Petition for Writ of Certiorari — Rhomberg v. Wilson

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

FrLe DB

(") 961856 MAY 19 1997

| en ane saeemmmngpeatmmanimtetiieteetsitie se

CASE #

jn Che Supreme Court Of Che Gnited States

October Term, 1996

ALBIN A. RHOMBERG, JOHN BURNS, MICHAEL BURNS,

THERESA REALI, SCOTT KILEY, JACK COOKE, JOSEPH

SCHEIDLER, AND ESTATE OF JCHN SZABO,"

PETITIONERS

US.

PETE WILSON; BOB WHITE; MARTY WILSON; PETE WILSON

FOR GOVERNOR CAMPAIGN COMMITTEE; PETE WILSON

INAUGURAL COMMITTEE; RUSSELL COLLIAU; KAREN

MCGAGIN; TOM COOPER; DUANE LOWE; MONTEY

HENSLEY; JAMES PENNELL; R. BARTUCCO; J.E. EVERETT;

P.D. HARDER; W.E. MACDONALD; A. PEREZ; D.H. PETERS;

PETER OSTERGAR; DANIEL LUNGREN, ATTORNEY GéNERAL

OF THE STATE OF CALIFORNIA; CITY OF SACRAMENTO;

GREGORY TWILLING; & P. DOWDEN,

RESPONDENTS

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

with Appendix

JAMES JOSEPH LYNCH, JR

ATTORNEY AT LAW (SBN 85805)

1562 RESPONSE DR., SUITE 3103

P. O. Box 336

SACRAMENTO, CA 95812-0336

OFFICE: (916) 448-7871

FAx: (916) 448-0549

COUNSEL FOR PETITIONERS

* The following dropped out in the lower courts: Charles Shunk,

Richard Szabo, and Laurette Elsberry.

THE QUESTIONS PRESENTED FOR REVIEW

1. Was recusal required where, prior to the filing of the

lawsuit, the trial judge was an attorney for one Respondent

for a significant portion of his legal career, and another Re-

spondent, as U.S. Senator, played an essential and active

role in the judge’s nomination to the U.S. District Court?

2. Do Catholics, who believe in the sanctity of human

life, have standing to assert the rights of the Unborn where,

in their own Cathedral, they are arrested for praying for

their faith, the Unborn, and the repentance of a pro-abortion

governor-elect?

3. Are the Unborn “persons” in the Constitutional sense

by virtue of the term “Posterity,” as used in the Preamble of

the Constitution of the United States, and therefore entitled

to defend their lives, and to be defended by third persons,

such as the Petitioners in this case?

4. Are Penal Code §§ 145 and 302 repugnant to the 1st

Amendment when used to arrest and remove Catholics,

who believe a pro-abortion governor-elect celebrating his in-

auguration in their Cathedral is a sacrilege, praying for their

faith, and the repentance of the governor-elect, in the ab-

sence of violence or threats thereof?

3. Is there sufficient evidence raising genuine triable is-

sues of fact that either Pete Wilson, Robert White, or both,

deprived Petitioners, or caused Petitioners to be deprived of,

federally protected rights in the arrest and removal of Peti-

tioners from a Cathedral by virtue of their personal pres-

ence, right of control over other Respondents, and direct

evidence they controlled the activities of other Respondents?

6. Does good faith depend on the facts observed in the

arrest of Catholics in their Cathedral, rather than on the

status of state law or the good faith of another person?

7. Did the trial court mislead the jury by following its de-

cision on cross-motions for summary judgment, thus pre-

cluding the jury from considering the rights of the Petition-

ers to be present in the Cathedral to protect their religious

beliefs, the rights of the Unborn, and their standing to pro-

tect the rights of the Unborn?

THE QUESTIONS PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES vi

PETITION FOR WRIT OF CERTIORARI 1

OPINIONS BELOW 1

JURISDICTIONAL STATEMENT 1

STATUTORY PROVISIONS INVOLVED 1

JURISDICTION OF DISTRICT COURT 2

STATEMENT OF THE CASE 2

A. INTRODUCTION 2

B. PROCEDURAL HISTORY 2

C. SUMMARY OF MATERIAL FACTS 5

1. The Cathedral, And Coordination 5

2. Petitioners’ Activities Prior to Event................ 5

3. Petitioners’ Event activities before

arrest 6

4. Respondents’ Relationship &

Activities 7

5. The Evidence against P. Wilson,

White, et al. 9

6. Evidence against City and Lt. Twilling......... 10

7. Arrest of Albin Rhomberg. 10

8. Arrest of John Burns. 11

9. Arrest of Michael Burns 11

10. The Arrest of J. Szabo 12

11. Arrest and mistreatment of Theresa

Reali 12

(ii)

12. The Arrest of Scott Kiley 13

13. The Arrest of Joseph Scheidler 13

14. The Arrest of Jack Cooke 14

SUMMARY OF ARGUMENTS 15

ARGUMENT 16

i. ©THE LOWER COURTS DECIDED AN IMPOR-

TANT QUESTION REGARDING RECUSAL

NOT DIRECTLY FACED BY THIS COURT,

THAT APPEARS TO BE INCONSISTENT

WITH PRECEDENT, OR REQUIRES THE

SUPERVISORIAL HAND OF THIS COURT............ 16

Il. THE LOWER COURTS DECIDED IMPOR-

TANT QUESTIONS OF LAW REGARDING

STANDING, PETITIONERS’ RIGHTS, AND

THOSE OF THE UNBORN, PART OF A

CONTINUING PUBLIC CONTROVERSY, IN-

CONSISTENTLY WITH PRECEDENT, AND

BECAUSE PETITIONERS CAN POINT TO

EXPRESS WORDS THAT INCLUDE THE

UNBORN AS CONSTITUTIONAL PERSONS,

THIS COURT OUGHT CONSIDER AND

RESOLVE THESE IMPORTANT ISSUES AT

THIS TIME 17

A. THESTANDARD FOR SUMMARY JUDGMENT........... 17

B. THE LOWER COURTS DECISION ON STAND-

ING IS INCONSISTENT WITH PRECEDENT IN

THIS COURT 18

C. WHETHER THE UNBORN ARE MEMBERS OF

‘POSTERITY’ IN THE PREAMBLE IS AN IM-

PORTANT ISSUE THIS COURT HAS NOT HAD

THE OPPORTUNITY TO FACE DIRECTLY, AND

DECIDED BELOW IN A_ MANNER _§IN-

CONSISTENT WITH THE DIRECTION THIS

COURT HAS BEEN TAKING 20

(iii)

D. THE LOWER COURTS’ DECISION ON PETI-

TIONERS’ RIGHT TO PRAY IN THE CATHE-

DRAL IS AN IMPORTANT ISSUE DE NOVO, AND

INCONSISTENT WITH PRECEDENT.

E. CALIFORNIA PENAL CODE §§ 145 AND 302

WERE APPLIED INCONSISTENTLY WITH PRE-

CEDENT IN THIS COURT

fil. THE LOWER COURTS APPLIED PRIN-

CIPLES OF § 1983 DEFENSES INCONSIS-

TENTLY WITH PRECEDENT

IV. THERE WERE GENUINE TRIABLE ISSUES

OF MATERIAL FACTS PRECLUDING A

GRANT OF RESPONDENTS’ MOTIONG...........000+0

A. WILSON, CHIEF OF STAFF WHITE, & THE

COMMITTEES.

B. ALL PEACE OFFICERS

C. CITY OF SACRAMENTO, TWILLING, &

DOWDEN

V. THE PRETRIAL RULINGS PREJUDICED PE-

TITIONERS AT JURY TRIAL

CONCLUSION

APPENDIX

MEMORANDUM, 2/18/97, Ninth Circuit

I. Summary Judgment

A. GOVERNOR WILSON AND ROBERT WHITE:

B. DANIEL LUNGREN AND DUANE LOWE:

C. THE COMMITTEE DEFENDANTS:

D. STATE POLICE/CUSTODY OFFICERS:

E. CITY OF SACRAMENTO:

F. CITY POLICE OFFICERS:

II. Recusal Motion

oN A ReRANHHKH Ee S B

(iv)

III. Jury Instructions

IV. Conclusion

EXCERPTS— CONSTITUTION OF THE UNITED

STAT TED ccsasssnssesnassesvsnnsensnpesessnnnsnannenesseenesescsssansasemnsessies 9

Preamble 9

Amendment 1 (Dec. 15, 1791) 10

Amendment 4 (Dec. 15, 1791) 10

Amendment 14 (July 28, 1868) 10

EXCERPTS— THE CALIFORNIA PENAL CODE............ 10

California Penal Code § 142 (1990) 10

California Penal Code § 302 (1990) 11

California Penal Code, § 834 (1990) 12

California Penal Code, § 836(b) (1990) 12

California Penal Code, § 837 (1990) 12

TABLE OF AUTHORITIES

CASES

Aetna v. Lavoie , 475 U.S. 813 (1986) 0... .ccccesesereeseees 17

Ainsworth v. Combined Ins. Co. of America, 774

Pee Ts REET sexsencnccesentsnnennemnberensenciovebits 16

Anderson v. Creighton, 483 U.S. 635 (1987) ........... 26, 28

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)

{ccaenonalikaltanenanaiecidneehannnehenpapinanbensietneesissinennsnideetenenbenoneiiinn 29

Barrows v. Jackson, 346 U.S. 249 (1953) .....scssesseseeeseees 18

Board of Airport Com’rs v. Jews for Jesus, Inc., 482

RAE EEEEED | sencencsnmnscrsintntensentnssmemaperestonivennes 25, 26

Bolling v. Sharpe, 347 U.S. 497 (1954) ....cescescssessessseenees 20

Bond v. Floyd, 385 U.S. 116 (1966) .........sescssesserssseeeeeees 24

Bowers v. Hardwick, 478 U.S. 186 (1986) ...........sceeee000 21

Brandenburg v. Oltio, 395 U.S. 444 (1969) ........cccecseoees 25

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .....ccscccesees 26

Brown v. Board of Education, 349 U.S. 294 (1955)

SIND BED sseccosersisecensnotqcsisnancpniasicuabsniehenlianenteninenentens 20

Brown v. Avemco, 603 F.2d 1367 (9 Cir. 1979). .......... 29

Brown v. Board of Education, 347 U.S. 483 (1954)

IE TD cncrrcsessoversnensvsssntiunnantsnnentiionenontinnmatemeiaties 20

Cantwell v. Connecticut, 310 U.S. 296 (1940)... 24

Carlson v. Green, 446 U.S. 14 (1980) oo... eeeeeeeseeeeeeeeeees 26

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). ........ 29

Continental Ore Co. v. Union Carbide & Caron

CON, TIO GD caxisnsectiscsinsersisinsmnsntvtinebinnnatnone 29

Coie a. Basen, G29 US. TSG GEST G) srcssccscsccccevsccsesveceseene 18

Dennis v. Sparks, 449 U.S. 24 (1980) ......cccccccessesseeeeeeees 26

Edwards v. South Carolina, 372 U.S. 229 (1963) ........... 23

Elder v. Hollowway, 114 S.Ct. 1019 (1994) 20... eeeeeees 17 |

Field v. Clark, 143 U.S. 649, 691 (1891) ........ccccccscrscsseese 21

Garland, Ex Parte ,71 U.S. (4 Wall.) 333 (1867). ........... 20

Hafner v. Melo, S02 UWS. ZUTGIT) ..ecvevcosecsesreccevsesenesseees 27

(vi)

Harlow v. Fitzgerald, 457 U.S. 800 (1982) .........cccc000000 26

Henry v. Collins, 380 U.S. 356 (1965) ........eseceeceseseeeeees 29

Hirschkop v. Virginia State Bar, 406 F. Supp. (N.D.

