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B241184  

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT, Division p
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Court of Appeal B241184 Superior Court YC064994 Lead for additional consolidated cases YC065018, YC065019, YC065021, YC065164, and SC113064 SC113135 SC113136 SC113137

Daniel COOPER, an individual; Plaintiff/Appellant

v. Elia WEINBACH, an individual; Defendant/Respondent.

IN PRO PER

Appeal From a Judgment of The Superior Court of California, County of Los Angeles The Honorable Robert O’Brien APPELLANT’S OPENING BRIEF

Daniel Cooper 1836 10th Street #B Santa Monica, CA 90404 310-562-7668 In Pro Per

Kevin M. McCormick Benton, Orr, Duval and Buckingham 39 North California Street, Post Office Box 1178 Ventura, California 93002

 

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IN PRO PER

 

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IN PRO PER

! (6)!MADELEINE FLIER ! (7) LAURENCE D. RUBIN (8) VICTORIA GERRARD CHANEY (9) ROBERT M. MALLANO

! received payments, failed to recuse, at risk received payments, failed to recuse, at risk received payments, failed to recuse, at risk received payments, failed to recuse, at risk

 

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TABLE OF CONTENTS
I. SUMMARY II. INTRODUCTION III. FACTUAL ALLEGATIONS A. COMPLAINT IS PROPERLY SUED AGAINST AN INDIVIDUAL 1. DEFENDANT CHANGES LAWSUIT. 2. THE COMPLAINT IS NOT DEFECTIVE B. SBX2 11 IS UNCONSITITUTIONAL 1. FIRST CITIZEN CHALLENGE STURGEON I 2. HASTY RESPONSE IN SENATE BILL SBX2 11 3. SECOND CITIZEN CHALLENGE STURGEON II C. TAXPAYER CHALLENGES D. CJP CHALLENGES SBX2 11 E. ATTORNEY GENERAL STALLS OPINION ON SBX2 11 IV. STATEMENT OF APPEALABILITY V. LEGAL ARGUMENTS TO REVERSE JUDGMENT A. SBX2 11 VIOLATES FEDERAL EQUAL PAY ACT OF 1963 B. JUSTICES, WEINBACH AND O’BRIEN LACK JURISDICTION C. WEINBACH AND O’BRIEN VIOLATE JUDICIAL ETHICS D. FRAUD ON THE COURT BY WEINBACH AND O’BRIEN E. EXTRINSIC FRAUD BY WEINBACH AND O’BRIEN F. SBX2 11 AMNESTY AND RETROACTIVE IMMUNITY G. DENIAL OF DUE PROCESS H. MISPRISION OF FELONY APPLIES TO JUDGES I. SBX2 11 GIVES THE APPEARANCE OF A BRIBE J. LOS ANGELES COUNTY IS AN INTERESTED PARTY K. CHANGE OF VENUE NEEDED FOR RESOLUTION VI. REASONS FOR GRANTING THE PETITION VII.
 
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8 8 10 11 12 17 17 18 18 19 22 24 25 28 29 29 31 31 32 34 37 38 39 40 41 43 44 45

CONCLUSION

 

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TABLE OF AUTHORITIES
Cases Associated Gen. Contractors of Cal., Inc. v. Coalition for Econ. Equal. 950 F.2d 1401, 1412 (9th Cir. 1991) ................................................45 Austin v. Smith, 312 F2nd. 337,343 (1962) ...............................................................33 Caperton v. A.T. Massey Coal Company, Inc., 566 U.S. ___ (2009) ...........................................................11, 35, 39 Carlson v. Eassa 54 CA4th 684,691, 62 CR2d 884, 888 (1997); .........................28, 34 Carr v. Kamins 151 CA4th 929, 933-934, 60 CR3d 196, 199 (2007) ................28, 34 Elliott v. Lessee of Piersol, 26 U. S. (1 Pet.) 328, 340 (1828) ....................................................33
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Estate of Sanders v. Sutton 40 Cal.3d 607,(1985) .......................................................................33 Guiterrez v. Municipal Ct., 838 F2d 1031, 1045 (9th Cir. 1988), vacated as moot, 490 U.S. 1016 ..45 In Re Murchison, 349 U.S. 133, 136 (1955) ..........................................................32, 38 Offutt v. United States, 348 U.S. 11, 14 (1954) ..............................................................35, 39 Old Wayne Mut. Life Ass’n v. McDonough, 204 U.S. 8, 27 Sup.Ct. 236 ..............................................................33 Residents for Adequate Water v. Redwood Valley County Water Dist. 34 CA4th 1801, 1805, 41 CR2d 123, 125 (1995) .....................28, 34 U.S. v. Throckmorton, 98 U.S. 61 (1878) ................................................................ 28, 33-34

 

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Sammartano v. First Judicial Distict Ct., 303 F.3d 959,973 (9th Cir. 2002) .....................................................45 Sturgeon v. County of Los Angeles (2008) . 7-8, 10-13, 16, 19, 25-26, 30-31 167 Cal.App. 6, 630, 84 Cal.Rptr.3d 242 rev. denied 12/23/08 Sturgeon v. County of Los Angeles (2010) 191 Cal.App. 4th 344 ............................ 7-8, 10-13, 19, 25-26, 30-31 Vallely v. Northern Fire and Marine Co., 254 U.S. 348 (1920) .................................................................. 33-34 Walczak v. EPL Prolong, Inc, 198 F.3d 825, 831 (9th Cir. 1999) ....................................................45 Wells, Res Adjudicata, Section 499 ...........................................................33 Statutes 18 U.S.C. § 4 ....................................................................................39
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28 U.S.C. 2403 (b) (Determination of Constitutionality) ...........38, 44 29 U.S.C. § 206 (Equal Pay Act Of 1963) .....................................29 Constitutional Provisions U.S. Constitution, First Amendment ................................................44 U.S. Constitution, Fifth Amendment ............................................8, 44 U.S. Constitution, Fourteenth Amendment ..................................8, 44 Codes California Code of Civil Procedure ................................ 12-13, 28, 32 California Government Code.......................................... 12-16, 19, 26

 

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COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT Division p

Daniel COOPER, an individual; Plaintiff/Appellant

v. Elia WEINBACH, an individual; Defendant/Respondent.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Court of Appeal B241184 Los Angeles County Case No. YC064994
Lead for additional consolidated cases YC065018, YC065019, YC065021, YC065164, and SC113064 SC113135 SC113136 SC113137

IN PRO PER

APPELLANT’S OPENING BRIEF

 

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I. SUMMARY Judge Elia Weinbach is a state employee. Judge Weinbach received over $364,406 in unconstitutional payments from the County of Los Angeles. The County of Los Angeles is an interested party with Defendant. When Plaintiff appeared before Judge Weinbach he failed to recuse himself and ruled in the matters at hand. Judge Weinbach committed extrinsic fraud and denied Plaintiff his due process protections under the 5th and 14th Amendments. The payments are unconstitutional and the Fourth California Appellate Court encouraged citizens to challenge the law. Appellant requests this court to rule SBX2 11 unconstitutional and overturn Judge O’Brien’s ruling on the Demurrer. Plaintiff/Appellant filed the civil suit against the individual, Elia Weinbach on the belief that the county payments are not part of the employment contract between Elia Weinbach and the State of California. SBX2 11 recognized the illegality of the
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payments when it provided retroactive immunity. Since SBX2 11 violates several portions of the California Constitution and the federal Equal Pay Act, SBX2 11 cannot stand and the judges, as individuals, are sueable. Acceptance of the unconstitutional payments deprives the judges of the broad immunities normally accorded to judges. Judge O’Brien received (in the past) and Court Counsel (directing the attorneys for Defendant) currently receives the same unconstitutional payments and thus their actions also protect themselves with judicial immunities. Appellant further requests this court to overturn Judge O’Brien’s ruling on the Demurrer since he improperly applies the laws of judicial immunity to an individual. II. INTRODUCTION The following cases were consolidated under rules of the Court for proceedings in Superior Court. The cases were brought by two individuals, Dennis
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Ettlin and Daniel Cooper, each proceeding In Pro Per. Each case questions the constitutionality of SBX2 11 and lays out in detail the biases that flow from and impact the due process rights of Plaintiffs in family court, traffic court and the Appellate Court. Ettlin v. Veasey, Ettlin v. Slawson, Ettlin v. Kriegler, Ettlin v. Taylor, Ettlin v. Kuhl, Case No. YC064994 Case No. YC065018 Case No. YC065019 Case No. YC065021 Case No. YC065164

Cooper v. Weinbach, Case No. SC113064 Cooper v. Levanas, Case No. SC113137 Cooper v. Todd, Case No. SC113135 Cooper v. Ashmann,Case No. SC113136 In the nine suits, there are six Judges of the Superior Court and three Justices
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of the Second Appellate Court. The amended CERTIFICATE OF INTERESTED ENTITIES OR PERSONS (APP-008) filed by Plaintiff Ettlin identifies more clearly that Justices Sandy Kriegler, Judith Ashmann-Gerst, and Kathryn Doi Todd are named defendants. In a similar fashion, other Justices who have received county judicial payments and have ruled on various Writs in these cases, are at risk. A change of venue would be appropriate for all the arguments shown in Appellant’s Appendix starting at AA-374. A third Plaintiff, Anthony Locatelli, has filed a similar suit against Judge Trent Lewis in San Diego Superior Court. That case was removed to Los Angeles County. Locatelli has initiated his appeal to this court (B240813, Los Angeles County No. BC472585).

