December 5, 2014—San Diego, CA—California Coalition for Families and Children today filed its “Opening Brief” with the United States Court of Appeals for the Ninth Circuit. This brief follows on California Coalition’s October filing of motions to expand briefing word limits, which the court granted in part in November.
The Opening Brief tracks themes California Coalition has established in the litigation, and asks the Court of Appeals to review a central 1986 case that extended immunity to judges breaking the law.
California Coalition is advancing five 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, and acts outside of the judge’s jurisdiction 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 of Pierson 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:
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. Philip 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. It has leveraged its enormous wealth to achieve a monopoly on domestic dispute resolution, captured related public and private legal institutions, perverted their legal function to the industry’s advantage, and entrenched the marketplace to exclude competitors such as California Coalition offering legal, efficient, and far healthier alternatives to the divorce industry’s debaucherous sham.
To engage the obscene ill-gotten wealth and power of this orgiastic public-private enterprise, California Coalition marshals racketeering and civil rights conspiracy laws which notoriously require complex pleading, and pose unusual case management challenges in the district court. The complaints at issue are lengthy and detailed—as they must be. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
The district court dismissed the FAC sua sponte on insufficient grounds not noticed in the Omnibus; defendants failed to mount even a single persuasive attack in their mountains of paper. 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 follows improvident grant of Superior Court’s initial Rule 12(b)(6) motion, which attacked length, complexity, and “clarification” issues not enabled through Rule 12(b)(6). Rather than deny the motion on Superior Court’s unwise insistence on dismissal with prejudice, the court dismissed with leave to amend, instructing California Coalition to plead “plausible facts” and “nonfrivolous argument,” imposed illegal restrictions on pleading, and repeatedly threatened Rule 11 sanctions—at a first hearing. California Coalition complied pleading “plausible facts,” “nonfrivilous argument,” and particularizing as instructed, unavoidably protracting pleadings.
Both complaints satisfy the sole purpose of Rule 8—to provide notice of the legal theories and facts asserted. The court and defendants cannot deny they had notice—they mounted hundreds of pages of pointed 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 decades of controlling Supreme Court authority repeatedly admonishing that the “freewheeling” policy analysis contained in Ashelaman is error. See, e.g., 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 FAC which pleads around immunities and “admits” no defense.
The district court granted the Commission on Judicial Performance Eleventh Amendment immunity without analyzing the Commission’s relationship with the State of California, improperly relying on a single district court decision, Ricotta v. California, 4 F. Supp. 2d 961 (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 representation.
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 obstruction of justice by the San Diego County Superior Court’s general counsel, Kristine Nesthus, who directed San Diego County Sheriff’s Department and state Highway Patrol detectives to threaten California Coalition’s members, process servers, and counsel.
Finally, in light of California Coalition’s defeat of San Diego Superior Court’s two “cut-n-paste” Rule 11 motions based on the exact grounds of their two unsuccessful motions to dismiss, the district court’s denial of counter-sanctions to California Coalition was error.
California Coalition and the families 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 the FAC provides notice to enable aggressive attack. Legitimate manageability concerns are addressed through ordinary case management. California Coalition is acutely aware this action poses challenges for the district court, yet has proven a record of proactive attention to litigation efficiency which will continue upon remand.
“The methods may have changed; the means may have become more subtle; but the wrong to be remedied still exists.” Pierson at 563 (Douglas, J, dissenting).
Appellants request oral argument, and pray for relief as follows:
Reverse the July 9, 2014 dismissal with prejudice and remand with instructions that defendants shall file answers within 40 days;
Reverse the December 19 and 23 orders dismissing claims against judicial defendants as immune under Ashelmanv. Pope, as Ashelman and Pierson v. Ray are unconstitutional exercises of powers reserved to Congress; or, in the alternative, remand with instructions to proceed under Rehbergv. Paulk, Rankin v. Howard, and consistent with the “setting in motion” analysis of Johnson v. Duffy, Starr v. Baca, and Wallace v. Powell;
Reverse the December 23 order dismissing claims against Commission defendants and remand with instructions to proceed by receiving evidence of the Commission’s relationship with the State of California;
Reverse the September 16, 2013 order (ER 67) finding Appellants’ motion for witness harassment restraining order “moot,” and grant, or remand with instructions to grant, a witness harassment restraining order;
Remand to the district court with instructions that California Coalition be relieved of any obligation to obtain local counsel;
Reverse the December 23, 2013 and July, 2014 denials of counter-sanctions to Appellants, and remand with instructions that the district court award reasonable costs and fees to Appellants for time expended in opposing both Rule 11 motions (Doc. No. 39-2);
Grant Appellants leave of Circuit Rule 28-1(b)to incorporate briefing, or permit additional briefing regarding the preserved Motion for Preliminary Injunction (Doc. No. 109);
Award costs and fees on appeal to Appellants pursuant to 42 U.S.C. § 1988, and 18 U.S.C. 1964(c); and
Such other and further relief as this Court deems just and proper.
2. There Is Not Now, and There Has Never Been, a 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.
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:
Family Law Judges Will Not Identify an Immunity at Common Law
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 could exercise jurisdiction over divorce. “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). Post-revolutionary American States radically severed divorce and custody from civil courts by mandate 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.”). Civil courts did not—and could not—determine “grounds” for divorce because the issue required inquiry into religious ideology. Watson v. Jones, 80 U.S. 679, 703 (1871); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1576-77 (1st Cir. 1989) (“civil courts cannot adjudicate disputes turning on . . . religious doctrine . . .”).
Until about 1897, the civil “process” of divorce was limited to property division—performed by state legislatures in a “rubber stamp” process similar to passing a bill into law. G. Howard, A History of Matrimonial Institutions 77 (1904). California’s “Family Courts” are a creation of the 1970s. L. Friedman, Rights of Passage: Divorce Law in Historical Perspective 63 Or. L. Rev. 649, 667 (1984). The psychologist-as-judge “custody evaluator” function 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).” 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 divorce ritual because unlike the church/state entity in England, American churches are purelyvoluntary associations. Jones v. Wolf, 443 U.S. 595 (1979). The “immunity” of a religious association is derived from the members’ rights of association and exercise. Paul v. Watchtower Bible & Tract Soc. of New York, Inc., 819 F.2d 875, 883 (9th Cir. 1987). Church tribunals have always remained liable for civil wrongs as if they were private associations. Id.
