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No. 13-17170 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________________________ RON PIERCE, et al., Plaintiffs-Appellants, v.
CALIFORNIA CHIEF JUSTICE CANTIL-SAKAUYE, et al.,

Defendants-Appellees. _______________________________________________ Appeal from U.S. District Court for the Northern District of California Civil Case No. C 13-01295 JSW (Honorable Jeffrey S. White) _______________________________________________ APPELLANTS REPLY BRIEF _______________________________________________

Archibald Cunningham State Bar No. 210625 1489 McAllister St. San Francisco, CA 94115 archcunnghm@yahoo.com 415 563.1828 Attorney for Appellants/Plaintiffs

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Plaintiffs/Appellants Excerpts of Record ER Number Document Title Filing Date Pages _____________________________________________________________ ER 1: ER 2: Notice of Appeal 10/23/13 1-3 4-7

Order Denying Motion to Amend 10/04/13 Judgment Under FRCP 59(e) AND/Or Motion for Relief From Judgment Under FRCR 60(b)(1)(6): Request for Statement of Reasons Plaintiffs Response to Opposition to Amend Judgment Under 59(e) or 60(b)(1)(6). 9/7/13

ER 3:

8-18

ER 4:

Opposition to Motion to Amend 9/3/13 Judgment Under FRCP 59(e) And/Or Motion for Relief From Judgment Under FRCP 60(b)(1)(6) Plaintiffs Motion to Amend Judgment Under FRCP 59(e) And/Or Motion for Relief From Judgment Under FRCP 60(b)(1)(6): Request for Statement of Reasons 9/5/13

19-26

ER 5:

27-47

ER 6:

Order Granting, In Part, and Denying, 8/13/13 48-59 In Part, Motion to Dismiss, and Denying As Moot Motion for Preliminary Injunction Second Declaration in Support of Preliminary Injunction 7/7/13 60-66

ER 7:

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ER 8:

Reply to Defendants Opposition to to Plaintiffs Motion for a Preliminary Injunction

6/27/13 67-84

ER 9:

Defendants Opposition to Plaintiffs Motion for Preliminary Injunction Plaintiffs Second Request for Judicial Notice; Declaration of Counsel for Plaintiffs Plaintiffs Response and Objection to Defendants Reply Brief in Support of Its Motion to Dismiss Reply Brief In Support of Defendants Motion to Dismiss Plaintiffs Response and Objection to Defendants Motion to Dismiss

5/24/13 85-100

RE 10:

5/12/13 101-135

ER 11:

5/4/13 136-143

ER 12:

5/2/13 144-149

ER 13:

4/22/13 150-157

ER 14:

Defendants Notice of Motion and 4/15/13 158-175 Motion To Dismiss Plaintiffs Complaint for Injunctive and Declaratory Relief; Memorandum of Points and Authorities Order Re Petitioners Request to Renew 8/27/12 176-182 Restraining Order (Case No. 1-09-FL-149682) Kamil Hiramenek v. Adil Hiramenek District Court Docket Sheet 183-189

ER 15:

ER 16:

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TABLE OF CONTENTS INTRODUCTION... 1

I. DISSCUSSION.. 4 A. Appellants Constitutional Challenges to the VLS As Applied to Custody Disputes Is Simply Not Addressed.. 4 B. The AGs Reading of the Ex Parte Young Exception Would Gut The Supremacy Clause 7 C. The AGs Assertion that Boddie v. Connecticut and M.L.B. v. S.L.J Is Limited to the Facts and Circumstances of Those Cases Is Simply Wrong 11 D. The District Courts Failure To Use Heightened Scrutiny In Reviewing the Application of the VLS Was Reversible Error 13 E. Heightened Scrutiny Is Not Limited to Final, Full, Irrevocable Termination of Parental Rights 14 F. There Are Numerous Constitutional Violations Here 16 G. The VLS As Applied to Custody Disputes Is Not Narrowly Drawn. 21 CONCLUSION 23

