May 20, 2014—San Diego, CA—Today California Coalition continues its second round defense of its Family Court Racketeering and Civil Rights case against Family Courts with an Emergency Motion to Take the Discovery from an unlikely witness—the Family Court’s lead attorney, Stephen D. Lucas.
California Coalition’s request results from an unusual scenario—Lucas has inserted himself into the litigation as a witness for the Family Court Omnibus Defense team. In support of the Family Court’s “Omnibus” motions to dismiss the case, Lucas submitted a lengthy Declaration offering to testify as an expert witness about his defense team’s analysis of the case.
“A Defendant moving to dismiss at the pleading stage cannot submit evidence–it’s basic Civil Procedure 101” says Colbern Stuart, President of California Coalition. Stuart says Lucas violated that rule, submitting a declaration testifying as an expert. “He offered to testify about his and his defense team’s legal research, analysis of the claims and exhibits, and offered denials of liability that are completely inappropriate at the pleading stage. He essentially stood up and started testifying as a witness for his client. Its an admirable gesture, but entirely improper” says Stuart.
In his Declaration Lucas offers details about the Family Court’s litigation team’s analysis of California Coalition’s 250 page Racketeering and Civil Rights Complaint. Lucas’s firm, Lucas and Haverkamp represents the San Diego County Bar Association, which has taken the lead role representing all Family Court judges, divorce lawyers, and psychologists in the case to date. Lucas offered the testimony in support of an unusual request the Omnibus Family Court defense team made in their Omnibus Motion to Dismiss the First Amended Complaint. Stuart says asking a court to require a plaintiff to amend a complaint is normal, but asking to dismiss the case as a sanction in a first round of pleading is highly unusual.
“We’re scratching our head on this one, but we’re guessing that Lucas recognized that a motion to dismiss the case at
the outset as a sanction is such a left-field request that he thought it needed his “expert testimony” to ‘leverage’ credibility” says Stuart. “We disagree with his opinion and can establish that he testified falsely under oath. Anytime a declarant submits a declaration, they must avow an availability to testify in court, under oath as to the substance of their declaration. Because we can prove Mr. Lucas is testifying falsely, we have the right and important need to cross-examine him” says Stuart. California Coalition has requested the Court issue a subpoena to Mr. Lucas compelling him to sit for deposition and testify at hearing.
“He put it out there, now it’s time to see if he’ll back it up” says Stuart. From the Emergency Motion:
Plaintiffs move for an order issuing the attached subpoena and permitting the taking of testimony at deposition and at hearing on Defendants’ Omnibus Motion to Dismiss Plaintiffs’ First Amended Complaint (Doc. No. 131) presently calendared for June 6, 2014, 2:00 p.m. in Department 4C.
Detailed below, Plaintiffs seek to depose and call Mr. Lucas as a witness on his Declaration In Support of Omnibus Motion to Dismiss First Amended Complaint (Doc. No. 131-2). In his Declaration, Mr. Lucas proffers to testify on extrinsic matters of his review of the complaint and exhibits, and offers expert witness testimony on legal standards of care. He also sponsors extrinsic evidence relating to Mr. Webb’s career as a litigator, and falsely characterizes certain cases in which Mr. Webb has been involved. He also falsely testifies regarding the history of this case.
Plaintiff vigorously disputes Mr. Lucas’s false and misleading expert witness testimony that Stuart and Mr. Webb have committed “poor lawyering” or have produced a complaint that fails to satisfy Rule 8. Mr. Lucas has proffered his willingness, availability, and competence to testify at hearing on these matters:
I have personal knowledge of the matters set forth herein and, if called as a witness, could and would competently testify thereto.” (Lucas Decl. 1:23-28).
Plaintiffs hereby move for an order that Mr. Lucas (1) appear for deposition under oath regarding Mr. Lucas’s representations, and (2) appear at hearing to testify regarding the same subject matter (hereafter the “Lucas & Haverkamp Discovery”).
