Petition for Writ of Certiorari — Charles G. Kinney, Petitioner v. Tani G. Cantil-Sakauye, et al.
Supreme Court briefFeb 4, 2019
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IN THE
SUPREME COURT OF THE
UNITED STATES
A
CHARLES G. KINNEY,
Petitioner,
V.
TANI G. CANTIL-SAKAUYE; et al.,
Respondents,
+
On Petition For Writ Of
Certiorari To The
Ninth Circuit Court of Appeals
#18-15964 (11/7/18 denial of right
to proceed with appeal) F2 of 21
U.S. District Court, Northern
District of Calif. (San Francisco)
#3:18-cv-01158-VC
PETITION AND APPENDIX FOR
A WRIT OF CERTIORARI
A
CHARLES KINNEY
Petitioner in pro se
5826 Presley Way
Oakland, CA 94618
charleskinney@hotmail.com
Telephone: 510-654-5133
Fax: 510-594-0883
FIL5
FEB 042019
QUESTION PRESENTED
Calif. vexatious litigant law is unconstitutionally
vague on its face. The language is unclear as to:
(a) what is "litigation"; (b) what has or doesn't
have "merit"; (c) what are "reasonable expenses"
that must be posted for "security"; (d) what can be
counted as 5 losses; (e) how far back is 7 years;
and (f) which "presiding" justice can rule on this.
The statute only applies to plaintiffs "in propria
persona", but it has been applied to non-parties, to
defendants, and to attorneys for defendants and
for plaintiffs by judges who decided each was also
a "vexatious litigant" ("VL"). In each role above,
Kinney has been penalized: (1) without testimony
under oath as to the VL criteria; and (2) without
allowing him a chance to complete any appeals.
The VL statute requires 5 out of 7 losses during a
period of 7 years, but that can occur in 1 case with
6 defendants since Calif requires an appeal in 60
days for each dismissed defendant. A plaintiff can
"lose" against 5 defendants, but "win" the case
against the 6th defendant and still be called a VL.
Kinney filed a facial and as-applied challenge to
VL laws that was dismissed sua sponte; and his
appeal was not allowed to proceed. This continues
10+ years of retaliation by: (1) refusing to correct
COA rulings that are directly-inconsistent: (2)
mislabeling Kinney as a VL in state and federal
courts; (3) dismissing his cases sua sponte, and (4)
dismissing his appeals before any are completed.
Why can't Kinney get any 1st Amendment rights?
I
PARTIES TO THE PROCEEDINGS
The parties to this proceeding are those
appearing in the caption to this petition.
TABLE OF CONTENTS
QUESTIONS PRESENTED .............i
PARTIES TO THE PROCEEDINGS .....ii
TABLE OF CONTENTS ...............iii
INDEX TO APPENDICES ..............v
TABLE OF AUTHORITIES .............vi
PETITION FOR WRIT OF CERTIORARI. .1
OPINIONS BELOW ...................26
JURISDICTION ......................26
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .............27
STATEMENT OF THE CASE ...........27
SUMMARY OF LOWER COURT
PROCEEDINGS ......................28
STATEMENT OF FACTS ...............28
REASONS FOR GRANTING THE
WRIT OF CERTIORARI ................29
Certiorari Should Be Granted Because Both State
and Federal Courts Continue to Violate Federal
Law Which Violates Kinney's First Amendment
Rights; And The Method and Application of
Alleged Due Process by the Ninth Circuit Severely
111
Impairs Meaningful Review of Important
Questions of Federal Law; And Severely Impairs
Rights Guaranteed Under the First, Fourth, Fifth
and Fourteenth Amendments; and Is In conflict
with the Decisions of This Court and Other
United States Court Of Appeals ..........29
CONCLUSION .......................33
APPENDIX
iv
INDEX TO APPENDIX
Sequential No.
In Document
Appendix numbers at top of page
Appendix A: Nov. 7, 2018 "final" decision by the
Ninth Circuit which denied Kinney's right to
proceed with his appeal by dismissing it .....1
Appendix B: March 9, 2018 order by US District
Court Judge Vince Chhabria dismissing Kinney's
complaint with 11 U.S.C. Sec. 524 claims based on
four (4) factors which do not apply ..........3
Appendix C: April 25, 2018 order by US District
Court Judge Vince Chhabria denying Kinney's
motion to vacate the dismissal order ........5
V
CASES
TABLE OF AUTHORITIES
Airlines Reporting Corp. v. Renda,
177 Cal.App.4th 14 (Cal. 2009) ......33
American Ry. Express Co. v. Levee,
263 U.S. 19 (1923) ..............27
Bauer v. Texas
341 F.3d 352 (5th Cir. 2003) .....15, 30
BE & K Constr. Co. v. NLRB,
536 U.S. 516 (2002) ..............31
Boddie v. Connecticut,
401 U.S. 371 (1971) ..............20
Bosse v. Oklahoma,
580 U.S.
137 S.Ct. 1 (2016) .....33
,
Bracy v. Gramley,
520 U.S. 899, (1997) .............32
Broadman v. Comm. on Jud. Perf.,
18 Ca1.4th 1079 (Cal. 1998) ........5
Bulloch v. United States,
763 F.2d 1115 (10th Cir. 1994). .....33
Canatella v. State of California
304 F.3d 843 (9th Cir. 2001)... 15,30
.
Citizens United v. Fed. Election Comm.,
558 U.S. 310 (2010) ............4
vi
Cohen v. California,
403 U.S. 15 (1971) ...............27
Colorado River Water Conserv. Dist. v. US,
424 U.S. 800 (1976) ...............33
De Long v. Hennessey,
912 F.2d 1144 (9th Cir. 1990) ........2
Devereaux v. Abbey
263 F.3d 1070 (9th Cir. 2001)..
.
.
15,30
Dist. of Columbia Ct. of App. v. Feldman,
460 U.S. 462 (1983) ...........7, 12
Dodds v. Comm. on Judicial Perf.,
12 Cal.4th 163 (Cal. 1994) .........5
Donovan v. City of Dallas,
377 US. 408 (1964) ..............14
Evans v. Fraught,
231 Cal.App.2d 698 (Cal. 1965)... 22
Exxon Mobil v. Saudi Basic Indust.,
544 U.S. 280 (2005) .............6
Fink v. Shemtov,
180 Cal.App.4th 1160 (Cal. 2010)
..
17
F.T.C. v. Ticor Title Ins. Co.,
504 U.S. 621 (1992) ............26
Fitzpartrick v. Bitzer.
427 U.S. 445 (1976) ............26
vii
Fowler v. Guerin,
899 F.3d 1112 (9th Cir. 2018) .......6
Goricalves v. Rady Child. Hosp. San Diego,
865 F.3d 1237 (9th Cir. 2017) ......13
Grannis v. Ordean,
234 U.S. 385 (1914) .............31
Griffin v. Illinois,
351 U.S. 12 (1956) ..............32
Hafer v. Melo
502 U.S. 21 (1991) ............15, 30
Hernandez v. Sessions,
872 F.3d 976 (9th Cir. 2017) .......30
Hooten v. H Jenne III,
786 F.2d 692 (5th Cir. 1986) ......30
In re Castellino Villas AKF, LLC,
836 F.3d 1028 (9th Cir. 2016) ......13
In re Gruntz,
202 F.3d 1074 (9th Cir. 2000) .......6
In re GVF Cannery v. Wells Fargo Bank,
202 B.R. 140 (N.D. CA. 1996) .......19
In re Isaacs,
895 F.3d 904 (6th Cir. 2018) .........33
In re Justices of Supreme Crt. of Pueto Rico
695. F.2d 17 (Pt Cir. 1982) ......25, 30
vu'
In re Kinney,
201 Cal.App.4th 951 (Cal. 2011)
.
.
.
4,24
In re Marino,
577 B.R. 772 (9th Cir. 2017) .........5
In re McLean,
794 F.3d 1313 (11th Cir. 2015) ......4, 33
In re Murchison,
349 U.S. 133 (1955) ..............32
In re Schwartz,
954 F.2d 569 (9th Cir. 1992) .........6
In re Thomas,
508 F.3d 1225 (9th Cir. 2007) ........28
Jameson v. Desta,
5 Cal.5th 594 (Cal. 2018) ............12
Janus v. Am. Fed. of State, Ctv & Muni. Empi,
585 U.S.
(2018) ...........15, 30
John v. Superior Court,
61 Cal.4t 91 (Cal. 2016) ............12
Johnson v. DeGrandy,
512 U.S. 997 (1994) ..............12
Johnson v. United States,
135 S.Ct. 2551 (2015) .............12
-
Kalb v. Feuerstein,
308 U.S. 433 (1940) ...............7
Ix
Keith v. Kinney,
961 P.2d 516 (Cob. App. 1997) .....25
Keith v. Kinney,
140 P.3d 141 (Cob. App. 2006) ......25
Kempton & Kinney v. City of Los Angeles,
165 Cal.App.4th 1344 (Cal. 2008)... 19
Kinney v. Clark,
12 Cal.App.5th 724 (Cal. 2017). 11, 19, 24
Kinney v. Keith,
128 P.3d 297 (Cob. App. 2005) ......25
Kinney v. Overton,
153 Cal.App.4th 482 (Cal. 2007).... 18
Kougasian v. TMSL, Inc.,
359 F.3d 1136 (9th Cir. 2004)........ 7
Lacey v. Maricopa County,
693 F.3d 896 (9th Cir 2012) .....17, 31
Levin Metals v. Parr-Richmond Term.,
799 F.2d 1312(9th Cir. 1986) ........21
Long v. Shorebank Develop. Corp.,
182 F.3d 548 (7th Cir. 1999) .......6, 9
McCarthy v. Madigan,
503 U.S. 140 (1992) ...............33
Michigan-Wisconsin Pipe Line v. Calvert,
347 U.S. 157 (1954) ..............27
x
Mojtahedi v. Vargas,
228 Cal.App.41} 974 (Cal. 2014). 12, 13
.
