1 Colbern C. Stuart III Email: Cole.Stuart@Lexevia.com 2 4891 Pacific Highway Ste.

102 San Diego, CA 92110 3 Telephone: 858-504-0171 Facsimile: 619-231-9143 4 In Pro Se 5 Dean Browning Webb (pro hac vice pending) Email: ricoman1968@aol.com 6 Law Offices of Dean Browning Webb 515 E 39th St. 7 Vancouver, WA 98663-2240 Telephone: 503-629-2176 8 Attorney for Plaintiffs California Coalition for Families and Children, PBC, and 9 Lexevia, PC 10 11 12 13 CALIFORNIA COALITION FOR 14 FAMILIES AND CHILDREN, et al., 15 16 v. Plaintiffs, Case No. 13-cv-1944-CAB (BLM) Judge: Hon. Cathy Ann Bencivengo OPPOSITION TO COMMISSION ON JUDICIAL PERFORMANCE, LAWRENCE SIMI, BRAD BATTSONS MOTION TO DISMISS COMPLAINT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

17 SAN DIEGO COUNTY BAR ASSOCIATION, et al., 18 Date: December 19, 2013 Defendants Time: 3:30 p.m. 19 Courtroom:4C 20 21 22 23 24 25 26 27 28 -i-

ORAL ARGUMENT REQUESTED SUBJECT TO COURT APPROVAL Complaint Filed: August 20, 2013

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.

TABLE OF CONTENTS INTRODUCTION ................................................................................................... 1

II. DISCUSSION .......................................................................................................... 1 A. Facts As Alleged ................................................................................................... 1 B. Defendants Burden on Sovereign Immunity at the Rule 12 Stage ..................... 6 C. Commission Defendants Ignore The Critical Arm of the State Analysis ........ 8 D. The Commissions Proposed Expansive Interpretation of Eleventh Amendment Immunity is Disavowed by Controlling Authority ................................................... 10 E. Commission Defendants Cannot Establish State Level Status On the Present Record ....................................................................................................................... 13 1. The Commissions Own Admissions Defy its Motion ................................... 15 2. Individual Claims: SIMI and BATTSON Have Not Shown Entitlement to Eleventh Amendment Immunity for Their Specific Functions As Being State Functions................................................................................................................ 17 3. Participation in the DDICE Enterprises Not a State Central Function........ 20 F. All Beneath State Level Defendants Are Subject to Prospective Relief ........ 21 1. Protected Federal Civil Rights Reform, Exercise, Support and Advocacy (FFRRESA)Injunctions...................................................................................... 21 2. Illegal Domestic Violence Intervention Legislative Scheme (DVILS) Injunctions: ............................................................................................................ 22 3. Lanham Act Prospective Remedies: ............................................................... 23 4. Racketeering Injunctions: ................................................................................ 24 G. State Constitutional Immunities Do Not Protect Ultra Vires or Criminal Conduct ..................................................................................................................... 24 -1OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 III. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CONCLUSION .................................................................................................. 25

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1 2

TABLE OF AUTHORITIES

3 Adams v. Comm'n on Judicial Performance, 8 Cal. 4th 630, 882 P.2d 358 (1994) ... 18, 21 4 5 Alden v. Maine, 527 U.S. 706 (1999) .......................................................................... 15 6 Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994) .................................................. 24 7 Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397 (1997) ................. 9 8 Brown v. California, No. C 07-0174 PJH (PR), 2007 U.S. Dist. LEXIS 8487 at *1, 9 2007 WL 163103 (N.D. Cal. 2007) ......................................................................... 12 10 Butler v. Elle, 281 F.3d 1014 (9th Cir. 2002) ................................................................ 8 11 Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128 (9th Cir. 2012) ..... 10 12 Del Campo v. Kennedy, 517 F.3d 1070 (9th Cir. 2008) ........................................15, 22 13 Dugan v. Rank, 372 U.S. 609 (1963) ........................................................................... 15 14 Dombrowski v. Pfister, 380 U.S. 479 (1965) ............................................................... 25 15 Edelman v. Jordan, 415 U.S. 651 (1974) .................................................................... 25 16 Ex Parte Young, 209 U.S. at 15556 (1908) .........................................................23, 25 17 Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 18 (2002) ....................................................................................................................... 14 19 Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945) ............................. 10 20 Gilligan v. Jamco Dev. Corp., 108 F.3d 246 (9th Cir.1997) ....................................... 10 21 Gomez v. Toledo, 446 U.S. 635 (1980) .......................................................................... 8 22 Graham v. Taubman, 610 F.2d 821 (9th Cir.1979) ....................................................... 9 23 Gray v. Evercore Restructuring L.L.C., 544 F3d 320 (1st Cir. 2008) .....................9, 15 24 Greater Los Angeles Council of Deafness, Inc. v. Zolin, 607 F. Supp. 175 (C.D. Cal. 25 1984)......................................................................................................................... 19 26 Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir. 1987).....................................................................................................................9, 16 27 28 Han v. U.S. Dept of Justice, 1993 WL 13011266 (C.A.9) ......................................... 24 -1OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 (1994)..............13, 19 2 H.T. v. Ciavarella, No. 3:09-cv-0357 (ARC) (M.D. Pa.) ............................................ 22 3 Junho Hyon v. Sei Shimoguchi, No. CIV 12-1235 JAM EFB PS, 2012 U.S. Dist. 4 LEXIS 74100 (E.D. Cal. May 29, 2012) ...........................................................11, 20

5 Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972) ........................................................ 25 6 Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391 (1979) 7 ......................................................................................................................13, 17, 19

8 Marbury v. Madison, 1 Cranch 137 (1803). ................................................................ 14 9 Missud v. San Francisco Superior Court, No. C 12-03117 WHA, 2012 U.S. Dist. 10 LEXIS 137351 at *4 (N.D. Cal. Sept. 24, 2012) ..................................................... 12

11 Mitchell v. Los Angeles Community College Dist., 861 F.2d 198 (9th Cir.1988) ....... 22 12 Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978)..................... 9 13 N. Ins. Co. of New York v. Chatham Cnty., Ga., 547 U.S. 189, 194 (2006) ............... 15 14 Narayan v. Cal. Fair Empl. & Hous., No. CIV S-10-3485 JAM DAD PS, 2011 U.S. 15 Dist. LEXIS 56535 at *4, 2011 WL 2119191 at *2 (E.D. Cal. May 26, 2011) ...... 11

16 Natural Resources Defense Council v. California Dept. of Transp., 96 F.3d 420 17 (1996) .................................................................................................................23, 25

18 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ................9 et passim 19 Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989) ................................................... 14 20 Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) 15 21 Recorder v. Comm'n on Judicial Performance, 72 Cal. App. 4th 258 (1999) ...... 18, 26 22 Ricotta v. California, 4 F. Supp. 2d 961, 976 (S.D. Cal. 1998) .................................. 11 23 Scott v. Kuhlmann, 746 F.2d 1377 (9th Cir. 1984) ........................................................ 9 24 Shaw v. State of California Department of Alcoholic Beverage Control, 788 F.2d 600, 25 603 (9th Cir.1986) .................................................................................................... 16

26 Stewart v. Baldwin County Board of Education, 908 F.2d 1499 (11th Cir.1990)....... 22 27 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)..................................................... 10 28 Thomas v. Nakatani, 309 F.3d 1203 (9th Cir. 2002) ................................................... 10 -2OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 Tuveson v. Florida Governor's Council on Indian Affairs, Inc., 734 F.2d 730 (11th 2 Cir.1984) .................................................................................................................. 22