The twentieth century expansion of sovereignty into territory previously the sphere of the church cannot annex First Amendment liberties; a civil court is a sovereign, prohibited to acquire or possess a “right” of expression or exercise. The 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).
California could no more immunize divorce tribunals from civil rights abuse than it could deputize a priest to perform an exorcism. Whatever “immunity” churches enjoyed, it was derivative of liberty—not sovereignty—a non-transferable currency upon family court’s twentieth century annex of church function.
Modern Family Court Jurisdiction is Inferior; If It Has Immunity It is Extremely Narrow
The district court’s December 23 order describes family courts as having limited jurisdiction, ascribing a narrow scope of immunity to acts “within the jurisdiction of their courts,” citing Ashelman. ER 48. Yet Ashelamn is wildly more ambitious than this proposition. The district court instead appears to be acknowledging Bradley: “[W]ith reference to judges of limited and inferior authority it had been held that they were protected only when they acted within their jurisdiction.” Bradley at 352.
Dubious in any incarnation, family “jurisdiction” is incontrovertibly “inferior” because it is specific: “a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties.” Cal. Fam.C. § 2010. See also King v. State Educ. Dep’t, 182 F.3d 162 (2d Cir.1999). Family courts adjudicate equity subordinate to courts of law. Greenwood v. Greenwood, 112 Cal. App. 691, 696 (1931).
While judicial defendants bear the formidable burden of demonstrating their modern functions even existed at common law, in no case will they achieve a scope of immunity greater than an 1871 inferior court; for judicial acts within their jurisdiction not done “maliciously or corruptly.” Bradley at 351-52. See alsoId. at 357 (Davis, J; Clifford, J, dissenting); Sparkman at 356, n. 7.
3. Restate Immunity to Clarify that Conspiring with a Judge Is Not Immune
Third, California Coalition is also asking the Court of Appeals to restate a rule in Ashelman that protects co-conspirators of a judge who “set in motion” an action by a judge that deprives litigants of rights at trial. This portion of the brief analyzes the Ashelman decision which overturned a prior decision in a case, Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980).
Rankin was the law of the Ninth Circuit governing state court judges until Ashelman overturned it. Rankin stated a rule that judges—or anyone acting in conspiracy with judges, including prosecutors, politicians, or other officials or persons acting “under color of law—could be liable for their “out-of-court” actions that “set in motion” a deprivation in court. Ashelman reversed that decision, stating a rule that as long as the final act—what Ashelman called the “ultimate act”—was immune, the judge was immune even if the prior actions were not “judicial acts.”
California Coalition is arguing that the Rankin decision that Ashelman overturned was closer to the correct analysis than was Ashelman, and that Ashelman’s decision to overturn Rankin was error. California Coalition offered analysis showing that Rankin was consistent with the law of other circuits, which also held anyone (including judges) liable for actions which “set in motion” an in-court injury.
California Coalition analyzed a key United States Supreme Court case that supports its conclusion–Dennis v. Sparks, 449 U.S. 24 (1980). In Sparks, the Supreme Court affirmed that purely private parties acting in conspiracy with a judge to cause constitutional injury inside of court may be liable even if the judges are immune. In other words, if politicians or private parties create a plan to cause a judge to deprive a litigant of rights in a ruling, under Dennis v. Sparks, the private parties are not immune. Dennis v. Sparks didn’t decide whether the judge was also not immune for participating in the conspiracy because that issue was not appealed—only the immunity for the private parties was at issue in the Supreme Court. Because Dennis v. Sparks is still good law—and superior authority to Ashelman–to the extent Ashelman is inconsistent with Dennis v. Sparks, Ashelaman stands in error.
But the conflict between Ashelman, Rankin, and Dennis v. Sparks isn’t head-on—it is still possible that the Supreme Court could agree with a rule that a judge is immune for conspiring to commit an inside-of-court deprivation, but not immune for the outside-of-court “inchoate” act of conspiracy to commit the deprivation. California Coalition is therefore asking the Court of Appeals to resolve this key issue as a case of first impression, and articulate a rule that judges acting in conspiracy to cause injury inside of court are not immune for the conspiracy (though perhaps immune from the inside-of-court injury).
However, it is today clear is that Ashelman’s “ultimate act” analysis to protect private parties is error under Dennis v. Sparks. Yet because Ashelman stated the “ultimate act” policy so broadly, many courts (and litigants) may be missing the distinction between private parties (who are not immune under Dennis v. Sparks) and judges acting out-of-court to cause in-court conspiracies. California Coalition has requested the Court of Appeals to restate Ashelman to clarify that judges acting in conspiracy with private parties are not performing “judicial acts”, and that to the exten Ashelman extends immunities for such conspiracies, it stands in error.
From the brief:
The District Court Extended Judicial Immunity under Ashelman v. Pope Contrary to Controlling Supreme Court Authority
The district court granted Superior Court officials immunity under Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) for “judicial acts within the jurisdiction of their courts.” ER 48. The order did not identify any claim within that scope, but warned Stuart to “be wary of the immunities in pleading” the FAC (ER 48) and that if Stuart “didn’t take into consideration their rights to judicial immunity” the court would consider sanctions. ER 59-60.
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. 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) (“Where 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 Court “has for that reason been quite sparing in recognizing absolute immunity for state actors.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993).
Defendants Failed to Proffer, and the District Court Failed to Conduct, an Historical Analysis of Function at Common Law
The “function” analysis considers only 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 . . . .’”); Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000) (no “firmly-rooted tradition” of immunity for psychiatrist employed by prison).
