united states court of appeals for the ninth...

No. 13-17170

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT _______________________________________________

RON PIERCE, et al., Plaintiffs-Appellants,

v. CALIFORNIA CHIEF JUSTICE CANTIL-SAKAUYE, et al.,

Defendants-Appellees. _______________________________________________

Appeal from U.S. District Court for the Northern District of California

Civil Case No. C 13-01295 JSW (Honorable Jeffrey S. White) _______________________________________________

APPELLANTS’ REPLY BRIEF

_______________________________________________

Archibald Cunningham State Bar No. 210625 1489 McAllister St.

San Francisco, CA 94115 [email protected]

415 563.1828 Attorney for Appellants/Plaintiffs

Case: 13-17170 03/10/2014 ID: 9008966 DktEntry: 22 Page: 1 of 32

Plaintiffs/Appellants’ Excerpts of Record

ER Number Document Title Filing Date Pages _____________________________________________________________ ER 1: Notice of Appeal 10/23/13 1-3 ER 2: Order Denying Motion to Amend 10/04/13 4-7 Judgment Under FRCP 59(e) AND/Or Motion for Relief From Judgment Under FRCR 60(b)(1)(6): Request for Statement of Reasons ER 3: Plaintiffs’ Response to Opposition to 9/7/13 8-18 Amend Judgment Under 59(e) or 60(b)(1)(6). ER 4: Opposition to Motion to Amend 9/3/13 19-26 Judgment Under FRCP 59(e) And/Or Motion for Relief From Judgment Under FRCP 60(b)(1)(6) ER 5: Plaintiffs’ Motion to Amend Judgment 9/5/13 27-47 Under FRCP 59(e) And/Or Motion for Relief From Judgment Under FRCP 60(b)(1)(6): Request for Statement of Reasons ER 6: Order Granting, In Part, and Denying, 8/13/13 48-59 In Part, Motion to Dismiss, and Denying As Moot Motion for Preliminary Injunction ER 7: Second Declaration in Support of 7/7/13 60-66 Preliminary Injunction


ER 8: Reply to Defendant’s Opposition to 6/27/13 67-84 to Plaintiffs’ Motion for a Preliminary Injunction ER 9: Defendant’s Opposition to Plaintiffs’ 5/24/13 85-100 Motion for Preliminary Injunction RE 10: Plaintiffs’ Second Request for Judicial 5/12/13 101-135 Notice; Declaration of Counsel for Plaintiffs ER 11: Plaintiffs’ Response and Objection to 5/4/13 136-143 Defendant’s Reply Brief in Support of Its Motion to Dismiss ER 12: Reply Brief In Support of Defendants’ 5/2/13 144-149 Motion to Dismiss ER 13: Plaintiffs’ Response and Objection to 4/22/13 150-157 Defendant’s Motion to Dismiss ER 14: Defendants’ Notice of Motion and 4/15/13 158-175

Motion To Dismiss Plaintiffs’ Complaint for Injunctive and Declaratory Relief; Memorandum of Points and Authorities ER 15: Order Re Petitioner’s Request to Renew 8/27/12 176-182 Restraining Order (Case No. 1-09-FL-149682) Kamil Hiramenek v. Adil Hiramenek ER 16: District Court Docket Sheet 183-189


i

TABLE OF CONTENTS

INTRODUCTION……..…………………….……………………………… 1

I. DISSCUSSION…………………………………………………………….. 4

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

CONCLUSION………………………………………………………………… 23


ii

TABLE OF AUTORITIES

Federal Cases

ACS of Fairbanks, Inc. v. GCI Communication Corp., 321 F.3d 1215, 1216-17 (9th Cir.2003)………………………………………………………………… 8 Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir.2000)………………………………………………………………………. 8 Boddie v. Connecticut, 401 U.S. 371, 383 (197………. …………..12, 13, 14, 16

