102-1 memo iso mtn prelim inj first amend abuse

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Colbern C. Stuart III E-Mail: [email protected] 4891 Pacific Highway Ste. 102 San Diego, CA 92110 Telephone: 858-504-0171 Facsimile: 619-231-9143 In Pro Se Dean Browning Webb (pro hac vice) Email: [email protected] Law Offices of Dean Browning Webb 515 E 39th St. Vancouver, WA 98663-2240 Telephone: 503-629-2176 Eric W. Ching, Esq. SBN 292357 5252 Balboa Arms Dr. Unit 132 San Diego, CA 92117 Phone: 510-449-1091 Facsimile: 619-231-9143 Attorneys for Plaintiff California Coalition for Families and Children, PBC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, et al., Plaintiffs, v. SAN DIEGO COUNTY BAR ASSOCIATION, et al., Defendants

Case No. 3:13-cv-1944-CAB (BLM)Judge: Hon. Cathy Ann Bencivengo MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION RE: DOMESTIC VIOLENCE RESTRAINING ORDERS Date: March 27, 2014 Time: 2:00 p.m. Courtroom: 4C ORAL ARGUMENT REQUESTED SUBJECT TO COURT APPROVAL Complaint Filed: August 20, 2013

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TABLE OF CONTENTS I. INTRODUCTION ................................................................................................... 1 II. FACTS ..................................................................................................................... 2

A. Procedure for Obtaining a Domestic Violence Restraining Orider ..................... 3 1. Completing the Forms ....................................................................................... 4 2. Penalties For Violating Domestic Violence Restraining Orders .................... 12

III. DISCUSSION ........................................................................................................ 13 A. Likelihood of Success on the Merits .................................................................. 14

1. The Abuse Standard is Content-Based, and Therefore Presumed Invalid .. 14 2. Abuse is Void for Vagueness ...................................................................... 21

B. Irreparable Harm ................................................................................................. 23 C. Balance of Equities ............................................................................................. 24 D. Public Interest ..................................................................................................... 24

IV. CONCLUSION .................................................................................................. 25

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TABLE OF AUTHORITIESAbney v. Alameida, 334 F. Supp. 2d 1221 (S.D. Cal. 2004) ....................................... 13 Ashcroft v. American Civil Liberties Union, 535 U. S. 564 (2002) ....................... 16, 19 Boos v. Barry, 485 U.S. 312 (1988) ............................................................................. 23 Bounds v. Smith, 430 U.S. 817 (1977) ......................................................................... 13 Brandenburg v. Ohio, 395 U. S. 444 (1969) ................................................................ 17 Burbridge v. Sampson, 74 F.Supp.2d 940 (C.D.Cal. 1999) ........................................ 14 Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) ........................................... 17, 18 City of Houston v. Hill, 482 U.S. 451 (1987) .............................................................. 19 Cornett v. Donovan, 51 F.3d 894 (9th Cir. 1995) ........................................................ 13 D.C. v. Heller, 554 U.S. 570 (2008) ............................................................................ 13 Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998) ........................................... 15 Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) ...................................................... 17 Giboney v. Empire Storage & Ice Co., 336 U. S. 490 (1949) ..................................... 17 Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) .................................................. 14 Golden Gateway Center v. Golden Gateway Tenants Assn, 26 Cal.4th 1013 (2001) . 14 Gonzales v. Superior Court, 180 Cal.App.3d 1116, 22 Cal.Rptr. 164 (1986) ............ 14 Grayned v. City of Rockford, 408 U.S. 104 (1972) ..................................................... 22 Hodgson v. Minnesota, 497 U.S. 417 (1990) ............................................................... 13 Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ................. 22 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ........................................... 22 In re Berry, 68 Cal. 2d 137 (1968)............................................................................... 13 International Socy for Krishna Consciousness, Inc. v. Kearnes, 454 F. Supp. 116

(E.D. Cal. 1978) ....................................................................................................... 25 Jensen v. Wagner, 603 F. 3d 1182 (2010) ................................................................... 13 Kolender v. Lawson, 461 U.S. 352 (1983) ................................................................... 23 Lewis v. City of New Orleans, 415 U.S. 130 (1974) .................................................... 19 Madsen v. Womens Health Ctr., Inc., 512 U.S. 753 (1994) ....................................... 13

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Mardi Gras v. City of San Luis Obispo, 189 F.Supp.2d 1018 (C.D.Cal. 2002) .......... 14 Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466

U.S. 789 (1984) ........................................................................................................ 18 Miller v. California, 413 U. S. 15 (1973) .................................................................... 18 Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir. 2007) .......................... 13 N.A.A.C.P. v. Button, 371 U.S.415 (1963) ................................................................... 18 N.A.A.C.P. v. Button, 371U.S.415, 433 (1963)............................................................ 23 Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) .............................................. 17 New York Times Co. v. Sullivan, 376 U. S. 254 (1964) ............................................... 17 New York Times Co. v. United States, 403 U. S. 713 (1971) ...................................... 17 New York v. Ferber, 458 U. S. 747 (1982) .................................................................. 17 Nunez by Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997) .......................... 13 Overstreet v. United Broth. of Carpenters and Joiners of America, Local Union No.

1506, 409 F.3d 1199 (9th Cir. 2005) ...................................................................... 19 Parham v. J. R., 442 U.S. 584 (1977) .......................................................................... 13 Peng v. Mei Chin Penghu, 335 F.3d 970 (9th Cir. 2003) ............................................ 13 Prince v. Massachusetts, 321 U.S. 158 (1944) ............................................................ 13 R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992) ................................................ 18 Reno v. Flores, 507 U.S. 292 (1992) ........................................................................... 13 Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 903, 907-10, 153 Cal.Rptr.

