Professional Documents
Culture Documents
14
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16 CALIFORNIA COALITION FOR
FAMILIES AND CHILDREN, et al.,
17
Plaintiffs,
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v.
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SAN DIEGO COUNTY BAR
20 ASSOCIATION, et al.,
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TABLE OF CONTENTS
1
2 I.
INTRODUCTION ................................................................................................... 1
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B. Irreparable Harm................................................................................................. 23
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CONCLUSION .................................................................................................. 25
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TABLE OF AUTHORITIES
1 Mardi Gras v. City of San Luis Obispo, 189 F.Supp.2d 1018 (C.D.Cal. 2002) .......... 14
2 Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466
3
22 S.O.C., Inc. v. County of Clark, 152 F.3d 1136 (9th Cir. 1998) .................................. 23
23 Saenz v. Roe, 526 U.S. 489 (1999) .............................................................................. 14
24 Sammartano v. First Judicial District Court, in and for County of Carson City, 303
25
(1976) ....................................................................................................................... 17
(2008) ....................................................................................................................... 18
1 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) ..................... 14
2 Wisconsin v. Yoder, 406 U.S. 205 (1972) .................................................................... 13
3
4
STATUTES
OTHER AUTHORITIES
Eugene Volokh, Parent-Child Speech And Child Custody Speech Restrictions 81
New York University Law Review 631, 649-662 (2006).......................................... 14
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1 Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 Cal. L. Rev.
2
3 Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L.
4
Rev.79 (1991)........................................................................................................... 21
9 Wright & Miller, Federal Practice and Procedure, 2948.1 (2d ed. 2004) .............. 23
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Plaintiffs move for a preliminary injunction under Federal Rule of Civil Procedure
2 65(a) enjoining Defendants from (1) use of or reliance on the abuse standard defined
3 in California Family Code sections 6203 and 6320 as the threshold showing for
4 issuance of any domestic violence restraining order, and (2) production, distribution,
5 use, and issuance of the JUDICIAL COUNCIL DV Forms identified herein.
6
I.
INTRODUCTION
1 to how undesirable family discord will be fully exterminated remains illusive. Stuart
2 Decl. 34-34.
3
In pursuit of this end, state and local entities in California devote special
4 attention to families in order to deter behavior which may lead to injury. This Motion
5 asserts that one embodiment of Californias scheme to eradicate domestic violence
6 preventive restraining ordersfails to properly observe constitutional boundaries.
7 Specifically, to what extent may police powers be deployed onto families to accomplish
8 desirable goals of domestic violence deterrence without overstepping constitutional
9 restrictions on the use of state-sponsored tools of coercion?
10
This Motion offers that Californias present scheme to eradicate domestic strife
II.
FACTS
California county courts deploy local police power to restrain citizens through
A.
Domestic violence restraining orders are issued by county Family and Criminal
11 Division judges. Stuart Decl. Ex. C, (P3101-03). In Family Court, the orders may be
12 obtained by litigants represented by counsel or appearing in propria persona. Id.
13 Litigants and counsel may prepare their own motions, but may also use pre-printed
14 forms designed and distributed by Defendant JUDICIAL COUNCIL. Cal. Fam.C.
15 6226. A packet of Applicant and Respondent forms and various instructional
16 documentation is attached to the Stuart Decl. as Exhibit C. (JUDICIAL COUNCIL
17 Forms)
18
The JUDICIAL COUNCIL Forms are used by and made available from various
Courts: County court clerks and judges maintain and distribute JUDICIAL
21 COUNCIL Forms for their own use and by lawyers and litigants. Ex. D
22
23 COUNTY OF SAN DIEGO make forms available from county Family Law
24 Facilitators offices, courthouse staff, self-help centers, county Internet websites, and
25
either directly or indirectly, by mail or otherwise, coming within a specified distance
of, or disturbing the peace of the other party, and, in the discretion of the court, on a
27 showing of good cause, of other named family or household members. Stuart Decl.
Ex. A, P3028.