Moran v. Murtaugh Miller etc LLP,
40 Cal.41h 780 (Cal. 2007) .........12
NAACP v. Alabama ex rel. Flowers,
377 U.S. 288 (1964) .............31
Nat. Inst. of Fam. & Life Adv. v. Becerra,
585 U.S.
(2018) .........15, 30
Ogunsalu v. Superior Court,
12 Cal.App.5th 107 (Cal. 2017) .....18
Orner v. Shalala,
30 F.3d 1307 (loth Cir. 1994) .....4, 33
Patrick v. Burget,
486 U.S. 94 (1988)) ..............26
Pennhurst St. S. & H. v. Halderman,
465 U.S. 89 (1984) ...............26
Pennsylvania v. Union Gas Co.,
491 U.S. 1 (1989) ................26
Peralta v. Heights Medical Center,
485 U.S. 80 (1988) ...............31
Plaza Hollister Ltd. Ptsp v. Cty, of San Benito,
72 CaLApp.4th 1 (Cal. 1999) ........32
Riley v. Nat. Fed. of the Blind of NC, Inc.,
487 U.S. 781 (1998) ..........15, 30
xi
Ringgold-Lockhart v. Cty. of Los Angeles,
761 F.3d 1057 (9th Cir. 2014)... 2,12
Sinochem Intl. v. Malaysia Intl. Ship Corp.,
549 U.S. 422 (2007) ............. 7, 32
Sloman v. Tadlock,
21 F.3d 1462 (9th Cir. 1994).... 16, 30
Smith v. Bennett,
365 U.S. 708 (1961) ..............32
Soranno's Gasco, Inc. v. Morgan,
874 F.2d 1310 (9th Cir. 1989)... 16,30
State Univ. of New York v. Fox,
492 U.S. 469 (1989) ..............2
Supreme Ct. of Virginia v. Consumers Union
446 U.S. 719 (1980) ...........15, 25
United Mine Workers v. Illinois Bar Assn.,
389 U.S. 217 (1967) .............31
United States v. Burkhart,
682 F.2d 589 (6th Cir. 1982) ........25
United States v. Carbo,
572 F.3d 112 (3rd Cir. 2009) ........25
United States v. Frazier,
560 F.2d 884 (8th Cir. 1977) ........25
United States v. Frega,
179 F.3d 793 (9th Cir. 1999) ........25
xii
United States v. Hooten,
693 F.2d 857 (9th Cir. 1982) ........30
United States v. Inzunza,
638 F.3d 1006 (9th Cir. 2009) .......25
United States v. Murphy.
768 F.2d 1518 (7th Cir. 1985) .......30
United States v. Stephenson,
895 F.2d 867 (2nd Cir. 1982) ........25
Verizon Maryland v. Public Serv. Comm.
535 U.S. 635 (2002) ..............12
Williams v. Pennsylvania,
U.S.
136 S.Ct. 1899 (2016) .....13
-
,
Wolfe v. George,
486 F.3d 1120 (9th Cir. 2007) ........2
Wolfe v. Strankman,
392 F.3d 358 (9th Cir. 2004) ......3, 12
Zarcone v. Perry,
572 F.2d 52 (2nd Cir. 1978) .......30
CONSTITUTIONAL PROVISIONS AND
STATUTES
U.S. Const., Amend. I... 8, 14, 17, 29
U.S. Const., Amend. W .......... 29
U.S. Const., Amend. V ...........29
U.S. Const., Amend. XIV ......17, 29
U.S. Const., Article VI, Sec. 2 ......13
xlii
11 U.S.C. Sec. 524
. 4,15
11 U.S.C. Sec. 524(a). 1, 6, 9, 11, 12 etc
11 U.S.C. Sec. 524(a)(1). 1, 3, 4, 7-9 etc
11 U.S.C. Sec. 524(a)(2). 1, 3, 4, 8 etc
18 U.S.0 § 152 ............21, 27, 34
18 U.S.0 § 152(2) ...............34
18 U.S.0 § 152(3) ...............34
18 U.S.0 § 152(4) ...............34
18 U.S.0 § 152(5) ...............34
18 U.S.C. Sec. 157 ..............34
18 U.S.0 § 157(3) ...............34
18 U.S.0 § 158 ..................34
18 U.S.0 § 1346 and 1951..........25
28 U.S.0 § 1254 (1) and 1257(a) .....26
28 U.S.0 § 1331 and 1343 ........7, 27
28 U.S.C. Secs. 1441 and 1443
7,27
28 U.S.C. Sec. 1452 ............7, 27
28 U.S.C. Sec. 1651 ...............2
28 U.S.C. Sec. 1739 ...............6
28 U.S.0 § 2101(c) ...............26
.
..
.
42 U.S.C. Sec. 1983. 16, 21, 22, 26, 27, 30
Cal. B&P Code Secs. 6001.1 & 6031(b). 16
Cal. Civil Code Sec. 1717 .....5, 9, 22
Cal. Code of Civ. Proc. Secs. 391-391.8. 1
Cal. CCP Sec. 391.7 .............3
Cal. CCP Sec. 1033.5(a)(10) 5, 9, 22
.
.
30A Amer. Juris., Judgmts, 43, 44, 45. 7
.
MIA
PETITION FOR A WRIT OF CERTIORARI
Petitioner Charles Kinney requests that a writ of
certiorari issue to review the "final" Nov. 7, 2018
decision which denied him the right to proceed with
his appeal as to violations of the vexatious litigant
("VU) law AND of 11 U.S.C. Sec. 524(a)(1) and (2) in
his Ninth Circuit appeal #18-15964 (2 of 2) [Dk #2].
The only reason given in the dismissal by the Ninth
Circuit was that the appeal was "so insubstantial"
that Kinney could not proceed with it [App. A, 1].
Insubstantial vs. Substantial
The adverse economic impacts on Kinney of ongoing
violations of bankruptcy law exceed $500,000 due to
13+ "void" attorney fee orders for already-discharged
pre- and post-petition debts shifted onto Kinney by
Chapter 7 "no asset" discharged-debtor Michele Clark
and by her listed-unsecured-creditor attorneys David
Marcus etc (including the contract attorney Eric
Chomsky). That is not an "insubstantial" amount.
The bankruptcy law being violated [11 U.S.C. Sec.
524(a)] was created: (1) to enjoin the exact activity
that has been pursued by listed-unsecured-creditor
attorneys David Marcus etc.; and (2) to "void" any
resulting state or federal court attorney's fee awards
or orders, but all of the lower courts refuse to follow
the law. Those are not "insubstantial" issues.
The Vt law is being used as justification for allowing
listed-creditors Marcus etc to continue to violate
bankruptcy law against listed-creditors Kinney and
his co-buyer Kempton (now deceased), and to compel
silence upon them by denying their First Amendment
rights. Those are not "insubstantial" issues.
1
Vexatious litigant laws
The Calif. vexatious litigant ("VL") law is found at
Code of Civil Procedure ("CCP") Sees. 391-391.8. It
allows a Calif. court to make a person a VL when a
federal court has made that person a VL, but without
safeguards to keep a VL order from being overbroad.
State Univ. of New York v. Fox, 492 U.S. 469, 482486 (1989). In contrast to the "narrow" federal VL
orders, all Calif. VL orders are "broadly" applied.
The federal VL law arises from the All Writ Act (28
U.S.C. Sec. 1651) and under federal law all VL orders
must be "narrowly tailored" in scope. De Long v.
Hennessey, 912 F.2d 1144, 1146-1149 (9th Cir. 1990).
In Kinney's situation, the federal VL orders against
him are being "broadly" applied" to all of his cases
(e.g. to his Clean Water Act citizen-lawsuit cases).
Wolfe v. George, 486 F.3d 1120 (9th Cir. 2007) did
consider Cal. VL law, but not via a facial challenge.
In 2014, the constitutional framework of VL laws was
extensively clarified in Ringgold-Lockhart v. County
of LA, 761 F.3d 1057, 1060-1067 (9th Cir. 2014).
Since substantial changes have occurred to VL laws
(e.g. in 2011) after the Wolfe decision, and since the
Ringgold-Lockhart decision explains some issues of
the VL law that the Wolfe decision never considered,
the 2007 Wolfe decision is no longer controlling law.