 

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A fourth litigant, Justin Ringgold-Lockhart is before the Ninth Circuit Court of Appeal also arguing the denial of due process based on supplemental judicial payments (9th CCA case, 11-56973, District Court, 2:11-cv-01725-R-PLA). The Constitutional issues arising from the supplemental judicial payments and from SBX2 11 will not go away. The power of the Judicial Branch arises from the integrity of its members. The Judiciary must likewise protect itself from laws and regulations that undermine that hard-won integrity. The men and women of the Judicial Branch work hard to preserve the “rule of law” and may well deserve increased pay. The county payments are not the way to achieve that goal. III. FACTUAL ALLEGATIONS

At the time the family law case, SD026673, was filed in Superior Court and throughout the proceedings, Plaintiff was not aware that Judge Weinbach was receiving payments from L.A. County. At no time from the commencement of the filing of the case
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through the present did Judge Weinbach, a state employee, barred by California Constitution Article VI, Sec. 19, from receiving income from any source other than the state, disclose that he was receiving payments from L.A. County (AA-119). At no time did he disclose the appearance of, or the actual bias due to those same L. A. County payments to him or due to the L.A. County Child Support Services Department (CSSD) receipt of Title IV-D funds from the federal and state governments (AA-124) based upon a percentage of the disbursements ordered by the L.A. County judges plus an incentive for collections above an annual “floor”. At no time did he disclose the “partnership” (AA-123) with the CSSD. Plaintiff seeks damages for the loss of his constitutional rights, for obstruction of justice, for damage to his standard of living, for his ability to support his children adequately and for emotional distress of not seeing his children.

 

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A. COMPLAINT IS PROPERLY SUED AGAINST AN INDIVIDUAL Court Counsel seeks to portray the Plaintiffs seeking damages for the loss of their constitutional rights as disgruntled litigants (AA-336). Court Counsel would also have characterized all African-Americans seeking their full constitutional rights in the 1950’s as disgruntled domestic help; all Chicano’s in the 1960’s as disgruntled field workers, and maybe even all women seeking their full constitutional rights in the 1970’s as disgruntled housewives. The Fourth Appellate Court refused to order the remedy (AA-362) and instead called upon taxpayers (AA-362) and judges to agitate for the changes needed to bring the Judiciary back to full constitutional compliance. Plaintiffs believe it would be professional suicide for any lawyer to stand before Los Angeles County judges and advance the same truths or to represent us. While Plaintiffs appreciate the deference and professional courtesies from Judge O’Brien and Counsel, Kevin McCormick, Appellants
IN PRO PER

must heed the direction of the Fourth Appellate Justices and continue to seek judges who have not taken unconstitutional payments, give no perception of bias toward the interests of Los Angeles County and are not judging the constitutionality of their own actions. Plaintiffs identified facts and information with a direct bearing on the sueing of these civil cases against individuals (AA-350 to -351). Plaintiffs also requested a change of venue (AA-374). The U.S. Supreme Court would not have wasted its precious time on Caperton v. A.T. Massey Coal Company, Inc., 566 U.S. ___ (2009) if judges had the “absolute immunity” envisioned by Los Angeles Court Counsel (AA-337, citations AA-342). Bench officers must abide by the CCP, the Code of Judicial Ethics and the laws of California and the United States as a precondition for any immunity. This case bears striking similarity to a northeastern Pennsylvania judge ordered to spend nearly three decades in prison for his role in a massive juvenile justice bribery scandal that prompted the state's high court to toss thousands of convictions. The judge
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remained DEFIANT after the jury verdict, INSISTING the payments were legal and denying he incarcerated youths for money. Just as the Pennsylvania jury had no problem seeing the bias, a Congressional petition1 similarly shows that ordinary people across the country have no difficulty seeing the appearance of bias of judges receiving county payments under SBX2 11. These are the facts of the case that must be heard by jurors, not decided by a California judge. The demurrer submitted for Elia Weinbach is based on (AA-338) four erroneous points as follows: 1. Judicial Benefits are not a disqualifying event 2. Defendants have “absolute immunity” 3. Defendants have judicial immunity from any suits 4. Applicability of the Government Claims Act Establishing the interested party status and the valid interests of Los Angeles County (AA-118 to AA-119) and its partner the Child Support Services Department in
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the presence of the county payments addresses and refutes point one (AA-122 to AA124). The inclusion of immunity in Section 5 of SBX2 11 (AA-140) solidly refutes points two and three. Accepting the County Payments (or the similar payments from the Los Angeles Superior Court, as in Glenda Veasey’s case) is an individual act outside the scope of official duties and thus renders the Government Claims Act, California Government Code Section 821.6, 821.8 and 6103, inappropriate, refuting point four. 1. DEFENDANT CHANGES LAWSUIT. Defendant’s entire response is based upon asserting that Appellant’s claim is erroneously sued (AA-369) and thus defective. Defendant cites Tarmann v State Farm Mutual Insurance Company (1991) 2 Ca.App4th 153, 156 to assert (AA-337:16-21) that
                                                                                                                       
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See http://www.petition2congress.com/5524/repeal-sbx211-give-courts-back-to-people/ where over 900 people signed a petition to repeal SBX2 11.
 

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Plaintiff makes “unwarranted contentions, deductions or conclusions of law or fact.” (Defendant also claimed that the damages were vague but Judge O’Brien overruled (AA67) the Defendant’s statements that Plaintiff’s material facts were “vague and/or ambiguous, or uncertain” per CCP 430.10(e) and (g).) This appeal is precisely about whether Appellant’s “contentions, deductions or conclusions of law or fact” are warranted. Appellant’s conclusion is supported by the similar conclusions of the AG and Sturgeon I. Appellant’s conclusion about SBX2 11 is supported by the CJP and the absence of a constitutional certification by the AG or Supreme Court of California. If Appellant’s conclusion is correct, all Defendant’s references to the California Government Claims Act and other Government Codes providing immunity are irrelevant. If Appellant’s conclusion that SBX2 11 is unconstitutional, and the county payments are unconstitutional, then Judge O’Brien’s judgment on the
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Demurrer must be overturned. Elia Weinbach must be properly sued as an individual. Plaintiff filed case SC113064 against Elia Weinbach as an individual. Kevin M. McCormick and the firm of Benton, Orr, Duval and Buckingham (BODB) claimed the case was erroneously sued and served. For other cases, for example, Glenda Veasey, the statement is omitted and instead the judicial title is used. Plaintiff correctly filed the civil suits against individuals outside of their official capacities. Taking payments personally from any party other than their employer is outside the scope of all official judicial actions.

 

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Court Counsel is desperate is to protect judges from the bribes they took as individuals. Court Counsel intimidated my process server, Mr. Ettlin, and, early on, apparently instructed court personnel to prevent the service of court documents to the individuals at their place of work by directing process servers to his office. Mr. Ettlin felt so intimidated he even sought a restraining order against Court Counsel (AA-403) and this further prompted the motion for a Change of Venue (AA-374). These cases are against individuals, tailored to the actions taken and specific biases shown by each defendant. They are not a class action, they are not against public officials as used in Government Code section 6103; they are against the actions, biases and misdeeds of individuals because of the payments they took. Plaintiff demands to know who authorized the services of BODB for the Demurrers in these cases. Any work by or documents presented by Kevin McCormick and BODB are, at this time, a misuse of public funds. The civil suits are being filed against the judges for actions and omissions they
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took as individuals. The individuals accepted the monies made available to them by or through the County of Los Angeles. The damages (AA-102 to AA-112) are associated with the “favors” to Los Angeles County shown by the defendant’s subsequent actions as bribed individuals unqualified to be bench officers who failed to disqualify themselves. Those biases/ favors were perpetrated as individuals who attempted to not disclose such payments to litigants and cover up their “fraud on the court”. Plaintiff requested (AA-367:17) to see written evidence that Superior Court of California supervisors of bench officers, acting in their official supervisorial capacity are promulgating Superior Court of California command media or specifically directing the bench officers to accept monies offered by Los Angeles County as part of their employment contract with the State of California. No such evidence of management direction has been provided and therefore Plaintiff must again assume that it was individual actions to accept and cash the checks offered by L.A. County. Those

 

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individual actions are the basis of the civil suits against individuals. Consequently, Plaintiff demands to see a signed private agreement between the individual Defendants for representation by BODB. Plaintiff also demands that filing fees be paid, as they are not exempt under Government Code section 6103. The discussion of whether the individuals are acting in their official judicial capacities or as individuals can be settled by identifying the precedents for judicial officers to take money from parties that are frequently before the court. If defendant can produce such case law, Plaintiff will gladly review it. The judiciary-drafted SBX2 11 decided that the affected individuals needed and were to be given retroactive criminal immunity for making or taking judicial payments. While judicial officers already had broad immunity for the conduct of their normal judicial duties, the briberous appearance and the unconstitutional nature of the county payments necessitated the attempted special immunity described in SBX2 11. (This is just one part of the HUGE consequences envisioned by the legislative analyst (AA-328).)
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That immunity is itself unconstitutional as are the current payments illegal and that is exactly why the Commission on Judicial Performance (CJP) has asked the Attorney General for a determination (AA-295). Court Counsel‘s actions as a state employee to usurp the Courts authority to determine if these complaints are properly sued against an individual, as stated on the summons and on the complaint, and to volunteer state legal services to these individuals may also be illegal and possibly obstructions of justice. Information from the County Auditor’s office for Brett Bianco indicates he himself gets a bonus, a 23% bonus for 2010, from these same “judicial benefits” (AA-402). Thus, he has a personal individual interest and bias in preserving and protecting the status quo for “judicial benefits”. Furthermore, by asserting an error on Plaintiff’s part, he is using State legal resources to protect his own unconstitutional payments and the unconstitutional payments to individuals who just happen to be judges.

