Petition for Writ of Certiorari — Wade Robertson, Petitioner v. Richard A. Honn, et al.

Supreme Court briefJul 2, 2020

Ask Donna

What actually matters in this document.

Text

No.

2_ 0

IN THE

SUPREME COURT OF THE UNITED STATES

WADE ANTHONY ROBERTSON,

Petitioner,

RICHARD HONN, et. al,

Respondents.

FILED

JUL 02 2ULU

OFFICE OF THE CLERK

SUPREME COURT, U.S.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Wade Anthony Robertson

P.O. Box 20185.

Stanford, CA. 94309

Telephone (866) 845-6003

lawfirm@onebox.com

Pro Se

QUESTIONS PRESENTED FOR REVIEW

In 1948 Congress passed the federal judgment registration statute, 28 U.S.C.

§ 1963, which reads in relevant part as follows: "A judgment so registered shall

have the same effect as a judgment of the district court of the district where

registered and may be enforced in like manner. ..." The questions presented are as

follows:

Whether a registration court, pursuant to 28 U.S.C. § 1963, has the power

to amend or annul the judgment of the rendering court so registered, a

question as to which the courts of appeals are in conflict.

If so, may a registration court refuse to assert its jurisdiction over the

registered judgment when the judgment is challenged in the registration

court for being void or a result of a fraud on the rendering court?

In Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423

(1982) this court extended the abstention doctrine of Younger v. Harris, 401 U.S. 37

(1971), to civil enforcement proceedings, but held in relevant part that federal court

abstention was only appropriate if the parallel state "proceedings implicate

important state interest"; and the state proceedings will provide the federal plaintiff

with "an adequate opportunity in the state proceedings to raise [Federal]

constitutional challenges." Middlesex, 457 U.S. at 433. The questions presented are

as follows:

Whether a "facially conclusive" claim of federal preemption precludes

finding an "important state interest" in the state proceeding such that

Younger abstention is not appropriate, a question as to which the courts of

appeals are in conflict.

Whether the requirement of "an adequate opportunity in the state

proceedings to raise [Federal] constitutional challenges" for purposes of

Younger abstention can ever be satisfied where the first and only

opportunity to raise federal constitutional challenges to a state court's

action is by a single petition for review to that same court even though

that state court has adopted a policy of always denying any petitions for

review and also of never providing the reasons for any determinations

made, or the evidence it relied on, or facts it found, or the reasons

supporting the actions it was taking thereof.

LIST OF PARTIES

RICHARD A. HONN, (in his official capacity only);

CATHERINE D. PURCELL, (in her official capacity only);

JUDITH A. EPSTEIN, (in her official capacity only;)

LUCY ARMENDARIZ, (in her official capacity only);

JAMES P. FOX, (in his official capacity only;)

DANETTE E. MEYERS, (in her official capacity only);

JANET L. BREWER, (in her official capacity only);

MARK BROUGHTON, (in his official capacity only);

MICHAEL COLANTUONO, (in his official capacity only);

GLENDA CORCORAN, (in her official capacity only);

TERRANCE W. FLANIGAN, (in his official capacity only);

RENEE LABRAN, (in her official capacity only);

JASON PANG FE LEE, (in his official capacity only);

JOANNA MENDOZA, (in her official capacity only);

RICHARD RAMIREZ, (in his official capacity only);

SEAN M. SELEGUE, (in his official capacity only);

STACIE SPECTOR, (in her official capacity only);

BRANDON N. STALLINGS, (in his official capacity only);

ALAN STEINBRECHER, (in his official capacity only);

TODD F. STEVENS, (in his official capacity only);

GREGORY DRESSER, (in his official capacity only);

CYDNEY BATCHELOR, (in her official capacity only);

SHERRIE B. MCLETCHIE, (in her official capacity only);

ROBERT A. HENDERSON, (in his official capacity only);

ESTHER ROGERS, (in her official capacity only);

ELIZABETH RINDSKOPF PARKER, (in her official capacity only);

REBECCA FARMER, (in her official capacity only);

LAURA ERNDE, (in her official capacity only);

TANI GORRE CANTIL-SAKAUYE, (in her official capacity only);

KATHRYN M. WERDEGAR, (in her official capacity only);

MING W. CHIN, (in his official capacity only);

CAROL A. CORRIGAN, (in her official capacity only);

GOODWIN H. LIU, (in his official capacity only);

MARIANO-FLORENTINO CUELLAR, (in his official capacity only);

LEONDRA R. KRUGER, (in her official capacity only);

WALLACE E. SHIPP, JR, (in his official capacity only);

H. CLAY SMITH, III, (in his official capacity only);

WILLIAM C. CARTINHOUR, JR., (in his personal capacity only).

TABLE OF CONTENTS

OPINIONS BELOW

• •

Page

JURISDICTION

• •

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

• •

STATEMENT OF THE CASE

• •

REASONS FOR GRANTING THE PETITION

• •

The Circuit Courts are divided over whether or

not a federal judgment registered pursuant to

28 U.S.C. § 1963 vests the registering court with

the power to amend or annul the judgment of

the rendering court so registered, with a

particular emphasis on whether challenges can

be brought in the registration court for

judgments that were either void or the result of

a fraud on the rendering court.

The Circuit Courts are also divided over

whether or not a "facially conclusive" claim of

federal preemption precludes finding an

"important state interest" in parallel state

proceeding such that a federal court should

abstain pursuant to the Younger abstention

doctrine.

Younger abstention was not appropriate in the

California proceedings because the underlying

state court procedures were unconstitutional,

and expressly so per this Court's prior

holdings.

CONCLUSION

•

• •

Appendix A

INDEX TO APPENDICES

Memorandum decision of the Ninth Circuit

Court of Appeals in case No. 18-16304 affirming

the judgment of the U.S. District Court for the

Northern District of California in district court

case No. 17-cv-01724-JD, filed October 23, 2019

Appendix B

Final judgment of the U.S. District Court for

the Northern District of California in district

court case No. 17-cv-01724-JD, filed June 28,

2018

Appendix C

Order of the of the U.S. District Court for the

Northern District of California in district court

case No. 17-cv-01724-JD "Re Motions to

Dismiss," filed April 30, 2018

Appendix D

Order by the Ninth Circuit Court of Appeals in

case No. 18-16304 denying the petition for

panel rehearing and the petition for rehearing

en banc, filed February 3, 2020

Appendix E

March 19, 2020, Order of this Court regarding

"ongoing public health concerns relating to

COVID-19," and sua sponte extending the

deadline to file any petition for a writ of

certiorari to 150 days from the date of the

lower court judgment

TABLE OF AUTHORITIES

PAGE(S)

CASES

Baggett v. Department of Professional Regulation, Board of Pilot

Commissioners,

13, 15

717 F.2d 521 (11th Cir. 1983)

Baker by Thomas v. General Motors Corp,

522 U.S. 222 (1998)

Bank Markazi v. Peterson,

136 S.Ct. 1310 (2016)

Board of Trustees, Sheet Metal Workers' Nat. Pension Fund v. Elite

Erectors, Inc.,

7, 8, 9

212 F.3d 1031 (2000)

Budget Blinds, Inc. v. White,

536 F.3d 244 (3d Cir.2008)

Carr v. District of Columbia,

543 F.2d 917 (D.C. Cir. 1976)

Chaulk Servs., Inc. v. Mass. Comm'n Against Discrimination,

70 F.3d 1361 (1st Cir. 1995)

Colorado River Water Conservation Dist. v. United States,

424 U.S. 800, 817 (1976)

Covington Industries, Inc. v. Resintex A.G,

8, 10

629 F.2d 730 (2d Cir.1980)

CSXT, Inc. v. Pitz,

883 F.2d 468 (6th Cir. 1989)

F.D.I.C. v. Aaronian,

6, 11

93 F.3d 636 (9th Cir.1996)

Fidelity Nat. Financial, Inc. v. Friedman,

803 F.3d 999 (9th Cir. 2015)

First Beverages, Inc. v. Royal Crown Cola Co,

612 F.2d 1164 (9th Cir.1980)

- vi -

TABLE OF AUTHORITIES (Cont.)

