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Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

The Truth News — Mon, 11 Aug 2025 03:52:43 +0000

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

As a general rule, California malicious prosecution actions are dicey propositions insofar as they always subject the plaintiff to a potential Anti-SLAPP motion from the defendant pursuant to California Code of Civil Procedure section 425.16. At a minimum, such a motion requires the plaintiff to immediately produce admissible evidence establishing the malicious prosecution claim. The failure to produce such evidence causes the dismissal of the case and may result in the plaintiff having to pay the defendant’s reasonable attorney fees for bringing the motion. Malicious prosecution cases arising out of family law court matters are even more problematic.

As a general rule, for public policy reasons plaintiffs are not entitled to bring malicious prosecution actions stemming from matters originating in the family law courts. Bidna v. Rosen (1993) 19 Cal.App.4^th 27. A very narrow exception to the Bidna rule was carved out by Nicholson v. Fazeli (2003) 113 Cal.App.4^th 1091, wherein a wife was permitted to maintain a malicious prosecution complaint against a Trust (which had previously filed a cross-complaint in the wife marital dissolution action) because the Trust’s cross-complaint did not implicate any family law issues (i.e., it did not specifically involve allegations related to marital status, child custody, spousal support, or the division of community property). Because the Trust’s cross-complaint was a fairly rare animal (the vast majority of all family law court pleadings will involve some family law issue), parties contemplating filing a malicious prosecution action arising out of a family law court are strongly advised to consult with an attorney to obtain advice before filing a complaint that might be immediately dismissed and, even worse, might subject the party to paying the other side’s attorney fees. source

Disclaimer

The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Reid & Hellyer, APC or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

Proving the “Prior Action” Requirement of a Malicious Prosecution Case

When a party prevails in a legal proceeding, he or she sometimes will seek further vindication by way of a malicious prosecution action. However, no matter how frivolous the prior action was, not all legal proceedings are recognized by California courts as triggering malicious prosecution liability. In California, the filing of a frivolous garden variety civil action for breach of contract or a tort can support a later claim for malicious prosecution. In addition, the following types of legal proceedings are recognized as “prior actions” which will support a later claim for malicious prosecution:

A special insanity proceeding (Sutherland v. Palme (1949) 93 Cal.App.2d 307, 312-13);
A cross-complaint (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 52);
A will contest in connection with probate proceedings (MacDonald v. Joslyn (1969) 275 Cal.App.2d 282, 289);
Administrative board or agency proceedings. (Hardy v. Vial (1957) 48 Cal.2d 577, 580–581; Nicholson v. Lucas (1994) 21 Cal.App.4th 1657, 1664);
Judicial arbitration (Stanley v. Superior Court (1982) 130 Cal.App.3d 460, 465); and
Petition for administrative mandate (Sierra Club v. Superior Court (1985) 168 Cal.App.3d 1138)

However, California courts have drawn the line and failed to allow liability for malicious prosecution for the institution of the following legal proceedings:

Small claims court proceedings (Pace v. Hillcrest Motor Co. (1980) 101 Cal.App.3d 476, 479);
Subsidiary procedural actions within a lawsuit, such as filing an application for a restraining order or for lien. (Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 639; Adams v. Superior Court (1992) 2 Cal.App.4th 521, 528);
Requests for admissions (Twyford v. Twyford (1976) 63 Cal.App.3d 916, 922);
Motion for writ of sale. (Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 63);
A defendant’s filing of a notice of appeal. (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 794);
Family law motions or OSC’s. (Bidna v. Rosen (1993) 19 Cal.App.4th 27, 37);
Contractual arbitrations. (Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 314);
A departmental investigation of a police officer where no formal proceedings occurred. (Imig v. Ferrer (1977) 70 Cal.App.3d 48, 59);
A California State Bar investigation that terminates at the investigatory stage without leading to proceedings before body that had power to action adversely affecting legally protected interests. (Lebbos v. State Bar (1985) 165 Cal.App.3d 656, 671); and
An attorney’s complaint to state bar association where complaint does not result in initiation of any proceedings. (Chen v. Fleming (1983) 147 Cal.App.3d 36, 41)

This post is the sixth in an ongoing series of posts on the tort of malicious prosecution. Jeffrey Lewis represented the prevailing parties in the malicious prosecution case of Videotape Plus, Inc. v. Lyons (2001) 89 Cal.App.4th 156. Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced litigators and can advise you about your potential rights and defenses in a malicious prosecution action. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. source

How To Sue For Malicious Prosecution For A Civil (Not Criminal) Lawsuit.

You get sued. They claim to be the “victim,” but you are the real victim. You are being sued based on a falsehood … for their improper motives. Can you strike back for justice?

Victims often ask lawyers whether they can sue for malicious prosecution. Situations arise when a victim has been sued wrongfully. They have stress. They have legal expenses. Other costs come in. The wrongful lawsuit damages their reputation. It may even be damage their credit rating.

Some victims merely want emotional support. They want someone to tell them they are right, the person that sued them is wrong, and provide sympathy. That is certainly the expected role of family, and friends. It is a whole other matter entirely to counter – sue the person and attempt to win money from them.

The Benefits of Malicious Prosecution Suits

Malicious prosecution lawsuits have three main benefits:

Compensation for out of pocket and other expenses.
Deter or prevent the wrongdoer from wrongfully suing others in the future.
Deter other similar wrongdoers from creating victims.

The same legal analysis must be completed regardless of whether you are a victim or an attorney. This article explains the process in a civil setting. Look to our companion article on criminal cases.

The Technical Legal Test to Win at Malicious Prosecution

The traditional elements of a lawsuit for malicious prosecution are as follows:

The commencement or prosecution of a proceeding against the victim;
“Legal Causation” by the present defendant;
The lawsuit’s termination in favor of the present plaintiff;
The absence of probable cause for the proceeding;
The presence of malice;
Damage to the victim.

State ex rel. O’Basuyi v. Vincent, 434 S.W.3d 517, 519 (Mo. banc 2014);

Bonzo v. Kroger Grocery and Baking Co., 125 S.W.2d 75 (Mo. 1939);

Higgins v. Knickmeyer-Fleer Realty and Investment Co., 74 S.W.2d 805,812 (Mo. 1934).

This is the traditional law for malicious prosecution. Is it confusing you? There is an easier analysis.

The Easier to Understand Test for Malicious Prosecution

The Missouri Approved Instructions for a jury trial present a straightforward analysis for evaluating potential malicious prosecution cases. It is meant for ordinary people to understand and will be easier for you.

The test for malicious prosecution is as follows:

First, did the wrongdoer instigate or continue a judicial proceeding (a lawsuit) against the victim (you) that the victim won?
Second, in doing that, did the wrongdoer acted maliciously and without reasonable grounds?
Third, was the victim damaged?

Paraphrase of M.A.I. 23.07 (2000 Rev.).

What Does “Maliciously” mean?

You may have noticed some technical terms. They are important. The first term is “maliciously.” In a civil setting, maliciously means intentionally doing a wrongful act without just cause or excuse. It does not necessarily mean hatred, spite, or ill will. M.A.I. 16.01 (1) (1996 new); see also Sanders v. Daniel Intern Corp., 682 S.W.2d 803 (Mo. banc 1984); and Proctor v. Stevens Employment Services, Inc., 712 S.W.2d 684 (Mo. banc 1986).

What Is Reasonable Grounds?

Reasonable grounds is also needed for your analysis of whether you have a malicious prosecution case. Luckily, reasonable grounds is defined. “Reasonable grounds” means the existence of facts which would cause an ordinarily careful person to believe plaintiff (the victim) was guilty of the offense charged. See Palcher v. JC Nichols Co., 783 S.W.2d 166 (Mo. App. 1990).

Our Law Dislikes Malicious Prosecution Cases

Malicious prosecution cases are not favored in the law. Stafford v. Muster, 582 S.W.2d 670, 675 (Mo. banc 1979). Because of this, you as the victim must be prepared to provide “strict and clear proof” of each of the elements of malicious prosecution. Id.

Probable Cause Weighs In Too!

The second element of malicious prosecution requiring reasonable grounds is closely related to probable cause. You should plan on addressing the probable cause elements as part of your malicious prosecution case.

The Missouri Supreme Court has set out a definition for probable cause in civil cases. It is as follows:

The person’s beliefs in the facts alleged,
Based upon sufficient circumstances to reasonably induce such belief by a person of ordinary prudence in the same situation, plus
A reasonable belief that under the facts the claim may be valid under the applicable law.

Holly v. Caulfield, 49 S.W.3d 747, 750-51 (Mo. App. 2001).

The Easy to Understand Test for Probable Cause

Basically, you need to ask yourself the following questions:

Did the person who sued you believe the facts they were alleging?
Would any reasonable person believe those facts?
Did the law allow a lawsuit against you; under those facts, assuming they were true?

Can I Get Punitive Damages To Punish?

Punitive damages are called “exemplary damages” and are not favored by the courts, much like malicious prosecution cases. To get punishment damages in a malicious prosecution case, “the proceedings must have been initiated or continued primarily for a purpose other than that of securing the proper Judication of the claim on which they are based.” Proctor v. Stevens Employment Services, Inc., 712 S.W.2d 684 (6, 7) (Mo. banc 1986). Remember that punitive damages require a separate determination by the court by “clear and convincing evidence,” which is a higher standard. Remember, who you are suing must have acted with a conscious disregard for your rights. I encourage you look to my article on punitive damages to see the specific elements of that cause of action.

