Petition for Writ of Certiorari — Steele v. City of Walla Walla

1)

(y Supreme Court, U.S.

FILED

OF @52 OCI - 1 697

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

RON J. STEELE and TERRY KNAPP,

individually and as representatives of the class,

Petitioners,

THE CITY OF WALLA WALLA,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Douglas L. Wilson

Counsel of Record

The Wilson Law Firm

680 Sanctuary Road

Naples, Florida 34120-4837

Counsel for Petitioners.

October 1, 1997

Washington, 0.C. * THIEL PRESS ¢ (202) 328-3286

0 A pe tio

(?)

QUESTIONS PRESENTED

1. Whether the appellate court erred by sua sponte

applying the rule announced in Heck v. Humphrey, 512

U.S. 477 (1994) (hereinafter “Heck))), to the plaintiffs’

§ 1983 claims where the complaint alleged that the plain-

tiffs and class members had been tried by an illegal, mun-

icipal court of limited jurisdiction?

2. Whether the rule announced in Heck applies equally

to the §1983 claims (a) of those who paid civil penalties

and fines for non-criminal traffic, parking and city code

violations, (b) of those who were acquitted of city ordi-

nance violations, (c) of those who paid fines or other

penalties for misdemeanor ordinance violations, and (d)

of those who were jailed for city ordinance violations, all

on account of proceedings in an illegal, municipal court

of limited jurisdiction?

(ii)

PARTIES

The caption of the case contains the names of all

parties to the proceeding: Ron J. Steele, Terry Knapp

and the City of Walla Walla.

Questions Presented

Parties

Opinions Below

Jurisdiction

Statutory Provision Involved

Statement Of The Case

Reasons For Granting The Petition

(itt)

TABLE OF CONTENTS

Argument:

I.

Il.

III.

VI.

Trial By An Illegal Court Is A Trespass Under

Ancient English And American Law.........

Proceedings In An Illegal Municipal Court Do

Not Lie At The “Intersection Of §1983 And

eg OE a ae

The Allegations Of Fraud In The Complaint

Bring It Within The Exceptions Enumerated

og Perri cre Cae

. Where There Are No Criminal Judgments,

There Can Be No Application Of Heck.......

Persons Acquitted Of Charges In The Court

Of Limited Jurisdiction Challenged Herein

Should Be Allowed To Proceed In Their

Action Against The Respondent............

Payment Of Fines For Misdemeanor Offenses,

Not Resulting In Confinement (Jail), Does

Not Preclude A Claim Under Heck ..........

ee ne ae eee ee Se Ce Oe eS Sa Oe 6S O46 @ 2 6 Oe + 8.0 2

oo 2. @ 2 2 6 Oe ae 2.4 @ OO £6 «29 6 6.656 € SOO

seo: 029 2:3. 6 6.2.4.9: a 6

(iv)

Page

VII. Class Members Jailed For City Ordinance

Violations Do Not Lose Their Right To

Sue For Damages Under §1983 As A

te ee ree ee 16

NANO 6 5 oo Sig W053 bo ha kN 6 TEES EERE we 16

Appendices:

Appendix A — Judgment of the Ninth Circuit

Ctert OT AgONEs BONING a ioc. 5 '0'e Keak cade oe ese la

Appendix B — Order of Ninth Circuit Court

Denying Motion For Rehearing................. 3a

Appendix C — Petitioners’ Complaint filed in

Lies SMU COOGEE ib was hone P esas ewe wees 4a

Appendix D — U.S. District Court Order dis-

missing complaint with prejudice .............. l4a

TABLE OF AUTHORITIES

Federal Cases:

Bradley v. Fisher, 13 Wall. (80 U.S.) 335, 20

ee eh ry ee Poe re er re eer ae 8

Burnham v. Superior Court of California, 495

OE. Ge Ce 56 he a ona isc we aes es 13

District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462 (1988) .............64.. 10

Dynes v. Hoover, 61 U.S. 838 (1857).............. 7

Heck v. Humphrey, 512 U.S. 477 (1994) ....... passim

Lehman v. Lycoming County Children’s Ser-

vices Agency, 458 U.S. 502 (1982).............. 14

Manning v. Ketcham, 58 F.2d 948 (6th Cir.

PORRE FEN o U5 ECAR OSES TEASE EEO EES TEAS EERE OO 8

(v)

Federal Cases, continued: Page

McClaughrey v. Deming, 186 U.S. 49 (1902) ........ 8

Mosely v. Wilson, 102 F.3d 85 (3rd Cir. 1996)...... 12

Parke v. Raley, 506 U.S. 20, 29 (1992)..........55- 15

Runkle v. U.S., 122 U.S. 543 (1887). .......---- 7, 15

Russell v. Pierre, 530 F.2d 791 (8th Cir. 1976),

cert. denied, 429 U.S. 855 (1976).........-+-5- 11

Ryan v. Scoggin, 245 F.2d 54 (10th Cir. 1957)....... 8

Valley Wood Preserving v. Paul, 785 F.2d 751

(Sth Gir. 390G) oc eee ect eese eee. 15

Wise v. Withers, 9 Cranch. [331,] 337

ELDOOE ch vca car vic depee aus coe etneena Kew. 7

Wright v. Bailey, 544 F.2d 737 (4th Cir. 1976)

cert. den; 434 U.S. 825 (1977)... ccc cece ce cnne 11

State Cases:

In re Cloherty, 2 Wash. 137, 27 P. 1064 (1891) ...... 6

Confederated Tribes of the Colville v. Washing-

ton, 938 F.2d 146 (9th Cir. 1991) ...........+--- 12

Cox v. Perkins, 299 Ky. 470, 185 S.W. 954,

E73 AER. TOT (2048) oc io i cee ee eee. 8

In re Eng, 113 Wn.2d 178, 776 P.2d 1336

fe cr ee reer ree 6

Fondren v. Klickitat County, 79 Wash. App.

Ee to) i aero re 2 kee 8

Junkin v. Anderson, 12 Wn.2d 58, 120 P.2d 548

fi Serre a ee ees eee 15

(vt)

State Cases, continued: Page

North Pacific Plywood, Inc. v. Access Road

Builders, Inc., 29 Wash. App. 228, 628

P.2d 482 (1981), review denied, 96

WO UE PU CNET RG ceeds ceccetesestieves 12

State v. Canady, 116 Wn.2d 853, 857, 809

oe Ee ery ere er ee ree 6

State ex rel. McFerran v. Justice Court of Starr,

$2 Wn.2d 544, 202 P.2d 927 (1949). ............ 15

State v. Moore, 73 Wash. App. 805, 871 P.2d

ee ea aay Aap Gr bere neren arena ree 6

Federal Statutes:

a MR 8 ee re ee ere wee 1

BE UG Gn Biot ts Bees BEROR + va ce ta enn ceeee 2

Be Se, EE oh bo os pacha be dnee + cece ke CNM 9

Oe RE POR hs be kwepeseteeneaseannas passim

Pn ee kk 8 64a a8 ocd EN 86 6 hae 3

State Statutes:

es peek Rio kas CNN Ss 10, 12

ARS A TR Gecee no nae gap er U Oe Ee aRar Sr 10

Miscellaneous:

Bouvier’s Law Dictionary, 1870 ed., v. I].... 6, 7,9, 16

OPINIONS BELOW

The disposition of the United States Court of Appeals

for the Ninth Circuit in this case was found “not appro-

priate for publication” and is therefore not reported.

It appears as Appendix A to this Petition.

The Opinion and Order of the United States District

Court for the Eastern District of Washington is not

reported. It appears as Appendix D to this Petition.

JURISDICTION

The judgment of the Court of Appeals was entered

on May 14, 1997. On July 3, 1997, the Court of Appeals

denied a Petition for Rehearing and Suggestion for

Rehearing En Banc (Appendix B). Jurisdiction of this

Court is invoked under 28 U.S.C, §1254(1).

