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Finney v. Nugent
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A REPRESENTATIVE COPY OF THE FILING
I. Introduction
Prior to May 17, 1954, white-robed oppression barred African Americans’
access to schools.
Prior to May 17, 2004, black-robed oppression barred disabled Americans’
access to courts.
On September 15, 2004 disabled appellant Jacquelyn Finney petitions this
Court for relief from black-robed oppression that bars access to California courts.
The issues in this appeal pertain to disability discrimination barring access to
the programs, services and activities of the California courts, which is repugnant to
the Constitution. Appellant’s inability to petition the federal courts for relief from
intentional discrimination by state court entities, judges and court administrators
voids ADA Title II. Shameful and humiliating policies, procedures, practices and
customs systematically purge the disabled from participating in California court
programs, services and activities.
“When one shames another person, the goal is to degrade the object of
shame, to place [her] lower in the chain of being, to dehumanize [her].”
USA v. Gementera, No. 03-10103, 9th Cir., August 9, 2004, Judge
Hawkins dissenting.
State officials are not entitled to ignore a federal law in the hopes that a
court will subsequently strike it down. If officials choose to ignore a federal
law, they do so at their own peril. Schwenk v. Hartford, 204 F.3d 1187 (9th Cir.
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2000). The ADA statute could not be clearer: it protects all disabled persons
and applies to all state courts. Tennessee v. Lane, 124 S. Ct. 1978 (2004).
II. Jurisdictional Statement
Plaintiff-appellant filed a complaint in U.S. District Court for the Southern
District of California on January 23, 2004. On April 15, 2004 the District Court
granted defendants’ motion to dismiss the complaint with prejudice. Final
judgment was entered on April 19, 2004. Plaintiff-appellant filed her Notice of
Appeal on April 30, 2004, within 30 days of that Order. This appeal is therefore
timely pursuant to Fed. R. App. P. 4(a)(1). This appeal is from a final judgment
disposing of all claims.
The Ninth Circuit Court’s jurisdiction arises under 28 U.S.C. § 1291,
because plaintiff-appellant appeals from a final judgment of the U.S. District
Court for the Southern District of California.
III. Issues Presented for Review
A. Whether suit is barred against the Judicial Council of California, the California
Administrative Office of the Courts and the California Administrative Director
of the Courts for their enactment of a facially unconstitutional, facially
discriminatory law, Cal. Rule of Ct. 989.3 (CRC 989.3), and for their
application of unconstitutional, discriminatory policies, procedures, practices
and customs in court programs, services and activities pursuant to that law in
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violation of ADA, Title II, the Rehabilitation Act and the First and Fourteenth
Amendments?
B.
Whether the Rooker-Feldman Doctrine bars suit against California judges, court
entities, and court administrators for discrimination, deliberate indifference,
discriminatory animus and retaliation pursuant to their application of CRC
989.3, policies, procedures, practices and customs that violate ADA Title II, the
Rehabilitation Act and the First and Fourteenth Amendments?
C.
Whether the Doctrines of Judicial and Quasi-Judicial Immunity bar suit against
California judges and court administrators for discrimination, deliberate
indifference, discriminatory animus, and retaliation pursuant to their enactment
and application of CRC 989.3, policies, procedures, practices and customs that
violate ADA Title II, the Rehabilitation Act and the First and Fourteenth
Amendments?
D. Whether the Eleventh Amendment bars suit against California court entities,
judges and court administrators for discrimination, deliberate indifference,
discriminatory animus and retaliation pursuant to their enactment and
application of CRC 989.3, policies, procedures, practices and customs that
violate ADA Title II, the Rehabilitation Act, and the First and Fourteenth
Amendments?
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E.
Whether the Rooker-Feldman Doctrine, the Doctrines of Judicial and Quasi-
Judicial Immunity, and the Eleventh Amendment bar supplemental
jurisdiction over state law claims of discrimination, deliberate indifference,
discriminatory animus and retaliation in violation of ADA Title II, the
Rehabilitation Act, the First and Fourteenth Amendments, and California
Government Code § 11135?
IV. Statement of the Case
On January 23, 2004, appellant, a former federal fraud investigator, who
enforced discrimination and equal opportunity laws as part of her duties, filed a
complaint in U.S. District Court against state court entities, judges and court
administrators for their refusal to reasonably accommodate polio, intractable pain
and osteoporosis disabilities during the conduct of her in pro per state lawsuit.
Rather than comply with ADA and their own rules and policies, appellees
individually and in conspiracy engaged in a retaliatory stratagem that caused
appellant to dismiss her state lawsuit under extreme duress.
On February 12, 2004, appellees filed a motion to dismiss all claims with
prejudice. ER 42-44¹ On February 19, 2004, during the federal lawsuit,
appellant dismissed her state lawsuit, because she had:
1
ER refers to Excerpts of Record submitted by appellant.
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“…succumbed to the Court’s stratagem of unconscionable, discrimination,
coercion and retaliation… Plaintiff no longer possesses the physical stamina
and force of will to oppose this court’s illegal conduct. Rather than be
subjected to further victimization, risk to her health and safety and
humiliation by this Court’s intentionally malicious course of conduct,
plaintiff is withdrawing her case under extreme duress.” ER 90, lines 3-16.
On April 15, 2004, the District Court granted appellees’ motion to dismiss
all claims with prejudice. On April 19, 2004, final judgment was
entered against appellant.
V. Statement of Facts
A. Introduction
Congress enacted ADA Title II to enforce a prohibition on irrational
disability discrimination and to enforce a variety of other basic constitutional
guarantees.
“These rights include some, like the right of access to the courts, that are
protected by the Due Process Clause of the Fourteenth Amendment.
The Due Process Clause requires the states to afford certain civil litigants a
‘meaningful opportunity to be heard’ by removing obstacles to their
participation in judicial proceedings…” Tennessee v. Lane, 124 S. Ct. 1978
(2004), quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971).