Clark v. Jeter, 486 U.S. 456, 461 (1988)……………………………………….15

Cunningham v. Mahoney, C-10-03211 JSW (N.D. Cal. 2010)……………11, 18

Ex Parte Young, 209 U.S. 123 (1908)…………………………………..7, 8, 9, 11

Kougasian v. TMSL, Inc. 359 F.3d 1136, 1140 (9th Cir. 2004)………………… 11

Los Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir.1992)……… 8

Loving v. Virginia 388 U. S. 1 (1966)…………………………………………...15

M.LB v. S.L.J., 519 U.S. 102 (1996)………………………………. 11, 12, 15, 16

Rooker/Feldman ……………………………………………………………..10, 11

Weissman v. Quail Lodge, Inc., 179 F. 3d 1194 (1999, 9th Cir. Cal.)…………….6

Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir. 2005)………………………….8, 9

Wolfe v. George, 486 F.3d 1120 (9th Cir. 2007)……………………………..12, 13

Wolfe v. Strankham 391 F.3d 358 (9th Cir. 2004)……………………………..7, 9

U.S. v. Kras (1973) 409 U.S. 434…………………………………………………13

State Cases Elkins v. Sup. Ct. (2007) 41 Cal. 4th 1337……………………………………….22

Johnson v. City of Loma Linda, (2000) 24 Cal.4th 61…………………………...11

Lucido v. Superior Court, (1990)`851 Cal.3d 335…………………………….....11

Luckett v. Panos (2008) 161 Cal.App.4th 77……………………………………21

Shalant v. Girardi (2011) 51 Cal. 4th 1164……………..……… ……………..16

Wolfgram v. Wells Fargo Bank (1993) 53 Cal. App. 4th 43…………………….13


http://openjurist.org/321/f3d/1215



http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/161/77.html

iii

STATE STATUTES CCP §391….……………………………………………………………….passim

CCP §391.1…………………………………………………………. 7, 17, 19, 20

CCP §391.4………………………………………………………………………18

CCP §391.7…………………………………………… 5, 6, 11, 12, 16, 19, 20, 23

CCP §391.8…..………………………………………………………………….20

Family Code §217…………………………………………………………………4

Family Code §2030………………………………………………………………22

U.S. CONSTITUTION 1st Amendment………………………………………………………………..1, 3 11th Amendment…………………………………………………………………7 14th Amendment…………………………………………………………………3

CALIFORNIA CONSTITUTION Cal. Const. Art. I, sec 7(b)……………………………………………………….20 Cal. Const. Art. VI, §11………………………………………………………19, 20

TREATISE 7 Witkin, California Procedure, Judgment § 339 (4th ed.1997)………………….11


Appellants’ Reply Brief -1

INTRODUCTION In the Answering Brief of Defendants-Appellees (ABD), Deputy

Attorney General Patti Li seems elliptical in her responses to the issues

raised by Appellants. Appellants have belabored the fact that the nature of

litigation in a custody dispute is fundamentally different from civil law suits.

Yet, Deputy Attorney General Li and the AGs blithely skips over any

distinction between parents involved in custody disputes and litigants in civil

suits. This allows them, at the end of their brief, to insinuate that a parent’s

pleadings in a custody dispute, just like other civil litigants, are “baseless

litigation not immunized by the First Amendment” or that there “is no

constitutional right to file frivolous litigation.” (ABD, pg. 36-37).

Although the Appellants cite in their opening brief to a string of

Supreme Court cases holding that parental rights are “the oldest fundamental

interest that is recognized” (AOB, pg. 36), Deputy Attorney General never

admits the obvious constitutional guarantee of custody rights or concedes

that the Vexatious Litigant Statute impinges on these rights during custody

disputes. When Attorney General Li finishes circling the wagon of these

issues, she attacks using the desperate lawyer’s most common weapon,

intellectual dishonesty, (ABD, pg. 24):

Plaintiffs assume, however, that because custody disputes affect the exercise of these fundamental rights, parents must have unlimited



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

The AGs have combined hyperbole with obfuscation and wrapped up their

statement as if they were accurately and honestly describing the Appellant’s

legal position. They seem to be agreeing that custody disputes involve the

“exercise of fundamental rights,” but then gloss over any tacit admission by

faulting the parents for trying to uphold them.

By recasting the discussion in extreme and overbroad terms such as

“unlimited access,” “repeatedly challenges,” and “the state may never

impose,” Attorney General Li deliberately misstates the Appellant’s

position. In doing this, she deflects attention from the fact that a custody

dispute involves constitutionally protected fundamental rights. She

insinuates that the parents are not asking for “equal protection” or “due

process” but are demanding the special treatment of “unlimited access.” In

distorting the motives of the parents, she implies that the parents are not

trying to restore their terminated parental rights but are “repeatedly

challenging” supposedly valid custody determinations that were borne out of

fully and fairly litigated hearings. By swapping out the factual and legal

predicate of Appellant’s position with her own view, she can at once



discredit Appellants’ position while creating a new narrative in which she is

the master (of sophistry). In reconstituting Appellants’ position, the AGs

then rush to the conclusion that Appellants’ “theory is incorrect.” (ABD, pg.