STATUTORY PROVISION INVOLVED

This case involves 42 U.S.C. § 1983, which states:

“Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia, sub-

jects, or causes to be subjected, any citizen of the

United States or other person within the jurisdic-

tion thereof to the deprivation of any rights, privi-

leges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper pro-

ceeding for redress.” 42 U.S.C. §1983 (1994). °

]

2

STATEMENT OF THE CASE

The Complaint (Appendix C) alleges that the Respond-

ent operated a municipal court since 1976 without

obtaining legal authority to do so. Washington State

statutes and case law are clear: (a) on the procedure for

creating a municipal court, (b) that failure to follow the

procedure means the court and its acts are invalid, (c)

that Washington cities have no inherent judicial power,

and (d) that the jurisdiction of municipal courts is lim-

ited to enforcing municipal ordinances, i.e., they are

courts of limited jurisdiction.

Mr. Steele and Mr. Knapp — and the class members

they seek to represent — have been summoned, charged

and tried by the Respondent for ordinance violations.

These include parking, traffic, and other civil infractions,

as well as misdemeanor violations. The Respondent

acquitted the Petitioners of some charges and convicted

them of others, i.e., Ron Steele was acquitted of one

parking violation but convicted of another. The Respond-

ent has charged Terry Knapp with 55 ordinance viola-

tions over the years but subsequently dismissed 23 of the

charges.

Discovery, ignored by both courts below, produced

several affidavits reflecting that some — but not all —

statutory procedures for creating the court had been

undertaken. It also produced findings and orders of three

different municipal judges since 1987 who, during the

long public wrangle over the legitimacy of the court,

agreed that the court had not been properly created in

1976 but disagreed about what that ultimately meant.

Claiming federal jurisdiction under 28 U.S.C. §1343,

§2201 and §2202, 42 U.S.C. §1983, the Complaint

prayed for (1) a declaration that the court was illegal,

3

(2) injunctive relief against further operation of the court

and (3) monetary damages for violation of Petitioners’

constitutional rights.

The parties filed cross motions for summary judgment

in the District Court. Without referencing any discovery,

the District Court found that the plaintiffs had not

explained how the defendant had “caused the court not

to be created”, thus it could not be responsible for any

“due process” violations. Therefore the District Court

ruled that it had no jurisdiction, ordered the Complaint

dismissed “with prejudice” and issued show cause orders

to sanction Petitioners and their attorney with fees, costs

and suspension of his license under Fed.R.Civ.P. 11.

The Petitioners had been of the view that what caused

the court to not “be created” was irrelevant. Rather, by

operating an illegal court, the defendant violated their

constitutional rights. However, during oral argument on

appeal, the Circuit Court asked the parties, sua sponte, if

they were aware of Heck v. Humphrey, 512 U.S. 477

(1994) (hereinafter “Heck”). Before this moment, no

one had raised Heck.

The Petitioners answered that Heck did not apply

because trial by an illegal court was a “trespass” under

historic Supreme Court doctrine (not a “malicious pros-

ecution”), that their claim had nothing to do with the

prosecution or outcome of any individual case, but

rather with the legitimacy of the municipal court itself,

and that Heck did not apply because, where no court

existed, there could not be a “judgment” to be reversed,

ala Heck. In addition, having anticipated a Heck defense,

the Complaint alleged the existence of fraud on the part

of the Respondent.

4

THE NINTH CIRCUIT DECISION

Without explaining why Heck applies to civil infrac-

tions or even to acquittals, the Circuit Court dismissed

the appeal on May 14, 1997, “in accordance with the rule

set forth in” Heck. Also, without explanation, the Court

directed that it’s disposition not be published or cited.

The Petitioners moved for rehearing, with a suggestion of

en banc review, both of which were denied on July 3,

1997. This Petition ensued.

REASONS FOR GRANTING THE PETITION

The decision of the Ninth Circuit departs from the rul-

ings of the United States Supreme Court in regard to

Heck v. Humphrey, 512 U.S. 477 (1994), from each of

the opinions in Heck itself, and from every decision of

any other circuit pertinent to the application of Heck in

these circumstances.

In addition, the Ninth Circuit’s uncitable decision, dis-

missing, sua sponte for failure to state a cause of action

via Heck so far departs from the accepted and usual

course of judicial proceedings, and at the same time

sanctions such a departure by the District Court, as to

call for an exercise of this Court’s supervisory power.

Last, the Ninth Circuit decision decides important

questions of federal law in a way that conflict with

Heck: it applies Heck to all municipal ordinance viola-

tions, including civil infractions, and even to defendants

who were acquitted. Federal habeas relief is not or was

not available in most of these situations; and challenges

against illegal courts have been held to be a trespass,

not malicious prosecution, by this Court consistently

5

for nearly two hundred years. While the relevant deci-

sions concerning Heck do not support the Ninth Circuit

decision, the question of applying Heck in this type of

case has not been, but should be, settled by this Court.

ARGUMENT

I,

TRIAL BY AN ILLEGAL COURT IS A TRESPASS UNDER

ANCIENT ENGLISH AND AMERICAN LAW.

The Petitioners’ Complaint states that:

“2.The purpose of this complaint is to obtain a

declaration that the purported court of limited

jurisdiction that has been and continues to be

operated by the Defendant is not and has not

been a court since July, 1976; and is void, non-

existent, fraudulent, a nullity and a trespasser;

”

.

The Petitioners then alleged:

“9.In 1975, the City of Walla Walla petitioned the

County of Walla Walla to amend the existing Justice

Court Districting Plan to create a municipal depart-

ment of the Walla Walla Justice District Court, a

matter solely within the County’s, not the City’s,

jurisdiction. . . . the [pertinent] statute required

that the County undertake specific procedural steps

. . and then take substantive, official action before

the Plan could or would be amended and the muni-

cipal department be thereby created. . .. However,

the County never undertook or provided such man-

datory hearings, notice to the public and especially

never took any action or vote whatsoever approving

or authorizing an amendment to the [Plan] or the

creation of any additional court of municipal

department...”

6

Paragraph 10 of the Complaint then says:

“10. In spite of the failure and/or refusal of the

County to grant in any way the Defendant’s peti-

tion or to amend the [Plan] so as to create a mun-

icipal department, the Defendant commenced,

ultra vires, to operate a purported but sham, illeg-

imate and fraudulent municipal court . . . in July,

1976.”

Washington State case law consistently has held that

noncompliance with statutory procedures for creation of

a municipal court renders the court and its acts invalid.

State v. Moore, 73 Wash. App. 805, 871 P.2d 1086

(1994); State v. Canady, 116 Wn.2d 853, 857 (1991);

In re Eng, 113 Wn.2d 178, 776 P.2d 1336 (1989); In re

Cloherty, 2 Wash. 137, 27 P. 1064 (1891). Therefore, an

allegation that statutory procedures were not followed

raises a significant question about a court’s legitimacy.

(Such questions do not arise about courts of general juris-

diction, since they are created by the state constitution

itself, not by the action of local legislative bodies.)

The plurality decision in Heck rested upon the premise

that §1983 claims by state prisoners were most analo-

gous to the tort of malicious prosecution when the Civil

Rights Act of 1872 was adopted. Heck v. Humphrey,

512 U.S. 477 (1994). The justices left room for excep-

tions, however. Justice Thomas’ vote was necessary to

make Justice Scalia’s opinion a plurality, and Justice

Thomas stated that he joined because the result in Heck

was consistent “with the state of the common law at the

time §1983 was enacted.” Id., p. 397.

The law of torts in 1871 held that trial by an illegal

court was a trespass, not a malicious prosecution. In

fact, according to Bouvier’s Law Dictionary, 1870 edi-

7

tion (an official dictionary sanctioned by Congress near-

est in time to passage of the civil rights act), an essential

element of malicious prosecution is prosecution in a

“regular proceeding”’.

“Malicious Prosecution. A wanton prosecution

made by a prosecutor in a criminal proceeding, or a

plaintiff in a civil suit, without probable cause, by a

regular process and proceeding, which the facts did

not warrant, as appears by the result.”

and,

“The proceedings under which the original prosecu-

tion or action was held must have been regular, in

the ordinary course of justice, and before tribunal

having power to ascertain the truth or falsity of the

charge. [cite omitted] When the proceedings are

irregular the prosecutor is a trespasser.” (emphasis

original) Bouvier’s 1870 ed. v. II, pp. 92-93.

