Petition for Writ of Certiorari — Charles Kinney, Petitioner v. Michele R. Clark

Supreme Court briefMar 4, 2019

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IN THE

SUPREME COURT OF THE

UNITED STATES

r FILED

MAR 04201$

OFFICE OF THE CWJ(

CHARLES KINNEY,

Plaintiffand Appellant,

LIM

MICHELE R. CLARK,

Defendant and Respondent,

On Petition For Writ Of Certiorari To The

California Supreme Court

Calif. Supreme Court #5252062 (12/12/18

denial of petition for review)

Calif. Court of Appeal, #B292864

Calif. Superior Court, Case #BC354136

PETITION AND APPENDIX FOR A

WRIT OF CERTIORARI

CHARLES KINNEY

Petitioner in pro se

5826 Presley Way

Oakland, CA 94618

charleskinney@hotmail.com

Phone: 510-654-5133; FAX 5940883

QUESTIONS PRESENTED

State court judges and justices continue to ignore

bankruptcy law [11 U.S.C. Sec. 524(a)(1)] which

"voids" any order by any court that implies that

a discharged Chapter 7 "no asset" debtor still has

"personal liability" to a listed creditor (e.g. for

post-petition legal work by that creditor based on

pre-petition contracts). That has occurred here.

ii U.S.C. Sec. 524(a)(2) precludes any motions by

a listed creditor which decides or implies that a

discharged Chapter 7 "no asset" debtor still has

"personal liability" to that listed creditor. That

bankruptcy law is also being ignored here.

Even though the Calif. vexatious litigant ("VT]')

law is unconstitutionally vague on its face, it was

used to justify their actions against Kinney [e.g.

retaliation]. That VL 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 (1) which "presiding" justice can rule.

The Calif. statute, CCP Secs. 391 etc only applies

to plaintiffs "in propria persona", but it has been

applied to Kinney as a non-party, as a defendant,

and as the attorney for defendants by both state

and federal courts who have ruled that Kinney

was a "VL" in each of those non-"in pro se" roles.

These ongoing acts cause continuing violations of

Kinney's civil and constitutional rights.

PARTIES TO THE PROCEEDINGS

The parties to this proceeding are those

specified and appearing in the caption to this

petition.

TABLE OF CONTENTS

QUESTIONS PRESENTED ............I

PARTIES TO THE PROCEEDINGS .....ii

TABLE OF CONTENTS ...............

INDEX TO APPENDIX ...............iv

TABLE OF AUTHORITIES .............v

PETITION FOR WRIT OF CERTIORARI.. 1

OPINIONS BELOW ...................16

JURISDICTION ......................17

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .............26

STATEMENT OF THE CASE ...........26

SUMMARY OF LOWER COURT

PROCEEDINGS ......................27

STATEMENT OF FACTS ..............28

REASONS FOR GRANTING THE

WRIT OF CERTIORARI ...............29

Certiorari Should Be Granted Because Both

State and Federal Courts Continue to Inore

Federal and State Law Which Violates Kinney's

First Amendment Rights; And The Method and

111

Application of "Alleged" Due Process by the

Courts Severely Impairs Meaningful Review of

Important Questions of Federal Law, And

Severely Impairs Rights Guaranteed Under The

First, Fourth, Fifth, Eighth And Fourteenth

Amendments; And Is In Conflict With Decisions

Of This Court And Other United States Court Of

Appeals .............................29

CONCLUSION ......................34

APPENDIX

INDEX TO APPENDIX

Sequential No.

In Document

Page numbers at top of page:

Appendix A: Dec. 12, 2018 "final" decision by the

Calif. Supreme Court denying Kinney's petition

for review as to the Oct. 4, 2018 denial by Calif.

Court of Appeal, Second Appellate District, Adm.

Pres. Justice Elwood Lui to allow Kinney to

proceed with his appeal of a 2018 post-petition

attorney's fee award (aka appeal of the 2018

attorney's fee "cost" order in favor of debtor

Michele Clark) in Kempton v. Clark, Los Angeles

County Superior Court No. BC354136 even

though Clark's 2010 Chapter 7 "no asset"

bankruptcy and her 2012 discharge prohibited

any motion for such a ruling, and any ruling was

void]; see Cal. Supreme Court No. S252067. 1

Appendix B: Oct. 4, 2018 unilateral denial by

Cal. Court of Appeal, Second Appellate District,

Adm. Pres. Justice Elwood Lui to allow Kinney

to proceed with his appeal of a 2018 post-petition

attorney's fee "cost" order (i.e. an appeal of

attorney's fee award in favor of debtor Michele

Clark) in Kempton v. Clark, Los Angeles County

Superior Court No. BC354136, which was

contrary to Cal. Supreme Court decisions; and to

11 U.S.C. Sec. 524(a) due to discharged-debtor

Michele Clark's 2010 Chapter 7 "no asset"

bankruptcy (e.g. because all obligations to her

attorney were extinguished under pre-petition

contracts) and her 2012 discharge ........2

TABLE OF AUTHORITIES

CASES

Airlines Reporting Corp. v. Renda.

177 Ca1.App.4th 14 (Cal. 2009).... 33

American Ry. Express Co. v. Levee,

263 U.S. 19 (1923) ..........19, 26

Bauer v. Texas

341 F.3d 352 (5th Cir. 2003) ......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,

137 S.Ct. 1 (2016). 17, 34

580 U.S.

Bostanian v. Liberty Savings Bank,

52 Ca1.App.4th 1075 (Cal. 1997)

Bracy v. Gramley,

520 U.S. 899, (1997) ...........33

Broadman v. Comm on Jud. Perf.;

18 Ca1.4th 1079 (Cal. 1998) .......6

Bulloch v. United States,

763 F.2d 1115 (10th Cir. 1994).... 34

Cadle Co. v. Flanagan,

271 F.Supp.2d 379 (D. Conn. 2003). 21

Canatella v. State of California

304 F.3d 843 (91h Cir. 2001).. 19, 30

Cen-Pen Corp. v. Hanson,

58 F.3d 89 (41h Cir. 1995) ........6

Citizens United v. Fed. Election Comm.,

558 U.S. 310 (2010) ............4

Cohen v. California,

403 U.S. 15 (1971) ..........19, 26

Colorado River Water Conserv. Dist. v. US,

424 U.S. 800 (1976) ............34

De Long v. Hennessey,

912 F.2d 1144 (9th Cir. 1990) .....2

Devereaux v. Abbey

263 F.3d 1070 (9th Cir. 2001) .....30

Dist. of Columbia Ct. of App. v. Feldman.

460 U.S. 462 (1983) ............8

Dodds v. Comm. on Judicial Perf.,

12 Cal.4th 163 (Cal. 1994) ........6

Donovan v. City of Dallas,

377 US. 408 (1964) .............11

Evans v. Fraught,

231 Cal.App.2d 698 (Cal. 1965)

...

Exxon Mobil v. Saudi Basic Indust.,

544 U.S. 280 (2005) .............7

vii

Fink v. Shemtov,

180 Cal.App.4th 1160 (Cal. 2010). 3

Fitzpartrick v. Bitzer,

427 U.S. 445 (1976) ............18

Fowler v. Guerin,

899 F.3d 1112 (9th Cir. 2018) ......7

F.T.C. v. Ticor Title Ins. Co..