28
5
Elizabeth Marie Himchak, Judge Outlines Reasons for Domestic Violence
Increase Pomerado News, March 2, 2012. Stuart Decl. Ex. B, P3052-53.
-326
1 cooperating agencies such as the Legal Aid Society, Volunteer Lawyers Program,
2 restraining order clinics and classes, and county law libraries. Ex. D;
3
4 such as Defendant ALLIANCE, the San Diego Family Justice Center and entities such
5 as the YWCA, and Center for Community Solutions. Ex. E;
6
7 City of San Diego Police Department and San Diego County Sheriffs Department. Ex.
8 F; Cal. Fam.C. 6250;
9
10 Violence Unit and the County of San Diego District Attorneys Office Family
11 Protection Division and victim advocate services therein. Ex. G;
12
13 attorneys provide, refer, or advise regarding use of the JUDICIAL COUNCIL Forms
14 and laws for their private clients. Ex. H.
15 1. Completing the Forms
16
The process for completing the JUDICIAL COUNCIL Forms is described in the
17 INFO forms of the Applicant and Respondent packets. Ex. C, P3101. Audio/video
18 instructions are available at http://wp.me/p4aG7J-I8.
An applicant may complete the forms on her own, hire an attorney, or obtain
21 assistance from public employees such as city and county social workers and
22 administrators, including court clerks, Family Law Facilitators Offices workers,
23 District Attorneys Victim Advocates, San Diego Family Justice Center employees.
24 Quasi-public social workers such as ALLIANCE and Center for Community Solutions
25 offer similar services. Stuart Decl. Exs. D-G, 9. A summary of the relevant steps in
26 the process for obtaining a domestic violence protective order follows.
27
28
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a. Step One: Initiating the Request for Restraining Order: Judicial Council Form
DV 100
Form DV 100 (Stuart Decl. Ex. C, P3105) provides a boilerplate checklist for
4 the filer identified in (1) to check I ask for the court to order the person identified in
5 (2) as follows:
6
1. Personal Conduct Orders: Orders enjoining the person in (2) from a wide
7 variety of behaviors including acts described as: Harass, attack, strike, threaten,
8 assault, (sexually or otherwise), hit, follow, stalk, molest, destroy personal property,
9 disturb the peace, keep under surveillance, or block movements and Contact, either
10 directly or indirectly, in any way, including but not limited to, by telephone, mail, or
11 e-mail or other electronic means.
12
2. Stay-Away Order: Orders requiring the person in (2) to stay at least ____
13 yards away from a variety of persons within the Domestic Relations Class, and
14 locations such as churches, schools, workplaces, residences, vehicles, and open-ended
15 any other locations the person in (1) requests.
16
3. Move-Out Order: Orders requiring the person in (2) to move out and not
21 communications made to me by the person in (2) that violate the judges orders.
22
23 (1) the sole possession, care, and control of the animals listed below and that the
24 person in (2) stay at least ___ yards away from and not take, sell, transfer, encumber,
25 conceal, molest, attack, strike, threaten, harm, or otherwise dispose of identified
26 animals.
27
28 custody orders for children of one or both of the person in (1) and (2).
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8. Child Support: Orders requesting child support orders and altering existing
9. Property Control: Orders that the court give only me temporary use,
10. Debt Payment: Orders that the person in (2) to make these payments while
11. Property Restraint: Orders that the person in (2) not borrow against, sell,
8 hide, or get rid of or destroy any possessions or property, except in the usual course of
9 business or for necessities of life. I also ask the judge to order the person in (2) to
10 notify me of any new or big expenses and to explain them to the court.
11
12. Spousal Support: Orders that the person in (2) to pay spousal support to
13. Lawyers Fees and Costs: Orders that the person in (2) pay some or all
14. Payments for Costs and Services: Orders that the person in (2) pay for lost
16 earnings costs for services caused directly by the person in (2) (damaged property,
17 medical care, counseling, temporary housing, etc.)
18
15. Batterer Intervention Program: Orders that the person listed in (2) to go
19 to a 52 week batterer intervention program and show proof of completion to the court.