The defendants
Tani G. Cantil-Sakauye, as the Chair of the Calif.
Judicial Council, and Victoria Cheney, as an "acting'
Presiding Justice (a term not mentioned in Calif. VL
law) of the Cal. Court of Appeal, Second App. Dist.,
2
are proper defendants for a facial challenge. Wolfe v.
Strankman, 392 F.3d 358, 362-366 (9th Cir. 2004).
Tani G. Cantil-Sakauye as the Chair of the Judicial
Council must respond when the Vt law is challenged.
Victoria Cheney was not the actual presiding justice
when she denied Kinney's right to appeal a state
court award of more attorney's fees to debtor Clark
for legal work by listed-creditor attorneys Marcus.
Rather, Ms. Cheney was a self-described "acting"
Presiding Justice, but the Vt law only applies to the
"actual" Presiding Justice in a Court of Appeal, not to
an "acting" one. CCP Sec. 391.7.
Kinney's complaint
On Feb. 22, 2018, Kinney filed a complaint in US
District Court, assigned #3:18-cv-01158-VC [EJSDC
Dk#1]. 42 U.S.C. Secs. 1983 and 1985.
Kinney's complaint had both facial and as-applied
(factual) challenges to the Vt law, and challenges to
ongoing violations of bankruptcy law. All the courts
and defendants continue to willfully ignore these
violations [e.g. of 11 U.S.C. Sec. 524(a)(1) and (2)].
As for his facial challenge to Calif. Vt law, Kinney
contends that every application of that VL law is
unconstitutional because it is hopelessly vague (e.g.
as to terms such as "litigation", "finally determined
against", "merit", "reasonable expenses" for security;
"presiding justice"); and because an "ongoing chill
upon speech that is beyond all doubt protected makes
it necessary in this case to invoke the earlier
precedents that a statute which chills speech can and
must be invalidated where its facial invalidity has
3
been demonstrated". Citizens United v. Federal
Election Commission, 558 U.S. 310, 331 (2010).
As for his as-applied (factual) challenge to the VL
law, Kinney contends the law was and is misapplied
to him, contrary to specific language and criteria of
the statute (e.g. because in 2008 Kinney was not a
party and, as an in pro se plaintiff, did not have 5 out
of 7 losses in the last 7 years; and because Kinney
was not a party in Dec. 2011 when In re Kinney was
issued by a "presiding justice" who did not have
subject matter jurisdiction to do so at that time).
As for the ongoing violations of 11 U.S.C. Sec. 524, it
is rare for a federal statute to say it "voids" a court
judgment, but that is exactly what 11 U.S.C. Sec.
524(a)(1) does. If that decision determines a 2010
Chapter 7 "no asset" discharged-debtor still has some
"personal liability" to a listed-unsecured creditor (e.g.
Marcus), that judgment, order or sanction is "void"
regardless of the rationale used to justify it.
Sec. 524(a)(1) "voids" any decision by any court that
decides a discharged-debtor is still "personally liable"
to a creditor. As to a "void" order, a collateral attack
or an appeal (de facto or not) is unnecessary; and the
Rooker-Feldman doctrine does not apply. Orner v.
Shalala, 30 F.3d 1307, 1309-1310 (10th Cir. 1994).
On the other side of the coin, 11 U.S.C. Sec. 524(a)(2)
prohibits listed unsecured-creditors from employing
any means to obtain any judgment, order or sanction
that determines (e.g. implies) a discharged Chapter 7
"no asset" debtor still has "personal liability" to any
creditor. In re McLean, 794 F.3d 1313, 1321-1325 (11th
Cir. 2015). Sec. 524(a)(2) is the discharge injunction
and it has different consequences than Sec. 524(a)(1).
For 8+ years, listed unsecured-creditor attorneys
Marcus etc have filed attorney fee motions on behalf
of a client, discharged Chapter 7 "no asset" debtor
Clark, based on pre-petition contracts, with help from
contract attorney Chomsky. Their goal was to shift
both pre- and post-petition attorney's fees incurred by
debtor Clark onto listed unsecured-creditors Kinney
and Kempton, co-buyers of Clark's house in 2005, but
Sec. 524(a)(2) absolutely prohibits those motions. In
re Marino, 577 B.R. 772, 782-784 (9th Cir. 2017).
The dockets from cases in state and federal courts
show that courts keep issuing decisions that concede
(admit) discharged-debtor Clark is still liable to
listed-creditor Marcus for legal work. When attorney
Marcus flies an attorney's fee "cost" motion to shift
Clark's legal bills onto Kinney, creditor Marcus
concedes (admits) discharged-debtor Clark still has
"personal liability" to him. Cal. Civil Code Sec. 1717;
Cal. Code of Civil Procedure Sec. 1033.5(a)(10).
For the 13+ attorney fee orders, the state courts were
engaging in willful judicial misconduct. Dodds v.
Commission on Judicial Performance, 12 Cal.4th 163,
166-172 (Cal. 1994); Broadman v. Comm. on Judicial
Performance, 18 Cal.4th 1079, 1091-1113 (Cal. 1998).
Defendants were timely served but never appeared.
USDC dismissal order
On March 9, 2018, USDC Judge Vince Chhabria
entered a sua sponte dismissal order for Kinney's
complaint [Dk #6; App. B, 3] and judgment [Dk #71.
In his dismissal order [App. B, 3], Judge Chhabria
justified his order by saying: (1) Kinney's complaint is
a "de facto appeal" of state court decisions; (2) any
5
additional issues are "inextricably intertwined" with
state court decisions; (3) the district court is "without
subject matter jurisdiction"; and (4) no amendment
"could cure" the defects. Judge Chhabria linked this
order to USDC case #3:17-cv-07366-VC (Ninth Cir.
#1845805), for which a separate petition is being
filed in this Court at the same time as this petition.
Kinney is challenging "void" orders that were issued
contrary to 11 U.S.C. Sec. 524(a) {pçj that have
resulted in a "taking" of Kinney's property], so the
civil rights complaint filed by Kinney cannot be a
defacto appeal because no appeal is necessary from a
"void" order and because full faith and credit cannot
be given to a "void" order. 28 U.S.C. Sec. 1739.
This is a "federal claim alleging a prior injury
that a state court failed to remedy" [e.g. based on
11 U.S.C. Sec. 524(a); and the "taking" of Kinney's
property without due process]. Fowler v. Guerin, 899
F.3d 1112, 1118-1119 (9th Cir. 2018); Exxon Mobil
Corp. v. Saudi Basic Industries Corp., 544 U.S. 280,
284 (2005); Long v. Shorebank Development Corp.,
182 F.3d 548, 554-561 (7th Cir. 1999); In re Schwartz,
954 F.2d 569, 572 (9th Cir. 1992).
Kinney's complaint is not, an appeal of a legal wrong
committed by a state court because the state court
never considered the 11 U.S.C. Sec. 524(a) restraints;
and because bankruptcy law completely overrides
and preempts state law. In re Gruntz, 202 F.3d 1074,
1078-1084 (9th Cir. 2000). A state court can issue a
"final" fee award order, but that order is still "void".
Likewise, any "void" orders cannot be "inextricably
intertwined" with any valid state decisions because a
void order is not accorded any dignity in the judicial
rel
system, and can be attacked without violating the
Rooker-Feldman doctrine. Sinochem Intern. Co. v.
Malaysia Intern. Shipping Corp., 549 U.S. 422, 430431 (2007); Kalb v. Feuerstein, 308 U.S. 433, 438, 60
S.Ct. 343, 345-46, 84 L.Ed. 370 (1940); Kougasian v.
TMSL, Inc., 359 F.3d 1136, 1141 (9th Cir. 2004); 30A
Amer. Jurisprud., Judgments, Secs. 43, 44, 45 (1958).
As an aside, the Rooker-Feldman doctrine and other
preclusionary rules do not apply to a facial challenge
of the Calif. VL law which was part of Kinney's civil
rights complaint. District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 482-488 (1983).
As for subject matter jurisdiction, this district court
is the proper and only place to challenge state court
orders which are "void" per 11 U.S.C. Sec. 524(a)(1).
28 U.S.C. Secs. 1331, 1343, 1441, 1443, and/or 1452.
USDC denial order
On April 25, 2018, USDC Judge Chhabria denied
Kinney's motion to vacate [Dk #15; App. C, 5].
In his denial order [App. C], Judge Chhabria justified
his order by saying that "the issues raised remain
inextricably intertwined with state court decisions"
[App. C, 5].
Since all state court fee awards in favor of Clark were
"void" after July 2010 (e.g. because those decisions
had to presume that discharged-debtor Clark was
still "personally liable" to her listed unsecuredcreditor attorneys Marcus), there is nothing that
could be "inextricably intertwined" with a valid order.
On May 24, 2018, Kinney filed an appeal to the Ninth
Circuit [USDC Dk #16].