TH EEE * siasiruiicientnssidnaniialasuapsacsbintndienasiteiounnsesneees 16

Home Placement Service, Inc. v. Providence Journal

Gy FOr NN GE CE DIIED, scosnnccesissccossencssncnsestosecceovees 16

Houston, v. Hill, 482 U.S. 451 (1987) oo... eeceeeseeseseeeees 26

Jenkins v. Bordenkircher, 611 F.2d 162, 165-67 (6th

SL STO" wcnietuhisicdetianuplinadsiononichsisnihesecnseeieisaeens 16

Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 7311 ....... 29

Lewis v. New Orleans, 415 U.S. 130 (1974) o....eecceseseeees 26

Liljeberg v. Health Services Acquisition Corporation,

SF Py SEITE. sivassvassnvetsesstnsncecnttensesenssseeneesscane 16

Liteky v. United States, 510 U.S. 540 (1994) oo... 16

Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) ............... 18

Matsushita Elec. Co., Ltd., v. Zenith Radio Corp, 475

yas tO ITED nenusghsansnsstennebenstscnnsnenaianiesesinsontees 17, 18

Oklahoma v. Tuttle, 471 U.S. 808 (1985) .......cccceeseseeeeees 27

Owen v. Independence, 445 U.S. 622 (1978) ..........cc0000 26

Pembaur v. Cincinnati, 475 U.S. 469 (1986) ............0000 27

Pierson v. Ray, 386 U.S. 547 (1967) o....... cece 23, 26, 27

Plessy v. Ferguson, 163 U.S. 537 (1896) .........cccceseeeeeceees 20

Procunier v. Navarett, 434 U.S. 555 ooecccccccccccccccsssececees 26

PruneYard Shopping Center v. Robins, 447 U.S. 74

Ey _RCVUIRE CRE RERSEREL OE Se neabeon ea 25

BOO ©. PURE, GA OT, TES IGT S) veccccsesscessvsesscnssccsssonseces 20

Scheuer v. Rhodes, 416 U.S. 232 (1974) .....eccscsssssseseeseees 27

Soldal v. Cook County, 506 U.S. 56 (1992) .......ccccceeeeeees 27

T.W. Electrical Services, Inc. v. Pacific Electrical

Contractors, Ass’n, 809 F.2d. 629 (HI 1993) .......... 18

Taylor v. Hayes, 418 U.S. 488 (1974) oo.eececcceeeeceeeees 16, 17

Tennessee v. Garner, 471 U.S. 1 (1985) .............. 19, 26, 28

Tenney v. Brandhove, 341 U.S. 367 (1951) .........eeseeeeees 26

(vi)

Tirona v. State Farm Mut. Auto Ins. Co, 812

FP Seep. BERD, BES FEE BGGG) ccvccccenesevccsccsccneseconses 18

United States v. Cruikshank, 92 U.S. (2 Otto) 542

CETTE schenscavannanctesienvuisatatiiabeieidensiaeieiiisdieiacatiiacnenes 21

United States v. DeLuna, 763 F.2d 897, 907-08 (8th

CBRs TIED <ctsninissnnsntinseineniniotitindinnianaiaiabeeuniianease 16

United States v. James Daniel Good Real Property,

Fe SE, SO GED secesinndesihcetarresnnionisrsinnnintenitisinenseses 16

United States v. Kelly, 556 F.2d 257, 262-63 (Sth

i TOPE D :seevsenstiintmnitinanoinsbhinuenlintpinieniniadigensiananepenieis 16

United States v. Will, 449 U.S. 200 (1980) 0... ceeceeeees 16

Venuto v. Witco Co., 808 F.Supp. 387 (D.N.J. 1992)

sedeisin teva teeealeninanelcanclaaiialpaiiataiaaaiainb iain 16

Watts v. United States, 394 U.S. 705 (1969) .........secseees 24

Webster v. Reproductive Health Services, 492 U.S.

FE Pe). Caitiscitnssnncinnesiiniepiiaminscins 21, 22

Will v. Michigan Department of State Police, 491

Se Ge ITE kemieshnboientictnipneatienennetnnvitinenentaetianesieens 27

PURROE ©. at, 3 CGE FO CEPR ED cncesetcmsersanesassnicsconns 16

Wood v. Strickland, 420 U.S. 308 (1974) .......cccccceeceseeees 26

CONSTITUTIONS

United States

PI. aicittinidshoiscubinnicaenianiccaisansitedeiaiasteeetsderemnindicetd 21

RUIN sichduuhniivdencasigngadicignstbrnendttekseuighoceduaceiabuteih 20

RII i hichie ioucsseutcaceapcesceonidh ncdlesacdp uaidaiatinhoascctiids 27

IIIS sus cctsiicip iintenconieninnadiinnianibaichsiinmekaaaiae 20

SF ee SN a 19

CODES

United States

ee pin ctaskeendbaninidceeidintintnlnimictrr nace |

ee CD esciietescctichannacDinsnnnrsdiaincantat 2

Fe i sesh iniapietavapratsceenttarmamainiseasion l

GET as , Maiinlaieinesenicstdehedcinn 4, 23, 26, 27

(vii)

California

ST. ITE RCO: ATT TE i, 4, 15, 19, 25, 27

oe ee i, 4, 15, 19, 25, 27,3

STATUTES

California

a eS eS ee 25

Stats. 1990, c. 822 (S.B.2483), § bo ooocccccccccccccsceeoseeee 25

RULES & REGULATIONS

United States

I odes cakaesline de ocedsacjnanrisiedvinssetceccacnc, t. 29

a 29

og | EEE EEA Oey en ne ee 29

MO UN BUND BD cocsccscncsocsearceovecscancavosceceensoses l

MISCELLANEOUS

3 Rotunda, TREATISE ON CONSTITUTIONAL LAW §

SI i ETD ciccatercssstetictmanicacecevecerensvernisomses 21

33 Fed. Proc., L.Ed., Trial § 77:280 (1995) ......c.cscesssee 29

75 Landmark Briefs and Arguments of the

Supreme Court of the United State .0..........0.000.. 20

I i 3

Lynch, POSTERITY: A CONSTITUTIONAL

PEG FOR THE UNBORN, 40 American

Journal of Jurisprudence 401 (1995) oo... 22

CASE #

jn The Supreme Court Of Che Gnited States

October Term, 1996

ALBIN A. RHOMBERG, JOHN BURNS, MICHAEL BURNS,

THERESA REALI, SCOTT KILEY, JACK COOKE, JOSEPH

SCHEIDLER, ESTATE OF JOHN SZABO,

PETITIONERS

PETE WILSON; BOB WHITE; MARTY WILSON; PETE WILSON

FOR GOVERNOR CAMPAIGN COMMITTEE; PETE WILSON

INAUGURAL COMMITTEE; RUSSELL COLLIAU; KAREN

MCGAGIN; TOM COOPER; DUANE LOWE; MONTEY

HENSLEY; JAMES PENNELL; R. BARTUCCO; J.E. EVERETT:

P.D. HARDER; W.E. MACDONALD; A. PEREZ; D.H. PETERS:

PETER OSTERGAR; DANIEL LUNGREN, ATTORNEY GENERAL

OF THE STATE OF CALIFORNIA; CITY OF SACRAMENTO;

GREGORY TWILLING; & P. DOWDEN,

RESPONDENTS

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

There are no reported opinions below. The opinion of the

9th Circuit appears in the appendix at page Al.

JURISDICTIONAL STATEMENT

1. The decision of the Ninth Circuit affirming the district

court was entered on February 18, 1997.

2. Petitioner believes that 28 U.S.C., § 1254(1) and 2101(c)

and Supreme Court Rule 13.1 confer jurisdiction on this court

because the petition seeks review of an action within 90 days

of the entry of judgment.

STATUTORY PROVISIONS INVOLVED

The following are involved and set out in the appendix:

The Preamble, p. A9.

The First Amendment, p. A10.

The Fourth Amendment, p. A10.

The Fourteenth Amendment, p. A10.

California Penal Code, § 142, p. A10

California Penal Code, § 302, p. A11

California Penal Code, § 834, p. A 12

California Penal Code, § 836, p. A 12

California Penal Code, § 837, p. A 12

JURISDICTION OF DISTRICT COURT

Jurisdiction of the district court was invoked under 28

U.S.C., § 1343(a)(3).

STATEMENT OF THE CASE

A. INTRODUCTION

This case involves the arrest of Catholics in the Cathedral

of the Blessed Sacrament in Sacramento, California, by Re-

spondents acting under color of law on January 6, 1991.

Pete Wilson was elected governor of California at the

November 1990 elections. A number of events were organ-

ized to celebrate his inauguration. One event was an Event

to be held in the Cathedral on Sunday, January 6, 1991, the

Feast of the Epiphany, a special day celebrating the visit of

the Magi to the Christ Child. To accommodate the Event,

the regular 10:00 a.m. Mass was relocated to the basement.

Petitioners disagreed with the decision to: permit the

Event in the Cathedral; allow a ‘pro-abortionist’ use of the

Cathedral; and move the Mass to the basement. It upset

them to think a ‘pro-abortionist’ could take precedence over

a Mass, and concerned the Blessed Sacrament, the center of

their religion, would be present at the Event. These are

Catholic concerns, not political ones. It is not surprising in

the days prior to the Event, outraged parishioners and other

Catholics attempted to have the Event moved elsewhere.

The Pete Wilson Inaugural Committee (hereinafter, Inau-

gural Committee) had overall responsibility for the Event,

while State police were responsible for security. These two

groups appointed a head usher with no connection with the

Cathedral, to make citizens’ arrests if there was, in the

usher’s opinion, a disturbance. City and State Police worked

together for crowd control outside, and to provide a paddy

wagon. The Church was represented in some of these dis-

cussions, and made it clear they would not approve the ar-

rest of Catholics in the Cathedral.

There were three opinions as to the nature of the Event.

Bishop Quinn thought the Event was a religious service, not

to honor Gov. Wilson, but to pray for him and his admini-

stration for guidance. (Excerpt,! pp. 697, 710, (Rhomberg)

549, (Video, KCRA Segment) 567.) Petitioners, opposed to

abortion, felt it was a Sacrilegious Event and a scandal be-

cause the public might misinterpret the Church's position’

on abortion.* (Excerpt, p. 711-12.) Respondents felt the In-

augural Event was primarily a government function. (Ex-

cerpt, pp. 712, (Robert White) 419.)

At the beginning of the Event, as the clergy were proc-

essing from the door to the altar, they were stopped near the

door, while a number of people in the front pews were ar-

rested and removed from the Cathedral because they prayed

the “Our Father,” a religious prayer. Towards the end, as

concluding prayers ended, one person appended a prayer

reflecting pro-life views and was arrested. After the clergy

had left the altar, and the P. Wilson party was departing,

one more asked him to change his views on abortion, and he

was arrested. All of the arrests were for violating California

Penal Code § 302, disturbance of a religious assemblage. See

App., p. 11.

The Petitioners engaged only in prayers, some quietly,

' “Excerpt” refers to the record as filed in the Ninth Circuit pursu-

ant to Local rule in lieu of an Appendix of the Record. The following con-

vention is used: (Excerpt, pp. Gtame of Person Involved) page (fact), page

(fact); (Name) page (fact), etc.)

A Catholic who believes in the teachings of the Church would

have to be against abortion. (Excerpt, p. 710.)

3 A fear which appears to have materialized in view of the public

comment of Marie Saroyan, “... a fine event to honor our new governor . .

..” (Exhibit P-16, Video Tapes, KCRA Segment, 0:00:29:00.)

4 It does not offend the Establishment Clause of the 1st Amendment

merely because civil enforcement corresponds to the tenants of some re-

ligious belief. Generally, Harris v. McRae (1979) 448 U.S. 297, 319, 320; Wit-

ters v. Washington Dept. of Social Svcs for the Blind (1986) 474 US. 481.

Stated otherwise, that the Fifth Commandment (Exodus 20:13.), in Judeo-

Christian ethics, prohibits taking human life does not prevent civil en-

forcement of murder laws or feticide.

some moderately loud. There was no violence, and no ex-

press words uttered regarding abortion, until the end. Thus,

this case is essentially one of wrongful arrest, based on

speech, prayer, protected by the ist, 4th, and 5th Amend-

ments, which cannot amount to a crime, excessive force and

false imprisonment, by the respondents acting under color

of law in an effort to silence the pro-life voice.

The respondents’ defense to liability was a claim they ei-

ther had probable cause, or acted in good faith reliance on

§§ 145 or 302, and therefore they are immune.

B. PROCEDURAL HISTORY

A civil rights action under 42 U.S.C., § 1983, etc., was

filed on January 6, 1992. Amended complaints were filed on

4/24/92, 11/9/92, and 9/9/93. (Excerpt, pp. 1542, 1549,

1554.) The issues raised here are raised by the pleadings.

On March 18, 1994, Petitioners moved, amended on

March 19, to recuse Judge Burrell. (Excerpt, p. 1559.) On

April 8, 1994, the only opposition to be filed was filed by the

Pete Wilson for Governor Campaign Committee (hereinaf-

ter, Campaign Committee), Inaugural Committee, Colliau,

M. Wilson, and Tom Cooper. (Ibid.) On April 15, 1994, Peti-

tioners filed a timely reply. (Excerpt, p. 1559.) On May 17,

1994, Judge Burrell denied the motion. (Excerpt, p. 1560.) A

petition for writ of mandate in the Ninth Circuit was denied

on or about March 13, 1995. (Excerpt, p. 1574.)

On May 27, 1994, Wilson and White moved for summary

judgment, raising immunity issues. (Excerpt, p. 1562.)

On June 17, 1994, Lungren and Lowe moved for sum-

mary judgment solely on issues relating to §§ 145 or 302 and

standing. (Excerpt, p. 1562.)

On June 24, 1994, the City Of Sacramento (hereinafter,

Sacramento), Dowden and Twilling each moved separately

for summary judgment, raising immunity and good faith

defenses. (Excerpt, pp. 1563-64.) The Campaign Committee,

Inaugural Committee, Colliau, Dan Schnur, M. Wilson, Tom

Cooper also moved for summary judgment relating to im-

munity and good faith. (Excerpt, p. 1564.) The State Police

Officers, Everett, Harder, MacDonald, Perez, Peters, Oster-

gar, and Pennel also moved for summary judgment relating

to immunity and good faith. (Excerpt, p. 1565.)