Mr. Lucas’ offers nothing short of expert opinion testimony in his analysis of the FAC and exhibits, putting his competence and credibility as an expert and percipient at issue. If permitted to cross examine Mr. Lucas, Plaintiffs will establish the his testimony is entirely contrived for purposes of persuading this Court toward an improvident dismissal on Rule 8 grounds in an extravagant request for sanctions under Rule 41(b). For example, Mr. Lucas testifies an inability to recognize exhibits to the First Amended Complaint. Yet his own declaration and the OMNIBUS demonstrate such testimony is deplorable fabrication. Mr. Lucas states: “The attachments appear to be exhibits but are not readily identifiable, indexed, marked, or organized.” Yet Mr. Lucas can and does successfully identify numerous exhibits.
Mr. Lucas has clearly identified the claim as against SDCBA. All remaining claims are similarly so identified. At deposition, unless Mr. Lucas proclaims an inability to read English, he will have little choice but to impugn his testimony that he cannot fathom this organization of the First Amended Complaint.
Plaintiffs intend to further cross examine Mr. Lucas’ experience and perception in giving opinions regarding the relevant standard of care in the legal profession. Mr. Lucas complains that he and other Defendants will have to “read through every page and line to try to figure out who is suing whom for what.” Mr. Lucas accused Plaintiffs of deploying a “tactic” of forcing each Defendant to read the entire complaint. Plaintiffs intend to cross-examine Mr. Lucas on the foundation of his opinion that reading through every page and line of a complaint in order to understand who is being sued by whom is anything other than the least that may be expected of any competent lawyer.
“I’ve practiced in federal courts for nearly twenty years and have never seen an attorney spill his client and co-defendant confidences like this” says Stuart. Mr. Lucas is an experienced litigator and certainly knows that by offering this declaration containing falsehoods he’s revealing client confidences, defense team confidences, and waiving privileges on examination” says Stuart. “The bizarre thing is, his testimony didn’t help their motion. He’d probably have made the same case without revealing confidential information” says Stuart.
“Whatever his plan is he must be smarter than us because we can’t figure it out. But he’s put his opinion at issue, we disagree and can prove he’s testifying falsely. Maybe we’re taking bait on a hook here, but we’re entitled to disprove his opinion at hearing, and we intend to do so” says Stuart.
California Coalition Requests the District Court Judge to Notice “Kids for Cash” Ruling as Authority for Holding Family Court Judges Responsible for Racketeering Conspiracies
In a second filing in this week’s wave, California Coalition requested the Court to take Judicial Notice of the ruling of a United States District Court’s recent ruling in the “Kids for Cash” case regarding Pennsylvania juvenile court Judges Mark Ciavarella and Michael Conahan. In that case a United States District Court ruled in January of this year that a juvenile judge’s involvement in projects constructing juvenile detention centers, promoting the funding an approval of the construction, and parallel establishment of “zero tolerance” juvenile justice policies to funnel more kids into the centers was illegal, and not an “immune” act.
“The similarities between Pennsylvania and what we’ve uncovered in San Diego, with judges establishing policies in collaboration with divorce attorneys and other industry groups behind the scenes to funnel families into private custody evaluations, guardians ad litem, parenting coordinators, and minor’s counsel is striking” says Stuart. “We’re asking the Southern District Court Judge to accept the Middle District Court’s Memorandum on the issues of law as authority in our case.”