7
Ninth Circuit dismissal
On June 1, 2018, the Ninth Circuit filed an order
based on its overbroad pre-filing VL order in Ninth
Circuit #17-80256 to consider whether it would allow
Kinney's appeal to proceed [Ninth Cir. Dk #2]. This
is an example of overbroad VL pre-filing order being
used to prejudice Kinney's First Amendment rights.
On Nov. 7, 2018, the Ninth Circuit denied Kinney the
right to proceed with his appeal [Ninth Cir. Dk #5] by
arguing that the appeal was "so insubstantial" that
Kinney was not going to be allowed to proceed. As
noted herein, there was nothing "insubstantial" about
Kinney's appeal as to willful judicial misconduct.
This ruling was done to "silence" Kinney without due
process and in violation of Kinney's First Amendment
rights, so Kinney could not complain about ongoing
violations of bankruptcy law and about the ongoing
misapplication of VL laws against him. [App. A, 1]
Based on these and similar decisions occurring from
2012 onward (for which this Court has yet to take
action), Kinney is filing this petition because federal
courts continue to ignore the ongoing violations of
bankruptcy law by listed-creditor attorneys Marcus
etc that are enjoined under 11 U.S.C. Sec. 524(a)(2);
and continue to ignore the automatic voiding of any
state or federal court attorney's fee award orders in
favor of Clark under 11 U.S.C. Sec. 524 (a)(1).
Kinney's complaint is not a de facto appeal of a state
judgment or order because no "valid" judgment or
order exists as to any post-petition attorney's fee
award for legal work done by attorney Marcus for
debtor Clark due to 11 U.S.C. Sec. 524(a)(1).
Kinney's complaint is a "federal claim [via 11 U.S.C.
Sec. 524(a)] alleging a prior injury that a state court
failed to remedy". Long v. Shorebank Development
Corp., 182 F.3d 548, 554-555 (7th cir. 1999).
Each time listed-creditor attorneys Marcus etc file a
motion for attorney's fees on behalf of discharged
debtor Clark, they admit (e.g. concede) that 11 u.s.c.
Sec. 524(a)(2) is being violated because they have to
affirm or declare, as part of their motion, that
Clark still has "personal liability" to them under a
2007 hourly-fee retainer and has obligations under a
2005 real estate purchase contract with Kinney. Cal.
Civil Code Sec. 1717; CCP Sec. 1033.5(a)(10).
Of course, Michele Clark has no such obligations to
any creditor as a discharged chapter 7 "no asset"
debtor, so 11 U.S.C. Sec. 524(a)(2) applies.
Each time a state or federal court awards attorneys
fees to Clark and her listed creditor attorneys Marcus
etc, they admit (e.g. concede) that 11 U.S.C. Sec.
524(a)(2) is being violated by listed creditor attorneys
Marcus etc, so those courts knew or should have
known that all of their attorney fee award orders
were "void" under 11 U.S.C. Sec. 524(a)(1).
The judges and justices who have issued, affirmed or
ignored the orders, judgments or sanctions against
Kinney or co-buyer Kempton that were known to be
"void", or to be based on prior "void" orders, under
Sec. 524(a)(1) or (2) include but are not limited to:
(a) Los Angeles County Superior Court Judge
Barbara Scheper in #BC354136 (Clark's lack of title
vs. her unrecorded easement to neighbor Cooper) and
Judge Steven Kleifield in #BC374938 (Clark's fraud);
sJ
Cal. Court of Appeal, Second Appellate
District, Justices Roger Boren, Frances Rothschild,
Victoria Cheney, and Jeffrey Johnson;
Alameda County Superior Court Judge Delbert
Gee in Kimberly Kempton's estate #RP13686482;
US Bankruptcy Court, Central Dist. of Cal.,
Judges Richard Neiter and Barry Russell;
US District Court Judges Philip S. Gutierrez,
Edward Chen, and Vince Chhabria (and others);
Ninth Circuit Judges Bea, Bybee, Gould, Levy,
Owens, Paez, Silverman, Thomas, and Wallace (and
others); and
Justices of this Court (e.g. due to inaction).
COA Justice Jeffrey Johnson is the same Justice who
was named in a 1/4/19 Calif. Commission on Judicial
Performance's Notice of Formal Proceedings, but his
harassment has occurred for 1+ decades and is well
documented for 1+ decades, but only now is it being
made public. The Justice's Answer was filed 1/22/19.
That shows a "code of silence" exists in the Cal. COA.
Due to 9+ years of inaction by the Calif. Comm. on
Jud. Performance, there were numerous clerks, staff
and others who were harassed by Justice Johnson
when that should have been stopped long ago.
Likewise, Ninth Circuit Judge Alex Kozinski had
been harassing staff and others for 3+ decades, and it
was well documented for 3+ decades (and ignored by
the Third and Ninth Circuits), but only recently was
it made public. Judge Kozinski retired in Dec. 2018.
That shows a "code of silence" exists in the Ninth
Circuit. This is probably why the investigation by
Supreme Court Justice John Roberts turned up no
"official" complaints (even though 480 former judicial
10
clerks and 83 current clerks had complained in a
letter about how misbehavior complaints against
judges were being processed and handled).
As noted in Kinney's other petitions to this Court,
Calif. Court of Appeal, Second Appellate District,
Division One ("COA2") Justices Frances Rothschild,
Victoria Cheney and Jeffrey Johnson have willfully
and consistently ignored the application of 11 U.S.C.
Sec. 524(a)(1) and (2) in all matters involving listed
creditor Charles Kinney with respect to 2010 Chapter
7 "no asset" discharged debtor Michele Clark and her
listed unsecured creditor attorneys David Marcus etc.
For example, these COA2 Justices decided an appeal
in 2017 against Kinney and in favor of Clark which
clearly shows in the text of the published opinion that
they and others were and still are ignoring the
ongoing violations of 11 U.S.C. Sec. 524(a); see
Kinney v. Clark, 12 Cal.App.51h 724 (Cal. 2017).
As mentioned in Kinney's prior petitions filed with
this Court (e.g. SCOTUS #18-906 and 18-908):
Kinney was listed as an unsecured creditor in
Clark's 2010 Chapter 7 bankruptcy along with
creditors David Marcus [Clark's attorney] and Kim
Kempton [Kinney's business partner and co-buyer of
Clark's Los Angeles property in 2005 in which Clark
willfully concealed adverse development restrictions
on a house and garage during contract negotiations];
by filing attorney's fee motions in state court
after 2010, listed-unsecured-creditor David Marcus
etc has admitted that discharged-debtor Clark still
has "personal liability" to them, so the injunction in
11 U.S.C. Sec. 524(a)(2) clearly applies; and
11
(C) attorneys David Marcus etc have never
proven the validity of the 2007 hourly-fee retainer
with client Michele Clark in state courts which
contained an attorney's or charging lien and thus an
automatic conflict-of-interest between attorney
Marcus and client Clark. Mojtahedi v. Vargas, 228
Cal.App.4th 974 (Cal. 2014).
Kinney's complaint included facial and as-applied
challenges to the VL laws; and challenges to motions
for attorneys fees and awards that violate 11 U.S.C.
Sec. 524(a). Rooker-Feldman does not apply to a
"facial" challenge by a "non-party", or to a judge or
justice taking an executive or evaluative action
rather than adjudicating in a judicial capacity. Wolfe
v. Strankman, 392 F.3d 358, 362-366 (9th Cir. 2004);
Verizon Maryland Inc. v. Public Service Commission,
535 U.S. 635, 644 n. 3 (2002); Johnson v. DeGrandy,
512 U.S. 997, 1006 (1994); District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462, 482-488 (1983);
Ringgold-Lockhart v. County of Los Angeles, 761
F.3d 1057, 1061-1067 (9th Cir. 2014).
Cal. VL laws were changed as of Jan. 1, 2012 to allow
a "presiding justice" like COA Admin. Pres. Justice
Roger Boren to perform an "evaluative function" to
determine the "merits" of an appeal without taking
evidence, and to set only what is a "reasonable"
amount as "security" for fees to defend that specific
appeal. Moran v. Murtaugh Miller Meyer & Nelson,
LLP, 40 Cal.4th 780, 785-786 (Cal. 2007); Jameson v.
Desta, 5 Cal.5th 594, 599 (Cal. 2018); John v. Superior
Court, 61 Cal.4th 91, 93-95 (Cal. 2016).
No federal case has addressed the unconstitutional
vagueness of the current Calif. VL law. Johnson v.
United States, 135 S.Ct. 2551, 2557-2563 (2015)12
Kinney's complaint included ongoing violations of
bankruptcy law by listed-creditor attorneys Marcus
etc since all post-petition legal work for debtor Clark
is deemed to be fully-discharged pre-petition
debt in Clark's Chapter 7 "no asset" case. Here, 11
U.S.C. Sec. 524(a) clearly applies to motions for more
attorney's fees and the resulting fee awards in favor
of debtor Clark. In re Casteffino Villas, A.K.F. LLC,
836 F.3d 1028, 1033-1037 (9th Cir. 2016).
Kinney's complaint included ongoing violations of
state law by attorneys Marcus who had a 2007
hourly-fee retainer with client Clark containing an
attorney's or charging lien clause since Marcus had
never filed the required declaratory relief action
against Clark to prove the validity and enforceability
of the 2007 hourly-fee retainer and the charging lien
which created an the automatic conflict-of-interest
between a client and her counsel. Goncalves v. Rady
Children's Hospital San Diego, 865 F.3d 1237, 1255 fn.
