Petition for Writ of Certiorari — Kim v. City of Federal Way

Supreme Court, U.S.

FILED

091202 MAR 26 2010

OFFICE OF THE CLERK

No.

In The

Supreme Court of the United States

Cyrus Y. Kim,

petitioner,

VS.

CITY OF FEDERAL WAY,

respondents.

On Petition for Writ of Certiorari

to United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner

Cyrus Y. Kim Pro Se

1807S. 308 CT. #11

Federal Way, WA 98003

(253) 946-1834

Questions presented for review

is U.S. appeals court's affirmed judgment

disregarded important federal question for the

wrong issue of wrong cause of action a right

decision?

Is U.S. appeal court's affirmed judgment

contradicted the Supreme Court Rulings to

uphold a lower court ruling a right decision?

Is City of Federal Way's punishment deprived

petitioner Kim of liberty for one year without

due process of law on the speculative violation

of the alleged unconstitutionai city park

ordinances constitutional?

Are the city park ordinances, which regulate

private behavior to protect individuals from

privately inflicted harms, constitutional for the

permissible city objectives to make the park

users safe by Fourteenth Amendment?

Are the City park ordinances limiting or

depriving the liberty without due process of law

the Congress' authorized legislation for limiting

or depriving the liberty protected under

Fourteenth Amendment by §5 of Fourteenth

Amendment?

Didn't U.S. district court's orders violated

Federal Rules of Civil Procedure abuse its

discretion?

A list of all parties

Petitioner:

Cyrus Y. Kim Pro Se

1807 S. 3084 St. CT. #11

Federal Way, WA 98003

Respondent (1):

City of Federal Way

Counsel for City of Federal Way:

Patricia A. Richardson

33325 8 Ave. S.

PO Box 9718

Federal Way, WA 98063-9718

Brian A. Christensen

Jerry Moberg & Associates

451 Diamond Drive

Ephrata, WA 98823-2619

TABLE OF CONTENTS

1. City of Vodiedl Way's order of expulsion

from a city public park for one year

2. Alleged unconstitutional the City park

ordinances, FWCC 11-55 and FWCC 11-785.....:

A complete copy of FWCC 11-55

Expulsion from parks

A complete copy of FWCC 11-75 Games

and sports

3. Speculative violation of the City park

ordinances in two occasions

CE IN acs v.cucony s Coceenciavniens cadences 6

Occasion Two

. Deprivation of hberty without due process of

law for one year by excessive punishment

5. Cause of action

B. U.S. district court's judgments.............cccceseseeeeeeees 9

1. First order denied the default judgment

violated Federal Rules of Civil procedure

("Fed. Rules")

2. The granted summary judgment on the

basis of a lower court ruling of the

permissible city objectives for public

safety was groundless and contradicted the

Supreme Court rulings and §5 of

Fourteenth Amendment

. The judgment disregarded important

federal question for the wrong issues of

wrong cause of action

4. Denied order for sanctions........................60000 13

C. U.S. appeals court's affirmed judgment.............. 13

1. Affirmed order was an identical copy of

district court's wrong judgment

contradicted the Supreme Court rulings

and §5 of Fourteenth Amendment................. 13

. Affirmed order for the denied motion

to compel discovery

. Affirmed order for the denied motion

een autiaradaviecnotvanisacuebeanis 18

IV. ALL REPUDIATED PREVIOUS

SUPREME COURT RULINGS ...........00..0000. 18

A. Repudiated definition of the park from the

SUNPSME COUPE FUMMRG.........065.c0scensscesennseseseis 19

B. Completely repudiated Supreme Court

rulings on the basis of inferior court.

case of Kawaoka

C. Repudiated Supreme Court Rulings for

deprivation of liberty

V. CONCLUSION (RELIEF SOUGHT)

APPENDIX

U.S. appeals court's order denied motion for

reconsideration

U.S. appeals court's affirmed judgment

U.S. district court's order denying motion for

reconsideration

U.S. district court's order granting motion for

summary judgment and denying motion for

te csusucan suena wienddeiscaduenenaccent 25

Respondent's motion for summary judgment........... 30

TABLE OF AUTHORITIES

CONSTITUTION

Fourteenth Amendment............... 3, 8, 12.33, 14, 2}

U.S. STATUTE

I I occ ccincvnincsevscsctensveccucccncavasssvenseidancns 1

LE Oe | rT. 1,9

Mh FI a vecncceceassncivecesncisotenssccsonccieconanssats 14,15

U.S. SUPREME COURT CASES

Civil Rights Cases, 109 U.S. 3 (1883).......3, 12, 14, 20

Cummtings v. Missouri, 71 U.S. 277,

ee a Ne I I oo pices vies asin nnscan viteorncesencaianvelvuadvauinke 8

DeShaney v. Winnebago County Department of

Social Service, 489 U.S. 189,195-196

NS a eee aia eae ee eda ..3, 12, 14, 20

Evans v. Newton, 382 U.S. 296 (1966)..................... 19

Hudson v. Palmer, 468 U.S. at 530, 104 S.Ct.

vi

at 3202, 82 L.Ed.2d at 405 (1984)................00c000 21

Moore v. City of East Cleveland, 431 U.S. 494,

release cals acauddeaducesaveawss 20

Reno v. Flores, 507 U.S. 292, 295 (1993)...............00.. 1]

Roth v. Board of regents, 408 U.S. 564 (1972).......... 19

Washington v. Harper, 109 Nev.966, 860

P.2a 705 (1903)............. eee em FEN erm 20

APPEALS COURT CASES

Kawaoka v, City of Arroyo Grande, 17 F.3d

1227, 1234 (9th Cir. 1994)......... 11, 18, 15, 18, 19

FEDERAL RULES OF CIVIL

I ini casseccsccesccsesnesseversossesenesae 9,10, 16-18

CITY ORDINANCE

MS NE ME 9 Fos scicencivassccseddcovesanecsacss 2-5, 11]

I. OPINIONS BELOW

U.S. Appeals Court's order denied the motion for

reconsideration rendered on January 27, 2010 is

reprinted on p. 22.

U.S. Appeals Court's order affirmed district

court's summary judgment rendered on December

14, 2009 is reprinted on p. 22.

U.S. district court's order denying motion for

reconsideration rendered on May 15, 2009 is

reprinted on p. 24.

U.S. district court's order granting motion for

summary judgment and denying motion for

sanctions rendered on May 6, 2009 is reprinted on p.

25.

II. JURISDICTION

(A) Jurisdiction is conferred upon the Court by 28

U.S.C, §1331 and §1367.

(B) On January 27, 2010, U.S. appeals court

denied motion for reconsideration. A writ of

certiorari filing on March 26, 2010 is

timeliness, because it is less than 60 days.

Ill. STATEMENT OF CASE

A. Facts

1. City of Federal Way's order of expulsion

from a city public park for one year

City of Federal Way ("City") ordered not to enter

a City park "for any reason whatsoever for a period

of one year" under the reason committed "criminal

trespass" upon the City public park two times on the

speculative violation of the alleged unconstitutional

City park ordinances as below:

The City's

ORDER OF EXPULSION AND NOTICE OF

TRESPASS

This letter is An Order of Expulsion and Notice

of trespass, pursuant to Federal Way City Code

11-55 and you are hereby informed that as of

today, Cyrus Kim, you are forbidden to enter

the premises of Steel Lake Park located at 2410

S. 312 St. and 2645 S. 312 ST., Federal Way, WA

for any reason whatsoever for a period of one

year.

