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.