5 (91h Cir. 2017) [citing "Mojtahedi v. Vargas, 228
Ca1.App.4th 974, 176 Cal.Rptr.3d 313, 316 (2014)"].
In the Calif. courts [i.e. Los Angeles Superior Court
("LASC") and Court of Appeal ('COX')], the judges
and justices operate on a collaborative basis with
respect to punishing Kinney, so Kinney has been
unable to determine which judges and justices should
be disqualified. Williams v. Pennsylvania, U.S.
136 S.Ct. 1899 (2016); Fourteenth Amendment. As a
result, Kinney is unable to obtain an impartial judge.
-,
Here, the federal courts are punishing Kinney and
allowing penalties to be imposed on him in the state
courts simply because he is exercising his federal
rights under the Fifth Amendment. That violates the
Supremacy Clause. U.S. Const. Art. VI, Sec. 2.
13
Here, the state courts continue to punish Kinney for
conducting litigation in federal court (including the
bankruptcy court) that a federal court itself does not
penalize. Donovan v. City of Dallas, 377 U.S. 408,
412-414 (1964). That violates the Supremacy Clause.
With a cursory examination of the facts and dockets,
it can be shown that Kinney is not a VL because he
did not meet any of the VL criteria under the Cal. or
federal VL laws in 2008, 2011, 2016, 2017 or 2018.
Kinney was subjected to systematic retaliation for
being in the wrong place at the wrong time (e.g. when
LASC Judge Elizabeth Grimes wanted to be elevated
to a Justice in COA, Second App. Dist., but she had
made 2 directly-inconsistent rulings in Kinney's case
BC354136, as affirmed in B200893 and B208943).
That retaliation continues to this day.
Kinney had to file numerous petitions after it became
obvious that Clark's unsecured-creditors Marcus etc
would continue to violate 11 U.S.C. Sec. 524(a)(2).
Those violations of Sec. 524(a)(2) continue to this day.
Kinney recently filed petitions with this Court based
on more violations of the same laws [#18-509, 18504, 18-510, 18-515, 18-508, 18-516 and 18-517]; all
were denied. Kinney then filed petitions with this
Court based on even more violations of the same
laws [#18-906 and 18-908]; those are pending.
Recently, this Court clarified that "professional speech"
is just as broadly protected as "free speech" and when
a group compels speech or silence it violates one's First
Amendment rights. However, this Court has never
allowed Kinney to benefit from, or be protected by,
that recent clarification of the law.
14
Here, the decisions compel silence so that property
owner Kinney cannot pursue his claims to redress
violations of his federal constitution and civil rights by
Judges and others who act as prosecutors under color
of authority, rather than acting as neutral arbitrators
of disputes. Janus v. American Federation of State,
County and Municipal Employees, Council 31, 585
U.S.
(2018); National Institute of Family and Life
Advocates v. Becerra, 585 U.S.
(2018); Supreme
Court of Virginia v. Consumers Union, 446 U.S. 719,
736 and n. 15 (1980); Hafer v. Melo, 502 U.S. 21, 25-31
(1991); Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th
Cir. 2001); Canatella v. State of California, 304 F.3d
843, 847-854, n. 6 and 14 (9th Cir. 2002); Bauer v.
Texas, 341 F.3d 352, 356-360 (5th Cir. 2003).
-
-
The difference between compelled speech and
compelled silence has no constitutional significance
when applying the First Amendment's guarantee of
"freedom of speech" to all citizens which includes the
decision(s) by Kinney of both what to say and what
not to say. Riley v. National Federation of the Blind
of North Carolina, Inc., 487 U.S. 781, 796-797 (1988).
The penalties imposed on Kinney include compelled
silence; refusal to allow Kinney to file cases and
appeals in state and federal courts; and punishment
of attorneys hired by Kinney by imposing sanctions
on those attorneys even though there is no dispute
11 U.S.C. Sec. 524 applies after Clark filed her "no
asset" Chapter 7 bankruptcy in July 2010.
Janus applies to the "unified" Calif. State Bar which
requires all attorneys to pay for compelled speech
[e.g. as to what cases or appeals the Bar thinks have
"merit"; and what issues the Bar wants to promote or
not promote] and for compelled silence [e.g. because
15
of a Cal. Legislature's prohibition that the Bar cannot
"conduct or participate" in any "review" of a Justice
who rules against Kinney even if that Justice causes
public harm by his/her ruling, which means Cal. Bus.
& Prof. Code Sec. 6031(b) becomes 100% directlyinconsistent with Cal. Bus. & Prof. Code Sec. 6001.1].
Kinney was forced to sue the Judges who act as
prosecutors under color of authority, rather than act
as neutral arbitrators of disputes [or who ignore 11
U.S.C. Sec. 524(a)] to protect his civil rights and his
property. Thus, Kinney is being punished (e.g. via
disbarment by the Bar; via sanctions by Judges).
Many federal cases allow federal civil rights claims
against a state Judge or Justice under 42 U.S.C.
Secs. 1983 etc (e.g. Bauer, Consumers Union); or as a
Bivens claim against a federal Judge.
Federal civil rights and "facial" challenge cases are
not precluded by the Rooker-Feldman, res judiciata,
collateral estoppel, and/or defacto appeal doctrines
even though these claims may involve a state court
Judge or Justice who allegedly has sovereign and
judicial immunity [but not for "prospective injunctive
relief']. No contrary authority has ever been cited.
In 2013, USDC Judge Maxine Chesney (SF) ruled
that retaliation claims arise after the original
proceedings, so retaliation claims cannot have been
decided in a prior matter. Thus, Rooker-Feldman
and other preclusion doctrines would not apply. In
USDC No. 3:13-cv-01396 [Dk #43,.12/23/13], Judge
Chesney cited Sloman to support Kinney's retaliation
claims under 42 U.S.C. Sec. 1983. Sloman v.
Tadlock, 21 F.3d 1462, 1470 (9th Cir. 1994);
Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310,
16
1313-1320 (9th Cir. 1989); Lacey v. Maricopa County,
693 F.3d 896, 911-922 (9th Cir. 2012). Even so,
Kinney was still not allowed to proceed in that case.
NIFLA clarified regulations of "professional speech",
and gave it the same broad protection as given to
"free speech" under the 1st and 14th Amendments.
Professional speech can occur by an attorney or pro se
litigant when there is willful judicial conduct by state
court Judges or Justices, by Article I bankruptcy
judges, or (like here) by Article III federal judges.
Professional torts may be regulated [i.e. government
may define boundaries of legal malpractice claims],
but regulation of non-advertising, non-solicitation
"speech" is subject to a "strict scrutiny standard" of
review via Janus and NIFLA, but that was ignored.
All content-based laws (which would include the
unconstitutionally-vague Calif. "vexatious litigant"
laws) are presumptively unconstitutional and can
QiY be upheld if the government proves the laws are
narrowly tailored to serve a compelling state interest
(which was never shown by relevant facts, or proven
by law, as to Kinney) under Janus and NIFLA.
Professional speech by an attorney or pro se litigant
is being improperly penalized by unconstitutionallyvague vexatious litigant laws and is being improperly
applied to Kinney by Judges and Justices.
Given how Calif. counts losses under the VL law and
given that Calif. requires an appeal within 60 days of
whenever a defendant is dismissed, a plaintiff can
become labeled as a vexatious litigant in one case
with 6 defendants, but still "win" the case. Fink v.
17
Shemtov, 180 Cal.App.41h 1160, 1170 (Cal. 2010).
Calif. VL law also changes defendants into plaintiffs.
Ogunsalu v. Sup. Ct., 12 Cal.App.5th 107 (Cal. 2017).
A Judge's penalty (e.g. a VL order) is in addition to
the State Bar's penalty of suspension or disbarment.
This Court's opinions apply to the VL laws which are
being utilized by state and federal courts: (A) to
silence "professional speech"; and (B) to enforce their
will by the threat that attorneys or pro se litigants
will be prohibited [e.g. since 1 Judge can deny
permission] or limited [e.g. since 1 Justice can
require $175,000 in security to proceed with an
appeal; and 1 Judge can require $185,000 in security
to proceed with a case] from appearing in the courts.
It only takes 1 federal or state Judge to decide to
improperly label a pro se litigant or attorney as a
"vexatious litigant", and then other courts seem to
intentionally (or blindly) follow that first ruling.
Prior to 2008, Kinney had been improperly identified
as a "difficult" attorney or pro se litigant; see Kinney
v. Overton, 153 Ca1.App,4th 482 (Cal. 2007) wherein
Kinney was a "defendant" in the original case.