 

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The Court Counsel, with his personal and individual interest in protecting the practice of county-paid judicial benefits, works in concert with the Los Angeles County Office of the County Counsel to obscure the simple truth that unconstitutional payments were paid to individuals who protect the interests of Los Angeles County and illegally hide behind the veneer of organizational authority. The Litigation manager provides quarterly risk management reports to the supervisors on the projected costs to the county from on-going litigation and is responsible for working with the Superior Court and the District Attorney to reduce risk and protect the county’s interests. This report is confidential, protecting planning discussions from being exposed to the public. The 20072008 public report signed by the Litigation Cost Manager begins at page AA-142. The Commission on Judicial Performance is now finally investigating the Superior Court payments with the linkage to county payments. Plaintiff continues to believe and must assume the POS-010 form for individual service is the proper form and process for serving these individuals and is in compliance
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with California Code of Civil procedure Section 415.10 or 415.20. For a court bench officer, the court executive officer should be served (per page 32 [AA-413] of the Action Guide, Handling Claims Against Government Entities, November 2010). Plaintiff is not aware that Court Counsel is simultaneously the court executive officer and therefore his intercepting the court documents intended for individuals at their place of work has denied proper service to those individuals. Elia Weinbach cashed the L.A. County payment as an individual. No supervisor, acting in an official role, directed him to accept the monies. It was not part of his state employee compensation package. He acted as a private citizen not in a judicial capacity when he used those monies for personal gain. Plaintiff’s complaint is properly sued against the individual Elia Weinbach.

 

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2. THE COMPLAINT IS NOT DEFECTIVE The demurrer is based on Defendant’s changes to Plaintiff’s complaint and raises a straw man that does not represent Plaintiff’s position and then provides totally irrelevant citations and arguments that the judges were acting in an official capacity when they accepted Los Angeles County payments. Just as the Pennsylvanian judge denied any wrongdoing even after his conviction by a jury for bribery, Court Counsel and the Los Angeles judges can’t fathom their own law-breaking. Plaintiff demands a jury trial because judges judging judges has not put this subject to rest. The Fourth Appellate Court deferred to the civil cases like this and the juries of taxpayers to bring about the constitutional changes needed to restore due process and remove bias from the courts. B. SBX2 11 IS UNCONSITITUTIONAL It is true that the courts have ruled SBX2 11 to be temporarily (AA-362:6) and
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narrowly constitutional. The Sturgeon II decision was decided on only three very narrow grounds. The relevant portion states: “On remand Sturgeon asserted the legislation was invalid on three grounds. He argued the legislation was outside the scope of the Governor's proclamation calling the special session, did not adequately prescribe benefits judges are to be provided, and in any event violated equal protection principles by continuing a statewide system of unequal judicial benefits. The trial court rejected these contentions and granted the county's motion for summary judgment. The legislation Sturgeon challenges, as enacted, implemented an interim response to the constitutional issues we addressed in Sturgeon I. As we shall explain, the legislation fell within the scope of the Governor's proclamation, adequately prescribed the benefits that must be provided to judges and did not intrude upon any judge's right to equal protection of the laws. Accordingly, we affirm.” The Court acknowledged that the this preserved the status quo ante Sturgeon I but then the very same court encouraged this civil challenge (AA-362:15). Plaintiff is simply following the direction of the court, asserting his rights and defending the Constitution.

 

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For the sake of defending the Constitution, Plaintiff will endure being called a “disgruntled litigant” (AA-336:10). 1. FIRST CITIZEN CHALLENGE STURGEON I Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (2008) Rev. denied 12/23/08, (Sturgeon I ) held that the L.A. County payments to L.A. Superior Court judges violated Article VI, Section 19 of the California Constitution because the 1997 Lockyer-Isenberg Trial Court Funding Act, while it DID authorize judicial benefits, it did NOT set any standards for exercising the delegated authority and THUS the authorization under Lockyer-Isenberg of “judicial benefits” payments by counties to Superior Court judges was an unconstitutional delegation of power. 2. HASTY RESPONSE IN SENATE BILL SBX2 11 After the Sturgeon I decision, the State legislature, without hearings, passed
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and the Governor signed Senate Bill SBX2 11, which became effective 5/21/09. The judiciary and the legislature tried to do in two months what they failed to do in 30 years. It is no surprise that SBX2 11 is also unconstitutional. Senate Bill SBX2 11 (AA-138) attempted to give retroactive immunity such that no “governmental entity, shall incur any liability or be subject to prosecution or disciplinary action because of benefits provided to a judge under the official action of a governmental entity prior to the effective date of this act on the ground that those benefits were not authorized under law.” With that one line the Judicial Council attempted to replace all the State and Federal Authorities protecting judges. While SBX2 11 attempted to give immunity for receiving the money which was unconstitutional, Senate bill SBX2 11, Section 5, did not, however, give retroactive immunity to judges or “temporary judges” who had received the county payments and did not disclose such and presided over cases in which the county had

 

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an interest. It did not give immunity for being disqualified as a judge in the past, present or future. The Los Angeles County interest in the Plaintiff’s family law case is the critical point avoided by Court Counsel and Kevin McCormick. Plaintiff’s claims are firmly based on, and supported by evidence on, the Title IV-D monies received by Los Angeles County and the “partnership” of the Superior Court with the Title IV-D agencies. Judge O’Brien’s judgment acknowledged the allegations were clearly stated and he overruled the demurrer on the ground that the complaint is vague, ambiguous and uncertain (AA-67, line 7). Senate bill SBX2 11 acknowledged both the criminality of the payment of judicial benefits by the counties to the judges and also the loss of immunity protections under current state and federal laws by attempting to give all parties to the payments limited retroactive immunity. The immunity in SBX2 11, Section 5, effective 5/21/09, was not made part of California government codes. Most importantly, the attempted immunity is itself unconstitutional under the California
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Constitution, ARTICLE 1, SECTION 9 which states “A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.” Furthermore, the legislation conflicts with the California’s constitutional responsibilities of the Commission on Judicial Performance (CJP). The extensive CJP analysis (beginning AA-292) and arguments show the legislature’s attempt to usurp constitutional powers and requests an opinion from the California Attorney General on the constitutionality of SBX2 11. The California Judges Association attempted to refute the CJP analysis by recycling the arguments in Memorandum 95-77 (AA-324). 3. SECOND CITIZEN CHALLENGE STURGEON II The Fourth Appellate Court’s decision in Sturgeon v. County of Los Angeles, __Cal App.4th___(4th Dist.,Div. 1) (2010), the so-called “Sturgeon II” concluded on page 14:

 

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“As the parties have recognized, SBX2 11 both preserved the status quo ante Sturgeon I and commenced a process by which the Legislature looks to adoption of a comprehensive judicial compensation scheme. As we have explained, this response to Sturgeon I meets the requirements of the Constitution and is wholly sensible under the circumstances. The Legislature is uniquely competent to deal with the complex policy problem of establishing a judicial compensation scheme which both assures recruitment and retention of fully qualified judicial officers throughout the state while at the same time providing equity between judges in different parts of the state. By the same token our role in ensuring that the more general requirements of the Constitution have been met is, under our system of separate governmental powers, quite limited.” (emphasis added) But if SBX2 11 meets the requirements of the constitution as stated by the court, why would the Court then encourage taxpayers to challenge it? The Appellate Court makes it clear that their statement of constitutionality only applies to the three
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narrow issues raised by Sturgeon. They also feel “quite limited” in ensuring the Constitution is fully met and are not willing to fully address this issue. The Sturgeon case and SBX2 11 only address the payment of county judicial benefits. Other citizen civil actions undertaken and encouraged by Sturgeon II address the issue of bias (AA88), the non-disclosure of the payments, and the resulting fraud on the court (AA-94) that Sturgeon does not address. Since Sturgeon I and Sturgeon II both affirm that judicial payments are not a county responsibility, since the county is allowed (with conditions under SBX2 11) to terminate or reduce all payments and since the county is clearly an interested party in a large number of cases; therefore the continued payments must be in the county’s interests. Those county interests are the Title-IV-D incentives and huge reimbursements as well as the penalty assessments on traffic tickets. Those county

 

