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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1049

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1678%3A1. Public record. Not legal advice.