Conclusion

Malicious prosecution cases are complex and have many legal requirements, as you can see. This is why malicious prosecution is so often an accusation and so seldom an actual lawsuit.

Usually, these lawsuits come about when it is either debt collector who does not care what the facts are and sues as many people as they can to collect money. Secondly, we see malicious prosecution lawsuits when it is an actual person who is just suing to “get at” somebody. I wish you luck in your analysis and hope any victims can receive just compensation based upon our analysis. source

Learn more about these sujects

Malicious Prosecution
Prosecutional Misconduct
Vindictive Prosecution
Retaliatory Prosecution
Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

learn more about Anti-SLAPP:

Anti-SLAPP Law in California 1st Amendment Freedom of Press & Speech

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

The Truth News — Sun, 02 Feb 2025 19:11:32 +0000

What’s the Difference between Abuse of Process and Malicious Prosecution?

Which of the following cases fits into the tort of abuse of process?
and…
Which of the following cases fits into the tort of malicious prosecution?

In February 2015, Dr. John Costino and his wife Barbara filed a malicious prosecution lawsuit against Cape May County. He was accused approximately six years prior to the lawsuit of distributing illegal painkillers. He was acquitted in 2012.

In 2007, the case of Pinewood Homes, Inc. v. Harris resulted in the defendant obtaining a judgment for several thousands of dollars. Harris feared the plaintiff, Ritche, wouldn’t pay. So Harris obtained a preliminary injunction against Rictche and all companies he had ownership interests in, including Pinewood Homes. However, Pinewood wasn’t a part of Richie’s lawsuit because Ritchie was only a shareholder. Pinewood then sued Harris for trying to maliciously coerce it into paying Ritchie’s judgment.

In 2014, a federal jury ruled Homicide Detective Dwayne violated Hephzibah Olivia Lord’s civil rights for maliciously arresting her. The arrest was for a murder she didn’t commit. Her boyfriend allegedly drank an energy drink, vodka, then committed suicide.

Abuse of Process and Malicious Prosecution are similar on the surface, but they have essential differences.

Abuse of Process aka Abu$e of Proce$$

Let’s say someone doesn’t have a reasonable basis to file a lawsuit against you. Maybe he subpoenas you, continuously files motions, or seeks a retaining order. These are examples of abuse of process. Abuse of process occurs when someone uses the legitimate judicial process for reasons not intended.

With this tort, a plaintiff has to prove four elements for a successful claim:

The defendant used the process
The defendant had an ulterior motive
The defendant misused the process
The plaintiff incurred injuries and damages from the result of the abuse of process

To prove element one, you show the defendant used the “process” such as filing:

Counterclaims
Appeals
Motions for sanction
Summons requests
Change of location
trying to hold someone on warrants that are based on charges you plan on dropping as they are malicious but you still request them to turn themselves in and be held on the bond for those crimes for which you know have no merit!

Showing facts and circumstances usually determine whether there was an ulterior motive. The court looks at the intent of the plaintiff and defendant. “Having an ulterior motive” is defined as attempting to gain an economic, business, or legal advantage.

A misuse of process generally exists if the defendant:

Used the process in a way not intended, contemplated, or authorized by law
Used the process in an intentional way and knew it would be misused

The best way to think about abuse of process is with two words: improper purpose. The defendant had an improper purpose when filing any lawsuit against the plaintiff.

Malicious Prosecution aka Maliciou$ Prosecution

Let’s say you were at work at 4 p.m. on Tuesday. That day an individual robbed a bank near your workplace. It just happens to be where your ex-spouse worked. You have an alibi and witnesses who place you at work. You didn’t commit the crime. In fact, there’s no reasonable way you could have committed the crime. You’re charged and prosecuted for a committing a bank robbery. Later, the charges are dropped or you’re found not guilty. This is referred to as malicious prosecution.

This tort has four elements a plaintiff must show to win her case:

The plaintiff was prosecuted for a crime she didn’t commit and found not guilty
No probable cause existed to show the plaintiff was guilty of committing the crime
The prosecutor knew no probable cause existed and still continued to prosecute and try to prove guilt
In some jurisdictions, a plaintiff must also prove she suffered injuries because of the criminal prosecution beyond typical mental distress.

You’ve probably figured out by now which of the cases are abuse of process or malicious prosecution. Just in case you’re not sure:

Malicious prosecution
Abuse of process
Malicious prosecution

Although both torts are similar, they are distinct. As you’ve read, malicious prosecution typically happens after a criminal case where a person was not guilty of the crime. However, they were still prosecuted for it anyway. With abuse of process, an individual is trying to gain an advantage by filing a frivolous lawsuit against someone. source

Malicious Prosecution, Abuse of Process, and False Arrest

People falsely accused of crimes, and prosecuted as a result, have been severely harmed

Malicious Prosecution

Criminal prosecution is malicious if law enforcement pursues groundless charges. Examples of malicious prosecutions include situations in which law enforcement:

charges a person with a crime to cover up police misconduct, such as excessive use of force or false imprisonment;
intends to punish a person by harassing them with criminal proceedings;
intends to ruin a person’s reputation by bringing unfounded criminal charges against them; or
charges a person with a crime to divert attention from the actual perpetrator.

A private person who lies to the police, and causes law enforcement to file false criminal charges, may also be liable for malicious prosecution.

A person forced to defend a groundless civil suit likewise suffers damages and may be able to recover for malicious prosecution.

To recover on a state-law malicious-prosecution claim, an Ohio plaintiff must prove:

(a) malice in instituting or continuing the criminal or civil legal proceeding;
(b) lack of probable cause or reasonable grounds to believe the allegations; and
(c) termination of the prosecution or civil lawsuit in favor of the accused.

Malice is defined as the state of mind under which a person intentionally does a wrongful act with the intent to inflict injury. But courts focus on the lack of probable cause, and malice may be inferred from its absence. Under Ohio law, a plaintiff cannot sue for malicious prosecution unless the underlying process or legal action has been revolved in the accused’s favor.

Relationship to “Abuse of Process” and “False Arrest”

Another tort claim for litigation misconduct is abuse of process. Abuse of process differs from malicious prosecution in that a person can still sue for abuse of process where there were reasonable grounds to pursue the case, but the lawsuit was initiated with an improper or ulterior purpose. For example, trying to tie up property in a divorce proceeding for the purpose of getting the other spouse to agree to different child-visitation rights may constitute abuse of process. Abuse-of-process claims, however, are difficult to prove and rarely successful.

Other available claims include false arrest, which may lie where police arrest someone without probable cause. Probable cause requires that police have reasonable trustworthy information sufficient to warrant an officer of reasonable caution to believe the arrestee committed, or is in the process of committing, an offense. Typically, acting on a warrant is a complete defense to a false-arrest claim.

Malicious Prosecution and False Arrest as a Civil-Rights Violation

In addition to any state-law claims, both malicious (criminal) prosecution and false arrest are recognized as separate violations of a person’s constitutional right against unreasonable searches and seizures protected by the Fourth Amendment of the U.S. Constitution. Therefore, where malicious-prosecution claims involve an arrest or criminal proceeding, plaintiffs may be able to file in either state or federal court.

Proof of malice is not required to succeed on a claim of malicious criminal prosecution under the U.S. Constitution. But here a plaintiff must prove:

(a) criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute;
(b) there was a lack of probable cause for the criminal prosecution;
(c) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure; and
(d) the criminal proceeding was resolved in the plaintiff’s favor.

What To Do If You Believe You Have Been a Victim of Malicious Prosecution

Especially in this class of cases, usually involving an abuse of power or oversight in the justice system, it can be unclear what options are available. With shaken confidence in the efficacy and access to justice provided by the judicial system, it may appear as if there is nowhere else to turn for help. But this is not the case. source

If someone has wrongfully sued you or prosecuted you for a crime, you may have a valid malicious prosecution or abuse of process claim.

Malicious prosecution and abuse of process are related types of civil lawsuits where one person (the plaintiff) sues another person (the defendant) for, in a prior case, trying to use the legal system against the plaintiff in an inappropriate manner. The prior case can be either criminal or civil in nature. This article discusses the elements of a malicious prosecution or abuse of process claim.

Difference between Malicious Prosecution and Abuse of Process

While the two claims are similar, malicious prosecution and abuse of process claims have some essential differences.

A plaintiff can sue for abuse of process when a defendant starts legal proceedings with the intention of obtaining results for which the process was not designed. A plaintiff can sue for malicious prosecution when a defendant “maliciously” prosecutes a criminal case or uses a civil proceeding against the plaintiff when the defendant knows he or she doesn’t have a case. In addition, the plaintiff must have already obtained a “favorable termination” of the defendant’s malicious case (the case was dismissed or there was a ruling in the plaintiff’s favor, for example) before he or she can sue for malicious prosecution.

Essential Elements of Abuse of Process

As we mentioned, a plaintiff can sue for abuse of process when a defendant starts a legal process intending to obtain results for which the process was not designed.

A “legal process” can be any part of a lawsuit, not simply the entire lawsuit. For example, a defendant’s personal injury lawsuit might have been legitimate, but the use of a particular deposition or other smaller, discrete aspect of the lawsuit may not have been. Even though the lawsuit was valid, the plaintiff can still sue for abuse of process based on the illegitimate deposition.

The best way to think of the “improper purpose” requirement in an abuse of process claim is that, although the defendant had a technical right to use the legal process, he or she did so to extort something else from the plaintiff—or example, trying to tie up property in a divorce proceeding in order to get the other spouse to agree to different child visitation rights. It’s worth noting that abuse of process claims are notoriously difficult to prove and are often unsuccessful.

