Petition for ReHearing — Halliwell v. Superior Court of California, Sonoma County (No. 09-199)

No. 09-199

IN THE

Supreme Court of the Untted States

MICHAEL HALLIWELL & JAMES PARKER,

Petitioners,

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SONOMA,

Respondent,

CHRYSANTHE PAXINOS,

Real Party in Interest

On Petition for a Writ of Certiorari

To the California Supreme Court

PETITION FOR REHEARING

Michael J. Halliwell & James F. Parker

Defendants in Propria Persona

271 E. Cotati Ave, Cotati CA 9493]

707-795-5526, halliwel/‘@csulb.edu

November 6, 2009

TABLE OF CONTENTS

TABLE OF CONTENTS

D2 ee ee l

TABLA OF AL THUR Cite. . 6 sas ce hee ee eee

PETITION FOR REHEBARING............. oe

1. Once again OEX proceedings at a crossroads. 1

re

2. Enforcement of judgments before finality .... | 5

3. Federal consideration of federal claims..... 1]

Certificate re Grounds for Rehearing........... 19

i 3

TABLE OF AUTHORITIES CITED

CASES

Brinkerhoff-Faris Trust & Savings Co. v Hill (1930)

Es ea a ee 11

Brown v Allen (1953) 344 U.S. 443, 456......... 12

Bulloch v. United States (1983) 721 F.2d 713, 719.6

Chambers v NASCO, Inc. (1991) 501 U.S. 32, 53. ..6

Cooper v Aaron (1958) 358 U.S. 1, 19-20......... 4

England v Louisiana State Board of Medical Exam-

iners (1964) 375 U.S. 411, 415, 417.......... 13, 14

Flynn v United States (1955) 348 U.S. 900....... 10

Ford v Wainwright (1986) 477 U.S. 399, 480..... 18

Glasser v United States (1942) 315 U.S. 60, 70...17

Grannis v. Ordean (1914) 234 U.S. 385, 394..... 18

Hamiulton-Brown Shoe Co. v. Wolf Bros. & Co. (1916)

CS 13

Hanover Insurance Co. v United States (1989) 880

Poe boos, 1505, 1506-1507, 1508............. 8,9

Hazel-Atlas Glass Co. v Hartford Empire Co. (1944)

Zan tl. 2a0, 2o0-240, 246, 247, 251-252.....6, 7,8

House v. Mayo (1953) 324 U.S. 42, 48. 3 ee

Kenner v. Commissioner of Internal Revenue (1968)

387 F.2d 689. 691 . . ; Re oO ee Q

Kowis v. Howard (1992) 3 Cal 4th 888, 897....... 12

N.A.A.C.P. v Button (1963) 371 U.S. 415, 427....14

Plaut v Spendthrift Farm, Inc. (1995) 514 U.S. 211,

ee on ee) ee ee es ae ee 10

Rose v Mitchel] (1979) 443 U.S. 545, 592........ 17

Shelley v Kraemer (1948) 334 U.S. 1, 20......... A

Simpson & Co. v Commissioner of Internal Revenue

[3BGS) GoLu co. Sas Bee eh ek ee wee 9, 10

Sweet v. Commissioner of Internal Revenue (1941)

ee ee ee ts ae ee ee ee 9,10

Toscano v. Commissioner (1971) 441 F.2d 930, 933

} 66 @ O10. SS OG 6 SS 85'S & OOS eS 6 Ce. O62. eS OCS OS 4 8S we OS EO. eS Se. Se OR eS eS

