Petition for Writ of Certiorari — Frank Konarski, dba FGPJ Apartments and Development, et al., Petitioners v. City of Tucson, Arizona, et al.
Supreme Court briefMay 26, 2018
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IN THE
SUPREME COURT OF THE UNITED STATES
FRANK KONARSKI, ET AL.,
Petitioners,
-vsCITY OF TUCSON, A BODY POLITIC, ET AL.,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
Frank J. Konarski
Gabriela Konarski
Patricia Konarski
John F. Konarski
Frank E. Konarski
Pro Se
450 West Dakota St.
Tucson, Arizona 85706
Phone: 520-746-0564
RECEIVED
AUG 302018
I
QUESTIONS PRESENTED
Questions here primarily evolve from what
this Court determined in 1942: Back then—and what
became a foundation for legal guidance—it was
determined that the U.S. Congress, under the
Commerce Clause, could regulate even a small-time
farmer's harvest of wheat for his personal use
because such circumstances were legally assigned to
be considered in the aggregate sense. Wickard v.
Filburn, 317 U.S. 111 (1942). Under this legal
wisdom—like farming considered in the aggregate—
a single housing rental unit structure, considered in
the aggregate of all housing rental units, would also
come to fall within the federally protected domain of
interstate commerce. As such, a street thug, like
many before and after him under similar
circumstances, was convicted and incarcerated in a
federal prison for effectively interfering with
interstate commerce by having used a Molotov
cocktail to set a single housing rental structure on
fire. United States v. Gomez, 87 F.3d 1093 (9th Cir.
1996); see also, e.g., Russell v. United States, 471 U.S.
858 (1985); United States v. McMasters, 90 F.3d
1394, 1398 (8th Cir. 1996) (upholding federal
conviction for single rental unit arson).
The Fifth Circuit, as with other circuits, has
relied on criminal cases like Russell to instill—in
civil cases—that a housing rental transaction
"unquestionably' is an 'activity that affects
commerce," and, thus, is a transaction that falls
within the said federal domain to be subject to the
Fair Housing Act (42 U.S. Code §3601, et seq.),
among other acts of Congress, because of the
11
Commerce Clause. Groome Resources, Ltd. v. Parish
of Jefferson, 234 F.3d 192, 207 (5th Cir. 2000).
Against this backdrop, Petitioners' attorney
filed a complaint, seeking relief from an alleged effort
by municipal Respondents to interfere with and
restrain Petitioners' commerce of engaging in
housing rental transactions with their tenants.
Denied relief and, what is more, having an extreme
sanction imposed upon them for the complaint,
Petitioners submit this: This case presents itself as
what seems to be the Ninth Circuit's now swimming
against the legal current of interstate commerce
jurisprudence—provoking these questions:
Whether housing rental businesses are a part
of the federally protected domain of interstate
commerce.
If such business are per se a part of the federal
domain, whether municipal actors, like
Respondents—merely because they are local
actors—are totally free from federal law to
engage in the non-state-sanctioned conduct of
restraining housing rental competition by
pursuing a self-designated unilateral
municipal action that, by design, causes the
losses of housing rental transactions of some of
such businesses, like Petitioners', in order to
have tenants from there move/funneled to
other such businesses that are favored, thus
enabling the latter businesses, through no
action of their own but that of the municipal
actors, to have a competitive advantage over
the former businesses.
111
3. Whether a court's replacement of the content
of a moving party's motion for an extreme
sanction obligates the court to first provide the
alleged offending party, who is subject to the
extreme sanction, notice and opportunity to
address such content replacement as part of
due process before the actual issuance of the
extreme sanction.
lv
PARTIES TO THE PROCEEDING
In accordance with Rule 14. 1, the following list
below identifies the parties to the proceeding.
Petitioners here are Frank Konarski and
Gabriela Konarski, husband and wife; Patricia
Konarski, a single woman; John F. Konarski, a single
man; Frank E. Konarski, a single man, dba FGPJ
Apartments & Development.
Respondents are the City of Tucson, a body
politic; Michael G. Rankin and Catalina 0. Rankin
husband and wife; Julianne K. Hughes and Graeme
Hughes, wife and husband; Mark R. Christensen and
Nancy Stanley, husband and wife; Albert Elias and
Sarah Starling-Elias, husband and wife; Sally Stang
and Michael Stang, wife and husband; Rick Shear
and Jeanette Shear, husband and wife; Ronald
Koenig and Erin Koenig, husband and wife; Lisa
Swanson (aka, Lisa Higgins) and William Higgins,
wife and husband; Vanessa Gonzalez and John Doe
Gonzalez, wife and husband; Arturo Enemas and
Jane Doe Encinas, husband and wife; Martin Pena
and Jane Doe Pena, husband and wife; and DOES 110, who were fictitiously named since their identities
were not known at the time of the filing of this case,
and have yet to be determined
There are no corporations of which to report
per Rule 29.6.
MA
TABLE OF CONTENTS
QUESTIONS PRESENTED ............................ ..... i
PARTIES TO THE PROCEEDING ................... ... iv
TABLE OF AUTHORITIES ............................. ..vii
OPINION BELOW ......................................... .... 1
JURISDICTION ...............................................1
CONSTITUTIONAL AND STATUTORY
PRO VISIOINS INVOLVED ............................. .... 2
STATEMENT OF CASE ................................. .... 2
Introduction ............................................2
Case Facts ..............................................7
Federal Jurisdiction in the Court of First
Instance.............................................. ..12
Reasons for Granting Petition ................. ..12
Case law conflicts: The Ninth
Circuit opinion errs in failing to
housing
rental
recognize
a
business is sufficiently a part of
the federally protected domain of
commerce—
interstate
exponentially leading to the denial
of Petitioners' federal claims ......... ..12
The Ninth
Case law conflicts:
Circuit opinion errs in denying the
vacatur of the vexatious-business
litigant injunction ........................ ..29
CONCLUSION ...............................................31
vi
APPENDIX
Opinion of the Ninth Circuit Court
of Appeals, Affirming the Dismissal
of the Federal Claims and
Vexatious-Business
Litigant
Injunction.........................................App. 1
Dismissal Order of the District
Court..........................................App. 14
Excerpts of Vexatious-Business
Litigant Injunction of the District
court's
Court
(indicating
substitution finding was done sua
sponte and without prior
notice to
.
Petitioners) .................................. App. 52
Order of the Ninth Circuit Court of
Appeals, Denying the Petition for
Panel Rehearing and En Banc
Review........................................App. 54
Complaint ...................................App. 57
15 U.S.C. § 1 (Sherman Antitrust
Act).............................................App. 150
Article I, Section 8, Clause 3
(Commerce Clause)........................App. 152
Fourteenth Amendment to U.S.