PAGE(S)

CASES

Gartrell Constr. Inc. v. Aubry,

940 F.2d 437 (9th Cir. 1991)

Goldberg v. Kelly,

397 U.S. 254 (1970)

Gullet v. Gullet,

188 F.2d 719 (5th Cir. 1951)

Hirsh v. Justices of Supreme Court of State of Cal.,

67 F.3d 708 (9th Cir. 1995)

Home Port Rentals, Inc. v. International Yachting Group, Inc.,

5, 10

252 F.3d 399 (5th Cir. 2001)...

Hughes v. Attorney Gen.,

377 F.3d 1258 (11th Cir. 2004)...

In re Estate of Ferdinand E. Marcos Human Rights Litig.,

536 F.3d 980 (9th Cir. 2008)

In re Pan American Corp,

16, 17

950 F.2d 839 (2d. 1991)

In re Rose,

18, 19

22 Ca1.4th 430 (Cal. 2000)

Indian Head National Bank of Nashua v. Brunelle,

689 F.2d 245 (1st Cir.1982)

Johnson v. Waters,

111 U.S. 640 (1884)

Lapin v. Shulton,

333 F.2d 169 (9th Cir. 1964)

Marshall v. Holmes,

141 U.S. 589 (1891)

Mayo v. U.S.,

319 U.S. 441 (1943)

- vii -

TABLE OF AUTHORITIES (Cont.)

PAGE(S)

CASES

Middlesex County Ethics Comm. v. Garden State Bar Assn,

12, 13, 17

457 U.S. 423 (1982)

Moore v. Sims,

442 U.S. 415 (1979)

Morrissey v. Brewer,

408 U.S. 471 (1972)

Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp.,

460 U.S. 1 (1983)

Nat'l R.R. Passenger Corp. v. Florida,

929 F.2d 1532 (11th Cir. 1991)

New Orleans Public Service, Inc. v. Council of City of New Orleans

("NOPSI"),

12, 13, 14, 15, 16

491 U.S. 350 (1989)

Norfolk & W. Ry. v. Pub. Util. Comm'n,

14, 15

926 F.2d 567 (6th Cir. 1991)

Pacific Coast Dairy, Inc. v. Department of Agriculture of California,

318 U.S. 285 (1943)

Paul v. United States,

371 U.S. 245 (1963)

Potomac Elec. Power Co. v. Curran,

484 U.S. 1022 (1988)

Potomac Elec. Power Co. v. Sachs,

802 F.2d 1527 (4th Cir. 1986)

Rector v. Peterson,

8, 9

759 F.2d 809 (10th Cir.1985)

Republic of Sudan v. Harrison,

139 S.Ct. 1048 (2019)...

- viii -

TABLE OF AUTHORITIES (Cont.)

PAGE(S)

CASES

Sprint Communications, Inc. v. Jacobs,

571 U.S. 69 (2013)

Stanford v. Utley,

5, 6

341 F.2d 265 (8th Cir. 1965)

United States Hi Way Elec. Co. v. Home Indem. Co.,

5, 7, 8

549 F.2d 10 (7th Cir.1977)

Wells Fargo Equipment Finance, Incorporated v. Asterbadi,

841 F.3d 237 (4th Cir. 2016)

Wolff v. McDonnell,

418 U.S. 539 (1974)

Woodfeathers, Inc. v. Washington County,

180 F.3d 1017 (9th Cir. 1999)

Younger v. Harris,

401 U.S. 37 (1971)

12, 13, 14, 15, 16, 17, 18

STATUTES

Constitution of the United States, Article 1, §8, clause 17

California Constitution art. III, § 3.5

45 U.S.C. §§ 22-43

45 U.S.C. §§ 421-444

28 U.S.C. § 1963

2 - 12

OTHER

Patrick J. Smith, Note, The Preemption Dimension of Abstention,

89 Colum. L. Rev. 310, 314-16 (1989)

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment below.

OPINIONS BELOW

The judgment and memorandum opinion of the United States Court of

Appeals appears at Appendix A to the petition and is unpublished. The order of the

United States Court of Appeals denying the petition for panel rehearing and for

rehearing en banc appears at Appendix E to the petition and is unpublished.

The final judgment of the United States District Court appears at Appendix

B and is unpublished. The final order of the United States District Court appears

at Appendix C and is unpublished. The related interlocutory orders of the United

States District Court were issued orally from the bench and appear at Appendix D.

JURISDICTION

The date on which the United States Court of Appeals entered judgment in

this case was October 23, 2019. Appendix A. A timely petition for panel rehearing

and for rehearing en banc was filed and then denied by the United States Court of

Appeals on February 3, 2020, and a copy of the order denying the rehearing appears

at Appendix E .

On March 19, 2020, this Court entered an Order regarding "ongoing public

health concerns relating to COVID-19," in which it sua sponte ordered that "the

deadline to file any petition for a writ of certiorari due on or after the date of this

order is extended to 150 days from the date of the lower court judgment, order

denying discretionary review, or order denying a timely petition for rehearing,"

which by operation of law extended the time for filing this petition to and until July

2, 2020. A copy of the Court's March 19, 2020 Order appears at Appendix F.

This petition is timely under 28 U.S.C. Section 2101 and Supreme Court

Rules 13(1) and 13(5) because it is being filed within 150 days of the entry of the

order denying rehearing and rehearing en banc sought to be reviewed.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

///

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution, Amendment VI, Clause 2, states:

This Constitution, and the Laws of the United States which shall be made in

Pursuance thereof; and all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme Law of the Land; and

the Judges in every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary notwithstanding.

28 U.S.C. § 1963, states:

A judgment in an action for the recovery of money or property entered

in any court of appeals, district court, bankruptcy court, or in the Court of

International Trade may be registered by filing a certified copy of the

judgment in any other district or, with respect to the Court of International

Trade, in any judicial district, when the judgment has become final by

appeal or expiration of the time for appeal or when ordered by the court that

entered the judgment for good cause shown. Such a judgment entered in

favor of the United States may be so registered any time after judgment is

entered. A judgment so registered shall have the same effect as a judgment

of the district court of the district where registered and may be enforced in

like manner.

A certified copy of the satisfaction of any judgment in whole or in part

may be registered in like manner in any district in which the judgment is a

lien.

The procedure prescribed under this section is in addition to other

procedures provided by law for the enforcement of judgments.

STATEMENT OF THE CASE

Jurisdiction of the federal courts below

The District Court had jurisdiction below based upon Title 28 U.S.C. § 2283,

per the "relitigation exception" to the Act; and jurisdiction pursuant to 28 U.S.C.

§1331 for an injunction pursuant to the All Writs Acts, 28 U.S.C. §1651(a).[4ER:635(§§1-4)] It also had jurisdiction pursuant to 28 U.S.C. § 1331 because the

action arises under the Fifth and Fourteenth Amendments to the United States

Constitution; and under 28 U.S.C. § 1343(a)(3), in that it is brought under 42 USC §

1983. [4-ER:635(§§1-4)] It furthermore had jurisdiction pursuant to 28 U.S.C. §

1963, over a judgment registered in the District Court below. [4-ER:635(§§1-4)].

The Court of Appeals had appellate jurisdiction pursuant to 28 U.S.C. § 1291 of

the District Court's judgment entered on June 28, 2018 disposing of all claims

below. [1-ER:1]

Procedural history and Factual discussion

This case involves two things. First, it involves a federal civil judgment

originally entered in Washington, D.C., and then subsequently registered in the

Northern District of California using the federal registration statute, 28 U.S.C.