Essential Elements of Malicious Prosecution

A successful malicious prosecution claim usually requires all of the following:

the defendant began or continued a criminal or civil legal proceeding without reasonable grounds to believe the basis for it (or the allegations made in it)
the defendant had a purpose other than simply getting a judgment in the proceeding, and
the proceeding has terminated in the favor of the person that was being prosecuted or sued (i.e. the future plaintiff in the malicious prosecution suit must first win the suit against him or her).

Let’s look at these elements a little more closely.

A Proceeding

A criminal proceeding is any process where the government can punish a person for offenses ranging from homicide to a parking ticket.

A civil proceeding is typically where the plaintiff is not a governmental entity—although the defendant might be—and the plaintiff is suing for money damages or an injunction.

Even if the people bringing the criminal or civil proceeding think they have a winning case and are suing for a legitimate reason when they begin the case, they can be guilty of malicious prosecution if they discover a reason they cannot win during the case, and continue the case for improper motives anyway.

Reasonable Grounds

The person bringing the original prosecution or lawsuit must have reasonable grounds (also called probable cause), i.e. a reasonable person in their place would think that the legal action was legitimate and had a chance of winning.

However, if the person bringing the prosecution or lawsuit knows that the action is illegitimate, there is no need to prove that a hypothetical reasonable person would also think it was illegitimate.

Improper Purpose

Typically, if a lack of reasonable grounds is proved, an improper purpose will be assumed. This means that the plaintiff in a malicious prosecution action does not necessarily need to prove that the defendant had an improper purpose. However, if the defendant can prove that he or she had a proper purpose, the plaintiff will not win.

For example, if a defendant was only doing what his or her attorney recommended, even though the lawsuit had no probable cause, then the defendant may not be liable for malicious prosecution if she unreasonably, but mistakenly thought her lawsuit was legitimate.

Favorable Termination

Finally, the plaintiff in a malicious prosecution suit must have successfully defended against and won the previous illegitimate lawsuit. In other words, if a person was convicted of criminal charges or had to pay damages in a civil lawsuit, he or she probably cannot sue for malicious prosecution based on that criminal or civil legal action. source

Malicious Prosecution and Abuse of Process

Malicious prosecution is a common law intentional tort aimed at actors, whether private or government, which commence or institute, or cause to be commenced or instituted, unwarranted or unjustified legal proceedings against a Defendant. At common law, the elements of a Malicious Prosecution claim included:

intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal);
that is brought without probable cause and;
that action is dismissed in favor of the victim of the malicious prosecution.

In some jurisdictions, the term “malicious prosecution”, which denotes the wrongful initiation of criminal proceedings, is distinguished from the “malicious use of process” which denotes the wrongful initiation of civil proceedings.

In Nevada, the elements of a malicious prosecution claim, as outlined in Chapman v. City of Reno, are similar to the common law elements and are as follows:

a lack of probable cause to commence the prior action;
malice;
favorable termination of the prior action; and
damages.

Generally, criminal prosecuting attorneys and judges are protected from tort liability for malicious prosecution by doctrines of prosecutorial immunity and judicial immunity. However, a malicious prosecution claim will prevail where intentional conduct that rises to the level of either maliciousness or gross or reckless indifference to the consequences of a prosecutor or judges actions can be proved by clear and convincing evidence.

Abuse of Process

Abuse of process is a cause of action sounding in tort arising from one party making a malicious and deliberate misuse or perversion of the courts and the law not justified by the underlying legal action and is to be distinguished from malicious prosecution in that it is aimed at the use and misuse of legal process for illegitimate purposes, regardless of the merit of the underlying claim.

At common law, the elements of an abuse of process claim were as follows:

the existence of an ulterior purpose or motive underlying the use of process, and
some act in the use of the legal process not proper in the regular prosecution of the proceedings.

Abuse of process can be distinguished from malicious prosecution, in that abuse of process typically does not require proof of malice, lack of probable cause in procuring issuance of the process, or a termination favorable to the plaintiff, all of which are essential to a claim of malicious prosecution.

In Nevada, the elements required to prevail on an abuse of process claim are similar to those existing at common law: (1) an ulterior purpose other than resolving a legal dispute, and (2) a willful act in the use of process not proper in the regular conduct of the proceeding. Kovacs v. Acosta. An “ulterior purpose” includes any “improper motive” underlying the issuance of legal process. See Laxalt v. McClatchy, 622 F. Supp. 737, (D. Nev. 1985).

“Process,” as used here means any method used to acquire jurisdiction over a person or specific property that is issued under the official seal of a court, administrative agency or government entity. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of “process” considered to be capable of abuse.

As discussed above, the distinguishing factor between abuse of process claims and malicious prosecution is the purpose for which the complained of legal proceedings are instituted; generally, the person who abuses process wishes only to harass, molest, bother, annoy, pester or otherwise injure the other by use of the law and courts in such a way and for such a purpose as offends justice, such as an unjustified arrest or an unfounded criminal prosecution. source

Differentiation of Abuse of Process and Malicious Prosecution

Abuse of Process and Malicious Prosecution Lawyer

There are differentiating factors between abuse of process and malicious prosecution. Abuse of process refers to the notion that the plaintiff can sue when a defendant starts legal proceedings with the intention of obtaining results for which the process was not designed. Malicious prosecution, on the other hand, can sue when a defendant “maliciously” prosecutes a criminal case or uses a civil proceeding against the plaintiff when the defendant knows he or she does not have a case. Within this concept, the plaintiff must have obtained a “favorable termination” of the defendant’s malicious case before they can sue for malicious prosecution.

Abuse of Process

The elements of an abuse of process claim include an ulterior purpose by the defendant/defendants other than resolving a legal dispute, and a willful act in the use of the legal process not proper in the regular conduct of the proceeding. The legal process portion can be within any part of the lawsuit, not simply the entire lawsuit. The ulterior purpose requirement of this notion can be thought up as even though the defendant has a technical right to use the legal process, they did so to extort something else from the plaintiff.

Malicious Prosecution

Malice refers to evil intent, which may be implied if the defendant acted in willful disregard of the rights of the plaintiff, wrongfully acted with a justifiable cause, or acted or omitted a duty betraying the willful disregard of a social duty. Malicious prosecution claims require several components. First, a proceeding. Even if an individual that has brought a criminal or civil proceeding thinks that they can have a winning case, suing for a legitimate reason at the beginning of the case, they can be guilty of malicious prosecution if a reason is discovered that they cannot win during the case, continuing the case for improper motives. Secondly, reasonable grounds is another notion that must be enacted to show malicious prosecution. An individual bringing the original prosecution or lawsuit must have probable cause to which the legal action was legitimate and has a chance of winning. Contrarily, if the individual bringing the lawsuit knows that the action is illegitimate, there is not a need to prove that a hypothetical reasonable person would share the idea that it was illegitimate.

Next, improper purpose is an additional concept that must be displayed. This notion is piggybacked with the

What Are My Rights as a Dad? Father’s Parental rights: Existing law and established boundaries

The Truth News — Mon, 01 Jul 2024 17:05:38 +0000

California Fathers’ Rights 2024 – What Are My Rights as a Dad?

Fathers’ Rights

It’s crucial to realize that a father has exactly the same rights as a mother in California. Judges in custody cases are required to make their decision based just on what is most beneficial for the child. They are legally prohibited from presuming that the sex or gender of one parent provides an inherent benefit for the children than the other.

That said, the specifics of a custody case can mean that the mother is granted more rights than the father, often because of the father’s work commitments. However, if a father can demonstrate that they can be as available as the mother, they are due equal rights to the children. If that can be shown, a judge must have a compelling reason, other than gender or sex, to take rights away. Some of the rights that a father is granted include:

Equal Parental Decision-Making – This is also known as joint legal custody. Fathers have an equal right as mothers regarding the decisions that are to be made about the child’s parenting, including medical, education, and religious decisions.
Equal Parenting Time – While a 50/50 arrangement is not possible in every case, it is important that fathers recognize that they have a right to fight for as close to that arrangement as they can manage. If their circumstances change, particularly as the child ages and is able to care for themselves for short periods of time, then fathers should make an effort to gain more custody time when possible.
Modification of Custody – There are a number of reasons why custody might be modified to give fathers more time with their children. In particular, if the mother attempts to alienate the children from the father or makes false claims regarding him, this should be brought to the attention of the court.
Protection Against False Allegations – False allegations are taken very seriously by the courts and can result in fathers’ getting greater or sole custody. If you are falsely accused, it’s important to remain calm, say nothing until you can speak with your lawyer, and let the legal process handle the matter.

Many fathers feel like the system works against them with regard to the custody of their children in a divorce. They feel like the mother has all the advantages. There’s no need to feel this way. With the right representation, there is no legal reason why any bias should be shown toward the mother. The law prohibits judges from doing so. If a father is willing to make the case for his rights, he has the same ones as the mother. However, ensuring that those rights are protected requires a legal team that is ready to stand firm to defend them.