Constitution (Due Process Clause)... App. 153
FJ
vii
TABLE OF AUTHORITIES
Cases
Pages
Anheuser-Busch, Inc. v. Goodman,
745 F. Supp. 1048
(M.D. Pa. Sept. 21, 1990)...........................19
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)...................................11
Brittain v. Hansen,
451 F.3d 982 (9th Cir. 2006)...................27, 28
Chambers v. Baltimore & Ohio Railroad,
207 U.S. 142 (1907)......................................7
Chubb Custom Ins. Co. v. Space Sys.,
710 F.3d 946 (9th Cir. 2013)........................23
City of Hugo v. Nichols,
656 F.3d 1251 (10th Cir. 2011).....................27
De Long v. Hennessey,
912 F.2d 1144 (9th Cir. 1990).......................31
Dennis v. Higgins,
498 U.S. 439 (1990)..............................21, 27
Dickerson v. Bailey,
87 F. Supp. 2d 691 (S.D. Tex. 2000),
aff'd, 336 F.3d 388 (5th Cir. 2003)................27
viii
Duplex Printing Press Co. v. Deering,
254 U.S. 443 (1921)...................................15
Erickson v. Pardus,
551 U.S. 89 (2007)....................................24
Faulkner v. ADT Sec. Servs.,
706 F.3d 1017 (9th Cir. 2013)..................23-24
Groome Resources, Ltd. v. Parish of Jefferson,
234 F.3d 192 (5th Cir. 2000)..........ii, 13, 14, 20
In re Deville,
280 B.R. 483 (9th Cir. BAP 2002).................31
In re Soo Hyun Cha,
BAP NO. CC-07-1027-MoDMc,
2007 Bankr. LEXIS 4932
(9th Cir. BAP Aug. 16, 2007).......................31
Kleenwell Biohazard Waste and Gen. Ecology
Consultants, Inc. v. Nelson,
48 F.3d 391 (9th Cir. 1995)................22
Kortarski v. City of Tucson,
No. CV 4:11-00612-TUC-LAB (D. Ariz.),
rev'd in part, No. 12-17703,
599 Fed. Appx. 652
(9th Cir. Feb. 12, 2015)
("Baltazar Personal Vendetta-Revelation
Case") ................................................ 3-4, 4, 6,
Konarski v. City of Tucson,
No. CV 4:14-02264-TUC-JGZ,
2016 U.S. Dist. LEXIS 193057 / 193053
(D. Ariz. March 18, 2016), aff'd,
No. 16-15476,
716 Fed. Appx. 609
(9th Cir. Nov. 28, 2017) ............................ passim
Lasar v. Ford Motor Co.,
399 F.3d 1101 (9th Cir. 2005)......................31
McLain v. Real Estate Board of New Orleans, Inc.,
444 U.S. 232 (1980)...................................19
Morgan v. HUD,
985 F.2d 1451 (10th Cir. 1993)......................13
Oxford House-C v. City of St. Louis,
77 F.3d 249 (8th Cir. 1996)..........................13
Papasan v. Allain,
478U.5. 265 (1986)....................................5
Perry v. Brown,
671 F.3d 1052 (9th Cir. 2012)......................29
Pike v. Bruce Church, Inc.,
397 U.S. 137 (1970)....................22, 23, 25, 26
Reyn 's Pasta Bella, LLC v. Visa USA, Inc.,
442 F.3d 741 (9th Cir. 2006)..........................5
Russell v. United States,
471 U.S. 858 (1985).......................i, 13, 14, 19
x
Seniors Civil Liberties Ass 'n v. Kemp,
965 F.2d 1030 (11th Cir. 1992).....................13
Tatum v. Moody,
768 F.3d 806 (9th Cir. 2014)........................28
Tom Growrtey Equip. v. Shelley Irrigation Dev.,
834 F.2d 833 (9th Cir. 1987)........................31
United States v. DiSanto,
86 F.3d 1238 (1st Cir. 1996).......................13
United States v. Gomez,
87 F.3d 1093 (9th Cir. 1996)................i, 19, 20
United States v. Lamont,
330 F.3d 1249 (9th Cir. 2003).................13, 19
United States v. McMasters,
90 F.3d 1394 (8th Cir. 1996)..........................i
United States v. Mahon,
804 F.3d 946 (9th Cir. 2015)........................14
United States v. ORS, Inc.,
997 F.2d 628 (9th Cir. 1993)........................18
Weissman v. Quail Lodge, Inc.,
179 F.3d 1194 (9th Cir. 1999)......................31
Wickard v. Filburn,
317 U.S. 111 (1942)................................i, 20
xi
Wolkind v. Seiph,
495 F. Supp. 507 (E.D. Va. 1980)
. 27
Xcaliber Int'l Ltd., LLG v. Edmondson,
No. 04-CV-0922-CVE-PJC,
2005 U.S. Dist. LEXIS 43890
(N.D. Okla. Apr. 5, 2005) ............ 15-16,16,20
U.S. Constitution
Article I, Section 8, Clause 3 (Commerce Clause).i, ii,
2, 3, 10, 15, 20, 21, 22, 23, 26
Fourteenth Amendment (Due Process Clause) ..... 2, 3,
6, 10, 15, 26
Federal Statutes
15 U.S.C. § 1 (Sherman Antitrust Act) ......... 2, 10, 15,
16, 17, 18, 19, 21
15 U.S.C. § 15...................................................12
15 U.S.C. § 26...................................................12
18 U.S.C. § 844(i)..............................................14
18 U.S.C. 1961, et seq. ("Organized Crime Control
Act of 1970," as amended)..........................20
xii
28 U.S.C. § 1254 (1)
.2
28 U.S.C. § 1291.................................................1
28 U.S.C. § 1331................................................12
28 U.S.C. § 2201-2202........................................12
42 U.S.C. § 1983 ........................................... 10, 21
42 U.S.C. § 3601, et seq. ("Fair Housing Act," as
amended) ......................................... i, 13, 20
State Statutes
A.R.S. § 41-621(L)(2)..........................................16
U.S. Supreme Court Rules
Rule14.1..........................................................iv
Rule29.6..........................................................iv
Federal Rules of Civil Procedure ("FRCP")
Rule 12(b)(6)..........................................10, 11, 21
xiii
Code of Federal Regulations
2 C.F.R. § 2424
.12
24 C.F.R. § 982.306............................................12
1
Petitioners respectfully petition for a writ of
certiorari to review the judgment of the Ninth Circuit
Court of Appeals in this case.
OPINION BELOW
The opinion of the Ninth Circuit (App. 1-13),
dated November 28, 2017, is serially reported at 716
Fed. Appx. 609, 2017 U.S. App. LEXIS 24058, 2017-2
Trade Cas. (CCII) P80,214, and 2017 WL 5712132
(9th Cir. Nov. 28, 2017). The order of the Ninth
Circuit (App. 54-56), dated February 26, 2018,
denying Petitioners' petition for panel rehearing and
petition for en banc review, is reported at 2018 U.S.
App. LEXIS 4736 (9th Cir. Feb. 26, 2018).
The order of the District Court for Arizona
("District Court") (App. 14-51), dated March 18, 2016,
dismissing Petitioners' complaint, is reported at 2016
U.S. Dist. LEXIS 193057 (D. Ariz. Mar. 18, 2016).