On August 5, 1994, the court consolidated all motions

and reset them to be heard on September 12, 1994, and even-

tually, the matter was heard and submitted on January 5,

1995. (Excerpt, p- 1567, 1573.) All motions were met with

timely oppositions and replies. The court filed its order on

February 23, 1995. (Ibid.) Petitioners moved for reconsid-

eration on March 6, 1995. (Excerpt, p. 1574.)

During the trial, just before the jury was instructed, peti-

tioners objected to the jury instructions given.5

On or about June 28, 1995, all Petitioners,® except Albin

Rhomberg, settled with the Wilson Campaign Committee,

the Wilson Inaugural Committee, Martin Wilson, Tom Coo-

per, and Russell Colliau only. (Excerpt, p. 1584.)

C. SUMMARY OF MATERIAL FACTS

1. The Cathedral, And Coordination

The Cathedral of the Blessed Sacrament is located 1 block

from the State Capitol. On Friday, January 4, 1991, Msgr.

James Kidder, pastor, met with members of the Inaugural

Committee and State Police. (Excerpt, (MacDonald) 166-67,

(Report) 952-55, (Colliau) 114, (Cooper) 1133-34, (Hensley)

1143, (Everett) 1132-40.) During the meeting (See post, at

page 5.), security and a copy of an Anti Desecration League

letter were discussed. Abortion protests were anticipated at

the Event. (Excerpt, pp. (Everett) 1139, (Hensley) 1142,

1142A, 1144-49, (Quinn) 1189.) Msgr. Kidder told those pre-

sent he did not want arrests. (Excerpt, pp. 869, 1166.)

2. Petitioners’ Activities Prior to Event

Petitioners are Catholic, and therefore “ pro-life.” (Ex-

cerpt, p. 675, 711-12.) About a week before the Event, a

number of Catholics learned of the Event and began calling

> The Ninth Circuit held there was no objection. That is error. Both

the trial record and the appellate record show two objections were made

orally, and one in writing. (Excerpt, pp. 1503-04, 1507-08.)

not finalized until after trial. The record is not very clear with respect to

the settlement.

and informing other Catholics of what was happening and

invited them to the 8:00 a.m. mass (hereinafter, Mass) before

the Event, and to remain and pray after the Mass. (Excerpt,

pp. 673-75, (R. Szabo) 526, (Cooke) 574, 1106, (Scheidler) 562,

(M. Burns) 553, (Shunk) 208, (Kiley) 1169-76, (J. Burns) 614,

1053-54.) There were concerted efforts, by peaceful means, to

move the Event elsewhere. (Excerpt, p. 1206-13, 1419.)

Prior to the Event Scheidler called and asked Msgr. Kid-

der to add a prayer for the Unborn, to ameliorate any mis-

understanding about the Church’s position on abortion.

Msgr. Kidder left the impression he would do so. (Excerpt,

pp. (Scheidler) 1215-18.) J. Burns also called the Chancery

and left a message for the Bishop complaining about the

Event in the Cathedral. (Excerpt, p. 1055.)

Each of the Petitioners planned to attend the Event to

pray, but had not planned to demonstrate, create a distur-

bance, or to express their opposition to the Event in the Ca-

thedral. (Excerpt, pp. 520-640, (Cooke) 304, 1108, 1110-11,

1118A, 1118B, (Shunk) 1225, (J. Burns) 1043, 1059, 1063-65,

(J. Burns) 929-23.) They decided to attend the Mass in dis-

charge of their Sunday obligation before the Event, and ei-

ther stay inside and continue praying, or go outside to dem-

onstrate. (Excerpt, pp. (J. Burns) 930, 1037, 1044, 1048-50,

1063-65, (M. Burns) 935, 1069, (Kiley) 1169-76, (Cooke) 304,

674, 1107-08.) They did not consider the Event to be a re-

ligious service but a party to celebrate Wilson's election. The

last thing they expected was to be forcibly removed for

praying. (Excerpt, pp. (M. Burns) 554-55, 1073-75, 1081.)

3. Petitioners’ Event activities before arrest

The morning of the Event, some of the Petitioners, trav-

eling separately, arrived on time for the Mass, and remained

to pray. (Excerpt, pp. (M. Burns) 1070-72, 1076, (J. Burns)

1037, 1040-42, 1048-49, (R. Szabo) 1227, (Kiley) 1177, (Reali)

193, 195, (Scheidler) 1219, (J. Hockel) 1453-65.) Laurette Els-

berry picked up Rhomberg and took him to the Cathedral

for the Mass. (Excerpt, p. 682.) Upon entering, she observed

the Szabos, Paula Burbach, Theresa Reali, Scott Kiley, and

Richard Szabo’s father inside. (Ibid.) Some arrived too late

for the Mass, but joined those who remained after the Mass

to pray. (Excerpt, pp. (Shunk) 938-39, 1221-24, (Cooke)

1108.) One Petitioner changed his mind about going out-

side, and remained inside to pray. (Excerpt, pp. (Cooke)

1109, 1119.) Some of them decided to go up front, right in

front of the altar, after Mass. (Excerpt, pp. 678, (Rhomberg)

1213, (R. Szabo) 1230, (Kiley) 540, (Reali) 1193, 1195.) Els-

berry left before the end of the Mass to call and inform Paul

Laubacher the Event was proceeding, Catholics were ready

to remain and pray, with no indication of removals. This

allowed Laubacher to fax the January 6 letter to Wilson and

the media. (Excerpt, pp. 682, 689.)

As some of the Catholics were praying, some plainclothes

persons approached and requested they move, saying some-

thing about citizens’ arrests. (Excerpt, p. 545, 679 (Msgr.

Kidder).) They did not move. (Excerpt, pp. (R. Szabo) 949,

(Reali) 1192-94.) Reali was never approached by Colliau and

asked to cease her activities. (Excerpt, pp. (Reali) 226-28,

230, 238, (Bartucco) 342, 348-51.) Bishop Quinn granted Pe-

titioners permission to remain in their pews to pray and re-

fused permission to remove them when requested by the

Respondents. (Excerpt, pp. (McGagin) 1187, (Kidder) 485),

(Quinn) 506, 508, (Colliau) 439, (Cooper) 522-23, 679.) In-

stead, Wilson and his guests were moved to another front

section. (Excerpt, pp. (Kidder) 868, (Quinn) 506, 508, 680.)

Neither the Bishop nor Msgr. Kidder considered Petitioner's

activities disruptive. (Excerpt, pp. 485, 679.)

At 10:00 a.m., prelude music was provided to set the

mood while people were being seated. While the VIPs and

other attendees were entering the Cathedral, greeting each

other and conversing, the Petitioners were kneeling in dif-

ferent areas at the front of the Cathedral and individually

praying the Holy Rosary. (Excerpt, p. 685.) As the Choir

began singing the “Battle Hymn of the Republic”, Fr. Carl

Steinauer invited the congregation to stand, but P. Wilson

motioned for everyone to sit. (Excerpt, pp. 389, 684, 686, 687-

88.) Petitioners stood with the Congregation and started

praying, and the arrests began. (See post, page 10.)

4. Respondents’ Relationship & Activities

The Campaign Committee existed to direct the campaign

that resulted in the election of Pete Wilson. The Inaugural

Committee was formed for the sole purpose of organizing

six events relating to Wilson’s inauguration as Governor.’

(Excerpt, pp. (Committee Exhibit) 1433-52, (Cooper) 1126-27,

(Rhomberg) 1433.) White was the CEO of the Inaugural

Committee. (Excerpt, p. 713, (Rhomberg) 649-51, 1436.)

P. Wilson, White, and Otto Bos were in charge of the

Transition Office and exercised ultimate control over the In-

augural Committee, which took over the Campaign office

and furniture. (Excerpt, p. (M. Wilson) 78, 79, 399, 861-62,

1240, 1244, 1246.) Most of the workers from the Campaign

Committee went to work for the Transition Office to prepare

to take over the government, while others went to the Inau-

gural Committee. (Excerpt, p. (M. Wilson) 861-62, 1243-44;

Excerpt, pp. (McGagin) 101-02, 1185; Excerpt, pp. (Wilson)

1247-48, (Cooper) 1128-29, 1135; Excerpt, pp. (Cooper) 93,

94, 1131-32; Excerpt, pp. (Colliau, 110, 135, 1092-93, 1104.)

Robert White had been Wilson’s Chief of Staff since 1963,

during a period Wilson held a number of public offices, with

a reputation of being Wilson’s alter ego, such that speaking

to White was the same as speaking to Wilson. (Excerpt, p.

709.) Ultimately, everybody reported to him. (Excerpt, pp.

(White, 415-16.) |

White appointed (Excerpt, p 671.), and P. Wilson person-

ally approved, Martin Wilson as Director of the Inaugural

Committee (Excerpt, pp. 710, (M. Wilson) 77, 78, (McGagin)

1186.) M. Wilson ran the operations assisted by Deputy Di-.

rector Patricia Clarey, Wilson’s Deputy Chief of Staff. (Ex-

cerpt, pp. (M. Wilson) 77, 78, 861, 1242 (McGagin) 1186, 692,

(Clarey) 1090.) Tom Cooper and Karen McGagin were re-

sponsible for the Event and reported directly to Clarey and

M. Wilson. (Excerpt, pp. (Cooper) 93-95, (McGagin) 100-01,

105-08, (M. Wilson) 79, 671, 1249-50.)

Lt. Montey Hensley, of the California State Police, was re-

sponsible for the security at the Event. (Excerpt, p. 697.)

7 Pursuant to Inaugural Committee’s Bylaws, Art. VI, § 5, the CEO

“Shall have general supervision, direction and control of the business of

the corporation.” (Excerpt, p. 1439.)

MacDonald and Jerry Everett were involved with threat as-

sessment for all of the events. (Excerpt, pp. 952; Ante, page,

5.) Cooper, McGagin, Hensley, MacDonald, Everett, and

Colliau were present at the Cathedral meeting regarding se-

curity. (Ante, p. 5; (Excerpt, pp. (MacDonald) 952, (Colliau)

114, (Cooper) 1134 - 35.)

Colliau was volunteer head usher, designated to make

citizen’s arrests, given additional duties and training by

state police, and part of security. (Excerpt, pp. 671, (Colliau)

110, 113, 115, 135, 1094-97, 1102, 1104, (Hensley) 1150-52.)

P. Wilson did not personally attend or participate in any

meetings, or discussions on arrests or removals, however, he

and White were briefed on security matters, and kept up to

date on planning activities. (Excerpt, pp. 702-03, 710.) An

Event schedule was sent to Clarey, raising an inference the

schedule was prepared in advance, subject to Wilson’s con-

trol and supervision. Wilson and White were aware of the

Church’s position on arrests. (Excerpt, p. 692, 710.) White

learned of the Anti-Desecration League Letter before arriv-

ing at the Cathedral. (Excerpt, p. 701.)

5. The Evidence against P. Wilson, White, et

al.

Pete Wilson was present at the Event, with his chief lieu-

tenant, White, only a few feet away. (Excerpt, p. 701.) A

number of witnesses saw P. Wilson confer with White and

Colliau, those around him, to motion to everybody to sit

down (Excerpt, pp. (J. Burns) 618-19, 1044, 1047, 1078-80.).

White expressed displeasure with Petitioners to Pennel

that was passed on to Hensley. (Excerpt, pp. (Rhomberg)

549, (Video) 567, 658, (P. Wilson) 492, 496, 497, (White) 406,

407, 408-10, 415-16, 1235-38, (Pennel) 462 (talks to White),

462 (demonstrators), 463 (removal; P. Wilson present), 464

(wished demonstration could be ended).) Witnesses saw

Colliau, apparently in charge, speak with others, and the ar-

rests began evidently on directions of P. Wilson and White.

(Excerpt, pp. 560, 690-91, 693-95, 695-97, 701, (J. Burns) 200-

01, 1018.), (Rhomberg) 549, (Video: Chan. 10 segment

00:00:32:24 - 00:00:39:281 Chan. 13 segment 00:00:37:00 -

00:00:43:20) 567, (Peters/ Perez Report) 965, (Everett report)

991.); p. 1044-47.). Respondent Pennel corroborated the

sequence of events, and what was said. (Excerpt, pp. 462

(White), 462 (demonstrators), 463 (removal; P. Wilson), 464

(wished demonstration could end), 515 (Pennel’s Report).)

6. Evidence against City and Lt. Twilling

Photographs and video show Lt. Twilling inside the Ca-

thedral aiding the removal of R. Szabo, J. Szabo, and Kiley.

He is then seen coming from the direction of the South door,

just prior to the removal of J. Szabo, less than a minute after

Reali was taken out through the South door. (Excerpt, pp. (J.

Hockel) 1453-65, (Hensely) 1153-54 (ID of Twilling), (Els-

berry) 980, (Rhomberg) 549, (Video) 567.) Another video-

tape shows Twilling outside the Cathedral watching and

smiling as R. Szabo is roughed up by City police officers

Chuck Sandoval and Geoffrey Winford. (Excerpt, pp. (Win-

ford) 1251-56, (Twilling) 1233, (Rhomberg) 549, (Video Tape

Channel 10 segment, CTL 00:00:42:28-00:00:45:16) 567, (Jen-

sen) 1156.) According to Deputy Chief Fred Arthur, Twill-

ing should involve himself in arrests or removals only if

there is violence. Petitioners caused no violence within the

Cathedral. (Excerpt, pp. 1484-86.)