Congress has therefore known of the distinction

between actions sounding in (or analogous to) malicious

prosecution and those sounding in trespass, which is the

tort committed when one is tried in an illegal court.

The courts were also aware of the distinction. In

Dynes v. Hoover, 61 U.S. 838 (1857), the Supreme Court

dealt with a court of limited jurisdiction (a court martial)

that had not been properly constituted. The Court

stated:

“And it must have been with a direct reference to

what the law was in England, that this court said,

in Wise v. Withers, 3 Cranch. [331,] 337 [(1806)],

that in such a case, ‘the court and the officers are

all trespassers.’ ”’ Dynes v. Hoover, p. 844.

Dynes v. Hoover, Id., was subsequently cited in Runkle v.

United States, 122 U.S. 543 (1887) and in McClaughry

8

v. Deming, 186 U.S. 49, 63 (1902). See also Bradley

v. Fisher, 13 Wall. (80 U.S.) 335, 351, 20 L.Ed. 646

(1871) (decided the year of passage of §1983; Man-

ning v. Ketcham, 58 F.2d 948 (6th Cir. 1932); Ryan v.

Scoggin, 245 F.2d 54, 58 (10th Cir. 1957); Cox v. Per-

kins, 299 Ky. 470, 185 S.W. 954, 173 A.L.R. 797 (1945).

Also, probable cause, reversed convictions and malice

(necessary elements of malicious prosecution in most

states, see Fondren v. Klickitat County, 79 Wash. App.

850, 860 (1995)) are irrelevant to the plight of someone

tried in an illegal court. Since the sole premise of the

present case is that the court was illegal, and therefore

irregular, the application of any of the elements of mali-

cious prosecution to this action is inappropriate.

It is Justice Scalia’s opinion which states that to deter-

mine whether there is any bar to [a $1983] suit, “we

first look to the common law of torts”. Heck, p. 392.

Presumably that common law will therefore be control-

ling. Examination of the law of torts in existence in

1871 shows that Congress and the courts both recog-

nized that malicious prosecution could not be a remedy

for one tried in an illegal tribunal, since the tribunal pro-

ceedings were not regular, and the elements of malicious

prosecution, i.e., lack of probable cause, etc., are irrele-

vant to what must be proven.

Rather, the common law of torts in 1871 held that a

claim for damages for trial by an illegal tribunal is gov-

erned by the tort of trespass. The one element of mali-

cious prosecution utilized in Heck to limit §1983 claims

by state prisoners, a prior favorable termination of con-

viction, is completely irrelevant to the question of a

court’s legal creation. A court’s legal formation is com-

pletely independent of the guilt or innocence of the

9

defendant, independent of probable cause, malice and

any other issue germane to malicious prosecution.

While we are a litigious people, most people tried in a

municipal traffic court could not afford the legal effort

needed to discover whether the court was legally created

or not. At the same time, most citizens and residents in

this country come in contact with the judicial system, if

at all, in local traffic courts. It should not be too much

to ask for the only judicial bodies that the vast majority

of people ever come in contact with to be required to be

legally constituted. That is, after all, what they are ask-

ing of the people brought before them: to be lawful. To

have to prove their innocence, or a malicious prosecution,

before they can address the court’s illegal status subverts

the most fundamental notions of justice that we have.

Since a malicious prosecution claim could not proceed

under any circumstance if the court in which the prose-

cution took place was illegal, see Bouvier’s Law Dic-

tionary, supra, then the application of Heck to the present

case conflicts with the principles announced in Heck.

The decision of the circuit court is therefore in conflict.

Il.

PROCEEDINGS IN AN ILLEGAL MUNICIPAL COURT DO

NOT LIE AT THE “INTERSECTION OF §1983 AND

FEDERAL HABEAS RELIEF.

The three opinions written in Heck each asserted that

the case “lies at the intersection of [§1983] and the fed-

eral habeas corpus statute. ...’’ Heck, p. 396. Federal

habeas relief, however, only applies to those “in custody

pursuant to the judgment of a State court.” Title 28

U.S.C. §2254(b).

10

Also, all of the opinions in Heck refer to claims by

“state prisoners” as being the “type considered here.”

See Heck, p. 392. Also, the opinions variously refer to

Heck claimants as “criminal defendants” and to the con-

victions as “criminal judgments”’, p. 393. As an example,

Justice Thomas’ opinion describes the conflict between

federal habeas relief and §1983 as being “in the context

of suits by state prisoners’. Id., p. 397. However, the

Petitioners here are not, nor have they ever been, “state

prisoners”, most have never been state “criminals”

(merely local ordinance offenders), nor are they “‘con-

fined” or concerned with the length of their “‘confine-

ment”’.

Mr. Steele was only summoned to appear for two

parking tickets, one of which was dismissed. Mr. Knapp

had numerous charges of ordinance violations, about half

of them later dismissed, but he was never confined as the

result of a judgment of a “State court”. The municipal

court in question cannot be a “State court” since it does

not enforce state laws: its jurisdiction is limited to

enforcing municipal ordinances. RCW 3.46.030. Most of

the potential class members have simply paid fines to the

Respondent for traffic and parking offenses, now de-

criminalized in Washington State. See RCW 46.63.010-

020.

Also, the present case is not dependent upon how any

one person’s case was prosecuted. In the most complete

sense possible, the present claim is a general constitu-

tional challenge that does not require review of any final

state court, or other court, decision in a particular case.

See District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 482-86 (1983). And given the definition’s

in Bouvier’s Law Dictionary above, it is doubtful that

Congress intended to change the law on trespass for trial

11

in unduly constituted courts when it adopted the Habeas

Corpus Act.

What application does the federal habeas statute have

to these Petitioners and the potential class members?

There is no application. Habeas relief is and was irrele-

vant to them. Wright v. Batley, 544 F.2d 737 (4th Cir.

1976) cert. den, 434 U.S. 825 (1977) (violators of civil

infractions not eligible for habeas relief); Russell v. Pierre,

530 F.2d 791 (8th Cir. 1976), cert. denied, 429 U.S.

855 (1976) (same). If this case does not lie “‘at the inter-

section of §1983 and federal habeas relief’’, as Heck does,

how can the rule announced in Heck apply here? It

cannot. The ruling of the Circuit Court below therefore

conflicts with Heck.

Iil.

THE ALLEGATIONS OF FRAUD IN THE COMPLAINT

BRING IT WITHIN THE EXCEPTIONS ENUMERATED

BY JUSTICE SCALIA.

The Petitioners’ Complaint alleged fraud on the part

of the Respondent:

“19. Defendant’s ultra vires operation of its sham

court was and is conducted in bad faith and through

fraud as follows: 1. The Defendant represented the

sham court as an authentic court. 2. The authen-

ticity of the court is material to the Plaintilf class

members since they would not be required to sub-

mit to the authority of a sham court. 3. The repre-

sentation was false in that the court was and is not

legal or authentic. 4. The Defendant knew, or

should have known, that the court was not auth-

entic. 5. The Defendant intended that the Plaintiff

class members should rely on its representation,

look upon its sham court as authentic and submit to

its authority. 6. Plaintiff class members were and

are still generally unaware that the court is not legal

or authentic. 7. Plaintiff class members relied on

12

the representation that the court was authentic or,

absent coercion, they would not have dealt with it.

8. Plaintiff class members have a right to rely on the

Defendant City’s representation that its court is

authentic. 9. Plaintiff class members have been

damaged by loss of property and/or liberty taken

from them while they were relying on the Defend-

ant’s misrepresentation that the court is authentic

and had the authority to do so.” Plaintiffs’ Com-

plaint, Para. 19.

These allegations are the elements of fraud required in

Washington State. North Pacific Plywood, Inc. v. Access

Rd. Builders, Inc., 29 Wash. App. 228, 628 P.2d 482

(1981), review denied, 96 Wash. 2d 1002 (1981).