504 U.S. 621 (1992) ............18

Giset v. Fair Political Practices Comm.,

25 Cal.App.4th 658 (Cal. 2001).

Goncalves v. Radv Child. Hosp. San Diego,

865 F.3d 1237 (9th Cit. 2017) .....12

Grannis v. Ordean,

234 U.S. 385 (1914) .............32

Griffin v. Illinois,

351 U.S. 12 (1956) ..............32

Hafer v. Melo

502 U.S. 21 (1991) ..............30

Hawaii ex rel Louie v. HSB,C Bank Nevada,

761 F.3d 1027 (9th Cir. 2014) ......18

Hernandez v. Sessions,

872 F.3d 976 (9t1 Cir. 2017) .......31

Hooten v. H Jenne III,

786 F.2d 692 (5th Cir. 1986) .......31

viii

In re Castellino Villas AKF, LLC,

836 F.3d 1028 (9th Cir. 2016) ......7

In re Gonzales,

830 F.2d 1033 (9th Cir. 1987) ......18

In re Gruntz,

202 F.3d 1074 (9th Cir. 2000) .......8

In re Hamilton,

540 F.3d 367 (6th Cir. 2008) .........18

In re Isaacs,

895 F.3d 904 (6th Cir. 2018) .........34

In re Justices of Supreme Crt. of Pueto Rico

695 F.2d 17 (1st Cir. 1982) .......20, 31

In re Kinney,

201 Cal.App.4th 951 (Cal. 2011)

4,23

In re Marino,

577 B.R. 772 (9th Cir. 2017) ........5

In re McLean,

794 F.3d 1313 (11th Cir. 2015) .....5, 34

In re Miles,

430 F.3d 1083 (9th Cir. 2005) ........18

In re Murchison,

349 U.S. 133 (1955) ..............33

In re Schwartz,

954 F.2d 569 (9th Cir. 1992) .........7

Janus v. Am. Fed. of State. Ctv & Muni. Empl,

(2018) ............30

585 U.S.

_____

Johnson v. Home State Bank,

501 U.S. 78 (1991) ...............6

Johnson v. United States,

135 S.Ct. 2551 (2015) .............3

Kalb v. Feuerstein,

308 U.S. 433 (1940) ..............8

Keith v. Kinney.

961 P.2d 516 (Cob. App. 1997) .....25

Keith v. Kinney,

140 P.3d 141 (Cob. App. 2006) .....25

Kempton v. City of Los Angeles,

165 Ca1.App.4t 1344 (Cal. 2008)

Kinney v. Clark,

12 Cal.App.5th 724 (Cal. 2017).

Kinney v. Keith,

128 P.3d 297 (Cob. App. 2005)..

Kinney v. Overton,

153 Cal.App.4th 482 (Cal. 2007).

2,15

Kougasian v. TMSL, Inc.,

359 F.3d 1136 (9th Cir. 2004)......7, 8

Lacey v. Maricopa County,

693 F.3d 896 (9th Cir 2012) ........31

Levin Metals v. Parr-Richmond Term.,

799 F.2d 1312(9th Cir. 1986) .......9

Lone v. Shorebank Develop. Corp.,

182 F.3d 548 (7th Cir. 1999) .......7

Maritime Electric v. United Jersey Bank,

959 F.2d 1194 (3rd Cir. 1991).

McCarthy v. Madigan,

503 U.S. 140 (1992) ............34

Michigan-Wisconsin Pine Line v. Calvert,

347 U.S. 157 (1954) ...........26

Moitahedi v. Vargas,

228 Cal.App.4th 974 (Cal. 2014).. 12, 19

Moore v. Kaufman,

189 Cal.App.4th 604 (Cal. 2010).

Moy v. United States,

906 F.2d 467 (9th Cir. 1990) .......19

NAACP v. Alabama ex rd. Flowers,

377 U.S. 288 (1964) .............32

Nat. Inst. of Fain. & Life Adv. v. Becerra.

585 U.S.

(2018) ............30

____

Ogunsalu v. Superior Court,

12 Cal.App.5t 107 (Cal. 2017) .....3

Olson v. Cory,

35 CaL3d 390 (Cal. 1983) ..........19

Orner v. Shalala,

30 F.3d 1307 (10th Cir. 1994)..

5,34

Paramount Pictures Corp. v Davis,

228 Ca1.App.2d 827 (Cal. 1964)

Patrick v. Burget,

486 U.S. 94 (1988) .............18

Pennhurst St. S. & H. v. Halderman,

465 U.S. 89 (1984) ..............18

Pennsylvania v. Union Gas Co.,

491 U.S. 1 (1989) ...............18

Pennzoil v. Texaco, Inc.,

481 U.S. 1 (1987) ................9

People v. Partee,

21 Cal.App.51" 630 (Cal. 2018) .....21

Peralta v. Heights Medical Center,

485 U.S. 80 (1988) ...............32

Plaza Hollister Ltd. Ptsp v. Cty of San Benito,

72 CaLApp.4th 1 (Cal. 1999) .....18, 33

PLCM Group, Inc. v. Drexler,

22 Cal.4th 1084 (Cal. 2000) ..........6

Reynolds Metals Co. v. Alperson,

25 Cal.3d 124 (Cal. 1979) ..........6

Riley y. Nat. Fed. of the Blind of NC. Inc.,

487 U.S. 781 (1998) ..............30

xli

Ringgold-Lockhart v. Cty. of Los Angeles,

781 F.3d 1057 (9th Cir. 2014) .....3

Saltareffi & Steponovich v. Douglas,

40 Cal.App.4th 1 (Cal. 1995) ......19

Sinochem Inhl. v. Malaysia Intl. Ship Corp.,

549 U.S. 422 (2007) ...........8, 33

Sloman v. Tadlock,

21 F.3d 1462 (9th Cir. 1994) ......31

Smith v. Bennett,

365 U.S. 708 (1961) ............33

Smith v. Robbins,

528 U.S. 259 (2000) ............9

Soranno's Gasco, Inc. v. Morgan,

874 F.2d 1310 (9th Cir. 1989) .....31

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) .........20, 30

Thomas v. Collins,

323 U.S. 516 (1945) ..............19

Trope v. Katz,

11 Cal.4 274 (Cal. 1995) ..........6

United Mine Workers v. Illinois Bar Assn.,

389 U.S. 217 (1967) ...........19, 31

xlii

United States v. Burkhart,

682 F.2d 589 (6th Cir. 1982) ........20

United States v. Carbo,

572 F.3d 112 (3rd Cir. 2009) ........20

United States v. Frega,

179 F.3d 793 (9th Cir. 1999) ........20

United States v. Hooten,

693 F.2d 857 (9th Cir. 1982) ........31

United States v. Inzuina,

838 F.3d 1006 (9th Cir. 2009) .......20

United States v. Murphy,

768 F.2d 1518 (7th Cir. 1985) .......31

U.S. v. Ron Pair Enterprises, Inc.,

489 U.S. 235 (1989) ...............19

United States v. Stephenson,

895 F.2d 867 (2nd Cit. 1982) ........20

Williams v. Pennsylvania,

U.S.

136 S.Ct. 1899 (2016).... 11

Wolfe v. George,

486 F.3d 1120 (9th Cir. 2007) ........3

Young v. Tr-City Healthcare Dist.,

210 Cal.App.4th 35 (Cal. 2010) .....18

Zarcone v. Perry.