The Supreme Court undertook this historical analysis most recently in Rehberg v. Paulk, 132 S.Ct. 1497, 1503-07 (2012). 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); Hoffman v. Harris, 511 U.S. 1060 (1994) (Thomas, J., dissenting); and Kalina v. Fletcher, 522 U.S. 118, 132 (1997) (Scalia, J., concurring). Granting an immunity absent 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 . . . .”).
Superior Court Defendants proffered, and the district court undertook, no historical analysis of the functions accused in the complaint—merely citing Ashelman’s broad holding. Doc. No. 16-1, 19; ER 48. This fails to “affirmatively state” the defense that was exclusively their burden. Fed.R. Civ.P. 8(c); 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 reliance on Ashelman was 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 holding on analysis originating in the Fifth Circuit, which invented a “four factor” test, and a “pro-immunity” 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.” Id. at 1076 (citing McAlester v. Brown, 469 F.2d 1280 (5th Cir.1972); Adams v. McIlhany, 764 F.2d 294 (5th Cir. 1985); and Dykes v. Hosemann, 776 F.2d 942 (11th Cir. 1985)). Since Stump v. Sparkman, 435 U.S. 349 (1978), McAlester’s analysis—and every case adopting it—is error.
In McAlester the Fifth Circuit extended immunity to a judge for jailing the father of a prisoner who brought clothing for his son to the judge’s chambers. McAlester at 1281. After release Mr. Brown sued Judge McAlester under Section 1983. Id. The Fifth Circuit analyzed Bradley v. Fisher, 80 U.S. 335 (1871), Pierson v. Ray, 386 U.S. 547 (1967), and Texas law empowering contempt citations, “discerning” a “four part” immunity test: “(1) the precise act complained of, use of the contempt power, is a normal judicial function; (2) the events involved occurred in the judge’s chambers; (3) the controversy centered around a case then pending before the judge; and (4) the confrontation arose directly and immediately out of a visit to the judge in his official capacity.” McAlester at 1282. Applying its new test, the Fifth Circuit determined the contempt citation was authorized by statute, occurred in chambers, related to a pending case, and therefore immune. Id. at 1283.
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 “cast aside” McAlester’s four factors, distilling a “cogent two-part 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 “cast aside considerable debris” including McAlester’s “precise act” factor, and 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 test Justice White favorably cited this Court’s decision in Gregory, which held that physically evicting a litigant from chambers is not “of a judicial nature.” Sparkman at 370, n. 10. He also analyzed Lynch v. Johnson, 420 F.2d 818 (6th Cir. 1970), holding that a county judge “forcibly removing” plaintiff from “fiscal court” was not immune. Id. at 820. Clearly Justice White cited Gregory and Lynch 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 “precise act” may not be “judicial in nature.” After Sparkman, McAlester’s four-factor “discernment” from Bradley and Pierson was a dead end.
Seven years after Sparkman, the Fifth Circuit in Adams refused to recognize Sparkman as controlling authority—resurrecting and expanding McAlester’s four-factor test. Adams at 297. As if the Supreme Court were a sister circuit, the Fifth Circuit cited Sparkman, then turned its back on it. Id. (“The four factors generally relied upon by this circuit . . . .”) (emphasis added). Adams proceeded to analyze under McAlester rather than Sparkman, erroneously relying on the “official capacity” and “precise act” “debris” “cast aside” by Justice White. Adams at 197.
Adams also proselytized a wildly “freewheeling” pro-immunity “policy,” citing to McAlester, Bradley, and Pierson. See McAlester at 1282-83. These cases support nothing close to a “pro-immunity” policy. 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. See also Forrester v. White, 484 U.S. 219, 224 (1988); Burns v. Reed, 500 U.S. 478, 491 (1991); Kalina v. Fletcher, 522 U.S. 118, 132 (1997).
Adams conducted no analysis of common law to determine if the contempt function was immune in 1871, examining only Judge Mcllhany’s statutory jurisdiction, concluding it was authorized by statute, and therefore immune. Adams at 295-97. This analysis is inconsistent with Sparkman, which considers statutory authorization relevant to the second jurisdictional factor, but insufficient to determine the first “judicial act” factor. Sparkman at 362.
The Fifth, Ninth, and Eleventh Circuits’ failure to align with Sparkman is the cascade of error condemned by the Supreme Court in Rehberg and decades of prior controlling authority. See, e.g., Malley (decided March 5, 1986, four months before Ashelman), Tower (1984), Owen (1980), Sparkman (1978), Imbler (1976), and Pierson (1967), supra.
This Court in Ashelman conceded it was “expand[ing]” the scope of immunity in Sparkman, apparently failing to recognize that no United States court can “expand” Sparkman. Ashelman at 1075. Pierson and Sparkman’s controversial “construction” of the Civil Rights Act have been apologetically qualified as the outer perimeter of Article III judicial power. See 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 v. Economou, 438 U.S. 478, 489 (1978). 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, 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) (internal citation omitted).
Section 1983’s facial clarity and the intent of Congress to hold judges accountable is incontrovertible. Monroe at 172-85. Ashelman’s disobedient “expansion” of Sparkman to cavort with the Fifth and Eleventh Circuits in perpetuating the indulgent analysis of Adams 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.
The district court described a startlingly broad scope of immunity for defendants acting “in their judicial capacity as officers of the court, running the family court system” ER 58-59. Though the December 23 written order is narrower, the repeated commands at hearing, backed with vivid threats of sanction, had resounding prophylactic impact upon California Coalition in drafting the FAC. Out of fear, California Coalition pruned claims and drafted the FAC expressly to exclude “non-immune” acts. Sec. IV.C.4, supra.
The narrower scope articulated in the written order could not have been in the district judge’s mind when at hearing on February 26, 2014 the court again articulated a startling scope of immunity to include “most, if not all, of the defendants” in the FAC. ER 27. This scope would apply to allegations against judicial officials that cannot be immune under any construction of the doctrine, including the “Stuart Assault” (Count 1); administrative behaviors of “running the family court system” alleged in the “Doyne Terrorism” (Count 11); supervisory claims (Counts 6, 7); “take-down” notices as in the “Nesthus Obstruction of Justice” (Count 4); and all racketeering activity.