24). In short, Attorney General Li and the AGs confuse legal analysis with

intellectual deviousness.

In the hopes of reasserting control over the narrative, Appellants will

briefly reiterate certain facts of their case. Despite Attorney General Li’s

position to the contrary, Appellants are not demanding “unlimited access.”

They’d be happy with any access or equal protection. For instance, on

August 26, 2012, Adil Hiramanek was slapped with a 50 year restraining

order in which Judge L. Michael Clark of the Santa Clara Superior Court

forbid him from seeing his three children until “midnight on August 24,

2062.” (RE 15, pg 7/7-81). On February 1, 2013, Adil was denied

permission by the California Court of Appeals for Sixth District in a one-

sentence order. (RE 11, Second Request for Judicial Notice, Exhibit D, pg.

6). Now, the 50-year restraining order has lapsed into a “final judgment” and

Attorney General Li is correct that Adil must show “changed circumstances”

to modify that order which cannot be collaterally attacked and which was

never fully-litigated. (ABD, pg. 29, fn 5). But Attorney General Li fails to 1 “For law enforcement purposes, the restraining order shall be for 50 years, and shall expire at midnight on August 24, 2062.”



mention or realize that, under the “profiling order” of the VLS, Adil must

show “changed circumstances” not in a fully litigated hearing to which

“represented parents” are entitled under Family Code §217 but in his

“pleadings.” He was first denied the right to appellate review of the

underlying order and will be denied an evidentiary hearing under Family

Code §217 to show “changed circumstances.” Adil’s case is emblematic of

the other class member/parents.

I. DISSCUSSION

A. Appellants’ Constitutional Challenges to the VLS As Applied to Custody Disputes Is Simply Not Addressed.

In faulting these Appellants/parents for “repeatedly challenging”

either custody or visitation order, Attorney General Li and the AGs either

fail to admit the facts of this case or are oblivious to the reach of the VLS.

The AGs simply ignore the facts and how they relate to the constitutional

challenge to the VLS on its face and as applied by the family law judges at

both the trial courts and the appellate courts. In that respect, Archibald

Cunningham had all his visitation rights terminated after a hearing on

February 26, 2010. He’d filed an “Order to Show Cause” for the purposes of

restoring a 50/50 share custody agreement he lost in a “trial by declaration.”

(RE 11, Second Request for Judicial Notice, Exhibit I-K, pg. 27-32). After

the hearing, Maria Schopp, counsel for Archibald’s ex-spouse, submitted a



“proposed order” purporting to strip him of all of his remaining parental

visitation rights. She did not comply with local rules regarding “proposed

rules” and did not allow Archibald to “object” or to submit his own proposed

order. Neither did she “meet and confer” as mandated by the local rule.

Instead, she “typed” his name on the signature line because she knew he

would never have agreed to the termination of his rights. Then, family law

Judge Patrick Mahoney colluded in the fraud and signed the order. (*See,

Comp., ¶29-30).

When the self-represented Archibald attempted to “appeal” the

February 26, 2010 order, he was denied “permission” under the VLS. The

presiding judge spit back the boiler plate language that the appeal (of the

termination of all parental rights without notice or an opportunity to be

heard) lacked “merit.” The fact is that Judge Mahoney had declared

Archibald “vexatious” not once, but twice. Judge Mahoney declared

Archibald “vexatious” for the first time on February 23, 2009. While

Archibald appealed the first vexatious litigant order (A124717), Judge

Mahoney subjected him to a second “vexatious litigant motion” by the same

party, on the same grounds, and conducted once again by him.

Besides imposing multiple fee sanctions of $23,000 and $33,000 on

Archibald, Judge Mahoney’s first vexatious litigant order (and prefiling



order) was used to deny him “permission” to appeal the February 26, 2010

order terminating his visitation rights (as well as the second vexatious

litigant order of February 26, 2010 and a permanent TRO that the previous

judge, Judge Donald Sullivan, had declared null and void). Like Adil, the

order terminating his visitation rights is treated as a “final judgment,”

demanding a showing of “changed circumstances” in order to modify.