The order of the District Court (Excerpts at
App. 52-53), dated March 18, 2016, declaring
Petitioners vexatious and enjoining their ability to
file new actions, is reported at 2016 U.S. Dist. LEXIS
193053 (D. Ariz. Mar. 18, 2016).
JURISDICTION
The Ninth Circuit filed its opinion on
November 28, 2017, denying Petitioners the
appellate relief they sought under 28 U.S.C. § 1291.
App. 1-13.
A timely petition for panel rehearing and en
banc review was denied on February 26, 2018. App.
2
54-56.
On June 29, 2018, the Clerk of this Court
informed Petitioners to perfect their petition for writ
certiorari within sixty days of the latter date.
Under 28 U.S.C. § 1254(1), Petitioners now
timely submit this instant petition for writ of
certiorari, along with contemporaneously paying the
docket fee.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The relevant constitutional and statutory
provisions involved—specifically 15 U.S.C. § 1
(Sherman Antitrust Act); Article I, Section 8, Clause
3 of the U.S. Constitution (Commerce Clause);
Fourteenth Amendment to the U.S. Constitution
(Due Process Clause)—are set forth in Appendix F-H,
infra.
STATEMENT OF CASE
A. Introduction
This case involves questions of exceptional
importance concerning the subjects of the federally
protected domain of interstate commerce, civil rights
and due process before a court. Specifically, it has
been alleged that City of Tucson, Arizona officials
("Respondents") have engaged in unsanctioned and
improper conduct that, inter alia, (i) has interfered
with competition, per se, in the federal domain of
interstate commerce, in violation of the Sherman Act;
3
and (ii) has interfered with the commerce of
particular participants, Petitioners, acting in the
federal domain of interstate commerce, in violation of
the Commerce Clause and the Due Process Clause.
Petitioners have come to be subject to such
unsanctioned and improper conduct of Respondents
in the course of Petitioners' operating their housing
rental business.
In this business, Petitioners
encounter two types of prospective housing tenants:
rent-subsidized tenants who are recipients of
monetary housing vouchers under what is called the
Section 8 Housing Choice Voucher program ("Section
8 Housing"), a program of the United States
Department of Housing and Urban Development
("HUD") that Respondents locally administer; and
private (i.e., non-subsidizedInom-Section 8
Housing) tenants.
Respondents have interfered with both types
of tenancies in Petitioners' housing rental business.
The case, sub judice, concerns the 2014 loss of
Petitioners' private tenancy of Haley Dye and Carlos
Solis (tenants collectively, "Tenants Dye"). The loss
of this tenancy came on the heels of an already evergrowing list—pattern--of Petitioners' housing
tenancies lost at the hands of Respondents. App. 7779 para. 28 (pleading a slew of lost tenancies).
The egregious nature of the violations
committed against Petitioners—stemming from
Respondents' causes of Petitioners' lost tenancies—is
informed by a prior case Petitioners brought before
the Ninth Circuit in Konarski v. City of Tucson, Case
No. CV 4:11-00612-TUC-LAB (D. Ariz.), rev'd in part,
599 Fed. Appx. 652, 653-654 (9th Cir. 2015) (No. 12-
4
17703) ("Baltazar Personal Vendetta-Revelation
Case"). The remanded and currently ongoing
Baltazar Personal Vendetta-Revelation Case
concerns Petitioners' 2010 losses of Section 8
Housing tenancies, including particularly the loss of
the Section 8 Housing tenancy of Bonita Baltazar.
What was revealed in the Baltazar Personal
Vendetta-Revelation Case that is informative of the
instant Tenants Dye case is this: Ms. Baltazar, a
then-Section 8 Housing tenant of Petitioners, as
shown below, publicly revealed in a city council
meeting that a city administrator of Respondents
gave her a new monetary housing voucher to use
elsewhere other than at Petitioners' housing rental
business because the said administrator would not
allow her (and other tenants) to continue to reside as
a Section 8 Housing tenant at Petitioners' inspectionpassed housing rental due to the said administrator's
admission of harboring a "personal vendetta"
with Petitioners. Kon.arski, 599 Fed. Appx. at 653654 (emphasis added).
5
—Screen-grab of video recording: Bonita Baltazar
revealing "'personal vendetta" admission of
Respondents'
city
administrator.
http://www.-youtube.com/watch?v-Fg7gmOk6cnol,2
This personal vendetta-driven local governance
revelation by Ms. Baltazar was video recorded, the
screen-grab (and video recording link) of which is
shown above.
Based on this video recorded
1 Source: Pis.' Opening Br. 28-29, Kortarski, 599 Fed. Appx. 652
(9th Cir. 2015) (No. 12-17703).
2 See Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986); Reym's
Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (91h
Cir. 2006) ("We may take judicial notice of court filings and
other matters of public record.") The reference to the public
document/item is provided for a contextual purpose; it is not
made a part of the appendix because it is not absolutely
essential for this Court's requested certiorari determination.
revelation, the Ninth Circuit reversed the dismissal
of Petitioners' Fourteenth Amendment class-of-one
equal protection claim of the Baltazar Personal
Vendetta-Revelation Case, and remanded it back to
the District Court. Konarski, 599 Fed. Appx. at 653654.
On remand—despite her being brought to
tears in the midst of being not only disparaged but
also deftly threatened by Respondent legal counsel
James Stuehringer with "prison" time3 during her
deposition—Ms. Baltazar refused to recant the truth
of her receipt of the admitted personal vendettadriven governance towards Petitioners. In fact, Ms.
Baltazar—in taking the opportunity the Ninth
Circuit effectively gave her to speak out on the
disastrous state of local governance—bravely doubled
down on the validity of the Ninth Circuit's previously
considered personal vendetta evidence: She testified
her receipt of the personal vendetta-driven
governance admission was a "hundred percent" true,
and that receiving such an admission actually "blew"
her away.4 In response to Ms. Baltazar's shedding
light on the personal vendetta-driven governance
towards Petitioners, Respondents audaciously
expanded such unlawful governance, going so far as
to openly (and more aggressively) target Petitioners'
Doc. 226 at 7 (citation omitted), Kon.arski, Case No. CV 4:1100612-TUC-LAB (D. Ariz.), 599 Fed. Appx. 652 (No. 12-17703).
See also n.2, supra (for non-essential contextual purpose).
E.g., Doc. 226-1 at 59 (citation omitted), Koncirshi, Case No.
CV 4:11-00612-TUC-LAB (D. Ariz.), 599 Fed. Appx. 652 (No. 1217703). See also n.2, supra (for non-essential contextual
purpose).
7
remaining tenant clientele: private/non-Section 8
Housing tenants—like Tenants Dye.
As can be discerned from the above, generally,
the harm Petitioners have encountered is
Respondents' unsanctioned and repugnantly
improper use of public monetary vouchers as
personal pawns in a personal war to interfere with
Petitioners' housing rental business.