From California Coalition’s Request for Judicial Notice:
Plaintiffs California Coalition for Families and Children, PBC and Colbern Stuart hereby submit and request the Court to notice the attached documents identified below pursuant to Rule of Evidence 201, in support of Plaintiff’s Joint Opposition to Defendants’ Omnibus Motion to Dismiss Complaint and Joinders (Doc. No. 161). The following document is attached hereto as exhibits for purposes of the FRE 201 request for judicial notice:
Exhibit 1: Memorandum of United States District Court Judge A. Richard Caputo, Wallace v. Powell, 3:09-cv-286, 2009 WL 4051974 (M.D. Pa.) (9 January 2014) (Doc. No. 1510)
Several issues analyzed by the United States District Court for the Middle District of Pennsylvania in what is commonly described as the “Kids for Cash” litigation (Wallace v. Powell, 3:09-cv-00268-ARC and consolidated cases) are similar to those present in this Action. In the “Kids for Cash” litigation, United States District Court Judge A. Richard Caputo granted Plaintiffs’ motion for partial summary judgment against Defendants Mark Ciavarella and Michael Conahan, both former Pennsylvania Luzerne County Court of Common Pleas judges in January of this year. See Exhibit “1”, January 9, 2014 Memorandum, Doc. No. 1510, filed 9 January 2014. The District Court’s Memorandum resolved issues of judicial immunity, civil rights conspiracy, and RICO conspiracy claims similar to those present in this Action.
The Court held that Judge Ciavarella’s actions in causing juveniles to be sentenced under a “zero tolerance” policy to further a civil conspiracy are not protected by judicial immunity. The Court reasoned that Judge Ciavarella’s acts in participating in a conspiracy to deprive children of a right to a fair trial in order to send the children to juvenile detention facilities which Ciavarella helped develop are not “judicial acts” entitled to judicial immunity.
The decision makes clear that illegal policies, habits, customs, inducement, agreements, or guidance, unethical conduct and business dealings, fraud and extortion that led to a decision inside of court that deprives a litigant of civil rights can be the basis for civil liability that is not immunized by the in-court act.
Ciavarella is not entitled to judicial immunity for his role in closing the River Street facility. That is, appearing on television urging a shutdown of a county-run detention facility and facilitating hiring decisions for a private detention facility are not functions “normally performed by a judge.” Wallace, 2009 WL 4051974, at *7 (quoting Stump v. Sparkman, 435 U.S. 349, 362, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978)). During Ciavarella’s criminal trial, he acknowledged that he was not performing any official duties when he took part in the television interview. (Plfs.’ SMF, ¶ 74.) Moreover, aiding PACC in staffing its facility with employees of the River Street facility also falls outside the traditional role of a judge. Cf. Forrester v. White, 484 U.S. 219, 229, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988) (“personnel decisions made by judges[ ] are often crucial to the efficient operation of public institutions (some of which are at least as important as the courts), yet no one suggests that they give rise to absolute immunity from liability in damages under § 1983.”).
b. Zero Tolerance Policy
Second, Plaintiffs argue that the enactment of a zero tolerance policy was not a judicial act. While Ciavarella served as judge of the juvenile court, he enacted an administrative policy that dictated instances in which probation officers had to file charges against and detain juveniles in Luzerne County. (Plfs.’ SMF, ¶¶ 79-82.) Ciavarella expanded his zero tolerance policy in February 2003, the same month PACC opened, to require that children on probation be violated and detained for any violation of their probation, including zero tolerance for drug and alcohol violations, not attending school, not attending appointments, or violating curfew. (Id. at ¶ 80.) Under this policy which was distributed to all juvenile probation officers on February 20, 2003, (id. at ¶ 82), Ciavarella eliminated juvenile probation officers’ discretion to informally adjust juveniles’ charges. (Id. at ¶ 79.)