The facts and legal ruling of Appellant-Michele Fotinos case are the

apotheosis of an unconstitutionally applied statute. But Deputy Attorney

General Li says nary a word on this matter. The Ninth Circuit, in Weissman

v. Quail Lodge, Inc., 179 F. 3d 1194 (1999, 9th Cir. Cal.), unequivocally

provided that the VLS was never intended to apply to attorneys representing

clients, “[W]e therefore conclude that an attorney appearing on behalf of a

client cannot be sanctioned as a vexatious litigant; by definition, he or she is

acting as an attorney and not a litigant.” However, Presiding Judge Beth

Labsom Freeman of the San Mateo Superior Court would issue a prefiling

order in which she named both Michele Fotinos’ attorney, Patricia Barry, as

well as Michele as “vexatious.” Now both Michele and Ms. Barry appear on

the Judicial Council’s List of Vexatious Litigants.2 There is nothing in the

2 http://www.courts.ca.gov/documents/vexlit.pdf


http://www.courts.ca.gov/documents/vexlit.pdf


plain language of the VLS, no indication in the Legislative history of the

VLS, and no case law that supports Presiding Judge Freeman’s order.3

Given the word limitations of this reply brief, Appellant will forego

reiterating the facts of each of the other class-members. Though Ron

Pierce’s case is unique in that the Judge Kane of the Third Appellate District

of California granted himself inquisitional powers, notified Mr. Pierce he

was conducting a combined §391.1 motion in the appellate court, and then

found Ron “vexatious.” Chief Justice Cantil-Sakauye herself refused to

allow Ron to “appeal” the “vexatious litigant” order to the state Supreme

Court.

B. The AG’s Reading of the Ex Parte Young Exception Would Gut The Supremacy Clause. Deputy Attorney General Li concedes that the district court “declined

to apply the Eleventh Amendment to the Chief Justice.” (ABD, pg. 14).

However, Attorney General Li contends that the district court’s reliance on

Wolfe v. Strankam, 392 F.3d 358 (9th Cir. 2004) was misplaced because the

BARRY Patricia San Mateo

Superior Court PRO121437

11/16/12 Order states specifics in re: Michele Fotinos

3 At the time of her prefiling order, Presiding Judge Freeman had been disqualified and had “no power” to issue any orders “in any proceedings. (CCP section 170.4(d). She’s now appointed to the Federal District Court of California, Northern District.



Ninth Circuit did not consider the Ex Parte Young requirement of whether

“chief justice had any connection to enforcement of the VLS…” (ABD, pg.

14). She also contends that the Appellants have not alleged facts that meet

the Ex Parte Young “connection” requirement. (ABD, pg. 12, ¶2).

The Appellants, however, reasonably relied on the controlling

authority of Wolfe v. Strankam, 392 F. 3d 358 (9th Cir. 2004), which held

that “official-capacity actions for prospective injunctive relief are not

treated as actions against the State.” (ER 8, pg. 79, fn 10). In their

complaint, the Appellants sued the Chief Justice Cantil-Sakauye only in her

“official capacity” and only for “injunctive relief.” This was consistent also

with the holding of Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir. 2005),

which held that the Ex Parte Young exception relates to the type of relief

requested and whether an “on-going violation of federal law” was alleged.4

(Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045

(9th Cir.2000); see also Los Angeles County Bar Ass'n v. Eu, 979 F.2d 697,

704 (9th Cir.1992) ("[T]he Eleventh Amendment does not bar actions 4 Wilbur v. Locke, supra, at ¶32: "[I]n determining whether `the doctrine of Ex Parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'" ACS of Fairbanks, Inc. v. GCI Communication Corp., 321 F.3d 1215, 1216-17 (9th Cir.2003) (Order), quoting Verizon Md., Inc. v. Pub. Serv. Comm'n, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002).






http://openjurist.org/535/us/635


seeking only prospective declaratory or injunctive relief against state

officers in their official capacities").

The crux of the problem with broadly reading the Ex Parte Young

requirement for a “connection to enforcement” is that it would devour the

Supremacy Clause. It’s beyond cavil that the Supreme Court in Ex Parte

Young allowed prospective injunctive relief against unconstitutional action

taken by state officers. The Supreme Court did this as a way of protecting

the Constitution’s Supremacy Clause. If the Supreme Court had not stripped

state officials of their power when acting outside the scope of what a state

authorizes them to do, then states could take unconstitutional actions with

impunity, thereby invalidating the Supremacy Clause. In this regard, the Ex

Parte Young is a legal fiction that assures that in the federal system the U.S.

Constitution is the supreme law of the land. Both Strankham and Wilbur

recognize the legal fiction.

Now, Deputy Attorney General Li wishes to read the Ex Parte Young

“connection to enforcement” requirement as extending to “official-capacity

suits.” Apparently, she’d want each class member to allege the particular

facts and rulings of their vexatious litigant case along with the “on-going

violations.” If Appellants did that, they’re afraid that their class action would

then be characterized not as a general constitutional challenge to the VLS



but as a collective set of de facto appeals of state court decisions (and thus

barred by Rooker-Feldman).