Table of Contents

Fathers’ Rights

Equal Parental Decision-Making – This is also known as joint legal custody. Fathers have an equal right as mothers regarding the decisions that are to be made about the child’s parenting, including medical, education, and religious decisions.
Equal Parenting Time – While a 50/50 arrangement is not possible in every case, it is important that fathers recognize that they have a right to fight for as close to that arrangement as they can manage. If their circumstances change, particularly as the child ages and is able to care for themselves for short periods of time, then fathers should make an effort to gain more custody time when possible.
Modification of Custody – There are a number of reasons why custody might be modified to give fathers more time with their children. In particular, if the mother attempts to alienate the children from the father or makes false claims regarding him, this should be brought to the attention of the court.
Protection Against False Allegations – False allegations are taken very seriously by the courts and can result in fathers’ getting greater or sole custody. If you are falsely accused, it’s important to remain calm, say nothing until you can speak with your lawyer, and let the legal process handle the matter.

FAQs

Q: What Are My Parental Rights as a Father in California?

A: Put most simply, a father’s parental rights in California are the same as a mother’s. The law makes it clear that there shouldn’t be any bias based on gender/sex when determining things like child custody. However, it is important to recognize that, with regard to children, the courts are obligated to do what is in the interests of the child. This means that, for a father to get the rights that are due to him, he must be able to elaborate on why that is in the interests of the child. Some of the rights that fathers have include:

Equal parenting time
Equal decision-making rights
The opportunity for modification of the custody agreement when necessary
Protection against false allegations

The court must have a good reason for not giving fathers equal rights to raising and spending time with their children. However, holding the court accountable for that is something that can often be dependent upon strong legal representation.

Q: Can a Mother Keep the Child Away From the Father in California?

A: A mother must follow the custody agreement that was settled in court. If there is joint physical custody, then they must adhere to the schedule that was agreed upon. The same is the case for visitation rights that have been granted to the father. If the mother does not follow the process that the custody ruling prescribes, this can be grounds for reopening and modifying the custody agreement.

Q: Is the Mother Given Preference in Custody in California?

A: There are no legal grounds for giving the mother preference in California. In fact, courts are prohibited by law from favoring either parent on the basis of gender or sex. This means that fathers are to be seen as completely equal to mothers in the eyes of the court. Of course, it is important to recognize that the court is also required to do whatever is ideal for the child’s welfare in their decisions. They may find that, if the mother’s work situation allows for a better opportunity to watch the children, she may be granted greater physical custody. Whatever custody arrangement a father is seeking, it is vital that he has quality representation that is able to argue why it is optimal for the child involved.

Q: What Do I Do About False Allegations of Domestic Violence or Child Abuse?

A: Few things can be more frustrating and difficult to process than false allegations. However, despite the emotions that this can cause, you should ideally remain calm. Any kind of outburst could be used against you, so you will want to maintain self-control. From there, you should cooperate with the police but use your right to not say anything without your lawyer present. Once your lawyer is present, allow the legal process to unfold. That is the strongest chance you have of overcoming any false allegations. source

THE CONSTITUTIONAL FRAMEWORK OF FATHERS’ RIGHTS

By K. Edward Greene1

The Fourteenth Amendment

No state shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
Federal Case Law

Section 9.32 Particular Rights — 14th Amendment — Due Process — Interference with Parent / Child Relationship (read all about that here) (and can be downloaded here)

read another amendment section under the 5th amendment below Amdt 5.4.5.6.2 Parental and Children’s Rights – under the Fifth Amendment:

Due process is what separates a free society from a police state. When the Fourteenth Amendment of the Constitution says that the government shall not “deprive any person of life, liberty, or property, without due process of law, ” that does not meant that the government cannot take away a person’s life, liberty or property, but that it cannot take those things away without first giving that person a fair chance to defend him or herself. For instance, the government cannot imprison someone or take away his or her children without allowing the person to challenge the government’s actions. source

“Parents have a fundamental liberty interest in the care, companionship and custody of their children. For this reason, they have certain due process protections in juvenile dependency proceedings.” (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1210, relying upon Santosky v. Kramer (1982) 455 U.S. 745, 758 (Santosky).) In Santosky, the court held that due process requires the state to prove its allegations by clear and convincing evidence before terminating parental rights. (Santosky, pp. 779, 754, 747-748, 751-754 concluding New York procedures terminating parental rights upon a showing of neglect by ” ‘a fair preponderance of the evidence‘ “ did not satisfy due process.)

Santosky did not purport to require a finding of parental unfitness in proceedings to terminate parental rights, addressing only the standard of proof in such proceedings. The court noted, however, that victory by the state “entails a judicial determination that the parents are unfit to raise their own children,” and suggested a showing of unfitness may be constitutionally required. (Santosky, supra, 455 U.S. at p. 760 & fn. 10, citing Quilloin v. Walcott (1978) 434 U.S. 246, 255.)

In Cynthia D. v. Superior Court (1993) 5 Cal.4th 242 (Cynthia D.), the California Supreme Court addressed a parent’s contentions that, under Santosky v. Kramer (1982) 455 U.S. 745, California’s dependency statutes violate due process because they permit termination of parental rights based on a finding, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment. (Cynthia D., at pp. 245-246, 250.)

The court held that the procedure for terminating parental rights under section 366.26 comports with due process, when considered in the context of California’s dependency scheme as a whole, and that Santosky does not compel the use of an elevated standard of proof. (Cynthia D., at pp. 253, 254-256.) The court explained:

“By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness. . . . The grounds for initial removal of the child from parental custody have been established under a clear and convincing standard ; in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent. ” (Cynthia D., at p. 253.)

By the time a juvenile court considers termination, “the evidence of detriment is already so clear and convincing that more cannot be required without prejudice to the interests of the adoptable child . . . .” (Id. at p. 256.)

Thus, where the court has made the findings necessary to remove the child at the disposition hearing and to overcome the presumption of return at subsequent status reviews, due process does not require evidence of unfitness at the section 366.26 hearing.

“The purpose of the section 366.26 hearing is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement.” (Cynthia D., supra, 5 Cal.4th at p. 253.)

“In order to terminate parental rights, the court need make only two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated.” (Id. at pp. 249-250.) source

Parents Rights Current law

Both federal and California law provide parents with rights, but those rights are not unlimited. Rather, they underscore the need for parents to be involved and engaged in their child’s education. Beginning in the 1920s, federal courts have considered numerous parental rights questions and the decisions in those cases have created a longstanding framework for educators and parents to rely on. In the cases of Meyer v. Nebraska (262 US 390 (1923)) and Pierce v. Society of Sister (269 US 510 (1925)) the U.S. Supreme Court first established the basic principle that under the Fourteenth Amendment’s substantive due process rights, parents have the right to direct their children’s upbringing and education. This Meyers-Pierce right, as it is sometimes referred to, was further explained and relied on in cases such as Wisconsin v. Yoder (406 US 205 (1972)), when the Court found that a state cannot compel parents to send their children to school when they hold a legitimate religious belief that prevents them from doing so. Similarly, in Troxel v. Granville (520 US 57 (2000)) the Court held that parents have a fundamental right to make decisions “concerning the care, custody, and control of their children.”

This broad parental right under the Fourteenth Amendment is not without limits. Not long after the Meyer-Pierce right was established, the Court decided in Prince v. Massachusetts (321 US 159 (1944)) that the “family itself is not beyond regulation in the public interest,” reeling in the right and establishing a boundary that allows courts to regulate the treatment of children when it is in their best interest. Based on that boundary, courts have further clarified that although parents may opt to send their children to public school, their parental rights do “not extend beyond the threshold of the school door.” (Fields v. Palmdale School District, 427 F.3d 1197 (9thCir. 2005).)

More specifically, parents “do not have a due process right to interfere with curriculum, discipline, hours of instruction, or the nature of other curricular or extracurricular activities.” (Cal. Parents for the Equalization of Educ. Materials v. Torlakson, 973 F.3d 1010, 1020 (9th Cir. 2020).) This limit also applies to parents who wish to influence school policies. In Parents for Privacy v. Barr (949 F.3d 1210 (Ninth Cir. 2020)), a case related to school policies for bathroom use by transgender students, the court held that parents “have a right to remove their children” from public schools, but not to dictate school policy.

California law aligns with these parental rights principles described by federal judges. Education Code sections 51100–51102 describe the need for parental involvement in a child’s education and states that it is “essential to our democratic form of government that parents and guardians of school age children attending public schools and other citizens participate in improving public education institutions.” (Education Code 51100.) As a result, “the parents and guardians of pupils enrolled in public schools have the right and should have the opportunity, as mutually supportive and respectful partners in the education of their children … to be informed by the school and to participate in the education of their children…”.” (Education Code 51101.) This includes the right to observe and examine the curriculum in classroom(s) where their children are enrolled and receive information about the academic performance standards, proficiencies or skills their child is expected to accomplish. (Id.) Education Code section 51101 also includes the ways in which parents can contribute to their student’s learning environment by “volunteering in their children’s classrooms, or for other activities at the school,” and “working with their children at home in learning activities that extend learning in the classroom.” (Id.)

These state and federal rights may change over time through legislative action, like the Parents Bill of Rights Act, or through judicial decisions at the state or federal level. Any such changes will require adaptation and implementation by school district and county office of education boards as well as understanding from parents as to the rights they have and how they can be involved in the education of their children. Civic engagement through voting and participation at the board and legislative level afford parents a direct opportunity for involvement in this process. source

Parents Absolutely Have Rights to Their Children’s Education

Parents’ rights to raise their children is found in the 14th Amendment.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Due Process Clause prevents the government from intruding on fundamental rights and liberty interests, one of which is parents rights in controlling the care of their children.