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TABLE OF AUTORITIES Federal Cases ACS of Fairbanks, Inc. v. GCI Communication Corp., 321 F.3d 1215, 1216-17 (9th Cir.2003) 8 Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir.2000). 8 Boddie v. Connecticut, 401 U.S. 371, 383 (197. ..12, 13, 14, 16 Clark v. Jeter, 486 U.S. 456, 461 (1988).15 Cunningham v. Mahoney, C-10-03211 JSW (N.D. Cal. 2010)11, 18 Ex Parte Young, 209 U.S. 123 (1908)..7, 8, 9, 11 Kougasian v. TMSL, Inc. 359 F.3d 1136, 1140 (9th Cir. 2004) 11 Los Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir.1992) 8 Loving v. Virginia 388 U. S. 1 (1966)...15 M.LB v. S.L.J., 519 U.S. 102 (1996). 11, 12, 15, 16 Rooker/Feldman ..10, 11 Weissman v. Quail Lodge, Inc., 179 F. 3d 1194 (1999, 9th Cir. Cal.).6 Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir. 2005).8, 9 Wolfe v. George, 486 F.3d 1120 (9th Cir. 2007)..12, 13 Wolfe v. Strankham 391 F.3d 358 (9th Cir. 2004)..7, 9 U.S. v. Kras (1973) 409 U.S. 43413 State Cases Elkins v. Sup. Ct. (2007) 41 Cal. 4th 1337.22 Johnson v. City of Loma Linda, (2000) 24 Cal.4th 61...11 Lucido v. Superior Court, (1990)`851 Cal.3d 335.....11 Luckett v. Panos (2008) 161 Cal.App.4th 7721 Shalant v. Girardi (2011) 51 Cal. 4th 1164.. ..16 Wolfgram v. Wells Fargo Bank (1993) 53 Cal. App. 4th 43.13
ii

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STATE STATUTES CCP 391..passim CCP 391.1. 7, 17, 19, 20 CCP 391.418 CCP 391.7 5, 6, 11, 12, 16, 19, 20, 23 CCP 391.8...20 Family Code 2174 Family Code 203022 U.S. CONSTITUTION 1st Amendment..1, 3 11th Amendment7 14th Amendment3 CALIFORNIA CONSTITUTION Cal. Const. Art. I, sec 7(b).20 Cal. Const. Art. VI, 1119, 20 TREATISE 7 Witkin, California Procedure, Judgment 339 (4th ed.1997).11

iii

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INTRODUCTION In the Answering Brief of Defendants-Appellees (ABD), Deputy Attorney General Patti Li seems elliptical in her responses to the issues raised by Appellants. Appellants have belabored the fact that the nature of litigation in a custody dispute is fundamentally different from civil law suits. Yet, Deputy Attorney General Li and the AGs blithely skips over any distinction between parents involved in custody disputes and litigants in civil suits. This allows them, at the end of their brief, to insinuate that a parents pleadings in a custody dispute, just like other civil litigants, are baseless litigation not immunized by the First Amendment or that there is no constitutional right to file frivolous litigation. (ABD, pg. 36-37). Although the Appellants cite in their opening brief to a string of Supreme Court cases holding that parental rights are the oldest fundamental interest that is recognized (AOB, pg. 36), Deputy Attorney General never admits the obvious constitutional guarantee of custody rights or concedes that the Vexatious Litigant Statute impinges on these rights during custody disputes. When Attorney General Li finishes circling the wagon of these issues, she attacks using the desperate lawyers most common weapon, intellectual dishonesty, (ABD, pg. 24): Plaintiffs assume, however, that because custody disputes affect the exercise of these fundamental rights, parents must have unlimited Appellants Reply Brief -1

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access to family law courts so that they may repeatedly challenge adverse custody and visitation determinations. Under this theory, the state may never impose any conditions on litigation involving custody disputes.

The AGs have combined hyperbole with obfuscation and wrapped up their statement as if they were accurately and honestly describing the Appellants legal position. They seem to be agreeing that custody disputes involve the exercise of fundamental rights, but then gloss over any tacit admission by faulting the parents for trying to uphold them. By recasting the discussion in extreme and overbroad terms such as unlimited access, repeatedly challenges, and the state may never impose, Attorney General Li deliberately misstates the Appellants position. In doing this, she deflects attention from the fact that a custody dispute involves constitutionally protected fundamental rights. She insinuates that the parents are not asking for equal protection or due process but are demanding the special treatment of unlimited access. In distorting the motives of the parents, she implies that the parents are not trying to restore their terminated parental rights but are repeatedly challenging supposedly valid custody determinations that were borne out of fully and fairly litigated hearings. By swapping out the factual and legal predicate of Appellants position with her own view, she can at once

