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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 561 U.S. 1046

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1820%3A1. Public record. Not legal advice.