Many Supreme Court Cases Have Interpreted the 14th in Conjunction with Parents Rights

Troxel v Granville was a case about grandparents rights v. parents rights. In that case, unmarried parents Granville and Troxel had 2 daughters before they separated. Troxel committed suicide. Granville’s parents brought an action seeking visitation with the kids. Eventually Granville remarried.

The U. S. Supreme Court affirmed the Washington state supreme court’s ruling that the statute used by the grandparents to seek custody was an unconstitutional infringement on the fundamental rights of parents to control the upbringing of their children.

Troxel Golden Nuggets

In the Troxel case, the Supreme Court cited numerous precedent to support its finding that parents have a fundamental Constitutional right to the rearing of their children. NOT the State.

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” Washington v Glucksberg, 521 U. S. 702, 719 (1997). The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id., at 720; see also Reno v. Flores, 507 U. S. 292, 301-302 (1993).

The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.”

Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535.

Parents Have a Right to Know What is Happening to Their Child at School

Here are more gold nuggets from Troxel.

We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Id., at 166.

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e. g., Stanley v. Illinois, 405 U. S. 645, 651 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements’” (citation omitted)); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U. S. 246, 255 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U. S. 584, 602 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U. S. 745, 753 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ[t] … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

What About a Child’s Privacy Rights?

Bonta’s letter threatens:

“As the California Department of Education has instructed, “Disclosing that a student is transgender without the student’s permission may violate California’s antidiscrimination law byincreasing the student’s vulnerability to harassment and may violate the student’s right to privacy.”

Courts have recognized that gender identity is a protected privacy right under the California and U.S. Constitutions. (See Whalen v. Roe (1997) 429 U.S. 589, 598–600 (avoiding disclosure of personal matters is constitutionally protected).

This is false. Whalen does NOT state that children have privacy rights against their parents when it comes to health or mental health issues like gender dysphoria.

The constitutional question presented in Whalen is whether the State of New York may record, in a centralized computer file, the names and addresses of all persons who have obtained, pursuant to a doctor’s prescription, certain drugs for which there is both a lawful and an unlawful market.

Parents are NOT the Enemy

Opponents of the Parental Notification Policy assume parents are the children’s enemy. They also assume that all parents would not support their child’s choice.

Both assumptions are false.

For the most part, parents love their children. If there is something happening at the school, whether it’s bullying, eating disorder, or gender dysphoria – most parents would quit their careers just to help get their children counseling or help them through it.

Yet according to the State, parents are not entitled to information regarding their own children

Laws are Suppose to Protect Children

Historically, laws protected children. You must be 21 to drink alcohol. 18 to vote. 16 to drive. Age of consent varies from 16 – 18 in all states. Children cannot legally consent to sex.

Yet, new laws in California such as AB 665 allows minors, 12 years of age or older, to consent to mental health treatment or residential shelter services. This means a 5th or 6th grader can be persuaded by a “licensed professional” to receive treatment for a personal mental health issue and the parents don’t have to consent or be notified unless the professional considers it appropriate.

Gender affirming care for children is consensus-based, not evidence based. It’s not wonder that gender detransition lawsuits are abounding.

Parental Notification Policy

More information about Parental Notification Policy here.

source

WHAT ARE FATHER’S RIGHTS IN CALIFORNIA?

CHILD CUSTODY IN CALIFORNIA

California has made significant strides in recognizing and protecting fathers’ rights regarding family law and parental rights. Courts no longer automatically grant primary custody of children to the mother, which leaves fathers with limited visitation rights. Today, the legal landscape has evolved to promote equal rights for both parents and shared responsibilities.

LEGAL CUSTODY VS. PHYSICAL CUSTODY

In California, child custody is divided into two categories: legal custody and physical custody.

LEGAL CUSTODY

Legal custody refers to the right to make important decisions about the child’s upbringing, such as education, healthcare, and religious upbringing. In most cases, California courts prefer joint legal custody, meaning both parents share these decision-making responsibilities.

PHYSICAL CUSTODY

Physical custody describes where the child lives. Physical custody can be either sole physical custody, where the child mostly lives with one parent, or joint physical custody, where the child spends significant time with both parents.

PRESUMPTION OF JOINT CUSTODY

California family law operates under the presumption that joint custody is in the child’s best interests, meaning that courts typically prefer shared parenting arrangements that allow both parents to be actively involved in the child’s life.

However, the court will consider several factors when determining custody arrangements, including:

The child’s age and health
The emotional ties between each parent and the child
The ability of each parent to provide a stable and loving environment
Any history of domestic violence or substance abuse

ESTABLISHING PATERNITY

Before a father can assert his rights in California, he must establish legal paternity. Once the parents establish paternity, a father gains legal rights and responsibilities regarding the child, including the right to seek custody and visitation.

Parents may establish paternity in several ways:

VOLUNTARY DECLARATION OF PATERNITY

Suppose both parents agree on the child’s paternity. In that case, they can complete and sign a Voluntary Declaration of Paternity (VDP) form, which parents can sign at the hospital after the child’s birth or at a later date.

COURT ORDER

If there is a paternity dispute, either parent can petition the court to establish paternity through genetic testing.

FATHER’S RIGHTS IN CHILD CUSTODY

REQUESTING CUSTODY

Fathers in California have the same legal right as mothers to request custody of their children. It’s essential to work with an experienced family law attorney to navigate the court system effectively. When making custody decisions, California courts prioritize the child’s best interests above all else.

MODIFYING CUSTODY ORDERS

If circumstances change after establishing a custody order, either parent can request a modification. Modification of custody orders could be sought due to changes in the child’s needs, a parent’s relocation, or a change in work schedules. Fathers can seek modifications to ensure custody arrangements remain in the child’s best interests.

FATHER’S RIGHTS TO VISITATION

Even if a father does not have physical custody of his child, he has the right to seek visitation. California courts generally believe children benefit from regular and meaningful contact with both parents. Visitation schedules can be established to accommodate the child’s needs and the parent’s availability.

It’s important to note that visitation rights can be restricted or supervised if there are concerns about the child’s safety or well-being while in the father’s care. However, these restrictions are typically imposed only when there is clear evidence of a risk to the child. source

source

A Child’s Constitutional Right to Family Integrity and Counsel in Dependency Proceedings

source

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Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
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We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

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Can You Annoy the Government? – 1st Amendment

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Vermont’s Top Court Weighs: Are KKK Fliers – 1st Amendment Protected Speech

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Right to Record Government Officials Engaged in the Exercise of their Official Duties

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION – 1st Amendment

American Civil Liberties Union of Illinois v. Alvarez – 1st Amendment

Illinois Supreme Court Strikes Down Eavesdropping Statute as Unconstitutional – 1st Amendment

303 Creative LLC v. Elenis – 1st Amendment

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Snyder v. Phelps (2011) – Offensive? – 1st Amendment

The Consumer Review Fairness Act – What It Is & Why It Matters

Learn More About True Threats Here below….

Counterman v. Colorado – Supreme Court sets higher bar for prosecuting threats under First Amendment

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CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

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Due Process vs Substantive Due Process learn more HERE

Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th, & 14th Amendment

Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
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What is Probable Cause? and.. How is Probable Cause Established?

Misuse of the Warrant System – California Penal Code § 170 – Crimes Against Public Justice – 4th, 5th, & 14th Amendment

What Is Traversing a Warrant (a Franks Motion)?

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

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ARE PEOPLE LYING ON YOU?
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Penal Code 115 PC – Filing a False Document in California

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Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

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Crimes Against Public Justice

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

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Penal Code 132 PC – Offering False Evidence

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PC 146 Penal Code – False Arrest

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What is Abuse of Process?

What is a Due Process Violation? – 4th Amendment & 14th Amendment

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What is Sua Sponte and How is it Used in a California Court?

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Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

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Federal – Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

Everything you need to know about a Defamation Case

How do I submit a request for information?

To submit a request send the request via mail, fax, or email to the agency. Some agencies list specific departments or people whose job it is to respond to PRA requests, so check their websites or call them for further info. Always keep a copy of your request so that you can show what you submitted and when.

Templates for Sample Requests

Incident Based Request: Use this template if you want records related to a particular incident, like the investigative record for a specific police shooting, an arrest where you believe an officer may have been found to have filed a false report, or to find out whether complaint that an officer committed sexual assault was sustained.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

Officer Based Request: Use this template if you want to find any public records of misconduct related to a particular officer or if he or she has been involved in past serious uses of force.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

The First Amendment Coalition also has some useful information to help explain the PRA process.

Sample Letter | SB 1421 & SB 16 Records

Download Word document | Download PDF

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California – Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here

California Motions in Limine – What is a Motion in Limine?