B. The State Court Lawsuit
Appellant’s state lawsuit opposed the California Department of Managed
Health Care's (DMHC) enforcement of an unconscionable HMO subscriber
contract condition that imposes prior restraint on her speech in the context of her
doctor-patient relationships in order to obtain state mandated and contractual
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medical benefits. Appellant has been denied access to specialist physician medical
care for three (3) years by Kaiser Foundation Health Plan (Kaiser) and its
physicians due to her extraordinary firmness in refusing to waive her First
Amendment and common law rights. Appellant’s HMO contract benefits have
been rendered illusory, unjustly enriching Kaiser. This case is of extraordinary
public interest. ER 2, lines 15-23.
State defendants’ illegal conduct against appellant reflects a broad, national
movement by physicians and the organizations with which they
affiliate to retaliate against patients with whom they perceive a conflict of interest.
On June 14, 2004 The New York Times reported that the American Medical
Association entertained a physician’s resolution to “…tell doctors that -except in
emergencies- it is not unethical to refuse care to plaintiffs’ [aka patients’] lawyers
and their spouses…” Another physician at the AMA meeting recognized that
“…the resolution… seeks to discriminate against a group of people.” “Doctors
Denounce Idea to Allow Denial of Care to Some Lawyers,” The New York Times,
June 14, 2004. [ADDENDUM, p. 42]
Appellant’s refusal to be “gagged” by Kaiser, and its physicians acting in
concert with the California Department of Managed Health Care (DMHC), has
resulted in the denial of medically necessary health care. Prior restraint on patient
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speech in the context of the physician-patient relationship is antithetical to the
doctrine of informed consent. Conant v. Walters 309 F.3d 629 (9th Cir. 2002).
C. The Federal Lawsuit
During the conduct of her state lawsuit, appellant attempted to enforce her
ADA Title II (hereinafter ADA) rights and protections pursuant to California Rule
of Court 989.3 and the San Diego Superior Court’s Local Policy Against Bias. ER
7-30, 84-87, 107-168. Rather than enforcing appellant’s ADA rights, appellees
conspired to aid and abet state defendants’ violations.
Appellant’s actions to enjoin these violations triggered a pervasive
conspiracy to viciously retaliate against appellant for attempting to exercise her
ADA rights in the California court system. ER 28, lines 1-21. Appellees’
concerted discrimination, deliberate indifference, discriminatory animus and
retaliation are set forth with particularity in her Complaint, Opposition and Request
for Judicial Notice of documents that verify each of her allegations. ER 1-41, 78-
103, 104-168.
Neither state defendants nor appellees dispute appellant’s facts. Appellant
has undisputed, substantial, corroborated direct and circumstantial evidence to
conclude that proceeding in the California court system (pursuant to its policies
and procedures) to enforce her ADA rights and protections is a futile endeavor,
endangering her health and safety and injuring her dignity. The California courts’
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discriminatory policies and procedures pose a substantial risk of harm from which
appellees are aware that serious injury and death are foreseeable consequences.
“Indeed, the imminent threat here-delayed treatment, physical suffering,
medical complications and death – provides a compelling reason to
permit [these plaintiffs] to pursue judicial resolution before suffering
physical injury.” Harris v. Board of Supervisors, 366 F.3d 754
(9th Cir. 2004).
Appellees have transformed their purportedly administrative, non-
adversarial ADA accommodation process into a blood sport.
VI. Summary of Argument
A. The District Court Erred in Dismissing This Case with Prejudice on
Jurisdictional and Immunity Grounds.
The district court’s rulings vitiate the well-settled jurisdiction of federal
district courts to hear facial and as-applied challenges to unconstitutional,
discriminatory laws, rules, policies, procedures, practices, customs and conduct in
violation of ADA, Title II.
B.
The District Court’s Ruling Bars ADA Law Suits.
Pursuant to the district court’s Order, all disabled persons who have suffered
discrimination, deliberate indifference, discriminatory animus, and retaliation by
state court systems, judges, court administrators and opposing parties’ attorneys
during the course of state lawsuits will be barred from suit by both private
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attorneys general and suit by the U.S. Department of Justice in federal district
courts.
C.
The District Court’s Ruling Denies Disabled Persons Access to Courts.
Disability discrimination, deliberate indifference, discriminatory animus and
retaliation by state court entities, judges and administrators occur in the context of
court programs, activities and services. However, the district court ruled that
federal courts have no jurisdiction to review the decisions and conduct of state
court entities, judges and administrators in the context of court programs, activities
and services.
This Court cannot permit disabled persons to be denied their right to access a
federal forum by virtue of this jurisdictional and immunity-based Catch-22 without
voiding ADA Title II and Tennessee v. Lane, supra. Twice this year the U.S.
Supreme Court has observed that a court lacks “subject-matter jurisdiction” only
when Congress has not authorized the federal judiciary to solve the sort of issue
presented by the case (or the Constitution forbids adjudication). See Kontrick v.
Ryan, 124 S. Ct. 906, 914-16 (2004), Scarborough v. Principi, 124 S. Ct. 1856,
1864-65(2004).
VII. Standards of Review
A. Dismissal for lack of subject matter jurisdiction is reviewed de novo.
Skokomish Indian Tribe v. United States, 322 F.3d 551, 556 (9th Cir. 2003).
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B. A dismissal without leave to amend is reviewed de novo. Oki
Semiconductor Co. v. Wells Fargo Bank, 298 F.3d 768, 772 (9th Cir. 2002).
C.
Immunity under the Eleventh Amendment presents questions of law
reviewed de novo. Lovell v. Chandler, 303 F.3d 1039, 1050 (9th Cir. 2002),
Cert. denied, 123 § S. Ct. 871 (2003).
D. Whether a party is immune under the Eleventh Amendment is also reviewed
de novo. State Bd. Of Equalization v. Harleston, 331 F.3d 699, 701 (9th Cir.
2003).
E. Whether a party is immune from an ADA action is a question of law
reviewed de novo. Lovell, supra at 1050.
F. Dismissal of an ADA action without leave to amend is reviewed de novo.
Lee v. City of Los Angeles, 250 F.3d 668, 691-92 (9th Cir. 2001).
G. Whether a judge is protected from suit by judicial immunity is a question of
law reviewed de novo. Harvey v. Waldron, 210 F.3d 1008, 1011 (9th Cir.
1989).