Appellants Reply Brief -2

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discredit Appellants position while creating a new narrative in which she is the master (of sophistry). In reconstituting Appellants position, the AGs then rush to the conclusion that Appellants theory is incorrect. (ABD, pg. 24). In short, Attorney General Li and the AGs confuse legal analysis with intellectual deviousness. In the hopes of reasserting control over the narrative, Appellants will briefly reiterate certain facts of their case. Despite Attorney General Lis position to the contrary, Appellants are not demanding unlimited access. Theyd be happy with any access or equal protection. For instance, on August 26, 2012, Adil Hiramanek was slapped with a 50 year restraining order in which Judge L. Michael Clark of the Santa Clara Superior Court forbid him from seeing his three children until midnight on August 24, 2062. (RE 15, pg 7/7-8 1). On February 1, 2013, Adil was denied permission by the California Court of Appeals for Sixth District in a onesentence order. (RE 11, Second Request for Judicial Notice, Exhibit D, pg. 6). Now, the 50-year restraining order has lapsed into a final judgment and Attorney General Li is correct that Adil must show changed circumstances to modify that order which cannot be collaterally attacked and which was never fully-litigated. (ABD, pg. 29, fn 5). But Attorney General Li fails to For law enforcement purposes, the restraining order shall be for 50 years, and shall expire at midnight on August 24, 2062. Appellants Reply Brief -3
1

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mention or realize that, under the profiling order of the VLS, Adil must show changed circumstances not in a fully litigated hearing to which represented parents are entitled under Family Code 217 but in his pleadings. He was first denied the right to appellate review of the underlying order and will be denied an evidentiary hearing under Family Code 217 to show changed circumstances. Adils case is emblematic of the other class member/parents. I. DISSCUSSION A. Appellants Constitutional Challenges to the VLS As Applied to Custody Disputes Is Simply Not Addressed. In faulting these Appellants/parents for repeatedly challenging either custody or visitation order, Attorney General Li and the AGs either fail to admit the facts of this case or are oblivious to the reach of the VLS. The AGs simply ignore the facts and how they relate to the constitutional challenge to the VLS on its face and as applied by the family law judges at both the trial courts and the appellate courts. In that respect, Archibald Cunningham had all his visitation rights terminated after a hearing on February 26, 2010. Hed filed an Order to Show Cause for the purposes of restoring a 50/50 share custody agreement he lost in a trial by declaration. (RE 11, Second Request for Judicial Notice, Exhibit I-K, pg. 27-32). After the hearing, Maria Schopp, counsel for Archibalds ex-spouse, submitted a Appellants Reply Brief -4

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proposed order purporting to strip him of all of his remaining parental visitation rights. She did not comply with local rules regarding proposed rules and did not allow Archibald to object or to submit his own proposed order. Neither did she meet and confer as mandated by the local rule. Instead, she typed his name on the signature line because she knew he would never have agreed to the termination of his rights. Then, family law Judge Patrick Mahoney colluded in the fraud and signed the order. (*See, Comp., 29-30). When the self-represented Archibald attempted to appeal the February 26, 2010 order, he was denied permission under the VLS. The presiding judge spit back the boiler plate language that the appeal (of the termination of all parental rights without notice or an opportunity to be heard) lacked merit. The fact is that Judge Mahoney had declared Archibald vexatious not once, but twice. Judge Mahoney declared Archibald vexatious for the first time on February 23, 2009. While Archibald appealed the first vexatious litigant order (A124717), Judge Mahoney subjected him to a second vexatious litigant motion by the same party, on the same grounds, and conducted once again by him. Besides imposing multiple fee sanctions of $23,000 and $33,000 on Archibald, Judge Mahoneys first vexatious litigant order (and prefiling

Appellants Reply Brief -5

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order) was used to deny him permission to appeal the February 26, 2010 order terminating his visitation rights (as well as the second vexatious litigant order of February 26, 2010 and a permanent TRO that the previous judge, Judge Donald Sullivan, had declared null and void). Like Adil, the order terminating his visitation rights is treated as a final judgment, demanding a showing of changed circumstances in order to modify. The facts and legal ruling of Appellant-Michele Fotinos case are the apotheosis of an unconstitutionally applied statute. But Deputy Attorney General Li says nary a word on this matter. The Ninth Circuit, in Weissman v. Quail Lodge, Inc., 179 F. 3d 1194 (1999, 9th Cir. Cal.), unequivocally provided that the VLS was never intended to apply to attorneys representing clients, [W]e therefore conclude that an attorney appearing on behalf of a client cannot be sanctioned as a vexatious litigant; by definition, he or she is acting as an attorney and not a litigant. However, Presiding Judge Beth Labsom Freeman of the San Mateo Superior Court would issue a prefiling order in which she named both Michele Fotinos attorney, Patricia Barry, as well as Michele as vexatious. Now both Michele and Ms. Barry appear on the Judicial Councils List of Vexatious Litigants. 2 There is nothing in the