To enter such’ property may result’ in

prosecution for the crime of Trespass under

RCW 9A.52 and _ related municipal code

section(s). A violation by entry upon the listed

property may result in a fine, imprisonment, or

both.

THIS NOTICE IS VALID FOR ONE YEAR

FROM THE DATE OF ISSUANCE.

You are hereby Trespassed from Steel Lake

Park for violation of FWCC 11-75(1) two

times within the last 12-consecutive months. On

at least two separate occasions in the last 12-

consecutive months you illegally practiced golf in

a Federal Way Park without authorization and,

furthermore, caused risk of injury to another

person in doing so. One June 1, 2007, you were

asked by Parks employees to stop hitting real

golf balls in Steel Lake Park. The incident was

investigated by the Police Department, case

number 07-8527. In his report, Officer Tucker

noted that he told you to use plastic practice golf

balls in the Park, not real ones. On July 16,

2007, you were again seen hitting real golf balls

in Steel Lake Park and were asked to stop by a

parks employee.

A copy of this letter shall be sent to the Federal

Way Police Department pursuant to FWCC

11-55(d) for enforcement of this order.

s/ Donna Hanson 8-28-07

Director of Parks

2. Alleged unconstitutional the City park

ordinances, FWCC 11-55 and 11-75

In DeShaney v. Winnebago County Department of

Social Service, 489 U.S. 189, 195-196 (1989), the

Supreme Court broadly held that "the government

generally has no duty to protect individuals from

privately inflicted harms..." So, the wrongful act of

an individual even in the public park is simply

private wrong.

In Civil Right Cases, 109 U.S. 3 (1883), the

Supreme Court held that Congress only could

regulate government conduct and could not regulate

private behavior under the Fourteenth Amendment.

However, the park ordinances of FWCC 11-55

and 11-75 regulate private behavior to protect from

privately inflicted harms without any hearing

provision for any City's action or punishment.

FWCC 11-75 requires getting the director's

authorization and makes all recreational scope of

exercise unlawful but no provision of how to get

the director's authorization.

FWCC 11-55(a)(1) regulates the private conduct

requiring high moral standard; 11-55(a)(2) regulates

private conduct and discrimination based on race,

nationality, religion, disability, and sexual

orientation; 11-55(a)(3) and (b)(3) regulates the

conduct which U.S. Alcohol, Tobacco, and Controlled

Substance Law is already regulating; 11-55 (b)(4)

regulates the conduct which State Arms law is

regulating; 11-55(a)(4) and (5) and (b)(2) regulate

individual invasion of individual rights.

A complete copy of FWCC 11-55 Expulsion

from parks:

(a) In addition to another penalty imposed

pursuant to this article, the director or designee

may order the expulsion of any person from any

park for a period of one to seven days if he or she

observes such person:

(1) Using abusive or disruptive language or

engaging in conduct that disrupts a park facility

or program.

(2) Directing ethnic or offensive remarks at

another person based on such person’s actual or

perceived race or ethnic group, nationality,

religion, disability, sex or sexual orientation.

(3) Using tobacco products in an unauthorized

area or facility.

(4) Causing injury or risk of injury to another

person or persons.

(5) Causing damage or risk of damage to city

property.

(6) Violating any provision of this article.

(b) The director or designee may order the

expulsion of any person from any park for a

period of seven days to one year if such person:

(1) Has been expelled from the park two or

more times in any 30-day period.

(2) Causes injury to another person.

(3) Sells, possesses or uses alcohol or illegal

drugs.

(4) Possesses or uses any weapon.

(5) Commits more than one violation of this

article in any 12-consecutive-month period.

(c) Any order of expulsion under this section shall

be in writing and shall be sent by certified mail to

the person expelled at his or her last known

address or delivered in person.

(d) The director or designee may forward the

written notice of expulsion along with the

certified mail receipt to the department of public

safety (i.e. police department).

(1) The written notice of expulsion shall be a

notice of trespass.

(2) Any person on city park property, in

violation of the written notice of expulsion, will be

guilty of trespass.

(3) The notice of trespass and expulsion will

expire on the date indicated in the written notice

of expulsion.

(e) Any person who enters a park during a period

during which he or she has been expelled under

subsection (a) or (b) of this section is guilty of

violating this article and will be subject to the

enforcement in FWCC 11-54.

A complete copy of FWCC 11-75 Games and

sports:

It is unlawful to practice or play baseball,

softball, football, hockey, tennis, badminton or

other games of hke character or to hurl or propel

any airborne or other object in such a manner as

to interfere with or put at risk other park users.

(1) It is unlawful to practice or play golf or

archery in any city park, unless authorized by the

director.

‘3. Speculative violations of the City park

ordinances in two occasions.

In two occasions, Kim didn't violate any provision

of the park ordinances, because Kim's activity for the

recreational scope of exercise scared nobody and

there was no risk to injure anybody as helow. So, the

City's expulsion order for one year was completely

based on the committed criminal trespass twice upon

the public park by FWCC 11-55(d)(1) and (2).

Occasion One

There 1s an approximately 140-yard long and 25-

yard wide open sand space on the beach in the Steel

Lake public park. Kim always used #9 iron for 30

min. exercise sometimes hitting a baseball or soccer

ball, but a driver-club only four times during almost

two years.

On June 1, 2007 early morning between 6:00 and

8:00, after ten minute dumbbell exercise and five

minute body swing exercise with a golf club without

hitting any ball, Kim made three circled marks at

the point of approximately 60, 70, and 80 yards away

from a hitting area to try approach shots. After sixth

shot, one woman came with a dog and sat and was

watching the golf balls' dropping approximately 30

yards away from the golf balls' dropping area and

100 yards away from the hitting area. After cleaning

the park restrooms, Young Yi approached to Kim and

stopped the exercise. When Kim asked "why," he

answered "for public safety." After saying, “mind

your own business,” Kim tried to hit another ball.

Young Yi threatened to call 911. When Kim

responded, “go ahead,” he called to his supervisor.

During argument for a while, the woman

disappeared. Kim returned home, omitting the rest

exercise including jogging.

On June 15, 2007, Kim read City Ordinance 91-

11! posted on the fence at first time, which could not

be seen easily as, “Firework, firearms, alcoholic

beverages, controlled substances, golf and archery

are strictly prohibited at all times.”

On June 25, 2007, Kim mailed three letters, one

for the City Manager, one for City Council, and one

for manager of park maintenance office, indicating

the City Ordinance’s unconstitutional factors for

revision, otherwise, Kim would file a suit claiming

huge amounts beyond the price for _ limited

fundamental right.

Nobody responded at all.