With the apparent encouragement of his superiors, Dow-

den proceeded to threaten and insult Reali in an outrageous

manner while she was barely conscious and handcuffed in a

manner causing unnecessary pain and injury. (Excerpt, pp.

(Baggett) 1026-32 (description of treatment).)

City Police have a custom of ignoring injury complaints

of so-called “pro lifers” due to alleged exaggeration of those

injuries. They are only transported to the hospital if they are

bleeding, had discernible swelling or bruises, or were vom-

iting. (Excerpt, pp. (Ridge) 1485, (Baggett) 1026-32 (Theresa

Reali’s treatment).)

All Petitioners, except Reali, were escorted to a paddy

wagon and driven to the city police station at 613 6th Street.

(Excerpt, pp. (MacDonald) 1180-83.)

7. Arrest of Albin Rhomberg.

As the choir began singing, Mr. Rhomberg stood with the

congregation, while praying the Lord’s Prayer, but could not

be heard one seat away. (Excerpt, pp. (A. Tisdale) 1476-787.)

As he stood, he was approached by Colliau, seen on video,

and allegedly informed it was illegal to disrupt a religious

service and then something about citizens’ arrest. (Excerpt,

p- 592, (Rhomberg) 549, (Video) 567.).) Officers Nicholas

Perez and David Peters immediately dragged him from his

pew. (Excerpt, pp. 593, 1205, (Rhomberg’s description) 549,

(Video) 567, (Police Report) 991.)

8. Arrest of John Burns.

J. Burns was with his ten-year-old daughter, Colleen.

When the choir began signing, J. Burns stood with the con-

gregation, and started reciting the Lord’s Prayer with others.

(Excerpt, pp. (Kidder) 486, (J. Burns) 619, 1066, (Kiley) 542-

43, (Cooper) 1054, (Colliau) 1103, (M. Burns) 1072.) Persons

around them during his prayers did not hear them. (Ex-

cerpt, pp. (A. Tisdale) 1476-78, (N. Keim) 1159, (M. Burns)

957, 1077.) Sgt. Ostergar approached, grabbed him by the

upper arm (Excerpt, pp. (J. Burns) 1062.), and removed him

from the Cathedral. (Excerpt, pp. (Ostergar’s report) 967.)

Ostergar threatened to take J. Burns’ daughter if he did not

cooperate. (Excerpt, pp. 200-01, 1043.) Outside, he was

turned over to City police (Excerpt, p. 1043.), who twisted

his arm rather forcefully. (Excerpt, pp. 1067.)

9. Arrest of Michael Burns

Burns was praying when the choir began singing. He

stood with the rest of the congregation, continuing his whis-

pered prayer of the rosary, not the Lord’s Prayer, to himself.

(Excerpt, pp. (M. Burns) 556-56, 936-37, 1083-84.) No one

nearby heard him praying. (Excerpt, pp. (Tisdale) 1476-78,

(Keim) 1159.) When the arrests started, he knelt down and

continued praying the rosary silently, in fear of being “bru-

talized” too. (Excerpt, pp. 1082-83.) As he silently prayed,

Ostergar said, “Come on, why don’t you make this easy on

us because, you know, if you don’t come with us, we'll have

to drag you out.” (Excerpt, pp. 1082-83.) He was grabbed

and removed as he prayed silently. (Excerpt, pp. (Ostergar)

967, (M. Burns) 1084-85, 1087.).

10. The Arrest of J. Szabo

John Szabo, 81 years old, was in frail health, and had un-

dergone heart bypass surgery. (Excerpt, p. 227, 1228.) His

voice was gravely and he could not speak very loud because

of a throat condition. (Excerpt, p. 1228.) As the choir began

singing, his gravely voice could not carry across the aisle.

(Excerpt, p 957.) When approached by Bartucco, he was half

kneeling/half seated in the far right side of the front pew.

He resisted attempts to remove him from the Cathedral.

(Excerpt, p. (Reali) 227.) As Bartucco and others removed

Reali, Szabo called out, “My daughter, my daughter.” (Ex-

cerpt, pp. (Burbach) 1035, (Elsberry) 972, 978.) MacDonald

was motioned by Sgt. Ostergar, to aid Everett in the removal

of J. Szabo, and did so. The arresting officers can be seen on

video hustling Mr. Szabo across the front of the Cathedral

twisting his arm.

11. Arrest and mistreatment of Theresa Reali

Reali’s father was across the aisle, about 5 feet away, in a

seated position, and she was on her knees praying the ro-

sary quietly. As Bartucco approached her father to remove

him, Reali rose and approached to tell Bartucco about her

father’s frail health. (Excerpt, 226-27.) Bartucco immedi-

ately grabbed her arm and told her she was being taken out.

(Excerpt, pp. (Judie Hockel) 1453-65, (Rhomberg’s descrip-

tion) 549, (Video) 567.) Two more men surrounded her,

turned her in the process, to drag her backwards, past a

large pillar directly south of her pew, where they forcibly

dropped her, causing her head to strike the floor. Her head

immediately felt as if it was splitting, and she suffered se-

vere pain. (Excerpt, pp. (Reali) 1196.) She remembers being

dragged to the South door, handcuffed, passed to City po-

lice outside, and a flash of bright light, but does not recall

how she got to the Board of Corporations (BOC).§ (Excerpt,

pp- (Reali) 1197-98, (Baggett) 1028-29, 1479-83.) Upon arri-

8 Reali was taken to the BOC Building by City police officers, David

Kidd and Keith Jensen on orders from Sergeant Patrick Dowden, Sacra-

mento City Police, who was in a of the SWAT team that day. (Bag-

gett, 18:25-28, 19:17-22; Kidd, 13:13- ;

6, 15:14-22; Reali, 74:28-75:10

val, she was placed in a chair with her hands held behind

her back by steel handcuffs, the entire time she was there,

with her rosary entangled in her fingers, hands and wrists.

At some point she was allowed to put her head down on a

table on some magazines. During her detention, she, and

Jay Baggett requested medical attention, more than once,

which Dowden denied with the observation she was not

bleeding and did not need medical attention. (Excerpt, pp.

(Reali) 221-22, 1201), (Baggett) 1030, 1479-83.) When Bag-

gett begged, Officer Keith Jensen, radioed “the prisoner is

complaining of dizziness”. A voice sounding like Dowden’s

replied, “well, aside from being retarded, what's her prob-

lem?” (Excerpt, pp. 1157, (Baggett) 1031, 1479-83.) While

being detained, Dowden subjected Reali to: threats; abuse;

told her to “shut up” when she moaned from her pain; used

obscenities; spoke in a taunting manner about his atheistic

and pro abortion views; called her a religious fanatic; and,

struck his hand and thigh with his night stick in a threaten-

ing manner at her, putting her in extreme fear for her safety.

(Excerpt, (Reali) pp. 1200-03, pp. (Baggett) 1032, 1479-83.)

During this time, she was in extreme pain, and was not fully

conscious all the time. (Excerpt, pp. 1199.) She was held for

about one and one half-hour before being transported to the

police station. (Excerpt, pp. 1479-83.)

12. The Arrest of Scott Kiley

As the choir began singing, Kiley stood with the congre-

gation, and began reciting the Lord’s Prayer. (Excerpt, p.

274.) While standing, citizens’ arrest was mentioned so they

resumed a kneeling position and the rosary. (Excerpt, p.

279) Without further warning, Kiley was removed by State

Officer Bartucco and City Police Lt. Twilling. (Excerpt, pp.

(Kiley) 281, 1178, (Judie Hockel) 1453-65, (Rhomberg), 649,

(Video) 657.) During the removal, Bartucco twisted Kiley’s

arm causing very painful injuries. (Excerpt, p. 1179.)

13. The Arrest of Joseph Scheidler

When Msgr. Kidder finished the concluding prayers

without a prayer for the Unborn, Scheidler added, “And

may Governor-elect Wilson— denounce his pro-abortion

position, which has made this ceremony a sacrilege.” (Ex-

cerpt, pp. (Scheidler) 563, 946, (Elsberry) 698, 972, 987.) Beth

Hockel then handed him a banner reading “Sacrilege” that

she had under her coat. (Excerpt, pp. (E. Hockel) 698, 1471-

75.) Scheidler was prevented from displaying it because Of-

ficers Harder and Ostergar, assisted by Pennel and Elizabeth

Jeske, arrested and removed him from the Cathedral. (Ex-

cerpt, pp. 705, (Harder) 964, (Ostergar) 968, (Rhomberg),

649, (Video, 2nd segment 03:10:28) 657, (Judie Hockel) 1453-

65 w/ photos.)?

14. The Arrest of Jack Cooke

As Wilson and his wife departed down the center aisle

toward the main exit, and were about three feet away,

Cooke said spontaneously in a loud voice, “What are you

going to do about murdering millions of Unborn children in

the state?” (Excerpt, pp. 698, (Cooke) 1124.) Pennel and Of-

ficer Harder claim Cooke appeared to lunge at Wilson, then

reach out, as if he intended physical contact with Wilson.

(Excerpt, pp. 699, 700.) They considered Cooke a threat to

Wilson. (Excerpt, p. 699.) Cooke denies lunging, as officers

were blocking his way to Wilson. (Excerpt, pp. (Cooke) 583,

1120, (Rhomberg) 549, (Video, Ch. 10) 567.) Jeske and

Harder held Cooke until Wilson had passed then arrested,

seized and dragged him out of the pew. (Excerpt, pp. 699,

(Colliau) 1198-01, (Cooke) 309, 1099-01, (Harder) 964,

(Ostergar) 968, (Pennel) 515, (Rhomberg) 549, (Video) 567,

(Judie Hockel) 1453-65, w/attachments, 705.)

After being grabbed, he attempted to genuflect to the

Blessed Sacrament, a form of religious worship, but was

grabbed by the belt and lifted. He was handed over to uni-

formed officers and placed in a paddy wagon. (Excerpt, pp.

583, (Cooke) 1114-16, 1117-18, 1121-23.) Cooke is identified

on television news clips.

9 Msgr. Kidder opined Scheidler would not have been removed un-

der Cat ~ arr any (Ex wih tAs p.715.) Others believe it was a prayer.

rere Pr: ( Kidder) 1167, ockel) 45365, (Jack Hockel) 1466-70, (E.

1471-75, (Cooke) 36081. 1113, Elsberr)) 972.)

SUMMARY OF ARGUMENTS

1. Recusal was required where, prior to the filing of the

lawsuit, the trial judge was an attorney for one Respondent

for a significant portion of his legal career, and another Re-

spondent, as U.S. Senator, played an essential and active

role in the judge’s nomination to the U.S. District Court.

2. Catholics, who believe in the sanctity of human life, do

have standing to assert the rights of the Unborn where, in

their own Cathedral, they are arrested for praying for their

faith, the Unborn, and the repentance of a pro-abortion gov-

ernor-elect.

3. The Unborn are “persons” in the Constitutional sense

by virtue of the term “Posterity,” as used in the Preamble of

the Constitution of the United States, and therefore entitled

to defend their lives, and to be defended by third persons,

such as the Petitioners in this case.

4. Penal Code §§ 145 and 302 are repugnant to the 1st

Amendment when used to arrest and remove Catholics, be-

lieving a pro-abortion governor-elect celebrating his inaugu-

ration in their Cathedral is a sacrilege, praying for their

faith, and the repentance of the governor-elect, in the ab-

sence of violence or threats thereof.

5. There is sufficient evidence raising genuine triable is-

sues of fact that either Pete Wilson, Robert White, or both,

deprived Petitioners, or caused Petitioners to be deprived of,

federally protected rights in the arrest and removal of Peti-

tioners from a Cathedral by virtue of their personal pres-

ence, right of control over other Respondents, and direct

evidence they controlled the activities of other Respondents.

6. Good faith does depend on the facts observed in the

arrest of Catholics in their Cathedral, rather than on the

status of state law or the good faith of another person.

7. The trial court did mislead the jury by following its

decision on cross-motions for summary judgment, thus pre-

cluding the jury from considering the rights of the Petition-

ers to be present in the Cathedral to protect their religious

beliefs, the rights of the Unborn, and their standing to pro-

tect the rights of the Unborn.

ARGUMENT

THE LOWER COURTS DECIDED AN IMPORTANT

QUESTION REGARDING RECUSAL NOT DIRECTLY

FACED BY THIS COURT, THAT APPEARS TO BE IN-

CONSISTENT WITH PRECEDENT, OR REQUIRES THE

SUPERVISORIAL HAND OF THIS COURT

The trial judge came to his present bench in a process that

significantly involved Pete Wilson, and worked most of his

professional career as a deputy City Attorney for -Respon-

dent Sacramento. His last employment with Sacramento

was near in time to the events in this case, and about a year

prior to the filing in the district court. (Excerpt, pp. 54-60.)

A timely motion was made to recuse. The judge denied the

motion. (Excerpt, p. 1560.)

The trial court summarily denied the motion to recuse.