In that sense, Appellants feel that getting their class action heard

would be tantamount to the “ordeal by water” associated with witch-hunts,

whereby a hog-tied person is flung into a river and if he/she sinks and

drowns, the person is innocent but if the person floats, then he/she is guilty

and is burnt at the stake. The test allows for the possibility of proving

innocence but not surviving. While Appellants imagine the AGs asserting

that this is mere histrionics, the Appellants would point out that class-

member Cunningham’s earlier civil rights suit naming Judge Mahoney was

dismissed under Rooker-Feldman as a de facto appeal. (ABD, pg. 17,

Cunningham v. Mahoney, C-10-03211 JSW (N.D. Cal. 2010)).

Clearly, the Deputy Attorney General Li is only interested in having

the class action dismissed, either under Rooker-Feldman or Ex Parte

Young’s connection to enforcement requirement. Her “ordeal by water”

approach does not allow for the survival of this class action and a resolution

of the case on the merits. If there is any doubt about that, Appellants would

point out that Archibald’s early constitutional challenge was given short

shrift as a “de facto appeal” and he’s now told that the earlier dismissal by

the district court under Rooker-Feldman was actually a decision on the



merits and is barred by res judiciata. (ABD, pg. 17: “Cunningham thus had a

“full and fair opportunity” to litigate, and did so unsuccessfully.).

The fact is that since the “dismissal” of Archibald’s 2010 suit, he has

alleged new facts and presented new orders in this class action that evince

new and “on-going violations” of his right to petition and right to access.

Deputy Attorney General Li does not cite any cases that provide that the

doctrine of res judicata applies proactively to negate new and future civil

rights violations. Appellants are not aware of any such case. For that matter,

Appellants take issue with Attorney General Li’s characterization that

Archibald had any chance to litigate his earlier suit or his newly alleged

constitutional violations. The Ninth Circuit in Kougasian v. TMSL, Inc. 359

F.3d 1136, 1140 (9th Cir. 2004) found that a dismissal under Rooker-

Feldman was not a decision on the merits.5

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



C. The AG’s Assertion that Boddie v. Connecticut and M.L.B. v. S.L.J Is Limited to the Facts and Circumstances of Those Cases Is Simply Wrong. The AGs asserts that the Supreme Court in both its decisions in

Boddie and M.L.B. v. S.L. J. “expressly limited its analysis to the specific

facts before it.” (ABD, pg. 24). She continues, (ADB, pg. 24-25):

And in both cases, the litigants were completely unable to access the courts, in sharp contrast to the access permitted under the VLS. Because the VLS prefiling requirement does not completely block access, theses cases are inapposite here.

First, Appellants are unaware of any comments by the Supreme Court in

these decisions that expressly states that its “analysis” is “limited” to the

“specific facts before it.” To limit review to the “specific facts” would defeat

the Supreme Court rules and reasons for accepting a case for review except

when there are “compelling reasons.”6 Deputy Attorney General Li insists

that the Supreme Court in Boddie “explicitly limited its holding to the

precise circumstances faced by the appellants, and warned against a wider

application of that holding: We do not decide that access for all individuals ed.1997)); Lucido v. Superior Court, 51 Cal.3d 335, 272 Cal.Rptr. 767, 795 P.2d 1223, 1225 (1990) (setting forth the requirements for issue preclusion) 6 Rule 10. Considerations Governing Review on Writ of Certiorari Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers: …



to the courts is a right that is, in all circumstances, guaranteed by the Due

Process…” (ABD, pg. 25-26). In the same way, she insists that the Supreme

Court in M.L.B. “applied heightened scrutiny to a civil litigation prefiling

requirement, but once again limited its holding to the specific circumstances

of the cases.” (ABD, pg. 26, ¶2).

Contrary to the AGs’ position, both Boddie and M.L.B. have been

cited by hundred if not thousands of federal court cases without any federal

court ever “warning” of the “limitations” she claims. In fact, the Ninth

Circuit relied on Boddie in its decision in Wolfe v. George and turned to

Boddie to frame the issue of whether Mr. Burton Wolfe’s right to access and

his right to file a civil suit against San Francisco taxi cab companies “rose to

the same level as divorce.” (Wolfe, supra, at 1126). In the same way, the

Supreme Court relied on the “analysis” of Boddie in U.S. v. Kras (1973) 409

U.S. 434 and found that the Robert Kras’ right to file for bankruptcy

(paying filing fees) was distinguishable from the married couple’s case

(filing fees as exclusive precondition to access) in Boddie in two ways. First,

Robert Kras did not have a “protected interest” in filing for bankruptcy.