Occasion Two:

On July 16, 2007, after dumbbell, paralle! and

monkey bar, bo¢cy swing exercise, and 30 minute

jogging, still twenty minutes were !eft to eight

o'clock. Kim was curious to hit golf balls toward the

artificial soccer field. After having covered a hitting

mat on the outside of the soccer field, the sparse

lawn area, in order to prevent any damage to the

lawn, Kim was hitting golf balls. A man approached

1 Ordinance 91-11 was different from the current FWCC 11-55

and 11-75.

and said that he was a supervisor. He stopped the

hitting golf balls. When Kim asked, “no damage here,

no damage there, nobody is there, why not?’ He

answered:

In the soccer field only soccer games are

allowed; baseball batting practice, any other

game or practicing except the soccer game, or

even walking around the soccer field with a dog

is not allowed, because Soccer Association

donated $500,000 for the artificial soccer field.

During the argument, a woman came walking

with her dog. The supervisor said, “Madam, walking

with a dog around the soccer field 1s not allowed.”

The dog was so friendly and understood various

human orders.

4. Deprivation of liberty without due

process of law for one year by excessive

punishment.

In Cummings v. Missouri, 71 U.S. 277, 18 L.Ed

356 (1866), U.S. Supreme Court explained that “{t]he

deprivation of any rights, civil or political, previously

enjoyed, may be punishment."

Hence, the City's expulsion from the public park

for one year under the reason committed criminal

trespass upon the City park on the speculative

violation of the alleged unconstitutional park

ordinances was excessive punishment which

deprived Kim of liberty without due process of

law for one year.

5. Cause of action

The cause of action of this case is the federal

question allegedly violated Fourteenth Amendment

of the City's punishment for one year under the

reason of committed criminal trespass upon the City

public park two times on the speculative violation of

the park ordinances and of the park ordinances

regulating private behavior to protect individuals

from privately inflicted harms, and _ claiming

damages of $9,526,000.00 for the actual cost for 30

minute exercise at the driving range for one year, for

the deprived liberty for one year and for the infliction

of mental distress for one year by the City's excessive

punishment on the basis of state torts law under

supplementary jurisdiction pursuant to 28 U.S.C.

§1367.

B. U.S. district court's judgments

1. First order denied the default judgment

violated Federal Rules of Civil procedure ("Fed.

Rules").

On May 2, 2008, Kim filed a complaint with the

court. Defendant didn’t serve answer within 20 days,

violating Fed. Rules 12(a)(1)(A)Q@). On June 4, 2008,

Kim filed motion for default judgment. 35 days later,

on June 6, 2008, defendant served answer after the

motion for default judgment was filed. On July 8,

2008, U.S. district court denied the motion as:

The court DENIES the motion. Defendant City of

Federal Way ("the City") filed a notice of

appearance on May 8, 2008 (Dkt. #4) and an

answer on June 6, 2008 (Dkt. #7). Although the

City's answer filed shortly after its time for

responding to the complaint had lapsed, the

court finds no prejudice to Mr. Kim from the

City's untimely answer. Mr. Kim also failed to

give the City proper notice of his motion for

default judgment. See Fed. R. Civ. P. 55(b)(2) ("If

the party against whom a default judgment is

sought has appeared personally or by a

representative, that party or its representative

must be served with written notice of application

at least 3 days before the hearing.") For these

reasons, the court DENIES Mr. Kim's motion for

default judgment (Dkt. #6).

Fed. Rules 55(b)(2):

By the Court. In all other cases, the party must

apply to the court for a default judgment... If the

party against whom a default judgment is sought

has appeared personally or by a representative,

that party or its representative must be served

with written notice of the application at least 3

days before the hearing...

The 35 days lapsed after the answer deadline

were not "shortly after its time for responding to the

complaint." The district court distorted the meaning

of Fed. Rules 55(b)(2), because the notice of

appearance was not a pleading required by Fed.

Rules 7(a)(2), and when the motion for default

judgment was filed, the notice of the motion for

default judgment was automatically given’ by

CM/ECF filing system. It was the first district court's

unfairly biased order violated Fed. Rules 55(b)(2).

In this case, violating nine provisions of Fed.

Rules and contradicting previous Supreme Court

rulings three times with intent, U.S. district judge

makes five unfairly biased orders and then makes

the order of dismissal contradicted the Supreme

Court rulings to uphold a 9th circuit ruling and voids

the jury trial set on June 9, 2009.

2. The granted summary judgment on the

basis of a lower court ruling of permissible city

objectives for public safety was groundless and

contradicted the Supreme Court rulings and §5

of Fourteenth Amendment.

U.S. district court judge granted summary

judgment on the basis of a 9th Circuit ruling of

Kawaoka—permissible or legitimate city objectives

for public safety—as below:

P. 28: In order for Mr. Kim to establish a violation

of his substantive due process right, he is

required to prove that the enactment of FWCC

11-55 and 11-75 was "clearly arbitrary and

unreasonable, having no substantial relation to

the public health, safety, morals or general

welfare." Kawaoka v. City of Arroyo Grande, 17

F.3d 1227, 1234 (9th Cir. 1994)...

P. 29: That is, whether the City, in passing

FWCC 11-55 and 11-75 was acting in pursuit of

permissible city objectives and, if so, whether the

means adopted were reasonably related to

accomplishment of these objectives. See Reno uv.

Flores, 507 U.S. 292, 295 (1993).

P. 29: As for FWCC 11-55—the ordinance

permitting the City to exclude people from city

parks—the court likewise finds that _ this

ordinance is reasonably related to the City’s

objectives in keeping its park safe for the

residents of Federal Way who use the park in a

safe and respectful manner.

However, in Kawaoka, the ordinance was to

regulate the City of Arroyo Grande's general land-

use plan and temporary water moratorium. So, the

ordinance was for "permissible or legitimate city

objectives for public health, safety, and general

welfare", but the park ordinances regulating private

behavior to protect individuals from privately

inflicted harms were not for "permissible city

objectives for public safety” and rather limit or

deprive park users' liberty under the groundless

permissible city objectives for public safety and

contradicted the Supreme Court’ rulings’ of

DeShaney, Civil Right Cases, and all other Supreme

Court rulings cited page 18-21.

Moreover, the park ordinances were not the

Congress' authorized legislation for the limitation or

deprivation of one park user's liberty for another

park user in the public parks by §5 of Fourteenth

Amendment, because only the Congress has the

power to enforce, by appropriate legislation, the

limitation or deprivation of liberty under Fourteenth

Amendment by §5 of Fourteenth Amendment.

Therefore, upholding a lower court Ninth circuit

ruling for the groundless and_ inapplicable

permissible or legitimate city objectives for public

safety, the district court made a_ contradicted

judgment to the Supreme Court rulings and §5 of

Fourteenth Amendment.

3. The judgment disregarded important

federal question for the wrong issue of wrong

cause of action.

P. 29: Mr. Kim does not have a fundamental right

to do belly exercise in a public park utilizing a

golf club and baseballs or golf balls... See Doe v.

City of Lafayette, 377 F.3d 757, 768 (7th Cir.

1995). The court is satisfied that the City's

objectives, i.e., public safety in its park, is

reasonably related to a ban on hitting golf balls in

a public park. Accordingly, the court does not find

that FWCC 11-76 is unconstitutional...