The Ninth Circuit, relying on Ninth Circuit precedent, ruled

that neither Wilson’s recommendation, standing alone, nor

former employment as [Deputy] City Attorney establish a

sufficient basis for questioning impartiality. App., p. 8.

In Liljeberg v. Health Services Acquisition Corporation, 486

U.S. 847 (1988), the Court held the statute, reasonably con-

strued, required recusal where a judge’s impartiality might

reasonably be questioned, and recusal was required because the

judge had been a member of the Board of one of the parties

involved in the litigation."° Accord, Aetna v. Lavoie, 475 US.

10 Respondents cited a number of cases that are clearly distinguish-

able. Because executive authority appoints nearly all judges, the rule of

necessity does come into play. (C.f., United States v. Will, 449 U.S. 200

(1980) (Judge’s compensation; qualifications of judge; rule of necessity;

someone has to decide) with Aetna v. Lavoie, supra te supreme court;

one justice held a policy issued by Aetna; recusal required).) Stated oth-

erwise, if the executive is a party to a lawsuit, but there is no judge avail-

able the executive did not appoint, then the rule allows that some judge

shall have to decide the case, notwithstanding. In each of the following

recusal was not required because the executive, v5 gee authority,

was not a party: Hirsc v. Virginia State Bar, . Supp. (N.D. Va.

1975); Venuto v. Witco Co., F.Supp. 387 (D.N.J. 1992). In the following,

recusal not required in criminal case merely because the judge was an ex-

ees United States v. DeLuna, 763 F.2d 897, 907-08 (8th Cir. 1985);

ins v. Bordenkircher, 611 F.2d 162, 165-67 (6th Cir. 1979). In the fol-

§?

aye

813 (1986) (Held an Aetna policy.)

In this case, the sitting judge had a substantial relation-

ship with one of the Respondents within 2 years of the inci-

dent giving rise to this action, and sits by virtue of an ap-

pointment initiated by another Respondent. All of this

raises serious and important questions regarding the ad-

ministration of justice, and presents an opportunity to clarify

under what circumstances a judge ought to be recused.

Il.

THE LOWER COURTS DECIDED IMPORTANT QUES-

TIONS OF LAW REGARDING STANDING, PETITION-

ERS’ RIGHTS, AND THOSE OF THE UNBORN, PART

OF A CONTINUING PUBLIC CONTROVERSY, INCON-

SISTENTLY WITH PRECEDENT, AND BECAUSE PETI-

TIONERS CAN POINT TO EXPRESS WORDS THAT

INCLUDE THE UNBORN AS CONSTITUTIONAL PER-

SONS, THIS COURT OUGHT CONSIDER AND RE-

SOLVE THESE IMPORTANT ISSUES AT THIS TIME

A. THE STANDARD FOR SUMMARY JUDGMENT

A reviewing court is not limited to the law cited in the

Trial court, but in fact must consider all applicable law de

novo. Elder v. Holloway, 114 S.Ct. 1019 (1994). A court will

not grant a motion for summary judgment if, after viewing

the evidence in the light most favorable to the party oppos-

ing the motion, the court finds a genuine issue of material

fact and determines that the moving party is not entitled to

judgment as a matter of law. Matsushita Elec. Co., Ltd., v. Ze-

nith Radio Corp., 475 U.S. 574, 552-53 (1986). If the non-

moving party produces direct evidence contradicting direct

lowing, recusal was not ired for failure to show extra-judicial con-

duct: Ainsworth v. Combined Ins. Co. of America, 774 P.2d 1 (Nev. 1989);

Liteky v. United States, 510 U.S. 540 (1994).) In the following recusal was

required: Taylor v. Hayes, 418 U.S. 488 (1974) (judge had been the object of

a s wrath; bias existed); Home Placement Service, Inc. v. Providence

Journal Co., 739 F.2d 671 (1984). In the following, there was no challenge

for bias, and the rule of necessity may have been applicable, intergovern-

mental litigation: Wilson v. Eu, 1 Cal.4th 707 (1992); United States v. James

Daniel Real Property, 510 US. 43 (1993).

evidence, the court must assume the truth of the evidence as

to that fact. Tirona v. State Farm Mut. Auto Ins. Co., 812

F.Supp. 1083, 1085 (HI 1993), citing T.W. Electrical Services,

Inc. v. Pacific Electrical Contractors, Ass’n, 809 F.2d 629 (9% Cir.

1987). The court must resolve all reasonable inferences in

favor of the non-moving party, and if the opposing party

has available witnesses and evidence that demonstrates

more than some metaphysical doubt as to the material facts,

evidence of a genuine triable issue of fact, it must deny the

motion. Matsushita Elec. Co., Ltd., v. Zenith Radio Corp., 475

U.S. 574, 552-53 (1986).

As to standing, Petitioners’ rights in their Cathedral, and

the Unborn, the lower courts appear to have decided impor-

tant issues that, in part, depart from precedent of this Court,

and as to the Unborn, in a manner that departs from the di-

rection this court has been taking, justifying review of an ex-

traordinary event that constitutes but a thread in the fabric

of events that has torn the nation asunder, to clarify the

rights of “Ourselves and our Posterity.”

B. THE LOWER COURTS DECISION ON STANDING IS

INCONSISTENT WITH PRECEDENT IN THIS COURT

The Ninth Circuit ruled Petitioners lacked standing to

challenge the state statute because they have “failed to dem-

onstrate a credible threat of immediate future harm,” citing,

inter alia, Los Angeles v. Lyons, 461 U.S. 95, 105 (1983), and as

to protect the Unborn because “ordinarily, one may not

claim standing ..... to vindicate the constitutional rights of

some third party,” citing Barrows v. Jackson, 346 U.S. 249, 255

(1953). App., p. 3.

This Court has held that where fundamental rights are

implicated, third party standing will be permitted to vindi-

cate the rights of parties not before the court, if there is suffi-

cient adversariness to protect the integrity of the adversary

process and the issues are of sufficient concrete facts to avoid

advisory opinions. (E.g., Craig v. Boren, 429 U.S. 190, 192-93.

(1976).) Craig involved a challenge to a State statute regu-

lating sales of alcoholic beverages by a male who turned 21

during the suit and a vendor of alcoholic beverages. Pur-

portedly exercising its powers under the 22nd Amendment,

the State set the legal drinking age for females at age 18 and

for males at age 21. The male was dismissed as moot be-

cause he no longer would be affected by the State regulation.

However, the court noted the vendor was still affected by

the restriction, and moreover, while a class action by 18 year

olds was maintainable, it was equally maintainable by the

vendor and practical to do so because the vendor was di-

rectly affected.

By far, the easiest case for standing is that for the Unborn.

Because they are Unborn, obviously they cannot protect

their own rights in the courts. Other than 5 amicus curiae

cases,!! there is not a single case in this Court addressing

whether the Unborn are protected by the Preamble, and the

term ‘posterity.’ This court has historically permitted

standing to vindicate rights of those not before the court,

those who might themselves be unable to vindicate their

own rights, such as the Unborn.

The second case for standing, whether §§ 145 or 302, ei-

ther facially, or as applied in this case, can, consistently with

First Amendment values, permit a peace officer to exercise a

religious opinion as to what constitutes a proper prayer, or

is disruptive, is one of first blush, but in the context of a con-

tinuing controversy over abortion, and the continuing tur-

moil in the streets, to claim that petitioners can show no fu-

ture possibility of a problem is disingenuous at best, and ig-

nores important social and emotional turmoil that has no

signs of abating. See Post, p. 26.

Finally, respondents were relying for their good faith be-

lief on §§ 145 and 302 in this controversy. If Respondents

have standing to claim the protection of §§ 145 and 302, then

Petitioners should have reciprocal standing to show its in-

validity, and the lack of a basis for a good faith belief in its

validity. E.g., Tennessee v. Garner, 471 U.S. 1 (1985) (Fleeing

felon statute unconstitutional; officer limited to good faith).

It is clear that as to the issue of standing, the court's deci-

sion conflicts with this Court’s precedent requiring review

11 See, Lynch, op. cit. 40 AJJ 401,fn. 1.

by this Court to consider this important question.

C. WHETHER THE UNBORN ARE MEMBERS OF ‘POSTERITY’

IN THE PREAMBLE IS AN IMPORTANT ISSUE THIS COURT

HAS NOT HAD THE OPPORTUNITY TO FACE DIRECTLY, AND

DECIDED BELOW IN A MANNER INCONSISTENT WITH THE

DIRECTION THIS COURT HAS BEEN TAKING

The Courts below did not reach the merits of whether the

Unborn are members of Posterity, deciding Petitioners

lacked standing. App., p. 4. Roe v. Wade, 410 US. 113

(1973),!? held as it did because Texas failed to show text in

the Constitution inclusive of the Unborn. (Id, at 157-59.)

Statutes or practices inconsistent!’ with the Constitution,

however numerous, can create neither a power which the

Constitution does not bestow nor furnish a construction

12 The Petition, Response, and Briefs by the parties and amicus in

Roe v. Wade, shows the arguments focused on the term ‘ n’ as used in

the 5th and 14th Amendments of the Constitution. Landmark Briefs

and Arguments of the Supreme Court of the United States.)

13 This Court, with characteristic good grace, has invalidated its own

Rules of Court, in part, based on a Congressional Statute —- attor-

neys to take an oath with respect to activities before the Civil War, when

it was pointed out that the provision was unconstitutional. Ex Parte Gar-

land, U.S. (4 Wall.) 333 (1867). Faced with the Constitutionality of

“separate but equal” facilities, a practice in existence for nearly 60 years,

and sanctioned by this Court, this Court overruled, and rightfully so, Pless

v. Ferguson, 163 U.S. 537 (1896) in Brown v. Board of Education, 347 US.

(1954) (Brown 1); accord, Bolling v. Sharpe, 347 U.S. 497 (1954). Moreover,

where the importance of the question is great, and touches sensitive issues

in need of resolution once and for all, this court has not allowed the fact

that some issues were not properly addressed in the courts below from

ordering argument on the omitted issues to settle the continuing contro-

versy. Brown I, 347 US., at 488-89, 496; Brown v. Board of Ed., 349 U.S. 294,

298 (1955) (Brown IT) (Nature of remedy).

14 The same rule of interpretation, and sources of judicial informa-

tion, may be resorted to as in the construction of statutes and other in-

struments — wer. Adams v. Storey, 1 Paine (U.S.) 79, 1 Fed. Cas.

page 141, 145 (1817). The constitution and the law are to be expounded

without leaning one way or the other, according to those general princi-

les that usually oe the construction of fundamental or other laws.

ank of the United States v. Deveaux, 5 Cranch (9 US.) 61, 85, 3 L.Ed. 38

(1809). No word or clause can be rejected as superfluous or unmeaning,

but each must be given its due force and ee me en, Wright v.

United States, 302 U.S. 583, 588 (1938); ton v. Moore, 178 U.S. 87

(1900). Words and terms are to be taken in the sense they were used and

understood at common law and at the time the constitution and the

amendment were adopted. Veazie Bank v. Fenno, 8 Wall (75 U.S.) 533, 542

(1869); Locke v. New Orleans, 4 Wall (71 U.S.) 172 (1866); Gibbons v. Ogden, 9

which the Constitution does not warrant. (Field v. Clark, 143

U.S. 649, 691 (1891); 3 Rotunda, TREATISE ON CONSTI-

TUTIONAL LAW § 23.33, p. 512 (1986).) This court can judi-

cially notice the impact of the abortion cases on society.

Similarly, it is common news that throughout the country,

the abortion controversy has led to disorder in the streets.!°

Moreover, the Roe Decision “has proved “unsound in princi-

pal, and unworkable in practice.” Webster v. Reproductive

Health Services, 492 U.S. 490, 518 (1989).

Roe does not address the term “Posterity” in the Pream-

ble.1© This Court has used the term “posterity” on one prior

occasion (United States v. Cruikshank, 92 U.S. (2 Otto) 542

(1876).), but has defined the term, and its meaning. This

Court has held consenting adults cannot use the right of pri-

vacy in their own bedroom to engage in homosexual con-

duct forbidden by State Law. (Bowers v. Hardwick, 478 US.

186 (1986).) No case has ever reported a female, based on

her right to privacy, can do whatever she wishes with her

body, including acts of prostitution in the privacy of her

own bedroom in violation of state law. A fortiori, if the fetus

is a person in the Constitutional sense, it does not seem rea-

sonably possible that a woman can, absent justification or

excuse, take the life of a fetus in violation of valid state law.

This Court observed in Webster v. Reproductive Health Serv-

ices, 492 U.S. 490 (1989) that statutes which withheld public

funds, employees, and facilities from use in non-therapeutic

abortions did not offend the Constitution. In doing so, the

decision all but wiped Roe off the books as an unconditional

right to abortion. Id, (Scalia, J., concurring).

Weat. (22 U.S.) 1, 188-189, 6 L.Ed. 23 (1824); United States v. Harris, 1 Abb.

(U.S.) 110, 26 Fed. Ca. No. 15, 312 (1866); United States v. Block, 4 Sawy.