http://www.courts.ca.gov/documents/vexlit.pdf Appellants Reply Brief -6

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plain language of the VLS, no indication in the Legislative history of the VLS, and no case law that supports Presiding Judge Freemans order. 3 Given the word limitations of this reply brief, Appellant will forego reiterating the facts of each of the other class-members. Though Ron Pierces case is unique in that the Judge Kane of the Third Appellate District of California granted himself inquisitional powers, notified Mr. Pierce he was conducting a combined 391.1 motion in the appellate court, and then found Ron vexatious. Chief Justice Cantil-Sakauye herself refused to allow Ron to appeal the vexatious litigant order to the state Supreme Court. B. The AGs Reading of the Ex Parte Young Exception Would Gut The Supremacy Clause. Deputy Attorney General Li concedes that the district court declined to apply the Eleventh Amendment to the Chief Justice. (ABD, pg. 14). However, Attorney General Li contends that the district courts reliance on Wolfe v. Strankam, 392 F.3d 358 (9th Cir. 2004) was misplaced because the BARRY Patricia San Mateo Superior Court PRO12 11/16/12 1437 Order states specifics in re: Michele Fotinos

At the time of her prefiling order, Presiding Judge Freeman had been disqualified and had no power to issue any orders in any proceedings. (CCP section 170.4(d). Shes now appointed to the Federal District Court of California, Northern District. Appellants Reply Brief -7

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Ninth Circuit did not consider the Ex Parte Young requirement of whether chief justice had any connection to enforcement of the VLS (ABD, pg. 14). She also contends that the Appellants have not alleged facts that meet the Ex Parte Young connection requirement. (ABD, pg. 12, 2). The Appellants, however, reasonably relied on the controlling authority of Wolfe v. Strankam, 392 F. 3d 358 (9th Cir. 2004), which held that official-capacity actions for prospective injunctive relief are not treated as actions against the State. (ER 8, pg. 79, fn 10). In their complaint, the Appellants sued the Chief Justice Cantil-Sakauye only in her official capacity and only for injunctive relief. This was consistent also with the holding of Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir. 2005), which held that the Ex Parte Young exception relates to the type of relief requested and whether an on-going violation of federal law was alleged. 4 (Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir.2000); see also Los Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir.1992) ("[T]he Eleventh Amendment does not bar actions
4

Wilbur v. Locke, supra, at 32: "[I]n determining whether `the doctrine of Ex Parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'" ACS of Fairbanks, Inc. v. GCI Communication Corp., 321 F.3d 1215, 1216-17 (9th Cir.2003) (Order), quoting Verizon Md., Inc. v. Pub. Serv. Comm'n, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). Appellants Reply Brief -8

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seeking only prospective declaratory or injunctive relief against state officers in their official capacities"). The crux of the problem with broadly reading the Ex Parte Young requirement for a connection to enforcement is that it would devour the Supremacy Clause. Its beyond cavil that the Supreme Court in Ex Parte Young allowed prospective injunctive relief against unconstitutional action taken by state officers. The Supreme Court did this as a way of protecting the Constitutions Supremacy Clause. If the Supreme Court had not stripped state officials of their power when acting outside the scope of what a state authorizes them to do, then states could take unconstitutional actions with impunity, thereby invalidating the Supremacy Clause. In this regard, the Ex Parte Young is a legal fiction that assures that in the federal system the U.S. Constitution is the supreme law of the land. Both Strankham and Wilbur recognize the legal fiction. Now, Deputy Attorney General Li wishes to read the Ex Parte Young connection to enforcement requirement as extending to official-capacity suits. Apparently, shed want each class member to allege the particular facts and rulings of their vexatious litigant case along with the on-going violations. If Appellants did that, theyre afraid that their class action would then be characterized not as a general constitutional challenge to the VLS