572 F.2d 52 (2nd Cir. 1978) .......31

xiv

CONSTITUTION and STATUTES

U.S. Const., Amend. I. 17, 19, 20, 26, 30

U.S. Const., Amend. IV .........30

U.S. Const., Amend. V .......11, 30

U.S. Const., Amend. VIII........30

U.S. Const., Amend. XIV ...... 11, 30

U.S. Const., Article VI, Sec. 2 ....11

11 U.S.C. Sec. 506 ..............19

11 U.S.C. Sec. 524(a)(1) 1, 4, 5, 8, 10 etc

ii U.S.C. Sec. 524(a)(2).. 1, 5, 7, 10 etc

18 U.S.C. Sec. 152 .........20, 21, 35

18 U.S.C. Sec. 152(2)-(5) ..........20

18 U.S.C. Sec. 157 .........20, 21, 35

18 U.S.C. Sec. 157(3) .............21

18 U.S.C. Sec. 158 ...............35

18 U.S.C. Secs. 1346 & 1951 .......20

18 U.S.C. Secs. 1961 etc ..........21

28 U.S.C. Secs. 1254 (1) & 1257(a). 17

28 U.S.C. Secs. 1331, 1343, 1441, 1443 8, 26

28 U.S.C. Sec. 1452 ...........8, 9, 26

28 U.S.C. Sec. 1851 ...............2

28 U.S.C. Sec. 1739 ...............7

28 U.S.C. Sec. 2101(c) .............17

42 U.S.C. Sec. 1983 ..............18

Cal. Civil Code Sec. 1717 .........8, 12

Cal. Civil Code Sec. 3483 ..........23

Cal. Code of Civ. Proc. Secs. 391 etc i, 1

Cal. CCP Sec. 1033.5(a)(10) .......6, 12

Cal. CCP Sec. 916(a) ..............23

Cal. CCP Sec. 1060 ...............22

Cal. Penal Code Secs. 17, 31 & 32

30A Amer. Juris., Judgmts, 43, 44, 45. 8

KAN

PETITION FOR A WRIT OF CERTIORARI

Petitioner Charles Kinney requests a "writ of

certiorari" issue to review the "final' judgment by

the California Supreme Court in No. 8252062 on

Dec. 12, 2018 which denied Kinney's petition for

review (without any explanation) [App. A].

That ruling precluded any review by Kinney of the

Oct. 4, 2018 unilateral denial by Admin. Pres.

Justice Elwood Lui of the Cal. Court of Appeal,

Second Appellate District ("COA2"), of a 2018

post-petition attorney's fee "cost" award order

issued by Los Angeles County Superior Court

Judge Barbara Scheper even though that "cost"

order is void under 11 U.S.C. Sec. 524(a)(1), and

even though Clark's listed-creditor attorneys

David Marcus etc are prohibited by 11 U.S.C. Sec.

524(a)(2) from filing the motion which resulted in

Judge Scheper's Aug. 7, 2018 attorney's fee award

"cost" order; see COA2, B292864 [App. B].

That denial was made under Cal. Code of Civil

Procedure ("CCP") Secs. 391-391.8 which is known

as the Cal. vexatious litigant ("VT]') law. That

denial ignored ongoing bankruptcy law violations.

The bankruptcy law being violated [11 U.S.C. Sec.

524(a)] was created: (A) to enjoin the exact activity

that is still being relentlessly pursued by listedunsecured-creditor attorneys Marcus etc who keep

filing cost motions on Clark's behalf for their postpetition legal work; and (B) to void the resulting

state or federal court attorney's fee cost awards or

orders which concede that debtor Clark is still

"personally liable" to her attorneys Marcus etc.

State and federal courts have refused to follow

that law for the last 8+ years; see Kinney v. Clark,

12 Cal.App.5th 724 (Cal. 2017) for examples.

The VL law is being used against Kinney as a

justification for allowing listed-creditors Marcus

etc to continue to violate bankruptcy law against

listed-creditors Kinney and his co-buyer Kim

Kempton (now deceased); to compel silence upon

them; and to deny them any right to the redress

of grievances [e.g. by denying a right to appeal].

The VL law is also being used by the state and

federal courts to impose excessive fines on Kinney

contrary to the 8th Amendment (see US Supreme

Court decision in the Timbs case decided 2/20/19).

Vexatious Litigant Laws

The Cal. VL law allows a California 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, 482-486 (1989). In

contrast to the "narrow" federal VL orders, all Cal.

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. fl

Long v. Hennessey. 912 F.2d 1144, 1146-1149 (9th

Cir. 1990). However, in Kinney's situation, the

federal VL orders against him are being "broadly"

applied" to all of his federal cases [e.g. to his

Clean Water Act citizen-lawsuit cases].

The Cal. VL law has been challenged before.

Wolfe v. George. 486 F.3d 1120 (9th Cir. 2007) did

consider that VL law, but that case had no facial

challenge, and that VL law has been substantially

changed (e.g. to allow a Court of Appeal Presiding

Justice to decide whether an appeal has merit).

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). Based on this case, the Cal. VL law does

not satisfy the clarified constitutional standards.

Since substantial changes have occurred to Cal.

VL laws after the 2007 Wolfe decision (e.g. in Jan.

2012), 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 as to the current VL law.

No court has ever considered the unconstitutional

vagueness of the current Cal. VL law. Johnson v.

United States, 135 S.Ct. 2551, 2557-2563 (2015).

For example, given how the Cal. courts tally up

losses under the Cal. VL law and given that Cal.

requires an appeal within 60 days of whenever a

defendant is dismissed, a plaintiff can become

labeled as a VL in one case with 6 defendants by

"losing" against 5 defendants, but still "win" the

case against the 6th defendant. Fink v. Shemtov,

180 Ca1.App.4th 1160, 1170 (Cal. 2010). Cal. VL

law has also changed who is actually a defendant

into a plaintiff, which made no sense. Ogunsalu v.

Superior Court, 12 Cal.App.5th 107 (Cal. 2017).

As for facial challenges to the Cal. VL law,

Kinney contends every application of that VL law

is unconstitutional because it is: (1) hopelessly

vague [e.g. as to wording such as "litigation",

"finally determined against", "merit", "reasonable

expenses" for security; "presiding justice"]; and (2)

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 been demonstrated".

Citizens United v. Federal Election Commission,

558 U.S. 310, 331 (2010). There is no doubt that

the VL law, and acts by judges and justices using

this law, are chilling Kinney's protected speech.

As for as-applied (factual) challenges to the Cal.

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 Nov.

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, 201 Cal.App.4th 951,

was issued by a COA2 "presiding justice" who did

not have subject matter jurisdiction to do so].

Bankruptcy Law Violations

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 a ruling decides that

a 2010 Chapter 7 "no asset" discharged-debtor

still has "personal liability" to a listed-unsecured

creditor (e.g. her attorney Marcus), that judgment,

order or sanction is "void" regardless of the court's

rationale used to justify that decision.

To repeat, 11 U.S.C. Sec. 524(a)(1) "voids" any

ruling by any court that decides a dischargeddebtor 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 RookerFeldman 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 known as the discharge injunction; it

has different consequences than Sec. 524(a)(1).

