No. _________________
____________________
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1995
____________________
DIXIANNE HAWKS, PETITIONER
v.
NINTH CIRCUIT COURT OF APPEALS, RESPONDENT
COUNTY OF BUTTE, DISTRICT JUDGE GARCIA,
CIRCUIT JUDGES SCHROEDER,CANBY AND WIGGINS,
DEFENDANTS-APPELLEES
PETITION FOR A PEREMPTORY WRIT OF MANDAMUS
TO THE NINTH CIRCUIT COURT OF APPEALS
Dixianne Hawks John E. Wolfgram, Assoc. Counsel
In Propria Persona Constitutional Defender Association
13803 N. Granada Drive 4826 South Studebaker Road
Magalia, California 95954 Placerville, California 95667
(916) 877-4636 (916) 642-1776
# # #
QUESTIONS PRESENTED
1. Is the Right to Petition Government through the Courts
for Redress of Grievances with Government, its officers or
agents, a First Amendment Political Right entitled to all the Due
Process protections against chilling or prior restraint of its
exercise as are any other First Amendment Rights?
2. If not, what Constitutional Standards are to be
applied? (Compare this Court's tolerance of IFP Petitions in Day
v Day, 510 US ___, to the action taken in this case when
Plaintiff had filed only one previous, successful IFP appeal.)
3. Where a litigant has been certified to proceed in forma
pauperis by the District Court, can the District Court then de-
certify the IFP status solely on the basis that an appeal is
taken in bad faith and do so without notice or hearing on the
issues of bad faith or frivolity of the appeal?
4. Are the issues raised in the Appeal to the Ninth
Circuit so frivolous as to justify denying this IFP Plaintiff a
hearing on the merits of Her appeal? Those issues are as
follows:
i. Does the Right to sue Judges for Declaratory
Relief, as set out in Pulliam v Allen, 466 US 522,
include the right to sue federal judges notwithstanding
the Ninth Circuit ruling in Mullis v U.S. Bankruptcy
Court, 828 F2d 1385?
ii. Are the Judicial Immunity holdings of Bradley v
Fisher, 80 US (13 Wall) 335 (1872), and its progeny, an
unconstitutional abridgment of the Right to Petition
Government for Redress of Grievances with Government,
and are they improvident in light of historic events,
including the democratic trends in our institutions,
and the human rights treaties ratified by the United
States, such that the United States Supreme Court may
want to re-examine that doctrine (of immunity from
accountability for violations of Constitutional Rights)
under its modern understanding of Petition Clause law,
and consistently with its duties to give good faith
effect to the treaties of the United States?
Introduction: Page i of 3
TABLE OF CONTENTS
Questions Presented........................................i
Table of Contents (this page).............................ii
Table of Cases...........................................iii
History of the Case........................................1
Jurisdictional Statement...................................5
1. Aid to Court's Appellate Jurisdiction.............6
2. Presence of Exceptional Circumstances.............9
3. Adequate Relief Cannot Be Obtained Elsewhere.....10
Petition for Writ of Mandamus:
The Comparable Standard Applied by This Court........12
The Right to Petition in Courts
is a First Amendment Right ...............................13
The Coppedge Standard.....................................16
The 28 USC 1915 Standard of Good Faith....................17
The Rule of Law to be Applied in This Case................20
Reasons for Granting the Petition.........................21
Prayer....................................................24
Sworn Declaration under Penalty of Perjury................24
Exhibit 1: Judgment, Memorandum and Order of July 27, 1995
Exhibit 1a: Plaintiff's First Amended Complaint (FAC)
Exhibit 2: District Court's "Bad Faith" Order
of October 4, 1995
Exhibit 3: Plaintiff's Motion to Strike Order
of October 4, 1995
Exhibit 4: Plaintiff's Supplement to Motion to Strike
Exhibit 5: Defendants' Opposition to Motion to Strike
Exhibit 6: Circuit Court's Order of December 8, 1995
Exhibit 7: Plaintiff's Opening Brief Lodged December 11, 1995
Exhibit 8: Circuit Court's Dismissal Order of December 27, 1995
Exhibit 9: Affidavit of John E. Wolfgram in Support of Petition
Exhibit 10: Letter from Supreme Court Clerk Rejecting Brief
Introduction: Page ii of 3
TABLE OF CASES
United States Supreme Court:
Bradley v Fisher, 80 US (13 Wall) 335 (1872)...............8
Chambers v Baltimore & Ohio R.R. 207 US 142 (1907)........13
Coppedge v United States, 369 US 438 (1962).......16, 17, 18
California Transport v Trucking Unlimited, 404 US 508 (1972)
..........................................................13
Day v Day, 510 US ____, 126 L Ed 2d 1.............12, 13, 21
Pulliam v Allen, 466 US 522.................3, 8, 15, 22, 23
United States Court of Appeals:
Mullis v U.S. Bankruptcy Court, 828 F2d 1385 (9th Cir.)
....................................................3, 8, 23
California Supreme Court:
City of Long Beach v Bozek, 31 Cal.3d 527 (1982)..........14
Constitution for the United States:
First Amendment Petition Clause.4, 9, 13, 14, 15, 16, 17, 20
Fifth Amendment Due Process Clause.....................4, 13
Supremacy Clause...........................................7
Treaties:
International Covenant on Civil and Political Rights.7, 8, 9
Universal Declaration of Human Rights...................6, 7
Federal Statutes:
28 USC 1651................................................5
28 USC 1915...................................16, 17, 18, 20
42 USC 1983................................................2
42 USC 1985................................................3
Court Rules:
Supreme Court Rule 20.1...................................16
Federal Rules of Civil Procedure (FRCP) Rule 15.........2, 3
Federal Rules of Civil Procedure (FRCP) Rule 54(b).....3, 17
9th Circuit Rule 42-1..................................5, 11
Introduction: Page iii of 3
# # #
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1995
In re: DIXIANNE HAWKS, No. _______________________
Plaintiff-Appellant-Petitioner
9th Circuit Court of Appeals:
v. Appeal Case No. 95-16714
Civil Case No. 93-82-WBS
(Eastern District of Calif.)