Appellants Reply Brief -9

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but as a collective set of de facto appeals of state court decisions (and thus barred by Rooker-Feldman). In that sense, Appellants feel that getting their class action heard would be tantamount to the ordeal by water associated with witch-hunts, whereby a hog-tied person is flung into a river and if he/she sinks and drowns, the person is innocent but if the person floats, then he/she is guilty and is burnt at the stake. The test allows for the possibility of proving innocence but not surviving. While Appellants imagine the AGs asserting that this is mere histrionics, the Appellants would point out that classmember Cunninghams earlier civil rights suit naming Judge Mahoney was dismissed under Rooker-Feldman as a de facto appeal. (ABD, pg. 17, Cunningham v. Mahoney, C-10-03211 JSW (N.D. Cal. 2010)). Clearly, the Deputy Attorney General Li is only interested in having the class action dismissed, either under Rooker-Feldman or Ex Parte Youngs connection to enforcement requirement. Her ordeal by water approach does not allow for the survival of this class action and a resolution of the case on the merits. If there is any doubt about that, Appellants would point out that Archibalds early constitutional challenge was given short shrift as a de facto appeal and hes now told that the earlier dismissal by the district court under Rooker-Feldman was actually a decision on the

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merits and is barred by res judiciata. (ABD, pg. 17: Cunningham thus had a full and fair opportunity to litigate, and did so unsuccessfully.). The fact is that since the dismissal of Archibalds 2010 suit, he has alleged new facts and presented new orders in this class action that evince new and on-going violations of his right to petition and right to access. Deputy Attorney General Li does not cite any cases that provide that the doctrine of res judicata applies proactively to negate new and future civil rights violations. Appellants are not aware of any such case. For that matter, Appellants take issue with Attorney General Lis characterization that Archibald had any chance to litigate his earlier suit or his newly alleged constitutional violations. The Ninth Circuit in Kougasian v. TMSL, Inc. 359 F.3d 1136, 1140 (9th Cir. 2004) found that a dismissal under RookerFeldman was not a decision on the merits. 5

Kougasian, supra, at 1140: An issue or claim is not precluded in federal court merely because it already has been, or could have been, decided by a California state court. Issue and claim preclusion (collateral estoppel and res judicata) have specific requirements that must be satisfied before preclusion can be found. For example, under California state law a litigant must have had an appropriate opportunity to litigate an issue in the earlier suit before he or she will be issue-precluded (collaterally estopped) from relitigating that issue in a later suit. See, e.g., Johnson v. City of Loma Linda, 24 Cal.4th 61, 99 Cal.Rptr.2d 316, 5 P.3d 874, 884 (2000); see also McCutchen v. City of Montclair, 73 Cal.App.4th 1138, 87 Cal.Rptr.2d 95, 99 (1999) (litigants must have a "full and fair opportunity" to present their case for res judicata to apply) (quoting 7 Witkin, California Procedure, Judgment 339 (4th Appellants Reply Brief -11

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C. The AGs Assertion that Boddie v. Connecticut and M.L.B. v. S.L.J Is Limited to the Facts and Circumstances of Those Cases Is Simply Wrong. The AGs asserts that the Supreme Court in both its decisions in Boddie and M.L.B. v. S.L. J. expressly limited its analysis to the specific facts before it. (ABD, pg. 24). She continues, (ADB, pg. 24-25): And in both cases, the litigants were completely unable to access the courts, in sharp contrast to the access permitted under the VLS. Because the VLS prefiling requirement does not completely block access, theses cases are inapposite here.

First, Appellants are unaware of any comments by the Supreme Court in these decisions that expressly states that its analysis is limited to the specific facts before it. To limit review to the specific facts would defeat the Supreme Court rules and reasons for accepting a case for review except when there are compelling reasons. 6 Deputy Attorney General Li insists that the Supreme Court in Boddie explicitly limited its holding to the precise circumstances faced by the appellants, and warned against a wider application of that holding: We do not decide that access for all individuals ed.1997)); Lucido v. Superior Court, 51 Cal.3d 335, 272 Cal.Rptr. 767, 795 P.2d 1223, 1225 (1990) (setting forth the requirements for issue preclusion) 6 Rule 10. Considerations Governing Review on Writ of Certiorari Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers: Appellants Reply Brief -12