3 U.S. v. Ciavarella, (3rd Cir. May 24, 2013) ................................................................ 22 4 Vierria v. California Highway Patrol, 644 F. Supp. 2d 1219 (E.D. Cal. 2009) ...20, 26 5 Wilbur v. United States, 281 U.S. 206 (1930) ............................................................. 24 6 7 STATUTES

8 15 U.S.C. 1116(a) ................................................................................................... 26 9 15 U.S.C. 1117 ....................................................................................................25, 26 10 15 U.S.C. 1118 ....................................................................................................25, 26 11 15 U.S.C. 1125 .......................................................................................................... 25 12 18 U.S.C. 1964(a), (c), (d) ........................................................................................ 26 13 28 U.S.C. 1337 .......................................................................................................... 26 14 28 U.S.C. 1361 .......................................................................................................... 24 15 28 U.S.C. 1367(a) ..................................................................................................... 26 16 28 U.S.C. 2201, 2202 .............................................................................................. 26 17 42 U.S.C. 1988(a) ..................................................................................................... 26 18 Cal. Bus & Prof. C. 17200 ........................................................................................ 25 19 Cal. Bus & Prof. C. 17500 ........................................................................................ 25 20 OTHER AUTHORITIES 21 A Career Under Fire: Howard Broadman Spent Years Fighting Discipline Charges, 22 The Recorder, Jan. 5, 2000 ...................................................................................... 18 23 Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425 (1987) ......... 15 24 Borchard, Government Liability in Tort, 34 Yale L. J. 1 (1924) ................................. 15 25 John Paul Stevens, Is Justice Irrelevant?, 87 Nw. U. L. Rev. 1121 (1993) ................ 15 26 Kenneth Culp Davis, Sovereign Immunity Must Go, 22 Admin. L. Rev. 383 (1970) . 15 27 Lawrence C. Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. 28 Rev. 1342 (1989)...................................................................................................... 15 -3OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 Sankar, Disciplining the Professional Judge, 88 Cal.L.Rev. 1233 ............................. 18 2 Scott Dodson, Dignity: The New Frontier of State Sovereignty. 56 Okla. L. Rev. 777 3 (2003) ....................................................................................................................... 15

4 Shaman & Begue, Silence Isn't Always Golden: Reassessing Confidentiality in the 5 Judicial Disciplinary Process 58 Temple L.Q. 755 (1985).................................... 21

6 Vicki Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign 7 8 9 Immunity, 98 Yale L. J. 1 (1988) ............................................................................. 15 RULES

10 Fed.R.Civ.P. 8(c)............................................................................................................ 9 11 Fed.R.Civ.P. 12(b)(6)..................................................................................................... 8 12 Fed.R.Civ.P. 57 ............................................................................................................ 26 13 Fed.R.Civ.P. 65 ............................................................................................................ 26 14 CONSTITUTIONAL PROVISIONS 15 Cal. Const. 18.1, 18.5 ................................................................................................ 17 16 Cal. Const. Art. VI, 8, 18 ......................................................................17, 21, 24, 25 17 18 19 20 21 22 23 24 25 26 27 28 -4OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 2 Plaintiff hereby opposes Defendants Commission on Judicial Performance

3 (Commission), Lawrence Simi, and Brad Battsons (Commission Defendants) 4 Motion to Dismiss Complaint (Comm. MTD). 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A. Facts As Alleged The Commission MTD misapprehends the scope of the relevant allegations of I. INTRODUCTION Commission Defendants Motion to Dismiss on Eleventh Amendment immunity grounds may be denied for the following reasons:

1. Commission Defendants cannot carry the significant burden of proving that the Complaint establishes that Defendants are alter egos or arms of the State of California; 2. Individual Commission Defendants accused acts are ultra vires and/or criminal and therefore not immune; 3. The Eleventh Amendment cannot the shield Commission Defendants against suits by citizens of the State of California; 4. Commission Defendants are not shielded from suit seeking prospective relief; and 5. State Constitutional immunities unique to the Commission do not immunize ultra vires, conspiratorial, or criminal conduct. II. DISCUSSION

24 the Complaint. The Complaint is not merely based on the Commissions alleged 25 response to complaints allegedly filed against several judges (Comm. MTD 2:7-8). 26 Nor does the Complaint alleg[e] only conduct pursuant to official duties. (Comm. 27 MTD 5:3-4). This minimization is grossly inaccurate. 28 To enable an accurate analysis, recitation of the relevant allegations from the -1OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 Complaint are provided at Table X.x and summarized as follows: 2 Counts 1, 2, 12, 13, 14, 15, and 21, and Racketeering Claims 3 through 13,

3 allege the Commission Defendants organization, participation in, and support and 4 aid of a number of civil and criminal conspiracies to violate of Plaintiffs rights by 5 both putatively official and clearly unofficial conduct. 6 Defendant Brad Battson: BATTSON is alleged to be an employee

7 investigator for the Commission (Compl. 20). His authorized activities included 8 investigating Plaintiff STUARTS complaints to the United States Attorneys Office 9 and the Commission (DDIJO Complaints I and II; Compl.83, 85-86, 89, 90) 10 regarding Defendants Schall, Alksne, Wohlfeil, C. Goldsmith, and unnamed entity M. 11 Groch. Compl. 82-90. These activities continued from approximately 2008 and 12 continued through the filing date of the Complaint, and include the time period during 13 which the STUART ASSAULT occurred. Compl. 90, 96, 98. The Complaint does 14 not allege that Mr. Battson is a licensed attorney. Compl. 20. 15 BATTSON is a member of the group identified in the Complaint FEDERAL

16 LAW ENFORCEMENT OFFICERS. Compl. 91. His investigation and certain 17 related activities were undertaken pursuant to that role. Compl. 98-99. 18 BATTSON is alleged to have committed a number of activities beyond his

19 legal authority (Compl.158-160), including owners, associates, participants, 20 collaborators, affiliates, benefactors, associates of entities providing traditional 21 professional, legal, social, and government services as part of the DDI. These 22 include the commission of criminal and civil violations of PLAINTIFFS state and 23 FFR civil rights, obstruct justice, abuse process, interfere with existing and 24 prospective business relations, and commit civil and criminal violations federal law 25 prohibiting RACKETEERING ACTIVITY under 18 U.S.C. 1961 (b), including but 26 not limited to his involvement in the STUART ASSAULT. Compl. 112, 124, 12927 136). 28 The Complaint does not allege that he was personally present or directly -2OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 involved in the STUART ASSAULT. He is named and included in such allegations 2 by virtue of his relationships and communications with other defendants as described 3 elsewhere. Compl. 137, 139, 143, et passim. 4 BATTSON knew STUARTs status as a lawyer, federal witness, and

5 informant. Compl. 149, and that subjecting STUART to the STUART ASSAULT 6 and HARASSMENT AND ABUSE would CHILL Plaintiffs and cause personal and 7 property damage to STUART. Compl. 149.C-E. 8 BATTSON owed and breached numerous legal duties to STUART in each of

9 the acts alleged. Compl. 151-154, 156. 10 BATTSON is alleged to be responsible for and involved in the creation,

11 implementation, and maintenance of rules, policies, customs, procedures, traditions, 12 practices and permitted behaviors by policymakers themselves which perpetrated an 13 intentional, reckless, and deliberate indifference to the likelihood of constitutional 14 injury of the type caused to PLAINTIFFS in the DDIJO, DOYNE, INC., 15 COMPLAINTS, and STUART ASSAULT, including customs and policies in 16 violation of FFR and CALIFORNIA FUNDAMENTAL RIGHTS, and permitting 17 HARASSMENT AND ABUSE against those exercising FFRRESA. Compl. 17318 174. BATTSONS policy-level activities and activities in enforcing illegal customs, 19 or deliberate indifference to PLAINTIFFS rights, are alleged to have caused or 20 contributed to the STUART ASSAULT, HARASSMENT AND ABUSE, 21 CHILLING, and other HARM. Compl. 174, 184-89, et passim. 22 The Complaint alleges that BATTSON was aware of Plaintiffs membership