COUNTY OF BUTTE, DISTRICT JUDGE
GARCIA, CIRCUIT JUDGES SCHROEDER,
CANBY, AND WIGGINS, PETITION FOR
WRIT OF MANDAMUS
Defendants-Appellees
_______________________________/
NINTH CIRCUIT COURT OF APPEALS,
Respondent
_______________________________/
COMES NOW Dixianne Hawks, hereinafter "Plaintiff"
petitioning this Honorable Court for a Writ of Mandamus
compelling the Ninth Circuit Court of Appeals to: (a) grant IFP
status to the Plaintiff, (b) order Respondent Court to Strike the
District Court's Order of October 4, 1995, (c) vacate the Circuit
Court's Order of December 8, 1995, (d) vacate the Circuit Court's
Order of December 27, 1995, and (e) deem the Opening Brief filed
as of December 11, l995.
History of the Case
Note: This History is substantially similar to the History
set out at pages 2-7 in the Motion to Proceed In Forma Pauperis
(IFP).
On August 20, l990, Plaintiff was exercising the political
freedoms of speech and petition in Butte County by handing out
political leaflets commonly known as "FIJA leaflets" to Persons
in places open to the public. Thereafter, Butte County Defendants
began and maintained a criminal prosecution of Plaintiff for
those acts that lasted until January l992. Then, with a series
of face-saving defamations of Her, Butte County Defendants
dismissed the persecution. (First Amended Complaint (hereinafter
"FAC") 2:3 et seq., Exhibit 1a.)
Petition for Writ of Mandamus:
Page 1 of 27
Petitioner is a disabled American whose only source of
income is Social Security. Exactly one year after the dismissal,
on January 13, 1993, She again exercised Her First Amendment
Right for Redress of the above described grievance with local
government by filing a 42 USC 1983 complaint in the United States
District Court for the Eastern District of California, along with
a Motion to Proceed IFP, against Defendants Butte County,
District Attorney Michael Ramsey, Municipal Court Judge Jerome E.
Warren, and 10 Does. The immediate purpose was to toll the
statute of limitations until She could get help to draw up an
amended complaint. Her expectations were pursuant to FRCP Rule
15. She had made previous arrangements for assistance of counsel
to draw up an amended complaint within two weeks of filing. (See
Exhibit 5 at page 2:8 et seq.)
On January 20, 1993, a week after filing, United States
District Judge Edward Garcia granted in forma pauperis status,
but ordered said complaint dismissed with prejudice, without
hearing, without motion, and without notice, on grounds that it
was frivolous under 28 USC 1915(d) (hereinafter "First
Dismissal," see FAC 8:3).
Plaintiff then appealed the First Dismissal to the Ninth
Circuit (hereinafter "First Appeal"), contending that, no
defendants having appeared, She had a due process right to amend
under Rule 15 and Judge Garcia had no jurisdiction to dismiss
with prejudice. Initially, Ninth Circuit Judges Schroeder,
Canby, and Wiggins affirmed the dismissal.
Petition for Writ of Mandamus:
Page 2 of 27
Plaintiff then petitioned for rehearing, stressing the equal
rights of an IFP litigant to amend under Rule 15. Rehearing was
granted, but the issues appealed were still not addressed. The
Circuit Court affirmed the dismissal as to Judge Warren on
grounds of judicial immunity; affirmed as to Doe defendants;
affirmed in part and vacated in part the dismissal as to the
claims against District Attorney Ramsey; and vacated the
dismissal of Plaintiff's claims against the County of Butte. Its
basis for vacating was that Judge Garcia had abused his
discretion. (See FAC 9:8 et seq.)
Plaintiff moved for rehearing on the basis that Judge
Garcia, proceeding without notice or hearing and in the face of
Rule 15, had no "discretion" to abuse due process. Her motion was
denied and the case was remanded to the District Court for
further proceedings consistent with the Circuit Court's previous
order. Plaintiff then filed Her First Amended (and Supplemental)
Complaint on November 21, 1994, conforming to the requirements of
the Circuit Court. In addition to amending, Plaintiff sued Judge
Garcia and Circuit Judges Schroeder, Canby and Wiggins in the
Fifth and Supplemental Cause of Action for Violations of Her
Petition and Due Process rights and of 42 USC 1985. The
Supplement was pleaded pursuant to this Court's opinion in
Pulliam v Allen, 466 US 522.
Petition for Writ of Mandamus:
Page 3 of 27
The case was assigned to United States District Judge
William B. Shubb. He granted Defendant Judges' motion to dismiss
on grounds of judicial immunity, holding that Pulliam did not
apply to federal judges per Mullis v U.S. Bankruptcy Court, 828
F.2d 1385 (9th Cir.). Of particular relevance here is that, in
oral arguments, Plaintiff requested Judge Shubb, should he
dismiss, to certify it pursuant to FRCP 54(b) so that his ruling
could be appealed independently. (There was an obvious Pulliam
versus Mullis issue.) He did that, and entered final judgment on
July 27, 1995 (see Exhibit 1), allowing Plaintiff to appeal under
FRCP 54(b) and effectively bifurcating this case from the suit
against Butte County. Plaintiff filed Notice of Appeal on August
23, 1995 (hereinafter "Second Appeal")./1
Thus, on October 4, 1995, Judge Shubb issued an "Order,"
without notice or hearing, "certifying" that Plaintiff's Second
Appeal "is not taken in good faith" (see Exhibit 2). That Order
effectively denied Plaintiff's IFP status for appeal under 28 USC
1915(a) and, as a practical matter, arbitrarily violated Her
Petition and Due Process Clause Rights based upon IFP status.