Townsend v Sain (1963) 372 U.S. 293, 312-319, 313,

Sioa e, SEG, Oey Oh. ick eee teeta 15, 16, 17

Wheat v United States (1988) 486 U.S. 153, 162. . 17

Willcox v. Consolidated Gas Co. (1909) 212 U.S. 19,

a ae a ee ee ee ee 14

UNITED STATES CONSTITUTION

ae Oe SS ra ee Oe Ce ee ee 2

STATE STATUTES

California Code of Civil Procedure § 916(a)..... 1,5

California Code of Civil Procedure § 917.1(d)...... a

FEDERAL RULES OF CIVIL PROCEDURE

re ee ee ae Gree ee ea 6

UNITED STATES SUPREME COURT RULES

ec ee oe ee he ee ee ee

WEBSITE INFORMATION

Inquiry #177(2/10/06) re Judge Elaine Rushing... . 2

09-199 CERTIORARI REHEARING PETITION

1. Once again OEX proceedings at a crossroads

On July 7, 2009 Judge Rushing turned over to

Plaintiffs counsel, James Parker’s $833 (from his

part-time monthly paycheck of $350, plus $483 in

unemployment benefits) which had accumulated in

Parker’s bank account, since Judge Rushing’s off-

the-record turnover of $10,118 from this account (on

November 26, 2007, in defiance of the automatic stay

while an appeal is pending of CCP § 916(a), before

there had been ANY appellate review). James

Parker protested to Judge Rushing: “Judge Boyd in

OEX hearings stayed those hearings as premature

because he agrees federal appeals are relevant.”

(July 7, 2009 Transcript at 11:27 to 12:1) Judge

Rushing replied: “I believe he is wrong. I just have

to sav it. This 1s before me now. Each Judge has to

decide for themselves, and so I’m ruling against you

on that point.” (Ibid at 12:2-4)

Judge Robert S. Boyd would like to simply do his

own job of enforcing judgments which other judges

have made, without addressing the bitter legacy of a

judge (the Honorable Elaine Rushing) who has been

censured by California’s Commission on Judicial

Performance (Inquiry #177) for dishonesty, admitted

favoritism in her courtroom, and seeking favored

treatment for herself because her husband is a

Justice of California’s Court of Appeal. Once again

Judge Boyd (after doing so in his Orders of July 23,

2008, January 20, 2009 and April 17, 2009) has gone

to the brink and pulled back. On October 20, 2009

Judge Boyd cancelled a three-day jail sentence he

had imposed cn James Parker (for refusing to give

up on his Supreme Court appeals, before secking a

Rehearing under Rule 44). Judge Boyd’s Order of

October 20, 2009 once more “kicks the can down the

road” and states:

The court on its own motion, hereby stays the

enforcement of the order of contempt announced

at the hearing on the above matter held on

October 19, 2009, and orders this matter to be re-

scheduled for hearing on November 23, 2009 at

8:15 a.m. in Courtroom 17.

Judge Boyd is a former Presiding Judge of

Sonoma County Superior Court, and he is acutely

aware of his colleagues’ need to renew their mandate

with the voters every six years. Defendants would

like their case to be decided on the merits (instead of

having embarrassing aspects swept under the rug to

protect Judge Rushing, whose current term expires

in 2010). The United States Supreme Court faces a

similar dilemma. It surely realizes that there are

enough dishonest state judges willing to trample on

federal constitutional rights, that it would have time

to do very little else, if it constituted itself as a court

of last resort to safeguard judicial integrity. On the

other hand, the High Court would like to keep faith

with its proclamation in Cooper v Aaron (1958) 358

U.S. 1, 19-20, which concludes by affirming: “Our

constitutional ideal of equal justice under law is thus

made a living truth.”

[tis obvious why evicted tenants seeking to

ultimately vindicate their invocation of the Bill of

Rights (their right to be informed of the charges

against them and to confront their accusers) would

want to transfer their case to Federal District Court

to seek enforcement of Shelley v Kraemer (1948) 334

U.S. 1, 20, with respect to Covenants, Conditions

and Restrictions (CC & R’s) which deny tenants a

right to confront their accusers, in Homeowners

Association CC & R enforcement proceedings:

The difference between judicial enforcement and

nonenforcement of the restrictive covenants is the

difference to petitioners between being denied

rights of property available to other members of

the community and being accorded full enjoyment

of those rights on an equa! footing.

It is not at all obvious why the Supreme Court

would wish to make its difficult choice in this

case, without the benefit of the reliable factual

record, which it can easily secure by means of

a remand to Federal District Court.

2. Enforcement of judgments before finality

Prompt transcript availability (often on the same

day as a hearing) for Judge Boyd's judgment

enforcement hearings has played a key role in his

backing away from premature enforcement (contrary

to CCP § 916(a) and 917.1(d)) of judgments which

consist entirely of attorney fees and other costs

However, Judge Boyd refused to even allow briefing

on the obstruction of justice charges re other courts

which are the main focus of the disputed fees motion

)

(see October 5, 2009 Transcript at 13-14).

Nothing a court tried to do to uphold the rule of

law would be effective, if it did not have the power to

protect the integrity of its own process.