In discussing some of Justice Souter’s concerns, Jus-

tice Scalia wrote that:

‘

‘. . . there must be exceptions to the rule [that con-

viction was irrebuttable proof of the existence of

probable cause] in cases involving circumstances

such as fraud, perjury, or mistake of law.” Heck

at p. 394.

The Third Circuit in Mosely v. Wilson, 102 F.3d 85

(3rd Cir. 1996) took this language at face value and

recognized fraud as an exception to the application of

Heck, which the courts below did not. The decisions

below therefore conflict with both Heck and Mosely v.

Wilson.

IV.

WHERE THERE ARE NO CRIMINAL JUDGMENTS,

THERE CAN BE NO APPLICATION OF HECK.

The traffic and parking offenses administered by the

city’s court have been de-criminalized in Washington

State. RCE 46.63.010-020. Confederated Tribes of the

Colville v. Washington, 938 F.2d 146 (9th Cir. 1991).

Thus, Mr. Steele has never been a state prisoner nor had

13

a criminal conviction. He has never been “in custody” or

eligible for federal habeas relief. Justice Scalia stated in

Heck that:

“. .. if the district court determines that the plain-

tiff’s action, even if successful, will not demonstrate

the invalidity of any outstanding criminal judgment

against the plaintiff, the action should be allowed

to proceed in the absence of some other bar to the

suit.” Heck v. Humphrey, p. 394-395. (Emphasis

added.)

This statement must be explanatory of the holding of

the court, otherwise it could have no-meaning. There-

fore, no one convicted of a mere civil infraction, such as

Mr. Steele and Mr. Knapp have been, can be subject to

the restriction imposed by Heck. The claim of a person

with no “outstanding criminal judgment” against him or

her should, as Justice Scalia states, “be allowed to pro-

ceed”. The decision of the circuit court below conflicts

with this provision of Heck.

V.

PERSONS ACQUITTED OF CHARGES IN THE COURT

OF LIMITED JURISDICTION CHALLENGED HEREIN

SHOULD BE ALLOWED TO PROCEED IN THEIR

ACTION AGAINST THE RESPONDENT.

The entire point of Heck was that a “conviction”

must be reversed before a §1983 claim can proceed.

Where a person is tried in an illegal court and acquitted,

Heck does not preclude his or her suit claiming damages

for the constitutional violation incurred (i.e., being sum-

moned, charged and tried), since no conviction exists to

be reversed. This should go without saying. Burnham v.

Superior Court of California, 495 U.S. 604 (1990) (pro-

ceedings in a court lacking jurisdiction are coram non

judice and void ab initio).

14

However, both Mr. Steele and Mr. Knapp had charges

against them dismissed. How can they be precluded from

a §1983 action to recover damages (as the lower court

has done here) because of the rule announced in Heck.

Heck simply does not apply in these instances, unless

their other, unrelated and distinct parking or traffic con-

victions eliminates their standing. No known laws or

cases suggest such a rule of standing. One cannot lose

one’s standing for one claim (based on an acquittal),

merely because other, unrelated and unconnected charges

have resulted in convictions in the same illegal court (we

hope).

The lower court’s application of Heck to the Petition-

er’s claims based on being tried and acquitted of charges

conflicts with the tenets of Heck.

Vi.

PAYMENT OF FINES FOR MISDEMEANOR OFFENSES,

NOT RESULTING IN CONFINEMENT (JAIL), DOES NOT

PRECLUDE A CLAIM UNDER HECK.

It is without dispute that a Heck claim involves a con-

flict between §1983 claims and claims that must be

brought under the federal habeas corpus statute. But

where a person is convicted of an ordinance misdemeanor

offense, such as Mr. Knapp, and has only been required

to pay fines, he or she is never confined and therefore

never eligible for federal habeas relief. Lehman v. Lycom-

ing County Children’s Services Agency, 458 U.S. 502

(1982) (in order to be eligible for habeas relief one must

be in custody). One’s claim for damages on account of

being tried by an illegal court cannot be precluded by

Heck, since the claim creates no conflict with the federal

habeas corpus statute.

In other words, the many references to conflict between

§ 1983 and the federal habeas corpus statute either mean

what they say they mean or they do not. There might be

15

other prohibitions against collateral attack that may

apply here, but the rule in Heck does not. Heck does not

purport to be a generalized prohibition against collateral

attack, it only holds that criminal convictions must be

reversed before a §1983 claim is cognizable. Heck is

therefore only one type of prohibition against collateral

attack.

Traditionally, the judgments of a justice of the peace

(such as the municipal court here), which is not a court

of record, were subject to collateral attack, i.e., see Parke

v. Raley, 506 U.S. 20, 29 (1992) (judgments lacking juris-

diction are subject to collateral attack — cited by Heck).

The Heck opinion expressed concern about expanding

“opportunities for collateral attack”, but one cannot

expand that which is already entirely open. Heck makes

no statement evincing an intention to confer immunity

where it did not exist or to otherwise change the law

applicable to inferior courts.

State law on collateral attack, or claim preclusion,

applies in federal court actions (Valley Wood Preserving

v. Paul, 785 F.2d 751 (9th Cir. 1986)), so that would be

a major shift. Wushington State law says that a municipal

court is a court “not of record” (State ex rel. McFerran

v. Justice Court of Starr, 32 Wn.2d 544, 202 P.2d 927

(1949)) and collateral attack is always available on judg-

ments of courts not of record. Runkle v. U.S., 122 US.

543, 30 L.Ed. 1167, 7 S.Ct. 1141 (1887); Junkin v.

Anderson, 12 Wn.2d 58, 120 P.2d 548 (1941) (No pre-

sumption in favor of jurisdiction of inferior court in col-

lateral proceeding). Although Heck certainly affords

some immunity from collateral attack, it should be

interpreted to respect existing state law and not artific-

ially inject immunity if state law holds to the contrary.

16

Therefore, the decision below, applying the rule in

Heck to Mr. Knapp, and other potential class members

who merely paid finds for misdemeanor ordinance vio-

lations, was error and conflicts with Heck itself.

Vil.

CLASS MEMBERS JAILED FOR CITY ORDINANCE VIO-

LATIONS DO NOT LOSE THEIR RIGHT TO SUE FOR

DAMAGES UNDER §1983 AS A RESULT OF HECK.

(THIS IS THE “REAL LIFE EXAMPLE” OF WHICH JUS-

TICE SCALIA SPOKE IN FOOTNOTE 10 OF HECK.)

As was first argued above, the basis for a claim for

trial by an illegal court is the tort of trespass, not mal-

iclous prosecution. One cannot sue for being maliciously

prosecuted in an illegal court, since the tort of malicious

prosecution requires trial in ‘“‘regular proceedings”. See

Bouvier’s Law Dictionary, above.

Therefore, even being jailed by the illegal municipal

court does not give rise to application of the rule in

Heck, and the lower court’s dismissal of the Petitioners’

claim therefore conflicts with Heck itself.

CONCLUSION

This Court’s decision in Heck v. Humphrey applies

exactly where it says it applies; at the intersection of

§1983 and federal habeas relief. By applying Heck to

municipal ordinance cases, civil infractions, the payment

of fines for misdemeanors, and even to claims by acquit-

ted individuals, the circuit court creates a conflict with

17

_ this Court, with the principles and rationales set forth in

Heck and with the decisions of other circuits. Review

of the circuit court’s decision is therefore appropriate

and essential for the proper administration of justice.

Respectfully submitted,

David W. RYNDERS

(Counsel of Record)

305 Wedge Drive

Naples, Florida 34103

Phone: (941) 434-8370

Fax: (941) 434-8310

Counsel for Petitioners.

October 1, 1997

la

APPENDIX A

[Filed MAY 14 1997}

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 96-35102

D.C. No. CV-95-00226-AAM

RON STEELE, individually and as a class representative;

TERRY KNAPP, individually and as a class representative,

Plaintiffs-Appellants,

CITY OF WALLA WALLA,

Defendant-Appellee.

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of Washington

Alan A. McDonald, District Judge, Presiding

Argued and Submitted May 7, 1997

Seattle, Washington

Before: LAY,** BEEZER and TROTT, Circuit Judges.

| *This disposition is not appropriate for publication and may

not be cited to or used by the courts of this circuit except as pro-

vided by Ninth Circuit Rule 36-3.