Ciavarella’s enactment and expansion of a zero tolerance policy dictating how probation officers were to handle violations of probation and other charging decisions fall outside the scope of judicial action. “Administrative decisions, even though they may be essential to the very functioning of the courts, have not similarly been regarded as judicial acts.” Forrester, 484 U.S. at 228, 108 S. Ct. 538. Under Pennsylvania law, probation officers have the authority to informally adjust allegations before a delinquency petition is filed. See 42 Pa. Cons. Stat. Ann. § 6323; Pa. R. Juv. Ct. P. 312 (“At any time prior to the filing of a petition, the juvenile probation officer may informally adjust the allegation(s) if it appears: (1) an adjudication would not be in the best interest of the public and the juvenile; (2) the juvenile and the juvenile’s guardian consent to informal adjustment with knowledge that consent is not obligatory; and (3) the admitted facts bring the case within the jurisdiction of the court.”). Moreover, “coercing probation officers to change their recommendations is outside the role of a judicial officer. Probation officers are to advise the court, not the other way round, on sentencing matters.” Wallace, 2009 WL 4051974, at *8. In adopting the zero tolerance policy, Ciavarella was acting in an administrative capacity, and acts such as that which involve “supervising court employees and overseeing the efficient operation of a court- may have been quite important in providing the necessary conditions of a sound adjudicative system. The decision[ ] at issue, however, [was] not [itself] judicial or adjudicative.” Forrester, 484 U.S. at 229, 108 S. Ct. 538. Because Ciavarella’s enactment and expansion of the zero tolerance policy were non-judicial acts, judicial immunity does not shield this conduct.
c. Additional Out-of-Court Actions
Finally, Ciavarella is not sheltered from liability for his out-of-court conduct that was not judicial in nature. Ciavarella initiated the plan by approaching Conahan and suggesting that they bring together a team that had the financial ability to construct a new detention facility. (Plfs.’ SMF, ¶¶ 23-26.) Ciavarella also connected Powell and Mericle. (Id. at ¶ 26.) Ciavarella’s failure to disclose the payments he received from Mericle and Vision Holdings also furthered the conspiracy. Specifically, Ciavarella took steps to conceal the more than $2,700,000 he and Conahan received from Mericle and Powell starting in 2003. (Id. at ¶ 66.) Indeed, Ciavarella sought to conceal the payments because knew that it would not look good that he was receiving payments from Powell while sending juveniles to his detention facility. (Id. at ¶ 67.) In that regard, Ciavarella instructed Mericle where to send the second and third payments. (Id. at ¶ 58.) This out-of-court conduct was not judicial in nature, and, as such, is not protected by judicial immunity.
Lastly, Plaintiffs must establish that Ciavarella “caused the complained of injury.” Elmore, 399 F.3d at 281. I previously indicated that the “setting in motion” theory of causation would be applied to individual Defendants in this case. See Wallace, 2012 WL 2590150, at *11. This standard provides:
“”A person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if [that person] does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation of which complaint is made. Indeed, the requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.””
Id. (quoting Pilchesky v. Miller, No. 05–2074, 2006 WL 2884445, at *4 (M.D. Pa. Oct.10, 2006). While the Third Circuit has not squarely addressed the issue of causation in § 1983 cases, see, e.g., Burnsworth v. PC Lab., 364 F. App’x 772, 775 (3d Cir. 2010), the “setting in motion” theory has been accepted by multiple Circuit Courts of Appeals. See, e.g., Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011); Sanchez v. Pereira-Castillo, 590 F.3d 31, 51 (1st Cir. 2009); Morris v. Dearborne, 181 F.3d 657, 672 (5th Cir. 1999); Sales v. Grant, 158 F.3d 768, 776 (4th Cir. 1998); Waddell v. Forney, 108 F.3d 889, 894 (8th Cir. 1997); Conner v. Reinhard, 847 F.2d 384, 396-97 (7th Cir. 1988).
The undisputed facts establish that Ciavarella caused the violation of Plaintiffs’ right to an impartial tribunal through the receipt and concealment, by himself and Conahan, of payments from and through other Defendants. In particular, Ciavarella knew he had a duty to disclose information relevant to his ability to engage in impartial decision-making, that he violated that duty, and that he never informed any juveniles that he was receiving payments from PACC, WPACC, or Powell. (Plfs.’ SMF, ¶¶ 69-70.) The undisputed facts conclusively establish that Ciavarella knew that, as a result of his conduct, Plaintiffs would be deprived of their right to appear before an impartial tribunal.