H. The constitutionality of a statute is reviewed de novo. Gray v. First
Winthrop Corp., 989 F.2d. 1564, 1567 (9th Cir. 1993) 781, 784-85 (9th Cir.
1995).
I. A district court’s decision whether to retain jurisdiction over supplemental
claims when the original federal claims are dismissed is reviewed for abuse
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of discretion. Bryant v. Adventist Health Sys./West, 289 F.3d 1162, 1165
(9th Cir 2002).
VIII. Argument
A. ADA Title II Guarantees the Fundamental Constitutional Right of Access
to State Courts.
1.
State Courts’ Duty to Accommodate.
The U.S. Supreme Court has held in Tennessee v. Lane, supra that
the duty to accommodate is perfectly consistent with the well-established
Due Process principle that, within the limits of practicability, a State must
afford all individuals a meaningful opportunity to be heard in its courts.
2. The ADA and Rehabilitation Act Encompass State Courts.
Tennessee v. Lane, supra has been rendered meaningless and void, as all
ADA claims against California state court entities, judges and court
administrators will have occurred in the context of state court programs,
activities and services of some kind, in addition to architectural barriers. If
federal appeals of state courts’ discriminatory decisions are all
mischaracterized as forbidden de facto appeals, all appeals of ADA
discrimination by the state courts will be forbidden.
Federal review of state judges’ decisions for ADA discrimination
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are no different from federal review of state parole board decisions for ADA
discrimination. Indeed, the Ninth Circuit ruled in Thompson v. Davis, 282
F.3d 780, 786-87 (9th Cir. 2002):
"…given the breadth of the statute's language, parole proceedings,
including substantive decision-making, constitute an activity of a public
entity that falls within the ADA's reach… " Gohier v. Enright,
186 F.3d 1221 (10th Cir. 1999).
The district court incorrectly applied Duvall v. County of Kitsap, 260
F.3d 1124, 1133 (9th Cir. 2001) to wrongly dismiss appellant’s case based, in
part, on judicial immunity, but did not recognize material findings in that
opinion, which supported appellant, i.e.:
“Although judges… have great latitude in how they conduct specific
judicial proceedings… that discretion is not compromised by requiring
that those whose statutory duty it is to administer the courts as
institutions do so in a manner that comports with federal anti-
discriminatory statutes.” Duvall v. County of Kitsap, Id. Slip opinion
page 10812 at line 20 (footnote).
In Duvall, supra the Ninth Circuit specifically stated that state courts
must comply with ADA and the Rehabilitation Act:
“…The ADA imposes an obligation to investigate whether a requested
accommodation is reasonable. We have observed that ‘mere speculation
that a suggested accommodation is not feasible falls short of the
reasonable accommodation requirement; the Acts create a duty to gather
sufficient information from the disabled individual and qualified experts
as needed to determine what accommodations are necessary…’” Duvall
v. County of Kitsap Id., quoting Wong v. Regents of the University of
California, 192 F.3d 807, 818 (9th Cir. 1999).
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3. The U.S. Department of Justice Has Prosecuted State Courts for
Failure to Comply with ADA Requirements.
The Department of Justice (hereinafter DOJ) is the agency responsible
for issuing regulations to implement ADA Title II, (see 28 C.F.R. 35.174),
requiring the Attorney General to promulgate regulations implementing 42
U.S.C. § 12132). “The Agency’s interpretation must be given controlling
weight unless it is plainly erroneous or inconsistent with the regulation.”
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994). DOJ filed an
amicus Brief for The United States on behalf of respondents in Tennessee v.
Lane, supra.²
The DOJ brief recognized “voluminous evidence of historic and
enduring discrimination and deprivation of fundamental rights by states,”
(Exhibit 1 pp. 1-43) including, but not limited to:
a)
Access to the courts (Id. pp. 21-23).
b)
Participation in judicial process (Id. pp. 23-24).
c)
Education (Id. pp. 24-27).
DOJ’ Amicus Brief stressed the same theme that appellant raised
in this Brief’s “Introduction” (Section I.), i.e., that oppression and
² Appellant requests that the Court take judicial notice of the U.S. Department of Justice Amicus Brief for the
United States on behalf of respondents in Tennessee v. Lane, U.S. 124 S. Ct. 1978 (2004) in the U.S. Supreme court
(attached as Exhibit No. 1 to appellant’s Request for Judicial Notice abbreviated as RJN).
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discrimination, both white-robed and black-robed, deprive Americans of
fundamental constitutional rights. DOJ recognized that state laws provide
insufficient protection for disability discrimination, stating that:
“Petitioner and its amici argue (Ret.Br. 21-22; Ala. Br. 22-25) that the
existence of state laws prohibiting some forms of disability
discrimination made congressional action unnecessary. But, as the facts
of this case will illustrate, that argument confuses the existence of laws
with their effectiveness, and Hibbs made clear that effectiveness is what
matters. 123 S. Ct. at 1980-1981… Congress specifically found that state
laws were ‘inadequate to address the pervasive problems of discrimination
that people with disabilities are facing…’ (Id., p.41) Federal efforts to
enforce the rights of individuals with disabilities offer still more evidence.”
(Id. p.36)
Appendix “B” to the Brief for the United States stated DOJ’s “enforcement
efforts under 42 U.S.C. 12132. The 34 reports published to date list 110
matters concerning courthouse accessibility or effective access to judicial
proceedings. The following is a list of those matters. One case (against the
State of Massachusetts alleging problems with physical accessibility)
resulted in a lawsuit (that remains pending), which was reported in the
January, 2003 status report… There are 50 cases that resulted in formal
settlement agreements, 51 cases that resulted in informal settlement
agreements, and 8 cases that resulted in formal mediation.” (Id. Appendix
B)
DOJ identified complaints in two counties in California that resulted
in formal settlement agreements. (Id. pp.2b-3b)
DOJ identified four complaints in California that resulted in informal
settlements with unidentified public entities. (Id. pp. 5b-6b)
DOJ identified one complaint in California resulting in mediation
with an unidentified public entity regarding physical access, April-June,
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2001. Id. p. 7b.