**The Honorable Donald P. Lay, Senior United States Cir-

cuit Judge for the Eighth Circuit, sitting by designation.

2a

os

In accordance with the rule set forth in Heck v.

Humphrey, 512 U.S. 477 (1994), this case is dismissed.

3a

APPENDIX B

[Filed JUL -3 1997]

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 96-35102

D.C. No. CV-95-00226-AAM

RON STEELE, individually and as a class representative;

TERRY KNAPP, individually and as a class representative,

Plaintiffs-Appellants,

CITY OF WALLA WALLA,

Defendant-Appellee.

ORDER

Before: LAY,** BEEZER and TROTT, Circuit Judges.

The panel has voted unanimously to deny the petition

for rehearing. Judge Trott votes to reject the suggestion

for rehearing en banc and Judges Lay and Beezer so

recommend.

The full court has been advised of the suggestion for

rehearing en banc and no judge in active service has

requested a vote to rehear the matter en banc.

Pursuant to Rule 35(b) of the Federal Rules of Appel-

late Procedure, the petition for rehearing is denied and

the suggestion for rehearing en banc is rejected.

**The Honorable Donald P. Lay, Senior United States Cir-

cuit Judge for the Eighth Circuit, sitting by designation.

4a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WASHINGTON

SPOKANE DIVISION

Case No. CS-95-0226 AAM

(CLASS ACTION COMPLAINT BY

PLAINTIFFS STEELE AND KNAPP)

RON J. STEELE and TERRY KNAPP,

individually and as class representatives,

Plaintiffs,

VS.

CITY OF WALLA WALLA,

Defendant.

CLASS ACTION COMPLAINT

FOR PERMANENT INJUNCTIVE AND

DECLARATORY RELIEF AND

DAMAGES INCIDENT TO EQUITABLE RELIEF

Plaintiffs RON J. STEELE and TERRY KNAPP, on

behalf of the members of the class, due Defendant, CITY

OF WALLA WALLA, and state as follows:

JURISDICTION

1. Jurisdiction of this Court is invoked pursuant to 28

U.S.C. Section 1343, providing for jurisdiction without

regard to the amount in controversy in cases seeking

redress from alleged infringements of civil mghts; pur-

5a

suant to 28 U.S.C. Section 1343, providing for jurisdic-

tion in cases arising under the Constitution and laws of

the United States; and pursuant to 28 U.S.C. Sections

2201 and 2202, providing for declaratory and injunctive

relief. This cases arises under the Fifth and Fourteenth

Amendments to the United States Constitution and 42

U.S.C. Section 1983, creating a federal cause of action

for violations of these civil rights.

2. The purpose of this action is to obtain a declaration

that the purported court of limited jurisdiction that has

been and continues to be operated by the Defendant is

not and has not been a court since July, 1976; and is

void, nonexistent, fraudulent, a nullity and a trespasser;

to permanently enjoin the operation by the Defendant

of this purported court until the Defendant complies

with the law in the creation and operation of a legally

constituted court of limited jurisdiction; and as an inci-

dent thereto to recover from the Defendant damages for

the deprivations of liberty and property suffered by

members of the Plaintiff class, which were taken without

due process of law. The Plaintiff class is asking whether

government may violate the law in creating a court

whose function is to take property and/or liberty from

citizens when those citizens violate the law.

3. The named Plaintiffs are residents of the County of

Walla Walla, State of Washington.

4. The Defendant is a municipality organized under

the laws of the State of Washington.

CLASS ACTION ALLEGATIONS

5. This action is brought by Plaintiffs as a class action,

on their own behalf and on behalf of all others similarly

situated, under the provisions of Rule 23(b)(1) and/or

6a

23(b)(2) of the Federal Rules of Civil Procedure, for

injunctive and declaratory relief and damages and other

relief incident and subordinate thereto, including costs

and attorney fees. Plaintiffs are entitled to bring this

action on their own behalf and on behalf of all others

who have a common right and interest in protection

against further illegal deprivation of property or liberty

by Defendant through its unlawful and fraudulent oper-

ation of an illegal, invalid, void and improperly consti-

tuted court of limited jurisdiction.

6. The class so represented by Plaintiffs in this action

and of which Plaintiffs are members, consists of those

persons who have been summoned, arrested, prosecuted,

jailed, imprisoned, detained, fined or charged with any

costs, fees, penalties or forfeitures by action of the pur-

ported, but sham court of limited jurisdiction conducted

and operated by the Defendant since July, 1976.

7. The exact number of members of the class, as herein

identified and described, is not known, but it is estimated

that there are not less than 10,000 members. As a result,

the class is so numerous that joinder of individual mem-

bers herein is impractical.

8. There are questions of law and fact in this action

that affect the rights of each member of the class, and

the relief sought is common to the entire class: a declara-

tion that the purported court of limited jurisdiction

operated by the Defendant is not a court, has been void,

fraudulent, a nullity and a trespasser since July, 1976,

under the laws of the United States and the State of

Washington, and that Defendant has under color of local

or state law unconstitutionally deprived the members of

the class of property and liberty without true, lawful

authority or the due process of law together with an

injunction restraining any further operation of the pur-

7a

ported court and, as an incident to the above, damages

under 42 U.S.C. Section 1983 for violation of their civil

rights.

9.In 1975, the City of Walla Walla petitioned the

County of Walla Walla (hereinafter the “County”) to

amend the existing Justice Court Districting Plan (the

“Plan”) to create a municipal department of the Walla

Walla Justice District Court, a matter solely within the

County’s, not the City’s, jurisdiction. The applicable

statute, RCW 3.46, is one of several in the Code permit-

ting municipalities which follow certain mandatory pro-

cedures to operate municipal courts. In this case, the

statute required that the County undertake specific pro-

cedural steps and then take substantive, official action

before the Plan could or would be amended and the mun-

icipal department be thereby created. These steps and

actions included, but are not limited to, holding public

hearings, notification to the public of the date and time

of the hearings, and substantive action in the form of a

majority vote at a public hearing by the County Com-

mission to approve an amendment to the currently exist-

ing Plan, which had been previously adopted by a Reso-

lution of the County on September 25, 1967, and had

been effective since January 1, 1968. However, the

County never undertook or provided such mandatory

hearings, notice to the public and especially never took

any action or vote whatsoever approving or authorizing

an amendment to the existing Justice Court Districting

Plan or the creation of any additional court or municipal

department of the Walla Walla Justice District Court.

10. In spite of the failure and/or refusal of the County

to grant in any way the Defendant’s Petition or to amend

the existing and substantively approved Justice Court

Districting Plan so as to create a municipal department,

8a

the Defendant commenced, ultra vires, to operate a pur-

ported but sham, illegitimate and fraudulent municipal

court as a department of the Walla Walla Justice District

Court in July, 1976. Defendant has operated this pur-

ported, sham court continuously since then in order

to provide revenue to itself and to enforce Defendant’s

city ordinances and traffic regulations by fine and/or

imprisonment of the citizens. Acting through said court,

Defendant has, in bad faith, fraudulently and without

true or lawful authority, summoned, arrested, pro-

secuted, jailed, imprisoned, detailed, and coercively

extracted fines, costs, fees and other penalties and for-

feitures from Plaintiffs and other members of the class.

Defendant has coercively extracted the property of

Plaintiff class members, totalling more than $4,000,-

000, and utilized their property as its own, and has in

other ways harassed Plaintiff class members, all in vio-

lation of the Fifth and Fourteenth Amendments to the

United States Constitution, for which a remedy is made

available in 42 U.S.C. Section 1983.

11. The claims of Plaintiffs who are representatives of

the class herein are typical of the claims of the class, in

that the claims of all members of the class, including

Plaintiffs, depend upon the showing of the acts or omis-

sions of Defendant to give rise to the right of Plaintiffs

to the relief sought herein. There is no conflict as between

any individual named Plaintiff and other members of the

class with respect to their action or with respect to the

claims for relief herein set forth. Plaintiffs, as have all

other members of the class by definition, been sum-

moned, detained, fined and/or imprisoned and been

otherwise harassed and deprived of property and liberty,

all as a result of the acts of the purported, but void, null

and ultra vires, municipal court knowingly and fraud-

ulently operated by the Defendant.