For 8+ years, listed unsecured-creditor attorneys

David Marcus etc have filed 13+ attorney fee

motions on behalf of a client, discharged Chapter

7 "no asset" debtor Michele Clark, based on prepetition contracts, with help from their contractattorney Eric Chomsky. Their goal was to shift

over $500,000 of pre-. and post-petition attorney's

fees [incurred by Clark] onto listed unsecuredcreditors Kinney and/or Kim Kempton, the cobuyers of Clark's house in 2005, but 11 U.S.C. Sec.

524(a)(2) 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 continue to issue decisions that

concede (admit) discharged-debtor Clark is still

personally liable to her own unsecured-creditor

attorneys David Marcus etc for their legal work.

When attorney Marcus files an attorney's fee

"cost" motion to shift Clark's legal bills onto

Kinney, creditor Marcus concedes (admits) that

his client, discharged-debtor Clark, still has

"personal liability" to him for his legal work. Cal.

Civil Code Sec. 1717; Cal. Code of Civil Procedure

Sec. 1033.5(a)(10); Cen-Pen Corp. v. Hanson, 58

F.3d 89, 92-94 (4th Cu. 1995); Johnson v. Home

State Bank, 501 U.S. 78, 84 (1991); Trope v. Katz,

11 Cal.4th 274, 279-289 (Cal. 1995); PLCM Group.

Inc. v. Drexler, 22 Cal.4th 1084, 1092-1094 (Cal.

2000); Reynolds Metals Co. v. Alperson, 25 Cal.3d

124, 127-129 (Cal. 1979).

Those 13+ attorney fee "cost" orders were issued

after Clark's 2010 bankruptcy; and those orders

resulted in over $500,000 in attorney's fees owed

by Kinney to Clark. By issuing those 13+ orders,

the state courts have engaged 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).

Kinney is challenging all "void" orders that were

issued contrary to 11 U.S.C. Sec. 524(a) [which

have resulted in a "taking' of Kinney's property

via excessive fines], so Kinney's grievance cannot

be a defacto appeal of a valid order because no

appeal is ever necessary from a "void" order, and

because full faith and credit cannot be given to a

"void" order. 28 U.S.C. Sec. 1739.

Kinney's grievances become a 'federal claim

alleging a prior injury [caused by the listedcreditors attorneys Marcus etc] 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, 554-581 (7th Cir. 1999); In re

Schwartz, 954 F.2d 569, 572 (9th Cir. 1992).

Kinney's grievances are not appeals of legal

wrongs committed by a state court. Rather, those

are about legal wrongs committed by debtor

Clark (adverse party) or by committed by her

listed unsecured creditor attorneys Marcus

etc (non-party) with or without Clark's

understanding as to what is prohibited by law.

Kougasian v. TMSL, Inc.. 359 F.3d 1136, 1141 (91b

Cir. 2004); 11 U.S.C. Sec. 524(a)(2).

Under bankruptcy law, all legal work performed

by listed-creditor attorneys Marcus etc for debtor

Clark is deemed to be fully-discharged prepetition debt in Clark's Chapter 7 "no asset"

case, and cannot be shifted onto another creditor

such as Kinney. In re Castellino Villas, A.K.F.

LLC, 836 F.3d 1028, 1033-1037 (9th Cir. 2016).

State courts have never accepted these 11 U.S.C.

Sec. 524(a) restraints; and have ignored that

bankruptcy law completely preempts state law. In

re Gruntz, 202 F.3d 1074, 1078-1084 (9th Cir.

2000). State courts have issued "final" attorney

fee orders for Clark, but those "final" orders are

still automatically "void" under Sec. 524(a)(1).

Some courts have argued Kinney's bankruptcy

and VL issues are "inextricably intertwined" with

the "final" state and federal court decisions.

That is an unsupportable argument since a void

order cannot be "inextricably intertwined" with

any valid ruling because a void order is not

accorded any dignity in the judicial system, and

void orders can be attacked at any time without

violating the Rooker-Feldman doctrine. Sinochem

Intern. Co. v. Malaysia Intern. Shipping Corp., 549

U.S. 422, 430-431 (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 (91h Cir. 2004); 30A American Jurisprudence,

Judgments, Secs. 43, 44, 45 (1958).

Some courts have argued that Kinney cannot go to

federal court to challenge "void" state court orders

[e.g. which violate 11 U.S.C. Sec. 524(a)(1)1. 28

U.S.C. Secs. 1331, 1343, 1441, 1443, and/or 1452.

That is an unsupportable argument [e.g. since the

Rooker-Feldman doctrine and preclusionary rules

do not apply to any facial challenge of the Cal. VL

law]. District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 482-488 (1983).

(I]

1€

Since all state court attorney fee awards in favor

of Clark were "void" after July 2010 [e.g. because

those decisions had to presume that dischargeddebtor Clark was still "personally liable" to her

own listed unsecured-creditor attorney Marcus],

nothing could be "inextricably intertwined" with

those "void" orders. Pennzoil v. Texaco, Inc., 481

U.S. 1, 8-17 (1987). No valid order ever existed.

Some courts have argued that Kinney's \TL status

was due to his frivolous actions that had no merit,

but those are vague terms that are being applied

to Kinney without taking any testimony under

oath and allowing cross-examination to determine

the actual facts [see Smith v. Robbins, 528 U.S.

259, 269-276 (2000) as to the terms "frivolous" and

without "merit", and how those are determined].

In April, 2018, attorneys Marcus etc filed a motion

for more attorney's fees in LASC BC354136 on

behalf of Chapter 7 discharged-debtor Clark.

On May 22, 2018, Kinney filed a removal of that

motion under 28 U.S.C. Sec. 1452; filed a motion

to reopen Clark's bankruptcy; and filed a counterclaim and third-party complaint.' Levin Metals v.

Parr-Richm. Term., 799 F.2d 1312, 1315-16 (9th Cir.

1986). On June 6, 2018, US Bankruptcy Judge

Barry Russell dismissed the 3 filings by Kinney.

On Aug. 1, 2018, Kinney filed 3 appeals to the

Ninth Circuit for those 3 dismissal orders. [The

Ninth Circuit dismissed all 3 appeals because

Kinney was allegedly subject to a Ninth Circuit

pre-filing order for new appeals, even though

ro'

':4

these appeals were from Article I US Bankruptcy

Court orders, not from Article III US District

Court orders; see Ninth Circuit order in #17-80256

issued Jan. 19, 2018.]

On Aug. 7, 2018, Los Angeles County Superior

Court Judge Barbara Scheper issued an attorney

fee "cost" order against listed-creditor Kinney and

in favor of discharged-debtor Clark for $2,985

[even though 11 U.S.C. Sec. 524(a)(1) voided her

order automatically; even though 11 U.S.C. Sec.

524(a)(2) prohibited the filing of that motion for

fees by listed-unsecured-creditor attorneys David

Marcus etc; and even though attorneys Marcus

etc had never complied with the Goncalves and

Mojtahedi cases in state court].

On Sept. 13, 2018, Kinney filed a timely request

for permission to file an appeal with the COA2

because Kinney was listed as a VL in 2008 and in

2011 (as shown by the Cal. Judicial Council's VL

"List"); that request became COA2 #B292864.

On Oct. 4, 2018, COA2 Administrative Presiding

Justice Elwood Lui denied Kinney's request for

permission to appeal the "void" 2018 attorney's fee

"cost" order as issued by Judge Scheper in favor of

discharged-debtor Michele R. Clark [App. B, 2.]