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to the courts is a right that is, in all circumstances, guaranteed by the Due Process (ABD, pg. 25-26). In the same way, she insists that the Supreme Court in M.L.B. applied heightened scrutiny to a civil litigation prefiling requirement, but once again limited its holding to the specific circumstances of the cases. (ABD, pg. 26, 2). Contrary to the AGs position, both Boddie and M.L.B. have been cited by hundred if not thousands of federal court cases without any federal court ever warning of the limitations she claims. In fact, the Ninth Circuit relied on Boddie in its decision in Wolfe v. George and turned to Boddie to frame the issue of whether Mr. Burton Wolfes right to access and his right to file a civil suit against San Francisco taxi cab companies rose to the same level as divorce. (Wolfe, supra, at 1126). In the same way, the Supreme Court relied on the analysis of Boddie in U.S. v. Kras (1973) 409 U.S. 434 and found that the Robert Kras right to file for bankruptcy (paying filing fees) was distinguishable from the married couples case (filing fees as exclusive precondition to access) in Boddie in two ways. First, Robert Kras did not have a protected interest in filing for bankruptcy. (Kras, supra, at 445). Second, bankruptcy was not the only method available for Mr. Kras to adjust his legal relationship with his creditors. (Id, 445). In short, the Attorney Generals err in suggesting that the two

Appellants Reply Brief -13

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Boddie factors, infringement of a fundamental rights and the states monopolization of means for adjustment of a fundamental relationship, are limited to the specific facts of Boddie. D. The District Courts Failure To Use Heightened Scrutiny In Reviewing the Application of the VLS Was Reversible Error.

The AGs dont consider whether the VLS, as applied to the facts and events and circumstances of this class action, infringes on these parents protected custody rights. Instead, they refer to the ersatz promises of the state appellate court in Wolfgram v. Wells Fargo Bank (1997) 53 Cal. App. 4th 43, 60. (When a vexatious litigant knocks on the courthouse door with a colorable claim, he may enter.). (ABD, pg. 29-30). The fact that Adil, Archibald, Kerry Hicks, Michele Fotinos and now her attorney have been knocking on those locked and bolted courtroom door for years has gone unnoticed by the AGs. Out of frustration, the otherclass members have stopped knocking. The AGs simply fail to address the horror stories that are the facts of this case. In Boddie, the Supreme Court was clear that the issue of a statutes constitutional validity extents to how a court applies statute, (Id, 379): Our cases further establish that a statute or a rule may be held constitutionally invalid as applied when it operates to deprive an individual of a protected right although its general validity as a measure enacted in the legitimate exercise of state power is beyond Appellants Reply Brief -14

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question. Thus, in cases involving religious freedom, free speech or assembly, this Court has often held that a valid statute was unconstitutionally applied in particular circumstances because it interfered with an individual's exercise of those rights.

As noted throughout their brief, the AGs only concern themselves with the facial validity of the VLS in theory and appear oblivious to the trial and appellate courts application of the VLS. E. Heightened Scrutiny Is Not Limited to Final, Full, Irrevocable Termination of Parental Rights. The Boddie court, in the cited passage above, states unequivocally that it has ruled that facially valid statutes have been held to be unconstitutionally applied when they interfere with protected rights. Nevertheless, Deputy Attorney General Li insists that mere interference with a protected right isnt enough to trigger heightened scrutiny. In her view, parents are only entitled to heightened scrutiny when their parental constitutionally protected rights are fully, finally, and irrevocably terminated. (ABD, pg. 31, 2). This view runs afoul not just of Boddie but the vast swath of jurisprudence related to the selection of the proper level of scrutiny for constitutional violations. (AOB, pg 45, fn 1; Classifications affecting fundamental rights are given the most exacting scrutiny. Clark v. Jeter, (1988) 486 U.S. 456, 461; Loving v. Virginia 388 U. S. 1 (1966).

Appellants Reply Brief -15

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In adopting the full, final, irrevocable standard, the district court judge and the AGs read much into the comparison the Supreme Court made in M.L.B. between termination proceeding in juvenile dependency cases and other domestic relations matters such as divorce, paternity, and child support. (M.L.B., supra at 127; BD, pg. 28, 2 -29; AOB, pg. 36, 2 to 38) To read a standard for selecting the proper level of scrutiny into a single comparison by a single Supreme Court decision is simply not prudent. Such a reading is not in harmony with the jurisprudence on the subject and is not supported by the plain language of the passage itself. The Supreme Courts comparison in M.L.B. is meant to place termination proceedings among the spectrum of domestic relations cases that affect fundamental rights. The Supreme Court is emphasizing that its the most extreme example of a constitutional deprivation. The AGs lift the passage from M.L.B. that provides that parental termination decrees are among the most severe forms of state action (Id, 127) but then take the quantum leap that only the most severe cases are afforded heightened scrutiny. If only the most severe deprivations triggered heighten scrutiny review, then the couple seeking a divorce in Boddie would not have met the standard. In short, the AGs are confusing the spectrum of constitutional violations with the selection of the proper standard of review.