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interests are described further below and are the basis now for judicial recusal and void orders in this case. SBX2 11 deemed prior payments as criminal and in need of criminal immunity. The bill granted immunity for monies paid and received prior to July 2009. This attempted ex post facto immunity is unconstitutional and furthermore did not and could not restore Plaintiff’s Constitutional guarantees of due process and equal protection lost during the proceedings of Plaintiff’s family law case. Senate bill SBX2 11 did not even attempt to give immunity for the biases inherent in the nature of a bribe. Judge Weinbach, likewise, did not disclose the county payments and then presided over a case in which the L.A. County Child Support Services Department is a very interested party as it “establishes financial ...support obligations for children, enforces existing spousal support orders... as required under federal and state law” and is a “collaborative partner” with the Superior Court (AA-123, first para.).
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But the disturbing portion of the decision is the final paragraph of the decision, which contradicts the above opening statement by stating that SBX2 11 is not a permanent response to the constitutional issues. How can a law be temporarily constitutional? It either is or is not constitutional. Again, the Fourth Appellate Court, acknowledges the contradiction and encourages these taxpayer challenges by stating: “However, on its face SBX 211 is not a permanent response to either the constitutional issues we identified in Sturgeon I or the difficult problem of adopting a compensation scheme that deals with varying economic circumstances in an equitable and efficient manner. Thus, we would be remiss in discharging our duties if we did not state that while the Legislature's interim response to Sturgeon I defeats the particular challenges asserted by Sturgeon in this litigation, that interim remedy, if not supplanted by the more comprehensive response SBX2 11 plainly contemplates, most likely will give rise to further challenges by taxpayers or members of the bench themselves. As we noted at the outset, the issue of judicial compensation is a state, not a county, responsibility. We are confident that the Legislature within a reasonable period of time will act to adopt a uniform statewide system of judicial compensation.”
 

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C. TAXPAYER CHALLENGES On March 16, 2011 the California Supreme Court denied a review of Sturgeon II. Since early 2011 several actions have been taken to void the decisions and judgments of judges receiving unconstitutional payments. On June 16, 2011, case number YC064994 became the first direct taxpayer civil suit challenge was filed in Los Angeles County. On June 17, 2011, SC113377 against Elia Weinbach became the second case. Since then, seven other civil suits have been filed in Los Angeles County and consolidated with case YC064994. One additional case was filed in San Diego County. Defendant succeeded in transferring that case to Los Angeles County. In June and July of 2011 all 36 judges in the Torrance and Santa Monica (AA154) Courthouses recused themselves from presiding over these nine cases regarding judicial payments and sent the cases downtown to the Central District. The Central District assigned the cases to Judge Robert O’Brien.
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Judge Robert O’Brien refused to recuse himself (AA-230 to AA-233) and the Second Appellate Court denied a Writ of Mandate (AA-236) and upheld his refusal on August 25, 2011. On September 26, 2011, before any decisions on the demurrers or motions to strike, and prior to an already scheduled October 3, 2011 hearing date, Plaintiff responded to the failure to recuse with a Motion For A Change Of Venue (AA-373). The court and defendant complained so loudly on October 3 about the lack of notice that Plaintiff refiled the change of venue motion on October 6, 2011 to ensure a hearing on the real merits of a venue change. On November 15, 2011, that refiled motion was denied. No Extraordinary Writ was filed with the Second Appellate Court due to cost. The successes in the 20-month old taxpayer challenge campaign start with the case in San Diego County and are now spreading to Los Angeles County.

 

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On September 29, 2011 Judge Richard E. L. Strauss in San Diego Superior Court ordered Thomas Trent Lewis to pay court fees, in his San Diego civil rights case, 37-2011-00093476-CU-CR-CTL. Judge Straus treated LEWIS as an individual, without judicial immunity. Both the Plaintiff, LOCATELLI, and the Defendant in that case, LEWIS, presented oral and written arguments at the September 23, 2011 hearing and the court upheld the key civil rights claim of LOCATELLI. LEWIS later requested clarification from the court but then paid the fees before a ruling. LEWIS’s payment acknowledged the Court’s order on his loss of judicial immunity! The decision denied LEWIS’s claim that the case was “erroneously sued” against the individual Trent Lewis, denied Defendant’s claims of judicial immunity and legally recognized LEWIS as an “individual”, subject to prosecution for bribery. In Los Angeles County, Carolyn B. Kuhl, a supervising judge in Los Angeles Superior Court recused herself on 11/21/2011, without explanation, from the simple
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action of assigning case BC472585 to a trial judge. Carolyn Kuhl, an individual, is a defendant in a civil case seeking civil rights damages due to the unconstitutional payments. She, as well as her husband, received the same judicial payments at the heart of this matter. Los Angeles case BC472585 is the San Diego case 37-2011-00093476-CUCR-CTL transferred to Los Angeles County on Judge Strauss’ order. Judge Strauss said, “Let L.A. handle it” but failed to appreciate the scope of the denial of due process when counties, themselves not sovereign and with their own interests before the courts, make direct payments to all bench officers in their county.

 

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D. CJP CHALLENGES SBX2 11 The analyses of SBX2 11 by the Commission on Judicial Performance (CJP) have determined that SBX2 11 is unconstitutional. Only the California Supreme Court can adjudicate the CJP concerns2. It is not known if the CJP has yet requested a decision by the California Supreme Court. The CJP has requested an updated opinion from the Attorney General (AA-293). According to the CJP, the SBX2 11 Section 2 is unconstitutionally vague about the “same terms and conditions as were in effect on that date.” The terms and conditions are not defined anywhere and thus are arbitrary (and unconstitutional). Likewise, Plaintiff additionally asserts they were one-year payments and thus terminated on June 30, 2009. Section 2 only identifies judges as recipients. No authority is provided for the Superior Court to continue to use state court-operating funds to pay Court Counsel or Commissioners (AA-295, last sentence).
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The SBX2 11 Section 4 is unconstitutional because the Judicial Council is now paying judicial benefits to commissioners, Court Counsel and others. (The payments in SBX2 11 Section 2 made by L.A. County to Commissioners are called “warrants” by the L.A. County Auditor because they are issued by L.A. County but funded by the Judicial Council.) The continued payments by the counties under Section 2 now makes these Judicial Council payments a continued obligation, which is prohibited by Section 4. The opinions of the CJP are that these payments are unconstitutional. The CJP has requested the Attorney General’s opinion in this matter. The SBX2 11 Section 5 immunity is unconstitutional, has not been challenged in the Appellate Court and preserved the status quo ante Sturgeon I. The attempted
                                                                                                                       
2

Cal. Constitution Article 6, Section 18 (d); in relevant part, “Upon petition by the judge or former judge, the Supreme Court may, in its discretion, grant review of a determination by the commission”

 

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immunity is unconstitutional under California Constitution, ARTICLE 1, SECTION 9, which states “A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.” Furthermore, SBX2 11 Section 5 legislation conflicts with the constitutional responsibilities of the Commission on Judicial Performance (CJP) (AA-296:Issues Presented #1.). The extensive CJP analysis and arguments shows the legislature’s attempt to usurp constitutional powers and requests an opinion from the California Attorney General on the constitutionality of SBX2 11. E. CURRENT ATTORNEY GENERAL STALLS OPINION ON SBX2 11 The CJP analyses have determined SBX2 11 to be unconstitutional. Their analysis is that the SBX2 11 Section 5 retroactive immunity takes away the constitutional authority of the CJP to oversee discipline of the judges. The CJP is also concerned SBX2 11 Section 4 allows state employees to give compensation raises to the judges, bypassing the legislature’s Article VI section 19 responsibility to set
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judicial compensation. Section 2 forces the Superior Court to match any increases by the County. On April 3, 2009 (AA-304), the CJP requested an opinion from then-Attorney General Brown. He did not respond. On May 23, 2011 the CJP again requested an opinion (AA-295) from the California Attorney General (AG). AG Kamala Harris is also delaying and effectively refusing to honor the CJP request. A request for clarification was answered by the CJP on June, 22, 2011 (AA-293). The current delay is under the guise of not interfering with ongoing litigation, i.e. the Ringgold case (2:11-CV-01725-R-PLA) currently before the 9th Circuit. Kamala Harris’s claim in the Ringgold case is that the public release of the CJP analyses does not qualify as “newly discovered evidence”. This claim also appears to be a self-serving and conscious attempt by the AG to provide her own retroactive immunity to all Judges who have taken the unconstitutional payments.