There was no explanation for that denial.

On Oct. 19, 2018, Kinney filed a petition for writ

of mandate and petition for review with the Cal.

Supreme Court. The petition for review became

case #S252062; and the petition for writ of

mandate became case #S252067.

On Nov. 26, 2018, the Cal. Supreme Court denied

Kinney's petition for writ of mandate in 3252067.

There was no explanation for that denial.

On Dec. 12, 2018, the Cal. Supreme Court denied

Kinney's petition for review in 5252062 [App. A,

1]. There was no explanation for that denial.

Given these events, it is clear these judges and

justices are operating on a collaborative basis with

respect to punishing Kinney, so he has been

unable to determine which judges and justices

should be disqualified. Williams v. Pennsylvania,

136 S.Ct. 1899 (2016); Fourteenth

U.S.

Amendment. As a result, Kinney is unable to

obtain an impartial judge or justice in any court.

The courts are punishing Kinney for conducting

litigation, and imposing penalties on him, simply

because he is exercising his federal rights under

the Fifth Amendment which a federal court itself

does not penalize. Donovan v. City of Dallas, 377

U.S. 408, 412-414 (1964). That violates the

Supremacy Clause. U.S. Const. Art. VT, Sec. 2.

Kinney's grievances arise from the intentional acts

of a non-party, to wit: the attorneys Marcus who

have represented Clark from 2007 onward, and

who were specifically listed as unsecured creditors

in Clark's 2010 Chapter 7 "no asset" bankruptcy.

Each time listed-unsecured-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 buyer

Kinney and his co-buyer Kempton (now deceased).

Cal. Civil Code Sec. 1717; CCP Sec. 1033.5(a)(10).

Of course, Clark has no obligations to any listed

creditor [e.g. attorneys Marcus etc] since she is a

discharged Chapter 7 "no asset" debtor. Thus, 11

U.S.C. Sec. 524(a)(2) applies to any motions by

attorneys Marcus etc to get more attorney's fees.

Each time a state or federal court awards

attorneys fees to Clark and her listed-creditor

attorneys Marcus etc, that court admits [e.g.

concedes] that 11 U.S.C. Sec. 524(a)(1) applies to

the order because debtor Clark must still have

"personal liability" to attorneys Marcus under the

2007 hourly-fee retainer as a prerequisite to the

granting of that attorney's fee "cost" order. Cal.

Civil Code Sec. 1717; Cal. CCP Sec. 1033.5(a)(10).

Each time a state or federal court awards

attorneys fees to Clark and her own listed-creditor

attorneys Marcus etc, they admit [e.g. concede]

that STATE law is being violated by those

attorneys because they never proved the validity

of their 2007 hourly-fee retainer that contained an

attorney's or charging lien, or validity of that lien.

Goncalves v. Rady Children's Hospital San Diego,

865 F.3d 1237, 1255 fri. 5 (9th Cir. 2017) [citing

"Mojtahedi v. Vargas, 228 Cal.App.4th 974, 176

Cal.Rptr.3d 313, 316 (2014)"].

State and federal judges and justices, and state

officers and federal officers [e.g. a bankruptcy

trustee], who have each issued, affirmed and/or

ignored orders, judgments or sanctions against

Kinney or co-buyer Kempton that were known to

be "void", or known to be based on "void" orders,

under FEDERAL law [e.g. 11 USC Sec. 524(a)(1)

and (2)] include but are not limited to:

Los Angeles County Superior Court Judge

Barbara Scheper in #BC354136 [Clark's lack of

title vs. her unrecorded, secret easement given to

neighbor Cooper] and Judge Steven Kleifield in

#BC374938 [Clark's fraud and non-disclosure];

Calif. Court of Appeal, Second Appellate

District, Justices Roger Boren, Frances

Rothschild, Victoria Cheney, and Jeffrey Johnson

[and others as shown by dockets];

Alameda County Superior Court Judge

Delbert Gee in Kimberly Kempton's probate

estate #RP13686482 [e.g. as to Clark's "claim"];

former Cal. Attorney General Kamala

Harris and current Cal. Attorney General Xavier

Becerra [who ignored letters from Kinney];

US Trustee, Central District of California

(Los Angeles), Peter C. Anderson [who has the job

of uncovering bankruptcy fraud and abuse];

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 as shown by dockets];

Ninth Circuit Judges Bea, Bybee, Gould,

Levy, Owens, Paez, Silverman, Thomas, and

Wallace [and others as shown by dockets]; and

the Justices of this Court [due to inaction].

Likewise, these same state and federal judges and

justices, and same state officers and federal

officers, have issued, affirmed or ignored orders,

judgments or sanctions against co-buyers Kinney

or Kempton that were known to be "void", or

based on "void" orders, under STATE law due to

the ongoing failures of Clark's attorneys David

Marcus etc to comply with the Goncalves and

Mojiahedi cases as to proving that their April

2007 hourly-fee retainer and its automaticconflict-of-interest attorney's lien (aka charging

lien) were valid and enforceable as of Dec. 2008

onward before those attorneys could recover

attorney's fees from their client Clark AND

before those attorneys could shift attorney's fees

on to the co-buyers Kinney and Kempton via a

2005 purchase contract.

COA Justice Jeffrey Johnson is the same Justice

who was named in a 1/4/19 Calif. Comm. on Jud.

Performance's Notice of Formal Proceedings (and

the same Justice who concurred with Kinney ti.

Clark in 2017), but his harassment has occurred

for 1+ decades and is well documented for 1+

decades, but only now is it being made public. In

response, that Justice filed an Answer on 1/22/19.

That shows a "culture of silence" exists in COA2.

Due to 9+ years of inaction by the Calif. Comm. on

Jud. Perf., 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. In response, Judge

Kozinski retired in Dec. 2018.

That shows a "culture of silence" exists in the

Ninth Circuit.

This is probably why the

investigation by US Supreme Court Justice John

Roberts turned up no "official" complaints [even

though 480 former judicial 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,

Justices of the Calif. Court of Appeal, Second

Appellate District [e.g. 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.

As one of the best examples, these same 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 ongoing violations of 11

U.S.C. Sec. 524(a); see Kinney v. Clark, 12

Cal.App.5th 724 (Cal. 2017) [e.g. refer to the text

about an attorney fee order that was issued in

July 2012 in favor of Clark based on a motion for

pre-petition fees filed by attorneys Marcus when

the bankruptcy trustee had the sole authority to

seek those attorney fees because Clark's Chapter

7 discharge didn't occur until Aug. 2012 (see pgs.

728-731), contrary to Bostanian v. Liberty Savings

Bank, 52 Cal.App.4th 1075, 1078-1087 (Cal. 1997)J.

OPINIONS BELOW

The final decision(s) sought to be reviewed (in

reverse chronological order) are the:

Dec. 12, 2018 "final" decision by the

Calif. Supreme Court denying Kinney's petition

for review as to the Oct. 4, 2018 denial by Calif.

Court of Appeal, Second Appellate District, Adm.

Pres. Justice Elwood Lui to allow Kinney to

proceed with his appeal of a 2018 post-petition

attorney's fee award (aka appeal of the 2018

attorney's fee "cost" order in favor of debtor

Michele Clark) in Kemyton v. Clark, Los Angeles

County Superior Court No. BC354136 even

though Clark's 2010 Chapter 7 "no asset"

bankruptcy and her 2012 discharge prohibited

any motion for such a ruling, and any such ruling

was automatically void]; see Cal. Supreme Court

No. S252062. [Appendix A, page 1]'. and

Oct. 4, 2018 unilateral denial by Cal.