1963. Second, it involves a California state bar disciplinary action commenced

against Robertson for his alleged acts of attorney-misconduct which occurred

wholly in the District of Columbia where Robertson was separately licensed to

practice law.

The factual genesis of all these matters was a federal civil action in

Washington, D.C. between Wade Robertson and William C. Cartinhour, Jr., a

defendant below. All of the events pertaining to the matter in that suit occurred

entirely within the jurisdiction of Washington, D.C., and Mr. Cartinhour's

residence was within the District's jurisdictional reach. Mr. Cartinhour prevailed

on some, but not all, of his claims in the civil action and a judgment was entered

there in his favor. Mr. Cartinhour's attorneys then took that judgment and the

transcripts of Mr. Cartinhour's testimony in the Washington, D.C., civil trial

proceedings and solicited both the D.C. Bar and the State Bar of California to take

some remedial attorney-disciplinary action against Robertson so that they could

concurrently request monetary reimbursement from each state bar's "client

security fund." The D.C. Bar took no action on their complaints. By contrast, the

State Bar of California started disciplinary proceedings. As a consequence of the

California Bar's actions, the D.C. Bar then initiated proceedings related to its

client security fund, but it made factual findings that were entirely exculpatory to

Robertson--- including finding a lack of any evidence to establish that there had

been any attorney-client relationship between Robertson and Cartinhour.

I References to the "Excerpts of Record" of district court proceedings as filed in the Court of Appeals

is cited to as volume #, followed by "ER:", then page numer(s).

-3-

Notwithstanding, the State Bar of California pressed onward and attempted

to use a California state statute with not extraterritorial application to discipline

Robertson for his actions as an attorney in Washington, D.C..

In addition, meanwhile, Cartinhour's D.C. civil judgment was registered in

the Northern District of California pursuant to the federal registration statute, 28

U.S.C. 1983, where he and the State Bar of California then sought to afford

preclusive effect to it adverse to Robertson.

But while the State Bar of California proceedings were still underway, and

not final, it was discovered that Cartinhour's civil judgment in Washington, D.C.,

had been obtained unlawfully through a criminal fraud on the federal court in D.C.

Mr. Cartinhour's attorneys, however, had already managed to obtain an injunction

order precluding Robertson from filing any new matter that was related to the

prior judgment—thus, precluding any collateral attack or independent judgment.

Mr. Cartinhour's attorneys had been directly involved in the fraud on the federal

court in Washington, D.C., and as it turned out, their client, Mr. Cartinhour had

been ill and legally incompetent during those proceedings. The attorneys had been

manufacturing testimony for Mr. Cartinhour, and hiding from the court they

incapacity of their client, Cartinhour.

Before there was a final order of attorney discipline in California, Robertson

filed a verified civil rights action, coupled with an independent action for equitable

relief, seeking to have the registered civil judgment set aside and to have the

California Bar proceedings accordingly enjoined. No one, including Cartinhour,

objected to the equitable action seeking to vacated the fraudulent judgment;

however, the district court just sua sponte announced at the first hearing that it

was dismissing that claim based on a suspected lack of jurisdiction, and

secondarily, comity concerns. It then further held that it was abstaining pursuant

Younger abstention on all of Robertson's claims seeking to prospectively enjoin the

California Bar from proceeding further. Robertson objected on a number of

matters regarding Younger abstention; in particular, that the California Bar

lacked jurisdiction, was improperly attempting to relitigate a federal court

judgment, and was federally preempted from an enforcement action. Robertson

also objected that the California Bar proceedings were patently unconstitutional

because he had no opportunity to assert his federal constitutional claims. The

district court disagreed, and the Ninth Circuit summarily affirmed.

///

REASONS FOR GRANTING THE PETITION

The Circuit Courts are divided over whether or not a federal

judgment registered pursuant to 28 U.S.C. § 1963 vests the registering

court with the power to amend or annul the judgment of the rendering

court so registered, with a particular emphasis on whether challenges can

be brought in the registration court for judgments that were either void or

the result of a fraud on the rendering court.

The first and second questions presented on this petition regard the correct

interpretation, and uniform application of, the federal judgment registration

statute, 28 U.S.C. § 1963.

The landmark case construing § 1963 was Stanford v. Utley, 341 F.2d 265,

268 (8th Cir. 1965), which was authored by Judge (later Justice) Blackmun for the

Eighth Circuit Court of Appeals. As noted at the outset by the Eighth Circuit in

Stanford, the "legislative history affords little help." Id.

Nonetheless, looking to the plain language of the statute, the Eighth Circuit

reasoned that § 1963 registration is the equivalent of a new judgment, and is more

than a procedural device for collection on a foreign judgment. Stanford, 341 F.2d at

268. "To restrict registration to a procedural and collection device for the foreign

judgment itself, and to have it expire with the foreign judgment, would give the

words of the statute a lesser status than their plain meaning and to make

registration something far inferior to a judgment on a judgment." Id. at 270.

Moreover, "[t]he very position of the words of enforcement in the statute

demonstrates that they are additive and not restrictive and that the statute has

some substantive aspect and not exclusively a procedural character." Id. at 271.

On the limited narrow issue of the enforcement of federal judgments, other

courts of appeals are now in agreement that a registered judgment per 18 U.S.C.

§1963 has "the same effect as a judgment of the [registering] district court." United

States Hi Way Elec. Co. v. Home Indem. Co., 549 F.2d 10, 13 (7th Cir.1977) (internal

quotation marks omitted); Wells Fargo Equipment Finance, Incorporated v.

Asterbadi, 841 F.3d 237, 244 (4th Cir. 2016) ("We thus construe § 1963 to provide

for a new judgment in the district court where the judgment is registered, as if the

new judgment had been entered in the district after filing an action for a judgment

on a judgment."); Home Port Rentals, Inc. v. International Yachting Group, Inc., 252

F.3d 399, 405 (5th Cir. 2001) ("We have neither been cited to a case nor found any on

our own that questions Stanford 's holding that .... registration truly is the

equivalent of a new judgment of the registration court for purposes of enforcement

in the registration district."); In re Estate of Ferdinand E. Marcos Human Rights

Litig., 536 F.3d 980, 989 (9th Cir. 2008) ("[R]egistering a judgment under § 1963 is

the functional equivalent of obtaining a new judgment of the registration court");

But although the courts of appeals generally agree on the narrow issue of

judgment enforcement, they are otherwise divided and uncertain about the scope of

jurisdiction and role of registering courts pursuant to 28 U.S.C. §1963. Arguably,

the pitfalls were foreseeable even as early as Stanford, 341 F.2d 265, when Judge

Blackmun made the following admonitions:

We note by way of caveat that § 1963 presents much to be answered in the

future. Does the statute's 'same effect' language apply for all purposes

and embrace no exception? Does the registration court have power,

under Rule 60, F.R.Civ.P., to correct the registered judgment? .... Is a

registered judgment itself subject to registration elsewhere? May a registered

judgment be revived by a later reregistration? Is a registered judgment

subject to every attack which could be raised in an action on that

judgment, such as fraud, lack of jurisdiction, and the like? Is § 1963

the equivalent of the Uniform Enforcement of Foreign Judgments Act even

though the latter is much more detailed in its provisions? Must full faith and

credit be given to a registered judgment?

Stanford, 341 F.2d 265, 271 (emphasis added).