 

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No doubt the California AG is aware of previous AG rulings and does not wish to alienate the California Judges. In 1956, the Attorney General issued an opinion3 concluding that superior and municipal court judges and certain personnel of the superior courts were not county employees and were thus ineligible for county-sponsored health insurance. (27 Ops.Cal.Atty.Gen. 338 (1956).) In 1976, the Attorney General issued another opinion, specifically stating that the version of Government Code section 53200.3 then in effect was unconstitutional, insofar as it ran afoul of the provision in California Constitution, article VI, section 19, which states that "[t]he Legislature shall prescribe compensation for judges of courts of record...." Citing the 1967 Judicial Council Report to the Governor and the Legislature on this provision and the opinion in County of Madera v. Superior Court, supra, 39 Cal. App.3d at page 670, the Attorney General stated: "Because of the use of `prescribe' the Legislature cannot delegate the authority granted to it by Article VI, section 19 of the Constitution. Any attempt to make such a
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delegation would be constitutionally invalid." (59 Ops.Cal.Atty.Gen. 496, 497 (1976).) The opinion concluded that "that section [Gov. Code, § 53200.3] is an unconstitutional attempt on the part of the Legislature to delegate a nondelegable duty." (Id., at p. 501.) [ 222 Cal.App.3d 1145] Subsequently, the statute was amended by the Legislature to its present form, in an attempt to meet the concerns of the Attorney General. (Stats. 1977, ch. 106, § 1, pp. 537-538.) In 1978, the Attorney General issued another opinion on the statute, stating that the Legislature had again failed to remove those deficiencies in the

                                                                                                                       
3

Documented in County Of Sonoma v. Workers' Comp. Appeals Bd., 222 Cal.App.3d 1133 (1990) Court of Appeals of California, First District, Division Three. August 14, 1990. see http://www.leagle.com/xmlResult.aspx?page=5&xmldoc=19901355222CalApp3d1133_1 1282.xml&docbase=CSLWAR2-1986-2006&SizeDisp=7
 

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original section that had rendered it unconstitutional. (61 Ops.Cal.Atty.Gen. 388, 390 (1978). In 1988 the County of Los Angeles, Office of the County Counsel, advised Frank Zolin, County Clerk/Executive Officer of the Superior Court that it would be permissible for the county to pay “additional benefits for judges”, although they acknowledged the Attorney General “did not agree” (AA-318, 2nd para., 4th line). In about 1988-1989 Los Angeles County, the Superior Court of Los Angeles County and the CJP all ignored 30 years of Attorney General rulings and began making payments to Judges. Page AA-285 shows the request to the L.A. County Auditor for all payments to Judge O’Brien during the 1980s. The table following on AA-286 shows payments began in 1989 with professional development allowances added in 1991. In 1995, the California Law Revision Commission4, reviewing a precursor to the Lockyer-Isenberg Trial Court Funding Act, acknowledged the judicial benefits
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were probably illegal and the negative consequences were HUGE (AA-328, first line) but then suggested it was unlikely that anyone would object! i.e. “a case can be made that this will not occur” (AA-327 Conclusion, last line) No one had objected to the 1989 payments by Los Angeles County. Fortunately, Sturgeon did object. Other citizens are now objecting. Just as the legislature failed in 1977 to pass constitutional legislation, so they failed again in 1997 (Lockyer-Isenberg) and again a third time in 2010 (SBX2 11). Throughout this lengthy period, the judges continued to collect their supplemental county benefits and deny litigants due process. Not only is the California AG delaying any decision, but now the CJP is misleading the citizens about CJP activities. On May 24, 2011 a letter from the CJP to Mr. Ettlin states no “further action” will be taken with respect to his complaint.
                                                                                                                       
4

Trial Court Unification: Delegation of Legislative Authority; California Law Revision Commission Staff Memorandum; Memorandum 95-77, Study J-1201; November 27, 1995 (AA-276)
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However, on May 18, 2011, the CJP did indeed take major action with respect to this issue (the letter to the AG). The CJP just chose to conceal that information from Mr. Ettlin. In September 2011, “PERSONAL AND CONFIDENTIAL” documents supplied under the Freedom of Information Act show the CJP documents were “Hand Delivered” to Attorney General Edmond G. Brown, Jr. (letter starting AA-304) and to Attorney General Kamala Harris (letter starting AA-295). In those documents the CJP determined that SBX2 11 is unconstitutional and requested an opinion confirming that conclusion from Attorney General Kamala Harris. The CJP and the AG appear to be consciously providing retroactive immunity to all Judges who have taken the unconstitutional payments. This Court must order a review of the Constitutional issues by the California Supreme Court. IV.
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STATEMENT OF APPEALABILITY Los Angeles County Superior Court Judge O’Brien’s order is appealable as an

order or judgment under Code of Civil Procedure §904.1(a)(1). Furthermore, Judge O’Brien received the same payments from 1989-1999 and thus had no personal jurisdiction. Judge O’Brien’s judgment is also appealable because it is a void order. See U.S. v. Throckmorton 98 U.S. 61 (1878). An appeal may be taken from a void judgment because the judgment constitutes an order giving effect to a void judgment and thus is itself void and appealable. [Carr v. Kamins (2007) 151 CA4th 929, 933-934, 60 CR3d 196, 199; Carlson v. Eassa (1997) 54 CA4th 684,691, 62 CR2d 884, 888; Residents for Adequate Water v. Redwood Valley County Water Dist. (1995) 34 CA4th 1801, 1805, 41 CR2d 123, 125]

 

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V. LEGAL ARGUMENTS TO REVERSE JUDGMENT The judgment is void and should be overturned because “supplemental judicial benefits” violate California’s Constitution and are illegal under Federal law. The facts in Section III. B. above clearly show that SBX2 11 is unconstitutional and Judges have no immunity from taking county benefits. The judges are guilty of Misprision of Felony for not reporting the violations of Federal Law, guilty of violating the Code of Judicial Ethics for not reporting such offers of payment by interested parties, and guilty of denying Due Process by not disclosing the payments to litigants in cases involving Los Angeles County. The Constitutional issues must be resolved before the bias damages in this case can be resolved. The legislature and the Courts have dared citizens to object and to challenge the constitutionality of the legislature’s laws. This appeal is part of that Courtdirected challenge.
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Judge Robert O’Brien received payments from Los Angeles County, should have recused himself and should have reported the unconstitutional and illegal payments to the supervising judge of the court. His ruling on the law is invalid and his orders and judgments are void. This Court must rule on the Constitutional issues involved and then reverse and void Judge O’Brien’s orders. A. SBX2 11 VIOLATES FEDERAL EQUAL PAY ACT OF 1963 The failure of the Legislature to properly “prescribe” judicial compensation is a violation of the Equal Pay Act Of 1963 (29 U.S.C. § 206). § 206 (d) Prohibition of sex discrimination (1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite
 

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sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, ………. The objective result is that the state of California allows its Judges in 23 counties who are female to make less than male Judges in Los Angeles County. The objective result is that the California Legislature allows its 58 county Superior Courts to make unequal payments to male and female bench officers. The current system allows direct payments by counties or by the Superior Courts. Both mechanisms are used in Los Angeles County to maintain local parity between Judges and Commissioners. To provide the “appearance” of uniform county payments, L.A. County issues checks to all bench officers in the county but those to Superior Court Commissioners are called “warrants” by the L.A. County Auditor because they are issued by L.A. County but funded by monies from a Superior Court account instead of the Los Angeles County Trial Court Operations account. Thus, Los
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Angeles Superior Court Commissioners receive two payments from State funds while Humboldt County Commissioners only receive one payment. The “unequal pay” in California creates further distortions across different employers of judicial bench officers. Male Commissioners in Los Angeles County Superior Court receive approximately $236,000 ($178,000 authorized by the Legislature plus $58,000 authorized by the L.A. County Superior Court) while female judges on the Federal bench (presumably requiring equal or greater “skill, effort, and responsibility”) receive only $174,000. Male Commissioners in Los Angeles make more than the Supreme Court Associate Justices and even more than Chief Justice Roberts’s $223,000. While pay levels at the state-level are understandably difficult to increase and the Los Angeles Judges and Commissioners may indeed deserve their compensation, the supplemental benefits implementation by the counties is both unconstitutional and, within California, a violation of Federal law.
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B. JUSTICES, WEINBACH AND O’BRIEN LACK PERSONAL JURISDICTION Both Fourth Appellate Court decisions in Sturgeon v. County of Los Angeles on the issue of supplemental judicial benefits by counties are marred by lack of personal jurisdiction. All three Justices who decided both the Sturgeon I and II cases also lacked personal jurisdiction since they had themselves (as well as their friends and colleagues) received the very supplemental payments in question. While the mechanism for receiving the supplemental payments is different between San Diego and Los Angeles, the CJP has called into question the constitutionality and even the legality of the Superior Court payments as well as the County payments. (The three Justices received their benefits from the Superior Court of San Diego rather than directly from the County, as in Los Angeles.) Judge Weinbach lacked jurisdiction to rule in the underlying family law case. Judge O’Brien received payments from 1989-1999 and thus he lacks jurisdiction in
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this case. The Sturgeon Justices of the California Fourth Appellate Court all three received past supplemental judicial payments. Thus, they also lacked jurisdiction to rule on matters related to those payments or this case. C. WEINBACH AND O’BRIEN VIOLATED JUDICIAL ETHICS California Code of Judicial Ethics Canon 4D(1) prohibits a judge from engaging in any financial and business dealings that involve the judge in frequent transactions or continuing business relations with lawyers or other persons likely to appear before the judge or before the court in which the judge serves. Canon 3E(2) requires the judge to disclose on the record information that is reasonably relevant to the question of disqualification under Code of Civil Procedure (CCP) Section 170.1, even if the judge believes there is no actual basis for disqualification.