Court of Appeal, Second Appellate District, Adm.

Pres. Justice Elwood Lui to allow Kinney to

proceed with his appeal of a 2018 post-petition

attorney's fee "cost" order [i.e. an appeal of

1 Citation method is Appendix ("App."), exhibit

letter, and sequential page number.

attorney's fee award in favor of debtor Michele

Clark] in Kempton v. Clark, Los Angeles County

Superior Court No. BC354136, which was

contrary to Cal. Supreme Court decisions; and to

11 U.S.C. Sec. 524(a) due to discharged-debtor

Michele Clark's 2010 Chapter 7 "no asset"

bankruptcy [e.g. because all obligations to her

attorney were extinguished under pre-petition

contracts] and her 2012 discharge. [App. B, 21.

JURISDICTION

The jurisdiction of this Court is invoked under

Title 28, United States Code ("U.S.C."), Secs.

1254(1), 1257(a), and/or 2101(c).

The Presiding Justice of COA2 improperly denied

Kinney's request to file an appeal [App. B, 2].

The Cal. Supreme. Court acted as "enablers" or

"prosecutors" by refusing to grant Kinney's

petition for review [App. A, 11.

As shown by prior petitions to this Court, the

state courts have not followed and are still not

following bankruptcy law or state law as to

Kinney [e.g. see his petitions 18-1096, 18-1095,

18-906, 18-908, 17-219, 16-252, 16-606, 16-1182,

15-1035, 15-5260, 15-6896, 15-6897, 15-6916, and

15-7133, to name just a few]. Bosse v. Oklahoma,

580 U.S.

137 S.Ct. 1, 196 L.Ed.2d 1 (2016).

In that manner, they made rulings that violated

Kinney's federal constitutional rights (e.g. First

Amendment) and federal civil rights under color of

authority or official right [e.g. 42 U.S.C. Sec.

1983], so their judicial and/or sovereign immunity

was compromised and, in part, eliminated [e.g.

for prospective injunctive reliefi. 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).

The ruling that Kinney was attempting to appeal

is "void" under bankruptcy law which completely

preempted all state court matters filed prior to

July 2010 [e.g. LASC BC354136 and BC374938].

Maritime Electric Co., Inc. v. United Jersey Bank,

959 F.2d 1194, 1203-1204 (3rd Cir. 1991); In re

Hamilton, 540 F.3d 367, 370-376 (6th Cir. 2008); In

re Miles, 430 F.3d 1083, 1087-1089 (9th Cir. 2005);

In re Gonzales, 830 F.2d 1033, 1034-1036 (9th Cir.

1987); Hawaii ex rel Louie v. HSBC Bank Nevada,

N.A., 761 F.3d 1027, 1033-1034 (9th Cir. 2014).

Kinney's appeal should have been allowed, and

judges and justices should have vacated the "cost"

order in favor of discharged-debtor Clark. Young

v. Tr-City Healthcare Dist., 210 Cal.App.4th 35,

41-42 and 49-53 (Cal. 2010); Plaza Hollister Ltd.

Ptsp. v. County of San Benito, 72 Cal.App.4th 1, 1322 (Cal. 1999); Giset v. Fair Political Practices

Comm., 25 Cal.App.4th 658, 701 (Cal. 2001).

Once Clark declared Chapter 7 bankruptcy in

July 2010, she was no longer obligated for any

attorney's fee owed to her own attorneys Marcus.

Listed-unsecured-creditor attorneys Marcus etc

never proved their lien was valid in any court. 11

U.S.C. Secs. 506; VRBP 3001, 3002 and 6009; U.S.

v. Ron Pair Enterprises, Inc., 489 U.S. 235, 238-240

(1989); Saltareffi & Steponovich v. Douglas, 40

Cal.App.4th 1, 3-7 (Cal. 1995); Moitahedi v. Vargas,

228 Cal.App.4th 974, 976-980 (Cal. 2014).

The rulings by COA2 and Cal. Supreme Court

were abuses of discretion as to a "void" 2018

decision by LASC Judge Scheper. Olson v. Cow,

35 Cal.3d 390, 400-401 (Cal. 1983).

The Cal. Supreme Court's denial of Kinney's

petition for review violated his First Amendment

rights. United Mine Workers v. Illinois State Bar

Ass'n, 389 U.S. 217, 222 (1967); Ma v. United

States, 906 F.2d 467, 470 (901 Cir. 1990); Thomas v.

Collins, 323 U.S. 516, 530 (1945).

Any issues regarding Clark's bankruptcy or her

discharge are still controlled by bankruptcy law,

and all state courts must follow that law.

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).

The powers of the state appellate court are limited

by explicit limitations in state statutes, explicit

limitations found in state supreme court

decisions, and/or by the civil and constitutional

rights of represented appellants. Canatella v.

State of California, 304 F.3d 843, 847-854 and n.6

and 14 (9th Cir. 2001).

The state courts have again denied Kinney's First

Amendment rights with respect to bankruptcy law

violations and to overbroad applications of VL

laws (e.g. by denying his right to appeal). Boddie

v. Connecticut, 401 U.S. 371, 382-383 (1971).

The acts described herein violate 18 U.S.C. Secs.

1346 and/or 1951, and create new civil rights and

RICO claims [e.g. since listed-creditor attorney

Marcus and contract-attorney Chomsky operate a

RICO "enterprise" to extort money from Kinney

via attorney fee awards. See United States v.

Inzunza, 638 F.3d 1006 (9th Cir. 2009); United

States v. Frega, 179 F.3d 793 (9th Cir. 1999);

United States v. Carbo, 572 F.3d 112. (3rd Cu.

2009); United States v. Stephenson, 895 F.2d 867

(2nd Cir. 1990); United States v. Burkhart, 682

F.2d 589 (6th Cit. 1982); 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).

Here, discharged-debtor Clark's listed unsecuredcreditors attorneys David Marcus etc are also

violating 18 U.S.C. Sees. 152 and/or 157 which is a

"crime" that can result in 5 years of jail time.

Those violations are "crimes" since they include

willful acts by creditors Marcus and/or Chomsky

with respect to: (i) making false oaths under 18

U.S.C. Sec. 152(2); (ii) making false declarations

under 18 U.S.C. Sec. 152(3); (iii) presenting false

claims under 18 U.S.C. Sec. 152(4); (iv) receiving

material property from debtor Clark under 18

U.S.C. Sec. 152(5); and/or (v) repeatedly making

false or fraudulent representations under 18

U.S.C. Sec. 157(3). All of these acts occurred here.

Under federal law, the contract-attorney Eric

Chomsky (who was hired after July 2010) is the

second person necessary to create and participate

in an "enterprise" as to bankruptcy fraud for the

improper enrichment of listed-creditor Marcus;

and that is a predicate act for a civil RICO action.

18 U.S.C. Sees. 1961 etc; Cadle Co. v. Flanagan,

271 F. Supp.2d 379, 383-391 (D. Conn. 2003).

Under state law, a felony results from a law that

has more than 1 year of jail time. Thus, contractattorney Chomsky has been and continues to be

an accessory-after-the-fact and co-planner of new

felonies with listed unsecured-creditor attorneys

David Marcus et al [e.g. due to their exposure to

1+ years in jail via 18 U.S.C. Sec. 152 or 157].

