has assumed that the threat of penal sanctions had something more than a ‘speculative’ effect on a person’s conduct. This Court has long acted on that assumption in demanding that criminal laws be plainly and explicitly worded so that people will know what they mean and be in a position to conform their conduct to the mandates of law. Certainly Texas does not share the Court’s surprisingly novel view. It assumes that criminal sanctions are useful in coercing fathers to fulfill their support obligations to their legitimate children. . . .
If a State were to pass a law that made only the murder of a white person a crime, I would think that Negroes as a class would have sufficient interest to seek a declaration that that law invidiously discriminated against them. Appellant and her class have no less interest in challenging their exclusion from what their own State perceives as being the beneficial protections that flow from the existence and enforcement of a criminal child-support law.
Linda R.S. v. Richard D., 410 U.S. 614, 620-21 (1973) (White, J. dissenting).
Courts in the United States have repeatedly found government actors liable for creating policies and conditions which foreseeably permit others to cause injury. See Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). When that policy, habit, or custom of permitting crime, causing a deprivation of liberty, property, speech, or other fundamental rights, or works against a class, the policy is a violation of equal protection under state and federal constitutions. United States v. Armstrong, 517 U.S. 456, 465 (1996); Yick Wo v. Hopkins, 118 U.S. 356 (1886); Guinn v. United States, 238 U.S. 347 (1914); United States v. Classic, 313 U.S. 299, 326; Screws v. U.S., 325 U.S. 91 (1945).
As the interests and numerous fundamental rights of classes no less important than families and children are present here, their equal treatment in crisis—when they need the fair protection of the law the most—deserves federal attention. Families are our nation’s core and future. They are clearly identifiable, and deserve at least as much protection as other groups, who have achieved recognition for class-based discrimination against them. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 441 (1985) (“illegitimacy” a recognized intermediate scrutiny class); Witt v. Dep’t of Air Force, 527 F.3d 806, 817 (9th Cir. 2008) (9th Circuit modern standard for equal protection analysis of intermediate scrutiny class); Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012) cert. granted, 133 S. Ct. 786 (U.S. 2012) and vacated and remanded sub nom, Hollingsworth v. Perry, 133 S. Ct. 2652 (U.S. 2013) (modern standard for rational basis scrutiny); Romer v. Evans, 517 U.S. 620, 650 (1996); Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam) (strict scrutiny). They speak today through a powerless representative, but do not assert “disgruntled litigant” claims—but clearly demonstrable commercial fraud, extortion, deprivation, and abuse committed on an enterprise scale.
Original Opposition to Motion to Dismiss (Some overlap with above).
In short, the cases relied on by the State Attorney General and county courts in Eleventh Amendment Immunity analysis are poorly analyzed—do not assume the issue has been settled. As California Coalition continues in its ongoing RICO litigation, we’ll share more.
Good luck, and God Bless.