23 in and advocacy for the EQUAL PROTECTION CLASSES was known to and 24 targeted by DEFENDANTS [including BATTSON] prior to the SDCBA 25 SEMINAR. The Complaint alleges BATTSON conspired and specifically intended 26 to violate STUARTS rights in obstruction of the DUE ADMINISTRATION OF 27 JUSTICE, as a member or on behalf of each EQUAL PROTECTION CLASS . . . 28 and to injure PLAINTIFFS in person and property on account thereof. Compl. -3OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 203, 205, 207, 209, 211, 212. He further failed to exercise his authority over others 2 to prevent or aid in preventing the same by others. Compl. 211-213. 3 The Complaint does not concede that BATTSONS conduct was only conduct

4 pursuant to official duties. (Comm. MTD 5:3-4). Further, even to the extent that 5 BATTSON may have been authorized to conduct his investigation, he ceased acting 6 in his official capacity when he actively participated in the criminal conspiracy 7 among defendants. Vierria v. California Highway Patrol, 644 F. Supp. 2d 1219, 8 1240 (E.D. Cal. 2009). 9 Defendant Lawrence Simi: SIMI is alleged to be the Chairperson for the

10 CJP. In that capacity he is authorized and restricted pursuant to the same laws 11 authorizing and restricting the CJP. Compl. 19. He is a supervisor of Mr. 12 BATTSON in all of the activities ascribed to BATTSON, and lead official 13 responsible for creation, maintenance, and enforcement of all policies, rules, 14 regulations, habits, and customs of the Commission. Compl. 19. But for the 15 allegations specific to Mr. BATTSONS involvement in investigating the DDIJO 16 COMPLAINTS, his authority and liability rests upon the same factual allegations as 17 those of Mr. BATTSON. He is also sued in his official capacity as a representative of 18 the Commission, and as such remains subject to injunctive and declaratory remedy. 19 Defendant Commission on Judicial Performance: The Commission operates

20 in the State of California in collaboration with the FEDERAL LAW 21 ENFORCEMENT OFFICERS to address DDIL complaints regarding certain state 22 judicial officials including certain Defendants herein. California Constitution Art. VI 23 18.1; Compl. 84; and Ex. 39 detail the Commissions responsibilities including 24 "discretionary jurisdiction with regard to the oversight and discipline of subordinate 25 judicial officers, assure the public that any cases of misconduct, neglect of duties, 26 habitual intemperance, and permanent disability will receive meaningful attention. 27 Compl. Ex. 39:P2234. The Complaint alleges the Commission, as a below State 28 level entity maintains, implements, and enforces (or fails to enforce) policies, -4OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 procedures, customs, and habits directly or indirectly setting in motion acts leading to 2 Plaintiffs injuries. 3 Conduct and Participation in Criminal Enterprise: BATTSON, SIMI, and

4 The Commission are further alleged to be involved in the conduct of and participation 5 in the CRIMINAL ENTERPRISES in violation of the Racketeer Influenced and 6 Corrupt Organizations Act of 1970 (RICO). Compl. 266, 268, 273, 274. They 7 are alleged to conduct or operate, conspire to conduct or operate, aid and abet the 8 conduct or operation of said criminal enterprises through specific schemes and 9 artifices to defraud. Compl. 271, 290-305, 307-310, 312, 315-317, 328-335. In 10 doing so, each Defendant is alleged to have committed a pattern of racketeering 11 activity under 18 U.S.C. 1961(c) as committing, aiding and abetting, or conspiring 12 to commit, tens of thousands of violations of the following laws within the past ten 13 years . . . . Compl. 336. The specific predicate crimes alleged against these 14 Defendants includes mail fraud (Compl. 337), honest services fraud (Compl. 34515 46), obstruction of justice, witness tampering, and retaliation (Compl. 348, 350, 16 351, 353, 355, 357, 359, 361-367, 369, 371, 373). The individual Defendants are also 17 alleged to have committed numerous federal felonies in violation of 18 U.S.C. 18 241, 242, and 371. Compl. 376-384. Their criminal activity is alleged to be an 19 ongoing pattern of HARRASSMENT and ABUSE in violation and defiance of law. 20 Compl. 384, 393, 394. 21 Defendants Misrepresentations of quality or nature of goods or services:

22 BATTSON, SIMI, and CJP are further alleged to be involved in violations of the 23 Lanham Act by virtue of their representations that their services abide by ordinary 24 and professional standards of care, are legal, efficient, safe, and effective exercise of 25 governmental powers and public licenses provided under law. Compl. 261. 26 Specifically, these Defendants represent that their public and private services are 27 legal, safe, efficient, obedient to PROFESSIONAL DUTIES and standards of care 28 and [t]he CJP protects the rights of litigants from judicial abuse, transgression, and -5OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 civil rights violations of the FFR and CFR; CJP has authority to and does enforce the 2 CRCCS on behalf of litigants; the CJP is the first stop in proceeding in federal 3 court for enforcement of civil rights; DDIL need not proceed to federal court; The 4 CJP is a neutral finder of fact; The CJP is loyal to PROFESSIONAL DUTIES to 5 serve the interests of litigants equally as to government lawyers. Compl. 261.A, 6 F. A State, instrumentality of a State or employee of a State or instrumentality of a 7 State acting in his or her official capacity are persons subject to suit under the 8 Lanham Act. 15 U.S.C. 1125(a)(2). 9 The Complaint alleges generally that each defendant acted as an agent of each

10 other defendant, and support of the various Domestic Dispute Industry (DDI) and 11 Family Law Community (FLC) Defendants. (Compl. 59, 60, 70), The Complaint 12 identifies that each Commission Defendant was acting at times under color of law as 13 a COLOR OF LAW DEFENDANTS (COLD), or acting in concert with one or 14 more COLD. Compl. 69. 15 16 B. Defendants Burden on Sovereign Immunity at the Rule 12 Stage Commission Defendants must establish entitlement to relief as a matter of law.

17 Fed.R.Civ.P. 12(b)(6). Sovereign immunity is a substantive affirmative defense. 18 Butler v. Elle, 281 F.3d 1014, 1021 (9th Cir. 2002) (Government officials sued in 19 their individual capacities under 1983 may raise the affirmative defenses of 20 qualified or absolute immunity. Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 21 1920, 1924, 64 L. Ed. 2d 572 (1980) (this Court has never indicated that qualified 22 immunity is relevant to the existence of the plaintiff's cause of action; instead we 23 have described it as a defense available to the official in question.). The burden of 24 pleading and proving any affirmative defense rests with the defendant. Fed.R.Civ.P. 25 8(c) (defendant must plead any matter constituting an avoidance or affirmative 26 defense). 27 Affirmative defenses generally may not be raised in a Rule 12(b)(6) motion

28 unless based on a non-controversial legal defense. Scott v. Kuhlmann, 746 F.2d 1377, -6OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 1378 (9th Cir. 1984). A defendant may bring a Rule 12(b)(6) motion based on an 2 affirmative defense in unusual circumstances: where the face of the Complaint 3 admits the defense. Graham v. Taubman, 610 F.2d 821 (9th Cir.1979). A Rule 4 12(b)(6) motion asserting that the complaint admits a defense must show the 5 defense is (i) definitively ascertainable from the complaint and other allowable 6 sources of information, and (ii) suffice to establish the affirmative defense with 7 certitude. Gray v. Evercore Restructuring L.L.C., 544 F3d 320, 324 (1st Cir. 2008). 8 By its terms, the Eleventh Amendment applies only to actual States.