P. 49: Accordingly, the court finds that Mr.

Kim's expulsion from the city park for hitting

golf balls was not a violation of any fundamental

right and that the City's ordinances did not

violate Mr. Kim's due process rights.

This case was not challenging that "Kim's expulsion

from the City park for hitting golf balls" violated

Kim's fundamental right, but was challenging that

the City's expulsion order for one year under the

reason committed "criminal trespass" two times upon

the City public park on the speculative violation of

the park ordinances deprived Kim of liberty for one

year without due process of law protected under

Fourteenth Amendment and was challenging that

the park ordinances for the private behavior to

protect individuals from privately inflicted harms

were unconstitutional park ordinances. So, district

court judgment was completely wrong issue of wrong

cause of action disregarded the key federal questions.

4. Denied order for sanctions

The City's motion for summary judgment, which

is reprinted infra p. 30 - 38, completely contradicted

all previous Supreme Court rulings cited in the

complaint on the basis of the wrong lower court case

of Kawaoka. However, contradicting the Supreme

Court rulings and showing unfairly biased favor, the

district court judge ruled as below:

P. 29: Mr. Kim claims that the City's motion

was brought for the "improper purpose to harass,

cause unnecessary delay and needlessly increase

the cost of litigation." The court finds the

opposite to be true and therefore denies Mr. Kim's

motion for sanctions. The City has defended this

frivolous lawsuit in a respectful and

professional manner. The City's motion for

summary judgment was thoughtful, accurate, and

the proper method for requesting that this matter

be dismissed.

C. U.S. appeals court's affirmed judgments

1. Affirmed order was an identical copy of

district court's wrong judgment contradicted

the Supreme Court rulings and §5 of

Fourteenth Amendment.

Appeals court three judges affirmed under same

"the permissible or legitimate city objectives for

public safety", contradicting the Supreme Court

rulings of DeShaney, Civil Right Cases, other

Supreme Court cases, and §5 of Fourteenth

Amendment and distorting the cause of action as

below.

Cyrus Yoo Kim appeals pro se from the district

court's summary judgment for defendant in his 42

U.S.C. §1983 action alleging denial of his

fundamental right to exercise by hitting golf balls

in a public park...We review de novo...We affirm.

The district court properly granted summary

judgment for defendant because Kim failed to

show that he has a fundamental right to exercise

by hitting golf balls in a public park...

Moreover, the City's ordinances prohibiting the

hitting of golf balls in public parks and

sanctioning those who do are rationally related to

the legitimate public interest of safety in city

park. See Kawaoka v. City of Arroyo Grande, 17

F.3d 1227, 1234 (9th Cir. 1994)...

This case was not for 42 U.S.C. §1983 action

claiming that Kim had a fundamental right to

exercise by hitting golf balls in a public park—

distorted cause of action.

Clearly, "permissible or legitimate city objectives

for public safety" was inapplicable to this case.

Moreover, there was no scrutinized judgment for

the key federal questions—why the City's expulsion

order for one year didn't deprive Kim of liberty

without due process of law, why it was not an

excessive punishment, and why Kim committed the

criminal trespass upon the public park.

The appeals court also denied the motion for

reconsideration which cites the Supreme Court

rulings one more time and indicates such wrong

affirmed judgment, as, "Kim's’~ motion for

reconsideration is construed as a petition for penal

rehearing, and, as such, the petition is denied" (p.

22).

2. Affirmed judgment for the denied motion

to compel discovery

The appeals court three judges ruled as (p. 24):

The district court did not abuse its discretion by

denying the motion to compe! discovery because

Kim's interrogatories were directed at non-

parties..."

Fed. Rules is adopted by the court itself but provided

by the action of Congress. So, the Fed. Rules, just as

a statute passed by the legislature, has the force of

law, and thus, U.S. judges and the parties cannot

refuse or violate the Fed. Rules. So, district judge's

violation of Fed. Rules was abuse of his discretion.

The Constitution applies to all the City

employees’ actions involved in this case, because

each employee’s action is the City's action. The City

didn't disclose all employees' names or addresses

involved in this case, violating Fed. Rules 26

(a)(1)(A). Any party can request discovery conference

if needed by Fed. Rules 26(a)(1)(A). There is no

provision requiring the discovery conference for

interrogatory questions. So, the discovery conference

is not prerequisite for interrogatory questions. So,

Kim requested the answers including the address

and names involved in this case to reduce

unnecessarily wasting time in jury trial, because

City of Federal Way is a vicarious party for the

employees’ unconstitutional acts. No matter whether

it was action of a governmental entity or agency or

action of city, all City employees involved in this case

must furnish the information to the nominal party

pursuant to Fed. Rule 33(b)(1)(B), which reads as:

33(b)(1) Responding Party. The interrogatories

must be answered:

(A) by the party to whom they are directed; or

(B) if that party is a public or private corporation,

a partnership, an association, or a governmental

agency, by any officer or agent, who must furnish

the information available to the party.

Respondent counsel objected all answers including

the address and names of the employees involved in

this case for the reason that the interrogatory

questions were directed to non-party, the employees,

violating Fed. Rules 33(b)(1)(B). But district judge

denied as:

The court directs Mr. Kim to Federal Rule of Civil

Procedure 33, which explains that interrogatories

may Only be directed to parties. Mr. Kim did

not name any of the City’s employees in his

lawsuit. The employees are therefore not

parties and not required to answer

interrogatories in this case.

However, objecting all answers under the reason of

non-party, district judge adopted the answer of

assistant City Manager, Cary M. Roe, P.E., as the

answer of its representative of City of federal Way

as:

The City shall file with the court, and serve on

Mr. Kim, either (1) an explanation for the

absence of a signature by its representative or

(2) a signed copy of the interrogatory responses

pursuant to Fed. Rules 33(b) by ‘Tuesday, March

24th at noon.”

Under the current Council/Manager form of city

government of Federal Way, the City Manager's

administrative responsibility 1s equivalent to

Mayor’s and the City Manager is involved in this

case. So, City Manager’s answers were especially

required as a representative of the City, but district

judge objected City Manager’s answers under the

reason of non-party but adopted a complete non-

party's answers as the answers of the City's

representative. The assistant City Manager Cary M.

Roe, P.E was not involved in this case and

completely inechgible for a representative for the

City. So, district judge violated Fed. Rules 33(b)(1)(A)

and 33(b)(1)(B) and 33(b)(3) and (4). Therefore,

district judge abused his discretion for the order

denied the motion to compel discovery.

3. Affirmed judgment for the denied motion

for sanctions

Appeals court affirmed the district court's

unfairly biased order stated supra p. 13 as, "the

district court also did not abuse its discretion by

denying Kim's motion for sanctions" (p. 24).

Respondent's counsel Christensen has _ been

admitted to practice in the Bar of U.S. Supreme

Court. So, he knew that he could not violate Fed.

Rules and that he could not repudiate the previous

Supreme Court rulings on the basis of 9th Circuit

ruling of Kawaoka. But in this case he violated eight

provisions of Fed. Rules and two times repudiated

the previous Supreme Court rulings; one for the

motion for summary judgment cited in complaint and

another, the reply to the opposition to the motion for

summary judgment. Such conduct violated good

moral and professional character as an attorney and

increased the cost and time and agony for this

litigation. The jury trial set on June 9, 2009 was

delayed for almost one year and eventually was

voided by the district judge by granting the motion

for summary judgment which could not be granted.