This instant case, in particular, involves an action in equity brought in a

registering court to set aside a judgment that was registered there pursuant to 28

U.S.C. § 1963 on the grounds that the registered judgment had been obtained by a

fraud on the court in the rendering jurisdiction. Federal Rules of Civil Procedure,

Rule 60(b), contemplates two district court procedures for obtaining relief from a

final judgment. The first is by motion. The second procedure contemplated by Rule

60(b) is an independent action to obtain relief from a judgment, order, or

proceeding. The first saving clause specifically provides that 60(b) does not limit the

power of the court to entertain such an action. Yet with both avenues, sometimes

conflating one for the other, in the decades that have passed since Judge

Blackmun's admonitions in Standford, the various courts of appeals have divided in

their approaches to interpreting the remarkably straightforward language of 28

U.S.C. § 1963 when confronted with this basic scenario.

To begin with, the Ninth Circuit in Lapin v. Shulton, 333 F.2d 169 (9th Cir.

1964), cert. denied, 379 U.S. 904 (1964), affirmed a judgment of the District Court

for the Southern District of California dismissing an independent action brought to

dissolve an injunction issued by the United States District Court of Minnesota. In

doing so it held that a district court must decline to assert jurisdiction over such a

case "so long as it is apparent that a remedy remains available" in the court that

rendered the judgment. Id. at 172 ("considerations of comity and orderly

administration of justice demand that the nonrendering court should decline

jurisdiction of such an action and remand the parties for their relief to the

rendering court, so long as it is apparent that a remedy is available there."

(emphasis added)).

Then, when subsequently confronted with a similar set of factual

circumstances involving a judgment that had been registered pursuant to 28 U.S.C.

1963, the Ninth Circuit in F.D.I.C. v. Aaronian, 93 F.3d 636 (9th Cir.1996) held that

a "a court of registration has jurisdiction to entertain motions challenging the

underlying judgment," and noted that "[i]t makes no difference whether the

challenge is brought via the procedure described in Rule 60, or some state law

analogue to Rule 60, or under the court's inherent power to set aside a judgment in

equity, a power which Rule 60 explicitly preserves." 93 F.3d 636, 639. But then, the

Ninth Circuit held that the district court's jurisdiction to entertain such challenges

to a registered judgment was entirely discretionary and would ordinarily not even

be reviewed "at all" by the Ninth Circuit regardless of whether the district court

asserted or declined to exercise jurisdiction. The Ninth Circuit held that: "Although

the registering court has wide discretion to entertain a challenge to the underlying

judgment, such motions are disfavored. Registering courts generally prefer litigants

to bring motions for postjudgment relief in the rendering court... Courts of

appeals review with deference a registering court's decision to defer to the

rendering court, if they review them at all." 93 F.3d 636, 639 (emphasis added)

(citations omitted).

By contrast, the Fifth Circuit Court of Appeals does not even permit any

discretion whatsoever in the district court but, instead, has held that federal

judgment registration pursuant to 28 U.S.C. § 1963 confers no power over the

judgment itself upon the court of registration, which accordingly may not review the

correctness of the judgment by the court of rendition. In Gullet v. Gullet, 188 F.2d

719 (5th Cir. 1951). The Fifth Circuit held that:

Registration of the District of Columbia judgment in Florida is

purely a ministerial step in its enforcement. It confers upon the

Florida court no power over the judgment itself. Whether or not the

district court for the District of Columbia properly denied full faith and credit

to the Florida divorce decree is not the concern of the Florida district

court. That question has been determined by the district court for the

District of Columbia, affirmed by the Court of Appeals, and is not subject to

review by the Florida district court in a proceeding of this nature.

188 F.2d 719, 720 (emphasis added)

Likewise, the Seventh Circuit Court of Appeals has now joined the hard-line

position taken by the Fifth Circuit; that is, that 28 U.S.C. § 1963 confers no power

over the judgment itself upon the court of registration, and it accordingly may not

modify or annul the judgment by the court of rendition. See Board of Trustees, Sheet

Metal Workers' Nat. Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031 (2000). But,

notably, the Seventh Circuit's beginnings with §1963 had actually suggested a

different course, arguably one that would have at least placed it closer to the Ninth

Circuit's current position that district courts do, in fact, have the discretionary

authority to modify or annul such registered judgments. See Aaronian, 93 F.3d 636,

639. The internally-inconsistent evolution of the Seventh Circuit's conclusions

interpreting the statutory mandate of §1963 further highlights the reasons why this

Court should intervene and clarify.

The Seventh Circuit first examined the registration statute, § 1963, in U. S.

for Use and Benefit of Hi-Way Elec. Co. v. Home Indem. Co., 549 F.2d 10 (1977). In

Hi-Way, it disagreed with the "district court [holding] that a registration proceeding

is merely a 'ministerial act, ancillary to the original action, and for the sole purpose

of enforcing a valid and subsisting judgment of another United States District

Court,'..." The Seventh Circuit held as follows:

"We do not agree with the district court's interpretation of its limited

authority in a registration proceeding... We consider the district court's

function with respect to a judgment registered pursuant to s 1963 to be more

than a merely ministerial activity for the purposes of enforcing a judgment of

another district court. The language of s 1963 indicates that the court of

registration is to treat the registered judgment as if it were an

original judgment of the registering court. ... While the powers of the

district court in a registration proceeding are not precisely defined

... It has yet to be determined whether a registering court can

entertain a motion pursuant to Rule 60(b) of the Federal Rules of

Civil Procedure, or whether the rendering court is the proper forum

in which to seek such relief. ... None of the reported decisions involving s

1963 indicate that the court of registration is powerless to grant relief against

the registered judgment."

549 F.2d 10, 13-14.

Notwithstanding its decision in Hi-Way, however, twenty-three years later

the Seventh Circuit recognized the existence of a circuit split on the question of

whether a court of registration per § 1963 could accordingly modify or annul the

judgment by the court of rendition, and it held that it had sided the "majority' of

circuits that did not permit it. See Board of Trustees, Sheet Metal Workers' Nat.

Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1034 (2000) ("This circuit is

among the majority that require Rule 60(b) motions to be presented to the

rendering court.") The Seventh Circuit's holding illuminated both the circuit split

and the reasoning behind the argument that 28 U.S.C.A. § 1963 could not be

properly interpreted to permit amendment or annulment of the registered judgment

as the minority of circuits had otherwise concluded. The Seventh Circuit held as

follows:

Logically the first question is whether a district court in which a

judgment is registered under § 1963 may modify or annul that

judgment under Rule 60(b). Some courts have held that the final

sentence of § 1963 ¶ 1—"A judgment so registered shall have the

same effect as a judgment of the district court of the district where

registered and may be enforced in like manner."—means that the

original judgment becomes a judgment of the court in which it has

been registered, and therefore may be modified or set aside by the

court of registration. See Rector v. Peterson, 759 F.2d 809 (10th

Cir.1985); Covington Industries, Inc. v. Resintex A.G., 629 F.2d 730 (2d

Cir.1980). But § 1963 does not say that the original judgment becomes

a local one; it says that the original judgment has the effect of a local

judgment. This is a substantial difference, because the registered

judgment does not lose its existence in the court that rendered the decree.

Could the Southern District of Indiana tell the Eastern District of Virginia

that it may not enforce its own judgment if, for example, Skylight or Lowry

should have assets in Virginia? A judgment may be registered in many

districts, see Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 11

Federal Practice and Procedure § 2787 (2d ed.1995), and it would not make

much sense to allow each of these districts to modify the judgment under

Rule 60(b), potentially in different ways. Rector and Covington state a

minority view. Other circuits conclude (with the support of Wright &

Miller, Federal Practice at § 2865) that requests for modification under Rule

60(b) must be presented to the rendering court. E.g., Indian Head National

Bank of Nashua v. Brunelle, 689 F.2d 245 (1st Cir.1982); First Beverages, Inc.

v. Royal Crown Cola Co., 612 F.2d 1164, 1172 (9th Cir.1980). This circuit is

among the majority that require Rule 60(b) motions to be presented

to the rendering court.