On October 12, 1995, Plaintiff filed a Motion to Strike the
Order of Judge Shubb of October 4, or, in the Alternative, for an
Order to Show Cause Why It Should Not Be Stricken (hereinafter
____________________
1 The Point: If Judge Shubb wished to certify that the Second
Appeal was in bad faith under 28 USC 1915(a), he could have
raised the issue during oral arguments, or in his Memorandum and
Order, and he could have allowed Plaintiff a due process
opportunity to be heard. If, on hearing, he was not persuaded of
Her good faith, Plaintiff could have timely petitioned the
Circuit Court for leave to appeal IFP. But, not only did he not
offer such a hearing, he also gave Plaintiff no clue that he felt
Her Second Appeal was in bad faith, even after certifying for a
Rule 54(b) appeal. Instead, he waited ten weeks; and six weeks
after he lost jurisdiction by the appeal, and after a briefing
schedule was already set, he then issued his order, without
notice, without hearing, and without apparent cause.
Petition for Writ of Mandamus:
Page 4 of 27
"Strike Motion," see Exhibit 3); and, on October 19, 1995, She
filed a Supplement to the Strike Motion (hereinafter "Strike
Supplement," see Exhibit 4). On October 24, 1995, Defendants
filed their "Federal Defendants-Appellees' Opposition to Motion
to Strike Order of Judge Shubb" (hereinafter "Strike Opposition,"
see Exhibit 5). Plaintiff did not receive a copy of the Strike
Opposition and, therefore, did not file a rebuttal.
The Court of Appeals waited until December 8, 1995, to issue
its order denying IFP status (see Exhibit 6). That Order
declared: "Our independent review of the record indicates that
appellant is not entitled to IFP status for this appeal. See 28
USC 1915(a)." It ordered Plaintiff to pay filing fees within 14
days (December 22, 1995) and file proof of payment with the
Circuit Court; it also declared that: "Failure to pay the fees
will result in the automatic dismissal of the appeal by the Clerk
for failure to prosecute, regardless of further filings. See 9th
Cir. R. 42-1." [emphasis added]
In the meantime, Plaintiff's Opening Brief (see Exhibit 7)
was due and She served and "filed" it on December 11, 1995, prior
to receiving notice of the December 8 Circuit Order. The status
was that Plaintiff's Opening Brief was lodged in the Appeals
Court, but She had no money with which to pay filing fees, and
the Court had ordered an "automatic dismissal" for "failure to
prosecute," regardless of further filings, which even included an
application to proceed IFP.
Petition for Writ of Mandamus:
Page 5 of 27
On December 22, 1995, Plaintiff mailed Her petition to This
Court; it was returned for failure to comply with certain
Supreme Court rules (see Exhibit 10). In the meantime, the
Circuit Court dismissed for "failure to prosecute" on December 27
(see Exhibit 8).
Plaintiff now petitions to this Honorable Court for relief
from the procedural irregularities, arbitrary customs, unlawful
procedures and unconstitutional practices documented herein,
reflecting a policy of discrimination against the poor, just
because they are poor. That policy creates numerous artificial
barriers collectively calculated to become insurmountable and to
render the right to petition government for redress of grievances
ineffective and unavailable to the poor.
Jurisdictional Statement
Dismissal from the Ninth Circuit was ordered December 27,
1995.
The issuance of an extraordinary Writ of Mandamus is
authorized by 28 USC 1651(a) as a matter of discretion which is
sparingly exercised. (Rule 20.1) To justify granting such a
Writ, Plaintiff shows that: (1) the Writ will aid in the Supreme
Court's appellate jurisdiction, (2) there are exceptional
circumstances warranting the exercise of the Court's
discretionary powers, and (3) adequate relief cannot be obtained
in any other form or from any other court.
1. Aid to Court's Appellate Jurisdiction
The underlying problem is that the federal District and
Appellate Courts have adopted a summary procedure that provides
neither notice nor hearing by which to adjudicate the merits of
IFP petitions. The result increases the burden of litigation upon
IFP litigants and effectively prevents them from entering the
mainstream litigation processes over which this Court's appellate
jurisdiction is exercised.
Petition for Writ of Mandamus:
Page 6 of 27
Plaintiff submits that, in a balanced democratic society,
issues raised in Petition cases by impoverished litigants are as
important to the exercise of this Court's appellate jurisdiction
as those raised by persons who enjoy more favored financial
circumstance. The issues of the poor are often issues of
substantial merit reflecting their own circumstances and not
encountered by those more fortunate.
The IFP status not only gives the poor access to the courts,
but it gives the courts access to an important distributive
orientation of justice.
Thus, for example, the Universal Declaration of Human Rights
(Gen. Assem. Res. 217(A)(III)) contains several articles
specifically addressing equal access to the law. Among them is
Article 2, to wit:
Everyone is entitled to all the rights and freedoms set
forth in this Declaration without distinction of any
kind, such as race, colour [sic], sex, language,
religion political or other opinion, national or
social origin, property, birth or other status.
[emphasis added]
On point is Article 7:
All are equal before the law and are entitled without
any discrimination to equal protection of the law. All
are entitled to equal protection against any
discrimination in violation of this Declaration and
against any incitement to such discrimination.
[emphasis added]
The Universal Declaration of Human Rights is a Treaty that
not only forms a basis by which nations must respect the human
rights it enshrines, but Article 8 specifically mandates that:
"Everyone has the right to an effective remedy by the
competent national tribunals for acts violating the
fundamental rights granted him by the constitution or
by law." [emphasis added]
Petition for Writ of Mandamus:
Page 7 of 27
The International Covenant on Civil and Political Rights
(Gen. Assem. Res. 2200 A (XXI)) is also a treaty of the United
States, ratified by the Senate on April 2, 1992, and confirmed by
President Bush on June 1, l992. It not only contains covenants
identical to Article 2 above, but its own Article 2 requires
State parties:
"(3)(a) To ensure that any person whose rights or
freedoms as herein recognized shall have an effective
remedy notwithstanding that the violation has been
committed by persons acting in an official capacity."