None of these functions can be immune, and the district court’s utterances otherwise—backed by vitriol—were egregious errors.
Judicial Defendants Are Not Immune For Non-Judicial Acts “Setting in Motion” Constitutional Injury; Ashelman’s Abrogation of Rankin and Beard Was Error
The district court’s citation to Ashelman also jeopardized California Coalition’s conspiracy allegations directed at SDCBA, divorce lawyers, judicial officers, and City Attorney prosecutors “setting in motion” constitutional injury. Ashelman hastily reversed its panel and two prior decisions including Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980), which held: “[A] judge’s private, prior agreement to decide in favor of one party is not a judicial act.” Rankin at 847. In remanding, Rankin instructed to receive facts going to “the possibility that Judge Zeller lost his immunity by participating in a conspiracy to violate Rankin’s civil rights through a nonjudicial agreement.” Id. at 850. The Supreme Court denied Judge Zellar’s petition for certiorari on this Court’s denial of immunity, indicating Rankin was—and remains in spite of Ashelman’s abrogation—good law. Zeller v. Rankin, 451 U.S. 939 (1981). Beard v. Udall, 648 F.2d 1264 (9th Cir. 1981) dutifully followed Rankin: “[I]f there was a prior, private agreement . . . then Judge Greer would not enjoy immunity . . . .” Id. at 1270. Ashelman’s panel faithfully applied Beard and Rankin, finding no immunity against allegations that judge and prosecutor conspired to deny Ashelman’s rights. Ashelman v. Pope, 769 F.2d 1360, 1361 (9th Cir. 1985) reh’g granted, opinion withdrawn, 778 F.2d 539 (9th Cir. 1985) and on reh’g, 793 F.2d 1072 (9th Cir. 1986).
Assembled en banc, this Court changed its mind. Yet the twenty-eight years since Ashelman’s en banc decision have shown that Rankin, Beard, and the Ashelman panel were closer to correct than the en banc decision. See, e.g, Johnson v. Duffy, 588 F.2d 740, 743–44 (9th Cir.1978); Starr v. Baca, 652 F.3d 1202, 1218 (9th Cir. 2011); Wallace v. Powell, 3:09-CV-286, 2014 WL 70092 (M.D. Pa. Jan. 9, 2014); 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).
Most recently, in the infamous “Kids for Cash” case Judge Richard Caputo of the Middle District of Pennsylvania found 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’ due process. See Wallace v. Powell, 2009 WL 4051974 (M.D. Pa. Nov. 20, 2009). Judge Caputo found that while Judge Ciavarella was immune from money damages based on the thousands of deprivations occurring inside of his courtroom, he was not immune from claims he conspired to build a detention center into which he illegally sentenced juveniles, or his “placement” and probation policies “which set in motion and furthered the conspiracy that resulted in the deprivation.” Wallace v. Powell, 2014 WL 70092, at *9-11; Doc. No. 163.
Consistent with Rankin, Judge Caputo found such behavior to be a perversion of justice—the “antithesis of the ‘principled and fearless decision-making’ that judicial immunity exists to protect.” Rankin at 847. Such behavior is not entitled to immunity, but punishment. Id.; Imbler v. Pachtman, 424 U.S. 409, 429 (1976). Our Supreme Court has for generations been, and today remains postured in accord. See Rehberg, supra at 1507, n. 1 (“[W]e do not suggest that absolute immunity extends to all activity that a witness conducts outside of the grand jury room.”).
Ashelman retreated from defense of Rankin under criticism from the Fifth Circuit in Holloway v. Walker, 765 F.2d 517 (5th Cir. 1985). Ashelman at 1076-77. The criticism and retreat were errors. Holloway criticized Rankin because it saw a divergence between Rankin and its prior decision in Sparks v. Duval Cnty. Ranch Co., 604 F.2d 976 (5th Cir. 1979). Holloway, 765 F.2d at 522. Holloway reasoned that because Sparks involved a claim to immunity by a judge acting in conspiracy with private parties, and was affirmed by the Supreme Court, Rankin must be error. Holloway at 522.
This Court in Ashelman bowed to Holloway’s criticism of Rankin, yet simultaneously recognized that the “precedential value” of Sparks “is debatable” because the Supreme Court did not grant certiorari on the issue of immunity of the judge, but on whether private parties enjoyed a “derivative immunity” from a judge previously determined to be immune. Ashelman at 1077, n. 2. Rankin also analyzed this issue, but resolved it correctly—against immunity for the “setting in motion” conspiracy. Rankin at 848, n. 9.
Ashelman and Holloway both erred in conflating the concepts of “malice” and “corrupt” from Bradley—merely mens rea, not yet a crime—with the inchoate crime of conspiracy, which is not merely mens rea, but an independent crime by virtue of agreement to commit a (second) crime. United States v. Iribe, 564 F.3d 1155, 1160 (9th Cir. 2009). Ashelman and Holloway construed Bradley to support their conflation of mens rea with inchoate crime, concluding: “Intent should play no role in the immunity analysis”—thus extending immunity not just to the simple case of “adding” an allegation of mens rea to an accused judicial act, but also to the independent crime of conspiracy “setting in motion” a deprivation. Ashelman at 1078. Neither Bradley nor its ancestry support this conflation—none make reference to a common law immunity for inchoate conspiracy. That simple observation is dispositive of this issue: Common law did not immunize conspiracies.
This Court in Ashelman was correct in doubting Holloway’s attack on Rankin—but erred in resolving those doubts in favor of Holloway. Rankin and Sparks are not in conflict, Bradley’s immunity does not encompass the inchoate act of conspiracy, and Ashelman’s retreat from Rankin was error.
The district court’s utterances reading Ashelman as immunizing independent parties, judicial defendants, or prosecutors in conspiracy “setting in motion” deprivation was error.