On January 8, 2004, DOJ entered into an Agreement with the State
of Massachusetts to settle its ADA lawsuit, pursuant to DOJ’s
responsibility for administering and enforcing Title II of the ADA, 42
U.S.C. § 12132.³
All defendants agreed to make procedural and policy modifications
to remedy inadequacies in their programs, services and activities to make
the state trial courts accessible to and usable by individuals with
disabilities. Id. pp. 15-30.
4. ADA Title II Establishes a Private Right of Action
The ADA contemplates suit by the Attorney General as the principal
method of enforcing Title II (28 C.F.R. 35.174). Private actions are also
permitted under Title II of the ADA. (42 U.S.C. 12133, incorporating the
remedies of Section 505 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. § 794 a.1)
DOJ has received many complaints regarding inaccessibility of
local courts to persons with disabilities, and discrimination by judges
and other court officials. As in the case of other civil rights acts,
³ Appellant requests that the Court take judicial notice of the Settlement Agreement between the United States of
America and the Commonwealth of Massachusetts, the Massachusetts Trial Court, the Administrative Office of the
Trial Court and the County Commissioners of Bristol County, Massachusetts, January 8, 2004 (attached as Exhibit
No. 2 to appellant’s Request for Judicial Notice).
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adequate implementation depends heavily upon “private attorneys
general” to supplement the Department’s enforcement efforts. Newman v.
Piggy Park Enters, Inc., 390 U.S. 400, 401-402 (1968). Accordingly, the
United States has an interest in ensuring that courts do not bar private action
by erroneous application of Judicial or Eleventh Amendment Immunity.
Livingston v. Guice, 68 F.3d 460 (4th Cir. 1995).
5. ADA Title II Covers All Court Programs, Services & Activities
The California court system’s express refusal to provide “access as
contemplated by the Americans with Disabilities Act” (ER 161), not only
violates appellant’s right to access the court as a pro se litigant, but also
denies her the fundamental right to serve as a juror. On July 23, 2004,
appellant was served by the San Diego Superior Court with a NOTICE
FOR TRIAL JURY SERVICE.
4
The Notice does not reference ADA accommodation and only refers
to the term “disability” (RJN Exhibit No. 3, p. 2) in the Notice’s
“REQUEST FOR EXCUSE SECTION.” The court’s plain intent is to purge
disabled persons from jury service instead of engaging in the interactive
process in good faith to modify its programs, services and activities to
4
Appellant requests that the Court take judicial notice of the “NOTICE FOR TRIAL JURY SERVICE,” served
on appellant by USPS on July 23, 2004. (Attached as Exhibit No. 3 to appellant’s Request for Judicial Notice).
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accommodate the disabled as is required by the ADA. The Notice is
additional evidence of this court’s historic, pervasive pattern of
discrimination against all disabled persons.
Moreover, the San Diego Superior Court has retaliated against
appellant for petitioning this Court by denying her request for excuse from
jury duty ex post facto in violation of California Civil and Penal Codes and
California Rule of Court 860. [Addendum pp. 43-57] Jury commissioners
have tampered with official documents supporting appellant’s request for
excuse which referenced appellees’ failure to provide “…access as
contemplated by the ADA.”
5
SRJN Exhibits 1-5, ER 161. Appellees are
attempting to evade review by this Court and to obstruct justice by spoliation
of documents that they are required by California law to maintain.
Subsequent to the filing of appellant’s appeal on August 11, 2004, the
San Diego Superior Court’s Jury Services Manager stated in a letter dated
September 9, 2004 that “The San Diego Superior Court can and does comply
with the Americans with Disabilities Act.” SRJN Exhibit No. 5. However,
his statement contradicts the Assistant Executive’s December 5, 2003 letter
5
Appellant requests that the Court take judicial notice of the NOTICE OF JURY SERVICE/REQUEST FOR
EXCUSE (8/11/2004), San Diego Superior Court Form Letter Denial and envelope (8/26/2004), Appellant’s
Response Letter (9/3/2003), Notice of Jury Service/Request for Excuse (9/3/2004) and San Diego Superior Court
excuse approval letter (9/9/2004) and envelope (9/10/2004) (Attached as Exhibit Nos. 1-5 to appellant’s
Supplemental Request for Judicial Notice abbreviated as SRJN).
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in which he states that the Court refuses to provide “…access as
contemplated by the ADA… due to the enormous
budge crisis.” ER 161.
The Superior Court’s spoliation of jury service records and
undertaking of appellant’s official denials and approvals of jury excuse
requests absent jurisdiction, in the context of the court’s pattern and practice
of disability discrimination and retaliation, strips the court of any credibility
whatsoever. Appellant is still subject to CRC 989.3 in jury selection and
service. ER 108-110, Addendum, 58-78.
Appellant’s petition “…addresses a matter of public concern (as) it
contributes… to the resolution of a judicial or administrative proceeding in
which discrimination or other significant government misconduct is at
issue… (S)pecialized knowledge… in cases involving discrimination (and)
bribery… is often crucial in exposing the governmental wrongdoing at
issue.” Alpha Energy Savers v. Hansen, No. 03-35142, 9th
Cir., filed 8/27/2004.
Justice Stevens in Tennessee v. Lane, supra, as well as DOJ, in its
Tennessee v. Lane Amicus Brief (p.24), recognized that:
“Furthermore, ‘excluding identifiable segments playing major roles in
the community’ from jury service ‘cannot be squared with the constitutional
concept of jury trial.’” Taylor v. Louisiana, 419 U.S. 522, 530 (1975).
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Justice Stevens’ opinion specifically cited Galloway v. Superior Court
of the District of Columbia, 816 F. Supp. 12 (DC 1993) in recognizing that
exclusion from jury service based on disability discrimination violates a
fundamental constitutional right.
“Notably, these decisions also demonstrate a pattern of
unconstitutional treatment in the administration of justice.”
DOJ’s Amicus Brief at p.24 also recognized that exclusion from jury
service is unconstitutional.
“When States categorically exclude individuals from jury service
because of their disability, without regard to their ability to perform as
jurors, the Constitution’s ‘promise of equality dims and the integrity of our
judicial system is jeopardized,’” quoting J.E.B. v. Alabama, U.S. 127 (1994)
at 146.
The Philadelphia Court of Common Pleas entered into a Settlement
Agreement with the DOJ in 1998 to remedy the same violations of ADA
Title II as appellant now exposes in 2004.