854, 59 P.2d 341 (1979) ........................................................................................... 14 S.O.C., Inc. v. County of Clark, 152 F.3d 1136 (9th Cir. 1998) .................................. 23 Saenz v. Roe, 526 U.S. 489 (1999) .............................................................................. 14 Sammartano v. First Judicial District Court, in and for County of Carson City, 303

F.3d 959, 974 (9th Cir.2002) .................................................................................... 25 Santosky v. Kramer, 455 U.S. 745 (1982) ................................................................... 13 Schenck v. Pro-Choice Network Of W. New York, 519 U.S. 357 (1997) .................... 13 Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105,

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127 (1991) ................................................................................................................ 16 Snyder v. Phelps, 131 S. Ct. 1207 (2011) .................................................................... 18 Stanley v. Illinois, 405 U.S. 645 (1972) ....................................................................... 13 Stevens v. Rose, 298 F.3d 880 (9th Cir. 2002) ............................................................. 13 Thornhill v. Alabama, 310 U.S. 88 (1940) .................................................................. 19 Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir. 2008) .................................... 13 Troxel v. Granville, 530 U.S. 57 (2000) ...................................................................... 13 United States v. Alvarez, 132 S. Ct. 2537 (2012)..17, 19 United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000) ............... 22 United States v. Call, 874 F. Supp. 2d 969 (D. Nev. 2012) ........................................ 13 United States v. Castleman, 695 F.3d 582 (6th Cir. 2012) ........................................... 22 United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013)............................................. 13 United States v. Hayes, 555 U.S. 415 (2009) .............................................................. 21 United States v. Reese, 92 U.S. 214 (1875) ................................................................. 23 United States v. Stevens, 559 U. S. 460 (2010) ........................................................... 16 United States v. Stevens, 559 U.S. 460 (2010) ............................................................ 18 United States v. Williams, 553 U.S. 285 (2008) .......................................................... 22 Vance v. Barrett, 345 F.3d 1083 (9th Cir.2003) .......................................................... 13 Vasquez v. Rackauckas, 734 F.3d 1025 (9th Cir. 2013) .................................. 13, 14, 25 Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748

(1976) ....................................................................................................................... 17 Virginia v. Moore, 553 U.S. 164 (2008) ...................................................................... 13 Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) .............................................. 23 Washington State Grange v. Washington State Republican Party, 552 U.S. 442

(2008) ....................................................................................................................... 18 Washington v. Glucksberg, 521 U.S. 702 (1997) ........................................................ 13 Watts v. United States, 394 U. S. 705 (1969) ........................................................ 17, 18 White v. Lee, 227 F.3d 1214 (9th Cir. 2000) ............................................................... 24

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Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) ..................... 14 Wisconsin v. Yoder, 406 U.S. 205 (1972) .................................................................... 13

STATUTESCal. Fam.C. 3026 ........................................................................................................ 7 Cal. Fam. C. 3027 ....................................................................................................... 7 Cal. Fam. C. 6320 ....................................................................................................... 7 Cal. Fam. C. 6320.5 .................................................................................................. 11 Cal. Fam. C. 6924 ....................................................................................................... 7 Cal. Fam. C. 6320 ..................................................................................................... 11 Cal. Fam.C. 3190 ........................................................................................................ 7 Cal. Fam.C. 6203 ........................................................................................................ 7 Cal. Fam.C. 6300 ........................................................................................................ 6 Cal. Fam.C. 6302 ...................................................................................................... 11 Cal. Fam.C. 3011 ........................................................................................................ 7 Cal. Pen.C. 243(e)(1). ............................................................................................... 15 Cal. Pen.C. 422 ......................................................................................................... 18 Cal. Pen.C. 166 ......................................................................................................... 6 Cal. Pen.C. 836(c)(1) ................................................................................................ 6 Cal. Pen.C. 13700(a) ................................................................................................... 7 Cal. Pen.C. 13700(b) ................................................................................................... 6 Cal. Pen.C. 311 .......................................................................................................... 18 Cal.Pen.C. 11165.6 ..................................................................................................... 7 Cal.Pen.C. 242 .......................................................................................................... 15 Cal. Pen. C. 653m ....................................................................................................... 8

OTHER AUTHORITIESEugene Volokh, Parent-Child Speech And Child Custody Speech Restrictions 81

New York University Law Review 631, 649-662 (2006) .......................................... 14

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Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 Cal. L. Rev. 291, 319 (1987) ........................................................................................................ 21

Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. Rev.79 (1991). .......................................................................................................... 21

Loretta M. Frederick, Kristine C. Lizdas The Role of Restorative Justice in the Battered Womens Movement, September, 2003 ..................................................... 15

TREATISESWright & 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 65(a) enjoining Defendants from (1) use of or reliance on the abuse standard defined in California Family Code sections 6203 and 6320 as the threshold showing for issuance of any domestic violence restraining order, and (2) production, distribution, use, and issuance of the JUDICIAL COUNCIL DV Forms identified herein.

I. INTRODUCTION Domestic violence is a serious national concern. United States Department of

Justice statistics indicate that despite a decrease in frequency of intimate partner violence over the last twenty years, incident rates for nonfatal domestic violence remain at two tenths of one per cent of the population.1 Voluminous research, writing, and debate regarding the causes, nature, and appropriate means of eradicating this social malady have not resolved the controversy among researchers about how to eradicate the offensive persistence of domestic strife.

The solution legislated by the state of California and enabled by Defendant JUDICIAL COUNCIL is a courageous initiative consisting of a body of laws, regulations, policies, formwork, and practice standards guiding the behavior of social workers, criminal prosecutors, public and private civil attorneys, judges, court staff, administrators, and law enforcement animating unique oversight and restrictions on those most likely to be involved in domestic violence crimes: Families.2 Thousands of studies commissioned by state and federal governments have shown in abundance that families are statistically more likely to commit crimes of domestic violence. One attorney for the United States Department of Justice recently explained that every domestic relationship is a potential powder keg warranting special government attention.3 Even more studies proving this clear point are ongoing, yet the final solution

1 Report of United States Department of Justice, Bureau of Justice Statistics, Intimate Partner Violence in the U.S., p. 3; Declaration of Colbern Stuart (Stuart Decl.), Ex. P.