(Kras, supra, at 445). Second, bankruptcy was not the “only method

available” for Mr. Kras to “adjust his legal relationship with his creditors.”

(Id, 445). In short, the Attorney Generals err in suggesting that the two



Boddie factors, infringement of a fundamental rights and the state’s

monopolization of means for adjustment of a fundamental relationship, are

limited to the specific facts of Boddie.

D. The District Court’s Failure To Use Heightened Scrutiny In Reviewing the Application of the VLS Was Reversible Error.

The AGs don’t consider whether the VLS, as applied to the facts and

events and circumstances of this class action, infringes on these parents’

protected custody rights. Instead, they refer to the ersatz promises of the

state appellate court in Wolfgram v. Wells Fargo Bank (1997) 53 Cal. App.

4th 43, 60. (“When a vexatious litigant knocks on the courthouse door with a

colorable claim, he may enter.”). (ABD, pg. 29-30). The fact that Adil,

Archibald, Kerry Hicks, Michele Fotinos and now her attorney have been

knocking on those locked and bolted courtroom door for years has gone

unnoticed by the AGs. Out of frustration, the otherclass members have

stopped knocking.

The AGs simply fail to address the horror stories that are the facts of

this case. In Boddie, the Supreme Court was clear that the issue of a statute’s

constitutional validity extents to how a court applies statute, (Id, 379):

Our cases further establish that a statute or a rule may be held constitutionally invalid as applied when it operates to deprive an individual of a protected right although its general validity as a measure enacted in the legitimate exercise of state power is beyond



question. Thus, in cases involving religious freedom, free speech or assembly, this Court has often held that a valid statute was unconstitutionally applied in particular circumstances because it interfered with an individual's exercise of those rights. As noted throughout their brief, the AGs only concern themselves with the

facial validity of the VLS “in theory” and appear oblivious to the trial and

appellate court’s application of the VLS.

E. Heightened Scrutiny Is Not Limited to Final, Full, Irrevocable Termination of Parental Rights. The Boddie court, in the cited passage above, states unequivocally

that it has ruled that facially valid statutes have been held to be

“unconstitutionally applied” when they “interfere” with “protected rights.”

Nevertheless, Deputy Attorney General Li insists that mere “interference”

with a protected right isn’t enough to trigger heightened scrutiny. In her

view, parents are only entitled to heightened scrutiny when their parental

constitutionally protected rights are “fully, finally, and irrevocably”

terminated. (ABD, pg. 31, 2). This view runs afoul not just of Boddie but the

vast swath of jurisprudence related to the selection of the proper level of

scrutiny for constitutional violations. (AOB, pg 45, fn 1; Classifications

affecting fundamental rights are given the most exacting scrutiny. Clark v.

Jeter, (1988) 486 U.S. 456, 461; Loving v. Virginia 388 U. S. 1 (1966).



In adopting the full, final, irrevocable standard, the district court judge

and the AGs read much into the comparison the Supreme Court made in

M.L.B. between termination proceeding in juvenile dependency cases and

“other domestic relations matters such as divorce, paternity, and child

support.” (M.L.B., supra at 127; BD, pg. 28, ¶2 -29; AOB, pg. 36, ¶2 to 38)

To read a standard for selecting the proper level of scrutiny into a single

comparison by a single Supreme Court decision is simply not prudent. Such

a reading is not in harmony with the jurisprudence on the subject and is not

supported by the plain language of the passage itself.

The Supreme Court’s “comparison” in M.L.B. is meant to place

“termination proceedings” among the spectrum of “domestic relations cases”

that affect fundamental rights. The Supreme Court is emphasizing that it’s

the most extreme example of a constitutional deprivation. The AGs lift the

passage from M.L.B. that provides that “parental termination decrees are

among the most severe forms of state action” (Id, 127) but then take the

quantum leap that only the “most severe” cases are afforded heightened

scrutiny. If only the “most severe” deprivations triggered heighten scrutiny

review, then the couple seeking a divorce in Boddie would not have met the

standard. In short, the AGs are confusing the spectrum of constitutional

violations with the selection of the proper standard of review.



F. There Are Numerous Constitutional Violations Here.

Appellants will not restate their case here because they have laid out

their position repeatedly in the complaint and opening brief. However,

Appellants wish to clarify the apparent misconceptions the AGs have

regarding “self-representation” in the context of custody disputes and their

failure to understand how it creates suspect classes and violates due process.

