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.