6
DOJ ordered that court
publish and prominently post a written policy statement for prospective
jurors with disabilities to obtain reasonable modifications to court policies,
practices and procedures. (RJN Exhibit 4, p. 2 ¶ III. 8 b.)
DOJ ordered that the policy be referenced in the aforementioned
6
Appellant requests that the Court take judicial notice of the “Settlement Agreement Between the United States of
America and the Philadelphia Court of Common Pleas, Pennsylvania,” 1998. (Attached as Exhibit
No. 4 to appellant’s Request for Judicial Notice).
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¶ III. 8. b. and that contact information be included in all mailings of its
SUMMONS TO REPORT TO JURY SERVICE. (Id. p. 2 ¶ III. c). DOJ
ordered that the court establish procedures to effectively and
expeditiously implement the policy. (Id. pp. 2-3, ¶ III. 8, d, e, f).
Appellant’s private attorney general enforcement action seeks to
impose similar remedies on the San Diego Superior Court and on all
California courts.
B. Disabled Persons in California are Systematically Deprived of Their
Fundamental Rights to Access and Petition the Courts.
1.
California Rule of Court 989.3 Is Facially Unconstitutional in
Violation of the First and Fourteenth Amendments.
a)
Void on Vagueness Doctrine
If the statute impinges a “fundamental right,” it is subject to strict
scrutiny. Phyler v. Doe, 457 U.S. 202, 216-17 (1982). In Section 12132
of the ADA Congress declared its intent to address “outright intentional
exclusion” as well as “the discriminatory effects of… overprotective
rules and policies and failure to make modifications in existing practices.”
The U.S. Supreme Court has determined that it is more useful
to assess whether disabled persons were denied “meaningful access” to
state-provided services. Alexander v. Choate, 469 U.S. 287 (1985).
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The court’s obligation under the ADA and accompanying regulations
is to ensure that the decision reached by the state authority is appropriate
under the law in light of the proposed alternatives. Appellant’s ADA claims
and constitutional claims may be inextricably intertwined to the extent that
the court need not address the constitutional claims, because if she prevails
on their ADA claims, resolution of her constitutional claims may be
unnecessary. Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996).
A law or regulation that “threatens to inhibit the exercise of
constitutionally protected rights, “such as free speech, will generally be
subject to a more stringent vagueness test. Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982).
The Due Process Clause requires “that laws be crafted with sufficient
clarity to ‘give the person with ordinary intelligence a reasonable
opportunity to know what is prohibited’ and to ‘provide explicit standards
for those who apply them…’ in order to prevent ‘arbitrary and
discriminatory enforcement.’” Grayned v. City of Rockford, 408 U.S. 104,
108 (1972). See also Smith v. Goguen, 415 U.S. 566, 572-73 (1974).
CRC 989.3 is an administrative maze, intentionally permeated with
vagueness, inconsistencies, and contradictions in violation of ADA.
Statements in the Rule’s text do not comport either with statements on the
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court’s standardized form (MC-410) to implement the Rule or with the court
system’s advertisements of the Rule to the public in the “Q&A” to provide
guidance on the Rule. By virtue of this self-serving, self-administered Rule
of Court, appellees argue that they are exempt from federal law.
Description or Specification, or Description?
CRC 989.3 states that persons requesting disability
accommodation must “describe” the required accommodation.
The definition of “describe” is not supplied. ER 108-110.
Form MC-410 states that persons requesting disability
accommodation must “specify” the required accommodation. The
definition of “specify” is not supplied. ER 122.
Q&A states that the person requesting the accommodation shall
include “a description of the accommodation sought.” The definition
of “description” is not supplied. ER 111-116.
Attempting to distinguish whether requests for accommodation should
be described in general or be specified in detail absent clear definitions and
consistent standards “would disintegrate into needless ‘hair-splitting’
arguments.” Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d
37, 45 (2d Cir.1997).
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The focus of the inquiry is not so much on whether a particular
request for accommodation is described or specified, but whether it provides
notice to the court entity or official that a disability accommodation is
required. Duvall v. County of Kitsap, supra.
An Illegal, Vague Reason for Denial
CRC 898.3 provides that an ADA request for accommodation may
be denied on the ground that “The applicant has failed to satisfy the
requirements of the rule.” ER 109 (f)(1). Disabled applicants are not mind
readers.
The U.S. Supreme Court’s concern about vague laws is that they do
not give people a “reasonable opportunity to know what is prohibited” and
“may trap the innocent by not providing fair warning.” Grayned, supra 408
U.S. at 108.
In 1997, Maryann Jones, a member of the California Judicial
Council’s Access and Fairness Committee, published an article in the
University of San Francisco Law Review. Ms. Jones acknowledged that
CRC 989.3 is a vague law absent published decisions by a court of
appeal. Her article stated:
“at this time, no reported cases dealing with accommodations under this rule
[CRC 989.3] exist… until such time as denials of requested accommodation
result in writs to the Court of Appeal followed by published decisions,
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judges will not have a well developed body of case law dealing specifically
with this rule… However, every state court must ensure that every part of
the court process is accessible: from providing public information, jury
services, pre-trial services, and access, to hearings and trials… Not only is
this legally mandated but it simply makes sense…” [Addendum pp. 58-59]
b)
Undue Burden
CRC 989.3 creates an undue burden that has the purpose of
placing a substantial and/or practically speaking insurmountable obstacle
in the path of a disabled person’s right to apply for and receive ADA
accommodation in the California court system.
ADA states only two grounds for denial of accommodation requests:
undue burden or fundamental alteration. 28 C.F.R.
§ 35.150(a)(3). In express defiance of ADA, Rule 989.3 includes a third
vague ground for denial, i.e. non-compliance with the requirements of the
Rule itself. Applicants who fail to satisfy the rule are illegally burdened
with satisfying the rule or their requests will never be granted.
Moreover, the Rule does not provide procedures, other than writ
review within ten (10) days, for denials of accommodations. ER 109 (g)(1).
In addition, the “purely administrative,” “non-adversarial” process adopted
in the Rule’s Q&A, ER 112, ¶ 3, is transformed into a judicial, adversarial
process, should the applicant appeal denials.