Deputy Attorney General Li asserts that “prefiling requirements” are

“rational” because they are not subject to the “ethical and legal obligations

of licensed attorneys.” (ABD, pg. 33, 2). This paraphrases the state Supreme

Courts holding in Shalant v. Girardi (2011) 51 Cal. 4th 1164 that

“representation” is not “absurd” and that lawyers are presumed to be

“ethical gatekeepers.” (Id., 1167). The first problem here is that state courts

judges such as Presiding Judge Beth Labsom Freeman apply the VLS not

only against represented litigants but against their attorneys. Likewise,

Archibald was represented and his attorney, Jennifer Nicoletto was required

to fill out Judicial Council forms and was then denied access. While

“representation” is suppose to shield litigants, the family law courts fail to

apply the VLS by its plain terms. In that regard, the VLS as applied by

family law judges is unconstitutional.



The second problem is that self-representation in civil suits is

fundamentally different from acting “in propria persona” in custody case. As

an initial matter, civil litigants are the ones who initiate and file the civil suit

and are the “plaintiffs” against whom a “moving defendant” can request a

“vexatious litigant hearing against” under section 391.1 of the VLS. If the

“moving defendant” can show there “is not a reasonable probability that he

or she will prevail in the litigation against the moving defendant,” then the

court can require the “plaintiff” to post security.7 Herein lies the rub. It is

certainly “rational” to ask if a “plaintiff” is likely to prevail in a civil suit.

However, it’s neither rational nor compelling to ask if a parent has a

“reasonably probability of prevailing” in a custody dispute that can last for

up to eighteen years. How can a parent “prevail” in a custody dispute? The

very nature of a custody disputes renders the “reasonably probability” factor

or language absurd.

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



The threat of being ordered to post bond in a custody dispute also

implicates constitutional concerns. To impose a bond requirement on a

parent as a precondition to access infringes fundamental rights and creates a

suspect class. In his earlier federal civil rights suit, which Deputy Attorney

General Li cites to in her brief (ABD, pg. 17; Cunningham v. Mahoney, 10-

3211 JSW (N.D. Cal. 2010), Archibald was slapped with an order by Judge

Mahoney to post a $5000 bond before he’d be allowed to file any pleadings

in his custody dispute. Under section 391.48, when Archibald failed to post

the $5000, his custody case should have (“shall”) been dismissed. Similarly,

there is the on-going issue of whether hiring an attorney would “shield” a

parent from the need to post the “required” bond. In any case, these statutes

may be “rational” or “compelling” to a civil litigant but to subject a parent to

the dismissal of his custody case for failing to post a $5000 bond that serves

as an “exclusive precondition to the adjustment of his fundamental

relationship” is both absurd and unconstitutional.

A third constitutional concern or suspect classification relates to the

unlevel playing field caused by subjecting unrepresented parents to the VLS

while shielding represented ones from section 391.1 motions. Most of the 8 CCP section 391.4: When security that has been ordered furnished is notfurnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished.



parents in this class did not “initiate” the dissolution proceedings and are not

“plaintiffs.” Nevertheless, the represented parents’ attorneys invariably bring

sections 391.1 motions against the unrepresented parent. In every case in this

class action, the unrepresented parent is invariably declared vexatious, made

beholden to a prefiling order, and then denied immediate and full access.

On the other hand, the represented parent may file pleadings to their

heart’s content without any procedural obstacles. In this regard, the

unrepresented parent is at a distinct disadvantage in contending with and

litigating against an experienced family law attorney. This unlevel playing

field exists only because the unrepresented parent cannot afford an attorney

or lacks the good fortune to find a pro-bono lawyer. Moreover, the

represented parent is immune (in theory, though not in practice as noted

above) from a section 391.1 motion as the result of being “represented.” In

this regard, the VLS, as applied to custody disputes, manages to created

suspect class (unrepresented indigent parent) and at the same time violates

the Privileges and Immunities clause.9

There is no compelling or rational reason for giving one parent a

litigation advantage simply because the represented parent can afford an 9 Cal. Const. Art. I, sec. 7(b): A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.



attorney and the other parent cannot. Further, the imposition of the VLS to

custody disputes is not going to curtail or eliminate the custody dispute. As

seen here, the VLS has been co-opted by the wealthier parent to gain a

litigation advantage and shut down the other parent’s attempts to have

“frequent and continuous” contact. Worst yet, it gives family law judges the

right to impose the VLS on parents and either deliberately or inadvertently

affect the outcome of the custody dispute without necessarily considering

the “best interest” of the children. Unfortunately, family law judges seem to

be clearly their dockets by use of the VLS.