 

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Canon 3E(1) requires a judge to disqualify himself or herself in any proceeding in which disqualification is required by law. CCP Section 170.1(a)(6)(A)(iii) states “A judge shall be disqualified if any one or more of the following is true: .... A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial”. Judge Weinbach violated Canon 4D(1) by taking payments from L.A. County, violated Canon 3E(2) by not disclosing such payments on the record, and violated Canon 3E(1) and CCP Section 170.1(a)(6)(A)(iii) by not disqualifying herself. Judge Weinbach’s actions of taking the payments, not disclosing such and the resulting “fraud on the court” have denied Plaintiff due process by denying him the right to an impartial tribunal. In Re Murchison, 349 U.S. 133, 136 (1955). Judge O’Brien’s actions of taking the payments, not disclosing such and the resulting “fraud on the court” have also denied Plaintiff due process by denying him the right to an impartial tribunal. In Re Murchison, 349 U.S. 133, 136 (1955).
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The Fourth Appellate Court’s Justices who decided the Sturgeon cases should have recused themselves under CCP Section 170.1(a)(6)(A)(iii). Their orders are void in this matter. D. FRAUD ON THE COURT BY JUDGES WEINBACH AND O’BRIEN Judge Weinbach’s past acceptance of Los Angeles County judicial payments and his sitting on a case in which the county was an interested party voids his orders. Failure to disclose those payments constitutes fraud on the court. Senate Bill SBX2 11 gave retroactive immunity because of benefits provided to a judge under the official action of a governmental entity. Senate bill SBX2 11 did not give present or retroactive immunity to judges who had received the county payments, did not disclose such and then presided over cases in which the court had an interest.

 

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In U.S. v. Throckmorton, 98 U.S. 61 (1878), the U.S. Supreme Court stated at page 66: “Fraud vitiates everything, and a judgment equally with a contract” (citing Wells, Res Adjudicata, Section 499) Extrinsic fraud is a broad concept that “tends to encompass almost any set of circumstances which deprive a party of a fair adversary hearing”. Estate of Sanders v. Sutton 40 Cal.3d 607 (1985). The U.S. Supreme Court further emphasized in Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348 (1920), at 353-354 that no court could validate a void judgment. “Courts are constituted by authority and they cannot act beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal.” (Citations omitted) (Emphasis added) Also, see Elliott v. Lessee of Piersol, 26 U. S. (1 Pet.) 328, 340 (1828): Old Wayne
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Mut. Life Ass’n v. McDonough, 204 U.S. 8, 27 Sup.Ct. 236” Since “fraud on the court” vitiates the entire case, all orders from that court or any subsequent court are void as none of the courts had subject matter jurisdiction. No court has the lawful authority to validate a void order; a void order is void at all times, cannot be made valid by any judge, nor does it gain validity by the passage of time. The order is void ab initio. The 9th Circuit has stated in the case of Austin v. Smith, 312 F2nd. 337,343 (1962): “If the underlying judgment is void, the judgment based upon it is also void.” Judge Weinbach denied Plaintiff his constitutional right to due process. Since Judge Weinbach committed “fraud on the court”, his orders are void. Any order giving effect to that void judgment is itself void and appealable. [Carr v. Kamins (2007) 151 CA4th 929, 933-934, 60 CR3d 196, 199; Carlson v. Eassa (1997) 54 CA4th 684,691, 62

 

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CR2d 884, 888; Residents for Adequate Water v. Redwood Valley County Water Dist. (1995) 34 CA4th 1801, 1805, 41 CR2d 123, 125]. Judge O’Brien’s orders upholding Judge Weinbach’s orders are also void. Plaintiff no longer has confidence in the integrity of the Los Angeles Superior Court to address this issue. SBX2 11 provided immunity to all those governmental persons associated with the paying or receiving of judicial payments. SBX2 11 did not address “fraud on the court” because it did not address or acknowledge any of the biases bought by the payments for the counties. E. EXTRINSIC FRAUD BY WEINBACH AND O’BRIEN Judge Weinbach’s acceptance of the L.A. County payments and his sitting on a case in which L.A. County is an interested party voids all his orders and judgments. Judge O’Brien’s protection (Judge O’Brien also collected the judicial payments, from
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1989-1999) of Judge Weinbach’s failures to disclose the county payments to Plaintiff, also constitutes an extrinsic “fraud on the court”. All of Judge O’Brien’s (cases consolidated with YC064994) and Judge Weinbach’s (case SD026673) orders are and will be void. Extrinsic fraud is a basis for setting aside an earlier judgment. See U.S. v. Throckmorton 98 U.S. 61 (1878). Since “fraud on the court” vitiates the entire case, all orders from that court or any subsequent court are void as none of the courts had subject matter jurisdiction. No court has the lawful authority to validate a void order. See Vallely v. Northern Fire and Marine Co., 254 U.S. 348 (1920). A void order is void at all times, cannot be made valid by any judge, nor does it gain validity by the passage of time.

 

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The U.S. Supreme Court has stated in the case of Offutt v. United States, 348 U.S. 11, 14 (1954): “A judge receiving a bribe from an interested party over which he is presiding does not give the appearance of justice.” In essence, by making all L.A. Superior Court judges “eligible” for the L.A. County payments, L.A. County has “bought the L.A. Superior Court”. The U.S. Supreme Court stated in the case of Caperton v. A.T. Massey Coal Co., Inc., 566 U.S. ___ (2009) at Slip Opinion page 16 in relevant part: ...... just as no man is allowed to judge his own cause, similar fears of bias can arise when, without the consent of the other parties, a man chooses a judge in his own cause. By making the payments available to every L.A. Superior Court judge, no party in a divorce case received a fair trial, as the judge was biased to rule to benefit the L.A. County Child Support Services Department over the interests of the “parties” to the case.
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The taking of money by a judge who does not “throw the case” is still corrupt. Justice Posner of the 7th Circuit stated in his remarks relating to Sir Francis Bacon, that the judge who does not fulfill the “bargain” after he has taken the money is equally as corrupt as the judge who takes the money and fulfills the “bargain”. A review of judicial payments shows a clear pattern that L.A. County has “bought” the L.A. County Superior Court without the consent of the “other party” opposing them. “Appendix D” of the Judicial Council of California report titled, “Historical Analysis of Disparities in Judicial Benefits”, dated December 15, 2009 shows “X” in the column “Benefit available to All Judges”. Examples confirming Los Angeles County Auditor-Controller’s data on payments to individual judges are shown on pages AA-119, AA-286 and AA-402. The 2010-2011 L.A. County proposed budget Trial Court Operations section shows the aggregate payments on page AA-134, the first line of dollar numbers.

 

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Sturgeon I made county judicial benefit payments illegal. On December 23, 2008, over 1,400 California judges lost all judicial immunity for any case in which a county was remotely an interested party. Two months later, on February 20, 2009, the legislature hastily passed SBX2 11, and convicted all those 1400 judges by attempting to give them all an unconstitutional5 retroactive immunity (AA-140, last para. sec. 5). Sturgeon II declared the situation after SBX2 11 to be the same as before Sturgeon I (AA-362:4). Furthermore, the Court refused to prescribe a fix for the problem, proffered its trust in the legislature (AA-362:7) but encouraged real change through legal action by taxpayers and judges (AA-362:15). Thus, the Fourth Appellate District acknowledged, on December 28, 2010, the likelihood and even encouraged taxpayer actions, such as this one challenging the constitutionality of SBX2 11. The key to understanding the judicial branch’s unwillingness to fully address their responsibility is found in the Fourth Appellate Court’s acknowledgment during oral arguments on October 13, 2010 of the great turmoil6 among the judges over
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Sturgeon I. Following those oral arguments, and only one week before a decision on Sturgeon II, Chief Justice Ron George, a strong and long-time proponent of increased judicial salaries, reasserted his interest and assigned the Sturgeon II Presiding Judge Tricia Benke, on December 22, 2011 (AA-431, 3rd para.), as Acting Chief Justice of a new appointed California Supreme Court, on another high-profile case (AA-430). This collegial “plum” of an appointment had no purpose other than to influence the Sturgeon II decision-making process. On December 28, 2010 the Sturgeon II decision
                                                                                                                       
5

California Constitution, Article 1, Section 9 states “A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.” 6 Media coverage by Full Disclosure ® “The News Behind The News”, “Are Judicial Double Benefits Constitutional? Judges To Rule on Judges Benefits Round II”, Internet Exclusive Video News Blog, http://fulldisclosure.net/Blogs/92.php; Release Date: November 21, 2010  
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claimed the Justices had limited authority to enforce the California Constitution, refused to declare SBX2 11 unconstitutional, and dared the people of California to stand up for their due process rights. Now both the legislature in 1995 (AA-327, last line) and the judiciary in 2010 have dared (AA-362:15) the people to fight for their due process rights! F. SBX2 11 AMNESTY AND RETROACTIVE IMMUNITY In 1965, unlike current state and local leaders in California, the very idea of "retroactive immunity" was so radical, so repugnant to the most basic principles of the "rule of law," and so profoundly offensive that Sen. Robert Kennedy (who had been the Attorney General when the banks broke the law with their mergers), as well as then-Attorney General Nicholas Katzenbach, together engaged in extraordinary efforts to try to put a stop to the Congressional travesty, where Congress, in 1965, attempted to enact a law retroactively legalizing the mergers by six large banks, which
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clearly -- as a federal court found -- were illegal under our nation's antitrust laws. The banks knew at the time they were violating anti-trust laws, did it anyway; and when courts began ruling that their behavior was illegal, they ran to Congress for a law granting them amnesty, claiming that the consequences would be ruinous if they were held accountable under the law. Likewise, the California Fourth Appellate Court, in Sturgeon I, held the judicial payments were unconstitutional; the Administrative Office of the Courts knew the consequences were huge (AA-328:1) if they were held accountable under the law and they scared the legislature into passing, under the cover of darkness, the hasty and flawed SBX2 11 with retroactive immunity for all sitting judges. The California Fourth Appellate Court, in Sturgeon II, again held that judicial compensation was a state responsibility, that SBX2 11 was a temporary fix, refused to stop the county payments and instead deferred to, and encouraged, citizen actions to