2 For purposes of this motion, Family shall include those relations described in California Family Code 6211. Stuart Decl. Ex. A, P3012.

3 Transcript of November 10, 2008 oral argument of Counsel for Petitioner United


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to how undesirable family discord will be fully exterminated remains illusive. Stuart Decl. 34-34.

In pursuit of this end, state and local entities in California devote special attention to families in order to deter behavior which may lead to injury. This Motion asserts that one embodiment of Californias scheme to eradicate domestic violencepreventive restraining ordersfails to properly observe constitutional boundaries. Specifically, to what extent may police powers be deployed onto families to accomplish desirable goals of domestic violence deterrence without overstepping constitutional restrictions on the use of state-sponsored tools of coercion?

This Motion offers that Californias present scheme to eradicate domestic strife penalizes behavior that (1) is expressly protected by clearly-established fundamental state and federal constitutional rights, (2) violates no law, (3) causes no compensable injury, and (3) may not found any action in equity outside of the jurisdiction of domestic relations courts. Among the wide array of appropriate tools available to the state of California in responding to undesirable behavior, Californias coercive intervention scheme has overstepped clear constitutional boundaries, is of unproven efficacy, is widely abused as a tool for fraud and extortion, and demeans the integrity and effectiveness of our civil and criminal justice institutions. Based upon these deleterious consequences and the strong likelihood of prevailing on questions of law, Plaintiffs seek an order enjoining substantial ongoing illegal interference with the protected liberty interests of citizens of the United States and the State of California.

II. FACTS California county courts deploy local police power to restrain citizens through

issuance of Domestic Violence Restraining Orders under section 63204 of the States Nicole A. Saharsky, United States v. Hayes, Doc. No. 07-608, Stuart Decl. Ex. Q, pp. 2, 8.

4 (a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting,


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Domestic Violence Prevention Act, California Family Code 6200 et seq. According to Defendant C. GOLDSMITH: In San Diego County, more than 200 restraining orders are issued weekly, often for domestic violence.5 Detailed below, these restraining orders restrict and compel a wide variety of conduct, including speech, association, expression, and movement, and dictate use and enjoyment of vested real and personal property rights of an identifiable class of United States citizens in violation of those citizens fundamental rights under the constitutions of the United States and State of California.

A. Procedure for Obtaining a Domestic Violence Restraining Order Domestic violence restraining orders are issued by county Family and Criminal

Division judges. Stuart Decl. Ex. C, (P3101-03). In Family Court, the orders may be obtained by litigants represented by counsel or appearing in propria persona. Id. Litigants and counsel may prepare their own motions, but may also use pre-printed forms designed and distributed by Defendant JUDICIAL COUNCIL. Cal. Fam.C. 6226. A packet of Applicant and Respondent forms and various instructional documentation is attached to the Stuart Decl. as Exhibit C. (JUDICIAL COUNCIL Forms)

The JUDICIAL COUNCIL Forms are used by and made available from various public and private entities including:

Courts: County court clerks and judges maintain and distribute JUDICIAL COUNCIL Forms for their own use and by lawyers and litigants. Ex. D

Public Social Workers and Administrators: Entities such as Defendant COUNTY OF SAN DIEGO make forms available from county Family Law Facilitators offices, courthouse staff, self-help centers, county Internet websites, and 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 showing of good cause, of other named family or household members. Stuart Decl. Ex. A, P3028.

5 Elizabeth Marie Himchak, Judge Outlines Reasons for Domestic Violence Increase Pomerado News, March 2, 2012. Stuart Decl. Ex. B, P3052-53.


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cooperating agencies such as the Legal Aid Society, Volunteer Lawyers Program, restraining order clinics and classes, and county law libraries. Ex. D;

Quasi-Private Social Workers Advocates: Private or quasi-private agencies such as Defendant ALLIANCE, the San Diego Family Justice Center and entities such as the YWCA, and Center for Community Solutions. Ex. E;

Law Enforcement: Cooperating public law enforcement entities such as the City of San Diego Police Department and San Diego County Sheriffs Department. Ex. F; Cal. Fam.C. 6250;

Prosecuting Attorneys: The San Diego City Attorneys Office Domestic Violence Unit and the County of San Diego District Attorneys Office Family Protection Division and victim advocate services therein. Ex. G;

Private Attorneys and Legal Organizations: SDCBA and many divorce attorneys provide, refer, or advise regarding use of the JUDICIAL COUNCIL Forms and laws for their private clients. Ex. H. 1. Completing the Forms

The process for completing the JUDICIAL COUNCIL Forms is described in the INFO forms of the Applicant and Respondent packets. Ex. C, P3101. Audio/video instructions are available at http://wp.me/p4aG7J-I8. These instructions are incorporated herein as if set forth in full. Stuart Decl. 9.

An applicant may complete the forms on her own, hire an attorney, or obtain assistance from public employees such as city and county social workers and administrators, including court clerks, Family Law Facilitators Offices workers, District Attorneys Victim Advocates, San Diego Family Justice Center employees. Quasi-public social workers such as ALLIANCE and Center for Community Solutions offer similar services. Stuart Decl. Exs. D-G, 9. A summary of the relevant steps in the process for obtaining a domestic violence protective order follows.


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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

the filer identified in (1) to check I ask for the court to order the person identified in (2) as follows:

1. Personal Conduct Orders: Orders enjoining the person in (2) from a wide variety of behaviors including acts described as: Harass, attack, strike, threaten, assault, (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements and Contact, either directly or indirectly, in any way, including but not limited to, by telephone, mail, or e-mail or other electronic means.

2. Stay-Away Order: Orders requiring the person in (2) to stay at least ____ yards away from a variety of persons within the Domestic Relations Class, and locations such as churches, schools, workplaces, residences, vehicles, and open-ended any other locations the person in (1) requests.

3. Move-Out Order: Orders requiring the person in (2) to move out and not return to his or her home.

4. Guns or Firearms and Ammunition: Orders requiring the person in (2) to not own, possess, purchase or receive a firearm or ammunition.

