# Petition for Writ of Certiorari — Rhomberg v. Wilson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 812

## Text

FrLe DB
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(") 961856 MAY 19 1997

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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

25

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.

26

B. ALL PEACE OFFICERS

BN

C. CITY OF SACRAMENTO, TWILLING, &
DOWDEN

V. THE PRETRIAL RULINGS PREJUDICED PE-
TITIONERS AT JURY TRIAL

CONCLUSION

8

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 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.)

© In fact, these Petitioners and Respondents settled before trial, but
not finalized until after trial. The record is not very clear with respect to
the settlement.

6

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

7

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

8

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.)

9
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 -

10
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

11
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.).

12
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

13

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

is
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.)

15

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);
e

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

a

§?

aye
|

17
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).

18

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-

19

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.

20

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

21

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.

22

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.

23
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

24
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.

ee

25
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].)

26
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).

27

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).

28
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.

V.

THE PRETRIAL RULINGS PREJUDICED
PETITIONERS AT JURY TRIAL

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

29

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.

a

30
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-
3.

™ Honorable Fern M. Smith, United States District Judge for the
Northern District of California, sitting by designation

Al

A2
[-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

A3
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.”

A4
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

AS
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-]

A6

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

A7

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

A8
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

g

A9
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)

Ҥ 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)”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0784%3A1. Public record. Not legal advice.