As civilized business people, Petitioners have
availed themselves to the court system via their
attorney's taking legal action on their behalf to
address such harm done to them, and recently in
Petitioners' instant Tenants Dye case, but
Petitioners' constitutional right to pursue legal
action, per se—one regarded as a civil man's
fundamental right that is the "alternative of force,"
and "the right conservative of all other rights, and
lies at the foundation of orderly government" in a
civilized society, Chambers v. Baltimore & Ohio
Railroad, 207 U.S. 142, 154 (1907)—has come to also
be thwarted with an injunction against Petitioners
all without due process owed to them.
The questions now before this Court emanate
from the Ninth Circuit's opinion that conflicts with
its prior precedents, and those of its sister circuits
and this Court concerning such subjects.
B. Case Facts
As alleged in the complaint, Respondents'
targeting of Petitioners' private tenancy of Tenants
Dye followed how Petitioners' other private tenancies
have similarly been the subject of what amounts to
be a concerted boycott pattern and practice by
Respondents: Respondents bribe existing private
tenants of Petitioners with the receipt of monetary
housing vouchers (i.e., monetary incentives) of the
Section 8 Housing Program attached with the
specific instructions that such vouchers be used at
housing rental businesses of Respondents'
preference, and other than Petitioners'. App. 73-77
paras. 22-27. If such tenants initially refuse to
breach their secured private housing rental
transactions with Petitioners, they are threatened by
Respondents that they will lose out on the financial
incentives. App. 73-74 para. 23; App. 76-77 para. 26;
App. 108 para. 63. Respondents also help facilitate
the move-in process of funneling such tenants into
select housing units other than Petitioners' under
this scheme—all in spite of Respondents' knowing, in
advance, that such tenants have previously
established private housing rental transactions with
Petitioners. App. 75 para. 24; App. 95-96 para. 44(e).
This is what occurred with Petitioners' tenancy of
Tenants Dye. App. 81-105 paras. 33-58.
In fact, Respondents' intentionally causing
Tenants Dye to boycott and breach their secured
private housing rental business transaction with
Petitioners occurred even after Tenants Dye sought
to apply their monetary housing voucher towards
their continued tenancy at Petitioners' housing unit
(App. 81-82 paras. 33-34); Petitioners, in an effort to
mitigate Respondents' boycott interference, made
clear they were willing to accept Tenants Dye's
application of the monetary housing voucher in order
to continue the tenancy of such tenants (from a
private tenancy to now a subsidized tenancy of the
WE
Section 8 Housing program via the application of the
monetary housing voucher), particularly since
Petitioners had shown to be qualified to rent to
another Section 8 Housing tenant (App. 82-87 paras.
35-41); and Petitioners had issued at least eleven
(11) cease-and-desist legal notices to Respondents in
Petitioners' attempt to prevent Respondents from
causing the loss of the private tenancy of Tenants
Dye (App. 71 para. 18; App. 87-88 para. 43; App. 9697 para. 45; App. 99-100 para. 50; App. 135 para.
109; App. 139-140 para. 114). Respondents remained
undaunted by any threat of legal consequences (App.
71 para. 18; App. 96-99 paras. 45-49; App. 139-140
para. 114), and, along with Respondents' having
issued another (2nd) monetary housing voucher to
Tenants Dye—Respondents issued and maintained
the explicit instructions to such tenants to ensure
they would boycott Petitioners' housing rental
business: (i) that the additional monetary housing
voucher be applied towards a housing unit other than
Petitioners', and (ii) that if it were not applied per
such instructions, they would lose the offered
financial benefits (App. 84-86 paras.39-40).
As it did with the tenancy of Tenants Dye, this
scheme creates the anticompetitive effect of having
Petitioners' private tenants (i) breach their
previously secured private housing rental
transactions with Petitioners and (ii) become a part
of the artificially created influx of prospective
tenants who re-enter the rental market to find
housing units from Respondents' select landlords.
App. 73-75 paras. 22-24; App. 107-109 paras. 62-66.
These select landlords benefit, through no initial
10
action of their own, from such an influx, all at the
expense of Petitioners' lost private tenancies. Id.
The loss of the private tenancy of Tenants Dye
became one of the many private tenancies Petitioners
have lost because of this boycott scheme. App. 77-80
paras. 28-29 (list of some other private tenancy
losses).
Based on the foregoing summary of
circumstances, an attorney for Petitioners filed the
instant case's complaint on their behalf in the
District Court. App. 57-149. The complaint
encompasses various state and federal claims against
Respondents, the following federal claims of which
were dismissed: special hybrid per se violations of
the Sherman Act (15 U.S.C. § 1) (for Respondents'
unlawful restraint of commerce business) ("Hybrid
Per se Sherman Act Claim"); violations of the
Commerce Clause (Article I, Section 8, Clause 3 of
the U.S. Constitution; pursued under 42 U.S.C. §
1983) ("Commerce Clause Claim"); and violations of
the Fourteenth Amendment Substantive Due Process
Clause (pursued under 42 U.S.C. § 1983)
("Substantive Due Process Claim"). The complaint
came before a judge of the District Court with whom
Petitioners had an extra-judicial and intra-judicial
history.5
Initiated by Respondents' motion, the District
Court dismissed the said federal claims of the
complaint pursuant to FRCP Rule 12(b)(6). App. 14See Pis.' Opening Br. 15-34, Kon.arski, 716 Fed. Appx. 609 (9th
Cir. Nov. 28, 2017) (No. 16-15476). See also n.2, supra (for nonessential contextual purpose).
11
51. The District Court so dismissed under the said
rule's legal standard of assuming "'all the allegations
in the complaint [were] true (even if doubtful in
fact)" and based on its interpretation of the
applicable law. App. 19 (Order (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
As part of their strategy, Respondents also
filed a motion to declare Petitioners vexatious and
restrict their ability to file new legal actions, on the
basis of, inter alia, Petitioners' ongoing litigation.
The District Court discarded the content of
Respondents' said motion because of the assertions
that it contained glaring misrepresentations, and,
instead—sua sportte and without prior notice to
Petitioners—substituted such content with its own to
declare Petitioners vexatious business litigants and
issue a pre-filing instructions order against them.
App. 52-53 (Order ("vexatious-business litigant
injunction")).
Petitioners appealed the FRCP Rule 12(b)(6)
dismissal of the said federal claims and the issuance
of the vexatious-business litigant injunction to the
Ninth Circuit, which affirmed based on its own
determinations of the law. Such Ninth Circuit
determinations of the law are now subject to review
after it denied Petitioners' request for panel
rehearing and petition for en banc review.6
6 While it has no bearing on the significant legal issues before
this Court—like the legal issue of whether a housing rental
business is a part of the federally protected domain of interstate
commerce—the Ninth Circuit was previously led to incidentally
make erroneous factual determinations, to include erroneously
12
C. Federal Jurisdiction in the
Court of First Instance
The court of original instance, the District
Court, had jurisdiction under 15 U.S.C. §§ 15 and 26,
and 28 U.S.C. § 1331 and §§ 2201-2202.
D. Reasons for Granting Petition
I.