[emphasis added]
Part (3)(b) requires that state parties "develop the
possibilities of judicial remedy."
This is directly on point in the instant case. This Court
cannot effectively exercise its jurisdiction under the Supreme
Law of the Land when cases involving the judicial concerns of a
major portion of society -- the poor -- are systematically
excluded by District and Circuit Courts from the judicial process
by which this Court selects cases for review. (See Supremacy
Clause.)
For example, today Butte County and its District Attorney
are being held to account under the law for abuses of government
power by politically persecuting Plaintiff for exercising Her
Petition Rights. Plaintiff alleges that what Butte County
officials did violated Her rights under Articles 9, 17, 19 and 21
of the International Covenant.
Petition for Writ of Mandamus:
Page 8 of 27
Defendant District Judge Garcia's First Dismissal prevented
any judicial remedy, but for the First Appeal; and the Defendant
Circuit Judges prevented all judicial remedy, but for rehearing
and the extraordinary efforts not usually expected of an IFP
Plaintiff. But the result was that the Defendants perpetuated
the procedural mechanism by which they arbitrarily foreclose such
appeals in all but the most determined cases.
Those procedural mechanisms not only circumvent the due
Appellate Jurisdiction of this Court as to poor persons, but,
insofar as this Court is a branch of the United States
Government, they usurp this Court's ability to perform its
supervisory obligation to ensure United States good faith
compliance with its treaties adopted to defend human and
political rights around the world.
In this Second Appeal, Judge Shubb combined with the Appeals
Court to accomplish the same thing once again. Two major issues
important to this Court's appellate jurisdiction are at stake.
One is whether this Court's ruling in Pulliam should predominate
over the rule set by the Ninth Circuit in Mullis. The other is
that, given the changing times reflected in the above Treaties,
and given the faulty rationale of Bradley obstructing
developments in governmental account-ability under the
Constitution for 123 years, this Court is being pre-empted from
choosing to reexamine the entire notion of judicially created
immunities./2
____________________
2 A major thrust of the Opening Brief is that Bradley and its
progeny violate fundamental rights guaranteed by the Constitution
and, for this reason, they should be reexamined in light of
modern developments championed by the United States and extending
to other world democracies.
Petition for Writ of Mandamus:
Page 9 of 27
Wherefore, the District and Appeals Courts' unlawful
mechanism of reviewing the merits of Petitions for Redress of
Grievances against Government, without notice or hearing and
because of IFP status, circumvents this Court's Appellate
Jurisdiction and undermines its ability for good faith compliance
with its Treaty obligations, specifically to "develop effective
judicial remedies notwithstanding that the violation was
committed by persons acting in an official capacity." (See
International Covenant, Art. 2, Secs. 3(a)-(b).)
2. Presence of Exceptional Circumstances
The first exceptional circumstance is that this case
involves the First Amendment Petition Clause in the most
protected meaning of that Clause. It is not simply that
Plaintiff's Petition in the Courts is being barred; Plaintiff is
Petitioning Government to Redress Her Grievances with Government
and, in both cases, the "Government" is the Judiciary. In effect,
federal judges are arbitrarily and capriciously preventing a
Petition to redress grievances of a Constitutional magnitude
against other judges, and the prior restraint is ordered without
notice or hearing and because of Plaintiff's poverty.
Plaintiff's Opening Brief as lodged with Respondent is
attached as Exhibit 7. In the sense of Res Ipsa Loquitur, it
documents the several reasons why Plaintiff believes there is a
secret federal court policy to deny due process on the basis of
poverty. While it may (or may not) be true that Judges do not
want to review the issues presented, there is absolutely no way
this Second Appeal can be said to be frivolous or in bad faith.
Petition for Writ of Mandamus:
Page 10 of 27
That secret policy is aimed at the poor because only IFP
cases are dismissed with prejudice and without motion, without
notice, and without hearings. Only IFP appeals are subject to
the arbitrary and capricious summary reviews for "merits" that
have stopped this appeal cold, even as the Opening Brief was
being filed ("lodged").
In direct defiance of this Court's supervisory powers, this
secret, unlawful policy is being maintained by a conspiracy now
involving at least two federal District Court Judges and five
Circuit Court Judges, and its logical effect is seriously to
impair this Court's supervisory authority over the United States
Judiciary and to undermine the integrity of that Judiciary.
Moreover, the policy is being maintained under color of
judicial immunity, a doctrine which has outgrown its usefulness
and encourages much abuse and usurpation of powers which Our
Constitution was specifically adopted to limit and restrain. The
interplay between an unspoken and secret policy of prejudice
against IFP litigants, on the one hand, and a stagnating,
unconstitutional and regressive doctrine of judicial and quasi-
judicial immunity, on the other hand, provides this Court with
ample justification to grant the Mandamus to return this case to
the mainstream of appeals.
Once in this mainstream, the issues can crystallize so that,
should Providence so require, this Court may intelligently
exercise its powers to review the immunity doctrine in the
historical context of America's unfortunate experience with the
Divine Right of Kings, and to correct its own course, as it finds
Our Constitution to so require.
Petition for Writ of Mandamus:
Page 11 of 27
3. Adequate Relief Cannot be Obtained Elsewhere
Given the history of this case, there is no reason to
believe that Plaintiff is the only person being so prejudiced,
nor that it only happens in the Ninth Circuit. The evidence is of
systematic denials of due process for IFPs, and the only reason
it appears to be focused on Plaintiff, is because She is fighting
the prejudice so ferociously.
