Petition for Writ of Certiorari — Sanai v. Alexander (No. 08-793)

Supreme Court, U.S.

FILED

08-793 DEC 11 2008

OFFICE OF THE CLERK

Witiam K. Suter, Cierk

Supreme Court of the United States

FREDRIC SANAI,

Petitioner,

Vv.

GERRY ALEXANDER, an individual; JOSEPH MANO

JR., an individual; WASHINGTON STATE BAR

ASSOCATION, an entity created under the laws of

Washington State; and DOES 1-10, individuals;,

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Ninth Circuit

FREDRIC SANAIT

660 2°¢ Street No. 7

Lake Oswego, Oregon 97034

Telephone: (503) 537-6660 Fax: (503) 434-7553

sanair@co.vamhill.or.us

QUESTIONS PRESENTED

The questions presented are:

1. Does Younger abstention apply to lawsuits

under 42 U.S.C. §1983 where damages are demanded

from at least one defendant, and if so, may the suit

be dismissed, or must it be stayed pending outcome

of the state court proceeding?

2. Did the Ninth Circuit err in reversing the trial

court’s judgment dismissing the lawsuit on venue

grounds and instead instructing the trial court to

dismiss the lawsuit without prejudice under Younger

abstention, where the trial court explicitly found it

was incompetent to address Younger abstention

issues and declined to make factual findings

concerning Younger?

3. Did the panel deciding the case lack the

appearance of fairness due to their simultaneous

service on the Judicial Council considering the

related misconduct complaints against Chief Judge

Alex Kozinski of the Ninth Circuit Court of Appeals

and their status as Circuit Judges who regularly

interact with Judge Kozinski?

PARTIES TO THE CASE

This petition is in respect of a decision of the

Ninth Circuit Court of Appeals, Sanai v. Alexander,

Ninth Circuit Docket No. 07-35305 (9th Cir. 2008).

The plaintiff, appellant and petitioner is Fredric

Sanal, an individual.

The Defendants in the lawsuit are Gerry

Alexander, an individual; Joseph Mano, Jr., an

individual; and the Washington State Bar

Association, an entity created under the laws of

Washington State. Only the latter two defendants

appeared in the lawsuit.

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE CASE

TABLE OF CONTENTS

RELEVANT CONSTITUTIONAL AND STATUTORY

PROVISIONS AND RULES

STATEMENT OF THE CASE

1. THIS CASE PRESENTS AN OPPORTUNITY TO ADDRESS THE DEEP

CIRCUIT SPLIT CONCERNING THE APPLICATION OF YOUNGER

ABSTENTION TO SUITS CLAIMING DAMAGE. ..............c0cccccccseeseeceereecees 28

2. IF THIS COURT FINDS THAT YOUNGER 1S POTENTIALLY

APPLICABLE, DID THE NINTH CIRCUIT ERR IN APPLYING IT WHERE THE

TRIAL COURT DISAVOWED MAKING ANY FINDINGS? .............c000ccc000eees 30

3. THE PRESENCE OF TWO OF THE PANEL MEMBERS ON THE JUDICIAL

COUNCIL CONSIDERING THE ONGOING MISCONDUCT PROCEEDINGS

INVOLVING CHIEF JUDGE KOZINSKI RAISE AN ISSUE OF LACK OF

PPV EARAMICE OF TRRPAI TUBE IED oo nics ccics secs icvscestpennvoerencecsesenatuesncunssnsvece OM

CONCLUSION

APPENDIX A Decision of the Ninth Circuit Court of

Appeals of June 24, 2008.

APPENDIX A Order of the Ninth Circuit Court of

Appeals of June 24, 2008.

APPENDIX C Decision of the Ninth Circuit Court of

Appeals of April 6, 2008.

APPENDIX D Judgment of the United States District

Court for the District of Oregon dated

April 12, 2007

APPENDIX E

APPENDIX F

iv

Order of the Ninth Circuit Court of

Appeal dated September 12, 2008.

denying Petition for Rehearing and

Rehearing en banc.

Relevant Statutory and Constitutional

Provisions.

Vv

TABLE OF AUTHORITIES

Cases

Adam vu. Hawaii, 235 F.3d 1160 (9th Cir. 2001)

Arbaugh v. Y & H Corp, 546 U.S. 500, 126 S.Ct.

1235, 163 L.Ed.2d 1097 (2006)

Bridges v. Kelly,

84 F.3d 470 (D.C. Cir. 1996)... ccccccccccccceceec cece 4, 32

Carras v. Williams,

807 F.2d 1286 (6th Cir. 1986)

D.L. v. Unified S.D,

aee F.3a 12223 G0" Car. 2004) ...............-.0:...........33

Deakins v. Monaghan, 484 U.S. 193, 108 S.Ct. 523,

ee Be 8 Sk. eer 32, 34

Dornheim v. Sholes,

Pe ie Bs 2 i ee |.) ees 21

Exxon Mobil Corp. v. Saudi Basic Industries Corp.,

544 U)S. 280, 125 S.Ct. 1517, 161 L. Ed. 2d 454

(2005)

Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36

FR 5 ECTS Oe RCTS TERI Ts ;

Gui v. INS, 280 F.3d 1217 (9th Cir. 2002)

Himango v. Prime Time,

37 Wn. App. 259, 680 P.2d 432 (1984)

Hirsh v. Justices of the Supreme Court of the State

of Cal., 67 F.3d 708 (9th Cir. 1995).........0..00000..0000! 5

In re Disciplinary Proceeding Against Michels,

150 Wn.2d 159, 75 P.3d 950 (2003)

In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 625,

99 L.Ed. 942 (1955)......

Landrigan v. City of Warwick,

628 F.2d 736 (1st Cir. 1980)......................

vi

Liljeberg v. Health Services Acquisition Corp.,

486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855

a ho isc ebuieenehanbreipasiianciens 43

Majors v. Engelbrecht,

EGS Fe 108 C7 ™ GAP, 1GDG)..........000000csccecsscsvecosccesvens 32

Middlesex County Ethics Committee v. Garden State

Bar Ass'n, 457 U.S. 423, 102 S. Ct. 2515, 73 L. Ed.

lavas ida cicsssenngrishvasisveecsiesnrsinvsbssieeenn 35, 36

Myers v. Bennett Law Offices,

SOG FSG LOGS COG Cir. ZOOL)... oc ccsecccccsscsvessosnsoneecees 29

Odegaard v. Everett School Dist., 55 Wn. App. 685,

780 P.2d 260 (1989)

Rivers v. McLeod, 252 F.3d 99 (2d Cir. 2001)............ 32

Schmeir v. United States Court of Appeal for the

Ninth Circuit, 279 F.3d 817 (9th Cir. 2002) 44

Taylor v. Maddox, 366 F.3d 992, (9th Cir. 2004) 40

Thomas v. Texas State Bd. Of Medical Examiners,

Oy Fe S0e Ce Cee. TIBG) ......0.0.0 6005 0600050.00500055. 5, 32

Younger v. Harris, 401 U.S. 37, 91 8.Ct. 746, 27

eM ED OE ccc ousccaveasersscvaviss'essavevevavivsisavavdasavs 3]

Statutes

Re S| re PEON ers 9, 26

28 U.S.C. §1254(1)

Br UE oc siissnenscvincnnsvedstaquescosdviseedesncsiase My ety

Rules

Code of Conduct of United States Judges Canon

3(A)(6)

soo vas voevsocaevnnseunevedaosss Vievaevoiaenens 9, 32

Judicial Misconduct and Disability Proceedings

a oc ah vn cee tute redoonearom een 5

I oo oissd cick sans nayasenvsddandacdenveteusivcsvouaes [3

ge a» ARES ae ea ee nn |2

Constitutional Provisions

U.S. Const., Amend. V, § 1

Treatises

M. Schwartz & J. Kirlin,. Section 1983 Litigation

(3rd. ed. 1997 & Cum. Supp. 2003)

Other Authorities

A. Kozinski, “Kozinski Strikes Back,” The Recorder,

September 23, 2005

C. Cotts, “Retired U.S. Court Executive Files

Kozinski Complaint,” Bloomberg News Services

CPEOVOEIOT BG, DOIG) eisivecscssceverecssenesccrcavscvessvsevesuveryeee MO

C. Cotts, “San Francisco Court Puts Kozinski

Complaint on Hold,” Bloomberg News Services

(November 5, 2008)

C. Sanai, Letter of November 24, 2008 to the Hon. J.

Roberts Re Kozinski Misconduct Complaint......... 37

In Re Complaint of Judicial Misconduct (Porteous),

Report and Recommendations of the Special

Investigatory Committee (November 20, 2007 ).....8

J. Roemer, “Porn Prosecutors Seek Recusal of Entire

Ninth Circuit,”

Daily Journal (November 7, 2008)

S. Glover, “Federal Judge E- taniled Jokes to ‘Gag

List,” Los Angeles Times (December 8, 2008) ...5, 3

S. Glover, “Judge in Obscenity Case Put Explicit

Photos on Web,”

Los Angeles Times (June 11, 2008)

WSBA Formal Advisory Opinion 160 (1975).....00...... “10

WSBA Informal Advisory Opinion 1161 (1985) 10

WSBA Informal Advisory Opinion 1694 (1997) 10

WSBA Informal Advisory Opinion 1790 (1997) ?

