BERRY v. THE STATE OF CALIFORNIA

The Ninth Circuit denied me a hearing on the merits by failing to follow their own Rooker-Feldman precedent - indeed altering their own precedent in the disposition -  to find that they "lacked jurisdiction" to hear my wholly prospective, injunctive challenge to a State statute.  This case has now exhausted all remedies and is dead.

The issue on appeal was:

Whether the district court erred in denying jurisdiction under Rooker-Feldman when relief sought was solely injunctive and declaratory relief, prospectively challenging the constitutionality of a state statute, and was not affecting the prior $13,000 state court sanction judgment.

The DISPOSITION, verbatim:

Here's the properly quoted caselaw that the panel mangled to reach the flawed conclusion above:

As cited in the Opening Brief, my case was strikingly similar to this Court's Wolfe v. Strankman 392 F.3d 358 (9th Cir.2004) published opinion. But this Ninth Circuit result on similar facts was the opposite, and the panel is silent on why.

CLEARLY to be barred by Rooker-Feldman, my complaint either had to "seek to set aside a state judgment" or "seek relief from a state judgment." My prospective complaint sought to do neither, and the disposition does not even claim that it sought to do either. 

Here's p.5 of my opening brief - should there be any doubt whether this issue was raised on appeal - with every fact property citing the Record:

REQUEST FOR REVIEW

In "Taking the Kozinski Challenge" Attorney Howard Bashman states that Justice Alex Kozinski has demanded to be "shown one situation - just one - where the Ninth Circuit is playing fast and loose with its own precedents."

Ok, here is one, and there are likely hundreds of others like this buried within the Ninth Circuit's unpublished opinions.

I ask that JusticeWilliam A. Fletcher and Justice Alex Kozinski, authors of Noel v. Hall, review these facts and comment whether the Ninth Circuit is applying a double standard in published vs unpublished dispositions, and inconsistently applying Rooker-Feldman, depriving pro se litigants of hearings on the merits. Justice Fletcher is also the author of Rooker-Feldman authority Wolfe v. Strankman, cited at: AOB 4, 6, 7, 10; AB passim; RB 1, 8, 12, 13 – but the disposition is silent how my prospective challenge to a State statute is distinguished from Wolfe:

• Plaintiff was previously prosecuted under a State statute
• Plaintiff files Federal complaint seeking a declaration that the State statute is unconstitutional, to bar future prosecution under the statute.

One need not be an attorney, judge, or law clerk to comprehend this injustice. One need only compare the Wolfe and Noel opinions with the facts of my case. Rooker-Feldman can be broken down to a simple set of tests - to which my case clearly did not qualify. What could I have possibly done different to make the panel understand? They denied my request for oral arguments, and likely not one of them cracked open my briefs. The U.S. Constitution is meaningless if citizens cannot seek enforcement in Federal Court. And back in District Court I was denied a hearing before District Judge Lawrence K. Karlton solely because I was pro se - as if a pro se could not possibly have anything of merit to say.

The Panels' holding is absurd - under their standard no one could ever challenge a statute in federal court:

• If one HAS NOT been prosecuted under that statute, they do not have standing
• If one HAS been prosecuted, then if the federal court found that the statute was unconstitutional - that would imply that the state had erred by applying an unconstitutional statute - which this panel claims is barred by Rooker-Feldman

THE NINTH CIRCUIT'S "UNPUBLISHED OPINION CASE DISPOSAL MACHINE"

The panel that misapplied precedent and wrongfullly affirmed dismissal of my case, "heard" 89 cases on that same day, November 14, 2006 - 5 minutes per case to consider an opening, response, and reply brief and review caselaw.