9 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984); Greater Los 10 Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987). 11 Entities beneath State level may not invoke the shield of the Eleventh Amendment 12 immunity fiction without some additional showing of fact. See Bd. of Cnty. Comm'rs 13 of Bryan Cnty., Okl. v. Brown, 520 U.S. 397 (1997); Monell v. Dep't of Soc. Servs. of 14 City of New York, 436 U.S. 658 (1978); Zolin, supra. These courts have extended 15 Eleventh Amendment immunity only where the beneath State-level entity is able to 16 prove that in effect the State is the real, substantial party in interest. Pennhurst 17 State School & Hospital v. Halderman, 465 U.S. 89 (1984). 18 This real party in interest analysis requires a showing of fact. We must look

19 behind the pleadings to determine whether a decree in the case would operate in fact 20 against the sovereign. If the judgment would actually run against the state treasury, 21 the action is barred. Zolin at 1110. A trier of fact must look to whether the beneath 22 State level entity is accused for activity that is (1) a State level function, (2) 23 controlled by the State, (3) for which the State is liable and (4) the State will be 24 bound for any injunctive remedy sought. Id.; Ford Motor Co. v. Department of 25 Treasury, 323 U.S. 459, 464 (1945). This analysis is necessary for any beneath 26 State level entityboth individuals and municipalitiesaccused of a function that is 27 an arm of the State: When the suit is brought only against state officials, a 28 question arises as to whether that suit is a suit against the State itself. Id. Where -7OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 such facts are beyond control of a Plaintiff, they need not be pled in a Complaint. 2 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Gilligan v. Jamco Dev. Corp., 3 108 F.3d 246, 249 (9th Cir.1997). 4 5 C. Commission Defendants Ignore The Arm of the State Analysis Commission Defendants assert that the Commission is a State level entity

6 without analysisinstead citing cases in which it was not controverted that each 7 defendant was an actual state or state agent. Because the State level issue was not 8 controverted, those courts performed no real party in interest analysis necessary 9 here. In Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128 (9th Cir. 10 2012) plaintiffs civil rights organization sued Governor Ed Brown and Regents of the 11 University of California President Mark Yudof in their official capacities only. Id. at 12 1130. No plaintiff asserted that the States Governor and Regents President in their 13 official capacities were anything other than state actors. Similarly, in Thomas v. 14 Nakatani, 309 F.3d 1203 (9th Cir. 2002), plaintiff sued the Chairman of the Board of 15 Agriculture, State of Hawaii, the Hawaii Department of Agriculture, State of 16 Hawaii, and the State of Hawaii for violations of the Americans with Disabilities 17 Act. Id. at 1206-07. No party contested that the defendants and its officials were 18 anything other than State-level entities. 19 The Commission also cites district court opinions which involved the

20 Commission, but because the cases cited involved unsophisticated pro se plaintiffs, 21 the courts were not asked, and did not conduct, a real party in interest analysis. In 22 Ricotta v. California, 4 F. Supp. 2d 961, 976 (S.D. Cal. 1998) this District Court was 23 not requested to perform analysis of the relationship between the Commission and the 24 State of California. This lack of analysis appears to follow from a poorly-pled 25 complaint by a near-hysterical pro se plaintiff. The opinion reflects no awareness, 26 much less analysis, of the Commissions status as a below-State level entity 27 aspiring to Eleventh Amendment immunity as an arm of the state. As the pro se 28 plaintiff failed to recognize the issue, the court extended Eleventh Amendment -8OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 immunity to the Commission on the Commissions motion to dismiss, with no 2 substantive analysis of the Pennhurst or Zolin real party in interest test. Id. 3 In Junho Hyon v. Sei Shimoguchi, No. CIV 12-1235 JAM EFB PS, 2012 U.S.

4 Dist. LEXIS 74100 at *4 (E.D. Cal. May 29, 2012), plaintiff pro se proceeding in 5 forma pauperis, alleged a Commission staff counsel was negligent in performing 6 her duties in violation of Federal Rule 1.01. Without reaching the issue of whether 7 there was, in fact, a Federal Rule 1.01, the District Court determined that [t]he 8 claim against Shimoguchi is also barred by the Eleventh Amendment since plaintiff's 9 claims against Shimoguchi are based entirely on Shimoguhi's conduct in carrying out 10 his/her official duties . . . . Id. at *5. Like Ricotta, the pro se plaintiff failed to 11 allege activity other than negligent performance of ordinary job responsibilities, 12 and the court undertook no substantive analysis of the State level issue not raised 13 by plaintiff. Id. 14 In Narayan v. Cal. Fair Empl. & Hous., No. CIV S-10-3485 JAM DAD PS,

15 2011 U.S. Dist. LEXIS 56535 at *4, 2011 WL 2119191 at *2 (E.D. Cal. May 26, 16 2011) pro se plaintiff in forma pauperis alleged the California Department of Fair 17 Employment and Housing (DFEH), the Attorney General of the State of California, 18 the City of Sacramento, the Sacramento Police Department, the Sacramento County 19 District Attorney, the California Commission on Judicial Performance and the 20 California State Bar have violated his right to a fair trial, fair jury, fair trial judge 21 and fair appeal. Id. at *2. The court found the Complaint was defective for many 22 reasons, including that the majority of the allegations found in plaintiff's complaint 23 concern errors that allegedly occurred during his state court civil trial and the related 24 state appellate review. Id. *3. The plaintiff apparently made no claim to ultra vires 25 or criminal conduct, conspiracy, or beneath State-level funding, control, and effect. 26 On that record, the district court dismissed the Commission. Id. 27 Similarly, in Brown v. California, No. C 07-0174 PJH (PR), 2007 U.S. Dist.

28 LEXIS 8487 at *1, 2007 WL 163103 at *1 (N.D. Cal. Jan. 18, 2007), pro se prisoner -9OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 plaintiff sought relief against the Commission, a judge in San Bernardino County 2 where plaintiff was convicted, an assistant district attorney in San Bernardino 3 County, and two of plaintiff's defense lawyers, related only to his criminal trial and 4 conviction. The Order of Dismissal relating to the Commission reflects no 5 recognition or analysis of the State level issue. Id. 6 In Missud v. San Francisco Superior Court, No. C 12-03117 WHA, 2012 U.S.