WSBA Informal! Advisory Opinion 936 (1985).......... 10

IN THE

Supreme Court of the United States

Fredric Sanal,

Petitianer,

V.

Gerry Alexander, et. al.,

Respondents

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

In this case Petitioner Fredric Sanai (“Fredric”)

filed a suit under 42 U.S.C. §1983 to enjoin attorney

disciplinary proceedings against him, providing

uncontradicted, admissible evidence of

“extraordinary circumstances” which prohibited the

application of Younger abstention. The

circumstances he articulated were, among other

things, the financial interest of the Washington

State judiciary in the fiercely protected practice of

appointing servants or cronies of litigants to the

position of special master, judic_al referee, receiver,

etc. in litigation involving that Ilhtigant. An

additional circumstance was the denial of his choice

of counsel on grounds that were facially specious. A

third circumstance was denial of discovery by the

hearing officer on the grounds that’ the

constitutional issues Fredric sought to raise would

be excluded on grounds of relevance. The district

court dismissed the lawsuit not on grounds of

Younger abstention, but rather on an erroneous

finding of improper venue. ‘To this end, the trial

court's judgment dismissed the lawsuit “with

prejudice only in the district of Oregon”. Pet. App.

D. The trial court also found that in the alternative

the suit should be transferred to a district court

sitting in Washington State, as the trial court

believed itself incompetent to adjudicate the Younger

abstention issues that had been raised, so a

Washington State based federal judge should do so

ER 193-4.

A three-judge Ninth Circuit panel, two judges of

which are currently serving on the Ninth Circuit

Judicial Council, initially affirmed this judgment on

Younger abstention grounds, but after consideration

of a petition for panel rehearing, changed the

disposition to a reversal and remand to enter a

judgment of dismissal without prejudice. See

Pet.App. A, B, C. Both memorandum dispositions

hover in a factual vacuum, as the trial court

disclaimed any competence in considering the

Younger abstention issues. The panel’s decisions

failed to acknowledge the arguments that the

“extraordinary circumstances” exception to Younger

abstention applied, let alone the uncontradicted

facts demonstrating such “extraordinary

circumstances .

Moreover, even dismissal without prejudice was

unavailable under the Ninth Circuit’s . own

precedents. Because damages were requested

against the two appearing Appellees, see ER 11:1-3

(requesting damages from defendants who are not

sitting Washington State judicial officials), the

binding Ninth Circuit authority barred both the tnial

court and the Ninth Circuit Court of Appeals from

dismissing the action on Younger’ grounds.

Gilbertson v. Albright, 381 F.3d 965, 982 (9th

Cir.2004) (en banc); Adam v. Hawaii, 235 F.3d 1160

(9th Cir. 2001). Instead, if Younger abstention were

applicable, a stay, not dismissal, was required under

the Ninth Circuit’s own precedent, until such time

as circumstances changed.

This case merits review for three separate

reasons. First, it presents an important question

long unanswered by this Court: whether Younger

abstention applies to a lawsuit seeking damages,

and if so whether Younger dictates a stay or

dismissal of the lawsuit. Not only this panel

departed from the Ninth Circuit’s en banc precedent;

the Court of Appeal have split far and wide on this

point. Compare Gilbertson v. Albright, supra,

(Younger applies, stay required) with Thomas uv.

Texas State Bd. Of Medical Examiners, 807 F.2d

453, 457 (5th Cir. 1987) (Younger inapplicable to

damages claim); Carras v. Williams, 807 F.2d 1286

1291-1292 (6th Cir. 1986)(Younger inapplicable to

suit seeking damages); Bridges v. Kelly, 84 F.3d 470,

471, 477 (D.C. Cir. 1996)(Younger inapplicable to

suit seeking damages unavailable under District. of

Columbia law). Thus even though the panel did not

follow the Ninth Circuit's own precedent stating that

Younger does apply, but requires a stay, the decision

is nonetheless in conflict with those circuits which

hold that Younger is completely inapplicable.

The second grounds for review is whether a Court

of Appeals may dismiss a suit on a fact-intensive

grounds such as Younger abstention where the trial

court has explicitly found that it is incompetent to

adjudicate the Younger abstention issue and instead

found that that the case should be transferred to

another judge with greater expertise.

The final reason this case deserves consideration

by this Court is that it is enmeshed in the

international legal scandal regarding Chief Judge of

the Ninth Circuit Court of Appeals Alex Kozinski’s

website alex.kozinski.com. This scandal means that

leaving final disposition of this case with the Ninth

Circuit undermines public confidence in the integrity

of the federal judiciary.

Three years ago the website was utilized by

Judge Kozinski to violate Canon 3(A)(6) of the Code

of Conduct of United States Judges by publicly

commenting on a related case presenting the same

underlying issue as herein: the Ninth Circuit’s

institutionalized policy of refusing to allow recourse

under 42 U.S.C. §1983 via improper application of

various jurisdictional doctrines such as Younger

abstention and the Rooker-Feldman doctrine.

The pursuit of a misconduct complaint

concerning Judge Kozinskis employment of his

website in relationship to his public comments led to

the discovery of his other use of that website and the

Internet. Sce S. Glover. “Judge in Obscenity Case

Put Explicit Photos on Web,” Los Angeles Times

(June 11, 2008); S. Glover, “Federal Judge E-mailed

Jokes to ‘Gag List,” Los Angeles Times (December 8,

2008). ‘The misconduct complaints against Judge

Kozinski have become their own precedent-setting

matter because of the issues they raised about the

operation of Judicial Misconduct and Disability

Proceedings Rule 26 and the merits related issues

raised therein. See C. Sanai, Letter of November 24,

2008 to the Hon. J. Roberts Re Kozinski Misconduct

Complaint (filed with Clerk of this Court on

November 25, 2008); C. Cotts, “San Francisco Court

Puts Kozinski Complaint on Hold,’ Bloomberg News

Services (November 5, 2008). Here two of the three

judges in the panel were also sitting on a Judicial

Council which has declined to investigate or dismiss

related accusations against Judge Kozinski and

certain other judges. The disposition of this case,

under these circumstances, lacked the appearance of

fairness necessary under the due process guarantee

of the Fifth Amendment and under 28 U.S.C.

§455(a).

OPINIONS BELOW

The Ninth Circuit’s initial memorandum

disposition in this action, dated May 6, 2008, Pet.

App. C, is unpublished. ‘he Ninth Circuit’s June 24,

2008 order withdrawing the May 6, 2008

memorandum disposition and_= substituting a

different disposition, Pet.App. B, is unpublished, as

is the June 24, 2008 memorandum disposition

attached as Pet.App. A. The September 12, 2008

order denying the petitions tor rehearing and

rehearing en banc, Pet. App. E. is unpublished. The

trial court’s unpublished judgment of dismissal is

attached as Pet. App. D.

BASIS FOR JURISDICTION

The Ninth Circuit Court of Appeals issued its

order denying Fredric’s Petitions for Rehearing and

Rehearing en banc on September 12, 2008. Pet.

App. E. Fredric invokes this Court’s jurisdiction

under 28 U.S.C. §1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS AND RULES

The relevant statutory and _ constitutional

provisions are sct forth in Pet. App. E, and include

the Fifth Amendment to the United States

Constitution, 28 U.S.C. §455(a), and 42 U.S.C.

§1983.

STATEMENT OF THE CASE

A. Introduction and Overview

In 2002, a Washington state Superior Court

Judge, Joseph Thibodeau, appointed an employee of

a private lhtigant as a “special master” in a case

where the litigant was a party of record. The

“special master” was tasked with a number of fact-

finding and other functions normally reserved for the

judicial — branch. The special master, not

surprisingly, took orders directly from his employer.

the private litigant, in discharging these duties.