So, district court abused his’ discretion by

contradicting all previous Supreme Court rulings

IV. ALL REPUDIATED PREVIOUS

SUPREME COURT RULINGS TO UPHOLD

A LOWER COURT RULING.

Four judges of both courts repudiated all previous

Supreme Court rulings cited in the complaint and

opening bmnef to uphold the lower court, the 9th

Circuit ruling for Kawaoka.

A. Repudiated definition of the park from

the Supreme Court rulings.

In Kvans v. Newton, 382 U.S. 296 (1966), the

Supreme Court held as:

that running the park was ae public

function and that it had to comply with

the Constitution even if managed by a

private entity. Justice Douglas, writing for the

Court, explained: “The service rendered even by a

private park of this character is municipal in

nature... A park ... is more like a fire

department or police department that

traditionally serves the community. Mass

recreation through the use of parks is

plainly in the public domain... (dd. at 301-

o02).

In Roth v. Board of regents, Supreme Court held as:

In a Constitution for a free people, there can

be no doubt that the meaning of “liberty”

must be broad indeed... (408 U.S. 564 (1972)).

The Supreme Court has held that some liberties

are so important that they are deemed to be

“fundamental rights” and that generally the

government cannot infringe upon them unless

strict scrutiny, and in Moore v. City of East

Cleveland, 431 U.S. 494, 503 (1977), the Supreme

Court has said that fundamental rights include

those liberties that are “deeply rooted in this

Nation’s history and tradition.”

B. Completely repudiated Supreme Court

rulings on the basis of inferior court case of

Kawaoka.

DeShaney was stated on, supra, p. 3.

In the Civil Rights Cases, the Supreme Court

declared the Civil Right Act of 1875 unconstitutional,

which provided private conduct and _ individual

invasion of individual rights as, "Justice Bradley,

writing for the Court, said the "Fourteenth

Amendment ... is prohibitory upon the States.

Individual invasion of individual rights is not

the subject matter of the amendment."

Therefore, the Supreme Court made it clear thai

Congress's authority was only over state and local

governments and their officials, not over private

conduct: "It does not authorize Congress to create a

code of municipal law for the regulation of private

rights..." The Court explained that private action

was governed by state law and not by the United

States Constitution: "The wrongful act of an

individual, unsupported by any such authority is

simply a private wrong, or crime of that individual..."

C. Repudiated Supreme Court Rulings for

deprivation of liberty

In Washington v. Harper, 109 Nev.966, 860 P.2d

705 (1903), the Supreme Court separated procedural

and substantive issues regarding the authority of

prison administrator to give anti-psychotic drugs to

21

an inmate against his will. The Supreme Court

found that the administrator of anti-psychotic drugs

to a defendant under certain’ circumstances

constituted a deprivation of liberty that was

protected by due process.

In Hudson v. Palmer, 468 U.S. at 530, 104 S.Ct.

at 3202, 82 L.Ed.2d at 405 (1984), the Supreme

Court has held:

that intentional infliction of harm on the

person or property of a prisoner violates due

process and that procedural due process

principles require the state to grant a

post-deprivation hearing to prisoners who

allege intentional destruction of their liberty or

property. Hudson v. Palmer, 468 U.S. 517,104

S.Ct. 3194, 82L.Ed.2d 393 (1984), on remand

744 F.2d 22(4th Cir. 1984).

All previous Supreme Court rulings make clear

FWCC 11-55 and 11-75 are unconstitutional and the

City's action of expulsion from the public park for

one year and the City employees' orders to stop the

recreational scope of exercise deprived Kim of liberty,

the fundamental right in the form of liberty without

due process of law protected under Fourteenth

Amendment.

V. CONCLUSION (RELIEF SOUGHT)

For all reasons’ stated above, petitioner

respectfully request that this Court grant review of

this case.

Respectfully submitted on March 26, 2010,

eS,

Cyrus Y. Kim Pro Se

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CYRUS Y. KIM, CASE NO. 09 - 35504

Appellant/Plaintiff, D.C. No. 2:08-cv-0688- JLR

Vv. Western District of

Washington, Seattle

CITY OF FEDERAL

WAY, ORDER

Appellee/Defendant. | (FILED JAN 27 2010)

Before: ALARCON, TROTT, AND TASHIMA, Circuit

Judges.

Kim's motion for reconsideration is construed as

a petition for penal rehearing, and, as such, the

petition is denied.

No further filings shall be accepted in this

closed case.

KEK KKK KKK KK KK KKK KKK KEKE KEK KKK KEKE KE KEK KEKKEKEEKEEKESE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CYRUS Y. KIM, CASE NO. 09 - 35504

Appellant/Plaintiff, D.C. No. 2:08-cv-0688- JLR

v.

CITY OF FEDERAL MEMORADOM’

WAY,

Appellee/Defendant. | (FILED DEC 14 2009)

Appeal from the United States District Court for

* This disposition is not appropriate for publication and is

not precedent except as provided by 9th Cir. R. 36-3.

the Western District of Washington James L. Robart,

District Judge, Presiding

Submitted November 17, 2009°°

Before: ALARCON, TROTT, AND TASHIMA, Circuit

Judges.

Cyrus Yoo Kim appeals pro se from the district

court's summary judgment for defendant in his 42

U.S.C. §1983 action alleging denial of his

fundamental right to exercise by hitting golf balls in

a public park. We have jurisdiction under 28 U.S.C.

§1291. We review de novo. Brown v. Cal. Dep't of

Corr., 554 F.3d 747, 749 (9th Cir. 2009). We affirm.

The district court properly granted summary

judgment for defendant because Kim failed to show

that he has a fundamental right to exercise by

hitting golf balls in a public park. See Shanks uv.

Dressel, 540 F.3d 1082, 1087 (Sth Cir. 2008) ("To

state a substantive due process claim, the plaintiff

must show as a threshold matter that s state actor

deprived it of a constitutionally protected life, hberty

or property interest.") Moreover, the City's

ordinances prohibiting the hitting of golf balls in

public parks and sanctioning those who do are

rationally related to the legitimate public interest of

safety in city park. See Kawaoka v. City of Arroyo

Grande, 17 F.3d 1227, 1234 (9th Cir. 1994)

("Legislative acts that do not impinge on

fundamental rights or employ suspect classifications

are presumed valid, and this presumption is

overcome only by a clear showing of arbitrariness

** The panel unanimously finds his case suitable for

decision without oral argument. See Fed. R. App. P.

34(a)(2).

and irrationality.”) (citation and internal quotation

marks omitted).

The district court did not abuse its discretion by

denying the motion to compel discovery because

Kim's interrogatories were directed at non-parties

und Kim has not shown that he suffered any

prejudice. See Hallett v. Morgan, 296 F.3d 732, 751

(9th Cir. 2002) (setting forth standard of review and

noting that the trial court's broad decision to deny

discovery "will not be disturbed except upon the

clearest showing that [the] denial of discovery

result[ed] in actual and substantial prejudice to the

complaining litigant") (citation and _ internal

quotation marks omitted).