With respect to these parents right to appellate review, Appellants

pointed out in their complaint that the “prefiling order” of the VLS

substitutes their constitutional right to appellate review under Cal. Article

VI, Section 11 with a cursory review by a single administrative judge who

determines if the “appeal” has merits. (Comp., ¶¶82-89). Prior to filing the

complaint, Appellants’ counsel had each class member file a section 391.8

motion to “vacate” their vexatious litigant order. Not surprising, each motion

was denied. In theory section 391.8 of the VLS may seem valid, but in

practice it is applied unconstitutionally to deny access to appellate review.

G. The VLS As Applied to Custody Disputes Is Not Narrowly Drawn.



Deputy Attorney General Li reasserts all the “narrowly drawn” ruling

of decisions that were made in the context of civil suits, not custody suits.

She merely repeats the holdings without explaining why they should also

apply to “custody cases.” (ABD, pg. 34, ¶2). She quotes Lucket v. Panos

(2008) 161 Cal. App. 4th 77, 80, which ruled, “[B]eing narrowly draw,

California’s vexatious litigant statute allows a vexatious litigant to continue

to file lawsuits.” This statement reads less like a reasoned conclusion and

more like a tautology. As applied, and as noted above, the class member

here have only been allowed to file MC-701 forms requesting the right to

file. However, they are routinely and almost categorically denied the right to

file any pleadings. For the AG to suggest that the VLS “is akin to a licensing

or permit system” (ABD, pg. 34) may work for getting a fishing license or a

rectal examine but it has no place as an “exclusive precondition” for the

“adjustment of the fundamental relationship” between a parent and child.

There are numerous ways that the VLS could be dialed back so as not

to inference with the class member’s fundamental rights for the care and

custody of their children. First, the unconstitutional infringement of the VLS

could be cured simply by limiting its reach, by preventing its application in

the context of custody cases.



Second, the state of California could provide “representation” to

parents in custody disputes just as it provides lawyers in juvenile

dependency cases when termination is threatened. In her final

recommendations10 of the Elkins Task Force, Chairperson Judge Laurie

Zelon recommended that more fees be made available. She also

recommended that trial courts make “fee awards” under Family Code

section 2030 to “level the playing field.” Likewise, in calling for a task force

in Elkins v. Sup. Ct., 41 Cal. 4th 1337, fn 20, Chief Justice George said that

“special treatment” should be given to the 82% of family law litigants who

act “in propria persona.” Making fees available is rational, while denying

parents access for not having funds to hire an attorney is not rational, it’s

unfair, unconstitutional, and essentially vindictive.

Third, family law courts have broad discretion and family law judges

could require a parent to have pleadings reviewed in the “Self-Help Centers”

that are now provided in most if not all superior courts. The staff and

attorneys could review the pleadings as an alternative to “prefiling orders”

and make recommendations and editorial changes. They could also offer

advisory declarations on the custody dispute.

10 http://www.courts.ca.gov/documents/elkins-finalreport.pdf



A fourth alternative was suggested by Chairperson Zelon in her final

recommendations. She recommended that the family law judge be provided

greater “instruction” on family law matters so that they are up to speed on

the law after being “rotated” into family law courts. Well-prepared, the

judges could better fashion and issue rulings based on a firm understanding

of the law instead of “faking it until they make it.” In the same way, the

Self-Help Centers could provide “tutorials” on family law issues so that

parents would be better-informed of their rights and the mechanics of filing.

CONCLUSION

For the reasons stated, Appellants request that their class action be

remanded to the district court with directions that the violations of their

fundamental custody rights be reviewed by the strictest scrutiny.

Respectfully submitted,

s/Archibald Cunningham

_____________________

Archibald Cunningham, Esq. Attorney for Appellants Dated: 3/10/14



Certificate of Compliance under Circuit Rule 32-4

In compliance with this Court’s page limitation, this reply

brief is proportionately spaced, has a typeface of 14 points, and contains

5488 words.

Respectfully submitted this 10 day of March, 2014.

:s/Archibald Cunningham Counsel for Appellants/Plaintiffs



Certificate of Service

I hereby certify that on March 10, 2014 I electronically filed the

foregoing with the Clerk of the Court for the United States Court of Appeals

for the Ninth Circuit by using the appellate CM/ECF system. I certify that

all participants in the case are registered CM/ECF users and that service

will be accomplished by the appellate CM/ECF system.

s/Archibald Cunningham


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