The other side in the litigation, Viveca Sanai, was

unable to find an appellate attorney to challenge the

obvious attempt to allow one of the litigants to

become a judge in his own case. She turned to her

son, Petitioner Fredric Sanai, who had recently been

admitted to the Washington State Bar after a few

years as a county attorney and prosecutor in Oregon.

The efforts to overturn the conduct of the

Washington State courts have been a failure, but not

because any court has rejected the contentions that

the appointment of a servant of a party as a judicial

officer was a violation of due process. Instead the

Washington State courts have engaged in retaliation

toward Fredric to ensure that the ongoing practice of

appointing the servants of party litigants to judicial

referee, special master and receiver positions in the

Washington State court system will continue

unchallenged. The retaliatory actions included

removing Fredric from acting as Viveca’s counsel and

fining him when he challenged the removal: and

when Viveca’s challenge to the appointment of the

special master finally reached the Washington State

Supreme Court, stripping her of her right to file

further appellate challenges without notice or an

opportunity to be heard.

The Washington State Supreme Court initiated

disciplinary proceedings with Defendant’ the

Washington State Bar Association against Fredric

based on his efforts to challenge, by every legal

avenue, the conduct of the Washington State courts.

Fredric was eager to have a hearing, as it would, at

least in theory, provide a forum to conduct discovery,

present arguments and call witnesses who would

demonstrate that Washington State’s court system is

embroiled in the same improper practices that afflict

states such as Nevada, New York and Louisiana.

See ER pp. 27-65; In Re Complaint of Judicial

Misconduct (Porteous), Report and Recom-

mendations of the Special Investigatory Committee

at 39 (November 20, 2007 )(filed with the Hon. J.

Roberts by the Judicial Council of the Fifth Circuit).

To foreclose the opportunity for such a hearing,

Defendant Joseph Mano Jr., the Washington State

Bar Association hearing officer, stripped Fredric of

his legal counsel, denied all relevant discovery, and

relieved defendant the Washington State Bar

Association from any obligation to address the

constitutional issues Fredric intended to raise. Even

if Mano had not taken these actions, the outcome of

the disciplinary proceedings was prejudged by the

fact that the Washington State Supreme Court holds

the final say in disciplinary proceedings, and that

institution, when faced with due process challenges

to the appointment made pro se by Viveca, had

stripped her of further appellate rights and imposed

heavy financial penalties. When Fredric was barred

from participating in the hearing by his physician

due to the sudden worsening of a lie-threatening

cardiovascular condition, Defendants Mano and the

Association chose to proceed with the hearing and

disbar Fredric 12 absentia. The proceedings were

completed on April 18, 2007, recommending

disbarment.

Fredric filed a lawsuit seeking injunctive and

declaratory relief against the defendants in district

court of Oregon prior to the hearing. IR 1-11. One

of the defendants filed a motion to dismiss the

complaint pursuant to FED.R.CIV.P. 12(b). ER 12-

13. Fredric contemporancously filed a motion for a

preliminary injunction. This lawsuit was dismissed

by the District Court solely on the grounds that

venue was not proper in the district of Oregon. ER

184. To underline this ruling, the trial court’s

judgment dismissed the lawsuit “with prejudice only

in the district of Oregon”. Pet.App. D. While the

trial court held that venue was not proper in Oregon,

it did not find any other basis for dismissal. ER 184.

Indeed, trial court also made the extraordinary

admission that the policies behind Younger

abstention justified a transfer of the case under 28

U.S.C. § 1404(a) because the court believed itself

incompetent to properly address the Younger

abstention issues, which would better be addressed

by a judge sitting in Washington State. ER 193.

Soon after the district court entered its order,

Fredric visited his physician and was ordered not to

participate in the upcoming disciplinary hearing, due

to the physician’s determination that the stress

would aggravate Fredric’s cardiovascular ailment to

life-threatening levels. Fredric immediately

contacted the two appearing defendants and

requested a continuance. Exhibits in Support of

Motion for Inj. Pending Appeal, p. 193.

Notwithstanding the uncontradicted life-threatening

illness, Defendant Mano chose to proceed with the

hearing, depriving Fredric of any fair opportunity to

present a defense. Exhibits in Support of Motion for

Inj. Pending Appeal, pp. 194-195.

B. The Underlying Proceedings

Fredric is and has been during all relevant times

a resident of Oregon. ER 20 41. He works as a

lawyer for the county of Yamhill in Oregon. Id.

The circumstances of this case arose from a

divorce. After many years of abuse from her

husband Sassan Sanai ("Sassan"), and in fear of her

life, Viveca Sanai ("Viveca") fled her family home in

November of 2000. A protection order was issued

removing Sassan from the house and restoring

Viveca to the house. ER 15 91.

Divorce proceedings ensued. Sassan dismissed

his first lawyer and hired a local pro-tempore judge,

William Sullivan ("Sullivan").' ER 15 42. Fredric

' Under Washington State law, an attorney can be appointed as

a pro-tem judge of a tribunal that the attorney regularly

appears before. See, e.g. Washington State Bar Association

(“WSBA”) Informal Advisory Opinion 1790 (1997). Though such

conduct has been condemned by the American Bar Association’s

model rules of judicial conduct, the Washington State Supreme

Court rejected that position. See WSBA Formal Advisory

Opinion 160 (1975). Similarly, an attorney can be the partner

of another attorney who is a judge or other judicial official, and

still deal with matters before that judicial official. See WSBA

Informal Advisory Opinion 936 (1985). The Washington State

Supreme Court also permits lawyers to simultaneously lead

election campaigns for a judge and contribute money to them

while appearing before the judge. WSBA Informal Advisory

Opinion 1161 (1985); WSBA Informal Advisory Opinion 1694

(1997). There has been one case where a judge chose to

simultaneously act as the defendant’s appointed criminal

defense counsel; the judge received a short suspension and

public reprimand, which was viewed by the dissent as largely

reltuliation for the judge's issuance of press releases conceruing

v

the four-vear investigation. In re Disciplinary Proceeding

submitted some declarations on factual matters in

the proceedings, but otherwise was not involved in

the litigation. ER 20 494. Fredric was never identified

as a witness at the divorce trial by either side, nor

was he called to testify. Jd. After the trial was

completed, Sullivan convinced the judge who

conducted the trial, Snohomish County Superior

Court Judge Joseph Thibodeau, to appoint Sassan’s

accountant Philip Maxeiner, a witness in at trial, as

a referee who now controls all of Viveca’s finances.

ER 15 93. The trial court issued a final decree

incorporating Maxeiner’s appointment on April 12,

2002. ER 104-106. Both Sassan and Viveca

appealed the decree. ER 15 94.

At this time Fredric became Viveca’s appellate

counsel and co-counsel at the trial level. The reason

Fredric was hired was because the trial attorney

would not agree to challenge Maxeiner’s

appointment on appeal, due to his belief that the

Washington State courts would not consider any

kind of due process argument concerning the

appointment of Maxeiner. It subsequently became

obvious that that Washington judicial officials

regularly rule in cases in which they have accepted

money from one of the litigants or the litigants’

Against Michels, 150 Wn.2d 159, 178, 75 P.3d 950 (2003)

(Sanders, J., dissenting). In the civil context, a part-time or

pro-tempore judge may simultaneously represent a litigant in

court and adjudicate a different case involving the same

litigant. Washington’s ethical rules do not bar a judge from

appointing a litigant or a litigant’s servant as a judicial officer

in a proceeding involving that litigant; while the statutory rules

torbid this, the statutes are ignored by the Washington State

appellate courts.

attorneys through a variety of means. See fn. 1,

supra.

Sassan filed a motion to disqualify Fredric as

Viveca’s counsel. The grounds were, inter alia, that

Fredric had filed declarations in the dissolution

action, making him a witness, and that Fredric had a

conflict of interest because he was suing Sassan.

Because many of the same grounds asserted by

Sassan for disqualification of Fredric truly applied to

William Sullivan, a motion to disqualify him was

filed as well in the dissolution action and other

actions involving the wiretapping claims. ER 21 45.

On September 27, 2002, Judge Joseph Thibodeau

disqualified Fredric from acting as Viveca’s counsel

with the rationale that Fredric was "actually

bringing more heat to this case than anything else.

He’s a party suing the very individual he’s now

attempting to be a representative against. That

seems to be a conflict on its face." ER 110-114.

Judge ‘hibodeau denied the motion to disqualify

Sassan’s lawyer William Sullivan with no

explanation as to how their situations were different.

Id.