The district court also did not abuse its

discretion by denying Kim's motion for sanctions. See

Air Separation, Inc. v. Underwriters at Lloyd's of

London, 45 F.3d 288, 291 (9th Cir. 1995) (providing

standard of review).

Kim's remaining contentions are unpersuasive.

AFFIRMED.

KE KKRKEKKEKKREKRKEKKREKKKEKREREKEKKEERKEEKKEKEREKEEKEKEEREEEEER

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CYRUS Y. KIM,

Plaintiff, CASE NO. C08-688JLR

v.

ORDER DENYING

CITY OF FEDERAL WAY; MOTION FOR

Defendant. RECONSIDERATION

—

Before the court is Plaintiff Cyrus Kim's

motion for reconsideration (Dkt. #49) of the court's

May 6, 2009 order granting summary judgment for

Defendant City of federal Way (Dkt. #47). Pursuant

to Local Rules W.D. Wash. CR 7(h)(1), motions for

reconsideration are disfavored, and will ordinarily be

denied unless there is a showing of (a)manifest error

in the prior ruling, or (b) facts or legal authority

which could not have been brought to the attention of

the court earlier, through reasonable diligence.

Because Mr. Kim has not made either showing with

regard to the court's ruling on Defendant's motion for

summary judgment, Mr. Kim's motion (Dkt. #49) is

DENIED.

Dated this 15th day of May, 2009.

s/JAMES L. ROBART

United states District Judge

Kk ate PMAKKHKKHKBCKEKKA HE CAMEKREKNREKKEKK CHEEK KH K KK KEE

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CYRUS Y. KIM, CASE NO. C08-688JLR

Plaintiff,

Vv. ORDER GRANTING

MOTION FOR SUMMARY

CITY OF FEDERAL JUDGMENT AND

WAY, DENYING MOTION FOR

Defendant.| SANCTIONS

I. INTRODUCTION

Before the court are two motions: Defendant's

motion for summary judgment (Dkt. #29) and

Plaintiff Cyrus Kim's motion for sanctions (Dkt. #41).

The court has reviewed the pleadings submitted in

support of and in opposition to the motion and for the

following reasons the court GRANTS defendant's

motion for summary judgment (Dkt. #29) and

DENIES Plaintiff's motion for sanctions (Dkt. #41).

Il. BACKGROUND & ANALYSIS

This matter arises out of Plaintiff Cyrus Kim's

decision to hit golf balls in a public park in order to

reduce belly fat. (Compl. (Dkt. #1) at 2.) On June 1,

2007, Mr. Kim was hitting golf balls in a park in

Federal Way, Washington. Ud. at 3) Mr. Kim was

asked by park employees to cease hitting golf balls as

this activity was in contravention of Federal Way

City Code ("FWCC") 11-75. Ud.) Mr. Kim told the

employee to "[m]Jind your own business." (/d.) Mr.

Kim then went home. On June 15, 2007, Mr. Kim

noticed that the park employees had posted a sign

stating that "golf and archery are strictly prohibited

at all times." Ud.) Mr. Kim wrote various letters to

the Federal Way City Council ("City Council")

arguing that the City ordinance prohibiting golfing

in public parks was in violation of the "Ninth

Amendment because the ordinance limits. the

fundamental right and liberty of daily exercise." (/d.)

Mr. Kim did not receive a response to his letters.

On July 16, 2007, after finishing a jog in the

park, Mr. Kim started his "body twist" exercises by

hitting golf balls toward a soccer field in the park.

(id. at 4) A park supervisor stopped Mr. Kim and

explained that hitting golf balls in the soccer field

was not allowed. (/d.) Mr. Kim ceased hitting golf

balls. On August 29, 2007, Mr. Kim was served at his

home with an order of expulsion and notice of

trespass by the director of parks and was warned not

to enter the park or risk being arrested and

prosecuted for trespass. (Id. at 5) Mr. Kim alleges

that order of expulsion and notice of trespass caused

him many sleepless nights as well as abdominal pain

and diarrhea. (/d.)

Mr. Kim brought this action against the City of

Federal Way ("the City") alleging that FWCC 11-55

and 11-75 are unconstitutional. Mr. Kim seeks

judgment against the City in the amount of

$9,526,000 as well as damages for vicarious liability

from the City Council, the director of parks, the

police department, the City ‘Manager, the City

Attorney and the park employees in an amount

upwards of $9,000,000. (Id. at 23.) The City moves

for summary judgment on the basis that it did not

infringe upon Mr. Kim's fundamental property or

liberty interest and that FWCC 11-55 (which gives

the City authority to expel a person from the city

parks), and 11-75 (which prohibits the playing of golf

in a city park), arise from the City's permissible

authority to determine that certain activities are

unsafe for its public parks and that the ordinances at

issue are reasonably based upon legitimate concerns.

(Mot. Dkt. #29) at 3.) The court agrees with the City.

Summary judgment is appropriate if the

evidence, when viewed in the light most favorable to

the non-moving party, demonstrates there is no

genuine issue of material fact. Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477, U.S. 317, 322 (1986);

Galen v. County of Los Angeles, 477 F.3d 652, 658

(9th Cir. 2007). The moving party bears the initial

burden of showing there is no material factual

dispute and he or she is entitled to prevail as a

matter of law. Celotex, 477 U.S. at 323. If the moving

party meets its burden, the nonmoving party must go

beyond the pleadings and identify facts which show a

genuine issue for trial. Cline v. Indus. Maint. Eng’g.

& Contracting Co., 200 F.3d 1223, 1229 (9th Cir.

2000).

In order for Mr. Kim to establish a violation of

his substantive due process right, he is required to

prove that the enactment of FWCC 11-55 and 11-75

was "clearly arbitrary and unreasonable, having no

substantial relation to the public health, safety,

morals or general welfare." Kawaoka vu. City of

Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir. 1994)

(quoting Sinaloa Lake Owners Ass'n v. City of Simi

valley, 882 F.2d 1398, 1407 (9th Cir. 1989)).

"Legislative acts that do not impinge on fundamental

rights or employ suspect classifications are presumed

valid, and this presumption is overcome only by a

‘clear showing of arbitrariness and irrationality.”

Kawaoka, 17 F.3d at 1234 (quoting Hodel v. Indiana,

452 U.S. 314, 331-32 (1981)). In analyzing a

substantive due process challenge, the court does

"not require that the City's legislative acts actually

advance its stated purposes, but instead look[s] to

whether 'the government body could have had no

legitimate reason for its decision." Kawaoka, 17 F.3d

at 1234 (emphasis in original) (quoting Levald, Inc.

v. City of Palm Desert, 998 F.2d 680, 690 (9th Cir.

1993)).

The court first finds that there is no fundamental

right implicated in the application of these

ordinances to this situation. Mr. Kim does not have a

fundamental right to do belly exercise in a public

park utilizing a golf club and baseballs or golf balls.

Nor does the court find that the mere right to be

present in a public park is a fundamental right. See

Doe v, City of Lafayette, 377 F.3d 757, 768 (7th Cir.