Cal. Penal Code Secs. 17, 31 and 32; People v.

Partee, 21 Cal.App.5th 630, 633-642 (Cal. 2018).

As of Dec. 2, 2018, all courts knew these facts:

In the 1998 to 2000 time frame, Kinney was

the attorney for commercial fisherman Van Scoy as

to Shell Oil's excessive toxic selenium discharges

into SF Bay, but Van Scoy's claims against a state

agency were never sent back to state court after the

Ninth Circuit agreed the Regional Water Quality

Control Board had 11th Amendment immunity.

In the 2002 to 2006 time frame, Kinney never

got the Orange County Superior Court and the

Court of Appeal, Fourth App. Dist. ["COA4"I, to

make CCP Sec. 1060 determinations in a 2001

case filed by Three Arch Bay Community Services

District ("TABCSD") against Kinney [e.g. for

ongoing nuisances caused by TABCSD; and for an

encroaching fence built by Overton; see Kinney v.

Overton, 153 Ca1.App.4th 482 (Cal. 2007)].

C. In the 2007 to 2010 time frame, LASC Judge

Elizabeth Grimes, LASC Judge Luis Lavin, LASC

Judge Richard Fruin, Jr., and Justices in the

COA2 retaliated against Kinney [e.g. by ignoring

Kempton v. City of Los Angeles, 165 Cal.App.4th

1344 (Cal. 2008); by making Kinney at VL].

There were 100% directly-inconsistent decisions

by Judge Grimes and COA2 as to the failure by

seller Michele Clark to give "clean" [i.e. clear] title

to co-buyers Kinney etc because of Clark's

undisclosed and unrecorded easement to the nextdoor neighbor Carolyn Cooper for two encroaching

fences. This was an intentional misapplication of

the Evans case [Evans v. Fraught, 231 Cal.App.2d

698, 705 (Cal. 1965)] as to "clean" title vs. Clark's

unrecorded easement and, at all times, the COA2

has declined to correct it. Moore v. Kaufman, 189

Cal.App.41h 604, 614-617 (Cal. 2010).

LASC Judge Lavin ruled Kinney was a vexatious

litigant ("VL") on Nov. 19, 2008 without supporting

facts [e.g. Kinney was no longer a party]; and COA2

Justice Boren unilaterally dismissed Kinney's appeals

from 2009 onward regarding that Vt order [even

though Cal. Const., Art. VI, Sec. 3, requires a

panel of 3 justices to make a decision; and a prefiling order is a mandatory injunction under CCP

Sec. 525, so it is not final until an appeal occurs

under CCP Sec. 916(a)]. Paramount Pictures Corp.

v. Davis, 228 Cal.App.2c1 827, 837-838 (Cal. 1964).

LASC Judge Fruin ignored Cal. Civil Code Sec.

3483; the fence built by neighbor Cooper in a public

right-of-way for an abutting street to Kinney's LA

property; and Kinney's 2008 published opinion.

In the 2010 to 2012 time frame, LASC Judge

Scheper, the COA2 (including Justice Roger Boren),

and US Bankruptcy Court Judge Richard Neiter

ignored state and bankruptcy law as to Kinney.

LASC Judge Scheper granted a 7/10/12 attorney's

fee award to Clark contrary to bankruptcy law.

Justice Boren of the COA2 issued In. re Kinney, 201

Cal.App.4th 951 (Cal. 2011) for which the facts were

misstated and in which Kinney was not a party.

Judge Neiter issued the Oct. 18, 2012 abandonment

order in which he "held" that Kinney was not a

"creditor" in Clark's 2010 Chapter 7 bankruptcy

which is blatantly false because Kinney was

specifically listed by Clark, and his "status" as a

creditor cannot be changed by an abandonment

order issued after Clark's Aug. 2012 discharge.

In the 2013 to 2017 time frame, LASC Judge

Scheper, the COA2, the COA4, the district courts,

and the Ninth Circuit ignored both state law and

federal bankruptcy law in regards to Kinney.

After Nov. 2008, the intentional misapplication

of the VIA law [e.g. by imposing that law upon an

attorney who was not a party) was used to "justify"

the compelled silence being imposed on Kinney.

After 2012, the intentional misapplication of

bankruptcy law by state and federal courts [e.g. by

saying Kinney was not a listed creditor] was used

to "justify" compelled silence on Kinney.

Kinney's losses were caused by the intentional

misapplication of law [e.g. the Evans case; the VL

law used against an attorney] or by misstatements

of fact [e.g. which ignored Kinney was listed as a

bankruptcy "creditor" by debtor Clark and/or not a

party in certain cases even though Kinney was

treated as a party by Judges and Justices].

Kinney's losses have been justified by improper

use of the \TL law as imposed on Kinney by state

and federal courts, and by Cal. State Bar.

No opponent or judicial officer has ever cited

legal authority that 42 U.S.C. Sec. 1983 civil right

claims against a state actor [e.g. acting as a

prosecutor under color of authority] can be totally

precluded by simply labeling Kinney's appeals as

defacto appeals of prior state court decisions [e.g.

since federal civil rights laws are separate and

district from any state laws or rights].

No opponent or judicial officer has ever cited

legal authority that 42 U.S.C. Sec. 1983 civil right

claims against a state or federal actor [e.g. acting as

a prosecutor under color of authority] can be totally

PXIJ

precluded by the use of Hooker-Feldman or other

preclusion doctrines [e.g. since there has never been

a trial or hearing on the merits with testimony

under oath and cross-examination].

The purchase of the Los Angeles Fernwood

property by buyers Kinney and Kempton in 2005

from Clark was made totally irrelevant to the

ongoing retaliation by bankruptcy debtor Michele

Clark or by her listed creditor attorneys Marcus etc

(and COA Justices and Cal. Supreme Court Judges

and federal court Judges) after Clark had declared

Chapter 7 bankruptcy on July 28, 2010 and was

discharged on Aug. 13, 2012.

The 2005 pre-petition real estate contract is

unenforceable by buyers Kinney or Kempton or by

seller Clark because all debts and obligations of

seller Clark under that 2005 real estate purchase

contract with buyers Kinney and Kempton, and

under her 2007 hourly-fee retainer with attorneys

Marcus etc, were completely eliminated since all

pre-petition contracts are now unenforceable as of

July 2010 by operation of bankruptcy law.

These acts are also damaging Kinney's ongoing

interstate mineral business in Colorado. 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).

The state and federal courts have 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 and federal

courts [e.g. Cal. Court of Appeal; Cal. Supreme

Court, U.S. District Courts; Ninth Circuit].

The federal courts have 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. 1st Amendment rights)

and consider 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].

However, all of the courts are ignoring that.

Here, as has been done in the past, the state

courts are again willfully ignoring all of the issues

being presented by Kinney as to violations of state

law and federal bankruptcy law.

STATEMENT OF THE CASE

This petition involves the state courts who have

summarily denied Kinney's attempts to appeal

lower court orders that use overbroad VL laws

against Kinney and violate bankruptcy law.

The state courts are compelling silence on Kinney

as to bankruptcy law violations since Kinney was

a "listed" bankruptcy creditor who has now been

made liable for $500,0004- in deemed discharged

debts via pre- and post-petition attorney's fee

awards (based on pre-petition contracts) in favor

of Chapter 7 "no asset" discharged-debtor Clark.