212 F.3d 1031, 1034

With respect to the Seventh Circuits' canvassing of circuit law in Board of

Trustees, 212 F.3d 1031, they were incorrect about the position of the First Circuit,

in particular as announced in Indian Head National Bank of Nashua v. Brunelle,

689 F.2d 245 (1st Cir.1982). In Indian Head, the First Circuit noted two separate

classes of cases that present exceptions to the general rule of deferring to the

rendering court: (i.) those alleging that the judgment is void for lack of jurisdiction

or because of fraud, accident or mistake, and (ii.) those asserting grounds that

would support an independent equitable action. Indian Head, 689 F.2d at 249 n. 8

& 249-50. In those categories, according to Indian Head, the registration court may

directly exercise its equitable jurisdiction. However, according to the First Circuit, if

the 60(b) motion does not fall into those narrow categories, the registration court's

determination of the matter would be an inappropriate extension of these

exceptions to the general rule. Id. at 251. In addition to demonstrating a deeper

split among the circuit courts on this legal issue, Indian Head is also relevant to the

facts of this case.

In the instant case, had this civil action been filed in the First Circuit and

governed by that circuit's rule as articulated in Indian Head, then because the

independent action alleges an unlawful fraud on the court which rendered the

judgment, the district court would have properly had jurisdiction pursuant to 28

U.S.C. § 1963 to modify or annul the judgment of the rendering court. Given the

extraordinarily egregious facts in this case, it is doubtful, at best, that the district

court would have had any discretion to refuse to assert jurisdiction in this case—

which, by contrast, is what happened in this case in the Ninth Circuit. See

Marshall v. Holmes, 141 U.S. 589, 599, 12 S.Ct. 62 (1891), quoting Johnson v.

Waters, 111 U.S. 640, 667, 28 L. Ed. 547, 4 S. Ct. 619 (1884). (Where fraud is found,

the party that used fraud should be deprived of the benefit of the judgment and any

inequitable advantage gained and the courts should not forfeit truth for the sake of

finality, nor let the technical intricacies of the law governing attachments obscure

their just administration.)

In likewise manner with the First Circuit, the Second Circuit Court of

Appeals has not adopted the hard-line position taken by the Fifth Circuit and

Seventh Circuits that 28 U.S.C.A. § 1963 confers no power over the registered

judgment itself upon the court of registration such that it accordingly may not

modify or annul the judgment by the original court of rendition. Instead, the

Second Circuit has adopted a position that is more permissive than the First Circuit

in that it has instead made a limited allowance for cases, such as those involving

entry of a default judgment, in which the rendering court is no more familiar with

the facts of the case than the court of registration. See Covington Industries, Inc. v.

Resintex A.G., 629 F.2d 730, 733-734 (2d Cir.1980).

Finally, the Third Circuit Court of Appeals somewhat recently canvassed the

landscape of circuit decisions on this issue and discussed the existing split among

the circuits. See Budget Blinds, Inc. v. White, 536 F.3d 244, 252-55 (3d Cir.2008)

(collecting cases). After discussing the split among the circuits, noting that some

circuits outright prohibited, while others permitted in limited circumstances, the

power of the court of registration, the Third Circuit in Budget Blinds noted its

general agreement with the other circuits regarding deference to the rendering

court; however, the Third Circuit also notwithstanding held that voidness

challenges, filed under Fed.R.Civ.P. 60(b)(4), could be considered by registering

courts. See Budget Blinds, 536 F.3d 244, 252-55.

This split among the circuit courts interpreting the statutory text of 28 U.S.C.

§ 1963 on the question of whether or not the registration statute confers power to

the registering court over the judgment such that it may modify or annul the

judgment of the court of rendition has become even more important because now at

least two circuits have held that registered judgments constitute new judgments in

the registering courts which can be subsequently re-registered, or even registered in

other districts pursuant to § 1963 even if the statue of limitations has already

expired in the jurisdiction where the rendering court first entered the original

judgment. This has happened with both the Ninth Circuit Court of Appeals, and

also the Fifth Circuit Court of Appeals. See Fidelity Nat. Financial, Inc. v.

Friedman, 803 F.3d 999 (9th Cir. 2015) (registration of judgment for the recovery of

money or property, rendered in another district, constitutes a "judgment in an

action," and has same effect as creating a new judgment issued by the registering

district court, and thus qualifies as an independent judgment subject to successive

registration); Home Port Rentals, Inc. v. International Yachting Group, Inc., 252

F.3d 399 (5th Cir. 2001) (Once a money judgment of the rendering federal district

court is timely registered in another federal district court pursuant to statute, the

subsequent expiration of the rendering court's statute of limitations has no effect

whatsoever on enforcement of the judgment in the district of the registration court;

after registration, time of enforcement is controlled solely by the statute of

limitations of the state where the registration court is domiciled.)

In this case, Robertson had filed as part of his complaint an independent action for

equitable relief from a civil judgment in favor of Defendant Cartinhour that had been previously

obtained by a criminal fraud upon the Federal courts in Washington, D.C. [i.e., the rendering

court] by Defendant Cartinhour and his attorneys. (4-ER:665-801).

That federal judgment from Washington, D.C., had been subsequently

registered in the district court below in this case pursuant to the federal

registration statute, 28 U.S.C. § 1963. [4-ER:800-801(1683); 635-636(¶4))

- 10 -

Moreover, the attorneys who committed the fraud on the court to obtain the

civil judgment from the rendering court subsequently obtained a filing injunction in

furtherance of their fraud such that now any equitable relief directed to that civil

judgment cannot be brought in that rendering court of original jurisdiction. (4ER:798(1671), 800(1682)). Thus, if relief from the judgment was to be obtained, it

had to be sought in a different jurisdiction if available.

And, when Robertson commenced his independent action against the

registered judgment, Cartinhour and certain other Defendants named in this action

were already seeking to enforce or to otherwise assert against Robertson in

California some preclusive effect of that registered judgment. [4-ER:800-801(1683);

635-636(114)].

Even more notably, no defendant— including even Cartinhour himself-objected to Robertson's claim for equitable relief against the registered fraudulent

judgment. But regardless, the district court sua sponte dismissed entirely

Robertson's equitable action against the registered judgment. [1-ER:10 (lines 6-8).]

The district court questioned whether its jurisdiction even existed, a contention

which it described as "doubtful." Then, separate from the question of jurisdiction,

the district court alternatively based its decision to decline the exercise of

jurisdiction on the basis of comity between sister Federal courts, holding that

"principles of comity and efficient judicial administration weigh definitively against

asking a district court to second guess the orders and decisions issued by sister

courts."

On appeal, the Ninth Circuit summarily affirmed the district court's refusal

to even hear the independent action claim seeking equitable relief against the

fraudulent judgment that had been registered pursuant to 28 U.S.C. § 1963. The

appellate panel gave no reasoned explanation, but instead described the district

court's decision as one of "declining to consider for reasons of comity Robertson's

claim seeking to vacate the judgment of sister courts." Memorandum, Oct. 23, 2019

at p.2. In support of affirming, the appellate panel Decision summarily cited to

F.D.I.C. v. Aaronian, 93 F.3d 636, 639 (9th Cir. 1996), and in its explanatory

parenthetical suggested that the court of appeals did not even have to review such a

decision by a district court in declining to assert jurisdiction over a challenge to a

judgment registered pursuant to § 1963..

Ironically, in the federal jurisdiction where the judgment was rendered-- that

is, the District of Columbia— the Court of Appeals for that jurisdiction has actually

held that independent actions left open by Fed.R.Civ.P 60(b) are not confined to the

court that rendered the judgment, but may be brought in any other court of

competent jurisdiction. Carr v. District of Columbia, 543 F.2d 917, 928 n.83 (D.C.