On October 23, 2002, Viveca filed a notice of

appeal of the order disqualifying Fredric. Viveca also

challenged certain of these orders by motion. ER 21

46. On November 4, 2002, Commissioner Craighead

of the Washington State Court of Appeals ruled that

though the parties believed that the WA.R.APP.P. 17

motion procedure was the appropriate procedure for

the Court of Appeals to review the challenged post-

judgment procedural orders, the relevant orders of

the trial court had to be addressed by discretionary

13

review or appeal; she did not say which was

appropriate. ER 116-117. Commissioner Craighead

also ruled that “The third order [challenged]

disqualifies Fredric Sanai from representing

Appellant in the trial court.” Id. Accordingly,

Fredric continued to represent Viveca in the Court of

Appeals and Supreme Court levels, but not at the

trial court level.

Fredric on behalf of Viveca complied with

Commissioner Craighead's November 4, 2002 order

by filing WA R.APP.P. 6.2(b) motions for the

Washington State Court of Appeals to determine

whether the relevant orders were appealable or

reviewable by discretionary review only, and if the

latter, to request the Court to grant discretionary

review. On March 11, 2003, the Washington State

Court of Appeals dismissed all of Viveca’s post-

judgment appeals, including the appeals of the order

disqualifying Fredric, on the grounds that none of

the orders appealed were appealable. ER 21 47: ER

119-121.

Fredric on behalf of Viveca filed a Motion for

Discretionary Review of the Washington State Court

of Appeals’ March 11, 2003 order with the

Washington State Supreme Court. Rather than

ruling on them, the Commissioner of the Washington

State Supreme Court sua sponte requested three

pages of briefing on the question of whether Fredric

was disqualified from acting at this level. ER 123.

Briefing was submitted, and the Commissioner

issued a ruling on June 10, 2003, disqualifying

Fredric from acting for Viveca at all. A motion for

iodification, filed by Viveca pro se without Fredric’s

assistance, was denied without comment, and Viveca

and Fredric were sanctioned $1,000, without notice

or an opportunity to be heard. ER 21 48; ER 125.

The Washington State Supreme Court also

instructed Defendant the Washington State Bar

Association to initiate the disciplinary proceedings at

issue here. ER 22 49.

Viveca proceeded on the appeal pro se, with

assistance from counsel outside of Washington. Her

opening brief contended that:

The second fundamental error was in

appointing Sassan's accountant Philip

Maxeiner as a "Special Master", but

then imbuing him with the power and

authority of a receiver when Maxeiner

does not and cannot meet’ the

mandatory qualifications of a receiver

under RCW 7.60.

Second, Maxeiner is an "interested

party" within the meaning of RCW

7.60.020. This provision provides that

"no party or attorney or other person

interested in an_ action. shall _ be

appointed receiver’ therein." The

reference to "attorney or other person

interested in an action" dictates that no

representative or advisor to a party may

be appointed receiver. The reason for

this 1s obvious. The receiver owes a

duty to the court and all parties--it is

completely inconsistent with principles

of wise judicial administration to

entrust the assets at the center of a

conflict to a person who is not neutral.

Indeed, the Washington Supreme Court

disbarred a lawyer who engineered the

appointment of a receiver he secretly

controlled in order to fraudulently place

a corporation he owned into

receivership as a defense against an

employee lawsuit. In re Little, 40

Wn.2d 421 (1952).

ER 127-130.

In an opinion written by Justice Baker, the Court

of Appeals agreed with Viveca that Maxeiner was not

a special master, but then appointed him as a

judicial referee. ER 132-133. The author of the

opinion, William Bakcr was, before his appointment

to the Washington State Court of Appeals, a name

partner in the small Everett, Washington law firm of

Anderson Hunter (then called Anderson, Hunter,

Dewall, Baker & Collins). See e.g. Himango v. Prime

Time, 37 Wn. App. 259, 680 P.2d 432 (1984) (Justice

Baker listed as counsel); Odegaard v. Everett School

Dist., 55 Wn. App. 685, 780 P.2d 260 (1989) (Justice

Baker still listed as name partner). Sassan was a

client of Anderson Hunter for many years, including

the period in which Justice Baker was one of its

name partners. One of Justice Baker's former

partners, Virginia Antipolo-Utt, handled the ERISA

accounts that were one of the primary assets in the

marriage dissolution case since 1988, and was a

witness in the divorce proceeding. ER 15-16 47.

Viveca discovered this information after the opinion

was issued. She filed a motion for rehearing,

arguing as follows:

Maxeiner could not act as a referee, as

he 1s not neutral, was a witness at

trial, and is not an attorney. Huis

appointment as referee was a violation

of statute and my constitutional rights

of due process, and thus illegal and

void. Moreover, Maxeiner's status as

a putative referee makes manifest

that certain other of this Court's

holdings in the’ opinion’ were

erroneous.

ER 149.

Viveca also requested that the opinion be vacated

and Baker recuse himself. ER 136-149. The Court of

Appeals denied the motion without giving any

reason. ER 151.

Viveca filed a_ petition for review with the

Washington State Supreme Court, again without any

assistance or participation by Fredric. Her petition

presented, inter alia, the following question to the

Washington State Supreme Court:

Ts it a violation of RCW 4.48.040, the

jurisdiction of the Washington State

Courts and a party's due _ process

rights to appoint the opposing party's

accountant who appeared as a witness

at trial as a referee in the post-trial

proceedings, including allowing the

referee to file federal tax returns on

behalf of the party?

The Court of Appeal agreed with

Viveca that Maxeiner was not a

special master, but rather surprisingly

ruled he was ae referee, given that

Maxemel did not meet the

requirements for taking this judicial

office under RCW 4.48.040. Maxeiner

is not a “duly admitted and practicing

attorney." RCW 4.48.040(3). He is an

accountant, as noted in the opinion.

Maxeiner is not competent to act as a

juror between the parties, as he is

Sassan's accountant and was a

witness at the dissolution triai, where

he acknowledged that he answered

only to Sassan. [11/14/2001 RP 267:7-

23.] RCW 4.48.040(2). Maxeiner's

appointment was thus a violation of

statute, the appearance of fairness

doctrine, and Viveca's due process

rights.

ER 152-156.

In the opposition to the petition, respondent

Sassan did not contest that the appointment of

Maxeiner was a violation of Viveca’s due process

rights. Viveca wrote in her reply:

Even if Respondent and the Court of

Appeals were correct, and there are

absolutely no statutory standards

whatsoever governing whom a _ judge

can appoint as a referee to dispose of

over a millon dollars of property, the

appointment of Maxeiner would still be

illegal as a violation of the federal due

process guarantee imposed on the states

by the Kifth and Fourteenth

Amendments. Basic principles of due

process require that that a person

18

undertaking a judicial function be

impartial. Speaking of administrative

hearings and articulating the

procedural requirements “demanded by

rudimentary due _ process" in_ that

setting, the United States Supreme

Court has said that, "of course, an

impartial decision maker is essential."

Goldberg v. Kelly, 397 U.S. 254, 267,

271, 90 S.Ct. 1011, 25 L.Ed.2d 287

(1970). This principle applies with even

greater force to persons appointed with

the power of the judiciary. In re

Murchison, 349 U.S. 1838, 1386, 75 S.Ct.

623, 625, 99 L.Ed. 942 (1955). The

Washington State courts have ruled

repeatedly that the same requirements

for the appearance of impartiality that

apply to judges also apply inferior

adjudicators such as members of

planning commissions. Buell v. City of

Bremerton, 80 Wn.2d 518, 525, 495 P.2d

1358 (1972). Notably, Respondent

does not contest that the

appointment of Maxeiner was a

violation of Viveca’s due process rights,

hoping that this Court will ignore the

issue. It should not do so.

KR. 158-159.

The Washington State Supreme Court’s response

to these federal claims was an order requiring her to

pay thousands of dollars 1n sanctions directly to the

Supreme Court and cutting off her appellate rights if

she did not do so. ER 162. Viveca had no notice of

these sanctions, explanation as to why they were

imposed, nor any opportunity to be heard.

‘he response of the Washington State Supreme

Court to Viveca’s unopposed contention that the

appointment of Maxeiner violated her constitutional

rights—imposing a fine payable to the court without

notice, an opportunity to address the fine, or an

explanation—demonstrates that the Washington

State Supreme Court will not in good faith address

any constitutional claims concerning the corrupt

appointment of Maxeiner.