5. Record Unlawful Communications: Orders granting the right to record communications made to me by the person in (2) that violate the judges orders.

6. Animals: Possession and Stay-Away Order: Orders granting the person in (1) the sole possession, care, and control of the animals listed below and that the person in (2) stay at least ___ yards away from and not take, sell, transfer, encumber, conceal, molest, attack, strike, threaten, harm, or otherwise dispose of identified animals.

7. Child Custody and Visitation: Orders creating or altering existing child 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 child support orders.

9. Property Control: Orders that the court give only me temporary use, possession, and control of the property listed here:______

10. Debt Payment: Orders that the person in (2) to make these payments while the order is in effect: _____

11. Property Restraint: Orders that the person in (2) not borrow against, sell, hide, or get rid of or destroy any possessions or property, except in the usual course of business or for necessities of life. I also ask the judge to order the person in (2) to notify me of any new or big expenses and to explain them to the court.

12. Spousal Support: Orders that the person in (2) to pay spousal support to the person in (1).

13. Lawyers Fees and Costs: Orders that the person in (2) pay some or all of my lawyers fees and costs.

14. Payments for Costs and Services: Orders that the person in (2) pay for lost earnings costs for services caused directly by the person in (2) (damaged property, medical care, counseling, temporary housing, etc.)

15. Batterer Intervention Program: Orders that the person listed in (2) to go to a 52 week batterer intervention program and show proof of completion to the court.

16. Other Orders: Any other orders against the person in (2) requested by the person in (1).

The Forms and California law provide that orders may be issued by any superior court and without notice to the restrained person in (2). Cal. Fam.C. 6300, 6320(a) (Stuart Decl. Ex. C, P3023, P3028). Upon issuance, law enforcement are required to arrest the person in (2) for any violation. Cal. Pen.C. 836(c)(1), 13700(b) (Stuart Decl Ex. C, P3117; Ex. I, P3387, P3404-06). Violation of the orders can be charged as a felony. Cal. Pen.C. 166, 273.6 (Stuart Decl. Ex. C, P3117, Ex. I, P3269-70, P3308-10).


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i. Standard for Issuance of Domestic Violence Restraining Orders: Abuse

The remedies available under the Domestic Violence Prevention Act are invoked upon an applicants single showing: The existence of abuse. See, Cal. Fam.C. 6203, 6320 (Stuart Decl. Ex. C, P3101, 3108-11, 3118, 3124).6 Though abuse is a simple word in laymans parlance, comprehending the concept as used within the Domestic Dispute Industry requires study. The lesson begins with the JUDICIAL COUNCIL Form description of abuse:

(25) Describe Abuse Describe how the person in (2) abused you. Abuse means to intentionally or recklessly cause or attempt to cause bodily injury to you; or to place you or another person in reasonable fear of imminent serious bodily injury; or to molest, attack, hit, stalk, threaten, batter, harass, telephone, or contact you; or to disturb your peace; or to destroy your personal property. Abuse can be spoken, written, or physical. (For a complete definition, see Family Code 6203, 6320).

Following the references one looks to Family Code 6203, which provides: For purposes of this act, "abuse" means any of the following:

(a) Intentionally or recklessly to cause or attempt to cause bodily injury. (b) Sexual assault. (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.

(d) To engage in any behavior that has been or could be enjoined pursuant to 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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The next step, Family Code 6320, provides: (a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, 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 showing of good cause, of other named family or household members.

One then looks to Californias Penal Code 653m,7 which provides in relevant part: 653m. Telephone calls or contact by electronic communication device

with intent to annoy (a) Every person who, with intent to annoy, telephones or makes contact

by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.

(b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

7 Stuart Decl. Ex. I, P3329-3330.


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(g) For purposes of this section, the term electronic communication

device includes, but is not limited to, telephones, cellular phones, computers, video recorders, facsimile machines, pagers, personal digital assistants, smartphones, and any other device that transfers signs, signals, writing, images, sounds, or data. Electronic communication device also includes, but is not limited to, videophones, TTY/TDD devices, and all other devices used to aid or assist communication to or from deaf or disabled persons. Electronic communication has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

With fundamental liberty and vested property rights at jeopardy, one would be well advised to continue the research, because several defendants hereto continue to expand the conceptual dragnet on public (and private) websites, brochures, flyer, seminars, and books. Defendant JUDICIAL COUNCIL expands on its instructions describing abuse at its Internet website:

Abuse is a repetitive pattern of behaviors to maintain power and control over an intimate partner. These are behaviors that physically harm, arouse fear, prevent a partner from doing what they wish or force them to behave in ways they do not want. Abuse includes the use of physical and sexual violence, threats and intimidation, emotional abuse and economic deprivation.8

8 JUDICIAL COUNCIL website: http://www.courts.ca.gov/1258.htm to:

http://www.thehotline.org/is-this-abuse/abuse-defined/. Stuart Decl. Ex. J, P3340-41. The lesson continues. One would also be wise to understand the San Diego County District Attorneys Offices policy for charging abuse to include behavior that undermines the victims self-worth or self-esteem, or controls the victims freedom. For example: Humiliation, controlling what you can or cannot do, deliberately making you feel diminished, isolating you from friends or family, denying you access to money or other basic resources, undermining yourself [sic] worth . . . constant criticism, use of the children against you. Economic Abuse: your partner controls your money and other economic resources. For example: Withholding money at will and forcing you to beg for money, putting you on allowance, preventing you from finishing your education or from gaining employment, intentionally misusing family resources. The


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Form DV 100 provides a space to describe the most recent abuse, identify witnesses to the abuse, and additional space to detail abuse of you or your children and other related history of abuse. An applicant may use a form DV 105 to supplement form DV 100 to request child custody and visitation orders. The Forms solicits no other evidence.9

b. Step Two: Notice to Party to Be Restrained: Judicial Council Form DV 109 In addition to Judicial Council Form DV 100, the party (1) completing a Form

DV 100 is instructed to provide notice to the party to be restrained (2) by completing Judicial Council Form DV 109. Ex. C. A detailed audio/video presentation explaining the instructions for completing form 109 is available at http://wp.me/p4aG7J-I8.