Thus, the first reason that relief cannot be obtained
anywhere else is this: The history herein demonstrates that,
unless the systemic flaw is fixed, similar due process violations
will injure many more people; and the Respondent Court will
simply find another opportunity to injure the Plaintiff in the
future, just as Judge Shubb's no-notice-no-hearing order merely
replaces Judge Garcia's, and just as the Appellate Court's second
order merely replaces its first order in refusing to address
Judge Garcia's violations of due process on the First Appeal.
The second reason is that, based upon Judge Shubb's
certification that the Second Appeal was not taken in good faith,
the Respondent set a deadline for payment of filing fees and
ordered that:
"Failure to pay the fees will result in the automatic
dismissal of the appeal by the Clerk for failure to
prosecute, regardless of further filings. See 9th Cir.
R. 42-1." [emphasis added]
Plaintiff was presented with an impossible choice. On the
one hand, She could opt for automatic dismissal by failing to pay
the fees; on the other hand, She could opt to sell Her clothes
and liquidate other meager property essential to the minimal
enjoyment of Her life, in order to raise enough money on the
Friday before Christmas to prevent such an automatic dismissal.
Petition for Writ of Mandamus:
Page 12 of 27
Under the former alternative, She was denied Her First Amendment
Right to Petition the appropriate branch of Government for
Redress of Grievance with that branch, while the substance of Her
grievance speaks for itself in the Opening Brief that is lodged,
but not actually filed, with the Respondent. Under the latter
alternative, She was thrust, against Her will, still deeper into
poverty by further, undeniable evidence of the federal court
prejudice against IFP litigants, which prejudice is one cause of
action to be litigated in this case. (Res Ipsa Loquitur)
Without the supervisory intervention of the Supreme Court,
there will be no end to this capricious process. Whenever lower
court judges choose to disagree with Her political, legal or
constitutional theories, they simply pull the IFP plug and toss
Her out of court, this time with an automatic dismissal.
Petition for Writ of Mandamus:
The Comparable Standard Applied by this Court
In a Per Curiam Decision in Day v Day, 510 US ____, 126 L
Ed2d 1, this Court set a standard by its own example for denying
the right to proceed in forma pauperis, saying:
"Day is an abuser of this Court's certiorari process.
We first invoked Rule 39.8 to deny Day in forma
pauperis status last June. (See In Re Day, 509 US
____, 125 L Ed 2d 686, 113 S Ct 2991 (1993). At that
time he had filed 27 petitions in the past nine years.
Although Day was granted in forma pauperis status to
file these petitions, all were denied without recorded
dissent. Since we first denied him in forma pauperis
last June, he has filed eight more petitions for
certiorari with this Court -- all of them demonstrably
frivolous." ibid.
Petition for Writ of Mandamus:
Page 13 of 27
By contrast, this is Plaintiff's Second Appeal to the Ninth
Circuit. Her first was filed in 1993 on the underlying case, and
She won a reversal on the basis that Judge Garcia had abused his
discretion in dismissing Her Original Complaint.
In the instant case, there is no history of repeated
litigation, no history of abuse, no evidence of frivolity -- just
evidence of a political disagreement with Judges on one major
issue: She thinks the First Amendment includes the right to
petition government for redress of grievances through the courts,
and that it is a right protected by the Petition and Due Process
Clauses, notwithstanding 28 USC 1915. The Due Process Clause
prescribes a very high standard for allowing "prior restraint" or
"preemptive abridgment" of First Amendment exercises.
Plaintiff, not knowing the history of the Day cases, has no
opinion as to whether this Court's decision there (which did not
address First Amendment issues) actually met the balancing test
of compelling state interest. However, there can be no doubt that
this Court took the denial of IFP status very seriously, much
more seriously (i.e. 35 times more seriously) than did the
District and Circuit Courts in this case.
The Right to Petition in Courts
Is a First Amendment Right
In stressing the importance of the Petition Clause, this
Court recognized its central role to all civilization, saying in
Chambers v Baltimore & Ohio R.R., 207 US 142, 148 (1907):
"The Right to sue and defend in the courts is the
alternative of force. In an organized society, it is
the right conservative of all other rights and lies at
the foundation of orderly government." [emphasis
added]
Petition for Writ of Mandamus:
Page 14 of 27
As stated at page 9 supra, as an "exceptional circumstance"
the right to petition in courts is a fundamental right guaranteed
by the First Amendment. (See California Transport v Trucking
Unlimited, 404 US 508, 510 (l972); and the Opening Brief, Exhibit
7, page 26 et seq.) As set out at length in pages 6 and 7 supra,
the United States is now bound by treaty commitments to the world
in order to expand the effectiveness of judicial remedies for
violations of fundamental rights, notwithstanding that the
violation is committed by persons acting in an official capacity.
There is an inherent ambiguity in the Petition Clause.
Because government controls all judicial processes, any lawsuit
can be said to be a "Petition to Government to Redress
Grievances," whether the grievance is with private persons or
with government. That, generally and without distinction, is the
context in which this Court has addressed the issue and
recognized that access to courts, and petitioning through the
courts, is a First Amendment Right.
But, in a much stronger sense the Petition Clause is the
focal point of the First Amendment when a petition to the courts
is a petition to redress grievances with the courts themselves.
One case addressing this distinction is City of Long Beach v
Bozek, 31 C3d 527./3
____________________
3 This Court granted certiorari, then remanded to determine
whether the decision was under state or federal constitutions,
then vacated for lack of a federal question. Plaintiff does not
have the relevant citations.
Petition for Writ of Mandamus:
Page 15 of 27
In this latter sense, the right to petition government for
redress implies the Right to effective, compulsory means to
obtain redress for wrongs by government. In that sense, the
Petition Right is the most important of all rights because,
without it, government cannot be held to account for its wrongs;
and with it, every person has the effective right to compel
government to obey the law with respect to his rights, and to
command just compensation for injuries he has suffered. (See
Chambers supra.) Plaintiff believes that, in this latter sense,
the Treaties mentioned give depth and meaning to our own Petition
Clause, upon which they were based.