THE DISPOSITION MIS-CITES THEIR OWN PRECEDENT TO AFFIRM THIS DISMISSAL

The one page disposition alters Ninth Circuit precedent to form the basis for affirming dismissal - and fails to correct it on rehearing - writing:

"We reject Berry's contention that he brings an independent action seeking prospective relief because his complaint "asserts as a legal wrong an allegedly erroneous disposition by a state court. [period]" [Noel v. Hall 341 F.3d 1148 (9th Cir. 2003) at 1164]

The Ninth Circuit Panel, EDWARD LEAVY, RONALD M. GOULD, and RICHARD R. CLIFTON, replaced a comma with a period and dropped off the pivotal portion of the citation, which is highlighted in yellow: 

"If a federal plaintiff asserts as a legal wrong an allegedly erroneous disposition by a state court, and seeks relief from a state court judgment based on that disposition, Rooker-Feldman bars subject matter jurisdiction in federal district court." [Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003) at 1164]

Consistent with Wolfe, the Disposition fails to show how I could have possibly been "seeking relief from" the $13,000 sanction judgment that was ordered and affirmed by the State appellate court - consistent with U.S. Supreme Court precedent of the scope of "wholly prospective" - cited at hearing an in brief: 

Here, however, the suit is in no way "designed to annul the results of a state trial" since the relief sought is wholly prospective, to preclude further prosecution under a statute alleged to violate appellees' constitutional rights. Wooley v. Maynard, 430 U.S. 705, 711 (1977) [AOB 15, RB 6, 7]

The panel, in finding this complaint was a "de facto appeal" ignored the pivital fact that I was not "seeking relief from a state court judgment," and futher, that it would have been impossible to seek such relief since nothing was pending in state court.

The Noel authority, page 1163, cited in Reply Brief p.10, clarifes that "denying a legal conclusion that a state court has reached" does not bar jurisdiction unless the plaintiff is seeking to "set aside a state judgment" - at bar I brought the independent claim whether the State statute was unconstitutional:

The Rooker-Feldman doctrine asks: is the federal plaintiff seeking to set aside a state judgment, or does he present some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party? If the former, then the district court lacks jurisdiction; if the latter, then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.  [RB 10]

The core point of this fully briefed appeal was that my federal complaint sought prospective, injunctive relief only, as is fully evident in the Opening Brief. As such, it was not, and could not "seek relief from a state court judgment." I had extensively briefed the Noel issue:

The pivotal issue on appeal is that Berry seeks only prospective relief from future sanctions against future nonfrivolous appeals from future state trial court orders or judgments. [AOB 9] . . . Berry has established that his complaint is wholly prospective [AOB 5, Fact C-2; AOB 8], and does not seek to “reject” or “overturn” a prior state judgment [AOB 5 Facts C-3 and C-5; AOB 9] [Reply Brief p.5]

I had properly raised Noel as my primary argument against Rooker-Feldman dismissal back in district court as well, Brief p.4 - and at oral argument - see p.3 and p.5, but the magistrate's findings ignored Noel.

While the disposition claims that my complaint was a "de facto appeal of the state court proceedings," the Court does not explain how a prospective relief can ever be construed as a “forbidden de facto appeal,” and thus must fail in its claim of “inextricably intertwined.” [See Reply Brief, p.3]

The second issue raised on appeal as a first impression question, argued in Opening Brief p.22, was:

Whether Local Rule 72-302(c)(21), which denies only pro se litigants a hearing before the district judge who signs the dismissal order, violates the Equal Protection Clause embedded in the Fifth Amendment.

To this question the Disposition states, in total, "Berry's remaining contentions lack merit."  But cleary the oral agument to the district just afforded to litigants represented by attorneys is not the same as a district judge reviewing the findings and recommendations of a magistrate judge, since the factual findings are likely biased in favor of the recommendation. [Reference on limitations of magistrate judge. ]

I had argued: 

The fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)) If due process for attorneys entails a hearing before the district judge, then depriving non-attorneys that same opportunity for hearing is a denial of equal protection and due process.

Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest," Kramer v. Union Free School District, 395 U.S. 621, 627 (1969).