Form DV 109 includes instructions to the person in (2) to be restrained as follows:

For information about responding to a restraining order and filing your answer, read Form DV-120-INFO , How Can I Respond to a Request for Domestic violence Restraining Order?

Whether or not you respond in writing, go to the court hearing if you want the judge to hear from you before making orders. You may tell the judge why you agree or disagree with the orders requested. You may bring witnesses and other evidence.

At the hearing the judge may make restraining orders against you that could last up to five years.

The judge may also make other orders about your children, child support, involved idoms of abuse, domestic violence, harassment, batter, and obscene language are further explained at volume too extensive to include in this pleading. See Stuart Decl. Ex. G, P3231-32; 7.

9 See also, Stuart Decl. Ex. C: Forms DV-100-INFO (Request for Temporary Restraining Order); DV-500-INFO (Can A Domestic Violence Restraining Order Help Me?; DV-505-INFO (How Do I Ask For A Temporary Restraining Order?; DV 520 (Get Ready for Court Hearing); CR 6001-6001 (Detailed DV Form Instructions); FM-1013 (Declaration In Support of Ex Parte Application for Orders); Custody and Visitation Orders (Ex. C, P3134-3171).


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spousal support, money, and property and may order you to turn in or sell any firearms that you own or possess.

Form DV 109 indicates that a judge need only find reasonable proof of a past act or acts of abuse (Cal. Fam. C. 6320 and 6320.5) to issue an ex parte restraining order lasting up to five years.10 Cal. Fam.C. 6302; Ex. C, P3118, P3125. The court may issue any order ex parte (Fam. C. 6320). Ex. C, P3118, 3120.

The Form does not advise the person in (2) of possible objections, ramifications for completing the form as instructed, or to seek assistant of counsel.

c. Step Three: Responding to a DV 100 Form: Judicial Council Form DV 120 Upon being served with a form DV 100 and 109, JUDICIAL COUNCIL Form

DV 120 and DV-120-INFO instruct the person in (2) to review the DV 100 form and complete and file a written response on Form DV-120. Stuart Decl. Ex. C. Form DV-120 provides a list of check-boxes to agree or disagree to the requested order. The form instructs the person in (2) to tell your side of the story. It provides no advice as to rights, privileges, or immunities, or other options for responding. Audio/Video instructions for completing Form DV 120 are available at http://wp.me/p4aG7J-I8.

d. Step Four: Issuance of Restraining Order A judicial officer receiving a request for a restraining order may grant the order

with or without hearing, and may use Form DV 110 Temporary Restraining Order. Ex. C, P3113-17. If a court holds a hearing, it may issue an order on Form DV 130 Restraining Order After Hearing which is substantially identical to Form DV 110. Stuart Decl. Ex. C, P3156-3161. A court may include child custody orders using Form

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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DV 105. Ex. C, P3153-55. A court may also issue a California Law Enforcement Telecommunications System (CLETS) Information Form to provide law enforcement with information that will help them enforce any JUDICIAL COUNCIL Form order. Ex. C, P3122. 2. Penalties For Violating Domestic Violence Restraining Orders

Forms DV 110 and DV 130 (court orders) advise the person in (2):

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 may be sent to jail for up to one year, pay a fine of up to $1,000, or both. If You Do Not Obey This Order, You Can Be Arrested and Charged With a Crime It is a felony to take or hide a child in violation of this order. If you travel to another state or to tribal lands or make the protected person do so, with the intention of disobeying this order, you can be charged with a federal crime. If you do not obey this order, you can go to jail or prison and/or pay a fine. The form orders include boilerplate Warnings and Notices to the Restrained

Person in (2) including instructions relating to child custody, visitation, support, and enforcement by attaching assets and income, interstate travel, real and personal property use and enjoyment, firearms and ammunition. Ex. C, P3116.

The Forms include boilerplate Instructions for Law Enforcement stating the order is effective when made (without notice to the restrained person), and that If an officer has probable cause to believe that the restrained person had notice of the order and disobeyed the order, the officer must arrest the restrained person. Ex. C, P3117. The JUDICIAL COUNCIL makes the forms mandatory and represents that


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the forms are approved by DOJ. See, e.g., Ex. C, P3113, P3118, 3138. III. DISCUSSION

The JUDICIAL COUNCIL Forms and the abuse standard enable private parties to deploy state police powers to burden citizen rights guaranteed under numerous provisions of the Constitutions of the United States11 and the State of