This is the sense in which Plaintiff comes before this
Court. Initially, She was wronged by state and local government,
and She petitioned the federal judiciary for compulsory redress.
Once in federal court, She was wronged by Judge Garcia. She then
petitioned a higher court for redress of that wrong. The higher
court also wronged Her, but mitigated the wrong that was first
appealed by finding that Judge Garcia "abused his discretion."
The problem then was that the Appeals Court refused to
address the violation of Her Due Process and Petition Rights,
thereby demonstrating a secret federal policy to violate such
Rights of IFPs because of poverty. So, believing that Her case
fell within the ambit of Pulliam v Allen, 466 US 522, She
petitioned again in federal court by suing the judges to obtain
the relief allowed by Pulliam, a case which did not make a
distinction between federal and state judges. Judge Shubb
dismissed that case on the basis of judicial immunity. Her
present appeal is Her "Petition" to redress the wrong She
believes Judge Shubb committed by ruling that some people
(judges) are above the Constitution. Her appeal has two prongs:
(1) that Judicial Immunity is unconstitutional and (2) that this
case is within Pulliam.
Petition for Writ of Mandamus:
Page 16 of 27
In the sense that Plaintiff's petition to government seeks
redress for wrongs by that very same government, from Her
perspective, requiring anyone to pay a fee to access the
Judiciary to exercise that kind of petitioning violates and
abridges the Petition Clause.
For Plaintiff and the class of persons She represents (the
impoverished), requiring them to pay petition fees to seek
redress from a government that has wronged them is the Hallmark
of the arrogance of Marie Antoinette: When told that the people
had no bread, She responded, "Then let them eat cake." History
records, for that remark, She paid dearly with a visit to
Monsieur Guillotine.
Plaintiff submits, the right to petition courts to declare
violations of fundamental rights, whether or not damages are
sought, is an extremely valuable right guaranteed by the First
Amendment.
THE PROBLEM: 28 USC 1915 provides judges with authority to
review IFP complaints and appeal issues for frivolity. The
Supreme Court has set some standards by which judges are to
determine whether or not issues are frivolous, even providing in
some cases that a judge is to appoint an attorney to assist
indigents in presenting the issues.
Petition for Writ of Mandamus:
Page 17 of 27
The lead case is Coppedge v United States, 369 US 438, 8 L
Ed 2d 21 (1962). There this Court held that the request of an
indigent to appeal IFP MUST be allowed, unless the issues s/he
seeks to raise are so frivolous that the appeal would be
dismissed in the case of a non-indigent litigant. That requires
a duly noticed hearing.
The Coppedge Standard
Coppedge was a criminal indigent case, but that should not
distinguish it from a civil Petition Clause case where, as here,
Constitutional Rights are an issue between a private party and
government. After all, Constitutional Rights are Constitutional
Rights; they do not depend upon the status of the person(s)
seeking redress. In Coppedge this Court determined:
"It is the Duty of the United States Supreme Court 'to
assure to the greatest degree possible within the
statutory framework for appeals created by Congress,
equal treatment for every litigant before the bar.'"
Coppedge supra at 446-447 [emphasis added]
The Court went on to explain:
"'The point of equating the test for allowing a
pauper's appeal to the test for dismissing paid cases,
is to assure equality of consideration for all
litigants.' The equation is intended to place the
burdens of proof and persuasion in all cases on the
same party -- in these cases, on the government. Since
our statutes and rules make an appeal in a criminal
case a matter of right, the burden of showing that that
right has been abused through the prosecution of
frivolous litigation should, at all times, be on the
party making the suggestion of frivolity." Coppedge
supra at 447-448 [emphasis added]
Who is to bear the burden? Answer: the party alleging
frivolity. That is important, because it suggests the notice and
hearing of an adversarial proceeding in which the burden is on
government to prove to a disinterested judge that the appeal is
frivolous.
Petition for Writ of Mandamus:
Page 18 of 27
In the instant case, no "party" made the suggestion; the
Judge just took it upon himself. He provided no notice, no
hearing and, far from an adversarial proceeding before a
disinterested judge, he became the advocate for government, on
his own behalf. How can that possibly be the "due process"
necessary to determine Petition Clause Rights against the very
judge whose ruling was the subject of the appeal?
The 28 USC 1915 Standard of Good Faith
This Court said of the "good faith" requirement in 28 USC
1915 that the test was not subjective good faith (as from the
perspective of the would-be appellant). Rather, it ruled, "We
hold, instead, that 'good faith' in this context must be judged
by an objective standard." Coppedge at 369 US 445 [emphasis
added]
If an objective standard is necessary to determine "good
faith," then logic dictates that an objective standard is
necessary to deter-mine "bad faith." In fact, in this case, the
determination of "bad faith" occurred completely in the mind of
the very judge whose ruling was being appealed. If he applied any
"subjective objectivity," the only evidence that he did so is his
notation that this was Plaintiff's "Second Appeal," but that is a
notation of form over substance. Plaintiff's First Appeal was
from Judge Garcia's ruling, before the Appellees were named as
parties. This Second Appeal does not concern the parties
defendant at the time of the First Appeal. In fact, Judge
Shubb's notation is itself a "bad faith" failure to recognize his
own bifurcation of the case by his FRCP Rule 54(b) ruling.