7 Dist. LEXIS 137351 at *4 (N.D. Cal. Sept. 24, 2012) plaintiff sued judicial 8 defendants for a conspiracy to silence non-wealthy litigants. The Complaint was 9 founded solely on judicial conduct--a number of judicial decisions against the 10 plaintiff. Id. at *2. The District Court found the Commission to be an arm of 11 California based on the same summary reasoning presented by Defendants here, 12 without performing any arm of the state analysis required under Zolin and 13 Pennhurst. Id. 14 The Commission can clearly notch its belt for deflecting a series of pro se

15 plaintiff cases with motions to dismiss similar to the one it presents herewithout 16 any argument relating to the critical arm of the state test it must achieve. See Zolin, 17 Pennhurst, supra. The Commissions streak ends here. 18 19 20 D. The Commissions Proposed Expansive Interpretation of Eleventh Amendment Immunity is Disavowed by Controlling Authority A complete analysis shows the Commission has not, and likely cannot,

21 establish itself as an arm of the State entitled to Eleventh Amendment immunity. 22 Federal courts approach assertions of Eleventh Amendment immunity with unusual 23 suspicion. "By its terms, the protection afforded by [the Eleventh] Amendment is 24 only available to one of the United States. It is true, of course, that some agencies 25 exercising state power have been permitted to invoke the Amendment in order to 26 protect the state treasury from liability that would have had essentially the same 27 practical consequences as a judgment against the State itself. But the Court has 28 consistently refused to construe the Amendment to afford protection to political -10OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 subdivisions such as counties and municipalities, even though such entities exercise a 2 `slice of state power.' " Lake Country Estates, Inc. v. Tahoe Regional Planning 3 Agency, 440 U. S. 391, 400-401 (1979). In Hess v. Port Authority Trans-Hudson 4 Corporation, 513 U.S. 30 (1994), the Supreme Court declined to extend Eleventh 5 Amendment immunity to an entity owned and operated by two States, reasoning that 6 entities not subject to the unilateral control of any one of the States that compose the 7 federal system were too distant from voters who may exercise their will to direct 8 state policy, and thus not entitled to the cloak of sovereign immunity. Id. at 42. 9 Such joint control entitieseven though operated by States themselvesare not 10 entitled to immunity [u]nless there is good reason to believe that the States 11 structured the new agency to enable it to enjoy the special constitutional protection of 12 the States themselves, and that Congress concurred in that purpose. Id. at 43-44 13 (citing Lake County, supra). Both Courts in Lake County and Hess declined to extend 14 Eleventh Amendment immunity to State-level entities despite complete control by the 15 States. Id. 16 Additional persuasive reasoning from our highest Court directly refutes the

17 expansive interpretation of the Eleventh Amendment offered by Defendants. Justice 18 Stevens has described history of Eleventh Amendment jurisprudence as creating 19 "two Eleventh Amendments, one narrow and textual and the othernot truly a 20 constitutional doctrine at allbased on prudential considerations of comity and 21 federalism. Hess at 53 (Stevens, J, concurring) (citing Pennsylvania v. Union Gas 22 Co., 491 U. S. 1, 23-29 (1989) (Stevens, J., concurring)). That history is not merely 23 misguided as a matter of constitutional law; it is also an engine of injustice. . . . 24 [T]hroughout the doctrine's history, it has clashed with the just principle that there 25 should be a remedy for every wrong. See, e. g., Marbury v. Madison, 1 Cranch 137, 26 163 (1803). Sovereign immunity inevitably places a lesser value on administering 27 justice to the individual than on giving government a license to act arbitrarily. 28 Arising as it did from the peculiarities of political life in feudal England . . . -11OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 sovereign immunity is a doctrine better suited to a divinely ordained monarchy than 2 to our democracy. Hess at 53-54 (Steven, J. concurring)(internal citations omitted). 3 The Commissions assertion of Eleventh Amendment immunity in this case is

4 similarly inappropriate. The interpretation offered by the Commissionrecently 5 rationalized through an unenacted judicial policy of dignity of a sovereign (See 6 Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 7 (2002))cannot justify the effective exemption of an entity so independent as the 8 Commission. Whatever rationale for extending immunity to a State because of its 9 dignity, the Commission is not itself a sovereign and is therefore entitle to no such 10 dignityparticularly when the net effect of such a policy amounts to nothing more 11 than a coerced hometown forum selection clause. If anything, exempting the 12 Commission from accountability to the citizens who created it in a neutral forum is 13 itself an affront to whatever dignity the Commission aspires to, and even to the lay 14 intelligence of the governed. 15 In good faith advocacy for a correction in the misguided machinery of 20th

16 Century Eleventh Amendment jurisprudence, and in good faith obedience to the 17 wisdom of a name that will be cited long after most who have sat on the same bench, 18 Plaintiff respectfully submits that the Commissions assertion that the Eleventh 19 Amendment bars citizen claims against their own State in federal court is inconsistent 20 with the language of that Amendment and its faithful interpretation, and requests that 21 the Commissions Motion be denied on that reason alone. See John Paul Stevens, Is 22 Justice Irrelevant?, 87 Nw. U. L. Rev. 1121, 11241125 (1993); Scott Dodson, 23 Dignity: The New Frontier of State Sovereignty. 56 Okla. L. Rev. 777, 808-823 24 (2003); Borchard, Government Liability in Tort, 34 Yale L. J. 1 (1924); Kenneth Culp 25 Davis, Sovereign Immunity Must Go, 22 Admin. L. Rev. 383 (1970); Lawrence C. 26 Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342 27 (1989); Vicki Jackson, The Supreme Court, the Eleventh Amendment, and State 28 Sovereign Immunity, 98 Yale L. J. 1 (1988); Akhil Reed Amar, Of Sovereignty and -12OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 Federalism, 96 Yale L. J. 1425 (1987). 2 In our own Circuit, extending Eleventh Amendment immunity to non-State

3 entities has been described as strong medicine, and has been undertaken with 4 caution by federal courts. See, e.g., Del Campo v. Kennedy, 517 F.3d 1070, 1075 (9th 5 Cir. 2008); N. Ins. Co. of New York v. Chatham Cnty., Ga., 547 U.S. 189, 194 (2006); 6 Alden v. Maine, 527 U.S. 706, 713 (1999); Puerto Rico Aqueduct & Sewer Auth. v. 7 Metcalf & Eddy, Inc., 506 U.S. 139, 143 (1993). Caution in doing so her would seem 8 wise. 9 10 11 E. Commission Defendants Cannot Establish State Level Status On the Present Record The Complaint does not name the State of California, and concedes that the State

12 is the alter ego of the Commission, or that the Commission is its arm. 13 Commission Defendants therefore are faced with the burden of proving that the face 14 of the Complaint establishes that they are otherwise entitled to Eleventh Amendment 15 immunity with certitude. Gray v. Evercore, supra. Defendants burden in proving 16 an entitlement to immunity will be significant. They must establish: 17 (i) State Financial Liability: The general rule is that a suit is against the

18 sovereign if the judgment sought would expend itself on the public treasury or 19 domain, or interfere with the public administration, or if the effect of the judgment 20 would be to restrain the Government from acting, or to compel it to act. Dugan v. 21 Rank, 372 U.S. 609 (1963); Pennhurst, supra; Edelman v. Jordan, 415 U.S. 651, 663, 22 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Shaw v. State of California Department of 23 Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir.1986). 24 (ii) State Authority: The legal authority or jurisdiction, if any, the entity or

25 individual asserting immunity is acting under, both generally and with respect to the 26 specific acts accused. The scope of the authority and nature of the acts and other 27 facts relating to the alleged malfeasance has also been an issue often in contention. 28 Zolin, supra; -13OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

(iii) State is Bound: Whether any equitable relief on the individual would

2 effectively bind the State of California. Pennhurst, Zolin, supra. 3 4 Analysis Commission Defendants simply do not attempt, much less accomplish,

5 anything approaching such a showing. On the relevant record, the Complaint 6 specifically pleads the Commission Defendants as beneath State level entities. 7 Compl. 18 (an entity), caption (municipal entity). Both SIMI and BATTSON 8 are sued in both individual and official capacities under only the Commission-9 neither are identified as employees or agents of the State of California. Comp. 19, 10 20. 11 The Commissions reference to the Complaints general description of the

12 Commissions jurisdiction to discipline California judges is no help. Complaint 13 paragraph 18 avers: 14 15 16 17 18 19 20 21 22 This paragraph avers that venue is proper in this District because the California Defendant Commission on Judicial Performance (CJP) is an entity with jurisdiction pursuant to Article VI, 18 of the California Constitution responsible for investigating complaints of judicial misconduct and judicial incapacity and for disciplining judges. . . . The commission's mandate is to protect the public, enforce rigorous standards of judicial conduct and maintain public confidence in the integrity and independence of the judicial system.