On Nov. 19, 2008, Kinney was labeled as "vexatious"
by LASC Judge Luis Lavin even though Kinney was
no longer a party in that fraud case as of Nov. 7, 2008
onward (as shown in the docket) and about which
Kinney was never allowed to appeal due to unilateral
dismissals by Cal. Court of Appeal Adm. Pres. Justice
Roger Boren from Jan. 2009 onward.
As part of the Nov. 2008 VL decision by Judge Lavin,
he counted cases against Kinney in which Kinney
18
was only the attorney and usually only the attorney
for a defendant. In May 2008, Judge Lavin refused to
rule that Kinney was a VL, but a "win" by Kinney
and his co-buyer Kempton in Aug. 2008 apparently
"changed" Judge Lavin's mind by Nov. 2008; see
Kempton and Kinney v. City of Los Angeles, 165
Cal.App.4t 1344 (Cal. 2008) [public nuisances per se].
On Dec. 8, 2011, Kinney was labeled as "vexatious"
by COA Justice Roger Boren even though Kinney was
never a named party or appellant; see In re Kinney,
201 Cal.App.4th 951 (Cal. 2011). Without supporting
evidence, Justice Boren labeled appellant Kempton
as Kinney's puppet. Justice Boren never considered
violations of bankruptcy law by debtor Clark and/or
creditor Marcus, so that is not authority as to those
violations. In re GVF Cannery, Inc. v. Wells Fargo
Bank, N.A., 202 B.R. 140,144 fn. 2 (N.D. CA. 1996).
In 2016, Kinney was labeled as "vexatious" by USDC
Judge Philip S. Gutierrez with respect to Kinney's
challenges to ongoing bankruptcy law violations by
discharged-debtor Clark and her "listed" unsecuredcreditor attorneys Marcus etc (including Chomsky).
In 2017, Kinney was labeled as "vexatious" by COA2
Justices Rothschild, Cheney and Johnson even
though he was specifically "listed" as a bankruptcy
"creditor" by debtor Michele Clark in her July 28,
2010 Chapter 7 bankruptcy petition, which they
ignored; see Kinney v. Clark, 12 Cal.App.5th 724
(Cal. 2017). Those Justices totally ignored all of the
ongoing bankruptcy law violations by debtor Clark
and her creditors Marcus; see In re GVF Cannery.
In 2018, Kinney was labeled as "vexatious" by the
Ninth Circuit in #17-80256 as to any new appeals.
19
From 2008 onward, all "vexatious litigant" rulings
against Kinney have been decided: (1) without using
a "strict scrutiny standard" of review; (2) without
fact finding by Judges or Justices via oral testimony
in open court under oath and with cross-examination;
(3) without balancing public benefits of Kinney's
litigation versus public harm of Kinney's litigation, if
any; and (4) without allowing Kinney the right to
appeal or have a review of these adverse rulings.
Boddie v. Connecticut, 401 U.S. 371, 382-383 (1971).
The Janus and NIFLA decisions clearly apply to the
Cal. State Bar, but also apply to the state and federal
courts that have compelled speech and/or silence
against litigant or attorney Kinney by the ongoing
misapplication of unconstitutionally vague "VL" laws.
The Ninth Circuit is attempting to compel silence
as to Kinney's First Amendment and federal civil
rights and as to ongoing bankruptcy law violations.
Kinney has attempted to pursue claims against
discharged-debtor Michele Clark and her listedcreditor attorneys David Marcus etc (and contract
attorney Eric Chomsky), all of whom intentionally
continue to violate Kinney's federal constitutional
and civil rights over the last 8+ years. Kinney also
has attempted to pursue claims against those in
positions of authority who acted as prosecutors under
color of law rather than as neutral arbitrators of
disputes, and those involved in rulings about Clark's
2010 Chapter 7 bankruptcy who continue to violate
the bankruptcy laws as to "listed" creditor Kinney.
From July 28, 2010 onward, Kinney's attempts to
pursue claims against those who have intentionally
and continually violated Kinney's rights as a listed
20
bankruptcy creditor in Clark's Chapter 7 bankruptcy
have been blocked even though some violators have
engaged in bankruptcy fraud. 18 U.S.C. Sec. 152
defines crimes with no private right of action, but the
acts can be predicate acts for a private action (e.g. a
RICO "enterprise" run by Marcus and Chomsky).
The lower courts continue to mislabel Kinney's
attempts under the First Amendment and 42 U.S.C.
Sec. 1983 to seek redress of grievances (e.g. as defacto
appeals; as precluded by Rooker-Feldman or other
similar doctrines like collateral estoppel or res
judicata and/or as meritless or frivolous claims).
Most courts have summarily or sua sponte dismissed
Kinney's claims or appeals. Many courts have tried
to silence Kinney by denying him the right to file
cases or appeals, or to remove improper state court
proceedings that violate 11 U.S.C. Sec. 524(a)(2).
Some refuse to rule on his counter-claims by ignoring
them (e.g. Judge Gutierrez). Levin Metals v. ParrRichm. Term., 799 F.2d 1312, 1315-16 (9th Cir. 1986).
The courts have been denying Kinney's attempts to
have reviews of rulings based on: (1) his vexatious
litigant status; (2) ignoring the injunction as to new
fee motions and the voiding of orders under 11 U.S.C.
Sec. 524(a); or (3) ignoring violations of bankruptcy
law (e.g. by listed-creditor Marcus). The rulings are
violations of Kinney's First Amendment rights to
"professional speech" and his federal civil rights by
compelling silence on him contrary to the Janus,
NIFLA, Riley, and Consumer Union decisions.
The courts ignore bankruptcy law violations, and
continue to punish creditor Kinney by declaring him
21
a \TL, sanctioning him, and awarding fees for postpetition legal work for discharged-debtor Clark by
listed-creditor attorneys Marcus etc based on prepetition contracts for work that is deemed to be
fully-discharged pre-petition debt. That violates
11 U.S.C. Sec. 524(a)(2) because debtor Clark would
still have to be "personally liable" to creditor Marcus.
Every time listed-creditor attorneys Marcus etc file a
motion for more attorney's fees after July 2010, they
violate 11 U.S.C. Sec. 524(a)(2) because attorney
Marcus must concede debtor Clark still has "personal
liability" for his post-petition legal work for her.
Every attorney's fee award issued in favor of debtor
Clark after July 2010 is "void" because of 11 U.S.C.
Sec. 524(a)(1) since that award has to be based on
debtor Clark's "personal liability" to her own listedcreditor attorneys Marcus etc. Cal. Civil Code Sec.
1717; Cal. Code of Civil Procedure Sec. 1033.5(a)(10).
The dismissals of Kinney's cases and appeals were
abuses of discretion because only the district courts
and Ninth Circuit can adjudicate: (i) federal civil
rights complaints under 42 U.S.C. Sec. 1983; and (ii)
violations of bankruptcy law [e.g. 11 U.S.C. Sec. 524].
Since 2008, Kinney has been repeatedly and unjustly
denied his right to appeal because he was mislabeled
as a VL. From 2008-2009, there were 100% directlyinconsistent decisions from COA2 by their blatant
misapplication of Evans v. Fraught, 231 Cal.App.2d
698, 705 (Cal. 1965) which they still refuse to correct
(see B200893; B208943; and B265267). In 2014, COA
Justice Boren ruled non-party Kinney was still a
party in LASC #BC374938 and imposed Clark's
discharged pre-petition debt on him (see B248713).
22
Each time Kinney went to the federal courts, RookerFeldman was used to dismiss his cases even though
he was not allowed to finish any state court appeals.
This Ninth Circuit panel knows that, if Kinney hires
an attorney to pursue his cases or appeals, they will
label that attorney as Kinney's "puppet" (without any
proof) and impose sanctions (as was done before).
This means Kinney cannot Obtain the services of an
attorney because no attorney wants to take that risk.
In March 2018, an attorney filed a complaint in the
USDC, Central District of Calif. (Los Angeles), Case
No. 2:18-cv-02136-RGK in which the history of willful
judicial misconduct by LASC Judges was described.
According to that complaint, a scheme was created in
the Los Angeles County Superior Court ("LASC") by
attorneys who acted as judges' "Court Counsel" (and
who previously represented LA County Sheriff Lee
Baca, now in prison). They were to identify and
silence certain attorneys and litigants who had been
deemed "difficult" by the judges. One was deemed to
be "difficult" if the judges were embarrassed by
successful challenges for disqualification, and/or by
frequent reversals of their trial court decisions.
As part of the scheme, honest judges in LASC were
kept silent about "difficult" litigants and attorneys by
threatening to give them "bad" judicial assignments
(e.g. by assigning them to traffic court) in the vast
Los Angeles County Superior Court system.
As part of the scheme, some state court judges were
promoted (e.g. Judge Grimes, Judge Lavin) to state
appellate court justices after their "win/loss" records
improved (e.g. by preventing appeals by Kinney).
23
As a result of the scheme, the "difficult" attorneys
and litigants would be unable to succeed in getting
the adverse decisions overturned. Sometimes fake
evidence would be created to impose punitive
measures on them. Sometimes disciplinary charges
would be brought by the Cal. State Bar to subject the
"difficult" attorneys to sanctions or disbarment. All
of this has happened to Kinney and his attorneys.