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The fee to submit
a writ petition to a California Appeals Court is
$655.00. The fee is a de facto “court tax,” that generates revenue that is a
“profit center” i.e., serving both as an incentive and a protection to the
California courts, enabling them to deny reasonable ADA accommodations
and to evade review. Most disabled persons are not able to prepare and
argue the petition without a lawyer, who will charge additional fees and
costs. However, the appeals court is not required to accept the petition and
has no deadline imposed by the Rule for final decision. Even if the appeals
court accepts the petition, the Court may deny the writ. The Rule does not
provide for further review. Should the trial judge deny additional
accommodations, disabled persons must file additional writ petitions costing
$655.00 each.
c) Delay
Under CRC 989.3, judges, court administrators and court entities
are free to withhold approval of reasonable ADA accommodation requests
for discriminatory reasons, subjecting disabled persons to their whim and
caprice. Requests for ADA accommodation could be delayed for
indeterminate time periods on the pretext of processing and deliberation by
decision-makers or for no stated reasons whatsoever.
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The absence of written deadlines for action on requests for
accommodation as well as on appellate court review enables violations of
the First Amendment right to petition the courts, the Fourteenth Amendment
rights to access and due process and the privilege of jury service. Each day
of delay in acting on a request is a day that disabled persons are directly
prevented by the California courts from meaningfully accessing programs,
services and activities. Freedman v. Maryland 380 U.S. 51, 58-59 (1965).
d)
Overbreadth Doctrine.
The Overbreadth Doctrine allows a plaintiff:
“…to challenge a statute not because their own rights are violated, but
because of a judicial prediction or assumption that the statute’s very
existence may cause others not before the court to refrain from
constitutionally protected speech or expression.”
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
Plaintiffs may seek directly on their own behalf the facial
invalidation of overly broad statutes that “create an unacceptable risk of
suppression of ideas.” Secretary of State of Maryland v. Joseph H.
Munson Co. 467 U.S. 947, 965 n. 13 (1984).
Generally applicable regulations of conduct implicate First
Amendment activities only if they (1) impose a disproportionate burden on
those engaged in First Amendment activities, or (2) constitute governmental
regulation of conduct with an expressive element.
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Acara v. Cloud Books, Inc. 478 U.S. 697, 703-04 (1986).
CRC 989.3 restricts expression of ideas and access to the courts by
requiring that disabled persons comply with the illegal requirement that they
must “satisfy the requirements of the rule” in order to obtain reasonable
accommodations for their disabilities. CRC 989.3 is not a “purely
administrative” process as advertised, but a hybrid process, which rigs the
accommodation process to favor the judge. ER 112, ¶ 3.
Appellees do not dispute that CRC 989.3 may leave disabled persons
without the means to access the courts and to exercise their right to petition
in violation of ADA. The California courts did not leave open ample
alternative channels for legitimate expression. Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989). The California courts did not create a
robust, or even minimal exception to permit disabled persons to obtain
reasonable accommodation in order to access and petition the courts, much
less leave open ample alternative channels for legitimate expression.
CRC 989.3 creates an established adversarial state procedure that
deprives disabled persons of due process and exposes them to financial
sanctions in challenging denials of requests for accommodation. When an
established state procedure, or a foreseeable consequence of such a
procedure, causes the loss of procedural protections, even an adequate post-
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deprivation remedy (which is not found in CRC 989.3) is of no consequence.
The court must focus on the process afforded by the established procedure.
Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982).
2. CRC 989.3 Is Facially Discriminatory in Violation of ADA Title II
The Court in Lovell v. Chandler, supra set forth Ninth Circuit law
regarding facially discriminatory laws, rules, policies, practices and
procedures.
In Crowder v. Kitagawa, supra the court explained that:
“[W]hen a state’s policies or procedures discriminate against the disabled in
violation of the ADA, Department of Justice regulations require reasonable
modifications in such policies, practices or procedures ‘when the
modifications are necessary to avoid discrimination on the basis of
disability, unless the public entity can demonstrate that making the
modifications would fundamentally alter [emphasis added] the nature of the
service, program, or activity.’” 28 C.F.R. § 35.130(b)(7). Id at 1485.
However, the Court has held that the fundamental alteration test has
no application to cases of facial discrimination, expressly limiting
Crowder’s application of § 35.3130(b)(7) to cases of disparate impact
discrimination. Bay Area Addiction Research and Treatment, Inc. v. City of
Antioch (“BAART”), 179 F.3d 725 734-35 (9th Cir. 1999) In BAART, the
Court reasoned that:
“[T]he only possible modification of a facially discriminatory law that
would avoid discrimination on the basis of disability would be the actual
removal of the law that discriminates on the basis of disability. However,
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such a modification would fundamentally alter the ordinance.” Id. 179 F.3d
at 734.
“Public entities could evade ADA by claiming it would fundamentally
alter their program to eliminate a facially discriminatory provision of a
challenged program, and Congress’ intent in enacting the ADA would be
defeated.” Id.
CRC 989.3 violates ADA on its face by:
a)
The imposition of a basis for denial of accommodation requests not
authorized in the ADA.
b)
The imposition of a filing fee (i.e., “court tax”) to appeal denials of
requests for accommodations.
c)
The imposition of a writ procedure as the only way to appeal
denials of requests for accommodation.
d)
The failure to impose deadlines for decisions on requests for
accommodation.
e)
The failure to provide administrative procedures to review judges’
denials of requests for accommodation.
f)
The failure to provide administrative procedures to disqualify
judges who show discrimination, deliberate indifference toward
and discriminatory animus and retaliation against disabled persons.
g)
The imposition of an adversarial judicial process upon disabled
persons who appeal accommodation denials.
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h)
The failure to provide a procedure to discipline and remove judges
who impose financial sanctions and otherwise retaliate against
disabled persons who request reasonable accommodation.
i)
The failure to provide a procedure to request that judges compel
opposing attorneys to comply with ADA throughout the conduct of
litigation.
j)
The failure to provide a procedure to request that broad,
standing accommodations be ordered for the duration of the
litigation, permitting the disabled person to request specific
accommodations without submitting multiple request forms for
consideration.
k)
The failure to provide system-wide monitoring procedures to
prevent judges’ aiding and abetting ADA violations by others.
l)
The failure to integrate the accommodation process into other
ADA compliance requirements through a comprehensive,
conspicuously posted policy that informs the disabled of their
rights and protections.
m) The failure to provide state-wide specific standards and
criteria for the review of requests for accommodation.