The divorce litigation spawned other litigation as

well. While the divorce was ongoing, Viveca engaged

Fredric to mount an additional lawsuit seeking to

partition the assets in the divorce that Judge

Thibodeau had either left unallocated or had been

hidden by Sassan. Thought Washington State’s

published case law is crystal clear that such lawsuits

are proper and not subject to res judicata or

collateral estoppel, the Court of Appeals ignored its

binding precedents and held that res judicata barred

the lawsuit. A federal challenge to Washington State

Court’s illegal disqualification of Fredric was

dismissed for lack of jurisdiction on Rooker- Feldman

grounds.” Sassan was also successful in enlisting «¢

* The district court judge in that suit relied on erroneous Ninth

Circuit precedent which held that Rooker- Feldman bars federal

lawsuits which seck to challenge determinations of lower court

actions. While an appeal of the district court’s decision was

awaiting, this Court issued its decision in Exxon Mobil Corp. v.

Saudi Basic Industries Corp., 544 U.S. 280, 125 S.Ct. 1517, 161

lL. Ed. 2d 454 (2005)Error! Bookmark not defined., which

held that Rooker Feldman docs not apply when the federal

litigation is initiated while the state litigation in question 1s

onvoinn. “Haxaon Mobil makes clear that the Rooker/Feldman

federal court judge to bar Viveca and Fredric from

mounting any challenges to Maxeiner’s performance

of the tasks assigned by Judge Thibodeau. That case

is effectively stayed.

As instructed by the Washington State Supreme

Court, the Washington State Bar Association

instigated a disciplinary proceeding against Fredric.

All of the charges relate to actions Fredric took to

attack Maxeiner’s appointment directly or indirectly.

The Association appointed as a hearing officer

Defendant Mano, who is a private attorney that

makes his living as a special purpose judicial officer

in multiple courts and tribunals. ER 16 911.

Fredric was initially represented by counsel Lee

Street and Cyrus Sanai (counsel in the lower court

proceedings in this action) in association with Mr.

Street. The initial hearing was called off when Mr.

Street had to withdraw due to serious illness. Cyrus

again applied for admission pro hac vice, this time in

association with Fredric, and was denied. ER 16

9112. None of the reasons for denial arose from a

conflict of interest or counsel’s lack of qualification as

a lawyer. ER 86-88. Fredric was unable to obtain

counsel able to become familiar with this case at that

late date. ER 20 43.

doctrine precludes federal district court jurisdiction only if the

federal suit is commenced after the state court proceedings

have ended. See id. at 1527 ("[Njeither Rooker nor Feldman

supports the notion that properly invoked’ concurrent

jurisdiction vanishes if a state court reaches judgment on the

same or related question while the case remains sub judice in a

federal court.")) Dornhetm v. Sholes, 430 F.3d 919 (Sth Cir

2005). H ‘r, there was no opportunity to properly raise the

issue before the Ninth Circuit. which affirmed the district court

ided after Exxon Mob

Fredric also propounded various requests for

admission against the association. The requests for

admission included the following:

10. It is a violation of a private litigant’s

fundamental due process right if a

person employed by an opposing party

serves as a judicial officer in such

litigation.

11. It is a violation of a private litigant’s

fundamental due process right if a

person then employed as a_ paid

professional of an opposing party

simultaneously serves as a_ judicial

officer in a jawsuit between the private

htigant and the opposing party.

12. Any proceeding which violates a

litigant’s fundamental due_ process

rights is void.

13. Any order which violates a litigant’s

fundamental due process rights is void.

14. Any transfer of property of a litigant

which violates a litigant’s fundamental

due process rights 1s void.

15. Philip Maxeiner was a witness in

the divorce trial of Viveca Sanai and

sassan Sanal.

16. Philip Maxeiner was at the time of

the trial and thereafter the accountant

of Sassan Sanai and his’ medical

corporation.

17. Judge Thibodeau appointed Philip

Maxeiner as a special master in the

divorce trial.

18. The duties and powers which Judge

Thibodeau ordered Philip Maxeiner to

perform and to have were those of a

judicial referee, not a special master.

19. The Washington State Court of

Appeal held that Philip Maxeiner was

in fact a judicial referee.

20. Fredric Sanai, on behalf of Viveca

Sanai, and Viveca Sanai in a pro se

capacity, challenged the appointment of

Philip Maxeiner as a special master

before the Washington State Court of

Appeals on the grounds, inter alia, that

his appointment was a violation of her

fundamental due process rights.

31. Fredric Sanai was engaged by

Viveca Sanai to file an appellate

challenge of Judge Thibodeau’s decision

in the divorce proceedings between her

and Sassan Sanai.

Judge Thibodeau _ disqualified

‘redric Sanai from representing Viveca

the grounds. inter alia. that there

was a conflict of interest arising from

Fredric’s lawsuit against Sassan Sanai.

33. There is in fact and under the law

no conflict of interest for an attorney to

represent a client against an adversary

when the attorney is simultaneously

suing the adversary.

34. Fredric Sana: was never identified

as a potential witness for the divorce

trial.

35. Fredric Sanai was never called as a

witness in the divorce trial.

36. Judge Thibodeau disqualified

Fredric Sanai from representing Viveca

on two grovids: first, that there was a

conflict of interest arising from Fredric’s

lawsuit against Sassan Sanai.

37. Fredric’s lawsuit against Sassan

Sanai did not as a matter of law

constitute a conflict of interest barring

him from representing Viveca Sanai.

38. A party in litigation has a right to

counsel of his or her choice, subject to

application of written rules of conflict of

interest.

39. Judge Thibodeau’s disqualification

of Fredric Sanai violated Viveca Sanai’s

due process rights.

40. Judge Thibodeau’s disqualification

of Fredric Sanai violated Fredric Sanai’s

due process right by removing him from

the case arbitrarily.

ER 67-72.

Mano relieved the Association from any obligation

to address these contentions, and called several of

them “irrelevant”. ER 80-81.

Mano also issued an order barring pre-trial

discovery from any judicial officials without his prior

consent. When Fredric tested the order by

requesting that subpoenas be authorized from two

jurists who had knowledge of the underlying facts

and one, Chief Judge Alex Kozinski, who had recused

himself in order to write an article? addressing the

ongoing litigation, Mano denied them on the grounds

that no testimony whatsoever from judicial officials

would be admitted into the hearing. ER 83-84.

The final pieces in this puzzle occurred after the

dismissal of this lawsuit by the trial court.4 Due to

the onset of severe headaches and _ discomfort,

* See A. Kozinski, “Kozinski Strikes Back,” The Recorder,

September 23, 2005.

* These additional jurisdictional facts were not before the trial

court, however this Court has held that such subsequent facts

may be considered by an app llate court evaluating the

applicability of Younger abstention. which is an issue in this

appeal. Middlesex County Ethics Committee v. Garden State

Bar Ass'n, 457 U.S. 423, 436 (1982). The citations are to the

declaration and exhibits filed contemporaneously with the

Ninth Cireuit Court of Appeal in support of Appellants motion

for an injunction pending appeal

25

Fredric obtained an emergency appointment with his

physician. Discovering that Fredric had life

threatening elevation in his blood pressure due to a

pre-existing cardiovascular condition, Fredric’s

physician barred him from participating in any

stressful trials or other legal proceedings. F. Sanai

Decl. in Support of Motion for Inj. Pending Appeal

44; Exhibits thereto. p.198 493-4. Fredric

immediately informed defendants Mano and the

Association of his incapacity, took a week of medical

leave, and canceled all of his trial appearances for

the subsequent five weeks in accordance with his

physician’s instructions. F. Sanai Decl., supra, 44.

Defendants Mano and the Association chose to

proceed with the hearing in _ absentia,

notwithstanding the overwhelming evidence of

Fredric’s illness. Exhibits, supra, pp. 194-195. The

result is that Fredric was deprived of any fair

opportunity to defend himself in the disciplinary

proceedings.

The hearings officer recommended disbarment of

Fredric. The Association then moved for a

preliminary suspension of Fredric while his appeal

was before the Washington State Supreme Court. In

a dramatic hearing, Washington State Supreme

Court Justice Richard Sanders launched the first

meaningful cross-examination of the Bar

Association’s position, and it was found wanting.

The Bar’ Association lost the motion. See

http://www.tvw.org ‘enter “Sanai” into the “Find”

box). Briefing has been completed.

Fredric filed the instant lawsuit, seeking

injunctive relief and damages against all defendants

who are not sitting judicial officers (and thus

immune from damages). Fredric filed a _ lawsuit

seeking injunctive and declaratory relief against the

defendants in district court of Oregon. ER 1-11. One

of the defendants filed a motion to dismiss the

complaint pursuant to FED.R.CIV.P. 12(b). ER 12-

13. Fredric contemporaneously filed a motion for a

preliminary injunction. This lawsuit was dismissed

by the District Court in an oral order solely on the

grounds that venue was not proper in the district of

Oregon. ER 184. To underline this ruling, the trial

courts judgment dismissed the lawsuit “with

prejudice only in the district of Oregon”. Pet.App. D.