Ashelman’s “ultimate act” factor originated through McAlester’s “discernment” of the four factor test—there described as “precise act”—later rejected in Sparkman. Sec. VI.D.2, supra. Justice White in Sparkman rejected “precise act” for good reason—it cannot be derived from Pierson, which expressly limited its finding of immunity for Judge Spencer to the judicial act proven by the plaintiff “Freedom Riders” at trial: The core judicial function “to adjudge petitioners guilty when their cases came before his court.” Pierson at 554. The Supreme Court was not presented with a “setting in motion” or conspiracy issue because at trial the plaintiff “Freedom Riders” did not prove a conspiracy:
We find no difficulty in agreeing with the Court of Appeals that Judge Spencer is immune from liability for damages for his role in these convictions. The record is barren of any proof or specific allegation that Judge Spencer played any role in these arrests and convictions other than to adjudge petitioners guilty when their cases came before his court.8
Footnote 8 limits the holding to exclude conspiracy:
Petitioners attempted to suggest a ‘conspiracy’ between Judge Spencer and the police officers by questioning him about his reasons for finding petitioners guilty in these cases and by showing that he had found other ‘Freedom Riders’ guilty under similar circumstances in previous cases. The proof of conspiracy never went beyond this suggestion . . . .
Pierson at 554 (emphasis added). The question excluded was whether Judge Spencer would have been immune against proof that he conspired with Jackson police to harass the “sit in” civil rights activists travelling through Mississippi in the 1960s to protest southern segregation. If the Freedom Riders would have presented more than a “suggestion” (Id.) of a conspiracy, plainly Chief Justice Warren believed that separate analysis of the conspiracy was appropriate. Id. That statement of law is as good today as it was in 1967 and 1872, or for that matter, 1791 and 1776.
In addition, in rejecting the “precise act” element of McAlester’s “four-part” test, Justice White in Sparkman noted that Ms. Sparkman’s conspiracy allegations were not presented because the district court had decided (probably incorrectly) that the conspiring defendants were not “state actors,” and neither party contested that holding. Id. at 364, n. 13.
Finally, unlike Rankin and Harper, which withstood petition for certiorari, neither Ashelman, Holloway, nor Adams have survived review.
For the same reason that Ashelman’s “extension” of Sparkman was an illegal encroachment on exclusive congressional authority, the Supreme Court in Pierson overstepped the limits of Article III jurisdiction. Section 1983 is not a subject for statutory interpretation; clearer language and recorded intent has likely never emerged from Congress. See Monroe at 185-191; Pulliam at 540 (“[E]very Member of Congress who spoke to the issue assumed that judges would be liable under § 1983”); Scheuer v. Rhodes, 416 U.S. 232, 243 (1974) (“[T]he legislative history indicates that there is no absolute immunity”); Pierson at 559. (Douglas, J., dissenting). Given that Chief Justice Warren’s construction benefited primarily those deciding the issue—judges—Pierson’s anomalous methodology is disturbing. Without doubt, the 42nd Congress would agree. Id.
Recognizing the weight of contrary authority, California Coalition respectfully submits the following issue of first impression to any United States court: Pierson stands in error for exceeding the judicial power vested in United States courts under Article III of the United States Constitution, and should be reversed. “[I]f it states a rule undesirable in its consequences, Congress can change it.” Monroe at 185.
Conclusion: “If We Desire Respect For the Law, then We Must First Make the Law Respectable.”
The public to whom our profession has pledged a fiduciary oath, and perhaps our “honorable and often courageous” profession itself, is entitled to an accurate statement of a doctrine so central to the integrity of state and federal courts as absolute immunity. The statement standing in this circuit for 28 years was inaccurate the day it published—a disturbing fact considering it has deprived hundreds of thousands of state and federal court litigants remedy for deprivation of due process and the liberties it preserves.
The district court’s reliance on and expansion of Ashelman was understandable, yet like Ashelman, egregious error.
 Louis D. Brandeis, Other People’s Money (1933).
 Butz v. Economou, 438 U.S. 478, 499 (1978) (“. . . just one federal immunity doctrine . . .”).
 Taylor v. Goodrich, 25 Tex. Civ. App. 109, 110 (1897) did not analyze common law, but a Texas contempt statute.
 Harper v. Merckle, 638 F.2d 848, 857 (5th Cir. 1981) (judge conducting contempt proceedings against family support debtor pursuant to irregular procedure not immune).
 “Among the factors relied on…” Sparkman at 361.
 Harper at 857.
 Adams and Dykes cite the denial of certiorari in Harper (Merckle v. Harper, 454 U.S. 816 (1981)), as indicia of vitality of McAlester’s “four part” test. This deduction is error. Though Harper cites McAlester and Sparkman as “two guiding lights”, Harper reached result on Sparkman’s (controlling) “two-factor” authority. Harper’s result was thus correct, but by means of faulty analysis that resurrected McAlester’s test to equal to Sparkman’s, making denial of certiorari on result proper. See Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 88 (1943). Dykes misread Harper as “focused” only on McAlester’s test, thereby (improperly) perpetuating McAlester at Sparkmans’ expense. Dykes, 776 F.2d 942, 946 (11th Cir. 1985). McAlester’s “light” guides only error.
 Dykes dissenting Judge Hatchett expressed outrage his majority’s adoption of the Fifth Circuit’s immunity “policy”: “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 . . .” Dykes at 954.
 Dykes at 945 (immunity to protect from “apprehension of personal consequence.”); Adams v. McIlhany, 764 F.2d 294 (5th Cir. 1985); Holloway v. Walker, 765 F.2d 517, 522 (5th Cir. 1985) (“freewheeling” policy to immunize judge conspiring to plunder a corporation); and Lerwill v. Joslin, 712 F.2d 435 (10th Cir. 1983). Ashelman at 1075-77. Lerwill was diminished by this Court in Fletcher v. Kalina because it “predates Malley, Burns and Buckley.” Fletcher v. Kalina, 93 F.3d 653, 656, n. 3 (9th Cir. 1996). Ashelman relied on Richardson v. Koshiba, 693 F.2d 911, 913 (9th Cir.1982), which invented a “balancing” test “of the need to protect the rights of citizens by providing a damage remedy for constitutional violations with the need to protect officials in the vigorous exercise of their discretionary authority.” Richardson at 915. Richardson relied on Sellars v. Procunier, 641 F.2d 1295, 1298 (9th Cir. 1981) stating “[i]t is no longer the case, however, that immunity at common law in 1871 is the sine qua non for according public officials immunity under § 1983.” Since Pierson, the correct statement of law is exactly the opposite.
