No. _________________ ____________________ IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 1995 ____________________ DIXIANNE HAWKS, PETITIONER v. NINTH CIRCUIT COURT OF APPEALS, RESPONDENT COUNTY OF BUTTE, DISTRICT JUDGE GARCIA, CIRCUIT JUDGES SCHROEDER,CANBY AND WIGGINS, DEFENDANTS-APPELLEES MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS Dixianne Hawks John E. Wolfgram, Assoc. Counsel In Propria Persona Constitutional Defender Association 13803 N. Granada Drive 4826 South Studebaker Road Magalia, California 95954 Placerville, California 95667 (916) 877-4636 (916) 642-1776 # # # No. _________________ ____________________ IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 1995 ____________________ DIXIANNE HAWKS, PETITIONER v. NINTH CIRCUIT COURT OF APPEALS, RESPONDENT COUNTY OF BUTTE, DISTRICT JUDGE GARCIA, CIRCUIT JUDGES SCHROEDER, CANBY AND WIGGINS, DEFENDANTS-APPELLEES MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS The Petitioner asks leave to file the attached Petition for a Peremptory Writ of Mandamus without prepayment of costs and to proceed here in forma pauperis (IFP). Petitioner has previously been granted leave to proceed IFP, and is presently proceeding IFP, in the United States District Court for the Eastern District of California. Petitioner's IFP status was de-certified by the District Court for appeal in this case, without notice or hearing, on the ground that the appeal to the Ninth Circuit was taken in bad faith. That de-certification is the basis of the issues being presented to this Court in the Petition for Writ of Mandamus (see "History of the Case," in this Motion, pages 2-6, and in the Petition, pages 2-5). Petitioner's affidavit in support of this Motion is attached hereto. [signature on attached Verification] Dixianne Hawks, Petitioner # # # IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 1995 In re: DIXIANNE HAWKS, No. _______________________ Plaintiff-Appellant-Petitioner 9th Circuit Court of Appeals: v. Appeal Case No. 95-16714 Civil Case No. 93-82-WBS (Eastern District of Calif.) COUNTY OF BUTTE, DISTRICT JUDGE GARCIA, CIRCUIT JUDGES SCHROEDER, CANBY, AND WIGGINS, MOTION TO PROCEED IN FORMA PAUPERIS Defendants-Appellees _______________________________/ NINTH CIRCUIT COURT OF APPEALS, Respondent _______________________________/ COMES NOW Dixianne Hawks, hereinafter "Petitioner" in the above entitled action, to move this Honorable Court for leave to proceed in forma pauperis (IFP) here, and to petition for a peremptory Writ of Mandamus compelling the Ninth Circuit Court of Appeals: (a) to grant IFP status to the Petitioner, (b) to order Respondent Court to Strike the District Court's Order of October 4, 1995, (c) to vacate the Circuit Court's Order of December 8, 1995, (d) to vacate the Circuit Court's Order of December 27, 1995, and (e) to deem the Opening Brief filed as of December 11, l995. Page 1 of 10 Issue on This Motion Petitioner is currently proceeding in District Court IFP on the "bifurcated" part of this case. There has been no challenge to her financial inability to pay court fees and costs. The challenge to her IFP status is based upon a District Court order declaring that her appeal to the Ninth Circuit was taken in bad faith. Thus, this Motion addresses the History and bona fides of the appeal as the major issue. History of the Case Note: This History is substantially identical to the History set out at pages 1-5 in the Petition to this Court in chief. On August 20, l990, Petitioner exercised First Amendment political rights of speech and petition by handing out leaflets commonly known as "FIJA leaflets" (Fully Informed Jury Association) to Persons in places open to the public. There were no notices that such acts were not lawful, and no prior restraint binding on Petitioner. Thereafter, Butte County Defendants began and maintained a criminal prosecution of Petitioner for those acts that lasted until January l992. Then, in a series of face- saving defamations of Her, Butte County Defendants dismissed the persecution. Petitioner is a disabled American whose only source of income is Social Security. Exactly one year later, on January 13, 1993, She again exercised Her First Amendment Right to Petition Government for Redress of the above described grievance with local government by filing a 42 USC 1983 complaint in the United States District Court for the Eastern District of California, along with a motion to proceed in forma pauperis, against defendants Butte County, District Attorney Michael Ramsey, Municipal Court Judge Jerome E. Warren, and 10 Does. The immediate purpose was to toll the statute of limitations until She could get help to draw up an amended complaint. Her Page 2 of 10 expectations were pursuant to FRCP Rule 15. She had made previous arrangements for assistance of counsel to draw up an amended complaint within two weeks of filing. There was no notice that the normal rules of court did not apply to IFP litigants, nor was She subject to any lawful prior restraint on the exercise of Her Petition Clause Rights. On January 20, 1993, a week after filing, United States District Judge Edward Garcia granted in forma pauperis status, but ordered said complaint dismissed with prejudice, without motion, without notice and without hearing, on grounds that it was frivolous under 28 USC 1915(d) (hereinafter "First Dismissal"). Petitioner was denied Her FRCP Rule 15 due process rights and subjected to censorship of Her Petition Clause Rights without