20
16. Other Orders: Any other orders against the person in (2) requested by the
21 person in (1).
22
The Forms and California law provide that orders may be issued by any superior
23 court and without notice to the restrained person in (2). Cal. Fam.C. 6300, 6320(a)
24 (Stuart Decl. Ex. C, P3023, P3028). Upon issuance, law enforcement are required
25 to arrest the person in (2) for any violation. Cal. Pen.C. 836(c)(1), 13700(b) (Stuart
26 Decl Ex. C, P3117; Ex. I, P3387, P3404-06). Violation of the orders can be charged
27 as a felony. Cal. Pen.C. 166, 273.6 (Stuart Decl. Ex. C, P3117, Ex. I, P3269-70,
28 P3308-10).
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i.
3 upon an applicants single showing: The existence of abuse. See, Cal. Fam.C.
4 6203, 6320 (Stuart Decl. Ex. C, P3101, 3108-11, 3118, 3124).6 Though abuse is a
5 simple word in laymans parlance, comprehending the concept as used within the
6 Domestic Dispute Industry requires study. The lesson begins with the JUDICIAL
7 COUNCIL Form description of abuse:
8
Describe how the person in (2) abused you. Abuse means to intentionally or
10
11
12
molest, attack, hit, stalk, threaten, batter, harass, telephone, or contact you; or
13
14
15
6203, 6320).
16 Following the references one looks to Family Code 6203, which provides:
17
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(d) To engage in any behavior that has been or could be enjoined pursuant to
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Section 6320.
6
Abuse appears in several contexts in the Family and Penal Codes, including
child abuse, (Cal. Fam.C. 3011, 3026, 3027, 6924, 7020, Cal.Pen.C. 11165.6),
abuse of parental authority (Fam. C. 7507), sexual abuse (Cal Fam.C. 6220, Cal.
Pen.C. 11165.1), substance abuse (Cal. Fam.C. 3190), drug abuse (Fam.C.
6929), and spousal abuse and domestic violence-oriented abuse (Cal. Pen.C.
13700(a). This Motion is directed only to the definition relating to abuse as defined
in domestic violence restraining orders provided at Cal. Fam.C. 6203, 6211, 6300,
6320. Stuart Decl. Exs. A, I.
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(a) The court may issue an ex parte order enjoining a party from molesting,
otherwise, coming within a specified distance of, or disturbing the peace of the
other party, and, in the discretion of the court, on a showing of good cause, of
10 One then looks to Californias Penal Code 653m,7 which provides in relevant part:
11
12
13
(a) Every person who, with intent to annoy, telephones or makes contact
14
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or about the other person any obscene language or addresses to the other
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person any threat to inflict injury to the person or property of the person
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(b) Every person who, with intent to annoy or harass, makes repeated
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another person is, whether or not conversation ensues from making the
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calls or electronic contacts made in good faith or during the ordinary course
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device includes, but is not limited to, telephones, cellular phones, computers,
smartphones, and any other device that transfers signs, signals, writing, images,
limited to, videophones, TTY/TDD devices, and all other devices used to aid or
10
11 With fundamental liberty and vested property rights at jeopardy, one would be well
12 advised to continue the research, because several defendants hereto continue to
13 expand the conceptual dragnet on public (and private) websites, brochures, flyer,
14 seminars, and books. Defendant JUDICIAL COUNCIL expands on its instructions
15 describing abuse at its Internet website:
16
17
an intimate partner. These are behaviors that physically harm, arouse fear, prevent
18
a partner from doing what they wish or force them to behave in ways they do not
19
want. Abuse includes the use of physical and sexual violence, threats and
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Form DV 100 provides a space to describe the most recent abuse, identify
2 witnesses to the abuse, and additional space to detail abuse of you or your
3 children and other related history of abuse. An applicant may use a form DV 105
4 to supplement form DV 100 to request child custody and visitation orders. The Forms
5 solicits no other evidence.9
6
7
12 follows:
13
14 answer, read Form DV-120-INFO , How Can I Respond to a Request for Domestic
15 violence Restraining Order?