Case law conflicts: The Ninth Circuit
opinion errs in failing to recognize a
housing rental business is sufficiently a
part of the federally protected domain of
commerce—exponentially
interstate
leading to the denial of Petitioners'
federal claims.
The Ninth Circuit opinion fails to recognize
that Petitioners' housing rental transactions are
activities that are well within the federally protected
asserting that Petitioners were "barred" from acting as Section
8 Housing landlords, when that is certainly not true. App. 3;
see App. 86-87 para. 41. In an effort to cease the use of the
court system to further perpetuate such an inflammatory
falsehood, Petitioners underscore how such an assertion can be
empirically discerned as false: The act of barring/debarring a
landlord from the Section 8 Housing program is a public one in
the sense that it is exclusively pursued by HUD (see 24 C.F.R. §
982.306), and not Respondents as municipal actors, via due
process that takes the established form of what is known as the
federal Excluded Parties List System ("EPLS") (also known as
the federal government's System for Award Management
("SAM")), per 2 C.F.R. § 2424, et seq. As can be discerned from
the publicly accessible EPLS database, Petitioners have never
been on the EPLS, having never been disbarred, suspended or
otherwise subjected to any prohibitive-directive by the federal
government (including HUD).
13
domain of interstate commerce, and, as such,
exponentially errs in affirming the dismissal of their
federal claims. App. 9-12. This recognition failure
conflicts with legal precedent.
Indeed, the Ninth Circuit opinion acts in
contravention of a plethora of case law: It fails to
observe prior cases of the Ninth Circuit (and sister
circuit courts), like United States v. Lamont, 330 F.3d
1249 (9th Cir. 2003), that expressly make it clear
"rental property is per se sufficiently connected to
interstate commerce," id. at 1258 n.10 (emphasis
added) (citing United States v. DiSanto, 86 F.3d
1238, 1248 (1st Cir. 1996)). With such contravention,
the opinion inherently defies this Court's declaration
of long ago that the rental of real property
"unquestionably" substantially affects interstate
commerce to the extent that the U.S. Congress has
the power to "regulate individual activity within th[e]
class" of rental activity. Russell v. United States, 471
U.S. 858, 862 (1985) (emphasis added).
Corroborating this interstate commerce nature
of housing rental businesses like Petitioners', the
U.S. Congress passed and applied to such businesses
the Fair Housing Act, as amended (42 U.S. Code §
3601, et seq.), on the very basis of the Commerce
Clause (Article I, Section 8, Clause 3) of the U.S.
Constitution. E.g., Oxford House-C v. City of St.
Louis, 77 F.3d 249, 251 (8th Cir. 1996); Morgan v.
HUD, 985 F.2d 1451, 1455 (10th Cir. 1993); Seniors
Civil Liberties Assn v. Kemp, 965 F.2d 1030, 1034
(11th Cir. 1992); and Groome Resources, Ltd. v.
Parish of Jefferson, 234 F.3d 192, 195 (5th Cir. 2000).
In the same vein of protecting interstate commerce,
14
housing rental units are also federally protected by a
federal arson statute. 18 U.S.C. § 844(i). There are
other, ever-increasing reminders that Petitioners'
housing business has a legally substantial connection
to interstate commerce: In the course of this case,
and at the direction of the U.S. Congress, HUD
publicly issued its April 2016 housing guide that
revised how landlords, like Petitioners, should
engage in housing rental transactions with
prospective tenants who have a criminal history, all
relative to HUD's expanded interpretation of the Fair
Housing Act, as amended.7 See also, e.g., Groorne
Resources, Ltd., 234 F.3d at 200-205.
As such, it need not be belabored more that
appellate courts have understood "both the
commercial and interstate nature of renting real
property," that it is "clear that renting.. .housing
for commercial purposes implicates the federal
commerce power." Groome Resources, Ltd., 234
F.3d at 207 (emphasis added) (citing Russell and
Jones v. United States, 529 U.S. 848 (2000)). See
United States v. Mahon, 804 F.3d 946, 951-952 (9th
Cir. 2015) (finding apartments as part of a
recognized entity that "actively engages in interstate
commerce or activity that affects interstate
commerce," being "inherently commercial").
Yet, in spite of all this case law that has long
cemented housing rental businesses like Petitioners'
as substantially linked to—are per se a part of—
See Pis.' Opening Br. 42-47 and Reply Br. 23-25, Kona.rski, 716
Fed. Appx. 609 (9th Cir. Nov. 28, 2017) (No. 16-15476). See also
n.2, supra (for non-essential contextual purpose).
15
interstate commerce, the Ninth Circuit opinion
shows itself as dismissive of such a long-established
stance in the course of denying the viability of
Petitioners' federal claims: (1) Hybrid Per se
Sherman Act Claim; (2) Commerce Clause Claim;
and (3) Substantive Due Process Claim. Although
these three federal claims are, mota beuie, viable
independent of each other, they are all dependent on
the foregone legal recognition that the opinion
completely disregards: Petitioners' housing rental
business is legally engaged in the federally protected
domain of interstate commerce.
1.
In contradicting precedent by
disregarding the per se interstate
commerce identity of Petitioners'
housing rental business, the Ninth
Circuit opinion errs in finding the
Hybrid Per se Sherman Act Claim is
not plausibly viable.
a.
Background.
The Sherman Act prohibits unreasonable
restraint of commerce: "If the purpose be unlawful it
may not be carried out even by means that otherwise
would be legal; and although the purpose be lawful it
may not be carried out by criminal or unlawful
means." Duplex Printing Press Co. v. Deering, 254
U.S. 443, 465-466 (1921). Here, a per se violation of
the Sherman Act is pled in Respondents' bad-faith
exercise of commerce restraint via their acting as a
municipality alongside private actors—an exercise
that is legally considered a "'hybrid' restraint on
trade." Xcaliber Int'l Ltd., LLC v. Edmondson, No.
16
04-CV-0922-CVE-PJC, 2005 U.S. Dist. LEXIS
43890, at *22 (N.D. Okla. Apr. 5, 2005) (citation
omitted).
The complaint pleads a plausible hybrid per se
Sherman Act violation (App. 105-111) that
encompasses what Respondents self-designate as a
"unilateral municipal action":8
(i) Respondents'
action obviates the need for other landlords to act on
their own to create the anticompetitive scheme of
their improperly receiving an influx of Petitioners'
existing private tenants/customers, like Tenants Dye,
whom Respondents coerce to knowingly withdraw
their patronage from (and knowingly breach their
existing private rental transactions with) Petitioners'
qualified housing rental business to so funnel them
to such other landlords—Respondents' so coercing via
their misuse of the Section 8 Housing program's
monetary housing vouchers by offering and then
threatening the loss of such incentives to such
private tenants/customers if they continue to
patronize Petitioners' housing rental business; and
(ii) Respondents' action lacks state action immunity,
id. at *22..27 (citations omitted), particularly given
its unsanctioned poaching of Petitioners' clientele
tied to existing transactions (state statute, A.R.S. §
41-621(L)(2), prohibits insuring government agents
who breach transactions (App. 109 para. 66)), and
despite Petitioners' demonstrated and pled housing
qualification to rent to Section 8 Housing tenants
8 Defs.' Doc. 60 at 5:12-13, Komarski, No. CV 4:14.02264.TUC-
JGZ (D. Ariz. Mar. 18, 2016), aff'd, 716 Fed. Appx. 609 (9th Cir.