While the trial court held that venue was not proper

in Oregon, it did not find any other basis for

dismissal. ER 184. Indeed, the trial court also made

the following extraordinary admission in a written

order that clarified the trial court’s oral dismissal

order of the previous day:

To clarify the court's April 12, 2007 oral

ruling, Younger was not raised on the

basis of jurisdiction. Rather, I find the

principles of Younger counsel against

an Oregon court hearing a_e case

involving Washington State Bar

proceedings. Thus, the Younger

principles support sending the case to

Washington under 28 U.S.C. 1404(a)....

ER 193

The trial court thus admitted that it had not even

considered whether the factual predicates of Younger

abstention were available, as it beheved that it was

incompetent to consider them. Thus the trial court

dismissed the lawsuit solely on basis of venue, in

defiance of the binding Ninth Circuit precedent

holding that venue was proper in Oregon. See

Pet.App. D; Myers v. Bennett Law Offices, 238 F.3d

1068 (9th Cir. 2001). The trial court’s judgment

reads as follows: “IT IS HEREBY ORDERED that

this action is DISMISSED with prejudice in the

District of Oregon only”. Pet.App. D.

On appeal, the Ninth Circuit disregarded the

venue issue, and affirmed the judgment on Younger

abstention grounds. Pet. App. C. Fredric filed a

petition for panel rehearing, pointing out that under

Gilbertson v. Albright, supra, a stay and not

dismissal was required, that under other Ninth

Circuit precedent, a jurisdictional dismissal also had

to be without prejudice, and finally that there was no

factual grounds for finding Younger abstention.

The three-judge pane denied the petition for

rehearing but vacated the first disposition and

replaced it with a new memorandum decision.

Pet.App. B. The new memorandum decision

changed the disposition from an affirmance to a

reversal and _ remand. Pet.App. A. The

accompanying order stated that “[wJe deny

Appellant’s request for an order directing the district

court to stay the action because the request was

raised for the first time in the petition for rehearing.”

Pet.App. B. A petition for rehearing and rehearing

en banc, which pointed out that in Fredric’s opening

brief he challenged the improper disposition of the

trial court under Gilbertson v. Albright was denied

without explanation. Pet. App. E.

WHY THE PETITION SHOULD BE GRANTED

1. This Case Presents an Opportunity to Address

the Deep Circuit Spht Concerning the

Application of Younger Abstention to Lawsuits

Claiming Damages.

The Courts of Appeal are divided as to the

application Younger abstention to lawsuits under 42

U.S.C. §1983 claiming damages for violation of civil

rights by state actors. This division is_ well-

recognized in the academic literature. As the leading

treatise on litigation under 42 U.S.C. §1983 puts it:

lower court decisions are in conflict

over the applicability of Younger

abstention to federal court monetary

claims. A sampling of circuit court

decisions demonstrates the range of

positions. Even within some circuits,

the decisions are not consistent.

M. Schwartz & J. Kirlin,. Section 1983 Litigation

§14.08E (3rd. ed. 1997 & Cum. Supp. 2003)(footnotes

omitted).

Younger abstention arose from a lawsuit seeking

to enjoin ongoing state criminal proceedings.

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27

L.Ed.2d 669 (1971). Since that decision, its

application to lawsuits which seek damages has

never been squarely addressed by this Court. See

Deakins v. Monaghan, 484 U.S. 193, 209-210, 108

S.Ct. 523, 98 L.Ed.2d 529 (1988)(White, J.,

concurring).

29

Decisions in the Second, Fifth, Sixth and District

of Columbia Circuits reject the application of

Younger to lawsuits claiming damages. See Rivers v.

McLeod, 252 F.3d 99 (2d Cir. 2001)(Younger not

applicable to suits seeking damages); Thomas uv.

Texas State Bd. Of Medical Examiners, supra (5th

Cir. 1987) (Younger inapplicable to damages claim);

Carras v. Williams, supra (6th Cir. 1986)( Younger

inapplicable to suit seeking damages); Bridges uv.

Kelly, supra (D.C. Cir. 1996)( Younger inapplicable to

suit seeking damages unavailable under District of

Columbia law).

The First, Seventh, Ninth and Tenth Circuit have

issued decisions supporting its application, with

various formulations and glosses. Landrigan v. City

of Warwick, 628 F.2d 736 (1st Cir. 1980); Majors uv.

Engelbrecht, 149 F.3d 709 (7t* Cir. 1998); D.L. v.

Unified S.D., 392 F.3d 11223 (10% Cir. 2004);

Gilbertson v. Albright, supra. The Ninth Circuit held

that Younger is applicable to damages claims, but

that the suits in such cases must be stayed, rather

than dismissed. Gilbertson v. Albright, supra. The

particular panel refused to apply Gilbertson to this

case on the erroneous grounds that the issue had not

been raised in the opening brief. In fact the

erroneous disposition had been directly addressed,

and Gilbertson v. Albright cited twice in the opening

brief.

Because Gilbertson v. Albright, an en banc

opinion, foreclosed any argument to the Ninth

Circuit that Younger wa: facially inapplicable,

Fredric did not argue that point to the trial court or

to the Ninth Circuit. However. his contentions are

not constrained by Ninth Circuit precedent in this

proceeding, so Fredric respectfully submits that

Gilbertson v. Albright is wrongly decided, and that

Younger abstention should be inapplicable to any

lawsuits where damages are claimed against any

defendant not subject to absolute immunity from

damages. Because Fredric could not raise this

argument to the Ninth Circuit in the face of its en

banc holding in Gilbertson v. Albright, he cannot be

found to have waived this argument. Whether this

Court agrees with the position or not, it is

appropriate for this Court to squarely address this

issue, which divides the Courts of Appeal into

multiple inconsistent camps.

The position advocated by Fredric in this petition

has been endorsed by at least three Courts of Appeal.

As the late Justice White pointed out in his

concurrence in Deakins, it is an important issue that

so far has not been directly addressed by this Court.

This Court should grant certiorari for this reason

alone.

2. If this Court Finds that Younger 1s Potentially

Applicable, Did the Ninth Circuit Err in

Applying it Where the Trial Court Disavowed

Making any Findings on this Issue?

If this Court agrees with the Ninth Circuit that

Younger is potentially applicable, then the next

question is whether the tactual foundation for

Younger existed in this case. |

When a state bar disciplinary proceeding is

ongoing, a plaintiff secking to enjoin that proceeding

on constitutional grounds must typically defend

against the contention that Younger abstention may

apply. Younger abstention apphes to a suit under 42

U.S.C. §1983 when the "Middlesex’ factors are met:

"Absent 'extraordinary circumstances’ (including but

not limited to bad faith and harassment), abstention

in favor of state judicial proceedings is required if the

state proceedings (1) are ongoing, (2) implicate

important state interests, and (3) provide the

plaintiff an adequate opportunity to litigate federal

claims." Gilbertson v. Albright, supra, quoting Hirsh

v. Justices of the Supreme Court of the State of Cal.,

67 F.3d 708, 712 (9th Cir. 1995); see also Middlesex

County Ethics Committee v. Garden State Bar Ass'n,

457 U.S. 423, 102 S. Ct. 2515, 73 L. Ed. 2d 116

(1982). This Court has held that financial interest in

the litigation, in addition to bad faith or harassment,

is one of the extraordinary circumstances which

cancels the application of Younger abstention. In

Gibson v. Berryhill, 411 U.S. 564, 577-579, 93 S.Ct.

1689, 36 L.Ed.2d 488 (1973), this Court ruled that an

injunction would he against an administrative

professional disciplinary body whose members were

likely to obtain additional business if the practices of

the plaintiff optometrist were held to be illegal.

Such financial interest in the outcome of the

administrative proceedings was significant enough to

mandate an injunction against the proceedings.

The Middlesex decision directly addressed some

of the elements a state bar disciplinary proceeding

must provide in order to meet requirement of an

“adequate opportunity to litigate federal] claims” that

merits the application of Younger abstention. These

elements include the right to “counsel, {that]

discovery 1s available, and all witnesses are sworn’.

Middlesex, supra. at 427. The thrust of the

plaintiffs challenge in Middlesex was that there was

no adequate opportunity to litigate constitutional

claims~in that forum. The Third Circuit Court of

Appeals agreed, but while this Court was considering

the case, the New Jersey Supreme Court altered the

rules to permit constitutional claims to be heard, and

actually addressed the concerns of the plaintiffs.