16
Whether or not you respond in writing, go to the court hearing if you want
17 the judge to hear from you before making orders. You may tell the judge why you
18 agree or disagree with the orders requested. You may bring witnesses and other
19 evidence.
20
At the hearing the judge may make restraining orders against you that could
The judge may also make other orders about your children, child support,
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1 spousal support, money, and property and may order you to turn in or sell any firearms
2 that you own or possess.
Form DV 109 indicates that a judge need only find reasonable proof of a past
4 act or acts of abuse (Cal. Fam. C. 6320 and 6320.5) to issue an ex parte restraining
5 order lasting up to five years.10 Cal. Fam.C. 6302; Ex. C, P3118, P3125. The court
6 may issue any order ex parte (Fam. C. 6320). Ex. C, P3118, 3120.
7
The Form does not advise the person in (2) of possible objections, ramifications
10
Upon being served with a form DV 100 and 109, JUDICIAL COUNCIL Form
11 DV 120 and DV-120-INFO instruct the person in (2) to review the DV 100 form and
12 complete and file a written response on Form DV-120. Stuart Decl. Ex. C. Form DV13 120 provides a list of check-boxes to agree or disagree to the requested order.
14 The form instructs the person in (2) to tell your side of the story. It provides no
15 advice as to rights, privileges, or immunities, or other options for responding.
16 Audio/Video instructions for completing Form DV 120 are available at
17 http://wp.me/p4aG7J-I8.
18
19
A judicial officer receiving a request for a restraining order may grant the order
20 with or without hearing, and may use Form DV 110 Temporary Restraining Order.
21 Ex. C, P3113-17. If a court holds a hearing, it may issue an order on Form DV 130
22 Restraining Order After Hearing which is substantially identical to Form DV 110.
23 Stuart Decl. Ex. C, P3156-3161. A court may include child custody orders using Form
24
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27
28
10
This citation to the Family Code is incorrect. Neither Cal. Fam.C. 6320 nor
6320.5 require a finding of reasonable proof for issuance of any order. The statutes
require a finding of good cause only when a party requests to extend an order to
cover other named family or household members. Such extensions may be issued
in the discretion of the court. In fact, the Family Code articulates no burden of
proof for issuing any order depriving the person in (1) of the rights identified herein.
Ex. A. Neither reasonable proof nor good cause are defined under California
law.
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1 DV 105. Ex. C, P3153-55. A court may also issue a California Law Enforcement
2 Telecommunications System (CLETS) Information Form to provide law
3 enforcement with information that will help them enforce any JUDICIAL COUNCIL
4 Form order. Ex. C, P3122.
5 2. Penalties For Violating Domestic Violence Restraining Orders
6
Forms DV 110 and DV 130 (court orders) advise the person in (2):
7
8
The Court has granted the temporary restraining orders checked below. If you
do not obey these orders you can be arrested and charged with a crime. You
10
may be sent to jail for up to one year, pay a fine of up to $1,000, or both.
11
12
If You Do Not Obey This Order, You Can Be Arrested and Charged With
13
a Crime
14
15
If you travel to another state or to tribal lands or make the protected person do
16
so, with the intention of disobeying this order, you can be charged with a
17
federal crime.
18
If you do not obey this order, you can go to jail or prison and/or pay a fine.
19
20
The form orders include boilerplate Warnings and Notices to the Restrained
21 Person in (2) including instructions relating to child custody, visitation, support, and
22 enforcement by attaching assets and income, interstate travel, real and personal
23 property use and enjoyment, firearms and ammunition. Ex. C, P3116.
24
The Forms include boilerplate Instructions for Law Enforcement stating the
25 order is effective when made (without notice to the restrained person), and that If
26 an officer has probable cause to believe that the restrained person had notice of the
27 order and disobeyed the order, the officer must arrest the restrained person. Ex. C,
28 P3117. The JUDICIAL COUNCIL makes the forms mandatory and represents that
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1 the forms are approved by DOJ. See, e.g., Ex. C, P3113, P3118, 3138.