Petition for Writ of Mandamus:
Page 19 of 27
The Point: In Petition Cases, there is only one way to
safeguard the judicial interests declared in Coppedge, and that
is with noticed motions and hearings. If the government party
does not think that the issues are so frivolous as to warrant a
"noticed suggestion" upon which it will objectively carry its
burden, it is not incumbent upon the judge to take "judicial
notice," in the privacy of his own mind, to determine that a
petition to government for redress is frivolous. What has
been consistently ignored in the District Court by Judges Garcia
and Shubb, and in the Circuit Court by Judges Canby, Wiggins,
Schroeder, Snead, and Trott, are fundamental rules of Due
Process, to wit:
1. Congress did not intend by 28 USC 1915 to authorize
judges to violate Due Process, or any of the other fundamental
Rights of indigents, in the name of judicial expediency or
administrative efficiency. In the face of a First Amendment that
says: "Congress shall make no law ... abridging ... the right of
the people ... to petition the Government for a redress of
grievances," then this Court MUST presume that Congress did not
intend that courts should, under its law, abridge the substance
of Petition Rights.
2. The Supreme Court has not, by any previous rulings,
authorized lower courts to formulate and implement policies that
violate the fundamental human Rights of indigents in the name of
judicial expediency or administrative efficiency.
3. No federal judge, whether of the District or the
Appellate Courts, is authorized by virtue of his position to
violate the fundamental rights of any persons just because they
are indigent.
Petition for Writ of Mandamus:
Page 20 of 27
These propositions are so elementary that all judges are
expected to know them. No judge would presume, when the question
is put to him, that Congress intended a statute to vitiate
fundamental rights that are guaranteed by the Constitution; nor,
when the Supreme Court issues an opinion that requires further
interpretation, would any judge believe that, on the strength of
ambiguity, the Court has authorized him In Its Name to violate
rights guaranteed by the Constitution; nor does any judge
believe that he is so authorized by virtue of his appointment.
If these things are not in doubt, then there can be no doubt
that, in all judicial proceedings, all persons are entitled to
due process of law, including indigents.
There is no principle of due process more fundamental to our
basic concepts of justice and fairness, and there is no principle
of due process more firmly established in those concepts, than
the right to notice and hearing.
The issue is not one of judicial discretion or abuse of
discretion, but a total lack of discretion. No Judge can simply
arise one morning and decide to declare, without notice or
hearing, that a Person's fundamental Rights have been forfeited.
From all the evidence disclosed in this record, that is exactly
what Judge Shubb did.
He could have raised the issue at oral argument. He did
not.
He could have raised the issue in his Memorandum and Order,
and ordered Plaintiff to show cause why an appeal should not be
certified as being taken in bad faith. He did not.
Petition for Writ of Mandamus:
Page 21 of 27
He not only did not do that but, on the contrary, he
affirmatively certified the case for appeal under Rule 54(b).
He could have issued a notice and order to show cause at any
time prior to filing the notice of appeal, while he still had
jurisdiction, over a period of some four weeks. He did not, nor
did he do anything for ten weeks -- from July 27 to October 4.
Then, on October 4, for reasons that are not apparent in the
record, Judge Shubb suddenly felt compelled to violate the most
basic premise of his judicial training, and to forfeit
Plaintiff's right to appeal without any notice or hearing.
And the reason he did this is because Plaintiff is too poor
to pay the filing fees and all the other costs of brief
preparation. Of course, Congress did not expressly state that
the exercise of judicial discretion under 28 USC 1915 must be
pursuant to due process of law. But, in and of itself, the
absence of such a directive in this statute is hardly competent
evidence that Congress intended it to be exercised without due
process of law.
It is unfortunate, but this Court must emphasize to the
District Courts and to the Courts of Appeal what Congress thought
was not necessary to say at all, namely, Judicial Discretion
authorized by statute must be, if exercised at all, exercised
pursuant to the due process of law. An order entered without
notice or hearing, terminating Petition Clause Rights, is plainly
void for denying due process of law.
Petition for Writ of Mandamus:
Page 22 of 27
The Rule of Law to be Applied in This Case
In cases where, as in this case, the gist of the action is a
petition to government for redress of grievances with government,
judges may not interpret 28 USC 1915 to authorize any abridgment
of the substantive right to obtain redress on the merits of the
Petition.
The intent of this statute was to assist indigent litigants,
not to provide a basis for denying their fundamental Rights
merely because they are poor. This Court's guidance is required
to restore the original intent of 28 USC 1915.
Reasons for Granting the Petition
Pursuant to Supreme Court Rule 10: First, the Court of
Appeals has so far departed from the accepted and usual course of
judicial proceedings, and so sanctioned such departures by a
lower court, as to call for an exercise of this Court's
supervisory power.
Specifically, at hearing on the motion to dismiss the
amended complaint, IFP Plaintiff requested the District Court to
certify it pursuant to FRCP 54(b) so that the ruling could be
appealed independently. This the Judge did in his order of July
27. Then, six weeks after notice of appeal was filed and a
briefing schedule set, on October 4, l995, without motion, notice
or hearing, said judge issued an order certifying Plaintiff's
appeal "is not taken in good faith," effectively revoking Her IFP
status for the Second Appeal.
Petition for Writ of Mandamus:
Page 23 of 27
On October 12, 1995, Plaintiff filed a Motion in the Circuit
Court to Strike the District Court Order. This Motion
demonstrates Plaintiff's good faith in taking the appeal. The
Opening Brief was due on December 11, 1995. The Appeals Court
waited until December 8 to deny IFP status and ordered Plaintiff
to pay filing fees within 14 days under penalty of "automatic
dismissal." Plaintiff did not receive that order until after the
Opening Brief was filed ("lodged"). She was unable to pay the
filing fees and Her appeal was "automatically dismissed" on
December 27, l995, solely because of Her financial inability to
pay filing fees, in what is a petition to the appropriate agency
of government to redress grievances with that agency.
The standards applied by the District and Circuit Courts are
indifferent to those set by this Court in Coppedge v U.S., 369 US
438, (re: determining frivolity) and Day v Day, 510 US __, (re:
number of IFP petitions before barring them), and they
demonstrate a need for this Court to set a due process standard
that reflects the nature of the First Amendment Right being
exercised in petitions of this kind.