 

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hasten legislative action. The Fourth Appellate Court was surely aware of the magnitude of the consequences of their decision and allowed the retroactive immunity to continue under SBX2 11. The CJP actions have spotlighted the California Attorney General’s complicity in the retroactive immunity and the amnesty to Judges and the 35 County Superior Courts. Pursuant to Rule 14.1 (e)(v) and pursuant to 28 U.S.C. 2403 (b), the California Attorney General has not certified the Constitutionality of SBX2 11. G. DENIAL OF DUE PROCESS Defendant’s action of taking the illegal payments in the past and failure to recuse herself, constitutes “fraud on the court”. This denied Petitioner due process by denying him the right to an impartial tribunal. In Re Murchison, 349 U.S. 133, 136 (1955). The L.A. County payments to L.A. Superior Court judges were held to violate
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Article VI, Section 19 of the California Constitution in the case of Sturgeon I and II. SBX2 11 did not change the California Constitution, did not make the judicial benefits a state obligation, and therefore continuing payments also violate the Constitution. The Sturgeon II decision acknowledged that SBX2 11 “preserved the status quo ante Sturgeon I” AA-134 to AA-137 show a copy of the L.A. County Fiscal Year 2010-2011 Proposed Budget Trial Court Operations pages 60.1 to 60.4. Such section shows that the “judicial benefits” are required to be paid under the 1997 Lockyer-Isenberg Trial Court Funding Act (AA-134). This is a false statement. Senate Bill SBX2 11 gave retroactive immunity because of benefits provided to a judge under the official action of a governmental entity. Senate bill SBX2 11 did not give immunity to a judge who did not disclose the county payments and then presided over a case in which the county had an interest or was a party. Neither Judge

 

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Weinbach nor Judge O’Brien disclosed their receipt of County benefits and both presided over cases in which the County had a substantial financial interest. The U.S. Supreme Court has stated in the case of Offutt v. United States, 348 U.S. 11, 14 (1954): “A judge receiving a bribe from an interested party over which he is presiding does not give the appearance of justice.” In essence, by making all L.A. Superior Court judges “eligible” for the L.A. County payments, L.A. County has “bought the L.A. Superior Court”. This type of action has been held to be a denial of due process by the U.S. Supreme Court, which stated in the case of Caperton v. A.T. Massey Coal Co., Inc., 566 U.S. ___ (2009) at Slip Opinion page 16 in relevant part: “........just as no man is allowed to judge his own cause, similar fears of bias can arise when, without the consent of the other parties, a man chooses a judge in his own cause.”
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H. MISPRISION OF FELONY ARISING FROM SBX2 11 APPLIES TO JUDGES, THE SUPERIOR COURT, THE ATTORNEY GENERAL AND THE DISTRICT ATTORNEY A jury could likely find that the failure to report and also the attempt to conceal the unconstitutionality of L.A. County payments are crimes under federal law which judges are sworn to uphold. “Misprision of felony” is still an offense under United States federal law after being codified in 1909 under 18 U.S.C. § 4: “Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.”

 

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I. SBX2 11 GIVES THE APPEARANCE OF A BRIBE BECAUSE LOS ANGELES COUNTY IS NOT A SOVEREIGN ENTITY Los Angeles County is not a sovereign entity; only the Federal Government and each of the 50 states are sovereign within the United States of America. (Plaintiff intends to use “sovereign” in its traditional sense.) It appears that the basic civic lesson on sovereignty is lost on not only the Los Angeles Superior court but also on the Los Angeles Federal District Court. Note the similarity of the reductio ad absurdum arguments by United States Magistrate Judge, Central District of California, Carla Woehrle, (case 2:09-cv-01914-JFW-CW Document 25-2 Filed 06/12/2009 Page 19 of 25), “On Petitioner’s logic, one might as well argue that all state judges should be precluded from hearing cases involving the states, and that all federal judges should be precluded from hearing cases involving the federal government.”
IN PRO PER

and Respondent’s Reply to Opposition to Demurrer (AA-217, line 27) “It bears repeating that by Cooper’s reasoning, in any California state court matter where the State of California itself is a party, any state court judicial officer would be automatically disqualified and must recuse themselves as the state legislature is responsible for setting and paying the judicial officer’s compensation. This would be an absurd result.” Plaintiff acknowledges that judicial compensation by sovereign entities is an accepted compromise by the sovereign when the sovereign entity is itself involved in a matter before the judiciary. This is a deeply considered compromise, not an “absurdum”. Payments by the sovereign are clearly preferable for judicial matters (the vast majority) applicable to non-sovereign lower-level organizational entities, such as county government. For this reason the integrity of the Courts and the strict adherence to the “rule of law” are all the more important when the interests of the People or the Sovereign are before the courts. For the District and Superior Courts to treat this sovereign compromise
 

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like a mere exercise in rhetorical reductio ad absurdum from Aristotle's Prior Analytics is to demean the law. Under Lockyer-Isenberg and even under SBX2 11, Los Angeles County’s actual payments to a judge are no different than payments (hypothetically) by Plaintiff. Both might be considered or appear as bribes. The test is what the court would do if Plaintiff offered a $58,000 payment to Judge Weinbach or to Judge O’Brien or even to members of this Court. Would Cooper have the same immunity asserted by and for Los Angeles County? J. LOS ANGELES COUNTY IS AN INTERESTED PARTY IN PLAINTIFF’S DIVORCE. PAYMENTS TO A JUDGE SHOULD BE ALLOWED BY BOTH PARTIES OR BY NEITHER PARTY. On AA-337 line 26 Respondent simply asserts that L.A. County is not a party but then totally ignores the material facts presented by Plaintiff (AA-123
IN PRO PER

“Collaborative Partners”, and AA-102 to AA-115)) The stated purpose of Los Angeles County payments is to “retain” judges in Los Angeles County. The favorable disposition related to job location choice reasonably and easily carries over to a general pre-disposition in favor of Los Angeles County, its supervisors and its law enforcement officials in matters where the county has an interest. The favorable disposition purchased by the Los Angeles County judicial payments to Judge O’Brien certainly extends to protecting a judicial colleague (Judge Weinbach) in this civil case as well as protecting the underlying stream of Title IV-D monies. Protecting Title IV-D also protects funding for other similar programs such as the very troubled Title IV-E Foster Care Program. The partnership of L.A. County with the Los Angeles Superior Court is clearly documented (in lead case YC064994) for all Family Law and Traffic Court cases. The

 

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L.A. County Payments, like any made (hypothetically) by Plaintiff could be considered “bribes” as they “influence” Judges. In family law cases, the incentive is to award unequal custody and thus by L.A. County Child Support Services Department (CSSD) guidelines establish the higher custody payments from noncustodial parents. The L.A. County Child Support Services Department “establishes financial .... support obligations for children... as required under federal and state law” and works as a “collaborative Partner” with the Superior Court. The payment of money by L.A. County to the judge who rules on the amount of child support (which taken in the aggregate) directly determines the expenses of the L.A. County Child Support Services Department. Those expenses then directly determine the amount of money that the L.A. County Child Support Services Department receives in Title IV-D federal and state funds. ($176 million received from Title IV-D compared to the small $3 million cost to L.A. County [see AA-125].) The annual $30 million cost of judicial benefits was cost effective for L.A. County at a ratio of 6:1 for
IN PRO PER

just that one single program. The higher the number and monetary amount of support orders against noncustodial parents, the higher the enforcement expenses of the L.A. County Child Support Services Department, and thus the higher the amount of Title IV-D federal and state funding to the county. L.A. County has a direct interest in the judge setting the greatest number and the highest monetary awards for child support orders. L.A. County is a “real party in interest” in every divorce case as it reaps a huge financial benefit. The payments by L.A. County to the judge in a divorce case have no purpose other than to influence the judge’s decision to create a non-custodial parent and a subsequent high child support order, which frequently require enforcement resources which are also federally funded.