2
3
III.
DISCUSSION
The JUDICIAL COUNCIL Forms and the abuse standard enable private
4 parties to deploy state police powers to burden citizen rights guaranteed under
5 numerous provisions of the Constitutions of the United States11 and the State of
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1 California.12
2 disposable as a matter of law: Illegal interference with freedom of expression under the
3 First Amendment to the United States Constitution, and Article I, 2(a) and 26 of the
4 California Constitution.
5
6 succeed on the merits, that he is likely to suffer irreparable harm in the absence of
7 preliminary relief, that the balance of equities tips in his favor, and that an injunction
8 is in the public interest." Winter v. Natural Resources Defense Council, Inc., 555 U.S.
9 7 (2008). The First Amendment analysis of both statutes and policies relating to
10 enforcement of protective orders such as the JUDICIAL COUNCIL Forms is identical.
11 See, e.g., Vasquez v. Rackauckas, 734 F.3d 1025, 1037 (9th Cir. 2013).
12
1 based on content. Form DV 100 states: Abuse can be spoken, written, or physical.
2 A regulation is content-based if it is not possible to determine whether the expression
3 violates the restriction without looking at the content of the speech. Foti v. City of
4 Menlo Park, 146 F.3d 629, 636 (9th Cir. 1998).
A court cannot determine if an expression is abuse without examining the
6 content of the accused expression. In order to perform the analysis necessary to reach
7 a finding of abuse, a judicial official must examine the content of the spoken,
8 written acts alleged to determine:
9
10
11
12
13
14
the
person
in
(2)
threaten[ed]
batter[ed]13
harass[ed]14
15
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13
Like abuse, there is no criminal analogue to the term batter under California law.
Cal. Pen.C. 242 defines battery as any willful and unlawful use of force or
violence upon the person of another. See also, domestic battery Cal. Pen.C.
243(e)(1). Stuart Decl. Ex. I. However, in the parlance of the Domestic Dispute
Industry, batter has acquired a divergent meaning to describe certain behavior by a
man against a woman in a heterosexual relationship. This kind of violence, called
battering, is chiefly a problem of violence against women by men and should be
understood in the wider social context of mens subordination of women. The Role of
Restorative Justice in the Battered Womens Movement, Loretta M. Frederick, Kristine
C.
Lizdas,
September,
2003,
p.
37
(available
at
http://www.bwjp.org/files/bwjp/articles/Role_of_Restorative_Justice_Battered_Wom
en's_Movement.pdf). See Stuart Ex. K.
14
Harass is defined under Cal. Pen.C. 646.9 as a knowing and willful course of
conduct directed at a specific person that seriously alarms, annoys, torments, or
terrorizes the person, and that serves no legitimate purpose. As this term also sweeps
broadly to prohibit speech based on content, it is also likely unconstitutional, and will
be addressed in due course.
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1
2
3
4
The abuse standard and all laws, forms, regulations, and policies derived
13 permissible restrictions on expression and illegal ones has been drawn brightly by our
14 Supreme Court. [A]s a general matter, the First Amendment means that government
15 has no power to restrict expression because of its message, its ideas, its subject matter,
16 or its content. Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002).
17 As a result, the Constitution demands that content-based restrictions on speech be
18 presumed invalid . . . and that the Government bear the burden of showing their
19 constitutionality. Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 660
20 (2004).
21
Due Process balancing tests comparing the value of speech with the governments
1 categories [of expression] long familiar to the bar United States v. Alvarez, 132 S. Ct.
2 2537, 2544 (2012) (internal citations omitted).