 Pierson at 558-567 (Douglas, J. dissenting); Scheuer v. Rhodes, 416 U.S. 232 (1974) (“[T]he legislative history indicates that there is no absolute immunity”); Pulliam at 540 (1984) (“every Member of Congress who spoke to the issue assumed that judges would be liable under § 1983”).
 “[I]f 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 at 185.
 See FAC ¶¶145 (Stuart Assault Coordinators); ¶368 Count 3 (SDCBA/Federal and City Attorney Defendants); ¶495 (Groch and City Attorney Defendants); ¶509 (Nesthus and Superior Court Judges); ¶553 (Battson/Simi and Schall/Wohlfeil); ¶639 (Supervising Defendants); Counts 9, 10; ¶808 (Doyne and Wohlfeil/Schall); Count 12, ¶913 (Superior Court and Alliance); and all RICO Counts.
 Mireless v. Waco, 502 U.S. 9, 14 (1991) (Stevens, J., dissenting) demonstrates a similar distinction (“petitioner issued two commands…”).
 Randall v. Brigham, 74 U.S. 523 (1868) and cases cited therein.
4. Conform Illegal Restrictions on Civil Rights Claim Pleading
Fourth, California Coalition sets forth arguments that will make pleading for plaintiffs in civil rights cases easier.
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 2007 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:
A District Court Cannot Dismiss Sua Sponte with Prejudice For Curable Rule 8 Issues
Though the Omnibus sought dismissal with prejudice as a sanction under Rule 41(b), the district court bypassed Omnibus analysis, instead analyzing and dismissing under Rule 8(a)(2) alone. ER 10-11. The court rejected the noticed grounds in the Omnibus after California Coalition moved to strike (ER 70-104) that analysis because it was based on an evidentiary declaration of Stephen Lucas, lead counsel on the Omnibus (Doc. Nos. 131-1, 7-13; 161, 47; 162; 164. Mr. Lucas proffered percipient testimony and expert opinion in support of a pleading motion, offering to testify that because he and his “attorney staff” could not “understand” the FAC, it violated Rule 8(a)(2). Doc. No. 131-2, p. 2:6-9; ER 70-104.
California Coalition was entitled to cross examine Mr. Lucas to obtain admissions refuting his opinion, and filed an emergency motion for leave to take early discovery and call him to testify at hearing. Doc. No. 164. The court denied the motion, finding a lack of good cause, but conceded it would ignore “material inappropriate at this stage for consideration.” ER 14. California Coalition thereafter filed objections identifying “inappropriate” material as most of the Lucas declaration and entire Rule 41(b) analysis of the Omnibus, and moved to strike the same. Doc. Nos. 166, 166-1. The court declined to rule on California Coalition’s motion, but the July order nowhere references Omnibus analysis, indicating the court simply ignored it. ER 10.
With the Omnibus decapitated, the court embarked on analysis under Rule 8(a)(2) alone, inserting issues not raised by the Omnibus. ER 8-9; Sec. IV.F, supra. In dismissing on new issues and only under Rule 8(a)(2), the court failed to provide notice and opportunity. See Zinermon v. Burch, 494 U.S. 113, 126 (1990). Due process requires notice of a court’s intent to dismiss an action, the grounds on which the court intends to dismiss, and opportunity to oppose the dismissal.Nelson v. Adams USA, Inc., 529 U.S. 460, 465-68 (2000); Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001).
Further, dismissal under Rule 8(a)(2) alone—without analyzing under an enabling rule such as 41(b)—is error. Rule 8(a)(2) not self-enabling—it is a standard for pleading a claim. See FNB Bank v. Park Nat. Corp., CIV.A. 13-0064-WS-C, 2013 WL 1748796 (S.D. Ala. Apr. 23, 2013); Wright § Miller, 5 Federal Practice & Procedure § 1203 “Relationship Between Rule 8 and Other Federal Rules” (3d ed.). A district court may dismiss a case with prejudice only on the same grounds as parties are authorized to move. Chambers v. NASCO, Inc., 501 U.S. 32, 49 (1991); Oliva v. Sullivan, 958 F.2d 272 (9th Cir. 1992). Because a party cannot move under Rule 8 alone, the district court’s dismissal under Rule 8 alone is error.
Finally, any sua sponte dismissal with prejudice is error unless “the plaintiffs cannot possibly win relief.” Wong v. Bell, 642 F.2d 359, 361-362 (9th Cir.1981). The court made no finding that California Coalition “cannot possibly win relief,” and could never reach such conclusion because the court attacked pleading formalities curable by amendment. See § VI.B.6, infra.
Rule 41(b) Sanction Would Be Error
Should this Court overlook the due process deprivation to analyze dismissal as a sanction, it will find insufficient basis. A court dismissing under Rule 41(b) must make specific findings that “plaintiff fails to comply with these rules or a court order” and regarding “the public’s interest in expeditious resolution of litigation; the court’s need to manage its docket; the risk of prejudice to the defendants; the public policy favoring disposition of cases on their merits; and the availability of less drastic sanctions.” Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). ER 100-121. Terminating sanctions are proper only “where at least four [of the five] factors support dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998).
California Coalition established below that (1) the FAC complied with Rule 8 and all relevant orders, (2) defendants suffer no prejudice by having to read the complaint, (3) public policy favors adjudication of the merits of this dispute, which is directed to remedy fraudulent and extortionate practices of public officials and legal services to California families state-wide, and (4) less “harsh” alternatives such as targeted particularization amendments (MTJN Ex. 3) are available and appropriate at this early stage. ER 100-121. The court’s July order (ER 6) ignored this analysis, failing to “make explicit findings concerning each factor” necessary to dismiss with prejudice. Yourish v. Calif. Amplif., 191 F.3d 983 (9th Cir.1999). Ignoring appellant’s authority and argument was error; due process guarantees opportunity to be heard, not ignored. Zinermon v. Burch, 494 U.S. 113, 126 (1990).