23 Constitution confers jurisdiction to the Commission over judicial officers located 24 here. The Complaint makes no reference, much less concession, to the Commissions 25 funding, control, or that the State of California will be bound by any injunction. 26 The Commission represents to the Court that Complaint paragraphs 18, 261.F,

27 263.A and B, and 363-365 support its claim that the Commission was established 28 by a ballot initiative amendment to the Constitution. Comm. MTD 4:26-28. -14OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 Ironically, these Complaint paragraphs do not describe any State control or financial 2 dependence of the Commission, but describe the history of fraudulent 3 misrepresentations by the Commission to the citizens of California. It would seem 4 odd to construe averments of the Commissions misrepresentations to voters as 5 conceding the Commissions submission to voter authority. Lake County, supra at 6 42. 7 The Commission attempts to supplement the Complaints general reference to

8 its jurisdiction with a foundationless explanationin a footnotethat that 9 Californias Commission on Judicial Performance was established by legislative 10 constitutional amendment approved by the citizens of California. Comm. MTD 11 4:26. This is a misstatement of the sections cited. These sections do not evidence the 12 establishment of the Commissionthey set forth rules governing how the 13 Commissions members are appointed, length of terms served, and the foundational 14 rules by which judges may be disciplined. Cal. Const. 8, 18, 18.1, 18.5. The 15 MTDs assertion merely begs the questioneven if properly admissible at some 16 future stage, these provisions of the state Constitution do not address the only 17 relevant test: State funding, control, and binding affect of injunctive relief. 18 Further, even if admissible and true, the assertion that the state Constitution

19 establishes the Commission does not convert it from a beneath State-level entity 20 to a State-level entity. The California Constitution establishes a number of entities 21 which are well-recognized as beneath State-level, including counties (Art. 11 1), 22 cities (Art. 11, 6), county courts (Art. 6, 1), schools and school districts (Art. 9 23 5, 6, 14), the Regents of the State of California (Art. 9, 9), and the public 24 corporation that is the State Bar of California (Art. 6 9). Thus, even would 25 Commission Defendants prove at this stage that the Commission was established 26 by a citizen referendum amending the Constitution, such observation is irrelevant. 27 28 1. The Commissions Own Admissions Defy its Motion There is good reason the Commission cannot marshal persuasive evidence on -15OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 this issuethe Commission itself rather fiercely asserts its independence of the State 2 of California. Complaint Exhibit 39 details the history of the Commission, including 3 its independent finances, independent leadership and control, autonomous rulemaking 4 authority, and unique jurisdiction. The Commission on Judicial Performance, 5 established in 1960, is the independent state agency responsible for investigating 6 complaints of judicial misconduct and judicial incapacity and for disciplining judges 7 Ex. 39 (2010 Annual Report). The Commissions finances, operation, control, 8 indemnity, organization, and rulemaking areby incorporation of Exhibitsalleged 9 to be uniquely insulated from State hands due to the unique and politically sensitive 10 nature of its duty in policing the judiciary. It is so independent it has been described 11 as a bureaucracy out of control. See Recorder v. Comm'n on Judicial Performance, 12 72 Cal. App. 4th 258, 263 (1999); A Career Under Fire: Howard Broadman Spent 13 Years Fighting Discipline Charges, The Recorder, Jan. 5, 2000, at 1 (the 14 Commission on Judicial Performance is a . . . bureaucracy out of control); Sankar, 15 Disciplining the Professional Judge, 88 Cal.L.Rev. 1233. See also, Adams v. 16 Comm'n on Judicial Performance, 8 Cal. 4th 630, 638, 882 P.2d 358, 362 (1994) 17 While this issue is Defendants burden here, given that the Commission is

18 staunch independence from voter influence, it is hard to imagine that, even given 19 opportunity to assert the issue to trier of fact, the Commission could satisfy the 20 relevant test. The Commission appears not merely to operate an independent balance 21 sheet/budget from the State, but has actual ownership of hard currency funds. As 22 with its co-defendants Administrative Office of the Courts and Judicial Council, its 23 operation are highly insulated from voter control. Its members are appointed by the 24 State Supreme Court or its Chairperson, Defendant Cantil-Sakauye. These entities 25 have created themselves as independent from the micromanagement of the 26 California State Legislature who, according to the former Chairperson of these 27 entities, dont understand the operations of courts. See, Ronald M. George, Chief: 28 The Quest for Justice in California (2013), pp. 452-54. As an entity with -16OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 independent funds, rules, control, and jurisdiction, the voters of the State have little or 2 no control over itas intended by both the Commission and the State1and is 3 therefore not entitled to the dignity of sovereignty available under Eleventh 4 Amendment immunity. See, e.g., Lake County, Hess, supra. Any injunction 5 regarding the Commissions operationsall of which are by design distinct from the 6 Statewould not bind the State of California. As such, any assertion of Eleventh 7 Amendment immunity appears futile. 8 9 10 11 2. Individual Claims: SIMI and BATTSON Have Not Shown Entitlement to Eleventh Amendment Immunity for Their Specific Functions As Being State Functions As individuals, SIMI and BATTSON face even greater challenges to invoke

12 the misguided engine of injustice of Eleventh Amendment immunity. They must 13 show that the specific functions they are alleged to have performed are State level 14 functions, making them an arm of the state. Pennhurst, Zolin, supra. Such a 15 proposition is plainly futile on the present record, and would appear to be so on any. 16 In Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103,

17 1106 (9th Cir. 1987), the plaintiff, a public interest organization for the deaf, sued the 18 Los Angeles County Superior Court and its Jury Commissioner alleging injury 19 caused by the defendants refusal to provide sign-language interpreters to enable deaf 20 citizens to serve as jurors. Id. at 1107. The District Court tried the case (Greater Los 21 Angeles Council of Deafness, Inc. v. Zolin, 607 F. Supp. 175, 179 (C.D. Cal. 1984)), 22 finding that the County would be answerable to any damages charged to individual 23 employee defendants. The Court of Appeals found that on these facts, the individual 24 court employees were not entitled to Eleventh Amendment immunity. A functional 25 approach governs the eleventh amendment's application to actions for money 26 damages against state officials. Such actions are considered to be suits against the 27 state, and thus barred, if the state is the real, substantial party in interest. Id. at 1110 28
1

Quest for Justice, supra, at 236-280; 453. -17OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 (citing Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984)). 2 Because facts at trial showed that the state treasury is not in jeopardy for the 3 specific functions performed, the individual employees were not entitled to 4 Eleventh Amendment immunity. Zolin, 812 F.2d at 1110. 5 6 a. BATTSON and SIMI in Official Capacity As with the Commission, the analysis for SIMI and BATTSON turns on facts

7 which cannot be derived from the face of the Complaint. The Commission references 8 Complaint paragraph 20 naming BATTSON in his official capacity, and therefrom 9 concludes that the Complaint alleges only conduct pursuant to official duties. 10 Comm. MTD 5:3-4. This assertion grossly misrepresents the allegations of the 11 Complaint. The Complaint avers numerous ultra vires acts, criminal acts, and acts in 12 furtherance of conspiracy. Sec. II.A, supra. Further, even while performing an 13 official task, to the extent BATTSON and SIMI were doing so in furtherance of a 14 criminal enterprise or conspiracy, each ceased acting in his official capacity when he 15 actively participated in the criminal conspiracy among defendants. Vierria v. 16 California Highway Patrol, 644 F. Supp. 2d 1219, 1240 (E.D. Cal. 2009). While 17 arguably certain of Mr. BATTSONS activities were innocent official duties, the 18 Complaint alleges that at least the vast majority were not. The same analysis applies 19 to Mr. SIMI in his supervisorial and policymaker roles. Compl. 19, 152, 162-175. 20 21 b. BATTSON as Outside Counsel The Commissions assertion that Mr. BATTSON is similarly situated to the