 

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Respondents seem incapable of seeing the linkage between the county revenues (interests) generated in Traffic Court and Family Court. Respondents have never addressed the revenue issues of Traffic Court and Family Court. In fact, footnote 6 on page AA-338 demonstrates that Court Counsel as well as many judicial officers think that the Couny of Los Angeles is a sovereign entity. It is Respondents own understanding of our government that is “absurd and unworkable”. While Respondents are incapable of seeing the revenue biases and county interests in Plaintiffs suits, Court Counsel is itself actively engaged in seeking to disqualify one of its own, a different Los Angeles County Judge. Plaintiff understands that Court Counsel portrays Judge Amy Pellman as biased against the County Foster Care program and thus causes a loss of Title IV-F Foster Care revenues. Judge Amy Pellman receives the Los Angeles County payments but is not perceived to be keeping the “bargain”. Justice Posner of the 7th Circuit stated in his remarks relating to Sir Francis
IN PRO PER

Bacon, that the judge who does not fulfill the “bargain” after he has taken the money is equally as corrupt as the judge who takes the money and fulfills the “bargain”. K. CHANGE OF VENUE NEEDED FOR RESOLUTION OF CONSTITUTIONAL ISSUES The constitutionality of SBX2 11 (text shown at AA-139) is critical to each decision in this case. The Commission on Judicial Performance (CJP) request for the Attorney General to determine the constitutionality of SBX2 11 as well as the CJP’s own analyses showing SBX2 11 to be unconstitutional are shown starting at page AA292. The Attorney General rulings against trying to use county payments to increase judicial compensation span over 50 years. There is no AG ruling, post-SBX2 11, on the constitutionality of judicial benefits.

 

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The Zolin memo (AA-317) shows the County trying to justify payments by the Superior Court to Judges, Commissioners and other Court employees. The CJA also provided a short defense of the judicial benefits. Only if the judiciary has the courage to uphold and protect the California Constitution in all matters pertaining to the judiciary itself, can it retain its authority to rule upon or impose a solution on this or any other major issue confronting the voters and their legislators. If this case remains before Judges who have previously taken the county payments, it will immediately deny Petitioner his 1st, 5th and 14th Amendment rights, resulting in a travesty of justice and a waste of judicial resources. These underlying cases against judges bear striking similarity to a northeastern Pennsylvania judge ordered to spend nearly three decades in prison for his role in a massive juvenile justice bribery scandal that prompted the state's high court to toss thousands of convictions. The judge remained DEFIANT after the jury verdict,
IN PRO PER

INSISTING the payments were legal and denying he incarcerated youths for money. VI. REASONS FOR GRANTING THE PETITION Plaintiff requests this Court to strongly defend the California Constitution. Due to the unconstitutional nature of the county judicial payments, the unconstitutional retroactive immunity of SBX2 11 and the unconstitutional denial of due process rights, the people of California need their rights affirmed. The legislative fix, SBX2 11, fails to remedy the situation, violates the federal Equal Pay Act, and violates additional provisions of the California Constitution because it grants retroactive immunity and thus usurps the authority of the independent Commission on Judicial Performance. The California Attorney General has never certified the constitutionality of SBX2 11 pursuant to United States Supreme Court Rule 14.1 (e)(v) and pursuant to 28 U.S.C. 2403 (b).

 

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VII. CONCLUSION This Petition shows that good cause exists. The unconstitutional payments to the judges deny due process. An unbiased Court will find the balance of hardships tips sharply in Petitioner’s favor. Petitioner has a strong likelihood of prevailing on the merits and will suffer irreparable injury if the requested relief is not granted. Walczak v. EPL Prolong, Inc, 198 F.3d 825, 831 (9th Cir. 1999). The loss of a constitutional right, particularly a First Amendment right, is, in itself, sufficient injury to justify the requested relief. Associated Gen. Contractors of Cal., Inc. v. Coalition for Econ. Equal., 950 F.2d 1401, 1412 (9th Cir. 1991); Guiterrez v. Municipal Ct., 838 F2d 1031, 1045 (9th Cir. 1988), vacated as moot, 490 U.S. 1016. A review by this Court is in the public interest, as well, as “(t)he public has a fundamental interest in the protection of all people’s constitutional rights.” See Sammartano v. First Judicial Distict Ct., 303 F.3d 959,973 (9th Cir. 2002).
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For all of the above stated reasons, Petitioner respectfully urges the Court to grant appropriate relief as may be just and proper.

PRAYER
Appellant requests a detailed opinion by this Court on each of the constitutional questions identified below: • Affirm that Los Angeles County judicial payments to judges are made to individuals who are making personal and individual choices to live and work in Los Angeles County. • Affirm that Superior Court of California, Los Angeles County judicial payments to Commissioners are made to individuals who are making personal and individual choices to live and work in Los Angeles County.
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• Affirm that acceptance of the payments is an individual act, not covered under the wage and salary agreements between the employee and the Superior Court as covered by State and Federal labor laws. • Affirm that the immunity of SBX2 11, Section 5 is unconstitutional due to Article 1, Section 9 of the California Constitution. • Affirm that the immunity of SBX2 11, Section 5 is unconstitutional due to the lack of equal protection for ordinary citizens to make similar judicial payments to judges. • Affirm that SBX2 11, Section 2 does not authorize Los Angeles County Superior Court (not a county) to make “judicial benefits” payments to Commissioners, Court Counsel or other non-“Judges”. • Affirm that SBX2 11, Section 2 allows a reduction in county judicial benefits for all judges equally within a county or court. • Affirm that judicial benefits from a county or court, received in the past, but
IN PRO PER

not currently, will continue to influence or bias the judicial officer and thus still constitute a disqualifying event.

Dated: March 29, 2013 Respectfully submitted, __________________________________ Daniel Cooper

"I declare, under penalty of perjury under the laws of the United States and under the laws of the State of California, that the foregoing images inserted herein are true and correct representations of the documents and information delineated." Dated: March 29, 2013 By: _______________________________ DANIEL COOPER, In Pro Per

 

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VERIFICATION
FORM No. 2 Verification of Pleading (Code Civ. Proc., § 446) Declaration under Penalty of Perjury Form (Code Civ. Proc., §§ 446, 2015.5) By Party DANIEL COOPER CASE TITLE: Daniel COOPER, an individual; Petitioner/Appellant v. Elia Weinbach, an individual; Defendant/Respondent. I, Daniel Cooper, in Pro Per, declare: I am the signatory to the civil case SC1131064.
IN PRO PER

I am the Petitioner in the above-titled matter. I have read the foregoing Opening Brief and know the contents thereof. The same is true of my own knowledge, except as to those matters, which are therein stated on information and belief, and, as to those matters, I believe it to be true. This verification was executed on March 29, 2013, at Los Angeles County, California. I declare under penalty of perjury that the foregoing is true and correct.

_______________________________ Daniel Cooper 1836 10th Street #B Santa Monica, CA 90404 310-562-7668 In Pro Per

 

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CERTIFICATE OF LENGTH I, Daniel Cooper, in Pro Per, certify pursuant to the California Rules of Court, that the word count for this document is 12,700 words or less, excluding the tables, this certificate, and any attachment permitted. This document was prepared in Microsoft Word and this is the word count generated by the program for this document. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed, at Los Angeles County, California on March 29, 2013. ____________________________ Daniel Cooper, In Pro Per

IN PRO PER

CERTIFICATE OF COMPLIANCE I, Daniel Cooper, in Pro Per, hereby certifies that pursuant to Rule 8.204(c)(1) or 8.360(b)(1) of the California Rules of Court, the enclosed Petition Opening Brief is produced using 13-point Roman type including footnotes and contains approximately 12,700 words, which is less than the total words permitted by the rules of court. Counsel relies on the word count of the computer program used to prepare this brief. Dated: March 29, 2013. Signed: ___________________________________________ Print Name: Daniel Cooper Daniel Cooper 1836 10th Street #B Santa Monica, CA 90404 310-562-7668 In Pro Per

 

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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

B241184 / YC064994 lead for SC113064 PETITIONER/PLAINTIFF: Daniel Cooper, an Individual RESPONDENT/DEFENDANT: Elia Weinbach, an Individual I am over 18 years of age and not a party to this action. I am a resident of he county where the service took place. My residence or business address is 2601 E. Victoria St. #108 Rancho Dominguez, CA 90220 On March 29, 2013, I served on the interested parties in this action (SEE ATTACHED SERVICE LIST with type and address) the following documents Appellant’s Opening Brief Appellant’s Appendix, Vol. 1 and Vol. 2. Proof of Service I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 29, 2013 at Los Angeles, California,

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ F R E D S O T T I L E

Daniel Cooper, In Propria Persona

 

PROOF OF SERVICE BY FIRST-CLASS MAIL --CIVIL

SERVICE LIST
Mail e-Brief Compact Disk -- Defendant: Kevin M. McCormick Benton, Orr, Duval and Buckingham 39 North California Street, Post Office Box 1178 Ventura, California 93002 Mail e-Brief Compact Disk Courtesy Copy: Judge Frederick Shaller Stanley Mosk Courthouse 111 N. Hill Street Los Angeles, CA 90012 Filing Copies: Second Appellate Court Filing (per Rule 7 dated 11-19-2012) Original paper + 3 paper Copies + 1 e-Brief compact disk (Adobe Reader Compatible files) Supreme Court of California copies (per Rule 8.212(c)(2)) e-Brief copies transmitted by Second Appellate

Daniel Cooper, In Propria Persona

 

PROOF OF SERVICE BY FIRST-CLASS MAIL --CIVIL