SUMMARY OF LOWER COURT PROCEEDINGS

On Aug. 7, 2018, Los Angeles County Superior

Court Judge Barbara Scheper issued an attorney

fee "cost" order against listed-creditor Kinney and

in favor of discharged-debtor Clark for $2,985

[even though 11 U.S.C. Sec. 524(a)(1) made her

order "void" and Sec. 524(a)(2) prohibited that

motion for fees filed by listed-unsecured-creditor

attorneys David Marcus etc; and even though

attorneys Marcus etc had never complied with the

Goncalves and Mojtahedi cases in state court].

On Sept. 13, 2018, Kinney filed a timely request

for permission to Me an appeal with the COA2

because Kinney was listed as a VL in 2008 and in

2011 (as shown by the Cal. Judicial Council's VL

"List"); that request became B292864.

On Oct. 4, 2018, COA2 Administrative Presiding

Justice Elwood Lui denied Kinney's request for

permission to appeal the "void" 2018 attorney's fee

"cost" order as issued by Judge Scheper in favor of

discharged-debtor Michele R. Clark [App. B, 2.]

There was no explanation for that denial.

On Oct. 19, 2018, Kinney filed a petition for writ

of mandate and for review with the Cal. Supreme

Court. The petition for review is #5252062.

On Nov. 26, 2018, the Cal. Supreme Court denied

Kinney's petition for writ of mandate. There was

no explanation for that denial.

On Dec. 12, 2018, the Cal. Supreme Court denied

Kinney's petition for review [App. A, 1]. There

was no explanation for that denial.

Here, Kinney's petition addresses the: (1) ongoing

retaliation against him by forcing his silence and

(2) ongoing federal law violations to his detriment

as a listed-creditor by "taking" his property [e.g.

over $500,000 to date]; by damaging his existing

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

The state courts may not exercise jurisdiction

inconsistent with the Constitution of the United

States, the Calif. Constitution, or applicable

statutes under state or federal law.

In July 2010, seller Michele Clark filed a Chapter

7 "no asset" bankruptcy petition, and listed both

Kinney and Marcus as creditors. 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

by describing them in the text of the opinion.

As admitted in that 2017 state court opinion,

after Clark's bankruptcy in 2010 and discharge in

2012, the state courts continue to grant attorney's

fee "cost" award orders in favor of dischargeddebtor Clark (and against listed-creditor Kinney)

based on pre-petition contracts for post-petition

legal work by attorney Marcus, which are

automatically void under 11 U.S.C. Sec. 524(a)(1).

Discharged-debtor Michele Clark and her listedunsecured creditor attorneys David 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 Oct. 4, 2018, Kinney's request to file an appeal

of a 2018 fee award was denied [App. B, 2].

On Dec. 12, 2018, Kinney's petition for review

was denied by the Cal. Supreme Court [App. A, 11.

REASONS FOR GRANTING THE WRIT OF

CERTIORARI

Certiorari Should Be Granted Because Both

State and Federal Courts Continue to Ignore

Federal and State Law Which Violates

Kinney's First Amendment Rights; And The

Method and Application of "Alleged" Due

Process By The Courts Severely Impairs

Meaningful Review of Important Questions

of Federal Law, And Severely Impairs Rights

Guaranteed Under The First, Fourth, Fifth,

Eighth And Fourteenth Amendments; And Is

In Conflict With Decisions Of This Court And

Other United States Court Of Appeals.

The state court judges and justices have compelled

silence upon Kinney in direct violation of the Janus,

NIFLA and Riley decisions and in direct violation

of bankruptcy law given Kinney's undisputed

status as a "listed" creditor [App. A, 1; App. B, 2].

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).

The state court judges and justices have acted as

prosecutors of Kinney, not as neutral arbitrators of

ongoing disputes, when they denied his appeal

rights. The state courts have also violated Kinney's

federal constitutional and civil rights, the "honest

services" law, and the Hobbs Act. [App. A, 1; App.

B, 2] 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 sr.

Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001);

Canatella v. State of California, 304 F.3d 843, 847854, Ii. 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 (Pt

Cit. 1982); United States v. Murphy, 768 F.2d

1518, 1523-1539 (7th Cit. 1985); Zarcone v. Perry,

572 F.2d 52, 54-57 (2nd Cit. 1978).

The denials by the state courts were 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 past

clients.

42 U.S.C. Sec. 1983; Hernandez v.

Sessions, 872 F.3d 976, 994 (9th Cir. 2017).

The acts by the state courts 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

ffl, 786 F.2d 692 (5th Cir. 1986); United States v.

Hooten, 693 F.2d 857, 858 (91h Cir. 1982); Sloman

v. Tadlock, 21 F.3d 1462, 1470 (9th Cir. 1994);

Soranno's Gasco. Inc. v. Morgan, 874 F.2d 1310,

1313-1320 (9th Cit. 1989); Lacey v. Maricopa

County, 693 F.3d 896, 916 (91h Cit. 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 14th 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).

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 the

state courts in California.

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 the state courts, 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

14th Amendment "establishes a constitutional

floor" which has not been met here. Bracy v.

Gramley, 520 U.S. 899, 904 (1997).

The state courts 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.

Ctv of San Benito,72 Cal.App.4th 1, 13-22 (Cal.

1999); Airlines Reporting Corp. v. Renda, 177

Cal.App.4th 14, 19-23 (Cal. 2009).

By their acts, the state courts have ignored the: (1)

adverse impacts on Kinney as a listed-creditor in

debtor Clark's 2010 Chapter 7 "no asset"

093

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 (6th Cu. 2018)

[Rooker-Feidman doctrine does not apply when "a

state court interprets the discharge order

incorrectly"; that state court order is "void ab

in.itio"]; In re McLean, 794 F.3d 1313, 1321-1325

(11th Cir. 2015) [discharge injunction can be

violated by creditor]; Bulloch v. United States, 783

F.2d 1115, 1121-1122 (10th Cit. 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 (10th Cir.

1994) ["relief is not a discretionary matter; it is

mandatory"].

CONCLUSION

This petition and all of the relief requested below

should be granted.

First, 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 and/or her own

listed-unsecured-creditor attorneys David Marcus

etc, and/or their contract-attorney Eric Chomsky,

with respect to listed-unsecured-creditors Charles

Kinney and/or his business partner and co-buyer

Kimberly Kempton [regarding their purchase of

Michele Clark's Los Angeles property in 2005]

pursuant to 11 U.S.C. Sec. 524(a)(1).

Next, this Court should declare that listed

unsecured-creditor 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 "cost" motions for attorney's fees after

Michele Clark filed a petition for a "no asset"

Chapter 7 bankruptcy on July 28, 2010 and was

discharged on Aug. 13, 2012.

Lastly, this Court should refer this to the US

Attorney's Office and/or the FBI via 18 U.S.C. Sec.

158 to investigate the "crimes" under 18 U.S.C.

Secs. 152 and/or 157 that occurred due to acts by

listed-unsecured-creditor attorneys David Marcus

etc and/or their contract-attorney Eric Chomsky

as to pre- and post-petition debts incurred by

Clark that were all deemed to be discharged.

Dated: 3/2/19

By:js/

Charles Kinney, in pro se

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.