This Court held that this proof of actual bona fide

consideration of the constitutional \claims, belated

though it might be, required that the\Third Circuit’s

decision be reversed. What is important to note in

Middlesex is that this Court looked not only at the

letter of the procedures, but also whether the rules

were applied appropriately in practice \by the state

court institution under attack. Thus it is not enough

that the procedures exist in theory; they must be

available in practice.

Fredric’s suit was\ dismissed under a FED.R.CIV.P.

12(b) motion. This \Court pointed out two years ago

that:

Second, in some instances, if subject-

matter jurisdiction turns on contested

facts, the trial jwdge may be authorized

to review the evidence and resolve the

dispute on her own. See 5B C. Wright &

A. Muller, Federal Practice and

Procedure §1350, pp. 243-249 (3d ed.

2004): 2 Moore §12.30[3], pp. 12-37 to

12—38. If satisfaction of an cssential

element of a claim for relief is at issue,

however, the jury is the proper trier of

contested facts. Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133,

150-151 (2000).

Arbaugh v. Y & Hf Corp, 546 U.S. 500. 514, 126 8.Ct

1235, 163 L.Ed.2d 1097 (2006).

Here, the application of Younger abstention turns

on whether the third prong, an adequate opportunity

to litigate federal claims, in fact existed, and whether

“extraordinary circumstances” of a due process

nature so compromised the bar proceedings that an

injunction would be appropriate. This jurisdictional

issue dovetails with lability under 42 U.S.C. §1983;

if a lack of an opportunity to litigate federal claims or

“extraordinary circumstances” of the kind alleged by

Fredric in fact exist for purposes of establishing

jurisdiction, then they likewise exist to establish

hability. Thus neither of the lower courts were

permitted to make any fact findings and instead

were required to rely on Fredric’s pleadings.

Fredric’s pleadings allege comprehensive

deprivation of his constitutiona] due process rights

by the Washington State Bar Association and its

hearing officer. Additional deficiencies were elicited

by Justice Sanders in the hearing available on-line.

The trial court never addressed these points, as it

dismissed the complaint on erroneous venue grounds

that the Ninth Circuit declined to support. Indeed,

the trial court explicitly disavowed any finding that

Younger stripped it of jurisdiction, and instead found

that under the policies underlying Younger, it was

incompetent to address the Younger issues and that

a Washington State based court should take the case

by transfer. ER 193-4.

The Ninth Circuit’s own analysis is completely

deficient in coming to grips with the factual

contentions made by Fredric. stating only that:

Younger abstention requires dismissal

of this action. See Younger v. Harris,

401 U.S. 37 (1971); see also Middlesex

County Ethics Comm. v. Garden State

Bar Ass'n, 457 U.S. 423, 434 (1982)

(setting forth Younger abstention

doctrine requirements in the context

of state bar disciplinary proceedings);

Hirsh v. Justices of Supreme Court of

Cal., 67 F.3d 708, 713 (9th Cir. 1995)

(per curiam) (concluding that Younger

abstention was appropriate where

appellant faced ongoing state bar

disciplinary proceedings when he

brought suit in federal court).

See Pet. App. A.

Citing cases involving New Jersey and California

bar proceedings where the case arises from

Washington State, with no analysis of the different

facts, 1s inadequate. Holding that Younger

abstention applied where the trial court had made no

such findings was not merely inadequate, it was

deprivation of an opportunity to be heard on this

issue. As Chief Judge of the Ninth Circuit Court of

Appeals Alex Kozinski pointed out, a complete

failure to properly address facts can constitute a due

process default:

In instructing jurors about their fact-

finding function, we normally advise

them to consider the entire record, not

individual pieces of evidence standing

alone....

What goes for juries goes no less for

judges. In making findings, a judge

must acknowledge significant portions

of the record, particularly where they

are inconsistent with the judge’s

findings. The process of explaining and

reconciling seemingly inconsistent

parts of the record lays bare the

judicial thinking process, enabling a

reviewing court to judge’ the

rationality of the fact-finder’s

reasoning. On occasion, an effort to

explain what turns out to be

unexplainable will cause the finder of

fact to change his mind. By contrast,

failure to take into account and

reconcile key parts of the record casts

doubt on the process by which the

finding was reached, and hence on the

correctness of the finding. See, e.z.,

Gui v. INS, 280 F.3d 1217, 1228 (9th

Cir. 3002) ..-.

Taylor v. Maddox, 366 F.3d 992, 1007-1008 (9th Cir.

2004).

In this case, the factual prerequisites for

application of Younger abstention, such as basic due

process protections, were completely lacking. The

trial court made no findings on this issue and indeed

made a point of stating that it was not making any

rulings concerning Younger or the factual

underpinnings thereof. ER 193-4. The Ninth

Circuit’s decision was thus completely unmoored

from any factual findings by the trial court

The primary grounds for review of this case is the

long-standing circuit split concerning the application

of Younger abstention to lawsuits seeking damages.

The additional due process deficiency of the Ninth

Circuit’s opinion must be reviewed in tandem for a

just disposition of this.

3. The Presence of Two of the Panel Members on

the Judicial Council Considering the Ongoing

Misconduct Proceedings Involving Chief Judge

Kozinski Raise an Issue of Lack of Appearance

of Impartiality.

One month after the panel issued its initial

memorandum disposition in this matter and the

initial petition for rehearing was filed, the Los

Angeles Times acted on a tip from Fredric’s trial and

Ninth Circuit counsel, Cyrus Sanai, and published

an article discussing Chief Judge Alex Kozinski’s use

of his website, aley.kozinski.com, to store and

distribute explicit photographs and videos. See S.

Glover, “Judge in Obscenity Case Put Explicit Photos

on Web,” Los Angeles Times (June 11, 2008). Judge

Kozinski was at the time presiding over the first

obscenity trial in Los Angeles County in decades.

The consequences of that article and Cyrus’

subsequent misconduct complaint against Judge

Kozinski and certain other judges are still playing

out.

Spurred by Cyrus’s complaint, former Head of the

Administrative Office of the Courts Ralph Mechem

filed his own misconduct complaint against Chief

Judge Kozinski and two other Ninth Circuit Judges.

See C. Cotts, “Retired U.S. Court Executive Files

Kozinski Complaint,” Bloomberg News Services

(November 25, 2008). The Los Angeles Times

continues to investigate Judge Kozinski’s use of the

Internet. S. Glover, “Federal Judge E-mailed Jokes

to ‘Gag List,” Los Angeles Times (December 8, 2008).

As for the obscenity trial over which Judge

Kozinski was presiding, a mistrial was declared and

the Ninth Circuit is currently considering a double

jeopardy appeal by the defendant, Ira Isaacs. In

connection therewith the Department of Justice filed

a “Suggestion for Recusal” which argues that the

entire Ninth Circuit must recuse itself from the

appeal due to the ongoing judicial misconduct

investigation triggered by Cyrus’ revelation of Judge

Kozinski’s Internet activities. See J. Roemer, “Porn

Prosecutors Seek Recusal of Entire Ninth Circuit,”

Daily Journal (November 7, 2008). The grounds

asserted for recusal in that proceeding apply with

equal or greater force in this case. For this reason

Fredric in his petition for rehearing or rehearing en

banc raised the constitutional infirmity of the panel’s

continued haiidling of the case. In particular Fredric

pointed out the difficulty of two judges serving with

Judge Kozinski on the Judicial Council which is

fighting to keep Cyrus’ misconduct complaint against

Judge Kozinski out of the Third Circuit. See C.

Sanai, Letter of November 24, 2008 to the Hon. J.

Roberts Re Kozinski Misconduct Complaint.

The panel’s dismissal of Fredric’s complaint by

Younger abstention when the trial court disavowed

any ruling on that issue, combined with the prese:ce

of two of the panel judges on the Judicial Council.

and the Department of Justice’s contention that the

entire Ninth Circuit be disqualified from any case

related to the Los Angeles Times articles. taken as a

whole, raise In any reasonable observer's mind the

38

possibility that the ultimate resolution of Fredric’s

case by the Ninth Circuit Court of Appeals was made

by judges whose impartiality could reasonably be

questioned. As this Court pointed out, under 28

U.S.C. §455(a), a judge must disqualify himself even

if he was previously unaware of the facts giving rise

to an appearance of the absence of impartiality:

a violation of § 455(a) is established

when a reasonable person, knowing the

relevant facts, would expect that a

justice, judge, or magistrate knew of

circumstances creating an appearance

of partiality, notwithstanding a finding

that the judge was not actually

conscious of those circumstances.

Liljeberg v. Health Services Acquisition Corp., 486

U.S. 847, 850, 108 S.Ct. 2194, 100 L.Ed.2d 855

(1988).