11 The abuse standard burdens many fundamental rights. Personal Conduct orders offend First and Fourteenth Amendment rights to access justice (prohibition on contacting an opposing litigant). Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007); Bounds v. Smith, 430 U.S. 817, 827 (1977); Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir. 1995). Stay Away orders burden the fundamental right of free movement. Vasquez v. Rackauckas, 734 F.3d 1025, 1037 (9th Cir. 2013) (stay away injunctions); Madsen v. Womens Health Ctr., Inc., 512 U.S. 753, 759 n.1 (1994) (buffer zone injunction); In re Berry, 68 Cal. 2d 137, 14142 (1968) (anti-picketing injunction); Schenck v. Pro-Choice Network Of W. New York, 519 U.S. 357, 390 (1997) (illegal buffer zone). Property Control, Property Restraint, Move-Out, and Guns or Firearms and Ammunition orders offend vested property rights under the Second, Fifth and Fourteenth Amendments. Abney v. Alameida, 334 F. Supp. 2d 1221, 1229 (S.D. Cal. 2004) (vested property rights); Vance v. Barrett, 345 F.3d 1083, 1089 (9th Cir.2003) (vested property rights); D.C. v. Heller, 554 U.S. 570, 595 (2008) (The right to bear arms for the defense of himself and family and his homestead as one of the three indispensable safeguards of liberty ... under the Constitution); United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); United States v. Call, 874 F. Supp. 2d 969, 976 (D. Nev. 2012) (collecting Second Amendment cases). The Instructions to Law Enforcement deprive fundamental criminal procedure rights. See Torres v. City of Los Angeles, 548 F.3d 1197, 1207 (9th Cir. 2008) (probable cause for a criminal offense); Virginia v. Moore, 553 U.S. 164 (2008). Criminal sanctions for property control or debt matters may aid and abet extortion. Peng v. Mei Chin Penghu, 335 F.3d 970, 977 (9th Cir. 2003) (pro-arrest policy to enforce payment of money or debt may constitute extortion); Stevens v. Rose, 298 F.3d 880, 882 (9th Cir. 2002) (Arrest to enforce property dispute held extortion). Custody Orders must survive strict scrutiny. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); Troxel v. Granville, 530 U.S. 57 (2000); Parham v. J. R., 442 U.S. 584, 602 (1977); Reno v. Flores, 507 U.S. 292, 304 (1992); Jensen v. Wagner, 603 F. 3d 1182 (2010); Washington v. Glucksberg, 521 U.S. 702, 720 (1997); Stanley v. Illinois, 405 U.S. 645, 651; Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Prince v. Massachusetts, 321 U.S. 158 (1944); parental authority to control movement of children: Nunez by Nunez v. City of San Diego, 114 F.3d 935, 944 (9th Cir. 1997);


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California.12 This Motion addresses one category of deprivation immediately disposable as a matter of law: Illegal interference with freedom of expression under the First Amendment to the United States Constitution, and Article I, 2(a) and 26 of the California Constitution.

"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). The First Amendment analysis of both statutes and policies relating to enforcement of protective orders such as the JUDICIAL COUNCIL Forms is identical. See, e.g., Vasquez v. Rackauckas, 734 F.3d 1025, 1037 (9th Cir. 2013).

A. Likelihood of Success on the Merits 1. The Abuse Standard is Content-Based, and Therefore Presumed Invalid

The JUDICIAL COUNCIL Forms and abuse standard burden expression Hodgson v. Minnesota, 497 U.S. 417, 44647 (1990) (The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to the American tradition.). Content-based restrictions on parent-child speech are unconstitutional. Eugene Volokh, Parent-Child Speech And Child Custody Speech Restrictions 81 New York University Law Review 631, 649-662 (2006). The right to travel with children is fundamental. Saenz v. Roe, 526 U.S. 489, 490 (1999); Gilmore v. Gonzales, 435 F.3d 1125, 1137 (9th Cir. 2006). These additional deprivations will be addressed in due course.

12 The California Constitution and California cases construing it accord greater protection to the expression of free speech than does the United States Constitution.' Gonzales v. Superior Court, 180 Cal.App.3d 1116, 1122, 22 Cal.Rptr. 164 (1986) (citing Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 903, 907-10, 153 Cal.Rptr. 854, 59 P.2d 341 (1979)); Golden Gateway Center v. Golden Gateway Tenants Assn, 26 Cal.4th 1013, 1019, 29 P.3d 797 111 Cal.Rptr.2d 336 (Cal. 2001). "The state constitutional provisions are more protective and inclusive of the rights to free speech and press than the federal counterpart." Mardi Gras v. City of San Luis Obispo, 189 F.Supp.2d 1018, 1035-36 (C.D.Cal. 2002) (quoting Gonzales, at 1123). "[W]here state law affords greater protection to expression or free speech than federal law, state law prevails. Mardi Gras, at 1035-36 (quoting Gonzales, at 1122); Burbridge v. Sampson, 74 F.Supp.2d 940, 947 (C.D.Cal. 1999).


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based on content. Form DV 100 states: Abuse can be spoken, written, or physical. A regulation is content-based if it is not possible to determine whether the expression violates the restriction without looking at the content of the speech. Foti v. City of Menlo Park, 146 F.3d 629, 636 (9th Cir. 1998).

A court cannot determine if an expression is abuse without examining the content of the accused expression. In order to perform the analysis necessary to reach a finding of abuse, a judicial official must examine the content of the spoken, written acts alleged to determine:

If the person in (1) is reasonably in fear of imminent serious bodily injury (i.e.: Is the person in (1) claiming abuse reasonably in fear of imminent, serious bodily injury because the person in (2) said/wrote/expressed themselves in this way: _________?) (Form DV 100);

If the person in (2) threaten[ed] batter[ed]13 harass[ed]14 telephone[ed] or disturb[ed] your peace;

If the person in (1) is in reasonable apprehension of imminent serious bodily injury to that person or to another. (Cal. Fam.C. 6203(c));

If the person in (2) is (verbally or in writing) attacking . . . threatening . . . battering, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, . .

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_Women'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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. or disturbing the peace of the other party. (Cal. Fam.C. 6320(a)); If the person in (2) used obscene language with intent to annoy by

telephone or electronic communication (Cal.Pen.C. 653m(a)); If the person in (2) intended to annoy or harass in repeated telephone calls

or repeated contact by means of an electronic communication device Cal.Pen.C. 653m(b) (the intent to annoy may only be determined by examining the content of the communication).

The abuse standard and all laws, forms, regulations, and policies derived therefrom define and burden expression based on content.

a. As a Content-Based Restriction on Expression, the Abuse Standard is Presumed Invalid

Interference with non-commercial expression is rarely legal. The line between permissible restrictions on expression and illegal ones has been drawn brightly by our Supreme Court. [A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002). As a result, the Constitution demands that content-based restrictions on speech be presumed invalid . . . and that the Government bear the burden of showing their constitutionality. Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 660 (2004).

Due Process balancing tests comparing the value of speech with the governments interest in restriction are inappropriate formulas to analyze government interference with non-commercial speech. In light of the substantial and expansive threats to free expression posed by content-based restrictions, this Court has rejected as startling and dangerous a free-floating test for First Amendment coverage . . . [based on] an ad hoc balancing of relative social costs and benefits. United States v. Stevens, 559 U. S. [460, 461] (2010) (slip op. at 7). [C]ontent-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional


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categories [of expression] long familiar to the bar United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (internal citations omitted).