Eel

9a

12. The prosection of separate actions by individual

members of the class would create a risk of inconsistent

or varying adjudications with respect to individual mem-

bers of the class which would establish incompatible

standards of conduct for the Defendant.

13. The prosection of separate actions by individual

members of the class would create a risk of adjudications

with respect to individual members of the class which

would as a practical matter be dispositive of the interests

of the other members not parties to the adjudications or

substantially impair or impede their ability to protect

their interests.

14. The Defendant has acted and continues to act on

grounds uniformly and universally applicable to the class,

and by reason of such conduct, thereby made appropriate

final injunctive and declaratory relief with respect to the

class as a whole or corresponding declaratory relief with

respect to the entire class, as sought in this action.

15. The named Plaintiffs are the representative parties

for the class and are able to and will fairly and adequately

protect the interests of the class inasmuch as they have

been greatly aggrieved by the Defendant, have reviewed

the facts and the law themselves, have labored to obtain

suitable counsel and are persistent and untiring in their

pursuit of justice in this matter. The attorney for Plain-

tiffs is experienced and capable in the field of civil rights

litigation and municipal law and in particular in the liti-

gation of class actions involving the civil rights of defend-

ants summoned unlawfully before courts of limited juris-

diction, and has successfully represented claimants and

defendants in other litigation of this nature. This under-

signed attorney, David W. Rynders, will actively conduct

and be responsible for Plaintiffs’ case herein.

10a

16. Plaintiffs have no other remedy at law in that

Defendant continues in bad faith to operate its pur-

ported, but null, void and fraudulent court, continues to

summon and arrest persons, to fine and imprison them

and to charge them with costs, fees and other penalties

and forfeitures. Defendant has refused to cease, stop,

remedy or correct these flagrantly and patently ultra

vires actions after repeated requests. Plaintiffs and other

class members, together with thousands of other persons,

are threatened with irreparable injury in the form of

being further summoned, arrested, prosecuted, jailed,

imprisoned or detained by Defendant’s ultra vires acts

unless granted the relief prayed for herein.

17. There are now undoubtedly pending prosecutions

in Defendant’s ultra vires court; but the Defendant con-

tinuously prosecutes by means of this illegitimate court;

and there will never be any time or occasion when this is

not the case. If Plaintiffs are barred by such pending

prosecutions, before a null and void court having no

jurisdiction whatsoever, no relief or remedy would ever

be available to Plaintiffs or the class or anyone in the

future apprehended by this sham court.

18. Action by Defendant constitutes state action

within the meaning of the Fourteenth Amendment to the

Constitution of the United States. The acts and omis-

sions of Defendant under color of local or state law have

deprived Plaintiffs of their Fifth and Fourteenth Amend-

ment rights and amount to a substantive, constitutional

denial of their rights. Defendant’s acts and omissions are

a subversion of the processes of justice: not a mere error

or procedural irregularity, but constitute pretended judi-

cial action totally without jurisdiction.

19. Defendant’s ultra vires operation of its sham court

was and is conducted in bad faith and through fraud as

a ee

lla

follows: 1. The Defendant represented the sham court as

an authentic court. 2. The authenticity of the court is

material to the Plaintiff class members since they would

not be required to submit to the authority of a sham

court. 3. The represenation was false in that the court

was and is not legal or authentic. 4. The Defendant knew,

or should have known, that the court was not authentic.

5. The Defendant intended that the Plaintiff class mem-

bers should rely on its representation, look upon its sham

court as authentic and submit to its authority. 6. Plain-

tiff class members were and are still generally unaware

that the court is not legal or authentic. 7. Plaintiff class

members relied on the representation that the court was

authentic or, absent coercion, they would not have dealt

with it. 8. Plaintiff class members have a right to rely

on the Defendant City’s representation that its court is

authentic. 9, Plaintiff class members have been damaged

by loss of property and/or liberty taken from them while

they were relying on the Defendant’s misrepresentation

that the court is authentic and had the authority to do

so.

20. The Plaintiff class members have suffered an addi-

tional, non-monetary injury: Trust and confidence in the

authenticity of public institutions is an important fac-

tor in the peaceful enjoyment of peoples’ lives, an ele-

ment of their right to the pursuit of happiness. For

instance, people trust that they will never be summoned

before a court that is not itself, at the very least, law-

fully established. They trust that if their property or

liverty is taken, it is by a court which is itself authen-

tically created by substantive acts pursuant to due

cess of law. The judiciary has provided society with more

than just the rule of law: it has insured a social stability

unknown in history and at the same time encouraged the

12a

loyalty of the opposition. Trust in the authenticity of

the courts is unquestioned. Such trust is also, however,

a personal, valued possession of each citizen, including

Plaintiff class members. This applies with special sig-

nificance to courts of limited jurisdiction like traffic

courts, because the vast majority of people only come

into contact with these courts. A loss of trust in a court’s

authenticity by a large class of persons, such as Plaintiff

class members, is calamitous and therefore always an

extraordinary circumstance. Defendant’s ultra vires

operation of a fraudulent court has injured that trust

and threatens immediate and irreparable harm to Plain-

tiffs and others because it invites the perception among

people that government can violate the law with impun-

ity while mere individuals cannot. This perception gives

substance to the fear that law is a matter of who has

power and not who has rights. This fear, in tur, invites

the actual exercise of power and not rights; and there-

fore, because of this fear, Plaintiffs’ enjoyment of life

and the peaceful pursuit of happiness is lost. From this

substantive injury, Plaintiffs seek relief.

WHEREFORE, Plaintiffs request for themselves and

all other members of the class that:

1. The rights of the class members, to wit: to a dec-

laration that the operation of a purported court of lim-

ited jurisdiction by the Defendant since July, 1976, has

been unlawful, unconstitutional, fraudulent, null, void

and a trespass, be adjudicated and declared; and

2.The Defendant be permanently restrained and

enjoined from operating its illegal and fraudulent sham

court until a lawful municipal court is created; and

3. Plaintiffs be awarded attorneys fees pursuant to

42 U.S.C. Section 1988; and

l3a

4. Plaintiff class members be awarded damages inci-

dent to the equitable relief requested, in the form of a

return of the property, fines, fees and other penalties and

forfeitures taken from or imposed on them and together

with compensation for being summoned, arrested, pros-

ecuted, jailed, imprisoned or detained, all without due

process of law; and

5. Plaintiffs have such other and further relief as to the

court may seem appropriate, including costs and expenses.

DEMAND FOR JURY TRIAL

Trial by jury is demanded in the above-titled case.

RON J. STEELE TERRY KNAPP

Plaintiff Plaintiff

Respectfully submitted,

David W. Rynders

Trial Counsel for Plaintiff

WA Bar No. 21415

305 Wedge Drive, Naples, Florida 33940

813-434-8370, Fax - 813-434-8310

l4a

APPENDIX D

[ Filed DEC 18 1995]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

No. CS-95-0226-AAM

RON J. STEELE and TERRY KNAPP,

individually and as class representatives,

Plaintiffs,

v.

CITY OF WALLA WALLA,

Defendant.

ORDER ON MOTION

AND

CROSS-MOTION FOR SUMMARY JUDGMENT

Before the court is defendant’s motion for sum-

mary judgment, Ct. Rec. 22, and plaintiffs’ cross-motion

for summary judgment, Ct. Rec. 43. On hearing without

oral argument, plaintiffs were represented by David Ryn-

ders of Naples, Florida. Defendant was represented by

John Schultz and George Fearing of Leavy, Schultz,

Davis and Fearing, Kennewick, Washington. Upon con-

sideration of the record and the arguments presented by

counsel, the court enters the following order.

Plaintiffs filed suit in this court under 42 U.S.C. Sec.