Bulloch v. United States (1983) 721 F.2d 713, 719

discusses considerations relating to rectifying fraud:

As to actions for relief from fraud on the court it

is generally held that the doctrine of laches as

such does not apply, but unexplained delays bear

on the basic concept of the finality of judgments

and the proof. Rule 60(b) does not impose a time

limit on motions asserting fraud on the court.

Chambers v NASCO, Inc. (1991) 501 U.S. 32, 53

discusses the scope of sanctions for attempting to

defraud the court, noting that “the imposition of

sanctions under the bad-faith exception depends not

on which party wins the lawsuit, but on how the

parties conduct themselves during the litigation.”

Hazel-Atlas Glass Company v. Hartford Empire

Company (1944) 322 U.S. 238, 246 observes:

The public welfare demands that the agencies of

public justice be not so impotent that they must

always be mute and helpless victims of deception

and fraud.

Hazel-Atlas Glass Company v. Hartford Empire

Company (1944) 322 U.S. 238, 239-240 observes

After a hearing the Circuit Court concluded that,

since the alleged fraud had been practiced on it

rather than the District Court, it would pass on

the issues of fraud itself instead of sending the

case to the District Court.

Concealing the authorship by Plaintiffs counsel

(Charles Jensen) of the hearsay complaints (with

names redacted) compiled by “a neighbor’ and

submitted to the jury over our strenuous efforts to

exclude this Exhibit (#5), is no less fraudulent than

the article used to mislead the courts in Hazel-Atlas,

supra

Hazel-Atlas Glass ¢ ompany v. llartford Emptire

Company (1944) 322 U.S. 238, 247 observe:

Having lost their infringement suit based on the

patent in the District Court wherein they did not

specifically emphasize the article, they urged the

article upon the Circuit Court and prevailed

They are in no position now to dispute its effec-

tiveness. Neither should they now be permitted to

escape the consequences of Hartford's deceptive

attribution of authorship to Clarke on the ground

that what the article stated was true. Truth

needs no disguise. The article, even if true,

should have stood or fallen under the only title 11

could honestly have been given — that of a brief in

behalf of Hartford, prepared by Hartford's agents,

attorneys, and collaborators.

In Hazel-Atlas Glass Company v. Hartford

Empire Company (1944) 322 U.S. 238, 251-252,

Justice Roberts observes in his concurring opinion

No fraud is more odious than an attempt to

subvert the administration of justice. The court

1s Unanimous in condemning the transaction dis

closed by this record. Our problem is how best the

wrong snould be nghted and the wrongdoers pur-

sued. Respect for orderly methods of procedure is

especially important in a case of this sort.

So long as the victims of fraud on the court move

promptly to seek redress, normal rules of finality do

not apply. Hanover Insurance Co. v United States

(1989) 880 F.2d 1503, 1505, defines finality as “when

the courts no longer possess power to reopen the

matter.” But Hanover continues (880 F.2d at 1508,

Footnote 3):

The rule, of course, applies to legitimate deci-

sions; the cases agree that in those rare instances

where fraud on the court has been practiced, the

judicial function itself has been undermined and

the decision must be reopened to cleanse the pro-

cess. See, c.g., Toscano v. Commissioner (1971)

441 F.2d 930, 933; Kenner v. Commissioner of

Internal Revenue (1968) 387 F.2d 689, 691; Sweet

v. Commissioner of Internal Revenue (1941) 120

F.2d 77, 81.

Every one of the nine prior Order of Examination

(OEX) hearings, which Judge Boyd eventually ruled

had been premature, were instigated by Plaintiffs

counsel to try to disrupt Defendants’ ongoing appeals

(and this was no less true of his October 19, 2009

effort to ignore Supreme Court Rule 44.1).

Hanover Insurance Co. v United States (1989) 880

F.2d 1503, 1506-1507 observes:

The lesson of Stmpson & Co. v Commissioner of

Internal Revenue (1944) 321U.S. 225, 230 is that

the Court's jurisdiction is preserved for the period

specified in its rules.