Nov 28, 2017) (No. 16.15476). See also n.2, supra (for nonessential contextual purpose).
17
who receive such vouchers (like Petitioners' thenSection 8 Housing tenant Marina Duran (App. 86-87
para. 41)).
b.
Case law-conflict exponential
error of Ninth Circuit
opinion: failing to recognize
that Respondents' offending
unilateral municipal action—
however local it is—is still
subject to Sherman Act
preemption because it targets
Petitioners' per se interstate
commerce housing rental
operation.
The Ninth Circuit opinion correctly notes that
interstate commerce activity can take place in one
state and need not take place among several states to
be afforded protection of the Sherman Act. App. 110.
However, it errs when it narrowly looks to solely
Respondents as local municipal agents—and not
Petitioners' housing rental business as a per se
interstate commerce business. App. 111. Such an
erroneously narrow consideration leads the opinion
to wrongfully find the non-existence of the element of
legally appreciable amount of interstate commerce
needed to trigger the Sherman Act protection, to wit:
[Petitioners'] pleadings fail to indicate
how [Respondents'] purely local
activities are related to interstate
commerce. [Respondents'] alleged
interference with their tenants does not,
without more, have any impact or effect
In
on interstate commerce, let alone a
substantial effect.
Id. (citing United States v. ORS, Inc., 997 F.2d 628,
629 (9th Cir. 1993); 15 U.S.C. § 1.). To reach this
erroneous finding of law, the Ninth Circuit opinion
violates stare decisis, and its citation to legal
authority like ORS, Inc. does nothing to avert this
error.
First, again, the opinion erroneously denies
the legally recognized per se interstate commerce
identity of Petitioners' housing rental business. See
case law (on interstate commerce recognition), supra.
The opinion incontrovertibly makes this erroneous
denial of the per se interstate commerce identity
because it proceeds to expressly state that
Petitioners "fail to indicate how [Respondents']
purely local activities are related to interstate
commerce." App. 111. To find the appreciable
interstate commerce link, there was no reason to look
beyond Petitioners' housing rental business.
Second, as a result of failing to recognize the
per se interstate commerce identity of Petitioners'
housing rental business, the opinion exponentially
errs in failing to appreciate this: The per se Sherman
Act was plausibly violated when Respondents'
offending unilateral municipal action interfered with
and caused the losses of what are per se interstate
commerce housing rental transactions, like the loss
of the private tenancy of Tenants Dye—regardless of
how "purely local" Respondents' offense, itself, may
be. In other words, the local nature of an actor's
offending action is not what matters—it is the
interstate commerce target of that offense that
19
matters. (In this case, the interstate commerce
target is Petitioners' per se interstate commerce
housing rental transactions.) Courts have come to
this conclusion in citing to the precedent of this
Court, to wit:
The activities being restricted in the
present case need only take place in
interstate commerce and there is no
requirement for a showing that the
challenged
regulation
itself
substantially
affects
interstate
commerce.
Anheuser-Busch, Inc. v. Goodman, 745 F. Supp. 1048,
1054 (M.D. Pa. Sept. 21, 1990) (emphasis added)
(citing McLain v. Real Estate Board of New Orleans,
Inc., 444 U.S. 232, 245 (1980)). Thus, the local
nature of Respondents' offending action, itself, is
irrelevant. With this understanding, the opinion
clearly fails to appreciate this: that Respondents'
offending unilateral municipal action is preempted
by the Sherman Act not because it is alleged it is an
action that, itself, substantially affects interstate
commerce, but solely because its target is Petitioners'
interstate commerce activities that are not only
legally recognized as taking part in "substantially"
affecting interstate commerce, Russell, 471 U.S. at
862—they are, in fact, "per se" sufficiently connected
to interstate commerce," Lamont, 330 F.3d at 1258
n.10. See also United States v. Gomez, 87 F.3d 1093,
1096 (9th Cir. 1996) (finding the renting of housing
"per se substantially affects interstate commerce").
Such an erroneous failure of the opinion is
significant. It defies the fundamentals of recognized
20
interstate commerce protection. It requires us to
harken back to the established foundational finding
that interstate commerce domain protection reaches
even the purely local nature of an offender at a brick
farmhouse in the outskirts of an Ohio city, as found
in the story of Wickard u. Filburn, 317 U.S. 111
(1942). The Ninth Circuit applied Wickard in the
Gomez case to affirm the federal conviction of an
offender's setting fire to a small apartment
building—clearly illustrating this point: Even a
single instance of per se interstate commerce housing
rental activity is federally protected—despite the
local nature of the offender's action—because such a
single instance is looked upon in a legally assigned
aggregate sense when it comes to commercial activity
like house renting. Gomez, 87 F.3d at 1095 (citing,
e.g., Wickard, 317 U.S. at 127-128). Suffice it to say,
the Ninth Circuit opinion here fails to acknowledge
cases like Gomez.
Be it the localized arson offense in violation of
the Organized Crime Control Act of 1970 (18 U.S.C.
1961, et seq.), see, e.g., Gomez, the localized housing
discrimination offense in violation of the Fair
Housing Amendments Act of 1988, see, e.g., Groome
Resources, Ltd., or the instant matter of the
Respondents' localized offending unilateral municipal
action in violation of the Sherman Act, e.g., Xcaliber
Int'l Ltd., LLC—each single, local offense comes
within the purview of legally offending the federal
domain of interstate commerce because of the
aggregate factor, or otherwise the Commerce Clause
(Article I, Section 8, Clause 3) of the U.S.
Constitution (and all of such emanating legislative
21
acts) would be legally impotent it, to say the least.
From this legally required assigned aggregate
perspective, the opinion's "purely local" offense of
Respondents directed at Petitioners' per se interstate
commerce housing rental operation is an offense that
actually could plausibly be preempted by the
Sherman Act, and, thus, the FRCP Rule 12(b)(6)
pleading stage dismissal of the Hybrid Per se
Sherman Act Claim is in error of established
precedent.
2. In contradicting precedent by
disregarding the per se interstate
commerce identity of Petitioners'
housing rental business, the Ninth
Circuit opinion errs in finding the
Commerce Clause Claim is not
plausibly viable.
a.
Background.
While the Sherman Act protects competition
per Se, the Commerce Clause under a 42 U.S.C. §
1983 action, on the other hand, protects the actual
participants in the domain of interstate commerce—
Petitioners' individual interests. Dennis v. Higgins,
498 U.S. 439, 446-449 (1990). The complaint pleads
a plausible Commerce Clause violation by
Respondents. App. 111-116.
22
b.
Case law-conflict exponential
error of Ninth Circuit
opinion: failing to properly
apply the Pike test to the
circumstance of
per se
interstate commerce housing
rental
operations
like
Petitioners' to realize that
Respondents'
unilateral
municipal action violates the
Commerce Clause.