Abuse does not fit any of the categories of permitted interference. 15 The definition of abuse is breathtakingly broad, including merely telephoning or contacting a person with an intent to annoy, using obscene language, harassing disturbing the peace of a person, as well as a vast array of behavior falling within the ideological descriptions of domestic violence and abuse. Stuart Decl. Ex. J. These categories are far broader than those historic and traditional categories [of expression] long familiar to the bar.

Some of the expression falling within this definition of abuse may fall within the traditional categories. True threats,16 fighting words,17 and obscenity18 may

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); so-called 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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be properly restricted by narrowly-drawn statutes. Yet abuse as defined in the statutes, regulations, forms, and policies that comprise it is not so tailored. As such, it is presumed invalid.

b. Abuse Is Overbroad Any regulation on speech beyond the historic and traditional categories [of

expression] long familiar to the bar is facially invalid as overbroad. [A] law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep. United States v. Stevens, 559 U.S. 460, 473 (2010) (citing Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449, n. 6, (2008)); See also Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 799 (1984). Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." N.A.A.C.P. v. Button, 371 U.S.415, 433 (1963).

c. Abuse Burdens Clearly Established Rights to Expression Burdening abuse also interferes with clearly-established rights of expression.

Family Code section 6203(c) burdens expression by an effect on observer test; burdening speech by looking to whether the expression places another in reasonable fear. Such tests have been expressly rejected by our Supreme Court many times. See, e.g., Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011) (speech causing emotional distress); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 380 (1992) (speech causing anger, alarm, or resentment in others); Cohen v. California, 403 U.S. 15, 26 (1971) (words are often chosen as much for their emotive as their cognitive force.). Criticism, disagreement, or expression of disapprovaleven if targeted at specific personsis protected speech. First Amendment jurisprudence establishes that individuals ordinarily have the constitutional right to communicate their views in the presence of individuals they believe are engaging in immoral or hurtful behavior. community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.); Cal. Pen.C. 311.


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Thornhill v. Alabama, 310 U.S. 88, 104 (1940); City of Houston v. Hill, 482 U.S. 451, 461 (1987) (the First Amendment protects a significant amount of verbal criticism and challenge); Overstreet v. United Broth. of Carpenters and Joiners of America, Local Union No. 1506, 409 F.3d 1199, 1211 (9th Cir. 2005); Lewis v. City of New Orleans, 415 U.S. 130, 132 (1974) (statute prohibiting wantonly cursing, reviling, and using obscene or opprobrious language held invalid).

d. Defendants Cannot Resurrect the Abuse Standard From the Presumption of Invalidity

[T]he Constitution demands that content-based restrictions on speech be presumed invalid ... and that the Government bear the burden of showing their constitutionality. Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660, (2004); Alvarez at 2544. In addition, when the Government seeks to regulate protected speech, the restriction must be the "least restrictive means among available, effective alternatives." Ashcroft at 666. Defendants cannot establish that the burden on expression falling within the category of abuse both (1) falls within one of the above historic and traditional categories [of expression] long familiar to the bar, and (2) is the least restrictive means among available, effective alternatives.

Defendants are unlikely to carry their burden of showing that no less restrictive means of achieving the statutes articulated interests exist. Ashcroft at 666. Like statutes, injunctive relief should be no more burdensome . . . than necessary to provide complete relief . . . . Califano v. Yamasaki, 442 U.S. 682, 702 (1979); Vasquez at 1037. California Family Code section 6220, the preface to the Domestic Violence Prevention Act in which the definition of abuse appears, articulates Californias interest:

The purposes of this division are to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.


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Stuart Decl. Ex. A, P 3014. The State of California seems to claim two enabling interests: (1) to prevent recurrence of acts of violence and sexual abuse, and (2) to provide for a separation of the persons involved in the domestic violence for a period 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 parsing and analyzing this confusing section. While prevention of a recurrence of crimes relating to sexual abuse (Cal. Pen.C 11165.1) and physical assault (Cal. Pen.C. 240) are at least legitimate, the remaining state interests are not so easily classified. Section 6220 references domestic violence. Under the California Penal Code, the term domestic violence incorporates a more restrictive definition of abuse than the broader definition used in the Forms and Family Code. (Cal. Pen.C. 13700(b): Domestic violence means abuse committed against an adult or a minor who is a . . . [list of Domestic Relations Class members]); 13700(a): "Abuse" means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.) (Stuart Decl. Ex. I19). Thus, Defendants must explain how the 19 Californias definition of domestic violence has not achieved consensus within the Domestic Dispute Industry. See, e.g., November 10, 2013 Transcript of Oral Argument, United States v. Castleman, Stuart Decl. Ex. R:

Justice Sonia Sotomayor: Misdemeanor domestic violence Melissa Arbus Sherry: Misdemeanor crime of domestic violence. So both the word "misdemeanor" and the phrase" domestic violence" is a broad spectrum of abusive behavior. It's characterized by a pattern of escalating abusive conduct. It may start with something like emotional abuse, include isolating the person from friends and family, include threats of violence, threatening to take away the kids.

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 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 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


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State of California possesses a compelling interest in providing a separation for purposes of resolv[ing] the causes of each act within the definition of abuse, which abuse definition Family Code 6220 is referring to, and that the burdens of the restraining orders are narrowly tailored to achieve that end. Aschcroft, supra, at 666. As California has disclaimed any interest to resolve issues of fault in dissolution proceedings,20 such an achievement seems dubious.