Cir. 1976) ). So, therefore, this district court here in the Ninth Circuit has refused

to assert jurisdiction over Robertson's independent action on jurisdiction and

potential "comity" grounds when the federal law in the rendering jurisdiction

permits a collateral attack outside on its judgments outside of the rendering

jurisdiction.

Respectfully, this Court has never substantively addressed this registration

statute, 28 U.S.C. § 1963, nor its meaning with regards to the questions noted above

over which the circuit courts are divided. On three prior occasions, this Court noted

the statute, which appears plain enough in meaning based on its unfettered text.

See Republic of Sudan v. Harrison, 139 S.Ct. 1048,1055 (2019); Bank Markazi v.

Peterson, 136 S.Ct. 1310, 1320 (2016); Baker by Thomas v. General Motors Corp.,

522 U.S. 222,237 n.8 (1998). Respectfully, this is an appropriate case to resolve the

above noted questions which have divided the circuit courts over the meaning and

import of this statute of obviously widespread national application.

2.) The Circuit Courts are also divided over whether or not a "facially

conclusive" claim of federal preemption precludes finding an

"important state interest" in parallel state proceeding such that a

federal court should abstain pursuant to the Younger abstention

doctrine.

The third question presented on this petition regards Younger abstention, and

in particular whether a "facially conclusive" claim of federal preemption precludes

finding an "important state interest" in the state proceeding such that Younger

abstention is not appropriate. , a question as to which the courts of appeals are in

conflict.

In the instant case, the district court decided to abstain from almost all of

Robertson's claims on the basis of Younger abstention, an abstention doctrine

enunciated by this Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971)

("Younger"). This Court's most recent review of the Younger abstention doctrine

was in Sprint Communications, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) ("Sprint").

And in Sprint, this Court reiterated that "a federal court's 'obligation' to hear and

decide a case is 'virtually unflagging."' Id. (quoting Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).) "Parallel state-court

proceedings do not detract from that obligation." Sprint, 571 U.S. at 77.

In Sprint, this Court noted that Younger abstention, however, was a "'far

from novel' exception to this general rule." Sprint, 571 U.S. at 77 (quoting New

Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 364,

(1989) ("NOPSI').) "Younger exemplifies one class of cases in which federal-court

abstention is required: When there is a parallel, pending state criminal proceeding,

federal courts must refrain from enjoining the state prosecution." Sprint, 571 U.S.

at 71. But the Younger abstention doctrine is not limited to only criminal

proceedings, but instead this Court has also extended the doctrine to even "civil

enforcement proceedings." See Sprint 571 U.S. at 79 (citing Middlesex County Ethics

Comm. v. Garden State Bar Assn., 457 U.S. 423, 433-434 (1982) ("Middlesex")

(extending Younger abstention to state initiated disciplinary bar proceedings

against lawyer for violating ethics rules).)

In the context of noncriminal judicial proceedings-- such as "civil enforcement

proceedings"— this Court has held that the "policies underlying Younger are fully

applicable" only if three conditions are met: (1) the state proceedings are currently

pending; (2) the "proceedings implicate important state interest"; and (3) the state

- 12 -

proceedings will provide the federal plaintiff with "an adequate opportunity in the

state proceedings to raise [Federal] constitutional challenges." Middlesex, 457 U.S.

at 433-434 (emphasis added). On the peculiar, extraordinary facts of this case,

Robertson objected below that the YoungerlMiddlesex requirement of an "important

state interest" was lacking because the state of California's attempted regulatory

actions were plainly preempted by federal law; and, in any event, California lacked

basic subject matter jurisdiction to assert its own California state statute over the

District of Columbia matters at issue in this case. [2-ER:279, 280 (lines 1-3, 18-28),

281 (lines 1-6)]; [2-ER:302, 303 (lines 15-28), 304 (lines 1-3)] Robertson likewise

objected that the "important state interest" was missing because California's

attempted regulatory actions were an improper attempt to relitigate matters

already settled by a prior federal judgment entered in the District of Columbia. [2ER:280 (lines 4-18)]; [2-ER:303 (lines 1-15)] At a minimum, Robertson's federal

preemption claim should have been dispositive against any application of the

Younger abstention in this case.

But the district court failed to directly address any of Robertson's arguments

based upon the factual particulars of this instant case that demonstrated clear

federal preemption. (Appendix C) Instead, it just summarily cited to a twenty-five

year old prior Ninth Circuit decision in which, on facts completely inapposite here,

the Ninth Circuit had summarily held that "California's attorney disciplinary

proceedings implicate important state interests." Hirsh v. Justices of Supreme Court

of State of Cal., 67 F.3d 708 (9th Cir. 1995) (Appendix C; see also 1-ER:5(lines 2122)(same).] And on review, the Ninth Circuit Court of Appeals likewise failed to

address any of Robertson's preemption arguments even though Robertson cited

numerous prior holdings of that circuit court regarding federal preemption; instead,

it too just summarily cited to Hirsh, 67 F.3d 708. (Appendix A, E)

The federal preemption issue in this case should be dispositive, but the state

of federal law on this issue remains to be settled by this Court, and the circuit

courts below are divided. This Court has never squarely addressed the development

of the preemption exception to Younger abstention. The closest it has come was

thirty-one years ago in NOPSI. See NOPSI, 491 U.S. 350, 366-67. But the Court in

NOPSI did not fully resolve the issue.

The federal preemption exception to Younger abstention first appeared in the

Eleventh Circuit Court of Appeals in Baggett v. Department of Professional

Regulation, Board of Pilot Commissioners, 717 F.2d 521 (11th Cir. 1983). The

Baggett court stressed that preemption is different from other constitutional claims

because the assertion of preemption went to the jurisdiction and power of the state

administrative agency to proceed at all, and therefore the state had no legitimate

"state interest" to justify federal court abstention. Id. at 524. The Baggett court

duly noted Middlesex, but emphasized that on the facts presented in Baggett, the

state was attempting to regulate conduct plainly under the exclusive domain of

federal regulations, and therefore it determined that, because the statutes were

preempted by federal regulations, the state's administrative agency could not

proceed. Id. at 523-524. The Baggett court concluded that, "[w]hen preemption is

- 13 -

readily apparent . . . abstention can serve no principle of 'our federalism,"' and it

therefore reversed the district court's decision to abstain. Id. at 524.

Prior to NOPSI, several conflicting variations of the preemption exception

existed throughout the lower federal courts. See Patrick J. Smith, Note, The

Preemption Dimension of Abstention, 89 Colum. L. Rev. 310, 314-16 (1989)

(describing the three divergent pre-NOPSI approaches to abstention cases where

preemption was invoked). Furthermore, the Fourth Circuit Court of Appeals

refused to treat preemption as different from any other constitutional claim. See,

e.g., Potomac Elec. Power Co. v. Sachs, 802 F.2d 1527 (4th Cir. 1986), vacated on

other grounds, Potomac Elec. Power Co. v. Curran, 484 U.S. 1022 (1988).

NOPSI was a case in which an electric utility asked a federal court to grant

injunctive and declaratory relief against the state's ratemaking authority. The

utility (NOPSI) claimed that the state's regulations were preempted, and therefore

that Younger abstention should not apply. NOPSI, 491 U.S. at 357-58.

This Court characterized NOPSI's request to suggest that federal courts

asked to invalidate a state action on preemption grounds should quickly review the

merits and determine if the claim is substantial, and if so, should resolve it. Id. at

364. But this suggestion was rejected, the Court explaining that "[t]here is no

greater interest in enforcing the supremacy of federal statutes than in enforcing the

supremacy of explicit constitutional guarantees, and constitutional challenges to

state action, no less than pre-emption-based challenges, call into question the

legitimacy of the State's interest in its proceedings reviewing or enforcing that

action." Id. at 365 Then, this Court went on to further examine the question of

whether a facially conclusive constitutional claim could warrant refusal to abstain.