Second: The Court of Appeals has decided an important
question of federal law, to wit, that IFP litigants are not
entitled to any procedural rights, such as notice and hearing, on
the very issues that totally annul their rights to petition for
redress of grievances. Such is a pattern in this case sufficient
to illustrate a de facto policy. First, when Plaintiff first
filed Her civil rights complaint on January 13, l993, Judge
Garcia granted Her IFP status and dismissed with prejudice and
without notice or hearing one week later. That gave rise to the
First Appeal. The Appeals Court refused to address the issue of
the violation of Her due process rights, thus failing to give any
guidance to the District Court. The dismissal was vacated in
part for abuse of discretion when, in fact, the lower court had
no discretion to abuse in the first instance.
Petition for Writ of Mandamus:
Page 24 of 27
She supplemented Her Amended Complaint to seek a declaration
of rights against Judge Garcia and the appellate panel, under the
theory of Pulliam v Allen, so that such violations of rights
would cease. That cause of action was dismissed on the basis of
judicial immunity, and Plaintiff filed the underlying second
appeal. AGAIN, without notice or hearing, the District Court de-
certified Her IFP status. AGAIN, the Court of Appeals refused to
address the underlying issues in Plaintiff's motion to strike
which was based upon denial of due process and demonstrated the
good faith of the appeal.
This demonstrates a concerted policy to avoid the very
troublesome issue of the due process rights of IFP litigants.
The Circuit Courts cannot help but know that their policy
effectively "authorizes" the lower District Courts to develop de
facto, ad hoc policies to lighten their case loads, and to get
rid of cases they don't like, by violating the due process rights
of those who are least able to take their causes to higher
courts: the impoverished.
It is now evident that this Court must set the due process
standard in order to safeguard the substantive rights and equal
treatment before the bar it established in Coppedge supra.
Third, the Ninth Circuit has decided and applied to
Plaintiff a case apparently inconsistent with this Court's
holding in Pulliam v Allen, on the very issue of the political
right to seek declaratory relief against judges who violate
constitutional rights. Mullis v U.S. Bankruptcy Court, 828 F.2d
Petition for Writ of Mandamus:
Page 25 of 27
1385, decided persons could not sue federal judges for
declaratory or injunctive relief or attorney fees. In effect, it
is expanding the doctrine of judicial immunity into an area of
equitable remedy, where this Court has declined to let it go.
And, it is doing that at a time in history when this Court may
well wish to re-evaluate the entire immunity doctrine in light of
modern trends in democratic institutions and treaties of the
United States for preservation of human rights. These treaties
specifically address the duty of nations to expand the People's
access to the courts in order to redress wrongs, notwithstanding
that the wrongs were committed by persons acting in their
official capacities.
Petition for Writ of Mandamus:
Page 26 of 27
Plaintiff does not seek review of the Mullis issue, or of
the Constitutionality of Judicial Immunity, in this Court. She
does seek mandamus of those issues back to the Court of Appeals,
where they must be decided on their merits in light of the
guidance given by this Court as it determines that those issues
are not so frivolous as to warrant the lower court rulings of
"bad faith appeal."
Prayer
Wherefore, it is respectfully requested that this Honorable
Supreme Court of the United States issue a peremptory Writ of
Mandamus to the Ninth Circuit Court of Appeals directing that
Court:
1. To strike the District Court Order of October 4, l995,
on the basis that it violates Plaintiff's due process
rights;
2. To vacate the Circuit Order of December 8, l995;
3. To vacate the Circuit Order of December 27, 1995;
4. To deem the Opening Brief filed as of December 11,
l995;
5. To allow Plaintiff to proceed in forma pauperis.
[For verification under 28 USC 1746, see next page.]
Petition for Writ of Mandamus:
Page 27 of 27
# # #
No. _________________
____________________
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1995
____________________
DIXIANNE HAWKS, PETITIONER
v.
NINTH CIRCUIT COURT OF APPEALS, RESPONDENT
COUNTY OF BUTTE, DISTRICT JUDGE GARCIA,
CIRCUIT JUDGES SCHROEDER,CANBY AND WIGGINS,
DEFENDANTS-APPELLEES
PETITION FOR A PEREMPTORY WRIT OF MANDAMUS
TO THE NINTH CIRCUIT COURT OF APPEALS
EXCERPTS FROM THE RECORD BELOW
Dixianne Hawks John E. Wolfgram, Assoc. Counsel
In Propria Persona Constitutional Defender Association
13803 N. Granada Drive 4826 South Studebaker Road
Magalia, California 95954 Placerville, California 95667
(916) 877-4636 (916) 642-1776
# # #
EXHIBIT 1:
Judgment, Memorandum and Order
of July 27, 1995
# # #
EXHIBIT 1a:
Plaintiff's First Amended Complaint
(FAC)
# # #
Exhibit 2:
District Court's "Bad Faith" Order
of October 4, 1995
# # #
Exhibit 3:
Plaintiff's Motion to Strike Order
of October 4, 1995
# # #
Exhibit 4:
Plaintiff's Supplement
to Motion to Strike
# # #
Exhibit 5:
Defendants' Opposition
to Motion to Strike
# # #
Exhibit 6:
Circuit Court's Order
of December 8, 1995
# # #
Exhibit 7:
Plaintiff's Opening Brief
Lodged December 11, 1995
# # #
Exhibit 8:
Circuit Court's Dismissal Order
of December 27, 1995
# # #
Exhibit 9:
Affidavit of John E. Wolfgram
in Support of Petition
# # #
Exhibit 10:
Letter of Supreme Court Clerk
Rejecting Brief of December 22, 1995
# # #
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Hawks v. County of Butte et al.