The Ninth Circuit opinion erroneously finds no
valid Commerce Clause Claim on this basis, to wit:
[Petitioners] failed to explain how
[Respondents'] decision to provide
Section 8 [monetary vouchers] to
[Petitioners'] tenants favored in-state
economic interests over out-of-state
interests, or incidentally burdened
interstate transactions.
App. 11-12 (citing Kleenwell Biohazard Waste and
Gen. Ecology Consultants, Inc. v. Nelson, 48 F.3d
391, 395 (9th Cir. 1995)). To reach this erroneous
finding of law, as before, the Ninth Circuit opinion
violates stare decisis, and its citation to Kleen.well
does nothing to avert this error. While, in citing to
Kleenwell, the opinion implicitly refers to some of the
factors of the relevant Pike test originally found in
Pike v. Bruce Church, Inc., 397 U.S. 137,142 (1970),
it fails to properly apply the said test that is used to
determine whether a government's action is lawful,
as explained below.
23
First, before the Pike test is addressed,
preliminarily it must be noted that, yet again, the
opinion erroneously fails to acknowledge the legally
recognized per se interstate commerce identity of
Petitioners' housing rental business. See App. 10-12.
See also case law (on interstate commerce
recognition), supra.
Second, even assuming arguendo the opinion
does consider the Pike test with respect to housing
rental businesses' being a per se part of interstate
commerce, it still falls short: As quoted above, the
opinion does not fully apply all the factors of the Pike
test, particularly its legitimacy factor. In relevant
part of the Pike test, Respondents' unilateral
municipal action would need to "effectuate (i) a
legitimate local public interest, and (ii) its effects on
interstate commerce [would have to be] only
incidental [in order to] be upheld unless the burden
imposed on such commerce [would] clearly [be]
excessive in relation to the putative local benefits."
Pike, 397 U.S. at 142 (brackets and emphasis added).
These factors, discussed below, make clear the Ninth
Circuit opinion errs in denying the Commerce Clause
Claim.
(i)
Error: failing to realize
no legitimate interest.
In violating the standard of needing to
consider Petitioners' pled facts "as true" and "most
favorabl[y] to [them]," Chubb Custom Ins. Co. v.
Space Sys., 710 F.3d 946, 956 (9th Cir. 2013), and
inherently needing to infer, where possible, "that the
[Respondents] [are] liable," Faulkner v. ADT Sec.
24
Servs, 706 F.3d 1017, 1019 (9th Cir. 2013) (citation
omitted), and being misled by Respondents—the
Ninth Circuit opinion improperly cleanses
Respondents' offending unilateral municipal action
free of its illegitimacy: In improperly infusing
legitimacy in "provid[ing] Section 8 [monetary
vouchers] to [Petitioners'] tenants," App. 11, inter
alia, the opinion omits Respondents' said action's
pled illegitimate/bad-faith characteristic (App. 79-80
paras. 29-30 (Compl.)) shown in various ways—
shown in its forcing tenants like Tenants Dye to go to
other landlords with such vouchers (App. 72-79
paras. 20-28) irrespective of the fact that such
vouchers could be applied toward continued tenancy
at Petitioners' housing units since Petitioners have
been qualified to maintain voucher-based tenancies
(App. 86-87 para. 41); shown in its knowingly defying
the state public policy statute that disapproves
interference with commerce transactions (App. 109
para. 66; App. 139-140 para. 114); shown in its
knowingly defying cease-and-desist notices to stop
commerce interference (see, e.g., App. 71 para. 18;
App. 99-100 paras. 50-51); shown in its scheme of
intentionally delaying Petitioners' response to the
interference so that the full effect of the then-latest
tenancy interference could take place (App. 84-85
paras. 38-39); and shown in its being fueled by the
said program's "personal vendetta" governance and
intention to run Petitioners out of business (App. 7780 paras. 27-30).
While "[s]pecific facts are not necessary,"
Erickson v. Pardus, 551 U.S. 89, 93 (2007), the
Complaint plausibly pleads the illegitimacy of
25
Respondents' said action, which the opinion
disregards. Given that Respondents' said action
cannot surpass the legitimacy factor of the Pike test,
it is unlawful. See Pike, 397 U.S. at 142.
(ii) Error: alternatively,
failing
to
realize
excessive
commerce
burden (and lesserimpact alternative).
Even assuming arguendo that Respondents'
unilateral municipal action could be wholly
legitimate, it is invalid because of its nature of
causing excessive burdens—knowingly and
inherently causing interferences with and losses of
per se interstate commerce housing rental
transactions without limitation to any per se
interstate housing rental business under the thumb
of Respondents. See App. 72-79 paras.20-28.
The opinion fails to appreciate how the
supposedly legitimate interest of Respondents' said
action "could be promoted... with a lesser impact
on interest activities." Pike, 397 U.S. at 142
One lesser-impact example:
(emphasis added).
requiring Respondents' said municipal action to
observe (and discontinue interference with) the
natural duration of existing per se interstate
commerce housing rental transactions and—only
of such
after the natural expiration
transactions—issue monetary vouchers to tenants
that Respondents desire such tenants to use
This observance would also put
elsewhere.
Respondents' said action in line with state public
26
policy that prohibits commerce interference. See,
e.g., App. 109 para. 66. Respondents' said action
violates the Commerce Clause because it eschews
this lesser-impact alternative. Pike, 397 U.S. at 142.
3. In contradicting precedent by
disregarding the per se interstate
commerce identity of Petitioners'
housing rental business, the Ninth
Circuit opinion errs in finding the
Substantive Due Process Claim is
not plausibly viable.
a.
Case law-conflict exponential
error of Ninth Circuit
opinion: failing to recognize
that Respondents' unilateral
municipal action violates
Petitioners' substantive right
to freely engage in interstate
commerce, and failing to
deliberaterecognize
that
indifference
test
plausibly establishes such a
violation.
The complaint pleads a plausible Substantive
Due Process violation. App. 116-122. Yet, the Ninth
Circuit opinion erroneously finds no valid
Substantive Due Process Claim on this basis, to wit:
[Petitioners'] pleadings do not show how
[Respondents'] conduct deprived them of
life, liberty, or property, or explain how
its behavior could be considered
"conscience-shocking."
27
App. 12 (citing Brittain v. Hansen, 451 F.3d 982, 991
(9th Cir. 2006)). To reach this erroneous finding of
law, as before, the Ninth Circuit opinion violates
stare decisis, and its citation to Brittain does nothing
to avert this error. Brittain is, in fact, inapposite to
this case's circumstances.
First, before addressing the likes of Brittain,,
preliminarily it must be noted that, yet again, the
opinion erroneously fails to acknowledge the legally
recognized per se interstate commerce identity of
Petitioners' housing rental business. See App. 10-12.
See also case law (on interstate commerce
recognition), supra.
Second, the opinion conflicts with precedent in
two other respects discussed below.
(1) Error: failure to
recognize substantive
right.