Appellants Reply Brief -16

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F. There Are Numerous Constitutional Violations Here. Appellants will not restate their case here because they have laid out their position repeatedly in the complaint and opening brief. However, Appellants wish to clarify the apparent misconceptions the AGs have regarding self-representation in the context of custody disputes and their failure to understand how it creates suspect classes and violates due process. Deputy Attorney General Li asserts that prefiling requirements are rational because they are not subject to the ethical and legal obligations of licensed attorneys. (ABD, pg. 33, 2). This paraphrases the state Supreme Courts holding in Shalant v. Girardi (2011) 51 Cal. 4th 1164 that representation is not absurd and that lawyers are presumed to be ethical gatekeepers. (Id., 1167). The first problem here is that state courts judges such as Presiding Judge Beth Labsom Freeman apply the VLS not only against represented litigants but against their attorneys. Likewise, Archibald was represented and his attorney, Jennifer Nicoletto was required to fill out Judicial Council forms and was then denied access. While representation is suppose to shield litigants, the family law courts fail to apply the VLS by its plain terms. In that regard, the VLS as applied by family law judges is unconstitutional.

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The second problem is that self-representation in civil suits is fundamentally different from acting in propria persona in custody case. As an initial matter, civil litigants are the ones who initiate and file the civil suit and are the plaintiffs against whom a moving defendant can request a vexatious litigant hearing against under section 391.1 of the VLS. If the moving defendant can show there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant, then the court can require the plaintiff to post security. 7 Herein lies the rub. It is certainly rational to ask if a plaintiff is likely to prevail in a civil suit. However, its neither rational nor compelling to ask if a parent has a reasonably probability of prevailing in a custody dispute that can last for up to eighteen years. How can a parent prevail in a custody dispute? The very nature of a custody disputes renders the reasonably probability factor or language absurd.

7 CCP section 391.1: In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant. (emphasis added)

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The threat of being ordered to post bond in a custody dispute also implicates constitutional concerns. To impose a bond requirement on a parent as a precondition to access infringes fundamental rights and creates a suspect class. In his earlier federal civil rights suit, which Deputy Attorney General Li cites to in her brief (ABD, pg. 17; Cunningham v. Mahoney, 103211 JSW (N.D. Cal. 2010), Archibald was slapped with an order by Judge Mahoney to post a $5000 bond before hed be allowed to file any pleadings in his custody dispute. Under section 391.4 8, when Archibald failed to post the $5000, his custody case should have (shall) been dismissed. Similarly, there is the on-going issue of whether hiring an attorney would shield a parent from the need to post the required bond. In any case, these statutes may be rational or compelling to a civil litigant but to subject a parent to the dismissal of his custody case for failing to post a $5000 bond that serves as an exclusive precondition to the adjustment of his fundamental relationship is both absurd and unconstitutional. A third constitutional concern or suspect classification relates to the unlevel playing field caused by subjecting unrepresented parents to the VLS while shielding represented ones from section 391.1 motions. Most of the 8 CCP section 391.4: When security that has been ordered furnished is notfurnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished.