Ciavarella’s role in closing the River Street facility set the conspiracy in motion.
Significantly, knowing that he stood to profit from the completion of the PACC facility, Ciavarella took steps to close the old facility and ensure that it would not re-open, resulting in PACC being the only detention facility in Luzerne County where a child could be detained. (Id. at ¶¶ 38-42, 73-77.) Yet, despite his financial stake in closing the River Street facility, he never disclosed this interest. (Id. at ¶¶ 44, 69-72.) Thus, the undisputed material facts establish that Ciavarella knew, or he should have known, that his role in the closure of the River Street facility and his concealment of his interest in its closure (and the resulting opening of the PACC facility while he served as judge of the juvenile court) would deprive Plaintiffs of an impartial tribunal.
The zero tolerance policy adopted by Ciavarella also furthered the conspiracy and caused the deprivation of Plaintiffs’ right to an impartial tribunal. In 2003 when Ciavarella knew he had a financial interest in PACC, he expanded the zero tolerance policy, which increased the number of juveniles that would appear before him and be detained. As a result of the expansion of this policy, more juveniles appeared before him and were subject to adjudication by a biased tribunal. And, as detailed above, Ciavarella’s out-of-court conduct which set the conspiracy in motion, and which concealed the existence and the nature of the conspiracy, as well as the corresponding payments, all furthered the goals of the conspiracy. As the undisputed facts establish that Ciavarella knew or should have known that, as a result of his out-of-court conduct, Plaintiffs would not appear before an impartial tribunal when they were in his courtroom, the causation element of Plaintiffs’ § 1983 impartial tribunal claims against Ciavarella is satisfied.
Therefore, for Ciavarella’s conduct which is not protected by judicial immunity, i.e., his non-judicial acts, Ciavarella is liable to Plaintiffs on their § 1983 impartial tribunal claims. In particular, Ciavarella’s non-judicial acts detailed above set in motion and/or caused the deprivation of Plaintiffs’ right to an impartial tribunal as he initiated the scheme to construct a new detention facility, he assisted in closing the River Street facility, and he expanded a policy which increased the number of juveniles that appeared before him. And, these acts were all taken without Ciavarella ever disclosing, and, in fact, while he took affirmative steps to conceal his financial interest in the success of PACC and WPACC. Accordingly, pursuant to 42 U.S.C. § 1983, Ciavarella subjected Plaintiffs to a deprivation of their constitutional right to an impartial tribunal. For the conduct which Ciavarella is not shielded by judicial immunity, he is liable to Plaintiffs on their § 1983 impartial tribunal claims.
The District Court’s decision is relevant to issues presently before this Court on Defendants’ Omnibus. First, the decision clarifies that out-of-court actions by a judge such as bar association meetings, business dealings, political activity, and other behavior not conducted inside the courtroom are not protected by judicial immunity. Second, it clarifies that administrative activities and policy-making decisions by a judge, even if essential to operation of the court, are administrative, and not judicial, and therefore not entitled to absolute judicial immunity. Administrative actions include oversight of other justice system officials such as court administrative staff or law enforcement, and may include direct “supervisory” oversight such as instructing law enforcement or staff, or from policy-making roles such as setting rules for how staff or employees treat litigants. In the Ciavarella case, this included direct oversight of juvenile system probation officers and detention facility personnel, and setting a “zero tolerance” policy for law enforcement apprehending juvenile offenders assuring that more offenders would end up in court.
Third, the Pennsylvania District Court found Judge Ciavarella liable for acts outside his courtroom which “set in motion” acts inside his courtroom which caused deprivation of civil rights. The District Court held that a judge performing a non-judicial act outside the courtroom which “sets in motion” a judicial act causing injury inside the courtroom is not protected simply because the second act occurred inside the courtroom.