The Ninth Circuit opinion fails to recognize
Petitioners' substantive right to freely engage in
interstate commerce. Dennis, 498 U.S. at 446-449;
Dickerson, v. Bailey, 87 F. Supp. 2d 691, 695 (S.D.
Tex. 2000) (finding "fundamental liberty of interstate
commerce"), aff'd, 336 F.3d 388 (5th Cir. 2003); City of
Hugo v. Nichols, 656 F.3d 1251, 1257 (10th Cir. 2011)
(finding the "substantive right" to freely engage in
interstate commerce (citing Dennis, 498 U.S. 439));
Wolkind v. Seiph, 495 F. Supp. 507, 516 (E.D. Va.
1980) ((finding substantive rights "are 'fundamental
or 'implicit' in the concept of ordered liberty," thus
being afforded substantive due process protection)
(citation omitted)). See App. 116-121 paras. 77-87.
(ii) Error: failure to
recognize
deliberateindifference test.
Inapposite to Brittain,'s case circumstances,
the Ninth Circuit opinion fails to recognize
Respondents here are not police officers and that, as
such, they had the time to reflect on and
opportunities to cease the pursuit of their
complained-of action—thus making them subject to
the requisite "deliberate indifference" test. Tatuni v.
Moody, 768 F.3d 806, 820-821 (9th Cir. 2014) (citation
omitted). This test legally confirms such action of
theirs as plausibly what can "shockfl the
conscience," id.: Respondents are plausibly pled to
have been deliberately indifferent to the harm they
would cause Petitioners, including the denial of the
freedom to engage in per se interstate commerce
housing rental transactions.
Specifically, Respondents are pled to have
knowingly disregarded the state public policy statute
that disapproves commerce interference (e.g., App.
109 para. 66) and—furthermore--eleven (11) ceaseand-desist legal notices (including case law in such
notices) (App. 71 para. 18; App. 87-88 para. 43; App.
96-97 para. 45; App. 98 para. 48; App. 99-100 para.
50; App. 135 para. 109; App. 139-140 para. 114), as
they pressed forward to knowingly interfere with
Petitioners' interstate commerce business and cause
the latest loss of a per se interstate commerce
housing rental transaction (e.g., App. 70-71 para. 17;
App. 79-80 para. 29; App. 98-99 para. 48), all as a
matter of a pattern and practice (App. 72-105 paras.
29
20-58).9
II.
Case law conflicts: The Ninth Circuit
opinion errs in denying the vacatur of the
vexatious-business litigant injunction.
The Ninth Circuit opinion erroneously affirms
the vexatious-business litigant injunction. App. 8-9.
The basis for the affirmation is flawed—(1) it fails to
acknowledge the lack of actual notice and
opportunity, (2) it fails to acknowledge this amounts
to a lack of due process that, legally, makes the
vexatious-business litigant injunction invalid.
1.
The Ninth Circuit opinion errs in
failing to acknowledge the lack of
actual notice and opportunity.
The Ninth Circuit opinion obscures and
otherwise omits these facts: Respondents filed their
vexatious-business litigant motion that Petitioners
identified as being plagued with falsifications and
9 Incidentally, the opinion, again, makes an error:
It
erroneously finds that Petitioners "sued [Respondents] for
engaging in activities that are authorized by law...." App. 12.
The erroneousness of this finding is in the opinion's omission
that Respondents' unilateral municipal action of interfering
with Petitioners' per se interstate commerce housing rental as
plausibly unlawful and illegitimate/done in bad faith (App. 7980 para. 29 (Compl.))—unlawful in terms of state policy as a
state statute makes clear no governmental actor should be
insured from liability for commerce interference (e.g., App. 109
para. 66), unlawful in terms of means (App. 72-79 paras. 20-28;
App. 86-87 para. 41), and unlawful in terms of personal
vendetta-driven intent (App. 77-80 paras. 27-30) (see, e.g., Perry
v. Brown, 671 F.3d 1052, 1101 (9th Cir. 2012) ("animosity. ..is
not a legitimate... interest" (citation omitted))).
30
misrepresentations. In turn, as opposed to denying
or striking the vexatious-business litigant motion
(and thus putting an end to the vexatious-business
litigant injunction request), the District Court—
unexpectedly—in the actual vexatious-business
litigant injunction simultaneously informed
Petitioners for the first time that it had declared
Petitioners vexatious after discarding the content of
Respondents' vexatious-business litigant motion
(App. 52-53), and (without prior notice) venturing
sua sportte in its own "factual summary" expedition
(App. 53) to determine Petitioners vexatious.
No notice and opportunity was given to
Petitioners to address the District Court's de fact sua
spomte vexatious-business litigant injunction (based
on the District Court's aforesaid expedition that
substituted the discarded content) before it was
issued. (The Ninth Circuit opinion confusingly states
Petitioners "declined" a hearing opportunity, but that
hearing declination pertained to only Respondents'
per se vexatious-business litigant motion given its
prima facie flaws—not the District Court's separate
and independent expedition-based vexatious
'finding.' App. 8.)
2.
The Ninth Circuit opinion errs in
failing to vacate the vexatiousbusiness litigant injunction as a
matter of law given the lack of due
process.
Even if the District Court thought that
Petitioners "richly deserved" the vexatious-business
litigant injunction issued against them, they were
31
still owed the due process protection of notice and
opportunity. In re Deville, 280 B.R. 483, 498 (9th Cir.
BAP 2002). This is particularly so because the
District Court's content substitution of Respondents'
vexatious-business litigant motion with its own
ventured findings made the vexatious-business
litigant injunction a de fact sua sponte order,
requiring, before its issuance, the "indispensable
perquisite" issuance of a show-cause order, Lasar v.
Ford Motor Co., 399 F.3d 1101, 1109 (9th Cir. 2005),
to inform Petitioners of the District Court's own
findings and allow Petitioners to prepare a defense
particularly relative to what the District Court
gathered from its point of view, Toni Growney Equip.
v. Shelley Irrigation Dev., 84 F.2d 833, 835-837 (9th
Cir. 1987). See Lasar, 399 F.3d at 1110; In re Soo
Hyun Cha, BAP NO. CC-07-1027-MoDMc, 2007
Bankr. LEXIS 4932, at *15..20 (9th Cir. BAP Aug. 16,
2007); Weissman. v. Quail Lodge, Inc., 179 F.3d 1194,
1197-1200 (9th Cir. 1999). With the lack of such due
process for an injunction that is considered "extreme
remedy" for which "particular caution" be taken, the
vexatious-business litigant injunction must be
vacated. De Long v. Hennessey, 912 F.2d 1144, 1147
(9th Cir.1990).
CONCLUSION
Wherefore, for all the reasons presented above,
Petitioners request the grant of their petition for writ
of certiorari, and that ultimately the Ninth Circuit
opinion be reversed.
32
RESPECTFULLY SIGNED this ZZM day of
Patricia Konarski
nk E. Konarski
Pro Se
450 West Dakota Street
Tucson, Arizona 85706
Phone: 520-746-0564
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