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parents in this class did not initiate the dissolution proceedings and are not plaintiffs. Nevertheless, the represented parents attorneys invariably bring sections 391.1 motions against the unrepresented parent. In every case in this class action, the unrepresented parent is invariably declared vexatious, made beholden to a prefiling order, and then denied immediate and full access. On the other hand, the represented parent may file pleadings to their hearts content without any procedural obstacles. In this regard, the unrepresented parent is at a distinct disadvantage in contending with and litigating against an experienced family law attorney. This unlevel playing field exists only because the unrepresented parent cannot afford an attorney or lacks the good fortune to find a pro-bono lawyer. Moreover, the represented parent is immune (in theory, though not in practice as noted above) from a section 391.1 motion as the result of being represented. In this regard, the VLS, as applied to custody disputes, manages to created suspect class (unrepresented indigent parent) and at the same time violates the Privileges and Immunities clause. 9 There is no compelling or rational reason for giving one parent a litigation advantage simply because the represented parent can afford an Cal. Const. Art. I, sec. 7(b): A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked. Appellants Reply Brief -20
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attorney and the other parent cannot. Further, the imposition of the VLS to custody disputes is not going to curtail or eliminate the custody dispute. As seen here, the VLS has been co-opted by the wealthier parent to gain a litigation advantage and shut down the other parents attempts to have frequent and continuous contact. Worst yet, it gives family law judges the right to impose the VLS on parents and either deliberately or inadvertently affect the outcome of the custody dispute without necessarily considering the best interest of the children. Unfortunately, family law judges seem to be clearly their dockets by use of the VLS. With respect to these parents right to appellate review, Appellants pointed out in their complaint that the prefiling order of the VLS substitutes their constitutional right to appellate review under Cal. Article VI, Section 11 with a cursory review by a single administrative judge who determines if the appeal has merits. (Comp., 82-89). Prior to filing the complaint, Appellants counsel had each class member file a section 391.8 motion to vacate their vexatious litigant order. Not surprising, each motion was denied. In theory section 391.8 of the VLS may seem valid, but in practice it is applied unconstitutionally to deny access to appellate review. G. The VLS As Applied to Custody Disputes Is Not Narrowly Drawn.

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Deputy Attorney General Li reasserts all the narrowly drawn ruling of decisions that were made in the context of civil suits, not custody suits. She merely repeats the holdings without explaining why they should also apply to custody cases. (ABD, pg. 34, 2). She quotes Lucket v. Panos (2008) 161 Cal. App. 4th 77, 80, which ruled, [B]eing narrowly draw, Californias vexatious litigant statute allows a vexatious litigant to continue to file lawsuits. This statement reads less like a reasoned conclusion and more like a tautology. As applied, and as noted above, the class member here have only been allowed to file MC-701 forms requesting the right to file. However, they are routinely and almost categorically denied the right to file any pleadings. For the AG to suggest that the VLS is akin to a licensing or permit system (ABD, pg. 34) may work for getting a fishing license or a rectal examine but it has no place as an exclusive precondition for the adjustment of the fundamental relationship between a parent and child. There are numerous ways that the VLS could be dialed back so as not to inference with the class members fundamental rights for the care and custody of their children. First, the unconstitutional infringement of the VLS could be cured simply by limiting its reach, by preventing its application in the context of custody cases.

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Second, the state of California could provide representation to parents in custody disputes just as it provides lawyers in juvenile dependency cases when termination is threatened. In her final

recommendations 10 of the Elkins Task Force, Chairperson Judge Laurie Zelon recommended that more fees be made available. She also recommended that trial courts make fee awards under Family Code section 2030 to level the playing field. Likewise, in calling for a task force in Elkins v. Sup. Ct., 41 Cal. 4th 1337, fn 20, Chief Justice George said that special treatment should be given to the 82% of family law litigants who act in propria persona. Making fees available is rational, while denying parents access for not having funds to hire an attorney is not rational, its unfair, unconstitutional, and essentially vindictive. Third, family law courts have broad discretion and family law judges could require a parent to have pleadings reviewed in the Self-Help Centers that are now provided in most if not all superior courts. The staff and attorneys could review the pleadings as an alternative to prefiling orders and make recommendations and editorial changes. They could also offer advisory declarations on the custody dispute.

10

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A fourth alternative was suggested by Chairperson Zelon in her final recommendations. She recommended that the family law judge be provided greater instruction on family law matters so that they are up to speed on the law after being rotated into family law courts. Well-prepared, the judges could better fashion and issue rulings based on a firm understanding of the law instead of faking it until they make it. In the same way, the Self-Help Centers could provide tutorials on family law issues so that parents would be better-informed of their rights and the mechanics of filing. CONCLUSION For the reasons stated, Appellants request that their class action be remanded to the district court with directions that the violations of their fundamental custody rights be reviewed by the strictest scrutiny.

Respectfully submitted, s/Archibald Cunningham _____________________ Archibald Cunningham, Esq. Attorney for Appellants Dated: 3/10/14

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Certificate of Compliance under Circuit Rule 32-4 In compliance with this Courts page limitation, this reply brief is proportionately spaced, has a typeface of 14 points, and contains 5488 words. Respectfully submitted this 10 day of March, 2014.

:s/Archibald Cunningham Counsel for Appellants/Plaintiffs

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Certificate of Service I hereby certify that on March 10, 2014 I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. s/Archibald Cunningham

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