1983 (§ 1983), alleging due process violations of the

Fifth and Fourteenth Amendments. Plaintiffs contend

l5a

that the Walla Walla municipal court was never properly

established or ratified, and the city of Walla Walla vio-

lated plaintiffs’ rights by maintaining an invalid court

that issued arrest warrants and fined plaintiffs, thus

infringing upon their liberty and property interests

without due process of law. Defendant counters that the

municipal court was properly authorized. Additionally,

defendant argues that plaintiffs are precluded from

bringing a § 1983 claim in federal court because they

were not denied procedural due process, they failed to

exhaust state remedies, and finally, that plaintiffs are

estopped from challenging the municipal court’s auth-

ority under the doctrine of res judicata.

The parties bring cross-motions for summary judg-

ment. For the reasons set forth below, the court grants

defendants’ motion and denies plaintiffs’ motion.

I. FACTS

The following facts are taken from the parties’ Local

Rule 56 statement of material facts (Plaintiffs’ Ct. Rec.

46; Defendants’ Ct. Rec. 24). Pursuant to LR 56(c),

any material fact stated by a moving party and not

rebutted by the non-moving party is deemed admitted.

Upon a thorough review of all of the facts on the rec-

ord, the court finds only the following to be material

to the resolution of this motion.

In 1974 and 1975, the city and county of Walla

Walla (“City” and “County,” respectively) began con-

templating the establishment of the Walla Walla munic-

ipal court as a department of the Walla Walla District

Court, as provided by RCW 3.46. In late 1975, the

City petitioned the Walla Walla County Board of Com-

missioners and requested that the municipal court

become a department of the district court. The Board

l6a

referred the petition to the County Districting Commit-

tee. Apparently, no formal action of the Board or

County ratifying the municipal court was recorded.

Since 1976, the County has prepared and adopted

yearly budgets with the assumption that the City will

pay a portion of the municipal judge’s salary.

In 1993, in response to a claim that the court lacked

jurisdiction, a municipal court judge found that the mun-

icipal court was not properly established as a department

of the County district court. After the 1993 challenge,

the Board of Commissioners formally adopted a resolu-

tion that ratified the municipal court as a department of

the district court, apparently without a new petition

from the city and without public hearing. The Board

declared the resolution retroactive to July 1, 1976.

In 1994, plaintiff Ron Steele challenged the status of

the Walla Walla municipal court. Steele moved to dismiss

the municipal charges against by asserting the municipal

court had never been properly established under state

law.

Plaintiffs Knapp and Steele owe unpaid fines imposed

by the municipal court for violations of City ordinances.

Knapp has been cited for 55 separate infractions, with 23

dismissed. The superior court recently dismissed Knapp’s

pending appeals due to the failure to prosecute. Steele

has no appeals pending.

Il. STANDARD FOR SUMMARY JUDGMENT

The purpose of summary judgment is to avoid unnec-

essary trials when there is no dispute as to the facts

before the court. Zweig v. Hearst Corp., 521 F.2d 1129

(9th Cir.), cert. denied, 423 U.S. 1025 (1975). A party

is entitled to summary judgment where the documentary

l7a

evidence produced by the parties permits only one con-

clusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

106 (1986); Semegen v. Weidner, 780 F.2d 727 (9th Cir.

1985). Summary judgment is precluded if there exists

a genuine dispute over a fact that might affect the out-

come of the suit under the governing law. Anderson,

477 US. at 248.

The moving party has the initial burden to prove that

no genuine issue of material fact exists. Matsushita Elec.

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986). Once the moving party has carried its

burden under Rule 56, “its opponent must do more than

simply show that there is some metaphysical doubt as

to the material facts.” Jd. The party opposing summary

judgment must go beyond the pleadings to designate

specific facts establishing a genuine issue for trial. Celo-

tex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

In ruling on a motion for summary judgment all infer-

ences drawn from the underlying facts must be viewed

in the light most favorable to the nonmovant. Matsu-

shita, 475 U.S. at 587. Summary judgment is required

against a party who fails to make a showing sufficient

to establish an essential element of a claim, even if there

are genuine factual disputes regarding other elements of

the claim. Celotex, 477 at 322-23.

Ill. ANALYSIS

To state a claim under § 1983 a person must allege the

violation of a right secured by the Constitution and laws

the United States, and must show that the alleged dep-

rivation was committed by a person acting under the

18a

color of state law.! Parratt v. Taylor, 451 U.S. 527, 535

(1981) overruled in part on other grounds, Daniels v.

Williams, 474 U.S. 327, 330-31 (1986). There is no dis-

pute that the defendant was acting under the color of

state law; rather, the primary issue is whether plaintiff

can establish evidence that the defendants caused a vio-

lation of constitutional significance.

Plaintiffs contend that the city’s maintenance of an

allegedly invalid court deprived them of liberty and

property without procedural due process, thus violating

the Fourteenth Amendment.

A. Municipality Liability

Plaintiffs are suing the City for asserted deprivations

of their procedural due process rights. Municipalities

are considered “persons” for purposes of § 1983 claims,

but only if “action pursuant to official municipal policy

of some nature caused a constitutional tort.” Monell v.

New York City Dept. of Soc. Services, 436 U.S. 658,

691 (1978).

The first inquiry in a case alleging municipal liability

under § 1983 is whether a “direct causal link” exists

between a municipal policy and the alleged constitutional

The text of § 19883 states:

Every person who, under the color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the juris-

diction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity

or other proper proceeding for redress. For the purposes of

this section, any Act of Congress applicable exclusively to

the District of Columbia shall be considered to be a statute

of the District of Columbia.

iia hai |

19a

deprivation. Canton v. Harris, 489 U.S. 378, 385 (1989).

To satisfy the causal requirement, plaintiffs must show

that the city’s policy, or the execution of that policy, was

“the moving force” behind their alleged constitutional

violations. Oklahoma City v. Tuttle, 471 U.S. 808, 820

(1985) (citing Monell v. New York City Dept. of Soc.

Services, 436 U.S. 658, 691 (1978)). Furthermore,

[t] he requisite causal connection can be established

not only by some kind of direct personal participa-

tion in the deprivation, but also by setting in motion

a series of acts by others which the actor knows or

reasonably should know would cause others to

inflict the constitutional injury.

Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

Plaintiffs have shown no causal link whatsoever

between the city’s petition to the County for creation of

a municipal court or the maintenance, by providing a

portion of the judge’s salary, of the municipal court,

and the alleged deprivations of procedural due process.”

Plaintiffs continually assert that the County failed to

properly ratify the court because no notice or public

hearing was provided; they do not allege that the City

failed to take such action. Nor do plaintiffs allege, and

the court doubts if they could, that the City’s policies of

requesting and funding the municipal court were the

“moving force’ behind the court’s alleged invalidity that

is the basis of their claim. The municipal court is a

department of the County district court; the City merely

Pays a portion of its costs.

Further, it strains the bounds of credulity to assert or

believe that the City’s petition or operations “‘set in

2A decision by the legislative body of a municipality is con-

sidered “policy” for the purposes of § 1983. Pembaur v. City of

Cincinnati, 475 U.S. 469, 480 (1986).

20a

motion of series of acts by others,” i.e., the Board of

Commissioners omissions and the court’s subsequent rul-

ings, that the City knew or reasonably should have

known would cause the alleged deprivations suffered by

plaintiffs.

Finally, it is questionable whether any governmental

policy caused plaintiffs alleged injuries. Plaintiffs were

not hauied into municipal court by the City or the

County; plaintiffs were required to appear and assessed

finds because they violated the City’s ordinances, a fact

that plaintiffs do not contest. Plaintiffs affirmatively

declare that they are not challenging any court ruling,

municipal ordinance or state law. Plaintiffs have not

shown that the City caused their alleged deprivations of

due process, and therefore, their § 1983 claim is barred.

B. Procedural Due Process

Plaintiffs also fail to assert an injury of constitutional

significance. In the complaint, plaintiffs claim appeared

to be that the City violated their rights of procedural

due process, in that it failed to follow proper procedures

when establishing the municipal court. Subsequently,

plaintiffs declared that the City violated their rights of

substantive due process. Although the court finds that

plaintiffs did not allege a violation of substantive due

process in their complaint, the court will address both

claims.