22 outside attorney Defendant in Junho Hyon is also disingenuous. The Commission 23 MTD assertswithout foundation and in direct contravention to the Complaints 24 avermentsthat BATTSON is a Commission Attorney. (Compare MTD 5:6-7 25 Commission Attorney with Complaint 20 describing BATTSON as an individual 26 employed as an investigator for DEFENDANT CJP. BATSON at all times herein 27 mentioned was the representative, agent, and employee of the CJP.). 28 Whatever theory Commission may build for a jury, on the relevant question, -18OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 the Complaint does not allege that Mr. BATTSON is a Commission Attorney. 2 BATTSON is a Commission employee participating in a criminal conspiracy and 3 enterprise, forebearing on his duty to investigate, oversee, and facilitate the discipline 4 of those over whom he has the power to prevent or aid in preventing, and aiding 5 and abetting in the commission of crimes setting in motion the events precipitating 6 the counts alleged against him. See, Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 7 1978); Starr v. Baca, 652 F.3d 1202, 1215-16 (9th Cir. 2011), cert. denied, 132 S. Ct. 8 2101 (2012); Vierria v. California Highway Patrol, 644 F. Supp. 2d 1219, 1240 (E.D. 9 Cal. 2009). He is also alleged to misrepresent his and the Commissions duties, 10 policies, neutrality, role, and processes constituting obstruction of justice. Compl. 11 112, 124, 129-136, 173-174, 184-89, These are not tasks of an outside licensed legal 12 representative, but the acts of a government employee acting ultra vires to his duties 13 to the citizens he is sworn to serve, while fraudulently misrepresenting that he is 14 fulfilling those same duties.2 15 The Commissions Motion cannot carry the significant burden it faces in

16 achieving Eleventh Amendment immunity for itself or its employees. Given that the 17 Commission has raised this issue unexpectedly, Plaintiff was has not fully pled all 18 facts and evidence of which it is aware on this issue showing the Commissions 19 20 21 22 23 24 25 26 27 28
2

An impartial and independent judiciary is indispensable to our legal system. Of equal importance is public confidence in the independence and integrity of the judiciary, because the effective functioning of our legal system is dependent upon the public's willingness to accept the judgments and rulings of the courts. (Cal.Code Jud. Conduct, com. to canon 1.) As a consequence, California judges must act in accordance with high standards of conduct that foster the utmost trust of the public. In 1960, as a means of attempting to meet the public's expectations with regard to a fair and impartial judiciary, and in order to enforce rigorous standards of judicial conduct, California established the first permanent state judicial disciplinary commission in the nation, the Commission on Judicial Performance (hereafter the Commission). (See Cal. Const., art. VI, 8; Shaman & Begue, Silence Isn't Always Golden: Reassessing Confidentiality in the Judicial Disciplinary Process (1985) 58 Temple L.Q. 755, 756. . . . An independent state agency, the Commission is authorized to investigate complaints of judicial misconduct and other conduct prejudicial to the administration of justice, to file formal charges, to hold adjudicative hearings and make findings, to order less serious discipline on its own authority, and to recommend the imposition of more serious disciplineincluding removal from officeby this court. (Art. VI, 18.). Adams v. Comm'n on Judicial Performance, 8 Cal. 4th 630, 637, 882 P.2d 358, 361-62 (1994) (George, Assoc. J.)

-19OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 independence. Plaintiff hereby proffers a present ability to amend to plead such facts, 2 and requests permission to do so if the Court concludes that the issue is appropriate 3 for consideration at the Rule 12 stage. 4 5 3. Participation in the DDICE Enterprises Not a State Central Function BATTSON and SIMI are alleged to be participants in the criminal RICO

6 ENTERPRISES relating to the Domestic Dispute Industry. Acts in furtherance of a 7 commercial psychology enterprise are not central functions of the State of 8 California or any Stateand are as such should not be shielded by the fiction of 9 immunity. The Complaint accuses the peculiar practice of the San Diego County 10 Superior Court Defendants in embarking on an entrepreneurial frolic to operate a for11 profit psychological enterprise purposed to privately evaluate parent and children 12 litigants in a cloistered, off the record, no-holds-barred forum in which they are 13 stripped of all of fundamental rights as litigants, citizens, and parentsand extorted 14 with threats of manipulation of process utter even a hint of autonomy. Compl. 21615 230. Such practice is notand by grace of God shall never bea central function 16 of any government created to serve its people. Recent atrocities by state court judges 17 acting in criminal enterprise with private co-conspirators to abuse the most vulnerable 18 of litigantschildrenindecently, cavalierly, baselessly, and willfully . . . for 19 personal gain have recently been exposed, condemned, and rightfully severely 20 punished in our federal justice system. See H.T. v. Ciavarella, No. 3:09-cv-0357 21 (ARC) (M.D. Pa.) (November 20, 2009 Memorandum and Order, p. 19); U.S. v. 22 Ciavarella, (3rd Cir. May 24, 2013). 23 Our own Circuit has wisely rejected extension of sovereign immunity to state

24 actors conspiring with private commercial enterprises. See, e.g., Del Campo v. 25 Kennedy, 517 F.3d 1070, 1077 (9th Cir. 2008); Mitchell v. Los Angeles Community 26 College Dist., 861 F.2d 198, 201 (9th Cir.1988). Courts in other Circuits are 27 similarly wary of defendants invocation of the misguided engine of injustice of 28 Eleventh Amendment immunity to shield governments entrepreneurial aspirations. -20OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 See, e.g., Stewart v. Baldwin County Board of Education, 908 F.2d 1499, 1509 (11th 2 Cir.1990); Tuveson v. Florida Governor's Council on Indian Affairs, Inc., 734 F.2d 3 730, 732 (11th Cir.1984). 4 5 F. All Beneath State Level Defendants Are Subject to Prospective Relief The Eleventh Amendment does not bar actions for prospective declaratory or

6 injunctive relief against state officers in their official capacities for their alleged 7 violations of federal law. See Ex Parte Young, 209 U.S. at 15556 (1908); Pennhurst 8 State School & Hospital v. Halderman, 465 U.S. 89 (1984); Natural Resources 9 Defense Council v. California Dept. of Transp., 96 F.3d 420, 422 (1996). 10 11 12 1. Protected Federal Civil Rights Reform, Exercise, Support and Advocacy (FFRRESA)Injunctions Prospective Relief Counts 1 and 2 pray for injunctive and declaratory remedy