As part of the scheme, the Court Counsel and those
judges have expanded the unconstitutionally-vague
VL law to include attorneys [e.g. In re Kinney, 201
Cal.App.4th 951 (Cal. 2011) in an appeal in which
Kinney was never a party or appellant] and
represented litigants [e.g. Kinney v. Clark, 12
Cal.App.5th 724 (Cal. 2017) as to Kinney's attorneys]
without Legislative authority. Note that Kinney v.
Clark identifies bankruptcy law violations by debtor
Michele Clark; her listed-creditor attorneys David
Marcus etc; contract attorney Eric Chomsky; LASC
Judge Barbara Scheper; and COA2 Justices Frances
Rothschild, Victoria Chaney, and Jeffrey Johnson.
From 2008 onward, special retaliation and VL rules
have been applied to Kinney regardless of whether
Kinney was an in pro se litigant, an attorney for a
client (e.g. defendant), a defendant or a non-party.
By their ongoing acts, this Ninth Circuit panel has:
(1) denied Kinney his rights to appeal or seek
redress of grievances [e.g. for the pending appeals
involving bankruptcy law violations by discharged
Chapter 7 debtor Clark and her own attorneys; for
violations of the Clean Water Act in the ocean by
Laguna Beach; and for violations of the ADA due to
obstructed public rights-of-way in Los Angeles];
24
denied Kinney his inherent right to "honest
services" from state and federal judges [e.g. since
Judge Gutierrez refused to rule on Kinney's counterclaim that was based on bankruptcy law] and
interfered with Kinney's ongoing interstate
commerce under color of official right [e.g. since
Kinney owns property outside of Cal.; and has
suppliers of products and ongoing businesses outside
of Cal., which have been damaged by these rulings].
The acts by this panel violate 18 U.S.C. Sees. 1346
and/or 1951, and create new civil rights and/or RICO
claims (e.g. since Marcus and Chomsky ran a RICO
"enterprise"). See United States v. Inzunza, 638 F.3d
1006 (9th Cir. 2009); United States v. Frega, 179 F.3d
793 (91h Cir. 1999); United States v. Carbo, 572 F.3d
112 (3rd Cir. 2009); United States v. Stephenson, 895
F.2d 867 (2nd Cir. 1990); United States v. Burkhart,
682 F.2d 589 (6th Cir. 1982); United States v. Frazier,
560 F.2d 884 (8th Cir. 1977); In re Justices of
Supreme Court of Puerto Rico, 695 F.2d 17, 24 (1st
Cir. 1982); Supreme Court of Virginia v. Consumers
Union, 446 U.S. 719, 736 and n. 15 (1980).
As for Commerce Clause violations, when Kinney was
an attorney in Calif., he was granted pro hac vice
status in Colorado for cases on his mineral interests.
That operation is an ongoing interstate business.
Keith v. Kinney, 961 P.2d 516 (Cob. App. 1997);
Kinney v. Keith, 128 P.3d 297 (Cob. App. 2005);
Keith v. Kinney, 140 P.3d 141 (Cob. App. 2006).
On Jan. 19, 2018, the Ninth Circuit issued a global
pre-filing review order against Kinney in #17-80256.
Before the Jan. 2018 order, the Ninth Circuit knew
the entire history of the ongoing punishment and
retaliation against Kinney because these issues were
briefed by Kinney in the Ninth Circuit's reciprocal
disbarment matter #15-80090 with a hearing before
Appellate Commissioner Peter Shaw (who ignored all
ongoing violations of law). The oral proceedings were
transcribed and sent to the Ninth Circuit by Kinney.
OPINIONS BELOW
On Nov. 7, 2018, a three judge panel of the Ninth
Circuit dismissed Kinney's pending appeal because of
"insubstantial" issues. [Appendix A, 11] However,
over $500,000 in damages due to ongoing violations of
federal law clearly presents "substantial" issues.
That ruling violated Kinney's "federal" constitutional
rights (e.g First Amendment) and civil rights under
color of authority or official right (e.g. 42 U.S.C. Sec.
1983), so judicial immunity was eliminated with
respect to any "prospective" injunctive relief against
those judges. Fitzpatrick v. Bitzer, 427 U.S. 445, 448
(1976); Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 102-106, 123 n. 34 (1984); Patrick v.
Burget, 486 U.S. 94, 101-104 (1988); Pennsylvania v.
Union Gas Co., 491 U.S. 1, 57 (1989); F.T.C. v. Ticor
Title Ins. Co., 504 U.S. 621, 631-638 (1992).
JURISDICTION
The jurisdiction of this Court is invoked under the
provisions of Title 28, United States Code ("U.S.C."),
Secs. 1254(1), 1257(a), and/or 2101(c).
1 Citation method is Appendix ("App."), exhibit letter,
and sequential page number.
26
This Ninth Circuit panel has denied Kinney's First
Amendment rights with respect to bankruptcy law
violations and to overbroad applications of VL laws.
This panel has been compelling silence on Kinney,
and acting as prosecutors of Kinney under color of
official right, which has resulted in losses to Kinney's
interstate commerce businesses and his property, and
resulted in the loss of "honest services" from state
and federal courts. American Railway Express Co. v.
Levee, 263 U.S. 19, 20-21 (1923); Cohen v. California,
403 U.S. 15, 17-18 (1971); Michigan-Wisconsin Pipe
Line Co. v. Calvert, 347 U.S. 157, 159-161 (1954).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This Court has jurisdiction to address violations of
state and federal law by the state judicial courts (e.g.
Cal. Court of Appeal and Cal. Supreme Court), by the
U.S. District Courts, and/or by the Ninth Circuit.
Here, the federal courts had exclusive and original
jurisdiction under 28 U.S.C. Sec. 1331, 1343, 1441,
1443 and 1452, and under 42 U.S.C. Sec. 1983 etc, to
consider violations of federal constitutional rights
(e.g. First Amendment rights) and violations of other
federal laws [e.g. violations of the Commerce Clause;
of the "honest services" law; of the Hobbs Act; of 11
U.S.C. Sec. 524(a)(1) and (2); and/or of bankruptcy
fraud which is a crime under 18 U.S.C. Secs. 152 etc}.
Here, as has been done in the past, the Ninth Circuit
panel is willfully ignoring all of the substantial
issues being presented by Kinney's pending appeal.
STATEMENT OF THE CASE
27
This petition involves a Ninth Circuit panel who
summarily dismissing Kinney's ongoing appeal about
overbroad \TL laws and violations of bankruptcy law.
This panel is compelling silence on Kinney as to
ongoing bankruptcy law violations since Kinney was
a "listed" bankruptcy creditor who has been made
liable for over $500,000 in pre- and post-petition
attorney's fee awards based on pre-petition contracts
in favor of Chapter 7 discharged-debtor Clark.
SUMMARY OF LOWER COURT PROCEEDINGS
On Nov. 7, 2018, Kinney had a pending appeal that
was dismissed per In re Thomas (508 F.3d 1225), but
that does not apply to "void" orders under 11 U.S.C.
Sec. 524(a)(1) and ongoing violations of Sec. 524(a)(2).
Kinney's petition addresses: (1) ongoing retaliation
against him by forcing his silence and (2) ongoing
federal law violations to his detriment as a listedcreditor by "taking" his property (.g. over $500,000);
by damaging his interstate commerce businesses; and
by ignoring his rights as a specifically-named creditor
in Clark's 2010 Chapter 7 "no asset" bankruptcy.
STATEMENT OF FACTS
In July 2010, seller Michele Clark filed a Chapter 7
"no asset" bankruptcy petition, and listed Kinney as a
creditor. As a result, all pre-petition contracts (e.g.
the 2005 real estate purchase contract between seller
Clark and buyers Kinney etc; and 2007 hourly-fee
retainer between client Clark and attorneys Marcus)
were unenforceable. State courts have ignored the
facts and law, but conceded in Kinney v. Clark that
violations of 11 U.S.C. Sec. 524(a) have occurred.
28
As admitted in the 2017 state court opinion, after
Clark's bankruptcy in 2010 and discharge in 2012,
the state courts kept granting attorney's fee awards
to discharged-debtor Clark (against listed-creditor
Kinney) based on pre-petition contracts for postpetition legal work by attorney Marcus, which are
automatically void under 11 U.S.C. Sec. 524(a)(1).
Discharged- debtor Clark and her listed-unsecured
creditor attorneys Marcus etc continue to file state
court motions for fees based on pre-petition contracts
that are prohibited by 11 U.S.C. Sec. 524(a)(2).
On Nov. 7, 2018, Kinney's pending appeal in the
Ninth Circuit was dismissed by the panel [App. A, 1].
REASONS FOR GRANTING THE WRIT OF
CERTIORARI
Certiorari Should Be Granted Because Both
State and Federal Courts Continue to Violate
Federal Law Which Violates Kinney's First
Amendment Rights; And The Method and
Application of "Alleged" Due Process by the
Ninth Circuit Severely Impairs Meaningful
Review of Important Questions of Federal Law,
And Severely Impairs Rights Guaranteed
Under The First, Fourth, Fifth And Fourteenth
Amendments; And Is In Conflict With Decisions
Of This Court And Other United States Court
Of Appeals.