Finally, criminalizing abuse is not the least restrictive means for preventing undesirable speech. For any electronic communications, filtering software, call blocking, or simply disengaging have been asserted to invalidate similar statutes. See, e.g., Ashcroft at 658; United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 826 (2000). 2. Abuse is Void for Vagueness

A statute is void for vagueness unless it provide[s] a person of ordinary intelligence fair notice of what is prohibited. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494495 (1982); United States v. Williams, 553 U.S. 285, 286 (2008); Holder v. Humanitarian Law Project, 561 U.S. 1 (2010); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (if arbitrary and discriminatory enforcement is 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 No-Fault 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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to be prevented, laws must provide explicit standards for those who apply them). To understand what behavior is burdened under the Family Codes prohibition

of abuse, one of ordinary intelligence would be required to undertake the course of study described at Section II.A.1(a)(i) above, including all caselaw interpreting the statutes, as well as the numerous policies, customs, habits, and ideologies of entities within the relevant local jurisdiction, which in this District includes the San Diego District Attorneys Office, the CITY ATTORNEY, SDPD, the county Sheriff and courts, and the ALLIANCE relating to the involved ideoms.21

Its difficult to imagine how drafters of the 1994 DVPA could believe that the breadth and ideologically lathered term abuse would lead to anything other than confusion. Indeed, abuse standard appears to have been crafted by persons intending to inject terminology burdening permissible categories of regulation and impermissible ones.22 The drafters might have recognized that subsequent judicial construction or discretion at application could not cure their draftsmanship. See, e.g., United States v. Reese, 92 U.S. 214, 221 (1875) (It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.); Boos v. Barry, 485 U.S. 312, 329 (1988). Moreover, where a statute cleaves closely to fundamental constitutional rights, deviant draftsmanship can be recognized only as a

21 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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foul against a deviant drafter. N.A.A.C.P. v. Button, 371U.S.415, 433 (1963) (government must regulate speech with narrow specificity); Kolender v. Lawson, 461 U.S. 352, 357 (1983).

B. Irreparable Harm Since abuse burdens rights of expression, and the orders invoked by a finding

of abuse interfere with fundamental liberty and vested property interests, irreparable harm must be presumed. Warsoldier v. Woodford, 418 F.3d 989, 1001 (9th Cir. 2005) ("irreparable injury sufficient to merit the grant of relief [established] by demonstrating the existence of a colorable First Amendment claim"); When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary." Wright & Miller, Federal Practice and Procedure, 2948.1 (2d ed. 2004). It is no defense that the deprivation caused by the orders may be temporary. S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1148 (9th Cir. 1998) ("The loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury."). Even the threat of issuance and criminal repercussions for enforcement of the orders creates an irreparable harm by chilling speech. See White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000) (government conduct violates the First Amendment when it "would chill or silence a person of ordinary firmness from future First Amendment activities").

STUART and CALIFORNIA COALITION members and affiliates have experienced past deprivations of protected rights under the abuse standard, and all members of each of the EQUAL PROTECTION CLASSES in the state of California are presently subject to deprivation. Stuart Decl. 36, Ex. B. Stuart is presently under an order issued by Defendant Goldsmith in or about May, 2010 by use of the Forms and remains at jeopardy for further deprivation in his relationships with his ex-wife and son. Id. Such past and ongoing deprivation constitutes irreparable harm and standing for purposes of this Motion.


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C. Balance of Equities Enjoining Defendants use of the Forms and abuse standard would impose no

burden to any legitimate interest of any Defendant. Threats, fighting words, obscenity, and obstruction of justice will remain crimes. Civil remedies for property damage, reputational injury, and emotional injuries remain available. Enjoining use of the JUDICIAL COUNCIL Forms will not prohibit individualized petitions for equitable remedy in the case of truly irreparable damage should a need arise.

Yet continued reliance on the abuse standard will perpetuate deprivations of fundamental rights identified herein, but also the means for committing extortion, fraud, and abuse of process well-known to the Domestic Dispute Industry. See, e.g., Peng v. Mei Chin Penghu, 335 F.3d 970, 977 (9th Cir. 2003); Stuart Decl. 15-30, Ex. N; First Amended Complaint allegations re: MALICIOUS PROSECUTION, PROSECUTORIAL MISCONDUCT, DOYNE TERRORISM, OBSTRUCTION OF JUSTICE. Ending such disgraceful and malicious practices today is nothing short of humane.

D. Public Interest [T]he protection of constitutional rights is always in the public interest."

International Socy for Krishna Consciousness, Inc. v. Kearnes, 454 F. Supp. 116, 125 (E.D. Cal. 1978). Protecting rights of intimate association with family and friends is a public interest. Vasquez v. Rackauckas, 734 F.3d 1025, 1037 (9th Cir. 2013) (enjoining protective orders that burdened constitutionally protected freedom of intimate association, association with family members in public places such as schools, churches, parks, libraries, stores, and restaurants and in the home); Sammartano v. First Judicial District Court, in and for County of Carson City, 303 F.3d 959, 974 (9th Cir.2002) (Courts considering requests for preliminary injunctions have consistently recognized the significant public interest in upholding First Amendment principles.). Enjoining the constitutional burdens posed by the broad abuse standard serves cherished public interests that are, without exception in a free


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society, in the public interest.

IV. CONCLUSION Our communities have rightly mobilized to address the serious problem of

domestic violence. As awareness has increased, our experience and understanding of its causes and variety of appropriate means of preventing and redressing it have evolved. Unfortunately, in the present case the attention devoted to prevention of domestic violence has led to an expansion of police powers beyond traditional shoals which restrain such means, leading to deprivation and nefarious consequence. Given the State of Californias ability to address domestic strife by a variety of effective, efficient, and legal means, allowing the continued existence of an illegal form of those many responses serves not to prevent the ill of domestic strife, but to compound it into a widespread and demeaning social injustice.

Plaintiffs respectfully request that the Court grant the injunction. Respectfully Submitted: DATED: February 26, 2014 By: /s/ Colbern C. Stuart, III, President,

California Coalition for Families and Children, PBC, in Pro Se

Colbern C. Stuart, III


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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 26th day of February, 2014. By: /s/ Colbern C. Stuart, III, President,

California Coalition for Families and Children, PBC in Pro Se

Colbern C. Stuart, III

102-1 memo iso mtn prelim inj first amend abuse

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