13 against the Commission Defendants ongoing and future violations of federal law. 14 Prospective Relief Count 1 seeks prohibitions relating to harassment and intimidation 15 of Plaintiffs FFRRESApetitioning state and federal authorities relating to federal 16 parental rights (FFR, Compl. 76), lobbying, asserting, and seeking enforcement of 17 state and federal laws and constitutions (Compl. 77-80)caused in pertinent part 18 by Commission Defendants illegal acts, forebearance to act, aiding and abetting, and 19 deliberate indifference in facilitation of conspiracy relating to state court judges 20 within their duty and ability to control. Compl. Counts 1, 2, 6, 12-14; Racketeering 21 Claims for Relief 3-13. Commission Defendants Racketeering includes diverting 22 citizens through the Commissions remedial processa dead-letter office maze of 23 time and resource-consuming diversions, absorbing enormous effort but yielding no 24 effective relief. Tellingly, the Commissions own published statistics show that less 25 than 1% of citizen complaints make it past the open the envelope stage, while 26 remarkably nearly half of government lawyer, media, or other judges complaint 27 receive legitimate treatment. The Commission offers budget, staffing and lack 28 of detail in complaint excuses, yet devotes no resources to advocating for citizens -21OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 who submit legitimate, but imperfectly pled Complaints. Compl. 83-86, 96, 261.F, 2 resources that would otherwise go toward assisting unsophisticated citizens with 3 apparently serious, but inarticulate complaints to investigations of preferred 4 complainant government lawyers. Those citizens it captures in its maze receive 5 little attention or support, but instead more red tape, forms, requests for information, 6 and not surprisingly become frustrated or exhausted while their statutes of limitation 7 in federal court run. In a very real sense, the Commissions very existence is an 8 obstruction of justice. Compl. 348-367. 9 Defendants ongoing pattern and practice of HARASSMENT AND ABUSE,

10 retaliation, chilling, and obstruction of DUE ADMINISTRATION OF JUSITCE of 11 Plaintiffs includes allegations of affirmative policy and practiceby action, failure to 12 act in breach of duty, or deliberate indifferencedirected to each of the EQUAL 13 PROTECTION CLASSES (Compl. 193-200, 207, 395.E). Such behavior may be 14 enjoined. 15 Injunctive relief may include both declaration, injunction, and mandamus

16 against federal officers failing to act in the face of a clear duty to do so. 28 U.S.C. 17 1361; Han v. U.S. Dept of Justice, 1993 WL 13011266 (C.A.9) at *16; Barron v. 18 Reich, 13 F.3d 1370, 1374 (9th Cir. 1994); Wilbur v. United States, 281 U.S. 206, 218 19 (1930). The Complaint alleges sufficient factual basis for such jurisdiction over 20 Commission Defendants as FEDERAL LAW ENFORCEMENT OFFICIALS. 21 Compl. 86 et passim. Instant Defendants have jurisdiction over, but are not 22 comprised of, judicial officials. Cal. Const. Art. VI, 8, 18. Their breach of clear 23 non-discretionary PROFESSIONAL DUTIES to act or refrain from acting (Compl. 24 152, 201; Ex. 39:P2242-2246) may be enforced by injunction, including 25 mandamus. Han, Wilbur, supra. 26 27 28 2. Illegal Domestic Violence Intervention Legislative Scheme (DVILS) Injunctions: Prospective Relief Count 2 seeks, inter alia, a declaration of Plaintiffs rights -22OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 and Defendants duties vis--vis the constitutionality, validity, and enforceability of 2 the DVILS (Domestic Violence Intervention Legislative Scheme detailed at 3 Compl.39, 308 et passim; Ex. 34:P1791-1872) and DVILS ORDERS (Compl. 4 309; Ex. 35:P1873-1884), relevant to present Defendants by virtue of their power 5 and duty to police judicial observation of Judicial Canons (Ex. P2273-2325, 23526 2363, ) to ensure rightsincluding federal rights (Ex. P2364-2365)of litigants by 7 the Commissions powers of supervision, oversight, and discipline of judicial 8 officials, inter alia. Cal. Const. Art VI, 8, 18; Ex. P2242-2272. Federal 9 jurisdiction includes the power to enjoin state officers in enforcing unconstitutional 10 state laws, or permitting enforcement in violation of duty, including state judicial 11 officials. Dombrowski v. Pfister, 380 U.S. 479, 497 (1965). The collusive 12 enforcement of DVILS, HARASSMENT AND ABUSE, and their tolerance is in 13 direct contravention of fundamental federal rights to parental autonomy, privacy, 14 speech, liberty, property, access to courts, and due process. Compl. 309-317, 39215 396). Such deprivations cause perhaps the most irreparable of irreparable injury 16 deprivation of parent-child relationsin the DVILS ongoing and future enforcement. 17 See Krahm v. Graham, 461 F.2d 703, 708 (9th Cir. 1972). Their use and policies of 18 illegal tolerance for their use may therefore be directly enjoined. Id. 19 Regardless of whether Defendants herein are or not State-level entities, to the

20 extent that they enforce, police, or oversee others in the enforcement of federal 21 Constitutional, statutory, and common law, and oversee judicial behavior vis--vis 22 their observation of litigant rights, they are appropriate defendants to be enjoined. 23 Ex. Parte Young, Edelman v. Jordan, 415 U.S. 651, 666-667 (1974), Natural 24 Resources Defense Council v. California Dept. of Transp., 96 F.3d 420, 422 (1996). 25 26 3. Lanham Act Prospective Remedies: Count 21 identifies Defendants false description of services and facilitation of

27 unfair business practices. Such behavior may be enjoined by both state and federal 28 law. 15 U.S.C. 1116(a), 1117, 1118, 1125; Bus & Prof. C. 17200, 17500. -23OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 2

4. Racketeering Injunctions: Racketeering Claims for Relief 3 through 13 describe the Commission

3 Defendants past and ongoing commission, conspiracy to commit, and aiding and 4 abetting in the conduct and participation of RICO Enterprise 1 through a pattern of 5 racketeering activity. Such acts are subject to prohibition, mandamus, divestiture, 6 and other equitable remedies. 18 U.S.C. 1964(a), (c), and (d). 7 As the Complaint articulates several bases for invoking equitable remedies

8 against all three Commission Defendants, Eleventh Amendment sovereign immunity 9 cannot shield them from this Courts plenary jurisdiction to enforce federal law. 18 10 U.S.C. 1964(a); 28 U.S.C. 2201-2202; 28 U.S.C. 1337; 15 U.S.C. 1116(a), 11 1117, 1118; 42 U.S.C. 1988(a); Fed.R.Civ.P. 57, 65. 12 13 14 G. State Constitutional Immunities Do Not Protect Ultra Vires or Criminal Conduct For the same reasons that Defendants criminal and ultra vires frolics are not

15 protected by immunity under federal law, they are not acts undertaken in the course 16 of their official duties and are thus not protected by the immunity granted by Article 17 VI, 18(h) of the California Constitution. Recorder v. Comm'n on Judicial 18 Performance, 72 Cal. App. 4th 258 (1999); Vierria v. California Highway Patrol, 19 644 F. Supp. 2d 1219, 1240 (E.D. Cal. 2009). As this Court obtains supplemental 20 jurisdiction by virtue of a near-identical nucleus of facts underlying the Complaint 21 allegations of violations of state and federal law, it may exercise subject matter 22 jurisdiction over the state law claims of the Complaint. 28 U.S.C. 1367(a). 23 24 25 26 27 28 -24OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -25OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM

III.

CONCLUSION

Defendants have failed to establish an entitlement to Eleventh Amendment immunity at this stage. Plaintiff respectfully request that the Motion to Dismiss be denied.

Respectfully Submitted:

DATED: December 5, 2013

By: /s/

Colbern C. Stuart, III

Colbern C. Stuart, III, President, California Coalition for Families and Children, PBC in Pro Se

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the court's CM-ECF system per Federal Rule of Civil Procedure 5(b )(2)(E). Any other counsel of record will be served by facsimile transmission and/or first class mail this 5th day of December, 2013. By: /s/

Colbern C. Stuart, III

Colbern C. Stuart, III, President, California Coalition for Families and Children, PBC in Pro Se

-1OPPO TO CJP MTN TO DISMISS 13-CV-1944 CAB BLM