(U.S.) 211, 24 Fed.Cas. 14,609 (1877); Pardoning Power of the President, 5

Opinion U.S. Atty. Gen. 532, 535 (1852). Where there are several possible

meanings of the words of the constitution, that meaning which will defeat

rather than effectuate the constitutional pu cannot rightly be pre-

ferred. United States v. Classic, 313 U.S. 299, 316 (1941).

15 It is not suggested disorder is the reason for overruling Roe. Quite |

the contrary, it is because the Unborn are constitutional persons by virtue |

of the term Posterity found in the Preamble. The notation is but recogni- |

tion of a need to resolve, if it can be, the problem.

16 See, appendix, p. A9.

An analysis of the Preamble!” itself inexorably leads to

the conclusion this Court was misled, because the Unborn

are members of “posterity,” therefore persons in the Consti-

tutional sense. Moreover, Roe is “unsound in principal and

unworkable in practice” because it leaves those who would

obey the law guessing as to when a Constitutional person is

present. Webster, supra, 492 U.S. at 518-519; Lynch, POSTER-

ITY: A CONSTITUTIONAL PEG FOR THE UNBORN, 40

American Journal of Jurisprudence 401 (1995).

The above arguments accommodate the needs of women

who, for compelling reasons should terminate a pregnancy,

the needs of other interested persons, and the constitutional

mandate for respect of life, with adequate safe guards

against governmental intrusion in what ought to be a pri-

vate matter. Given the aistorical debate, anguish of a nation

torn asunder, and impact on this court’s docket, the court is

presented with its first opportunity to review an argument

presented in five prior cases by amicus curiae, but not raised

by the parties in the courts below. The course chartered by

this court, evidencing a retreat from Roe v. Wade, indicate a

more definitive statement as to the rights of the mother, the

Unborn, and other interested persons, is needed such that

17 “Neither the 5th nor the 14th Amendment defines person. The

14th Amendment defines citizenship. App. p. A10. In other contexts, the

court has held that aliens and non-natural persons are persons entitled to

Constitutional protection. Not to recognize the Unborn as a person is

therefore an anomaly. As “Person” is used without qualification, the

most logical place to look for meaning is the Preamble because, while its

oe ge is not to create right, it does define for whom the rights were cre-

. The words “people of the United States” and “citizens” are syn-

onymous terms, and mean the same thing. The Preamble creates two

classes of sovereignty: “ourselves” and “our Posterity.” Its pur ap-

pears to be to include “Posterity” on an equal footing with, and the same

rights as, “ourselves” as evidenced by the parallel structure of the phrase.

erefore, “Posterity,” as to those who are lives in being, is synonymous,

if not with “citizen,” surely with “person.” This understanding is consis-

tent with the meaning of posterity in 1776. In 1644, it was argued that

“Parliament could no more censure the issue of the mind than it could the

issue of the womb.” At common law, certain members of future genera-

tions, fetuses, were lives in being for the purposes of the Rule Against

Perpetuities. Moreover, prenatal injuries were, to a limited extent, recog-

nized at Common Law, and it does not appear that tort actions for the

injuries were barred. and “a perpetual union,” for the protection of future

Ri at 401te2 including the Unborn. [Cites omitted.]” Lynch, op. Cit., 40

, at 401-02.

the court should grant review of this important issue.

D. THE LOWER COURTS’ DECISION ON PETITIONERS’ RIGHT

TO PRAY IN THE CATHEDRAL IS AN IMPORTANT ISSUE DE

NOVO, AND INCONSISTENT WITH PRECEDENT.

There is no known reported case where persons of faith

were arrested in their own church for praying. The Trial

court granted summary judgment against petitioners on the

issue finding that prayers could be disruptive. The Ninth

Circuit failed, or refused, to address the issue dismissing pe-

titioner’s claims with, “When [the peace officers] accepted

custody of appellants it was objectively reasonable for

[them] to believe that the appellants had been lawfully ar-

rested for disrupting a religious service.” App., p. AS.

First of all, the Petitioners were clearly Catholics with a

right to be in the Cathedral with the express permission of

the Bishop and Msgr. Kidder. Ante, p. 7. Respondents, on

the other hand, were guests and when they sought the use of

the “reserved seats,” the Bishop and Msgr. Kidder ordered

them moved to another section. Ante, p. 7.

Secondly, the conduct of the Petitioners was not so egre-

gious as claimed by Respondents. Indeed, the record shows

that while opposed to abortion, they conducted themselves

in a most peaceful manner. Ante, p. 7. Five cases from this

Court illustrate why Petitioners could not be arrested.

In Pierson v. Ray, 386 U.S. 547 (1967), Afro-American

ministers announced an intention to use a “whites only”

restroom in a bus terminal. Police stated arrests would fol-

low if they made the attempt. The Ministers, citing desegre-

gation opinions, made the attempt, were arrested, arraigned,

found guilty. The Ministers sued under 42 U.S.C., § 1983.

This Court found the judge absolutely immune, limiting the

arresting officers to a good faith belief based on the minis-

ters’ asserting rights of which they had notice.

In Edwards v. South Carolina, 372 U.S. 229 (1963), the court

refused to recognize that singing of religious and patriotic

songs on the capital steps by civil rights African-American

teenagers amounted to “fighting words,” or apply the “hos-

tile audience doctrine,” even with a finding by state courts

of a restive white crowd.!8 Accord, Cantwell v. Connecticut,

supra, 310 U.S. 296 (religious speech exempt from control).

In this case the prayers are in a Cathedral, with no restive

crowd. The only violence was the arrests themselves.

In Bond v. Floyd, 385 U.S. 116 (1966), Julian Bond was

elected to Georgia State Legislature, but his qualifications

were challenged because of his opposition to the Viet Nam

war and the operation of the draft laws. At a hearing, he

testified he sympathized with those who burned their draft

cards, but he never had, had never advocated anyone

should, and would be willing and able to take, and abide by,

the required oath. The House refused to administer the oath

or seat him. This Court found the refusal denied Bond his

First Amendment Right to free expression because (1) there

was no showing Bond could not take the oath with sincerity

and (2) such action could, and would, lead to the stifling of

minority views. 385 U.S., at 118-24. In this case, that ap-

pears to have been the precise reason for the ouster of the

Petitioners— their views on abortion.

In the per curiam decision of Watts v. United States, 394

U.S. 705 (1969), the court reversed appellant’s conviction for

violating a statute prohibiting persons from “Knowingly

and willfully . . . threatening to take the life or to inflict bod-

ily harm upon the President.” In a public rally, Watts indi-

cated that if drafted, “the first man I want to get in my sights

is L.B.J.” The statute was upheld as necessary for the protec-

tion of the president, but must “be interpreted with ... the

First Amendment clearly in mind. What is a threat must be

clearly distinguished from what is . . . protected speech.”

The court found Watts’ remarks were political hyperbole,

not a threat, and that the nation was committed to unre-

strained expression and debate, including criticism of the

government and government officials. 394 U.S., at 706-708.

In this case, clearly there were no threats. Exhortations that

Wilson not go to the Cathedral— surely; Prayers— certainly;

requests he change his views— most certainly; threats of

18 They were protesting denial of educational facilities available to

white teenagers, and access to other facilities. Here, Petitioners are pro-

testing use of facilities for what they feel was an improper purpose.

violence— none whatsoever.

Finally, in the per curiam case of Brandenburg v. Ohio, 395

U.S. 444 (1969), the court was faced with an appellant

charged with, and convicted of, advocating political reform

through violence and assembling with a group advocating

criminal syndicalism. The case was based on news film of a

Klan rally wherein Klan members, including Brandenburg,

discussed a march on Washington, D.C. In reversing, the

court held that advocacy of violence was protected by the

First Amendment so long as the advocacy did not incite to

imminent action, the key being “incitement.”

The prayers could not possibly have incited violence.

Scheidler’s and Cooke’s words were directed towards end-

ing violence. If Petitioners’ prayers are advocacy, the advo-

cacy was to end violence directed at the Unborn, not for

more violence. The most odious word, abortion, was used in

a prayer omitted by Msgr. Kidder, at the end, to end vio-

lence towards the Unborn. Objectively, there was nothing

amounting to a crime. Petitioners had no subjective intent to

incite violence, only to pray. Ante, Statement of Facts. Based

on the foregoing, it does not seem reasonably possible that

prayers, could be a crime, therefore a reasonable officer

would not find probable cause.'? Thus is presented an im-

portant question this court should review at this time.

E. CALIFORNIA PENAL CODE §§ 145 AND 302 WERE APPLIED

INCONSISTENTLY WITH PRECEDENT IN THIS COURT

All respondents base the propriety of their conduct upon

the application of §§ 145 or 302 of the California Penal Code.

App., p. 11. The trial court held that the officers were enti-

tled to rely on the statute, and the Ninth Circuit held that

19 Assuming a “place of worship” is sui generis, entitled to special

protection to prevent religious persecution, the fact is on January 6, 1991,

the Cathedral was not being used for a “church function,” but a public

Event. Whatever the gloss, respondents and the Church had opened the

doors of the Cathedral to public controversy when a pro-abortion gover-

nor-elect was invited into a pro-life institution. Petitioners had a right to

be there to pray. Petitioners could be arrested, if at all, only if they in fact

committed an act, other than praying, amounting to a crime. (Prune Yard

Shopping Center v. Robins, 447 U.S. 74 %1980); Board of Airport Com'rs v. Jews

for Jesus, Inc., 482 U.S. 569 (1987) [ban unconstitutional even if a non-

public forum; no governmental interest would justify absolute].)

Petitioners lacked standing. App., p. 3.

Based on Garner, the courts should have found the exis-

tence of those sections irrelevant, because respondents

should defend based on what they observed at the scene.

Moreover, based on 1% Amendment concerns, Petitioners

themselves suffered injury in fact, and because respondents’

defense was grounded in, and manifested future reliance on

the statute, the court should have found standing based on

Houston v. Hill, 482 U.S. 451 (1987) [Ordinance making it a

crime to “interrupt any policeman”; Broadrick v. Oklahoma,

413 U.S. 601, 615 (1973) that “[T]he vagueness ... which

would result in giving [peace officers] the power to decide in

the first instance whether a given activity is [appropriate to a

religious service] present[ed] serious constitutional diffi-

culty.” E.g., Board of Airport Com’rs v. Jews for Jesus, Inc., 482

U.S. 569 (1987), citing Lewis v. New Orleans, 415 U.S. 130, 135-

136 (1974).

This court should grant review to resolve this issue.

Il.

THE LOWER COURTS APPLIED PRINCIPLES OF § 1983

DEFENSES INCONSISTENTLY WITH PRECEDENT

Notwithstanding the absence of an express defense in 42

US.C., § 1983, this Court has historically found implied de-

fenses, such as a qualified good faith defense.” However,

there is no derivative defense, i.e. immunity is personal?! to

the holder, and cannot be asserted by another.

Whether an officer acted in good faith upon a statute is

not relevant. Generally, Anderson v. Creighton, 483 U.S. 635

(1987); Tennessee v. Garner, 471 U.S. 1, (1985) (Fleeing felon

statute declared unconstitutional; office limited to good faith

20 Wood v. Strickland, 420 U.S. 308 (1974); Procunier v. Navarett, 434

U.S. 555; Carlson v. Green, 446 U.S. 14 (1980).

21 Tenney v. Brandhove, 341 U.S. 367 (1951) (Legislative aid cannot

rely on immunity of legislator); Pierson v. Ray, 386 U.S. 547 (1967) (officers

cannot ow Be immunity of judge); Dennis v. Sparks, 449 U.S. 24 (1980)

(individuals cannot rely on immunity of judge); Harlow v. Fitzgerald, 457

U.S. 800 (1982) (cabinet members cannot assert presidential immunity);

Owens v. Independence, 445 U.S. 622 (1978) (Municipality cannot rely on

qualified immunity of employees).

belief); Pierson v. Ray, 386 U.S. 547 (1967). A Respondent

must defend, if at all, based on the facts presented at the

time Respondent acted. Garner; see also, Pierson v. Ray, 386

US. 547 (1967)(minister’s rights; notice; officers had notice).

In this case, neither the status of §§ 145 and 302, nor the

good faith of Colliau, and those who aided and abetted,

should have been relevant, but only what they observed, on

whether probable cause existed to arrest. Because of this

important question, this Court should grant review.

IV.

THERE WERE GENUINE TRIABLE ISSUES OF MATE-

RIAL FACTS PRECLUDING A GRANT OF RESPON-

DENTS’ MOTIONS

A. WILSON, CHIEF OF STAFF WHITE, & THE COMMITTEES.

The Ninth Circuit held that Petitioners presented no evi-

dence that either Wilson, or his Chief of Staff White caused

the arrests. App., p. A2. This is at odds with the record

below, with corroborating evidence of Respondent Pennel's

deposition. Ante, p. 10.

Both, if they did not directly start the arrests, surely made

statements reasonably understood to start the arrests, and

by their presence in a position to halt the arrests. Based on

Scheuer, the motion should have been denied. This court

should grant review to resolve the issue.