NOPSI, 491 U.S. at 366-67. Referring to Younger, the NOPSI Court explained that

a party can show the type of irreparable injury recognized as an exception to

Younger "by showing that the challenged state statute is flagrantly and patently

violative of express constitutional prohibitions." Id. at 366. Of particular note, this

Court left open the possibility that although a "substantial" claim of preemption is

not enough to bypass Younger abstention, perhaps a "facially conclusive" claim is.

Id. at 367 ("NOPSI argues, even if a substantial claim of federal pre-emption is not

sufficient to render abstention inappropriate, at least a facially conclusive claim is.

Perhaps so." (emphasis added)). At end, however, the Court determined that the

statute in NOPSI did not meet this standard, and furthermore determined that

Younger abstention did not even come into play in NOPSI because the state

administrative proceeding at issue was not judicial in nature. Id. at 370.

Apparently because the Court in NOPSI never made a strong determination

regarding the preemption exception, lower federal courts have continued to apply

the preemption exception, but with inconsistent standards. See Woodfeathers, Inc. v.

Washington County, 180 F.3d 1017 (9th Cir. 1999) (holding that the district court

should have abstained under Younger because preemption was not readily

apparent); Chaulk Servs., Inc. v. Mass. Comm'n Against Discrimination, 70 F.3d

1361 (1st Cir. 1995) (holding that the district court erred in abstaining because

express preemption was readily apparent); Norfolk & W. Ry. v. Pub. Util. Comm'n,

- 14 -

926 F.2d 567, 573 (6th Cir. 1991) ("Placially conclusive' claims of federal

preemption may be sufficient to support federal jurisdiction in a case in which

abstention would otherwise be appropriate under Younger."); Gartrell Constr. Inc. v.

Aubry, 940 F.2d 437 (9th Cir. 1991) (declaring summarily that the district court

properly declined to abstain where federal law preempted the state action); Nat'l

R.R. Passenger Corp. v. Florida, 929 F.2d 1532, 1537-38 n.12 (11th Cir. 1991)

(concluding that Baggett is still good law even after NOPS1).

Moreover, the open questions left unanswered in NOPSI have led to further

new conflicts of law among the circuit courts on the issue of federal preemption in

the context of Younger abstention. Just after NOPSI, the Sixth Circuit Court of

Appeals decided CSXT, Inc. v. Pitz, 883 F.2d 468 (6th Cir. 1989). In CXST, an

interstate railroad system sought a declaratory judgment against the enforcement

of state regulations requiring toilets on locomotives on the basis that when

Congress passed the Locomotive Boiler Inspection Act and the Federal Railroad

Safety Act it preempted the state agency from making such regulations. CXST, 883

F.2d at 470 (citing 45 U.S.C. §§ 22-43 and 45 U.S.C. §§ 421-444). It argued that

because the case was one of federal preemption, Younger abstention should not

apply. Id. at 471. The Sixth Circuit rejected this claim and cited NOPSI for the

proposition that preemption cases are treated the same as a claim based on any

other constitutional provision for the purposes of Younger abstention, holding that:

"we do not see any reason to analyze abstention cases involving a preemption claim

differently than other abstention cases." Id. at 473. The court reasoned that because

the state had the judicial jurisdiction to hear the case, abstention applied regardless

of whether preemption prevented the legislature from exercising jurisdiction over

the disputed area and creating the law in the first place. Id. at 474.

But less than two years later, the Sixth Circuit was faced with a very similar

claim in Norfolk & Western Railway Co. v. Public Utilities Commission of Ohio, 926

F.2d 567 (6th Cir. 1991). Yet, by contrast, in Norfolk the Sixth Circuit refused to

abstain, instead reaching the merits of the preemption issue. Id. at 569. It held that

the Federal Railroad Administration preempted the Ohio regulations and therefore

granted the requested relief. Id. (citing 45 U.S.C. § 434 (1970)). In reaching its

conclusion about the preemption exception, the Norfolk court cited NOPSI for the

proposition that facially conclusive preemption claims are sufficient to bypass

Younger abstention. Id. at 573. The Norfolk court did not explain the reasoning

behind this exception. It only stated that NOPSI allows federal courts to consider

the preemption issue without any findings by the state courts and pointed out that

consideration of a preemption claim does not require interpreting state law. Id.

Thus, in the wake of NOPSI, the Six Circuit decided two different preemption cases

but with contradictory holdings on the applicability of federal preemption to

Younger abstention claims. In CXST, it had declared that abstention applied to

preemption with equal force as it applied to all other constitutional claims. But, by

contrast, subsequently in Norfolk it applied the preemption exception to avoid

Younger abstention without any mention of an exception articulated by this Court

to justify special Younger treatment in preemption cases. See Norfolk, 926 F.2d at

- 15 -

573.

The Eleventh Circuit confronted NOPSI head on in Hughes v. Attorney Gen.,

377 F.3d 1258, 1264 (11th Cir. 2004), cert. denied, No. 04-526, 2005 WL 35945 (U.S.

Jan. 10, 2005). The Hughes court began its comparison of Baggett and NOPSI by

pointing out the NOPSI court's declaration that "there is not any distinction

between a claim of federal preemption and any other constitutional challenge to

state action as it relates to a state's interest in its own proceedings enforcing or

reviewing state action." Id. It then conflated the two standards of preemption

exception analysis, stating that: "[r]egardless of the differences in semantics

between the terms 'facially conclusive' and 'readily apparent,' their import is the

same: only the clearest of federal preemption claims would require a federal court to

hear a preemption claim when there are underlying state court proceedings and

when that claim can be raised in the state forum." Id. at 1265.

The Eleventh Circuit then officially dropped the "readily apparent" standard in

favor of this Court's terminology of "facially conclusive." Id.

Accordingly, unlike the Sixth Circuit which as noted above had eventually

adopted a standard of special treatment for preemption claims in the context of

Younger abstention, the Eleventh Circuit retreated from its earlier more expansive

view to the much narrower view that only the clearest of federal preemption

claims— those that were "facially conclusive"— would preclude Younger abstention.

Adding to the circuit split is the position taken by the Second Circuit Court of

Appeals, which holds— contrary to the above-noted circuit courts-- that there is

actually a "presumption against abstention" when a case involves federal

preemption issues, particularly in the bankruptcy context, and that notions of

comity are not strained when a federal court cuts off state proceedings that

entrench upon the federal domain. See In re Pan American Corp. 950 F.2d 839, 840846 (2d. 1991) As the Second Circuit held: "Although the Supreme Court has

developed several distinct abstention doctrines .... [t]hese concerns, however, are

not implicated when federal questions are presented since supremacy clause

questions are 'essentially one [s] of federal policy."' ... We therefore have observed

that la]bstention ... is not appropriately invoked in a preemption case."' Id. at 846.

This is an appropriate case to resolve these splits among the circuit courts on

an issue of law of widespread national importance. So much so, in fact, that this

Court has previously construed such abstention issues as warranting the exercise of

its supervisory powers. See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp.,

460 U.S. 1 (1983) It also implicates the substantial federal concerns of the

Supremacy Clause of the Federal Constitution. And, furthermore, the court in this

case got the result plainly wrong. In both the district court below, and again on

appeal, Robertson objected that the clear federal preemption precluded any

"important state interest" in this case to warrant Younger abstention. (See, e.g.

Appellant's Opening Brief on appeal at pp.47-55). The lower courts in this matter

had to look no further than three prior cases of this Court which Robertson cited to

in the proceedings below.