The District Court Construed Rule 8(a)(2) Contrary to the Unambiguous Rule and Rules 8(d) and (e)
The district court construed Rule 8(a)(2) to render restrictions it does not give; prohibitions against “prolixity,” argument, length, and “manageability.” It lifted concepts from dicta in pre-Twombly decisions of this Court analyzing complaints so disorganized they presented not even a single claim, concluding 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). The court ignored Appellants’ analysis of cases distinguishing length and prolixity from intelligibility, and that such defects may be cured by amendment. Doc. No. 161, p. 44-46. See, e.g., Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988); Westways World Travel v. AMR Corp., 182 F. Supp.2d 952, 957 (C.D. Calif. 2001).
The district court’s construction is inconsistent with the unambiguous face 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) unambiguously requires merely that a pleading contain “a short, plain statement of the claim.” It is a threshold, not a ceiling; it prohibits nothing. Extra-textual restrictions are also inconsistent with the “liberal notice pleading of Rule 8(a)” and Rules 8(d) (“No technical form is required.”) and (e) (“Pleadings must be construed to do justice”) which together “reject the approach that pleading is a game of skill . . . and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” Swierkiewicz at 514 (2002); see also Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1132 (9th Cir. 2008).
Rule 8 is not a stringent threshold. It does not require a claim to plead a primafacia case, recite elements, track a jury instruction, or be persuasive. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002); Thomas v. Kaven, 765 F.3d 1183, 1197 (10th Cir. 2014). Claims may be pled in combination, in the alternative, and on inconsistent theories; “the pleading is sufficient if any one of them is sufficient.” Rule 8(d)(2). “[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 Federal Practice & Procedure, § 1217 (3rd ed.). Rule 8 is a lower threshold than even the State of California’s liberal Code of Civil Procedure, which evaluates complaints as a whole, and requires complaints to be “certain.” Cal.C. Civ.P. § 430.10(f).
The district court’s construction of Rule 8(a)(2) contrary to its unambiguous face and other Rules was error.
The District Court’s Expansion of Rule 8 Violates the Rules Enabling Act and the United States Constitution
The district court’s expansive construction of Rule 8 also 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 rights 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 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 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). Access is also a privilege under Article IV of the United States Constitution. Chambers v. Baltimore & O. R.R., 207 U.S. 142, 148 (1907) (“. . . one of the highest and most essential privileges of citizenship.”). The right to seek redress is guaranteed by the First Amendment. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972).
A complaint is the first of many petitioning events in litigation. Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 648 (9th Cir. 2009). A complaint against government is the quintessential “petition.” White v. Lee, 227 F.3d 1214, 1227 (9th Cir. 2000). Even “chilling” petition is illegal. Id. at 1224. A complaint is a 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). Where prosecutors and judges are accused of criminal behavior the public interest in petition and expression is at its apex. Morrison v. Olson, 487 U.S. 654, 727-728 (1988). “It is as much [a citizen’s] 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). A complaint is a legitimate method of identification of illegal behavior under settled law, but also to “clearly establish” what should be illegal. See, e.g., Neitzke v. Williams, 490 U.S. 319, 328 (1989) (“Close questions of federal law . . . have on a number of occasions arisen on motions to dismiss.”). Litigation is a unique forum for truth-seeking; “those involved in judicial proceedings should be ‘given every encouragement to make a full disclosure of all pertinent information within their knowledge.’” Briscoe v. LaHue, 460 U.S. 325, 335 (1983).
Restrictions to protect adjudicative process must survive high scrutiny. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991); 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). Even 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 due process functions throughout the litigation such as defining the nature and scope of discovery, narrowing issues, discovering 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(b) witness harassment restraining order. ER 358. Burdening the contentof testimony is rarely legal. Lane v. Franks, 134 S. Ct. 2369, 2379 (2014).
The district court’s construction imposed impermissibly vague and overbroad restrictions against “verbiage,” “rhetoric,” “argument,” and “manageable.” Wunsch at 1119. A pleader’s error in comprehending such concepts risks pain of dismissal with prejudice—a deprivation of a Fifth Amendment right to remedy and due process, Seventh Amendment right to jury trial—Rule 11 sanctions—a deprivation of property—and in the district court’s contemplation even a citation for contempt—a deprivation of liberty. ER 12.
 At hearing the district judge acknowledged sua sponte dismissal would be inappropriate. ER 27.
5. Stop Harassing Families Attempting to Enforce Their Fundamental Rights!
Finally, California Coalition requested the Court of Appeals find the district judge’s unusual hostility toward California Coalition was so extreme that it deprived California Coalition of its right to due process and an impartial tribunal. California Coalition asked the Court of Appeals to admonish the district judge, and also to grant a “witness harassment restraining order” under the federal criminal code against the San Diego County Superior Court and its general counsel, Kristine Nesthus, to stop its illegal harassment of California Coalition, its counsel, process servers, members, and supporters.
From the brief:
The District Court’s Hostility, Threats, Insults, and Expressed Bias Was a Deprivation of Impartial Tribunal
The transcripts capture one facet of the district judge’s hostility toward Appellants. ER 61 (“better damn well not be more than 30 pages long, sir”); 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?”); ER 55 (“claims that smack of class representation”), and repetitive rattling of Rule 11 sanctions. The hostility penetrated the July order—the district judge revealed she was contemplating a sua sponte contempt citation against Appellants’ filing the FAC. ER 12. While the court did not consummate its threats, their echoes foreseeably chilled advocacy. Sec. V.C.4.a supra.
The record better reflects the district judge’s hostility toward California Coalition’s local counsel, Mr. Adam Bram (identified as “Graham”), as he attempted to appear. ER 38-39. Immediately after the recorded confrontation, Mr. Bram terminated his representation, refusing any further contact.