1995). Thus, the proper test for determining the

constitutionality of the City ordinances at issue is

the rational basis test. That is, whether the city, in

passing FWCC 11-55 and 11-75, was acting in

pursuit of permissible city objectives and, if so,

whether the means adopted were reasonably related

to accomplishment of these objectives. See Reno v.

Flores, 507 U.S. 292, 295 (1993). The court is

satisfied that the City's objectives, i.e., public safety

in its park, is reasonably related to a ban on hitting

golf balls in a public park. Accordingly, the court

does not find that FWCC 11-75 is unconstitutional.

As for FWCC 11-55—the ordinance permitting

the City to exclude people from city parks—the court

likewise finds that this ordinance is reasonably

related to the City's objectives in keeping its parks

safe for the residents of Federal Way who use the

park in a safe and respectful manner. Accordingly,

the court finds that Mr. Kim's expulsion from the city

park for hitting golf balls was not a violation of any

fundamental right and that the City's ordinances did

not violate Mr. Kim's due process rights.

Finally, the court has considered Mr. Kim's

motion for sanctions against the City based on the

City's "improper purpose of motion for summary

judgment." Mr. Kim claims that the City's motion

was brought for the "improper purpose to harass,

cause unnecessary delay and needlessly increase the

cost of litigation." (Mot. (Dkt. #41 ) at 1.) The court

finds the opposite to be true and therefore denies Mr.

Kim's motion for sanctions. The City has defended

this frivolous lawsuit in a respectful and professional

manner. The City's motion for summary judgment

was thoughtful, accurate, and the proper method for

requesting that this matter be dismissed.?

? The court likewise declines to comment on Mr. Kim's

statement regarding defense counsel's sanity.

Il. CONCLUSION

For the reasons stated, the court GRANTS

Defendant's motion for summary judgment (Dkt.

#29) and DENIES Plaintiffs motion for sanctions

(Dkt. #41). Mr. Kim's complaint is dismissed with

prejudice.

Dated this 6th day of May, 2009.

s/JAMES L. ROBART

United States District Judge

KKK HK KEKE KKK KEK KKEKEKKKKHKEKKEKKEKKKEKKKKKKKKKKKKKKKKEK

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

CYRUS Y. KIM NO. 08-0688 JLR

Plaintiff(s), DEFENDANTS MOTION

AND MEMORANDUM IN

V. SUPPORT OF MOTION

FOR SUMMARY

CITY OF FEDERAL JUDGMENT

WAY Note on motion calendar:

Defendant(s). 4/3/09 (Without oral

argument)

Comes now the Defendant, by and through their

attorney of record, Brian A. Christensen, and makes

the following motion:

1 RELIEF REQUESTED

Defendant, City of Federal Way, asks the court to

grant summary judgment of dismissal of all claims

made by the Plaintiff.

2. STATEMENT OF FACTS

The facts of this case are not in dispute. On June

lst, 2007, the Plaintiff was hitting golf balls in a

park in Federal Way, Washington. (Pltf's Complaint,

p. 3) He was asked to stop by park employees, as

hitting golf balls was not allowed in City parks under

FWCC 11-75. (Id) Mr. Kim told the employee to mind

his own business and attempted to hit another golf

ball. (Id.) The employee called his supervisor and Mr.

Kim left the park. (Id.)

On July 16th, 2007, Plaintiff was again hitting

golf balls in the same park. Park employees asked

him to stop, as it violated park rules. (Pltf's

Complaint, p. 4)

On August 29th, 2007, Mr. Kim was served, at his

home, by a Federal Way police officer, a notice of

trespass and an order or expulsion. (Pltf's Complaint

p. 4) The order of expulsion, based upon FWCC 11-

55, which provides, in part, that two violations of

FWCC 11-75, in a twelve month period, can result in

a years expulsion from the park. (See attached

ordinances: Order of Expulsion; Notice of Trespass)

Plaintiff has brought suit claiming FWCC 11-55,

FWCC 11-75 and the actions of the City employees

violated his constitutional due process rights.

3. STATEMENT OF ISSUES

A. Did the City of Federal Way infringe upon a

fundamental property or liberty interest of the

Plaintiff?

. Does the City of Federal Way's park ordinance

arise from permissible authority and 1s it

reasonably based upon legatimate concerns?

. Did any actions of City of Federal Way

employees infringe upon Plaintiff's civil

rights?

4. EVIDENCE RELIED UPON

The moving party relies upon the declaration filed

in support of this motion and the exhibits attached to

said declaration.

5. AUTHORITY

A. Standard of Review.

‘Summary judgment is proper in any case where

there is no genuine issue of material fact. Fed. R.

Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,

322, 106 S.Ct. 2548, 2552 (1986). A defendant who

seeks summary judgment on a plaintiff's cause of

action must demonstrate the absence of a genuine

issue of material fact either by (1) submitting

summary judgment evidence that negates’ the

existence of a material element of plaintiffs claim or

(2) showing there is no evidence to support an

essential element of plaintiff's claim. Celotex Corp.,

477 U.S. at 322-25, 106 S.Ct. at 2552-54; J. Geils

Band Employee Benefit Plan v. Smith Barney

Shearson, Inc., 76 F.3d 1245, 1251 (1st Cir. 1996).

B. The City of Federal Way's park

A party challenging a statute on the basis that

the statute violates the Due Process Clause of the

Fourteenth Amendment bears the burden of

demonstrating the scheme's' unconstitutionality.

Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189,

198, 121 S.Ct. 1446, 149 L.Ed.2d 391 (2001). Both

substantive and procedural due process requires a

protected liberty or property interest to be deprived

by state action. The first injury in every due-process

challenge is whether the complaining party has been

deprived of a protected interest in "property" or

"liberty." See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526

U.S. 40, 59, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999);

Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893,

47 L.Ed.2d 18 (1976).

i) A fundamental right has not been infringed. If

a fundamental right is involved, the State must show

a compelling interest. Substantive due process

forbids the government to _ infringe’ certain

"fundamental" liberty interests at all, no matter

what process is provided, unless the infringement is

narrowly tailored to serve a compelling state

interest. See, e.g., Collins v. Harker Heights, 503 U.S.

116, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992);

Bowers v. Hardwick, 478 U.S. 186, 191, 106 S.Ct.

2841, 92 L.Ed.2d 140 (1986). However, merely

having a liberty or property interest guaranteed by

the constitution is not equivalent to having a

fundamental right. The court in Doe v. City of

Lafayette, 377 F.3d 757, 772 (7th Cir. 2004),

examined an issue similar to that at bar:

Our first duty is to provide a "carful description"

of the liberty interest that Mr. Doe seeks to have

protected. Washington v. Glucksberg, 521 U.S.

702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997).