Abuse does not fit any of the categories of permitted interference. 15 The
Some of the expression falling within this definition of abuse may fall within the
15
Among these categories are advocacy intended, and likely, to incite imminent
lawless action, see Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam); obscenity,
see, e.g., Miller v. California, 413 U. S. 15 (1973); defamation, see, e.g., New York
Times Co. v. Sullivan, 376 U. S. 254 (1964) (providing substantial protection for speech
about public figures); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) (imposing
some limits on liability for defaming a private figure); speech integral to criminal
conduct, see, e.g., Giboney v. Empire Storage & Ice Co., 336 U. S. 490 (1949); socalled fighting words, see Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); child
pornography, see New York v. Ferber, 458 U. S. 747 (1982); fraud, see Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976); true
threats, see Watts v. United States, 394 U. S. 705 (1969) (per curiam); and speech
presenting some grave and imminent threat the government has the power to prevent,
see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931), although a restriction
under the last category is most difficult to sustain, see New York Times Co. v. United
States, 403 U. S. 713 (1971) (per curiam). These categories have a historical foundation
in the Courts free speech tradition. The vast realm of free speech and thought always
protected in our tradition can still thrive, and even be furthered, by adherence to those
categories and rules.
16
Watts v. United States, 394 U. S. 705 (1969); Cal. Pen.C. 422 ("Any person who
willfully threatens to commit a crime which will result in death or great bodily injury
to another person, with the specific intent that the statement ... is to be taken as a threat
...").
17
Chaplinsky v. New Hampshire, 315 U. S. 568 (1942).
18
Miller v. California, 413 U. S. 15, 24 (1973) (Obscenity may be prohibited if:
(a) the dominant theme of the material taken as a whole appeals to a prurient interest
in sex; (b) the material is patently offensive because it affronts contemporary
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b. Abuse Is Overbroad
Any regulation on speech beyond the historic and traditional categories [of
6 expression] long familiar to the bar is facially invalid as overbroad. [A] law may be
7 invalidated as overbroad if a substantial number of its applications are
8 unconstitutional, judged in relation to the statute's plainly legitimate sweep. United
9 States v. Stevens, 559 U.S. 460, 473 (2010) (citing Washington State Grange v.
10 Washington State Republican Party, 552 U.S. 442, 449, n. 6, (2008)); See also
11 Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466
12 U.S. 789, 799 (1984). Because First Amendment freedoms need breathing space to
13 survive, government may regulate in the area only with narrow specificity." N.A.A.C.P.
14 v. Button, 371 U.S.415, 433 (1963).
15
16
26 individuals ordinarily have the constitutional right to communicate their views in the
27 presence of individuals they believe are engaging in immoral or hurtful behavior.
28
1 Thornhill v. Alabama, 310 U.S. 88, 104 (1940); City of Houston v. Hill, 482 U.S. 451,
2 461 (1987) (the First Amendment protects a significant amount of verbal criticism and
3 challenge); Overstreet v. United Broth. of Carpenters and Joiners of America, Local
4 Union No. 1506, 409 F.3d 1199, 1211 (9th Cir. 2005); Lewis v. City of New Orleans,
5 415 U.S. 130, 132 (1974) (statute prohibiting wantonly cursing, reviling, and using
6 obscene or opprobrious language held invalid).
7
8
9
10 presumed invalid ... and that the Government bear the burden of showing their
11 constitutionality. Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660,
12 (2004); Alvarez at 2544.
13 protected speech, the restriction must be the "least restrictive means among available,
14 effective alternatives." Ashcroft at 666. Defendants cannot establish that the burden
15 on expression falling within the category of abuse both (1) falls within one of the
16 above historic and traditional categories [of expression] long familiar to the bar, and
17 (2) is the least restrictive means among available, effective alternatives.
18
Defendants are unlikely to carry their burden of showing that no less restrictive
Like
The purposes of this division are to prevent the recurrence of acts of violence
26
and sexual abuse and to provide for a separation of the persons involved in the
27
domestic violence for a period sufficient to enable these persons to seek a resolution
28
Stuart Decl. Ex. A, P 3014. The State of California seems to claim two enabling
2 interests: (1) to prevent recurrence of acts of violence and sexual abuse, and (2) to
3 provide for a separation of the persons involved in the domestic violence for a period
4 sufficient to enable these persons to seek a resolution of the causes of the violence.