hearing, solely because She was poor. Petitioner then appealed the First Dismissal to the Ninth Circuit (hereinafter "First Appeal"), contending that, no defendants having appeared, She had a Petition Clause Right and Rule 15 right to amend, and Judge Garcia had no jurisdiction to dismiss, especially with prejudice. Her first brief was returned because it failed to comply with form -- a form over substance abridgment of Her right to Petition for Redress. She amended it and refiled it. Initially, Ninth Circuit Judges Schroeder, Canby, and Wiggins affirmed the First Dismissal. Petitioner then petitioned for rehearing, with an en banc suggestion, stressing the equal rights of an IFP litigant to amend under Rule 15. Rehearing was granted by the original panel, but the issues appealed were still not addressed. The Circuit Court affirmed as to the Does and Judge Warren on grounds Page 3 of 10 of judicial immunity, even though She argued the right to amend under Pulliam v Allen, 466 US 522, again abridging Her right to petition for declaratory relief, an important political right. The Circuit Court affirmed in part and vacated in part the dismissal as to District Attorney Ramsey, and vacated the dismissal as to the County of Butte. The Circuit Court's basis for vacating was that Judge Garcia had abused his discretion. (See First Amended Complaint, Exh. 1a (hereinafter "FAC") 9:8 et seq.) Petitioner moved for rehearing again on the basis that Judge Garcia, proceeding without notice or hearing and in the face of Rule 15, had no "discretion" to abuse. Her motion was denied and the case was remanded to the District Court for further proceedings. Petition-er then filed Her First Amended and Supplemental Complaint on November 21, 1994, conforming to the Circuit Court's requirements. In addition to amending, Petitioner sued Judges Garcia, Schroeder, Canby and Wiggins in the Fifth and Supplemental Cause of Action for Violations of Her Petition and Due Process rights and of 42 USC 1985. The Supplement was pleaded under this Court's opinion in Pulliam v Allen, 466 US 522. Again, the important right is the Political Right to a declaration that what the Defendants did violated Her rights. Without such a political right, as this case demonstrates, the violations become systematic and institutionalized, and continue ad infinitum. Page 4 of 10 The case was assigned to U.S. District Judge William B. Shubb. He granted Defendants' motion to dismiss on grounds of judicial immunity, holding that Pulliam did not apply to federal judges per Mullis v U.S. Bankruptcy Court, 828 F2d 1385 (9th Cir.). Of particular relevance here is that, during oral argument, Petitioner asked Judge Shubb to certify his ruling pursuant to FRCP 54(b) so that it could be appealed independently./1 He issued his order on July 27, 1995 (Exhibit 1), allowing Petitioner to appeal under FRCP 54(b), and effectively bifurcating this case from the suit against Butte County. Petitioner filed Notice of Appeal on August 23, 1995./2 Then, on October 4, 1995, Judge Shubb issued an "Order," without notice and without hearing, "certifying" that Petitioner's Second Appeal "... is not taken in good faith" (see Exhibit 2). That Order effectively denied Petitioner's IFP status for appeal under 28 USC 1915(a) and, as a practical matter, arbitrarily violated Her Petition and Due Process Clause Rights based upon IFP status. This Court should note that Judge Shubb's "de-certification order" was made some six weeks after he had lost jurisdiction by the notice of appeal. On October 12, 1995, Petitioner filed a Motion to Strike the Order of Judge Shubb of October 4, or, in the Alternative, for an ____________________ 1 There was an obvious Pulliam versus Mullis issue. Embodied in that issue is the political right to have government wrongs, even wrongs of judges, declared so that they cease. 2 The Point: If Judge Shubb wished to certify that the Second Appeal was in bad faith under 28 USC 1915(a), he could have raised the issue during oral arguments, or in his Memorandum and Order, and he could have allowed Plaintiff a due process opportunity to be heard. If, on hearing, he was not pursuaded of Her good faith, Plaintiff could have timely petitioned the Circuit Court for leave to appeal IFP. But, not only did he not offer such a hearing, he also gave Plaintiff no clue that he felt Her Second Appeal was in bad faith, even after certifying for a Rule 54(b) appeal. Instead, he waited ten weeks; and six weeks after he lost jurisdiction by the appeal, and after a briefing schedule was already set, he then issued his order, without notice, without hearing, and without apparent cause. Page 5 of 10 Order to Show Cause Why It Should Not Be Stricken (hereinafter "Strike Motion," see Exhibit 3); and, on October 19, 1995, She filed a Supplement to the Strike Motion (hereinafter "Strike Supplement," see Exhibit 4). On October 24, 1995, Defendants filed their "Federal Defendants-Appellees' Opposition to Motion to Strike Order of Judge Shubb" (hereinafter "Strike Opposition," see Exhibit 5). Petitioner did not receive a copy of the Strike Opposition and, therefore, did not file a rebuttal, although there is proof of service. The Ninth Circuit Court of Appeals waited until December 8, 1995, to issue its order denying IFP status (see Exhibit 6). That Order declared: "Our independent review of the record indicates that appellant is not entitled to IFP status for this appeal. See 28 USC 1915(a)." It ordered Petitioner to