Petition for a Writ of Mandate or Writ of Mandamus (learn more…)

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Retrieving Evidence / Internal Investigation Case

Pitchess Motion & the Public Inspection of Police Records

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Orange County / LA County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below:

SEARCH SB-1421 SB-16 Incidents of LA County, Oakland

California Senate Bill 16 (SB 16) – 2023-2024 – Peace officers: Release of Records

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Section 832.7 – Peace officer or custodial officer personnel records

Senate Bill No. 1421 – California Public Records Act

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records

How Access to California Police Records

Los Angeles County Sheriff’s Department SB-1421 Records

SB1421 – Form Access to California Police Records

California Statewide CPRA Requests Submit a CPRA Request

Electronic Audio Recording Request of OC Court Hearings

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Police BodyCam Footage Release

Cleaning Up Your Record

Tossing Out an Inferior Judgement – When the Judge Steps on Due Process – California Constitution Article VI – Judicial Section 13

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92 & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons –What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

PARENT CASE LAW

RELATIONSHIP WITH YOUR CHILDREN &
YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law Appeal – Learn about appealing a Family Court Decision Here

Amdt5.4.5.6.2 – Parental and Children’s Rights“> – 5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

Father’s Rights and Parents Rights THE CONSTITUTIONAL FRAMEWORK OF FATHERS’ RIGHTS

9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1 – The Bane ActInterference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

Child’s Best Interest in Custody Cases

Are You From Out of State (California)? FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

Can You Transfer Your Case to Another County or State With Family Law? – Challenges to Jurisdiction

Venue in Family Law Proceedings

GRANDPARENT CASE LAW

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

Please take time to learn new UPCOMING

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

The Honorable Julie A. Palafox

The Truth News — Wed, 21 Feb 2024 08:12:22 +0000

The Honorable Julie A. Palafox: Using Her Role…..
on the Bench to Help Families

Hon Julie A. Palafox

341 The City Dr S, Orange, CA 92868

The Honorable Julie A. Palafox
Orange County Superior Court, Department L73
CA Bar #: 111122 (December 1983)
Appointed By: Gov. Edmund G. Brown, Jr.

her Home address for peaceful assembly

213 S Muroc Pl Fullerton, CA 92833

We are going to be having a peaceful assembly soon, please email us to participate in your 1st amendment rights against tyrannical government. We are going to be holding a peaceful assembly in front of her home address to protest his illegal behavior and hand out leaflets and flyers.

1st amendment right to peaceful public assembly in front of any governement employees home to protest their abuse of civil rights and their sworn oath to the US Constituion

PEACEFUL ASSEBLY IN PUBLIC ON PUBLIC AREAS NOT BLOCKING ROADS AND PATHWAYS IS THE AMERICAN WAY TO DISAGREE WITH CROOKED EVIL LYING CRIMINAL GOVERNEMENT OFFICIALS

Look at how she looks, she has a great look on her burnt out face! its says “I hate my life, I hate my career, I couldn’t be anything without the governors hand out, I am an unhappy incompetant person who hates your family as well”

Mrs Julie Palafox remove clouded bias Judge Claustro from my Case #17FL000138 who violated my due process rights.Judge Claustro for being out of color of the law and outside his jurisdiction. Judge Claustro is out of color of the law and outside his juri$diction. Judge Claustro has violated my 4th,6th and 14th amendment rights he violated my due process rights and will now be torted. remove him!

The Honorable Julie A. Palafox, as leader of the family law section, i expect you to do the right thing and honor my rights by removing this bia judge Claustro.

Mrs Julie Palafox remove Judge Claustro from my Case #17FL000138

i am going to sue Judge Claustro for being out of color of the law and outside his jurisdiction. he violated my 4th,6th and 14th amendment rights he violated my due process rights. he muted me in his courtroom, then the Mr brilliant Claustro asked me to speak to answer questions for him, when i could not answer, DUE TO HIM (HOST) MUTING ME , i was unable to answer his question. he became upset that i could not answer and then answered for me.

We have another vindictive bias judge, and all our newspaper keeps getting is transcripts and live appearances where our writers are in attendance as witnesses to this abuse. We send out undercover writers inside the courtroom to witness this behavior.
Judge Israel Claustro has clouded judgement, and it is quite apparent he is on the mother’s side, does not care for the child at all, and hates the father!

1st meeting with the father he immediately had an attitude that was apparent and obvious from the start. Fair and adequate justice was never provided for the father, as we also have obtained the recorded court room audio.

Claustro did not allow due process to happen, he muted the father and answered for the father. We feel it is an awesome summary of your awesome career but APPARENTLY the vindictive men beneath you do not see eye to eye with your want for fairness in family law.

ATTACHED IS THE EVIDENCE AND THE REMOVAL FORM
YOU COURTROOM HAS BEEN NOTIFIED.

HERE IS ALSO A LINK TO DOWNLOAD IT FOR YOURSELF AS WELL

https://drive.google.com/file/d/1IQ55zj5lSYuNSFCVwso0HhALgNub6Njk

learn more ABOUT MRS PALAFOX http://www.therobingroom.com/california/Judge.aspx?id=24488

and the rulings below can also be downloaded here
https://drive.google.com/file/d/10kIBiTJoXwY6KvdUat4qNCSFzJ-V6ElV/view?usp=drive_link

(People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 699-700.) may not inquire into the good faith of the moving party’s belief in the judge’s prejudice.

THIS CLARIFY YOU DON’T GET TO GO AROUND CHANGING IT FOR YOURSELF

“The right conferred by . . . section 170.6 . . . is a substantial right which is now part of the system of due process and judicial fair play in this state.” ( McCauley v. Superior Court (1961) 190 Cal.App.2d 562, 564 [ 12 Cal.Rptr. 119].)
“The purpose of the disqualification statute is . . . to promote fair and impartial trials. . . .” ( International Union of Operating Engineers v. Superior Court (1989) 207 Cal.App.3d 340, 349 [ 254 Cal.Rptr. 782].)

As stated by the Supreme Court, “`[i]n order to insure confidence in the judiciary and avoid the suspicion which might arise from the belief of a litigant that the judge is biased in a case where it may be difficult or impossible for the litigant to persuade a court that his belief is justified, the Legislature could reasonably conclude that a party should have an opportunity to obtain the disqualification of a judge for prejudice, upon a sworn statement, without being required to establish it as a fact to the satisfaction of a judicial body.'” ( Solberg v. Superior Court, supra,19 Cal.3d at pp. 192-193, quoting Johnson v. Superior Court, supra,50 Cal. 2d at p. 697.)

Accordingly, courts have long “recognized that in enacting . . . section 170.6 the Legislature guaranteed to litigants an extraordinary right to disqualify a judge. The right is `automatic’ in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required.” ( McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 531 [ 116 Cal.Rptr. 260, 526 P.2d 268], disapproved on another point in Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778, 799, fn. 18 [ 119 Cal.Rptr. 841, 532 P.2d 1209], citing Pappa v. Superior Court (1960) 54 Cal.2d 350, 353 [ 5 Cal.Rptr. 703, 353 P.2d 311], italics original; Mayr v. Superior Court (1964) 228 Cal.App.2d 60, 63 [ 39 Cal.Rptr. 240], quoted in Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 789 [ 171 Cal.Rptr. 590, 623 P.2d 151]; Solberg v. Superior Court, supra, 19 Cal.3d at p. 193; Kaiser Foundation Hospitals v. Superior Court (1987) 190 Cal.App.3d 721, 724 [ 235 Cal.Rptr. 630] ; Los Angeles County Dept. of Pub. Social Services v. Superior Court (1977) 69 Cal.App.3d 407, 411-412 [ 138 Cal.Rptr. 43], cited in Le Louis v. Superior Court, supra, 209 Cal.App.3d at p. 676; People v. Bonds (1988) 200 Cal.App.3d 1018, 1021 [ 248 Cal.Rptr. 5].)

[T]he high court has recently extended the Batson holding and given a defendant, regardless of race, standing to object to the racially discriminatory use of peremptory challenges. ( Powers v. Ohio (1991) 499 U.S. ___ [113 L.Ed.2d 411, 111 S.Ct. 1364].) cited

LEARN MORE ABOUT THE ABUSE OF CIVIL RIGHTS AND DIRECT BREACH OF CONSTITUTIONAL RIGHTS BY THE NEFARIOUS JUDGE CLOUDED CLASUTRO.

Judge Israel Claustro

213 S Muroc Pl
Fullerton, CA 92833
(714) 351-5277

Judge Julie Palafox lives JOIN US FOR PEACEFUL PUBLIC ASSEMBLY AT HER HOME, maybe the local community should get together and let her know she should resign.

WE WILL KEEP YOU POSTED ON THE DATE JUST REFRESH THE PAGE WEEKELY TO FIND THE DATE OF PEACEFUL PUBLIC PROTEST AT OUR LOCAL JUDGE THE CORRUPT JULIE A PALAFOX

213 S Muroc Pl Fullerton, CA 92833

1st amendment right to peaceful public assembly in front of any governement employees home to protest their abuse of civil rights and their sworn oath to the US Constituion

PEACEFUL ASSEBLY IN PUBLIC ON PUBLIC AREAS NOT BLOCKING ROADS AND PATHWAYS IS THE AMERICAN WAY TO DISAGREE WITH CROOKED EVIL LYING CRIMINAL GOVERNEMENT OFFICIALS

https://goodshepherdmedia.net/wp-content/uploads/2022/10/Kid-Rock-We-The-People-ft-Tucker-Carlson-Made-with-Clipchamp.mp4

NO IMMUNITY

“Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622 “Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

[a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits Bransom v. Standard Hardware, Inc., 874 S.W.2d 919,1994

Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. As found in Black’s Law Dictionary, Fifth Edition, page 509. “Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows, 91 U.S 426. “Fraud vitiates everything” Boyce v. Grundy, 3 Pet. 210

“Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61

See Pierce v. United States (“The Floyd Acceptances”), 7 Wall. (74 U.S.) 666, 677
(“We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority”);
Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 (“In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him… It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority”); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912 WHEREAS, officials and even judges have no immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983.

WHEREAS, officials and even judges have questioned immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983.