Defendants bear the burden of persuasion here, and they face a significant hurdle in
19
25
Congress has defined misdemeanor domestic violence more narrowly: 18 U.S.C.
921(a)(33)(A) provides:[T]he term misdemeanor crime of domestic violence means
27 an offense that . . . has, as an element, the use or attempted use of physical force, or the
threatened use of a deadly weapon. (emphasis added). The Supreme Court has
28
unanimously adopted Congresss definition for purposes of 18 U.S.C. 921(a)(33)(A).
See United States v. Hayes, 555 U.S. 415, 421, 430 (2009) (the seven justice majority
-2026
Finally, criminalizing abuse is not the least restrictive means for preventing
8 undesirable speech.
9 blocking, or simply disengaging have been asserted to invalidate similar statutes. See,
10 e.g., Ashcroft at 658; United States v. Playboy Entertainment Group, Inc., 529 U.S.
11 803, 826 (2000).
12 2. Abuse is Void for Vagueness
13
and two justice dissent in Hayes adopt section 921(a)(33)(A)s definition of domestic
violence).
20
In 1970 California led the nation in the no-fault revolution abolishing
consideration of fault in a divorce. Family Law Act of 1969 (Former Cal. Civ. C.
4000-5138). After 1970, proof of adultery, extreme cruelty, wilful desertion, willful
neglect, habitual intemperance, conviction of a felony, or incurable insanity and cruel
and inhuman treatment that threatened the physical and mental well-being of the
Plaintiff were deemed improper and inadmissible to dissolution proceedings.
Former Cal. Civ. C. 4501, 4509; Herma Hill Kay, An Appraisal of California's NoFault Divorce Law, 75 Cal. L. Rev. 291, 319 (1987). Stuart Decl. Ex. L, p. 83. The
pre-1970 fault provisions were widely recognized to cause harm to litigants, children,
and the legal system itself, and widely recommended to abandonment by the American
Bar Association, many divorce law professional organizations, communities, schools,
and churches. Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991
BYU L. Rev.79 (1991). Stuart Decl. Ex. M. Abuse did not reappear in the Family
Code until 1994 with the Domestic Violence Prevention Act. Cal. Fam.C. 6203;
Stuart decl. Ex. A.
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1 to be prevented, laws must provide explicit standards for those who apply them).
To understand what behavior is burdened under the Family Codes prohibition
Its difficult to imagine how drafters of the 1994 DVPA could believe that the
10 breadth and ideologically lathered term abuse would lead to anything other than
11 confusion. Indeed, abuse standard appears to have been crafted by persons intending
12 to inject terminology burdening permissible categories of regulation and impermissible
13 ones.22 The drafters might have recognized that subsequent judicial construction or
14 discretion at application could not cure their draftsmanship. See, e.g., United States v.
15 Reese, 92 U.S. 214, 221 (1875) (It would certainly be dangerous if the legislature
16 could set a net large enough to catch all possible offenders, and leave it to the courts to
17 step inside and say who could be rightfully detained, and who should be set at large.);
18 Boos v. Barry, 485 U.S. 312, 329 (1988). Moreover, where a statute cleaves closely to
19 fundamental constitutional rights, deviant draftsmanship can be recognized only as a
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Stuart Decl. 7, 11; Ex. G, J, K, P3231-32. The Supreme Court has recently
expressed unusual skepticism toward the Domestic Dispute Industrys etymology for
abuse domestic violence batter and related terms. The proper constitutional
scope and construction of these terms appears to be of new interest to our highest Court.
See Jan 14, 2014 transcript of oral argument in United States v. Castleman, 695 F.3d
582 (6th Cir. 2012), cert. granted, 134 S. Ct. 49, (U.S. Oct. 1, 2013). Stuart Decl. Ex.
R.
22
E.g., Obscene language may exist within prohibited obscenity but is not itself
obscenity; reasonably in fear may the result of an utterance of fighting words or
true threats, but not all reasonable fear would be a result of true threats or fighting
words. Given that these historic and traditional categories [of expression] long
familiar to the bar existed for decades prior the 1994 enactment of the Domestic
Violence Prevention Act, one may assume drafters were aware of permitted
restrictions, yet oddly chose to ignore them, or worse.