Then, we must ask whether that interest is

"fundamental," that is, whether it is "objectively,

deeply rooted in this Nation's history and

tradition, and implicit in the concept of ordered

liberty, such that neither liberty nor justice would

exist if [it] were sacrificed." Jd. at 720-21, 117

S.Ct. 2258 (internal quotation marks and

citations omitted). In undertaking these inquiries,

we must remain mindful of the Supreme Court's

admonition that

we ha[ve] always been reluctant to expand the

concept of substantive due process because

guideposts for responsible decision making in this

unchartered area are scarce and open-ended. By

extending constitutional protection to an asserted

right or liberty interest, we, to a great extent,

place the matter outside the arena of public

debate and legislative action. We must therefore

exercise the utmost care whenever we are asked

to break new ground in this field, lest the liberty

protected by the Due Process Clause be subtly

transformed into the policy preferences of the

Members of the Court. Jd. at 720, 117 S.Ct. 2258

(internal quotetion marks and citations omitted);

see also Mat's Paint & Coatings Ass'n v. City of

Chicago, 45 F.3d 1124, 1129 (7th Cir. 1995).

Doe v. City of Lafayette, 377 F.3d 757, at 768. In

Lafayette, the plaintiff was a convicted sex offender

that was banned from entering public parks. He

sued, claiming the ban violates his constitutional

rights. The Court analyzed caselaw and concluded

that there was no authority for the proposition that

the right to enter and loiter in a park is a

"fundamental right.” In the case at bar, the Plaintiff

states that he has a fundamental right to exercise

and hit golf balls in a park. Plaintiff cited the case of

Evans v. Newton, 382 U.S. 296 (1996), for the

proposition that a fundamental right to enter a park

exists. However, the Evans case is an Equal

Protection case, wherein the Defendant had sought

to exclude citizens based upon their race. The case at

35

bar is not an Equal Protection or First Amendment

expression case. 4

There is no authority for the proposition that a

citizen has a fundamental right to exercise or golf in

a public park.

Because a ban on playing golf in a park, or even

entering a park, does not infringe upon a

fundamental right, the question in the case at bar

involves the "rational basis standard." See Doe v.

City of Lafayette, supra; Reno v. Flores, 507 U.S. 292,

113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Littlefield v.

Forney Indep. Sch. Dist., 268 F.3d 275, 291 (5th Cir.

2001); Sumit Inv. Co. v. Harris County, 236 F.3d 240

(5th Cir. 2000).

ii) The City of Federal Way had authority to make

regulations concerning the use of their parks. The

test of whether a regulation which does not affect a

fundamental right violates substantive due process

is whether the government was acting in pursuit of

permissible state objectives and, if so, whether the

means adopted were’ reasonably’ related _ to

accomplishment of these objectives. Reno v. Flores,

507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d i (1993);

Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275,

291 (5th Cir. 2001); Stemi Inv. Co. v. Harris County,

236 F.3d 240 (5th Cir. 2000).

In the case at bar, the Washington State

Constitution, article 11, section 11, provides "Any

county, city, or township may make and enforce

within its limits all such local police, sanitary and

other regulations as are not in conflict with general

* Plaintiff's complaint does mention Equa! Protection once in

passing, but there is no supporting argument or allegation of

why Equal Protection would apply.

laws." Furthermore, RCW35.22.280, provides

authority for the city of Federal Way to establish and

regulate parks. The City code sections in dispute,

FWCC 11-55 and FWCC11-75 are proper enactments

of the City's authority. FWCC 11-55 is the ordinance

that sets out the reasons a person can be expelled

from the park. Plaintiff was "trespassed" from the

park for violating sub paragraph (b)(5), committing

more than one violation of this article within any 12-

consecutive month period. It is unclear from

Plaintiffs complaint how that section of the

ordinance violates due process. Plaintiff admits to

have being caught violating the park ordinance twice

in a twelve month period.

FWCC 11-75 makes it unlawful to play golf in the

park. Plaintiff was caught doing so and advised of

the violation. He decided to disobey the rule. His

complaint makes it clear that he did so to get

exercise. Certainly there are other ways to exercise,

and other place to golf. FWCC 11-75 states that the

purpose of the regulation is to avoid interfering with

or putting at risk other park users. Clearly,

enjoyment and safety of park users is a legitimate

City concern.

ili) Federal Way's ordinance is not vague. There is

also a denial of due process where inherently vague

statutory language permits selective law

enforcement. Smith v. Goguen, 415 U.S. 566, 576, 94

S.Ct. 1242, 39 L.Ed.2d 605 (1974). In order to satisfy

constitutional due-process requirements, the statute

or regulation must provide adequate notice of the

required or prohibited conduct. Freeman United Coal

Mining Co. v. Fed. Mine Safety & Health Review

Comm'n, 108 F.3d 358, 362 (D.C. Cir. 1997); see

Grayned v. City of Rockford, 408 U.S. 104, 108, 92

S.Ct. 2294, 33 L.Ed.2d 222 (1972). Although the

regulation must give fair warning-in light of common

understanding and _ practices-of the prohibited

conduct, the regulation is not required to be

mathematically precise. Grayned, 408 U.S. 1t 110, 92

S.Ct. 2294. There is no question that the Plaintiff

knew golfing was prohibited. There is no question

that the ordinance prohibited golfing and the

Plaintiff doesn't allege he didn't understand the

ordinance. The ordinance is quite clear.

Furthermore, Plaintiff does not allege he didn't know

he could be "trespassed" from the park. The

ordinance is clear.

iv) Plaintiff's allegations concerning individual

employees of the City are vague, unsupported and

groundless. Plaintiff fails to properly allege and

support why the actions of the City employees

violated his constitutional rights. They all followed

the law, and Plaintiff has not properly supported his

argument that the law in_- question was

unconstitutional.

For instance, Plaintiff states that the City

maintenance worker's actions make the city liable for

stopping him from golfing. As discussed, there is no

fundamental right to golf in a park. Similarly,

Plaintiff claims the supervisor makes the city lable

for stopping him from golfing on the second occasion.

Plaintiff claims the Parks director makes the city

liable for issuing the trespass notice and for inflicting

excessive punishment. There is no allegation or

evidence that she exceeded authority granted by the

city ordinance.

38

C. Plaintiff's complaint should be dismissed as it

is comprised of confusing anecdotes, misinterpreted

laws and is completely lacking in legal justification.

To establish a substantive due process claim, a

plaintiff must show that the government deprived

him or her hfe, liberty, or property in such a way

that "shocks the conscience." Brittain v. Hansen, 451

F.3d 982, 991 (9th Cir. 2006). There is nothing

alleged that shocks the conscience. Similarly, to

prevail on a procedural due process claim the

Plaintiff must allege facts and law establishing how

Defendants deprived him of a liberty or property

interest and what lack of process occurred. Wright v.

Riveland, 219 F.3d 905, 913 (9th Cir. 2000). Plaintiff

doesn't speak to what lack of process occurred.

Plaintiff does mention overbreadth and

vagueness, but not in the context of the facts of this

case. He discusses ordinance provisions that don't

apply here and legal concepts that make no sense

and have no application to the causes of action he

presents.

56. CONCLUSION

Plaintiffs complaint needs to be dismissed. There

is no evidence that the City of Federal Way violated

his Due Process rights and there is no evidence or

law to support the allegations the City ordinances at

issue have any constitutional infirmity.

SUBMITTED ON March 11, 2009.

By: s/Brian A. Christensen

BRIAN A. CHRISTENSEN, WSBA #24682

Attorney for Defendant