In this case, the close relationship between

Fredric and the person who publicly unveiled Judge

Kozinski's use of his website, the prior involvement

of Judge Kozinski in writing about the Sanai cases,°

the close working relationship required among

judges serving together on a Circuit Judicial Council,

and the cavalcade of additional revelations, news

stories and misconduct proceedings would lead any

reasonable person to view this matter as one that

should have bcen finally disposed of by different

judges, probably from outside the Ninth Circuit.

Schmeir v. United States Court of Appeal for the

’ See A. Kozinski, “Kozinski Strikes Back,” The Recorder

september 23, 2005

Ninth Circuit, 279 F.3d 817, 819 (9th Cir. 2002)(“All

members of the Ninth Circuit having recused

themselves from this case, all the Judges on this

panel are sitting by designation”)

Given that the Sanai cases have attracted and

will continue to attract strong public interest, it is

particularly important that this matter be handled

in a manner that boosts public respect for the

judiciary. Granting review earns that extra level of

public respect, demonstrating that cases which relate

to judicial misconduct will not be mishandled by the

judicial body whose members committed the

wrongdoing. This is a sufficiently important enough

matter to suffice as an independent grounds for

granting review.

CONCLUSION

For the forgoing reasons, the pctition for

certiorari should be granted.

Dated this December bO, 2008

Respectfully submitted,

Fredric Sanali

660 2nd Street No. 7

Lake Oswego, Oregon 97034

APPENDIX A

FILED

NOT FOR PUBLICATION JUN 24.

UNITED STATES COURT OF 2008

APPEALS MOLLY C.

FOR THE NINTH CIRCUIT DWYER,

CLERK

U.S.

COURT

OF

7 APPEALS

FREDRIC SANAI, an No. 07-35305

individual, D.C. No. CV-07-

00295-MWM

Plaintiff - Appellant,

Vv MEMORANDUM’

GERRY ALEXANDER.

an individual; et al.,

Defendants - Appellees.

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Submitted April 22, 2008”"

Before: GRABER, FISHER, and BERZON,

Circuit Judges.

This disposition is not appropriate for publication and

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

The panel unanimously finds this case suitable for decision

without oral argument. See Fed. R. App. P. 34(a)({2)

Fredric Sanai, an attorney, appeals from the

district court’s judgment dismissing his 42 U.S.C. §

1983 action alleging civil rights violations in

connection with his Washington State Bar

disciplinary proceeding. We have jurisdiction under

28 U.S.C. § 1291. We affirm in part, vacate in part,

and remand.

Younger abstention requires dismissal of this

action. See Younger v. Harris 401 U.S. 37 (1971);

see also Middlesex County Ethics Comm. ov.

Garden State Bar Ass'n, 457 U.S. 423, 484 (1982)

(setting forth Younger’ abstention doctrine

requirements in the context of state bar disciplinary

proceedings); Hirsh v. Justices of Supreme Court of

Cal., 67 F.3d 708, 713 (9th Cir. 1995) (per curiam)

(concluding that Younger abstention was appropriate

where appellant faced ongoing state bar disciplinary

proceedings when he brought suit in federal court).

Because we affirm based on the Younger

abstention doctrine, we do not reach any other

issues. We vacate the district court’s judgment and

remand with instructions to dismiss the action

without prejudice.

Sanai'’s request for judicial notice 1s denicd.

The parties shall bear their own costs on

appeal.

AFFIRMED in part; VACATED in part;

and REMANDED WITH INSTRUCTIONS.

APPENDIX B

FILED

mM "y 2 | : 7 |

NOT FOR PUBLICATION JUN 24.

UNITED STATES COURT OF 9008

APPEALS MOLLY C.

FOR THE NINTH CIRCUIT DWYER.

CLERK

U.S.

COURT

OF

aa APPEALS

FREDRIC SANAI, an No. 07-35305

individual, | D.C. No. CV-07-

00295-MWM

Plaintiff - Appellant,

v. | ORDER

GERRY ALEXANDER,

an individual: et al.

Defendants - Appellees

Before: GRABER, FISHER, and BERZON.

Circuit Judges

[he memorandum disposition filed on May 6,

2008, is withdrawn. A replacement memorandum

disposition will be filed concurrently with this order.

[he petition for panel rehearing is denied

We deny Appcllant’s request for an order directing

the district court to stay the action because the

request was raised for the first time in the petition for

rehearimne

APPENDIX C

JED

NOT FOR PUBLICATION eae

UNITED STATES COURT OF 2008

APPEALS

MOLLY C.

FOR THE NINTH CIRCUIT DWYER.

CLERK

U.S.

COURT

OF

APPEALS

FREDRIC SANAL an No. 07-35305

individual, D.C. No. CV-07-

00295-MWM

Plaintiff - Appellant,

V MEMORANDUM

GERRY ALEXANDER,

an individual: et al..

Defendants Appellees

Appeal frem the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Submitted April 22, 2008”

Fredric Sanai, an attorney, appeals from the

district court’s judgment dismissing his 42 U.S.C. §

os

1983 action alleging civil nghts violations in connection

This disposition is not appropriate for publication and

| i

ot precedent except as provided by Yth Cir. R. 36

c To)

with his Washington State Bar disciplinary proceeding.

We have jurisdiction under 28 U.S.C. § 1291. We affirm.

Younger abstention requires dismissal of this

action. See Younger v. Harris, 401 U.S. 37 (1971); see

also Middlesex County Ethics Comm. v. Garden State

Bar Ass'n, 457 U.S. 423, 434 (1982) (setting forth

Younger abstention doctrine requirements in_ the

context of state bar disciplinary proceedings). The

Washington State Bar disciplinary proceeding against

Sanai is ongoing, implicates important state interests,

and provides Sanai with an adequate opportunity to

litigate his federal claims. See Middlesex County, 457

U.S. at 434; see also Hirsh v. Justices of Supreme Court

of Cal., 67 F.3d 708, 713 (9th Cir. 1995) (per curiam)

(concluding that Younger abstention was appropnate

where appellant faced ongoing state bar disciplinary

proceedings when he brought suit in federa! court).

Because we affirm basod on the Younger

abstention doctrine, we do not reach any other issues.

Sanai’s request for judicial notice ts denied.

AFFIRMED.

48

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

FREDRIC SANAI, No. CV 07-295-MO

Plaintiff, JUDGMENT

GERRY ALEXANDER, et al.,

Defendants.

MOSMAN, J.,

Based upon the record,

IT IS HEREBY ORDERED that this action is

DISMISSED with prejudice in. the District of Oregon

only.

DATED this 13th day of April, 2007

s/ Michael W. Mosman

MICHAEL W. MOSMAN

United States District

Judy

APPENDIX E

NOT FOR PUBLICATION a

May 6,

UNITED STATES COURT OF 2008

APPEALS MOLLY C.

FOR THE NINTH CIRCUIT DWYER.

CLERK

U.S.

COURT OF

ee APPEALS

FREDRIC SANAI, an No. 07-35305

individual, D.C. No. CV-07-

00295-MWM

Plaintiff - Appellant, |

V. ORDER

GERRY ALEXANDER,

an individual: ct al..

_Defendants - Appellees. |

Before: GRABER, FISHER, and BERZON,

Circuit Judges

The panel has voted to deny the petition for pancl

rehearing filed on July 17, 2008

The full court has been advised of the

accompanying petition for rehearing en banc and no judge

has requested a vote on whether to rehear the matter en banc.

See Fed. R. App. P. 35.

The petition for panel rehearing and the petition

for rehearing cn banc are denied.

No turther filings will be accepted tn this closed case

APPENDIX F

1. The Fifth Amendment to the U.S.

Constitution provides in relevant part:

“{(Njor shall any person...be deprived of

life, liberty, or property, without due

process of law.” U.S. Const., Amend.

V,§ 1.

28 U.S.C. §455(a) reads as follows:

Any justice, judge, or magistrate judge

of the United States shall disqualify

himself in any proceeding in which his

impartiality might reasonably be

questioned.

42 U.S.C. §1983 reads as follows:

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory or

the District of Columbia, subjects,

or causes to be subjected, any citizen

of the United States or other person

within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the

Constitution and laws, shall be lable

to the party injured in an action at

law, suit in equity, or other proper

proceeding for redress, except that in

any action brought against a judicial

officer for an act or omission taken in

such officer's judicial capacity,

injunctive relief shall not be granted

unless a declaratory decree was

violated or declaratory relief was

unavailable. For the purposes of this

section, any Act of Congress applicable

exclusively to the District of Columbia

shall be considered to be a statute of

the District of Columbia.