& \

[In Sweet v. Commissioner of Internal Revenue

(1941) 120 F.2d 77, 80} Judge Magruder foresha-

dowed what we might now call a Simpsonesque

interpretation: “final” for this purpose may refer

not to the date of denial of certiorari (notwith-

standing use of the term), but “perhaps [depends]

upon the lapse of twenty-five days, .... during

which period, under the rules of the Supreme

Court, the petitioners might have asked for a

rehearing.” In our judgment, Simpson & Co. v

Commissioner of Internal Revenue (1944) 321

U.S. 225, 229-230 conclusively proved the

accuracy of the Sweet augury. .... The Court

plainly foretold the outcome of our inquiry by

declaring that the statutory finality provisions

must be read in conjunction with the rule as to

rehearings. .... [T'hus,] “the denial of a petition

for certiorari should not be treated as a definitive

determination” in the Supreme Court until the

period for filing a rehearing petition has expired

[Flynn v United States (1955) 348 U.S. at 900}.

The focus of the October 19, 2009 OEX hearing

was Charles Jensen’s attempt to ignore Supreme

Court Rule 44, and enforce judgments which were

not final (even if one does not consider the file

tampering and other fraud by which they were

secured). Plaut vu Spendthrift Farm, Inc. (1995) 514

U.S. 211, 227 notes:

Within that hierarchy, the decision of an inferior

court is not (unless the time for appeal has

expired) the final word of the department as a

whole.

There is no doubt that where claims arise under the

Due Process and Equal Protection Clauses of the

Fourteenth Amendment (as is undisputed in Paxinos

v Halltwell & Parker) Brinkerhoff-Farts Trust &

Savings Co. v Hill (1930) 281 U.S. 673, 681 is

controlling: “it may be observed that the plaintiffs

claim is one arising under the federal Constitution

and, consequently, one on which the opinion of the

state court is not final.”

3. Federal consideration of federal claims

Judge Rushing was not willing to wait for the

discretionary review process to run its course in

state court, before piling another $19,000 in attorney

fees on top of her previous ($30.000-plus) awards

which James Parker was appealing. On February

LZ

10, 2009, Judge Rushing ruled: “I actually differ

from Judge Boyd in my view of the case. This is a

limited- [supposedly to $25,000] jurisdiction case.

And that means the appeal rights extend to the

Appellate Division of the Superior Court.”

(Transcript at 7:21-24) When the California

Supreme Court did complete its process of

discretionary review by denying Defendants’

petitions, Charles Jensen argued that these denials

were rulings on the merits of the claims Defendants

have been struggling to have adjudicated. In fact,

the California Supreme Court does not have time to

consider all the claims which may be meritorious,

and it has made it clear (Kowis v. Howard (1992) 3

Cal 4t 888, 897) that summary denial of a writ

petition 1s not a decision on the merits.

The policy of the U.S. Supreme Court is very

similar. In Brown v Allen (1953) 344 U.S. 443, 456,

13

Justice Frankfurter (stating the majority position of

the Court on this point, as the syllabus says) notes:

We have frequently said that the denial of

certiorari “imports no expression of opinion upon

the merits of a case.” House v. Mayo (1953) 324

U.S. 42, 48; Hamilton-Brown Shoe Co. v. Wolf

Bros. & Co. (1916) 240 U.S. 251, 258: [“As has

been many times declared, this 1s a jurisdiction to

be exercised sparingly, and only in cases of

peculiar gravity and general importance, or in

order to secure uniformity of decision.” ]

Since a ruling of general applicability is always the

objective of the granting of certiorari, a properly

developed factual record is an essential prerequisite.

England v Louisiana State Board of Medical

Examiners (1964) 375 U.S. 411, 415, protects all

litigants from being denied federal protection of their

Due Process rights, without their consent, saying:

Such a.result would be at war with the unqualli-

fied terms in which Congress, pursuant to consti-

tutional authorization, has conferred special

categorics of jurisdiction upon the federal courts,

and with the principle that “When a Federal

court is properly appealed to in a case over which

it has by law jurisdiction, it 1s 1ts duty to take

such jurisdiction.” Willcox v. Consolidated Gas

Co. (1909) 212 U.S. 19, 40.

England v Louisiana State Board of Medical

Examiners (1964) 375 U.S. 411, 417, observes that

(where there is not a need for an authoritative state

court construction of an ambiguous statute) a party

has a right to access to Federal District court for a

final determination of his claim. (WAACP v Button

(1963) 317 U.S. 415, 427). England, supra, affirms:

The possibility of appellate review by this Court

of a state court determination may not be substi-

tuted, against a party's wishes, for his right to

litigate his federal claims fully in the federal]

courts.