pay filing fees within 14 days and file proof of payment with the Circuit Court; it also declared that: "Failure to pay the fees will result in the automatic dismissal of the appeal by the Clerk for failure to prosecute, regardless of further filings. See 9th Cir. R. 42-1." [emphasis added] A copy of the filed Circuit Order was then mailed to the Petitioner. In the meantime, Petitioner's Opening Brief was due. She served and "filed" it on December 11, 1995, prior to receiving notice of the December 8 Circuit Order (see Exhibit 7). The Petitioner's Opening Brief was thus lodged in the Appeals Court, but She had no money with which to pay the filing fees, and the Court had ordered an "automatic dismissal" regardless of further filings. This Court is asked to note Petitioner's IFP Page 6 of 10 declaration: She relies totally upon Social Security; She has a one-ninth interest in common with Her mother in a real property, and She owns a home which she personally built, neither of which properties can be liquidated. She has no other assets. The Circuit Order occurred during the Christmas season when cash shortages are acute. She has no income with which to repay any loans. This Court is asked to notice two repetitive circumstances: First, every filing herein (the Original Complaint, the First Appeal and filing and refiling thereof, the two Requests for Rehearing, the Amended and Supplemental Complaint, the Second Appeal, the Motion to Strike Judge Shubb's October 4th Order, the Supplement to the Motion to Strike, the Opening Brief, and now Her Petition to this Court) are all Petitions to the Appropriate Government Agencies (courts) to redress grievances of a constitutional magnitude with government. Second, the repetitive issue is Her right to petition IFP. In effect, the Federal Courts have reversed the intents and purposes of 28 USC 1915 and have, by arbitrarily assuming authority to violate constitutional rights, made IFP litigation infinitely more burdensome than it is for people who hire counsel and pay the courts to exercise the right to petition for redress of grievances with government. Page 7 of 10 Petitioner now petitions for relief from the procedural irregularities, arbitrary customs, unlawful procedures and practices documented herein, reflecting a policy of discrimination against the poor, just because they are poor. That policy creates numerous artificial barriers collectively calculated to become insurmountable and to render the right to petition government for redress of grievances illusory, ineffective and unavailable to the poor. This Court attempted to set a standard in Day v Day, (l995) 510 US__, 126 L Ed 2d 1, allowing up to 27 IFP petitions over 9 years before denying IFP status, and suffering 8 more in a few months before issuing the kind of order the Circuit Court issued to Petitioner only on Her second such filing; and the first such filing was, in fact, successful (it reversed Judge Garcia for abuse of discretion). The Ninth Circuit rejected this Court's standard set in Day. Thus, it is necessary that this Court state the standard in terms of a principle established under the First Amendment Petition Clause in the Constitution, for guidance to the Circuit and District Courts. Supporting Declaration: The Declaration of John E. Wolfgram, set out in Exhibit 9 and accompanying this Motion and Petition, is incorporated herein by reference. Petitioner's Affidavit in Support of Her Motion to Proceed IFP is attached. Page 8 of 10 POINTS AND AUTHORITIES IN SUPPORT OF MOTION The First Amendment states in relevant part: "Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances." This Court declared of that clause in Chambers v Baltimore & Ohio R.R., 207 US 142, 148 (1907): "The Right to sue and defend in the courts is the alternative of force. In an organized society, it is the right conservative of all other rights and lies at the foundation of orderly government." [emphasis added] If access to the courts is the alternative to force, in a civilized society the right effectively to petition government through its courts to redress one's grievances with it, is the alternative to violent revolution against government. See Declaration of Independence of July 4, l776, and the Causes of the Revolutionary War: the Colonies had no way to compel the King to redress their grievances with his rule, short of rebellion./3 The same is recognized in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Liberties. See the citations and argument in "Aid to Court's Appellate Jurisdiction" on pages 6-8 of the attached Petition for Writ of Mandamus to the Ninth Circuit Court of Appeals. Wherefore, Petitioner respectfully prays that this Honorable Court grant Her motion to proceed in forma pauperis; hear and decide the Petition for Writ of Mandamus to the Ninth Circuit on its merits; and, in the process, set appropriate constitutional standards for the guidance of the Judiciary so that all persons may effectively petition government for redress of grievances against government, regardless of financial status. ____________________ 3 After itemizing the 27 unredressed grievances, the Declaration states: "In every stage of these Supressions We have Petitioned for Redress in the most humble terms. Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people." Page 9 of 10 Dated: January 11, 1996 ______________________________ Dixianne Hawks Page 10 of 10 # # #
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Hawks v. County of Butte et al.