In procedural due process claims, the deprivation of

a constitutionally protected interest by a person acting

under the color of state law is not in and of itself uncon-

stitutional. Zimermon v. Burch, 494 U.S. 113, 125

(1990). The constitutional violation occurs when the

party is deprived of such interest without due process of

law. Id.; Carey v. Piphus, 435 U.S. 247, 259 (1978).

2la

Accordingly, “[t]he constitutional violation actionable

under § 1983 is not complete when the deprivation

occurs; it is not complete unless and until the State fails

to provide due process.”” Zinermon at 126. To deter-

mine whether a violation occurred, a court must inquire

into the procedural safeguards provided by the statutory

procedure effecting the deprivation as well as any reme-

dies for erroneous deprivation. Jd.

An examination of the state procedures provided dur-

ing municipal court hearings and after such hearing show

that the state’s procedures provided plaintiffs with ade-

quate due process.

First, plaintiffs were provided adequate procedures in

municipal court. They were provided notice and the

opportunity to be heard. Plaintiff Steele, in fact, brought

a motion to dismiss a parking infraction on the basis that

the court was invalid. He filed pleadings and presented

oral argument in support of his motion before it was

denied by the municipal court judge. City v. Steele, No.

B-28064, (Mun. Ct. 1994). Therefore, plaintiffs were

provided with adequate procedural due process prior

to their deprivations.

Furthermore, plaintiffs have the opportunity to appeal

a municipal court decision to superior court. RALJ 2.2,

2.3. Plaintiffs did not pursue this avenue of relief.

Although plaintiff Knapp had several appeals dismissed,

he only appealed a portion of his 55 infractions. Plain-

tiff Steele could have appealed the decision of the muni-

cipal court finding that the court was indeed valid. Yet

he did not do so.

Finally, Washington state law provides a vehicle by

which to challenge judgments void for lack of jurisdic-

tion. Cr.R. 7.8; CR 60. Again, plaintiffs failed to file

such a claim.

22a

Plaintiffs, in a very cavalier fashion, contend that they

are not required to file any action in state court, nor do

they wish to do so “because their experience with state

courts has not been promising, having been hauled before

one illegal state ‘court’ already.” Plaintiffs’ Response to

Motion for Summary Judgment at 2-3. However, plain-

tiffs did not attempt to remedy the alleged violations of

state law in state courts. That, of course, is their choice.

That choice now precludes plaintiff from claiming vio-

lations of procedural due process in federal court.°

In addition to the failure to show that the state did

not provide adequate due process, plaintiffs have failed

to show that the city’s operation of a municipal court,

even if improperly ratified by the county, violated their

rights to due process under the Constitution of the

United States. Due process requires that a state employ

protective procedures before depriving a person of lib-

erty or property, either pre- or post-deprivation, depend-

ing upon the interest involved and the risks of erroneous

deprivation. Mathews v. Eldridge, 424 U.S. 319 (1976).

Where injury is the product of state law, the state may

not take away the protected interest without a pre-

deprivation hearing. Logan v. Zimmerman Brush Co.,

455 U.S. 422, 436 (1981); Haygood v. Younger, 769

F.2d 1350, 1357 (9th Cir. 1985). Accordingly, “[p] roc-

ess which precedes a loss of liberty obviously prevents a

constitutional violation.” Haygood at 1357. Plaintiffs

do not contest that they were provided with notice, hear-

ing, and the opportunity to be heard before they were

5 Moreover, the issue of whether the municipal court lacked

jurisdiction as a result of the County’s action or inacttion is solely

a matter of state law; it is not a matter of federal law. The state

is entitled to determine the jurisdictional boundaries of courts

operated pursuant to state law.

23a

fined or arrested. What plaintiffs claim is that the city

failed to recognize that the municipal court was not

properly ratified, and therefore, the city violated their

due process rights. Plaintiffs contention is without any

legal foundation. Thus, this court is without jurisdiction

to hear plaintiffs claim.

C. Substantive Due Process

In response to defendant’s arguments that a violation

of procedural due process had not occurred, plaintiffs

suddenly claim that their rights to substantive, not pro-

cedural, due process were violated by the City. The

court is offended by this flagrant attempt to avoid dis-

missal on the basis of a failure to allege a violation of

procedural due process. A cursory review of the appli-

cable caselaw would inform plaintiffs that this claim

comes nowhere close to a substantive due process claim.

A violation of substantive due process ‘“‘comprise[s]

those acts by the state that are prohibited regardless of

the fairness of the procedures used to implement them.”

Wood v. Ostrander, 879 F.2d 583, 589 (9th Cir.), cert.

denied, 489 U.S. 938 (1989) (citing Daniels v. Williams,

474 U.S. 327, 331 (1986)). A city is not prohibited

from creating a municipal court, nor is it prohibited from

citing and fining those who violate municipal ordinances.

Plaintiffs do not allege, nor did they suffer, violations of

their due process rights.

IV. SANCTIONS

Defendant requested costs and attorney fees pursuant

to 42 U.S.C. Sec. 1988 (§ 1988). The court finds it

appropriate to award defendant costs and attorney fees;

however, because this court has no jurisdiction to hear

24a

this case, it has no jurisdiction to award attorney fees

under § 1988. See Branson v. Nott, 62 F.3d 287, 293

(9th Cir. 1994). Nonetheless, a district court may award

costs and fees against an unsuccessful plaintiff pursuant

to Fed. R. Civ. P. 11 “only if the action is meritless, in

the sense it is groundless or without foundation.” Elks

Nat'l Foundation v. Weber, 942 F.2d 1480, 1485 (9th

Cir. 1991), cert. denied, 505 U.S. 1206 (1992) (internal

quotes and citation omitted).

The court finds that plaintiffs’ claims are without

foundation. The defendant’s actions in no way violated

plaintiffs’ rights of due process, and any attorney with an

ounce of common sense or legal experience would recog-

nize that these claims do not reach the level of constitu-

tional violations. Furthermore, plaintiffs did not dili-

gently attempt to appeal any adverse ruling in the state

courts. Finally, plaintiffs’ briefs were completely devoid

of merit or foundation with respect to constitutional vio-

lations. They attempted to cloak the lack of any legal

basis with extensive discussions on the importance of civil

rights, due process and the federal courts, including a

tedious discussion of legal history with quotes from

Abraham Lincoln! And all because the County, allegedly,

did not properly ratify the municipal court in a public

hearing.

V. CONCLUSION

The court finds that the plaintiffs’ have not shown that

the City of Walla Walla caused their deprivations, nor

have they alleged a constitutional violation. Therefore,

the court is without jurisdiction to hear plaintiffs’ claims.

Accordingly,

25a

IT IS HEREBY ORDERED that defendant's motion

for summary judgment is GRANTED, and that plaintiff's

cross-motion for summary judgment is DENIED.

IT IS FURTHER ORDERED that plaintiffs’ complaint

is DISMISSED with PREJUDICE.

In reaching its decision, the court did not reference

disputed affidavits. Therefore,

IT IS FURTHER ORDERED that plaintiffs’ motions

to strike portions of affidavits, Ct. Recs. 33, 40, are

DENIED as MOOT.

The court finds that plaintiffs’ claims are meritless.

Accordingly,

IT IS HEREBY ORDERED that plaintiff shall SHOW

CAUSE by March 11, 1996, why sanctions — including

but not limited to fines, attorney fees, and costs — should

not be imposed against plaintiffs and counsel. Defendant

shall, by March 1, 1996, submit an itemized list of costs

and attorney fees.

IT IS FURTHER ORDERED that plaintifis’ counsel

shall APPEAR in person on March 11, 1996, at 10:30

a.m. in Yakima, and SHOW CAUSE why his privilege of

appearing before this court should not be suspended or

withdrawn.

IT IS SO ORDERED. The Clerk is instructed to enter

this Order and forward copies to counsel. The Clerk js

further instructed to enter an Order of Judgment and for-

ward copies to counsel.

DATED this 18th day of December, 1995.

/s/ Alan A. McDonald

ALAN A. McDONALD

United States District Judge