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n) The failure to impose a procedure to investigate and thoroughly
and accurately report and compel compliance by a superior
court that asserts its right not to provide access “as
contemplated by the the ADA” due to pretextual reasons.
o)
Failure to provide mandatory continuous ADA education and
meaningful supervision and oversight over all court officials.
CRC 989.3 is a twenty-first century “Jim Crow” law that violates
disabled persons’ constitutional and civil rights. CRC 989.3 is deliberately
intended to injure disabled persons, which is unjustifiable by any
government interest. County of Sacramento v. Lewis, 523 U.S. 833, 846
(1998).
Moreover, there is a strong interest in allowing disabled persons to
access state courts. Not only are core Fourteenth Amendment rights
implicated, but the First Amendment right to petition for relief from ADA
violations in federal courts has important effects for the constitutional rights
of all disabled persons.
“A prior restraint exists when the enjoyment of protected expression is
contingent upon the approval of governmental officials.” Baby Tam & Co.,
Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998). “Although
prior restraints are not unconstitutional per se, the Supreme Court has
repeatedly stated that ‘any system of prior restraint bears a heavy
presumption against its constitutional validity.’”
FW/PBS v. City of Dallas, 493 U.S. 215, 225 (1990).
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CRC 989.3 provides California judges complete and unfettered
discretion to approve or deny reasonable accommodation to disabled
persons, to coerce and to retaliate against them individually and as a group
without any oversight in a system designed to evade review and that has
evaded review for eight years prior to appellant’s pro se civil action. CRC
989.3 provides judges with absolutely no standards and criteria to instruct
and guide their decisions. CRC 989.3 creates impermissible discretion for
government officials to violate ADA. Forsyth County v. Nationalist
Movement, 505 U.S. 123, 130 (1992). The rule is being used to “covertly
discriminate” against protected expression by denying disabled persons’
access to state courts. Hague v. Committee of Industrial Organizations, 307
U.S. 496, 516 (1939).
After-the-fact judicial review does not remedy this over-broad grant
of discretion. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S.
750, 770, 108 S. Ct. 21 38, 2151 (1998). Even if judicial review were
relatively speedy, such review cannot substitute for concrete standards to
guide decision-makers’ discretion. Cantwell v. State of Connecticut, 310
U.S. 296 (1940), at 306 (“A statute authorizing previous restraint upon the
exercise of guaranteed freedom by judicial decision after trial is as
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obnoxious to the Constitution as one providing for like restraint by
administrative action.”)
Disabled persons are “uniquely situated” to know whether they are
receiving the rights, benefits and protections that they deserve and to which
they are federally entitled. “It is clear that the subject matter of expression
[is] of public importance.” Settlegoode v. Portland Public Schools, 362 F.3d
1118 (9th Cir. 2004).
CRC 989.3’s oppression extraordinarily chills both persons of
ordinary firmness and persons of extraordinary firmness.
3. CRC 989.3 is a Fraudulent Misrepresentation to the Public
CRC 989.3 expressly states as its purpose that “…The Judicial
Council of California adopted this new rule to help implement the
Americans with Disabilities Act, which requires… the courts to make
reasonable modifications in policies, practices or procedures to avoid
discrimination against persons with disabilities…” ER 85, lines 15-19, 108-
110.
CRC 989.3 expressly states as its policy that:
“…Nothing in this rule shall be construed to impose limitations
or to invalidate the remedies, rights, and procedures accorded to
any qualified individuals with disabilities under state or federal
law…” (emphasis supplied) ER 108 [Policy].
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Appellant relied on these fraudulent misrepresentations to her
detriment.
The Ninth Circuit has declared that reasonable accommodations for
disabled persons “…are not only contemplated by the ADA, they are
required…” and that ADA defines discrimination as treating disabled
persons the same as non-disabled persons despite the former’s need for a
reasonable accommodation. Fortyune v. American Multi-Cinema Inc.,
364 F.3d 1075, 1080 (9th Cir. 2004).
4. As-Applied CRC 989.3 Is Unconstitutional in Violation of the First &
Fourteenth Amendments
Appellant has met both prongs of the Williamson County ripeness
analysis. Before an as-applied challenge is ripe the appellant must have
obtained a final decision from the entity charged with implementing the
regulation and must have sought compensation through state remedies unless
doing so would be futile. Williamson County Regional Planning
Commission v. Hamilton Bank, 473 U.S. 172, 186 (1985). A statute should
not be immune from constitutional review. Palazzolo v. Rhode Island, 533
U.S. 606 (2001).
The California state court system, its judges and court
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administrators have already applied CRC 989.3 to appellant, creating an
actual controversy that does not require further factual development.
Appellant, due to discrimination, deliberate indifference, discriminatory
animus and retaliation, is not able to access and petition California state
courts and serve on a jury purely on the basis of her disability. The facts are
undisputed.
It is an elemental principle of administrative law that agencies are
bound to follow their own regulations. As the Ninth Circuit well summarized
in applying this principle:
“The Supreme Court has long recognized that a [federal] agency is
obliged to abide by the regulations it promulgates. See Vitarelli v.
Seaton, 359 U.S. 535, 545 (1959); Service v. Dulles, 354 U.S. 363, 372
(1957); Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954). An agency's
failure to follow its own regulations ‘tends to cause unjust
discrimination and deny adequate notice’ and consequently may result
in a violation of an individual's constitutional right to due process.
Where a prescribed procedure is intended to protect the interests of a party
before the agency, ‘even though generous beyond the
requirements that
bind such agency, that procedure must be
scrupulously observed.’
Vitarelli, 359 U.S. at 547 (Frankfurter, J.,
concurring); see also Note,
Violations by Agencies of Their Own
Regulations, 87 Harv. L. Rev. 629,
630 (1974) (observing that agency
violations of regulations promulgated
to provide parties with
procedural safeguards generally have been
invalidated by courts).