Governors of a state are subject to Bivens-1983 suits; hence

it would appear that a governor-elect would similarly be

subject to suit. Scheuer v. Rhodes, 416 US. 232 (1974); Cf,

Will v. Michigan Department of State Police, 491 U.S. 58 (1989)

(11th Amendment; § 1983 inapplicable to States absent clear

Congressional intentions) with Hafner v. Melo, 502 U.S. 21,

25-31 (1991) (State officers m ay be held liable in individual

capacity); Soldal v. Cook County, 506 U.S. 56 (1992).

Where an entity does an act by virtue of a policy maker,

and surely Wilson and White were policy makers, then the

entity should be liable. E.g., Oklahoma v. Tuttle, 471 U.S. 808

(1985) with Pembaur v. Cincinnati, 475 U.S. 469 (1986); Canton

v. Harris, 489 U.S. 378 (1989).

Based on Tennessee v. Garner, 471 U.S. 1 (1985), Respon-

dents could not rely on state law, but the facts, and Soldal v.

Cook County, 506 U.S. 56 (1992), use and abuse of police

power to achieve what they could not do as a private per-

son, the courts should have found a triable issue of fact. It

takes this court to resolve this important issue.

B. ALL PEACE OFFICERS

Referring to these officers as “The Custody Officers” (Ex-

cerpt, p. 1280.), the Court, in effect, held these officers were

entitled to immunity because § 302 had not been held un-

constitutional. (Excerpt, p. 1282.) The order conflicts with

Tennessee v. Garner, 471 U.S. 1, (1985) , a statute is not rele-

vant, and precedent that the good faith of others is not rele-

vant, 22 because the issue of good faith is a matter for the

jury to decide based on the facts confronting the actor.

(Ante, p. 26.) The decision is clearly at odds with this

Court's precedent requiring review.

C. CrTy OF SACRAMENTO, TWILLING, & DOWDEN

The Ninth Circuit mischaracterized the briefs presented

to it. App., p. A6-7. The evidence shows Lt. Twilling was

inside the church at the time arrests were made, participated

in some arrests, and as a senior officer, he made a policy de-

cision in arresting and accepting detainees, such that not

only he, but City, should have been required to stand trial.

Petitioners also had overwhelming evidence that City

was aware that Dowden was a loose cannon on the presen-

tation of the spoliation doctrine, and direct evidence of other

bad conduct. (Excerpt, p. 1004-21.) Moreover, there was di-

rect evidence a policy maker, Twilling, approved or other-

wise ratified Dowden’s conduct at the scene. Ante, p. 10.

Because the decision conflicts with precedent from this

court, this Court should grant review.

THE PRETRIAL RULINGS PREJUDICED

PETITIONERS AT JURY TRIAL

22 See, text and footnote at page 26, ante.

The Ninth Circuit held there was no objection. ” Peti-

tioners attempted to change the court’s mind, in satisfaction

of Rule 51, but were met with an adamant court. (Excerpt,

pp. 1503-04, 1507-08.)

Where a jury is misdirected with an instruction that per-

mits the jury to consider protected speech as a crime, rever-

sal is automatic. (Henry v. Collins, 380 U.S. 356, 357-58 (1965)

(Per curiam). A misinterpretation of the law is prejudicial

where the misinterpretation either allows evidence to go to

the jury, or precludes the jury from consideration of the ap-

propriate standard. (Continental Ore Co. v. Union Carbide &

Caron Corp., 370 U.S. 690.)

Based on the summary judgment motion, the court de-

nied Petitioners an opportunity to go into prior bad acts of

Dowden, including the use of a baseball bat. Yet it allowed

Respondent to claim there were no prior bad acts. (Excerpt,

p. 1516A, 1516B.) That was prejudicial to Reali.

In shaping the case through the motions for summary

judgment, and final pre-trial order, the court so shaped the

case it allowed the jury to consider the Petitioners’ speech a

crime furnishing probable cause for the arrests. It then

compounded the error by allowing the jury to focus on

whether Respondents acted in good faith reliance on § 302.

Thus, is presented an important issue which should be re-

viewed by this court

25 On Rule 56 motions, the court uses the “genuine issue” test,

whereas on Rule 50 motions, the court uses “reasonable jury” rule, both of

which are very close, with most courts treating them the same. The sole

difference between a Rule 50 and Rule 56 motion is procedural; Rule 56

occurs before trial and is based on documents whereas Rule 50 occurs af-

ter the evidence has been submitted to the jury. Generally, Johnson’s Res-

taurants, Inc. v. NLRB, 461 U.S. 731, 744-49, fn. 11. In either event, the

Court must advise the parties of the substantive law and rules of evidence

it is applying to reach its result in Rule 56 cases (Anderson v. Tre! —

Inc., US. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 3

(1986).), and when submitting the case to the jury. (FRCP, R. 51.) The

ailure to make a timely objection may be disregarded if the party's posi-

tion was previously made clear to the court further objection would

be unavailing. (33 Fed. Proc., L.Ed., Trial § 77:280 (1995), citing, inter alia,

Brown v. Avemco, 603 F.2d 1367 (9% Cir. 1979).) Here Petitioners lost on

the motions for summary judgment and reconsideration. Any defect be-

fore the trial judge at the closing i should have been ignored, be-

cause the judge made it clear he would not change his mind.

CONCLUSION

WHEREFORE, for all, or any one of, the foregoing rea-

sons, this court should grant the writ of certiorari to the

Ninth Circuit, and summarily reverse and remand, or set the

matter for briefing, argument, and such other and further

relief as the court deems just under the circumstances.

Dated: May 16, 1997

(916) 448-7871

ATTORNEY FOR PETITIONERS

APPENDIX

MEMORANDUM, 2/18/97, Ninth Circuit

FILED

FEB 181997 “Ss

CATHY A. CATTERSON,

CLERK

U.S. COURT OF APPEALS

Gnited States Court Of Apprals

#or Che Ninth Circuit

ALBIN RHOMBERG, No. 95-16244

v. [DC CV-92-20 GEB (JFM)]

PETE WILSON, etc., et al., MEMORANDUM’

JOHN BURNS, et al., No. 95-16257

v. [DC CV-92-20 GEB (JFM)]

PETE WILSON, etc. et al.,

[-1-]

Appeal from the United States District Court

For the Eastern District of California

Garland E. Burrell, Jr., District Judge, Presiding

Argued and Submitted October 3, 1996

San Francisco, California

Before: SKOPIL and FLETCHER, Circuit Judges, and SMITH,”

District Judge

Appellants, abortion protesters, were arrested at the Ca-

thedral of the Blessed Sacrament in Sacramento, California

during an ecumenical prayer service that was part of the in-

auguration of Pete Wilson to his first term as governor. Ap-

pellants brought this action under 42 U.S.C. § 1983, together

with several pendent state tort claims, against Governor Pete

Wilson, various members of his campaign staff, his inaugu-

ral and campaign committees and their individual volun-

teers and members, California state police officers, Sacra-

mento city police officers and the City of Sacramento, alleg-

ing violation of their First

” This disposition is not a appropriate for publication and may not be

cited to or by iba courts of this Circuit except as provided by 9 Cir. R. 36-

™ Honorable Fern M. Smith, United States District Judge for the

Northern District of California, sitting by designation

[-2-]

Amendment right to speak and their Fourth Amendment

right to be free of unreasonable seizure. They also sued Cali-

fornia Attorney General Daniel E. Lungren and California

Chief of Police Duane Lowe to enjoin the enforcement of and

to declare unconstitutional Cal. Penal Code Ann. § 302,

which prohibits the disruption of a religious service. All of

the Defendants moved for summary judgment asserting

qualified immunity, lack of either municipal or supervisorial

liability, or lack of standing. The district court granted

summary judgment to all defendants except for state police

officers Bartucco and Ostergar, Campaign Committee volun-

teer Russell Colliau, and City police officer Dowden. After a

nine-day trial, a jury returned a verdict in favor of these de-

fendants. Appellants appeal the grants of summary judg-

ment, and contend that at trial there was reversible error as

a result of erroneous jury instructions. They also appeal the

denial of their motion to recuse the district court judge. We

have jurisdiction under 28 U.S.C., § 1291 and affirm.

I. Summary Judgment

We review de novo the district court’s grant of summary

judgment to certain of the defendants. Bagdadi v. Nazar, 84

F. 3d 1194, 1197 (9th Cir. 1996). We affirm.

A. GOVERNOR WILSON AND ROBERT WHITE:

Appellants presented no evidence that Governor Wilson

or Robert White caused the arrests at issue or participated in

making them. See Monell v. New York City Dept. of Social

Services, 436 '

[-3-]

U.S. 658, 691-695 (1978) (rejecting respondeat superior li-

ability) for § 1983 claims); Johnson v. Duffy, 588 F. 2d 740, 743

(9th Cir. 1978) (a person subjects another to the deprivation

of a constitutional right if he does an affirmative act or par-

ticipates in another's affirmative act).

B. DANIEL LUNGREN AND DUANE LOWE:

Appellants seek to enjoin enforcement of and to declare

unconstitutional Cal. Penal Codes 302, which makes the

willful disturbance of a religious service a misdemeanor.

Cal. Penal Code Ann. § 302 (West 1988).! Appellants lack

standing. Appellants, who are seeking prospective injunc-

tive relief in a civil action against these defendants, failed to

demonstrate a credible threat of immediate future harm.

See, Smith v. City of Fontana, 818 F.2d 1411, 1422 (9th Cir.),

cert. denied, 484 U.S. 935 (1987). They have not suffered

criminal conviction, do not face pending prosecution under

the act and they have not alleged that they are likely to en-

gage in future conduct which would violate § 302. City of

Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (denying stand-

ing for injunctive relief to victim of police chokehold because

he could not demonstrate a real and immediate threat that

he would again be stopped for a traffic offense and illegally

choked into

[+]

unconsciousness). Past unlawful conduct may be probative

on the concreteness of a concern for future prosecution for

such conduct, but it does not in itself show a present case or

controversy that would warrant injunctive relief. See id., at

106.

Appellants also claim third-party standing to vindicate

the rights of the Unborn. Even if we conceded for the pur-

pose of argument that the Unborn were third-parties for

purposes of this lawsuit, appellants offer no evidence or rea-

soning as to why their claim should cause us to depart from

the U.S. Supreme Court's general rule that: “Ordinarily, one

may not claim standing . . . to vindicate the constitutional

rights of some third party.” Barrows v. Jackson, 346 U.S. 249,

255 (1953). Summary judgment dismissing claims against

these defendants was proper.

1 Cal. Penal Code § 302: “Every person who willfully disturbs or disqui-

ets any assemblage of people met for religious worship, by profane dis-

course, rude or indecent behavior, or by any unnecessary noise, either

within the place where such meeting is held, or so near it as to disturb the

order and solemnity of the meeting, is guilty of a misdemeanor.”

C. THE COMMITTEE DEFENDANTS:

Appellants presented no evidence that Martin Wilson,

Director of the Pete Wilson for Governor Campaign Com-

mittee, or Tom Cooper, a committee volunteer, participated

in any way in the arrests at the Cathedral. Summary judg-

ment was therefore properly granted as to them. See Hansen

v. Black, 855 F.2d 642, 646 (9th Cir. 1989) (supervisory liabil-

ity requires personal involvement in the constitutional dep-

rivation or a sufficient causal connection between the super-

visor’s wrongful conduct and the constitutional violation).

Appellants argued that the Campaign Committee was li-

able for the alleged wrongdoing of the Inaugural Commit-

tee. They failed, however, to offer any evidence indicating

that an alter-ego

-5-

relationship existed between the Campaign Committee and

the Inaugural Committee. In order to establish alter ego li-

ability, appellants must establish: 1) control of one entity by

another, 2) that one entity is the mere conduit of the business

of the other, and 3) recognition of a separate existence would

occasion fraud and injustice. See Calvert v. Huckins, 875 F.

Supp. 674, 678 (E.D. Cal. 1991); Marr v. Postal Union Life Ins.

Co., 105 P.2d 649, 654 (Cal. Ct. App. 1940). Appellants failed

to establish that such a relationship existed between the

committees. Further, the claims against the Inaugural

Committee were derivative of the claims made against

committee volunteer Colliau, who was found by the jury not

to have violated any constitutional rights in his citizen's ar-

rest of appellants. Therefore, appellants suffered no consti-

tutional injury and dismissal as to these defendants was

poop.

D. STATE POLICE/CUSTODY OFFICERS:

California State Police Officers Everett, MacDonald, Pen-

nel, Perez, and Peters (“Custody Officers”), who accepted

custody of appellants after they had been placed under citi-

zen’s arrest, were properly granted qualified immunity be-

cause they relied upon clearly established law and could

have believed as reasonable officers that their conduct was

lawful. Anderson v. Creighton, 483 U.S. 635, 639 (1987); Act

UP!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993).

When they accepted custody of appellants it was objectively

reasonable for the Custody Officers to believe that the ap-

pellants had been lawfully arrested for disrupting a relig-

ious service.

[-6-]

An officer who acts in reliance upon a duly-enacted stat-

ute or ordinance is ordinarily entitled to qualified immunity.

Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir.

1994). Cf, Chew v. Gates, 27 F.3d 1432, 1447-49 (9th Cir.