England v Loutsiana State Board of Medical

Examiners (1964) 375 U.S. 411, 417, notes that in

cases where a defendant does not. initiate litigation,

a primary fact determination by a District Court 1s

still a defendant's right. This is so even where fact

findings on federal constitutional contentions are

made by a state tribunal in the first instance. (See

Townsend v Sain (1963) 372 U.S. 293, 312-319.)

Defendants seek to use their right to fact finding in

federal court to bring the record up to the standards

in Jownsend v Sain, cited by the Court in England,

supra.) Townsend v Sain (1963) 372 U.S. 293, 313-

314 held:

There cannot even be the semblance of a full and

fair hearing unless the state court actually

reached and decided the issues of fact tendered

by the defendant. Thus, if no express findings of

fact have been made by the state court, the

District Court must initially determine whether

the state court has impliedly found material

facts.

Townsend v Sain (1963) 372 U.S. 293, 314 held:

Reconstruction is not possible if it is unclear

whether the state finder applied correct

constitutional standards in disposing of the

claim. Under such circumstances the District

Court cannot ascertain whether the state court

found the law or the facts adversely to the

petitioner's contentions. Since the decision of the

state trier of fact may rest upon an error of law

rather than an adverse determination of the

facts, a hearing is compelled to ascertain the

facts.

Townsend v Sain (1963) 372 U.S. 293, 316 held:

This Court has consistently held that state

factual determinations not fairly supported by

the record cannot be conclusive of federal rights.

Townsend v Sain (1963) 372 U.S. 293, 316 held:

Even if all the relevant facts were presented in

the state-court hearing, it may be that the fact-

finding procedure there employed was not ade-

quate for reaching reasonably correct results.

Townsend v Sain (1963) 372 U.S. 293, 316 held:

Even where the procedure employed does not

violate the Constitution, if it appears to be

seriously inadequate for the ascertainment of the

truth, it is the federal judge's duty to disregard

the state findings and take evidence anew.

Townsend v Sain (1963) 372 U.S. 298, 316 held:

Our present concern is with errors which,

although less serious, are nevertheless grave

enough to deprive the state evidentiary hearing

of its adequacy as a means of finally determining

facts upon which constitutional rights depend.

Townsend v Sain (1968) 372 U.S. 293, 319 held:

Of course, if because no record can be obtained

the district judge has no way of determining

whether a full and fair hearing which resulted in

findings of relevant fact was vouchsafed, he must

hold one.

Justice White’s opinion in Rose v Mitchell (1979)

443 U.S. 545, 592, does not agree with the Court’s

opinion, that discriminatory selection of a non-voting

erand jury foreman is not sufficiently relevant to

invalidate an indictment, but no justice disagrees

with his citation of Townsend v Sain (1963) 372 U.S.

293, 313, as the appropriate standard, whereby “[an]

evidentiary hearing must be held ‘unless the state-

court trier of fact has after a full hearing reliably

found the relevant facts.”

Wheat v United States (1988) 486 U.S. 153, 162

quotes with approval this holding of Glasser v

United States (1942) 315 U.S. 60, 70: “To preserve

the protection of the Bill of Rights for hard-pressed

defendants, we indulge every reasonable presump-

tion against the waiver of fundamental rights.”

In a case triggering a wide ranging discussion of

Due Process requirements, six justices agree with

Justice O’Connor’s least demanding standard in

Ford v Wainwright (1986) 477 U.S. 399, 430 notes:

“If there is one ‘fundamental requisite’ of due

process, it is that an individual is entitled to an

‘opportunity to be heard.’ Grannis v. Ordean, 234

U.S. 385, 394 (1914).”

Under Rule 44.3, this Court can ask for

citation of a ruling by any judge, which

addresses any legal or factual aspect of the

disputed attorney fees awards. There has been

no such ruling; when this is confirmed,

Defendants’ right to a fact-finding remand to

Federal District Court will be obvious.

Certificate re Grounds for Rehearing

Self represented Appellants Michael Halliwell

and James Parker hereby affirm that this Petition

for Rehearing is submitted not for delay, and as the

most feasible way of avoiding yet more delay in the

compilation of an appropriate factual record for a

decision on their federal claims.

We affirm that our Petition is a good faith effort

to inform the Court of controlling developments since

our previous submissions, related new case law

citations, and a minimum of background to tie in

with our October 15, 2009 Supplemental Brief.

Michiel Halliwel)

James Parker