As a matter if indisputable law, by constitutional decree the District of

- 16 -

Columbia is exclusively a Federal territory, unique as a constitutional Federal

enclave under the exclusive jurisdiction of the Federal government. See

Constitution of the United States, Article 1, §8, clause 17. Consequently, because

the District of Columbia is within the exclusive jurisdiction of the Federal

government, no state— including California— may apply its local "state law" to acts

and events wholly occurring within the District of Columbia. Paul v. United States,

371 U.S. 245, 263, 83 S.Ct. 426 (1963) (holding that "[t]he power of Congress over

federal enclaves that come within the scope of Art. I, § 8, cl. 17, is obviously the

same as the power of Congress over the District of Columbia" and "by its own

weight, bars state regulation without specific congressional action."); Pacific Coast

Dairy, Inc. v. Department of Agriculture of California, 318 U.S. 285, 63 S.Ct. 628

(1943) (refusing to permit the enforcement of a California state law to a contract

entered into and performed on a federal enclave to which jurisdiction had been

ceded to the United States and holding that because the matter was within the

exclusive jurisdiction of the United States, California law could not, and did not,

apply.); Mayo v. U.S., 319 U.S. 441, 447 at n.11 (1943) (holding that "[t]he state is

powerless to punish its citizens for acts done in exclusively federal territory." (citing

Pacific Coast Dairy, 318 U.S. 285)).

Yet in the facts of this case, the state agency of California insisted that it had

the authority to use a California state law--- one which, in fact, had no

extraterritorial mandate beyond California— to try to regulate Robertson's conduct

in Washington, D.C., where Robertson was separately licensed by that jurisdiction,

in order to impose a penalty on Robertson. Years before, in Pacific Coast Dairy, 318

U.S. 285, California had tried something analogous and been rebuked. Nothing is

different this time. The courts below were in error to invoke Younger abstention.

And, it is noteworthy that if Robertson's case had been brought in the Second

Circuit Court of Appeals, then in accordance with that circuit's holding in In re Pan

American Corp., 950 F.2d 839, Younger abstention would not have been permitted.

This case is an excellent case to resolve this important question of law of

which the circuit courts are in disagreement.

3.) Younger abstention was not appropriate in the California proceedings

because the underlying state court procedures were unconstitutional,

and expressly so per this Court's prior holdings.

With regards to the fourth question presented, in Middlesex County Ethics

Comm. v. Garden State Bar Assn., 457 U.S. 423 (1982) this court limited Younger

abstention2 in non-criminal civil enforcement proceedings to only those

circumstances where the state proceedings would provide the federal plaintiff with

"an adequate opportunity in the state proceedings to raise [Federal] constitutional

challenges." Middlesex, 457 U.S. at 433.

But this Court has also made clear that any such state court opportunity must

be constitutionally "adequate." Moore v. Sims, 442 U.S. 415, 431, 431 n. 12, (1979)

Younger v. Harris, 401 U.S. 37 (1971)

- 17 -

(the state court opportunity must be constitutionally "adequate," and must afford an

"opportunity to fairly pursue their constitutional claims in the ongoing state

proceedings.".)

This Court's prior holdings also indisputably hold that Federal Constitutional

Due Process requires a written statement by the actual decision-maker-- the

factfinder with the authority to take action-- as to the evidence relied on, the facts

found, and the reasons supporting the action thereupon to be taken even in

noncriminal proceedings where the full panoply of rights due a defendant in such

proceedings does not apply but instead only the minimum requirement of

procedural due process. See Wolff v. McDonnell, 418 U.S. 539, 556-565 (1974);

accord Morrissey v. Brewer, 408 U.S. 471, 480-489 (1972) (holding that in parole

revocation proceedings, even though "the revocation of parole is not part of a

criminal prosecution and thus the full panoply of rights due a defendant in such a

proceeding does not apply," id. at 480, the "minimum requirements of due process"

notwithstanding included "a written statement by the factfinders as to the evidence

relied on and reasons for revoking parole.." Id. at 489); accord Goldberg v. Kelly, 397

U.S. 254, 256, (1970) (holding that because a decision on the withdrawal of welfare

benefits must "rest solely on the legal rules and evidence adduced at the hearing,"

id. at 271, due process requires that the decision-maker "demonstrate compliance

with this elementary requirement" by "stat(ing) the-reasons for his determination

and indicat(ing) the evidence he relied on." Id. at 271)

In the facts of this case, the federal district court below invoked Younger

abstention and refused to permit Robertson to adjudicate injunction claims against

the State Bar of California prior to any actual attorney-discipline being imposed

against Robertson. As objected to below, and undisputed, the California

Constitution precludes the State Bar of California's administrative "court" from

even considering federal constitutional claims. See California Constitution art. III, §

3.5. In addition, under established California law, the State Bar of California

possesses no state judicial authority whatsoever in California but instead is only

empowered to make advisory recommendations to the California Supreme Court in

matter of California attorney-discipline. See In re Rose, 22 Cal.4th 430 (Cal. 2000)

("Rose"). In Rose, the California Supreme Court confirmed yet again that the "the

State Bar's [factual] determinations are advisory only," id. at 442, and that the

Bar's disciplinary recommendation to suspend or disbar an attorney are wholly, and

"merely recommendatory in character." Id. at 442 And the Court further confirmed

that it, and it alone, makes the first and only judicial order in all California State

Bar Court matters, id. at 438-454; and that, consequently, it exercises only original

and not appellate jurisdiction. Id. at 454. Well, fair enough.

However, as alleged below, it is a fact that the California Supreme Court,

who is the first, and only, decision-maker— and, therefore, the only possible

opportunity in any California state court that an attorney facing adverse state bar

action might have to litigate their federal constitutional claims— no longer grants

any review in State Bar cases for attorneys claiming error in attorney-disciplinary

proceedings by the State Bar of California. [4-ER:806-807(¶706)] The California

- 18 -

Supreme Court has simply adopted a policy of carte blanche accepting whatever

may be the recommendations of the State Bar of California in every matter

involving any imposition of attorney-discipline.

Moreover, even if a California attorney attempts to litigate their federal

constitutional claims with the California Supreme Court by filing a "petition for

review," as of the year 2000 when the California Supreme Court announced in Rose

that the new policy that it had adopted for its handling of attorney petitions for

review was not unconstitutional (over objections) it did so in contravention of this

Court's notable prior holdings cited above regarding the requirements of minimum

due process. Spoke the California Supreme Court::

We conclude, after analyzing and balancing the relevant factors, that the

due process clause does not require that we hear oral argument or

issue a written opinion before denying an attorney's petition for review of

a State Bar Court decision recommending disbarment or suspension.

Rose, 22 Ca1.4th at 458 (emphasis added).

Then Justice Janice Brown, before she was elevated to Circuit Justice of the

D.C. Court of Appeals, interjected a vigorous dissent that was telling, to wit:

"[T]he attorney facing suspension or disbarment from the right to practice her

profession gets no hearing, no opportunity for oral argument, and no written

statement of reasons — from this or any other [California state] court. ... Instead,

she gets a summary denial of review, the one-line order." Rose, 22 Ca1.4th at 466.

Accordingly, the district court below was in error to invoke Younger

abstention in this case ,and these structural errors with the California proceedings

impact courts across the country because of the interlocking sets of "reciprocal'

disciplinary orders—including with this Court— with the attorney-licensing

mechanisms in California. Because of the national importance of this matter, and

because the California is clearly operating in contravention of this Court's prior

holdings, the Court should resolve this matter with this case.

CONCLUSION

Respectfully, the petition for a writ of certiorari should be granted so that this

Honorable Court can consider the merits of the questions for review.

Respectfully Submitted,

Date: July 2, 2020

Wade Anthony Robertson

P.O. Box 20185.

Stanford, CA. 94309

Telephone (866) 845-6003

law firm@onebox.com

Pro Se

- 19 -

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.