“When lawsuits are brought against federal officials, they must be brought against them in their “individual” capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity.” Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).“Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.” (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988). (HEAD DISTRICT ATTORNEY & HEADMASTER JUDGE)

“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings.” Hagans v. Lavine, 415 U. S. 533

“Judge acted in the face of clearly valid statutes or case law expressly depriving him of (personal) jurisdiction would be liable.” Dykes v. Hosemann, 743 F.2d 1488 (1984). “In such case the judge has lost his judicial function, has become a mere private person, and is liable as a trespasser for damages resulting from his unauthorized acts.”

“Where there is no jurisdiction there is no judge; the proceeding is as nothing. Such has been the law from the days of the Marshalsea, 10 Coke 68;
also Bradley v. Fisher, 13 Wall 335,351.” Manning v. Ketcham, 58 F.2d 948.

“A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter any authority exercised is a usurped authority and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” Bradley v.Fisher,13 Wall 335, 351, 352.

The laws of nature are the laws of God, whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict his cannot protect us. All human constitutions which contradict his (God’s) laws, we are in conscience bound to disobey. 1772, Robin v. Hardaway, 1 Jefferson 109. Supreme court cases from digging around Robin v. Hardaway 1790. Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

(I, Me, Myself am a “state”, with standing, standing in “original jurisdiction” know as the common law, Gods Law, a neutral traveling in itinerary, demanding all of my rights under God’s Natural Law, recorded in part in the Bible, which law is recognized in US Public Law 97-280 as “the word of God and all men are admonished to learn and apply it” so I demand anyone and everyone to notice God’s Laws, which are My Makers Laws and therefore My Laws!)

– Article 1 of the Bill of Rights – guarantees freedom of religion-
Constitution for the United States of America ARTICLE IV, sect. 1, Full faith and credit among states. (Self-executing constitutional provisions) Section 1. Full faith and Credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other state.

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326 When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost.

JURISDICTION: NOTE: It is a fact of law that the person asserting jurisdiction must, when challenged, prove that jurisdiction exists; mere good faith assertions of power and authority (jurisdiction) have been abolished.

Albrecht v. U.S. Balzac v. People of Puerto Rico, 258 U.S. 298 (1922) “The United States District Court is not a true United States Court, established under Article 3 of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under Article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts, in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court.”

“Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.” [U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)]

“No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.” Stump v. Sparkman, id., 435 U.S. 349.

Some Defendants urge that any act “of a judicial nature” entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing. A judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity. Marbury v. Madison, 5 U.S. (2 Cranch) 137, 180 (1803) “… the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”

“In declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank”. “All law (rules and practices) which are repugnant to the Constitution are VOID”. Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional. Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)

“Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.” Chandler v. Judicial Council of the 10th Circuit, 398 U.S. 74, 90 S. Ct. 1648, 26 L. Ed. 2d 100 Justice Douglas, in his dissenting opinion at page 140 said, “If (federal judges) break the law, they can be prosecuted.” Justice Black, in his dissenting opinion at page 141) said, “Judges, like other people, can be tried, convicted and punished for crimes… The judicial power shall extend to all cases, in law and equity, arising under this Constitution”.

Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938) A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts.

“Jurisdiction, once challenged, cannot be assumed and must be decided.” Maine v. Thiboutot, 100 S. Ct. 250

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.”

JUDICIAL IMMUNITY: See also, 42 USC 1983 – Availability of Equitable Relief Against Judges. Note: [Copied verbiage; we are not lawyers.] Judges have given themselves judicial immunity for their judicial functions. Judges have no judicial immunity for criminal acts, aiding, assisting, or conniving with others who perform a criminal act or for their administrative/ministerial duties, or for violating a citizen’s constitutional rights. When a judge has a duty to act, he does not have discretion – he is then not performing a judicial act; he is performing a ministerial act. Nowhere was the judiciary given immunity, particularly nowhere in Article III; under our Constitution, if judges were to have immunity, it could only possibly be granted by amendment (and even less possibly by legislative act), as Art. I, Sections 9 & 10, respectively, in fact expressly prohibit such, stating, “No Title of Nobility shall be granted by the United States” and “No state shall… grant any Title of Nobility.” Most of us are certain that Congress itself doesn’t understand the inherent lack of immunity for judges. Article III, Sec. 1, “The Judicial Power of the United States shall be vested in one supreme court, and in such inferior courts, shall hold their offices during good behavior.” Tort & Insurance Law Journal, Spring 1986 21 n3, p 509516, “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants’ civil rights.” – Robert Craig Waters.

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.” In re McCowan (1917), 177 C. 93, 170 P. 1100.

“All are presumed to know the law.” San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107; San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.” Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.” Maine v. Thiboutot, 448 U.S. 1 Mookini v. U.S., 303 U.S. 201 (1938) “The term ‘District Courts of the United States’ as used in the rules without an addition expressing a wider connotation, has its historic significance. It describes the constitutional courts created under Article 3 of the Constitution. Courts of the Territories are Legislative Courts, properly speaking, and are not district courts of the United States. We have often held that vesting a territorial court with jurisdiction similar to that vested in the district courts of the United States (98 U.S. 145) does not make it a ‘District Court of the United States’.

“Not only did the promulgating order use the term District Courts of the United States in its historic and proper sense, but the omission of provision for the application of the rules the territorial court and other courts mentioned in the authorizing act clearly
shows the limitation that was intended.”

In Leiberg v. Vitangeli, 70 Ohio App. 479, 47 N.E. 2d 235, 238-39 (1942) “These constitutional provisions employ the word ‘person,’ that is. anyone whom we have permitted to peaceably reside within our borders may resort to our courts for redress of an injury done him in his land, goods, person or reputation. The real party plaintiff for whom the nominal plaintiff sues is not shown to have entered our land in an unlawful manner. We said to her, you may enter and reside with us and be equally protected by our laws so long as you conform thereto. You may own property and our laws will protect your title. “We, as a people, have said to those of foreign birth that these constitutional guaranties shall assure you of our good faith. They are the written surety to you of our proud boast that the United States is the haven of refuge of the oppressed of all mankind.”

Court will assign to common-law terms their common-law meaning unless legislature directs otherwise. People v. Young (1983) 340 N.W.2d 805,418 Mich. 1.

Common law, by constitution, is law of state. Beech Grove Inv. Co. v. Civil Rights Com’n (1968) 157 N.W.2d 213, 380 Mich. 405. “Common law” is but the accumulated expressions of various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes. Semmens v. Floyd Rice Ford, Inc. (1965) 136 N.W.2d 704,1 Mich.App. 395.

Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another. seems to be intolerable on any country where freedom prevails, as being the essence of slavery.

Mattox v. U.S., 156 US 237,243. (1895) “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted.” Carolina v. U.S., 199 U.S. 437, 448 (1905). “The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”

When there is substantive issues to the court’s findings, and the court abused its discretion (see In re M.R. (2017) 7 Cal.App.5th 886, 902; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300) in terminating jurisdiction and issuing the custody orders.

When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S. 196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court.
In so voiding the title of the United States, the Court declared:“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.”

THIS CLARIFY YOU DON’T GET TO GO AROUND CHANGING IT FOR YOURSELF

28 U.S. Code § 144 – Bias or prejudice of judge

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

(June 25, 1948, ch. 646, 62 Stat. 898; May 24, 1949, ch. 139, § 65, 63 Stat. 99.)

Rule 2.3: Bias, Prejudice, and Harassment

(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Standing on YOUR rights as a citizen to use my rights as a citizen

Hale v. Henkel was decided by the united States Supreme Court in 1906. The opinion of the court states:
“The “individual” may stand upon “his Constitutional Rights” as a CITIZEN. He is entitled to carry on his “private” business in his own way. “His power to contract is unlimited.” He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. “His rights” are such as “existed” by the Law of the Land (Common Law) “long antecedent” to the organization of the State”, and can only be taken from him by “due process of law”, and “in accordance with the Constitution.” “He owes nothing” to the public so long as he does not trespass upon their rights.”

HALE V. HENKEL 201 U.S. 43 at 89 (1906)
Hale v. Henkel is binding on all the courts of the United States of America until another Supreme Court case says it isn’t. No other Supreme Court case has ever overturned Hale v. Henkel

None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

Miller v. U.S., 230 F.2d. 486,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.”

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called ‘the tenderness of the law Page 11 of 48 for the rights of individuals’ [FN1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not ‘plainly and unmistakably’ within the confines of the statute. United States v. Lacher, 134 U.S. 624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080; United States v. Gradwell, 243 U.S. 476,485, 37 S. Ct. 407, 61 L. Ed. 857. FN1 United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.

We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168,196 [26: 377, 386]. We said in Boyd v. United States, 116 U. S. 616, 630 [29: 746, 751]—and it cannot be too often repeated—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employs of the sanctity of a man’s home, and the privacies of his life. As said by Mr. Justice Field in Re Pacific R. Commission, 32 Fed. Rep. 241,250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”

Harris v. Harvey (1979) The jury concluded that Harvey was not eligible for judicial immunity for these actions, as such acts which were not part of the judge’s normal duties (i.e. were “outside his jurisdiction”). The jury awarded Harris $260,000 damages. Another judge later added $7,500 legal fees. The United States Court of Appeals for the Seventh Circuit concurred with the jury’s decision. Judge Harvey petitioned the Seventh Circuit court for an en banc rehearing, which was denied. His petition to the Supreme Court was also denied. Harris v. Harvey is the first case in the United States where a sitting court judge has been sued and lost in a civil action; it is a binding precedent in the Seventh Circuit and is persuasive authority in the other circuits.