This Ninth Circuit panel (and both the district courts
and state courts) are compelling silence upon Kinney in
direct violation of the Janus, NIFLA and Riley
decisions and in direct violation of bankruptcy law
given Kinney's status as a "listed" creditor. [App. A, 1;
29
App. B, 3; App. C, 5] Janus v. American Federation of
State, County and Municipal Employees, Council 31,
585 U.S.
(2018); National Institute of Family and
Life Advocates v. Becerra, 585 U.S.
(2018); Riley
v. National Federation of the Blind of North
Carolina, Inc., 487 U.S. 781, 796-797 (1988).
-
-
This panel has acted as prosecutors of Kinney, not as
neutral arbitrators of disputes, when they dismissed
his appeal. This panel has violated Kinney's federal
constitutional and civil rights, the "honest services"
law, and the Hobbs Act. [App. A, 1; App. B, 3; App. C,
5] Supreme Court of Virginia v. Consumers Union,
446 U.S. 719, 736 and n. 15 (1980); Hafer v. Melo, 502
U.S. 21, 25-31 (1991); Devereaux v. Abbey, 263 F.3d
1070, 1074 (91h Cir. 2001); Canatella v. State of
California, 304 F.3d 843, 847-854, n. 6 and 14 (9th Cir.
2002); Bauer v. Texas, 341 F.3d 352, 356-360 (5th Cir.
2003); In re Justices of Supreme Court of Puerto Rico,
695 F.2d 17, 24 (1st Cir. 1982); United States v.
Murphy, 768 F.2d 1518, 1523-1539 (7th Cir. 1985);
Zarcone v. Perry, 572 F.2d 52, 54-57 (2nd Cir. 1978).
This panel's dismissal was retaliation against Kinney
(and similar to the In re Kinney and Kinney v. Clark
decisions). That caused irreparable injury to Kinney,
and to his property, interstate businesses, cases,
appeals, and clients. 42 U.S.C. Sec. 1983; Hernandez
v. Sessions, 872 F.3d 976, 994 (9th Cir. 2017).
This panel's acts were done to restrict Kinney's First
Amendment rights (e.g. as to his appeals), to restrict
his fair access to the courts, and to retaliate against
him. Hooten v. H Jenne III, 786 F.2d 692 (5th Cir.
1986); United States v. Hooten, 693 F.2d 857, 858 (9th
Cir. 1982); Sloman v. Tadlock, 21 F.3d 1462, 1470 (9th
Cir. 1994); Soranno's Gasco, Inc. v. Morgan, 874 F.2d
30
1310, 1313-1320 (911, Cir. 1989); Lacey v. Maricopa
County, 693 F.3d 896, 916 (9th Cir. 2012).
Kinney has the right "to petition the Government for
a redress of grievances" including a right to a review
by appeal which is being consistently denied to
Kinney without just cause in both state and federal
courts. That First Amendment Right is "one of the
most precious of the liberties safeguarded by the Bill
of Rights". BE & K Constr. Co. v. NLRB, 536 U.S.
516, 524 (2002) [quoting United Mine Workers v.
Illinois Bar Assn., 389 U.S. 217, 222 (1967)].
A standard of strict scrutiny should be applied to
procedural barriers made by rule or statute, as
applied in appellate courts, which chill or penalize
the exercise of First Amendment rights, and act to
limit direct review by a higher court.
"The
consideration of asserted constitutional rights may
not be thwarted by simple recitation that there has
not been observance of a procedural rule with which
there has been compliance in both substance and
form, in every real sense." NAACP v. Alabama ex rel.
Flowers, 377 U.S. 288, 297 (1964).
Fundamental to the Fourteenth Amendment's right
to due process of law is the opportunity to be heard.
Grannis v. Ordean, 234 U.S. 385, 394 (1914).
When a person is deprived of his rights in a manner
contrary to the basic tenets of due process, the slate
must be wiped clean in order to restore the petitioner
to a position he would have occupied if due process
had been accorded to him in the first place. Peralta
v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87 (1988).
31
Although a particular state is not required to provide
a right to appellate review, procedures which
adversely affect access to the appellate review
process, which the state has chosen to provide,
requires close judicial scrutiny. Griffin v. Illinois,
351 U.S. 12 (1956). This applies to all courts.
An appeal cannot be granted to some litigants and
capriciously or arbitrarily denied to others without
violating the federal Equal Protection Clause. Smith
v. Bennett, 365 U.S. 708 (1961).
Certiorari should be granted to provide guidance on
the method and manner in which the federal and
state courts apply, restrict or summarily deny the
right of access to the courts and force silence on
"difficult" attorneys and pro se litigants.
As to the acts of this panel of the Ninth Circuit, an
appearance of impropriety, whether such impropriety
is actually present or proven, weakens our system of
justice. "A fair trial in a fair tribunal is a basic
requirement of due process. In re Murchison, 349
U.S. 133, 136 (1955).
While claims of bias generally are resolved by
common law, statute, or professional standards of the
bench and bar, the Due Process Clause of the
Fourteenth Amendment "establishes a constitutional
floor." Bracy v. Gramley, 520 U.S. 899, 904 (1997).
This panel ignored that prior fee award orders were all
"void" (e.g. 11 U.S.C. 524); and "void" orders cannot
support subsequent decisions. Sinochem Intl. Co. v.
Malaysia Intl. Ship Corp., 549 U.S. 422, 430 (2007);
Plaza Hollister Ltd. Ptsp v. Cty of San Benito,72
32
Cal.App.4th 1, 13-22 (Cal. 1999); Airlines Reporting
Corp. v. Renda, 177 Cal.App.41h 14, 19-23 (Cal. 2009).
By their acts, this panel has ignored the: (1) adverse
impacts on Kinney as a listed-creditor in debtor Clark's
2010 Chapter 7 "no asset" bankruptcy; (2) the 11
U.S.C. Sec. 524 violations by listed-creditor Marcus; (3)
the adverse impacts on Kinney's interstate commerce
businesses; and (4) Kinney's right to be free from
retaliation, all of which is subject to review by federal
courts who have the obligation to determine the issues.
In re Isaacs, 895 F.3d 904, 910-911 (61h Cir. 2018)
[Rooker-Feidman doctrine does not apply when "a state
court interprets the discharge order incorrectly"; that
state court order is "void ab initio"]; In re McLean, 794
F.3d 1313, 1321-1325 (11th Cir. 2015) [discharge
injunction can be violated by creditor]; Builoch v.
United States, 763 F.2d 1115, 1121-1122 (10th Cir.
1994) ["fraud on the court" can occur because of false
statements]; McCarthy v. Madigan, 503 U.S. 140, 146
(1992); Colorado River Water Conservation District v.
United States, 424 U.S. 800, 817-818 (1976) [courts
must exercise the jurisdiction given to them];
The Bosse decision requires all courts to follow the
law, but no court has done that for the last 8+ years
as to listed creditor Kinney. Bosse v. Oklahoma, 580
U.S.
137 S.Ct. 1 (2016); Orner v. Shalala, 30 F.3d
1307, 1309-1310 (101h Cir. 1994) ["relief is not a
discretionary matter; it is mandatory"].
-,
CONCLUSION
This petition and all of the relief requested below
should be granted.
33
This Court should "void" all of the orders, judgments
and sanctions issued from July 28, 2010 onward in
favor of Chapter 7 "no asset" discharged-debtor
Michele Clark, listed unsecured-creditor attorneys
David Marcus etc, and/or their contract attorney Eric
Chomsky with respect to listed-creditors Charles
Kinney and/or Kimberly Kempton (his business
partner and co-buyer of Clark's property in 2005)
pursuant to 11 U.S.C. Sec. 524(a)(1).
This Court should declare that listed unsecuredcreditor attorneys David Marcus etc, and/or contract
attorney Eric Chomsky have been violating 11 U.S.C.
Sec. 524(a)(2) by repeatedly filing more motions for
attorney's fees after Clark filed a petition for a "no
asset" Chapter 7 bankruptcy on July 28, 2010.
This Court should refer this to the US Attorney's
Office and FBI via 18 U.S.C. Sec. 158 to investigate
whether "crimes" under Secs. 152 and/or 157 have
occurred due to the pre- and post-petition acts of
listed unsecured-creditor attorneys David Marcus etc
and/or their contract attorney Eric Chomsky.
Here, "crimes" could include willful acts by creditor
Marcus and Chomsky with respect to: (A) making
false oaths under 18 U.S.C. Sec. 152(2); (B) making
false declarations under 18 U.S.C. Sec. 152(3); (C)
presenting false claims under 18 U.S.C. Sec. 152(4);
(D) receiving material property from debtor Clark
under 18 U.S.C. Sec. 152(5); and/or (E) repeatedly
making false or fraudulent representations under 18
U.S.C. Sec. 157(3). All these "crimes" occurred here.
Dated: 1/28/19
By: /s/
Charles Kinney, in pro .se
34
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.