California Coalition respectfully submits the district judge’s hostility, sua sponte advocacy, and express bias (ER 27—“unfortunately . . . ”) rose to a deprivation of due process and impartial tribunal. Marshall v. Jericho, 446 U.S. 238, 242 (1980); Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). Interference with attorney-client relationship is a California tort. See Skelly v. Richman, 10 Cal. App. 3d 844 (1970).
The deprivation cannot be remedied by appellate relief alone. However, Appellants request that in the event of remand, California Coalition be relieved of obligation to appear by local counsel under Southern District Local Rule 83.3 (c)(5), and such other and further relief as this Court deems just and proper.
California Coalition Was Entitled File Motion for Witness Harassment Restraining Order
California Coalition anticipated defendants’ pattern of harassment would escalate upon filing this action, and drafted the Complaint as a verified pleading and foundation for immediate Rule 65 motion for a witness harassment restraining order consistent with 18 U.S.C. § 1514(b). ER 358-377. These fears were accurate. Mere hours after the Complaint appeared on PACER, Superior Court general counsel Kristine Nesthus instigated Sheriff’s Deputies and state Highway Patrol detectives to track down and threaten California Coalition witnesses and affiliates. ER 208-216. California Coalition immediately filed ex parte application for leave to seek restraining orders. ER 358-377.
The court denied leave, instead sealing the complaint, explaining the sealing “mooted” the restraining order. ER 68. Sealing did not “moot” defendants’ harassment; agents of the Superior Court continued to threaten Appellants’ witnesses, counsel, and process servers, causing them to remain fearful of associating with California Coalition. Doc. No. 4; Sec. IV.B.
Denial of Appellants’ motions was abuse of discretion. California Coalition’s witnesses, counsel, and affiliates remain intimidated, fearful, obstructed from remedy, and deprived of petition, expression, and association, causing ongoing irreparable injury. California Coalition requests this Court remand and instruct the district court grant leave to file, or simply grant, a restraining order consistent with that requested in Doc. No. 4, ER 351-52.
Superior Court Defendants’ Two Failed Sanctions Motions Entitles California Coalition to Counter-Sanctions
Superior Court’s first Rule 11 motion (Doc. No. 23) “cut-n-pasted” the motion to dismiss brought by all judicial defendants (Doc. No. 16), yet only the Superior Court moved for sanctions. Thus, the Rule 11 argued grounds for parties which did not join the motion. See Doc. No. 56. Opposing required hours of tedious unraveling of the Superior Court’s grounds from nonmoving parties. Doc. No. 56, 56-1. Moreover, Superior Court’s motion on the same grounds as the motion to dismiss was an improper “hardball” tactic. Gaiardo v. Ethyl Corp., 835 F.2d 479 (3rd Cir. 1987).
California Coalition’s M&C (Doc. No. 21-1) proposed stipulation for the disposition reached in the first round—leave to amend and time to cure representation and capacity issues. Yet Superior Court insisted on only dismissal with prejudice. Doc. No. 16. The court granted leave and denied Superior Court’s sanctions motion, meaning Superior Court lost both the “hardball” Rule 11 motion and the underlying motion to dismiss. Both of Superior Court’s motions were thus frivolous. ER 48.
Superior Court’s second motion for sanctions (Doc. No. 160) —also a “cut-n-paste” of its joinder (Doc. No. 140) and thus a “hardball” tactic (Gaiardo, supra)—fared even worse. Superior Court effectively lost the Omnibus, “joinder,” and Rule 11—for a second time. ER 12.
Given Superior Court’s record of obstruction for years before and even after this action, “hardball” and frivolous motion practice, and refusing stipulation, Appellants submit the district court abused discretion in denying counter-sanctions. Superior Court knows far higher professional standards, and rightly punishes litigants for unfaithful litigation conduct. California Coalition respectfully requests this Court to do no less, and remand with instructions to determine an appropriate sanction against the Superior Court.
 These utterances were accompanied by emphasizing intonation and facial expressions incapable of citation.
The take-away for family court litigants
Don’t assume a family court judge can achieve judicial immunity—the issue is now on the table after California Coalition’s briefing. However, you can be certain that purely private parties that conspire with a judge to deprive you of rights in your case are not immune.
This is relevant for family court litigants because so many non-judges and private parties clamor to influence judicial decision-making and policy. For example, in California the California Judicial Council produces forms for restraining orders that judges issue at trial. Many county agencies such as county family law facilitator’s offices, and private organizations such as the Family Justice Center Alliance (and the quasi-public San Diego Family Justice Center) regularly use these forms to provide assistance to litigants in seeking domestic violence restraining orders. In February, 2014, California Coalition made a motion for preliminary injunction declaring these restraining orders are illegal because they burden many fundamental civil rights (that issue is also on appeal).
Under Ashelman, judges have assumed that even if the restraining orders are illegal, they are immune from a lawsuit by a litigant restrained by the illegal order. Likely also did the Judicial Council and the public agencies.
Those assumptions are no longer safe. For sure, the private entities such as the Family Justice Center Alliance are not immune under either judicial or qualified immunity—private agencies enjoy no immunity at all under Dennis v. Sparks. This likely also includes private custody evaluators, mediators, coordinators, etc. Also for sure, the county or city agencies such as the San Diego Family Justice Center and County family law facilitator’s offices are not immune for their policies or practices—which enjoy no immunity at all. The question remains about whether state or county individual employees are immune for, as an example, advising litigants how to fill out forms. Because they are agents of the state, they may be able to claim a qualified immunity. However, that probably won’t help them because the rights at stake in the restraining orders are fundamental familial association, property, and liberty rights that have been established for decades (see recent ruling by the District Court in the Swartmore case). Because the restraining orders interfere with fundamental, clearly-established rights, the employees are likely not immune either.
If these issues are relevant to you
California Coalition regularly consults with attorneys who have undertaken engagements for family court litigants. Some are unfamiliar with one or more areas of law relevant to these cases, which involve civil rights, racketeering, federal litigation, and family law. We can assist your attorney in preparing your case. If you don’t have an attorney we may be able to direct you toward attorneys who may be able to help.