Sameena, Inc. v. United States Air Force, 147 F.3d
1148, 1153 (9th
Cir. 1998) (parallel citations and circuit court citations
omitted).”
The Presiding Justice of the California Court of Appeals, Fourth
District, Judith McConnell, has not only refused to accommodate
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appellant, she did not reply at all to two requests for accommodation.
However, subsequent to the filing of this federal lawsuit, appellees’ attorney
disclosed different reasons for not accommodating appellant:
1) On February 12, 2004, Judge McConnell had not yet made a
decision to approve or deny appellant’s requests.
ER 59 lines 27-28.
2) However, on March 12, 2004, appellees’ attorney stated that
“appellant failed to request a specific accommodation.” ER 175
lines 27-28, 176 line 1.
“Implausible or fantastic justifications may (and probably will)
be found to be pretexts for purposeful discrimination.”
Purkett v. Elem, 514 U.S. at 768.
Solely due to appellant’s analysis and requests for accommodation,
Judge McConnell’s clerk admitted that she subsequently advertised ADA
accommodation on her court’s website. However, Judge McConnell failed
to reply to appellant’s two requests. The advertisement merely continues the
California court system’s pattern of fraudulent misrepresentation regarding
the ADA.
The San Diego Superior Court’s Assistant Executive Officer,
David Yamasaki, under the aegis of the Administrative Director of the
Courts, William Vickrey, wrote that the San Diego Superior Court was
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intentionally not providing “access as contemplated by the Americans with
Disabilities Act.” ER 17, lines 9-28, 18, 19 lines 1-11, 161.
The attorney for the state defendants wrote a letter to Judge Lisa Guy-
Schall, confirming that Judge Nugent’s delay had harmed her and the state’s
budget. ER 167-168. Judge Richard E.L. Strauss, the Presiding Judge of the
San Diego Superior Court, refused to accept and investigate appellant’s
complaints of discrimination by two judges under his supervision in
violation of his own Court Policy Against Bias. ER 9, lines 17-20.
The district court’s dismissal of appellant’s complaint with
prejudice has deprived her of any opportunity for meaningful review of
her ADA complaints in federal and state courts. Futility has been proven
beyond any doubt.
5. As-Applied CRC 989.3 Is Discriminatory in Violation of ADA Title II
The facts in appellant’s Complaint, Opposition, Request for
Judicial Notice and Supplemental Request for Judicial Notice are
incorporated herein by reference. It is impossible to separate those facts
from their context to set forth an accurate description of the unendurable
coercion, pain, retaliation and humiliation intentionally inflicted on
appellant by four state judges, four state court entities, the
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Administrative Director of the Courts and jury commissioners for
enforcing her ADA rights and protections.
Appellees’ theory that appellant filed her ADA case as a pretext
to seek jurisdiction by the district court over her state lawsuit has been
eviscerated to the extent that it is ridiculous on its face. ER 86 lines 24-
28, 87 lines 1-10.
Defendants’ Motion to Dismiss is rife with conclusory allegations
and legal characterizations, which draw unreasonable inferences and
unwarranted deductions of facts, such that a fact-finder could infer that
defendants did not act for nondiscriminatory reasons.
6. ADA Title II Violations by California Courts are Capable of
Repetition, Evading Review.
Appellant’s ADA lawsuit is not an isolated incident. Rather, it
reflects the longstanding discrimination by the California courts against
disabled persons, documented in DOJ’s Tennessee v. Lane amicus brief
at Appendix B. (RJN, Exhibit No. 1, supra) Indeed, in 2002 the Santa Clara
County District Attorney and the Santa Clara Superior Court were opposing
parties in a lawsuit regarding that Court’s refusal to accommodate a disabled
lawyer pursuant to CRC 989.3, in violation of the Court’s Settlement
Agreement with DOJ in 1996, six years earlier. Unlike the San Diego
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Superior Court, the Santa Clara Superior Court recused itself, and the action
proceeded under the jurisdiction of the San Mateo Superior Court. ER 92
lines 16-23, 163-164.
The Santa Clara Superior Court had entered into a settlement
agreement with DOJ in 1996 due to its failure to provide disability
accommodation. A signatory to that agreement was the court’s
Executive Officer, Steven Love. Mr. Love was appointed San Diego
Court Superior Court Executive Officer by Presiding Judge Strauss in
2002. Appellant has been subjected to discrimination by a serial
violator of ADA, whose administrative policies, procedures and practices are
reflected in the December 5, 2003 letter to appellant by David Yamasaki. ER
161-162.
That letter stated that the San Diego Superior Court is intentionally
not providing “access as contemplated by the Americans with Disabilities
Act…,” advising appellant not to contact the ADA Coordinator until “next
summer,” when the court will determine whether it chooses to implement
ADA. ER 17 lines 9-13, 18 lines 12-16, 161-162.
Because this case raises important constitutional issues, a strong
public interest requires the Ninth Circuit to address the appropriateness of
the courts’ actions. United States Parole Commission v. Geraghty, 445 U.S.
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388, 400 (1980). Declaratory and injunctive relief from this Court are of
extraordinary, immediate and continuing importance. Every litigant has a
basic right to “a neutral and detached judge.” Ward v. Village of
Monroeville, 409 U.S. 57, 62 (1972).
C. The District Court Erred by Mischaracterizing and Suppressing Material
Facts
The district court’s factual background discussion mischaracterizes the
totality of the complaint, essentially stating that a disabled pro se plaintiff sued
four judges, four court entities, and the Administrative Director of the Courts,
because two requests for accommodation of her disabilities were granted. ER 178-
180. Although the district court meticulously recited appellees’ identities and all
causes of action, the court failed to recite the relief that was requested and facts
upon which the request for relief were based.
The district court’s Order denying oral argument is dated February 25, 2004.
The district court had not reviewed appellant’s Opposition to the Motion to
Dismiss, dated March 5, 2004. Had the district court permitted oral argument,
appellant would have had the opportunity to attempt to prevent the court’s
suppression of material facts and their misapplication to Ninth Circuit law,
especially in relation to the Rooker-Feldman Doctrine and the Doctrines of Judicial
and Quasi-Judicial Immunity.
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