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2 (government must regulate speech with narrow specificity); Kolender v. Lawson, 461
3 U.S. 352, 357 (1983).
B.
4
5
Irreparable Harm
Since abuse burdens rights of expression, and the orders invoked by a finding
6 of abuse interfere with fundamental liberty and vested property interests, irreparable
7 harm must be presumed. Warsoldier v. Woodford, 418 F.3d 989, 1001 (9th Cir. 2005)
8 ("irreparable injury sufficient to merit the grant of relief [established] by demonstrating
9 the existence of a colorable First Amendment claim"); When an alleged deprivation
10 of a constitutional right is involved, most courts hold that no further showing of
11 irreparable injury is necessary." Wright & Miller, Federal Practice and Procedure,
12 2948.1 (2d ed. 2004). It is no defense that the deprivation caused by the orders may be
13 temporary. S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1148 (9th Cir. 1998)
14 ("The loss of First Amendment freedoms, even for minimal periods of time,
15 unquestionably constitutes irreparable injury."). Even the threat of issuance and
16 criminal repercussions for enforcement of the orders creates an irreparable harm by
17 chilling speech. See White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000) (government
18 conduct violates the First Amendment when it "would chill or silence a person of
19 ordinary firmness from future First Amendment activities").
20
21 experienced past deprivations of protected rights under the abuse standard, and all
22 members of each of the EQUAL PROTECTION CLASSES in the state of California
23 are presently subject to deprivation. Stuart Decl. 36, Ex. B. Stuart is presently under
24 an order issued by Defendant Goldsmith in or about May, 2010 by use of the Forms
25 and remains at jeopardy for further deprivation in his relationships with his ex-wife and
26 son. Id. Such past and ongoing deprivation constitutes irreparable harm and standing
27 for purposes of this Motion.
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C.
1
2
Balance of Equities
Enjoining Defendants use of the Forms and abuse standard would impose no
3 burden to any legitimate interest of any Defendant. Threats, fighting words, obscenity,
4 and obstruction of justice will remain crimes. Civil remedies for property damage,
5 reputational injury, and emotional injuries remain available. Enjoining use of the
6 JUDICIAL COUNCIL Forms will not prohibit individualized petitions for equitable
7 remedy in the case of truly irreparable damage should a need arise.
8
9 fundamental rights identified herein, but also the means for committing extortion,
10 fraud, and abuse of process well-known to the Domestic Dispute Industry. See, e.g.,
11 Peng v. Mei Chin Penghu, 335 F.3d 970, 977 (9th Cir. 2003); Stuart Decl. 15-30, Ex.
12 N; First Amended Complaint allegations re: MALICIOUS PROSECUTION,
13 PROSECUTORIAL MISCONDUCT, DOYNE TERRORISM, OBSTRUCTION OF
14 JUSTICE. Ending such disgraceful and malicious practices today is nothing short of
15 humane.
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17
D.
Public Interest
18 International Socy for Krishna Consciousness, Inc. v. Kearnes, 454 F. Supp. 116, 125
19 (E.D. Cal. 1978). Protecting rights of intimate association with family and friends is
20 a public interest. Vasquez v. Rackauckas, 734 F.3d 1025, 1037 (9th Cir. 2013)
21 (enjoining protective orders that burdened constitutionally protected freedom of
22 intimate association, association with family members in public places such as
23 schools, churches, parks, libraries, stores, and restaurants and in the home);
24 Sammartano v. First Judicial District Court, in and for County of Carson City, 303
25 F.3d 959, 974 (9th Cir.2002) (Courts considering requests for preliminary injunctions
26 have consistently recognized the significant public interest in upholding First
27 Amendment principles.). Enjoining the constitutional burdens posed by the broad
28 abuse standard serves cherished public interests that are, without exception in a free
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IV.
CONCLUSION
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Respectfully Submitted:
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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
28TH day of February, 2014.
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By: /s/
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