1994), cert. denied, __ US. __, 115 S. Ct. 1097 (1995)

(holding, in part, that officers implementing a long-

established policy are entitled to qualified immunity where

no then-existing case law demonstrated that the particular

policy was unconstitutional). Where a statute authorizes of-

ficial conduct that is patently violative of fundamental con-

stitutional principles, an officer who enforces that statute is

not entitled to qualified immunity. Grossman, 33 F.3d at

1209. That is not the case here. At the time of these arrests,

§ 302 had been upheld as constitutional by California ap-

pellate courts. People v. Cruz, 101 Cal. Rptr. 711, 717-718

(Cal. App. Dep’t Super. Ct. 1972). There was no contrary

authority. We conclude that it was objectively reasonable

for the officers to rely upon it. Harlow v. Fitzgerald, 457 U.S.

800, 819 (1982). .

State police officer Harder, who arrested appellants

Scheidler and Cooke, also was properly granted summary

judgment on the grounds of qualified immunity. It was ob-

jectively reasonable for Officer Harder to believe that he had

probable cause to arrest appellant Scheidler based upon the

undisputed fact that he was present when Scheidler spoke

out loudly during the service and attempted to unfurl a

banner reading “Sacrilege,” apparently intending to attract

the attention of Governor-elect Wilson. Officer Harder ar-

rested appellant Cooke after Cooke approached

[-7-]

within three feet of the Governor-elect and stated loudly,

“What are you going to do about murdering millions of Un-

born children in this state?” It would be reasonable to inter-

pret this statement, made in such close proximity, as threat-

ening. See Hunter v. Bryant, 502 U.S. 224, 228-29 (1991) (even

assuming Secret Service agents lacked probable cause for an

arrest made in an effort to protect the President, the Court

held them entitled to qualified immunity); Malley v. Briggs,

475 U.S. 335, 341 (1986) (qualified immunity protects all but

the plainly incompetent or those who knowingly violate the

law); ActUP!/Portland, 988 F.2d at 871 (police officers who

objectively believe that their conduct is lawful: in light of

clearly established principles are immune from civil dam-

ages); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1443 (9th Cir.

1991) (“Even absent probable cause, qualified immunity is

available if a reasonable police officer could have believed

that his or her conduct was lawful.”).

State Officer Lt. Hensley, supervisor of the Custody Offi-

cers, was properly granted summary judgment. His subor-

dinates acted lawfully in accepting custody of appellants. In

the absence of constitutional injury caused by his subordi-

nates, he cannot be liable for failure to supervise.

E. CITY OF SACRAMENTO:

Appellants made two claims against the City of Sacra-

mento. First, that it had a policy or a custom of not inquir-

ing into the validity of arrests made by citizens. Second,

that it failed to adequately select, train, and supervise Sgt.

Dowden, who held

[-8-]

appellant Reali in custody after her arrest. Summary judg-

ment was proper as to both claims. Appellants alleged no

facts to support the claim that the City has either a policy or

custom of not inquiring into the validity of arrests made by

citizens. Monell, 436 U.S. at 694. A policy may be shown

“where — and only where — a deliberate choice to follow a

course of action is made [by policymakers] from among

various alternatives.” Meehan v. County of Los Angeles, 856

F.2d 102, 107 (9th Cir. 1988) (quoting Pembaur v. Cincinnati,

475 US. 469, 483-84 (1986)). It is the Petitioner’s burden to

prove official policy by more than “bald allegation.” Polk

County v. Dodson, 454 U.S. 312, 326 (1981). She must show

that official policy is “the moving force of the constitutional

violation” in order to establish liability. Monell, 436 U.S. at

694. At the “very least there must be an affirmative link be-

tween the policy and the particular constitutional violation

alleged.” Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985).

The appellants have shown neither a policy or consequences

from it that would establish municipal liability here.

The district court properly dismissed appellants’ claims

against the City for failure to adequately select, train, and

supervise Sgt. Dowden. When a person sues under § 1983

for an allegedly unconstitutional arrest, the city cannot be

held liable absent a constitutional violation by the arresting

officer. Grossman, 33 F. 3rd at 1203 (quoting City of Los An-

geles v. Heller, 475 U.S. 796 (1986)). The specific constitu-

tional violation alleged here is that Sgt. Dowden used exces-

sive force against appellant Reali in removing her from the

Cathedral and while she

[-9-]

was in his custody. However, the jury’s finding that the

force Dowden used was reasonable eliminates appellants’

constitutional claim against the City, because the appellant

suffered no constitutional injury. Summary judgment was

properly granted.

F. CITY POLICE OFFICERS:

Finally, the district court properly granted summary

judgment to City police officer Lt. Twilling, who supervised

the City police officers present in the Cathedral. Appellants

offered no evidence that he participated directly in the ar-

rests at issue. The officers that he supervised acted constitu-

tionally in accepting custody of the appellants. He also is

entitled to qualified immunity for accepting custody for ap-

pellants Reali and Szabo from state police officers outside of

the Cathedral because it was objectively reasonable for him

to believe his actions were authorized by statute. See

Augustine v. McDonald, 770 F.2d 1442, 144546 (9th Cir.

1985) (an officer is entitled to qualified immunity where his

or her actions were authorized by a statute that was not

clearly unconstitutional).

II. Recusal Motion

We review the denial of a motion for recusal for an abuse

of discretion. E & J Gallo Winery v. Gallo Cattle Co., 967 F.2d

1280, 1294 (9th Cir. 1992). Appellant’s contend that Judge

Burrell’s connections to both Governor Wilson and the City

of Sacramento were such that his impartiality might rea-

sonably be questioned, and that he should have recused

himself pursuant to 28 U.S.C., §

[-10-]

455. See Preston v. United States, 923 F.2d 731, 734 (9th Cir.

1991) (Plaintiffs must present facts demonstrating that a

reasonable person with knowledge of all the facts would

conclude that the judge’s impartiality might reasonably be

questioned). We reject this contention. Senator Wilson's

recommendation alone does not establish a basis for ques-

tioning Judge Burrell’s impartiality. See Home Placement

Service v. Providence Journal Co., 739 F.2d 671, 675 (1st Cir.

1984), cert. denied, 469 U.S. 1191 (1985). Nor does Judge Bur-

rell’s former employment as a city attorney establish a suffi-

cient basis for questioning his impartiality. See United States

v. Heffington, 952 F.2d 275, 278-79 (9th Cir. 1991) (holding

that activities during government employment that are un-

related to the merits of the case at issue do not require re-

cusal); Tedder v. Odel, 890 F.2d 210, 212 (9th Cir. 1989) (dis-

qualification based on government employment is required

when judge has participated earlier in a governmental ca-

pacity in the same proceeding). Accordingly, we affirm the

denial of appellants’ recusal motion.

Ill. Jury Instructions

Appellants claim that the jury was misdirected with in-

structions that permitted them to “consider protected speech

as a crime” and that this constitutes reversible error. They

did not, however, object at trial to these instructions, as res

quired by Fed. R. Civ. P. 51, which requires that a party state

distinctly the matter objected to and the grounds for that

objection at trial. The consequences of this failure is waiver

of the right to

[-11-]

claim instructional error on appeal. See Hammer v. Gross, 932

F2d 842, 847 (9th Cir.), cert. denied, 502 U.S. 980 (1991); De-

land v. Old Republic Life Insurance Co., 758 F.2d 1331, 1337

(9th Cir. 1985). Because no objection was made, we affirm

the jury verdicts reached at trial.

IV. Conclusion

We affirm. Summary judgment on the § 1983 claims was

properly granted based upon lack of standing, qualified

immunity, or lack of municipal or supervisorial liability.

Appellants did not object to jury instructions. The other al-

leged trial errors did not present a basis for overturning the

jury verdicts in favor of defendants. We deny the state Ap-

pellees’ request for attorney’s fees. Although the claims

made by appellants ultimately lack merit, they relate to im-

portant constitutional rights, and some of the claims went to

trial. We decline to find them frivolous. See Christianburg

Garment Co. v. EEOC, 434 U.S. 412, 421 (1978) (a fee award

will not be made unless the Petitioner's action was frivolous,

unreasonable or without foundation, even though not

brought in subjective bad faith.).

AFFIRMED

[-12-]

EXCERPTS —

CONSTITUTION OF THE UNITED STATES

Preamble

“We the People of the United States, in Order to form a

more perfect Union, establish Justice, insure domestic Tran-

quility, provide for the common defence, promote the gen-

eral Welfare, and secure the Blessings of Liberty to our-

selves and our Posterity, do ordain and establish this Con-

stitution for the United States of America.”

A10_

Amendment 1 (Dec. 15, 1791)

“Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the right

of the people peaceably to assemble, and to petition the

Government for a redress of grievances.”

Amendment 4 (Dec. 15, 1791)

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall is-

sue, but upon probable cause, supported by Oath.or affirma-

tion, and particularly describing the place to be searched,

and the persons or things to be seized.”

Amendment 14 (July 28, 1868)

“§ 1. All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.”

EXCERPTS— THE CALIFORNIA PENAL CODE

California Penal Code § 142 (1990)

“(a) Any peace officer who has the authority to receive or

arrest a person charged with a criminal offense and willfully

refuses to receive or arrest such person shall be punished by

a fine not exceeding ten thousand dollars ($10,000), or by

imprisonment in the state prison, or in a county jail not ex-

ceeding one year, or by both such fine and imprisonment.

“(b) Notwithstanding subdivision (a), the sheriff may de-

termine whether any jail, institution, or facility under his di-

rection shall be designated as a reception, holding, or con-

finement facility, or shall be used for several of such pur-

poses, and may designate the class of prisoners for which

such facility shall be used.”

ee ee eee ee ee

neuen .

All

California Penal Code § 302 (1990)

“Disturbing religious meetings; punishment; commu-

nity service; waiver [{] (a) Every person who willfully dis-

turbs or disquiets any assemblage of people met for religious

worship at a tax-exempt place of worship, by profane dis-

course, rude or indecent behavior, or by any unnecessary

noise, either within the place where the meeting is held, or

so near it as to disturb the order and solemnity of the meet-

ing, is guilty of a misdemeanor punishable by a fine not ex-

ceeding one thousand dollars ($1,000), or by imprisonment

in the county jail for a period not exceeding six months, or

by both fine and imprisonment. [{] (b) A court may re-

quire performance of community service of not less than 20

hours and not exceeding 40 hours as an alternative to im-

prisonment and fine. [{] (c) In addition to the penalty set

forth in subdivision (a), a person who has suffered a previ-

ous conviction of a violation of this section or section 403,

shall be required to perform community service of not less

than 40 hours and not exceeding 80 hours. [J] (d) In addi-

tion to the penalty set forth in subdivision (a), a person who

has suffered two or more previous convictions of a violation

of this section or section 403, shall be required to perform

community service of not less than 80 hours and not ex-

ceeding 120 hours. [{] (e) The existence of any fact which

would bring a person under subdivision (c) or (d) shall be

alleged in the complaint, information or indictment and ei-

ther: (1) Admitted by the Respondent in open court. [4] (2)

Found to be true by a jury trying the issue of guilt. [§] (3)

Found to be true by the court where guilt is established by a

plea of guilty or nolo contendere. [{] (4) Found to be true

by trial by court sitting without a jury. [4] (f) Upon convic-

tion of any person under this section for disturbances of re-

ligious worship, the court may, in accordance with the vic-

tim’s consent, order the Respondent to perform a portion of,

or all of, the required community service at the place where

the disturbance of religious worship occurred. [§] (g) The

court may waive the mandatory minimum requirements for

community service whenever it is in the interest of justice to

do so. When a waiver is granted, the court shall state on the

Al2

record all reasons supporting the waiver. (Enacted 1872.

Amended by Stats. 1905, c. 499, p. 657, § 1; Stats. 1990, c. 822

(S.B.2483), § 1.)” Before January 1, 1991, the operative sec-

tion read “Every person who willfully disturbs or disquiets

any assemblage of people met for religious worship at a tax-

exempt place of worship, by profane discourse, rude or in-

decent behavior, or by any unnecessary noise, either within

the place where the meeting is held, or so near it as to dis-

turb the order and solemnity of the meeting, is guilty of a

misdemeanor.” .

California Penal Code, § 834 (1990)

“Arrest Defined; persons authorized to arrest. [{]

ARREST DEFINED. BY WHOM DEFINED. Arrest is taking a per-

son into custody, in a case and in the manner authorized by

law. An arrest may be made by a peace officer or by a pri-

vate person.”

California Penal Code, § 836(b) (1990)

“Any time a peace officer is called out on a domestic call,

it shall be mandatory that the officer make a good faith ef-

fort to inform the victim of his or her right to make a citi-

zen’'s arrest. The information shall include advising the vic-

tim how to safely execute the arrest.”

California Penal Code, § 837 (1990)

“Private persons; authority to arrest [{] ARRESTS BY

PRIVATE PERSONS. A private person may arrest another: [4]

1. For a public offense committed or attempted in his pres-

ence. [{] 2. When the person arrested has committed a fel-

ony, although not in his presence. [{] 3. When a felony has

been in fact committed, and he has reasonable cause for be-

lieving the person arrested to have committed it. (Enacted

1872)”

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.