The Memorandum recited the central allegation of the Complaint:
With utter disdain for the rule of law, defendants Mark A. Ciavarella, Jr., and Michael T. Conahan, in combination and conspiracy with others[s] . . . , have collectively perpetrated, through their acts and omissions, what ranks as one of largest and most serious violations of children’s rights in the history of the American legal system. . . . In choosing to treat children as commodities that could be traded for cash, the defendants have placed an indelible stain on the Luzerne County juvenile justice system.
The Court of Appeals for the Third Circuit in United States v. Ciavarella, 716 F.3d 705 (3d Cir. 2013) affirmed criminal convictions of Ciavarella and Conahan for money laundering, false tax returns, ‘honest services’ and mail fraud, and other federal crimes, convictions.
A short demonstrative exhibit video presentation adapted from the Kids for Cash documentary is available here.
California Coalition Identifies Falsified Evidence Submitted by Stephen Doyne, Sharon Blanchet; Alleges Witness Tampering
In the third set of this wave, California Coalition also filed objections to other evidence submitted by Family Court Defendants in their Omnibus Motion to Dismiss. The Objections are directed at what Stuart calls “possible falsification of court documents” prepared by Sharon Blanchet, Stephen Doyne, and possibly involving Jeffrey Fritz. “We also have question for Judge Joel Wohlfeil about whether he actually reviewed these documents and if the signature on a form is actually his.”
Stuart says the filing is irregular because the order is dated in August, 2008, but the “attachments” Dr. Doyne claims were part of the order were dated months earlier. “This appears to be another example of Family Court ‘back-dating’ of documents filed by divorce lawyers and psychologists with the court’s knowledge.” California Coalition raised the issue in 2013 litigation before the California State Bar regarding Robert Lesh–a former head of the Family Law Subsection of the San Diego County Bar Association–in a Petition for Certiorari to the U.S. Supreme Court in May of last year.
Objections to DOYNE Request for Judicial Notice (Doc. No. 143-2, 3)
RJN 143-3 “Exhibit A” to RJN; 2 Documents, One entitled “Findings and Order After Hearing” and a second entitled “Attachment to Findings and Order After Hearing.”
Objection: Lacks Foundation, Controversial:
The exhibit appears to be a fraudulent attempt to combine two separate documents. The first page appears to be a form “Findings and Order” bearing an unrecognizable signature dated August 8, 2008 apparently filed the same date. It is not signed by counsel as “approved as conforming to Court Order.”
The second document is an unsigned pleading on Basie & Fritz caption entitled “Attachment to Findings and Order After Hearing.” It is stamped “received” dated June 16, 2008, which is not coordinated with the first page it is submitted with. Though it is submitted by Defendant DOYNE it bears the initials “SB,” corresponding to Defendant Sharon Blanchet. It thus appears to have been created by DOYNE from filed owned by Plaintiff STUART, in possession of Defendant BLANCHET, maintained for the benefit of Plaintiff STUART.
It is not stamped as filed with any court.
This document appears to be a falsification of records. The event of filing falsified documents in this action is a violation of 18 U.S.C. § 1503 and 1512(c) and will be added as an independent predicate crime in due course. For the time being the exhibit is objected to as lacking foundation, irrelevant, and controversial.
California Coalition also objected to the documents that appeared to contain evidence of perjury by Assistant City Attorney Emily Garson—the City Attorney’s Office prosecutor who in 2010 lead the charge to prosecute Stuart for “harassing judges.” “Garson’s bringing of charges in the case was plainly illegal—and the jury agreed with me.” Stuart was acquitted of ‘stalking’ charges, but convicted of a “harassing by email” charge which he has appealed.
“California Penal Code 653m is unconstitutional. We’ve appealed the conviction and will move forward with the federal case seperately. Garson’s malicious prosecution remains illegal” says Stuart.
Hearings on California Coalition’s Motions are scheduled for June 27, 2014.