Supreme Court of Virginia v. Consumers Union (1980) Consumers Union filed a lawsuit in federal court against the Supreme Court of Virginia and others, under 42 U.S.C. § 1983, seeking to have the regulation declared unconstitutional and to enjoin the defendants from enforcing it.^[22] The U.S. Supreme Court affirmed the Supreme Court of Virginia’s legislative immunity:

People v. Superior Court (Jones ) (1998) 18 Cal.4th 667, 680-681, 76 Cal.Rptr.2d 641, 958 P.2d 393.) “Findings of fact are reviewed under a ‘substantial evidence’ standard.” ( Ibid. )

Under this standard, ” ‘a trial court’s ruling will not be disturbed, and reversal of the judgment [or order] is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ( People v. Hovarter (2008) 44 Cal.4th 983, 1004, 81 Cal.Rptr.3d 299, 189 P.3d 300 ; see People v. Kipp (1998) 18 Cal.4th 349, 371, 75 Cal.Rptr.2d 716, 956 P.2d 1169 [“[a] court abuses its discretion when its ruling ‘falls outside the bounds of reason’

Marbury v. Madison, 5 U.S. (2 Cranch) 137, 180 (1803) “… the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.” Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional.

State v. Sutton, 63 Min 147, 65 NW 262, 30 LRA630, AM ST 459 When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetuated, and no one is bound to obey it.

Norton vs. Shelby County, 118 US 425 p. 442. “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”

Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA. History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”

SIMMONS v US, supra. “We find it intolerable that one constitutional right should have to be surrendered in order to assert another”

PROTECTING THE INDIAN CHILD WELFARE ACT AT THE Federal LEVEL

The Truth News — Wed, 16 Aug 2023 20:07:01 +0000

PROTECTING THE INDIAN CHILD WELFARE ACT AT THE Federal LEVEL

Supreme Court upholds Indian Child Welfare Act

The Supreme Court issued a landmark victory for tribal sovereignty in Brackeen v. Haaland.

The ACLU of Utah, the national ACLU, and the ACLUs of Northern California, Alaska, Arizona, Maine, Montana, Nebraska, New Mexico, Oklahoma, South Dakota, Texas, and Washington filed an amicus brief to the Supreme Court urging the court to uphold the constitutionality of ICWA.

The Supreme Court issued a landmark victory for tribal sovereignty by rejecting all the constitutional challenges to the Indian Child Welfare Act (ICWA) in Brackeen v. Haaland, requiring state courts to make active efforts to protect Native children and keep Native families together. Congress passed ICWA in 1978 to address the nationwide crisis of state child welfare agencies tearing Native children from their families and placing them in non-Native homes, in an attempt to force Native children to assimilate and adopt white cultural norms.

Since 1978, 14 states have passed their own state ICWA laws to strengthen the implementation of all aspects of the Indian Child Welfare Act. Now that the Supreme Court has reaffirmed ICWA, now is the time for states to take action and pass their own state laws building on the protections in the federal law. The map below shows where states have already enacted such state laws.

Fighting to Keep Native Families Together
Less than half of Native Americans live in a state with an ICWA law on the books. Email your state representatives and urge them to pass or update their state ICWAs to protect Native children and recognize placement preferences created by tribal governments.

Along with essential procedural protections, the federal ICWA created a placement preference to promote the stability and security of Native American tribes and families. For any adoption of a Native child under state law, preference must be given to placements with: (1) a member of the child’s extended family; (2) other members of the Native child’s tribe; or (3) families from other Native American tribes. The majority of state ICWA laws incorporate identical or near-identical placement preference language as the federal ICWA, with a few exceptions. For example, some states prioritize placements with families of other Native American tribes that are of similar cultures to the Native child, while other states create a fourth preference for non-Native families that are committed to maintaining the child’s connection to their tribe and culture.By Anu Joshi, Deputy Director, ACLU’s Equality Division source

Supreme Court upholds Indian Child Welfare Act

The nation’s highest court on Thursday upheld the legality of the Indian Child Welfare Act in a historic decision for tribal law and sovereignty.

Judges for the U.S. Supreme Court ruled 7-2 in Haaland v. Brackeen that the Act was constitutional. Challengers to the law claimed the Act discriminated against non-Native families, Congress did not have the authority to pass the Act, and that the act was anti-commandeering.

“But the bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.” U.S. Supreme Court Judge Amy Coney Barrett wrote in the opinion of the court.

President Joe Biden said he stood alongside tribal nations in the celebration of the court’s decision and nations’ “painful history” of the forced assimilation of Native children loomed over the decision.

“These were acts of unspeakable cruelty that affected generations of Native children and threatened the very survival of Tribal Nations,” Biden said in a press release. “The Indian Child Welfare Act was our Nation’s promise: never again.”

ICWA was enacted in 1978 by Congress to govern the removal and out-of-home placement of Native American children after it was found Native children were removed from their homes and communities at a higher rate than non-Native children.

According to the Act, the child’s biological family is given first preference, followed by members of the child’s tribe, then members of any other tribe, with placement with a non-Native American family as a last resort.

The Act clarifies tribal nations have sovereignty and exclusive jurisdiction over their members who reside on tribal land and establishes a process for transferring cases to tribal court in other cases.

Thursday’s decision came after a federal judge in Texas first ruled the Act unconstitutional in 2018.

A white couple, Chad and Jennifer Brackeen, sought to adopt a 10-month-old Native American child. The child remained in the couple’s custody for more than a year when a Texas state judge used ICWA in a ruling to place the child with a Native family.

The Brackeens later won custody of the child in state court with the decision later appealed to the Northern District of Texas.

U.S. District Judge Reed O’Connor ruled the Act unconstitutional and wrote in his opinion the racial classification of children has not been shown to serve a “compelling governmental interest” and found the Act violated the Fifth, Tenth, and Fourteenth amendments of the U.S. Constitution.

O’Conner’s decision was appealed to the Fifth Circuit Court of Appeals and a panel of three judges upheld the constitutionality of ICWA “with partial dissent.” That led to an en banc panel of 16-judges within the Fifth Circuit split in the constitutionality of the Act.

The en banc panel’s decision was then appealed to the nation’s highest court with argument in the case held in November 2022.

Cherokee Nation Principal Chief Chuck Hoskin Jr., whose tribe was a party in the case, celebrated Thursday’s decision.

“Today’s decision is a major victory for Native tribes, children, and the future of our culture and heritage,” Hoskin said in a release following the decision. “ It is also a broad affirmation of the rule of law, and of the basic constitutional principles surrounding relationships between Congress and tribal nations.”

Hoskin said he hopes the decision will end the political attacks aimed at diminishing tribal sovereignty.

Choctaw Nation Chief Gary Batton said in a release the tribe is glad to see ICWA stand and that the Act remains a critical part of protecting Native American heritage and tribal sovereignty.

“The Choctaw Nation will continue to support children and families through its foster care system, Indian Child Welfare team, tribal attorneys and over 100 tribal services,” Batton said.

U.S. Supreme Court Justice Neil Gorsuch wrote in a concurring opinion that it is often Native American tribes come to the court seeking justice “only to leave with bowed heads and empty hands.”

“But that is not because this court has no justice to offer them. Our Constitution reserves for the tribes a place—an enduring place— in the structure of American life,” Gorsuch wrote. “It promises them sovereignty for as long as they wish to keep it.”

Gorsuch wrote the Constitution gave the federal government and Congress certain power aimed at “building a lasting peace” and that Congress passed the Act to give Native American parents the right to raise their families as they please and Native children to grow in the culture and the communities of Native Americans “to resist fading into the twilight of history.

“All of that is in keeping with the Constitution’s original design,” Gorsuch wrote. source

NATIONAL INDIAN LAW LIBRARY

Topic 1. Application

Disclaimer: A Practical Guide to the Indian Child Welfare Act is intended to facilitate compliance with the letter and spirit of ICWA and is intended for educational and informational purposes only. It is not legal advice. You should consult competent legal counsel for legal advice, rather than rely on the Practical Guide.

APPLICABLE FEDERAL LAW

25 U.S.C. § 1903. Definitions

(1) “child custody proceeding” shall mean and include—

(i) “foster care placement” which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;

(ii) “termination of parental rights” which shall mean any action resulting in the termination of the parent-child relationship;

(iii) “preadoptive placement” which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and

(iv) “adoptive placement” which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.

(4) “Indian child” means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe . . .

Disclaimer: The above provisions of the Indian Child Welfare Act are set forth to facilitate consideration of this particular topic. Additional federal, state or tribal law may be applicable. Independent research is necessary to make that determination.

QUESTIONS & ANSWERS

1.1 – When does the ICWA apply?
1.2 – What are the exceptions to ICWAs application?
1.3 – What is the so-called Existing Indian Family exception (EIF)?
1.4 – Who is an Indian Child under the ICWA?
1.5 – What is an Indian tribe under ICWA?
1.6 – Who determines membership or eligibility for membership?
1.7 – Who has the burden to prove an Indian child is involved?
1.8 – What if the childs Indian heritage is uncertain?
1.9 – What if more than one tribe has an interest in the Indian child?

1.1 – When does the ICWA apply?

Only two prerequisites must be satisfied for the Indian Child Welfare Act (ICWA) to apply. The first requirement is the presence of an Indian child as defined by 1903(4). That section defines an Indian child as an unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe . . . . The second requirement is that the child custody proceeding be one as defined by 1903(1); that is, a foster care placement; termination of parental rights; pre-adoptive placement; or adoptive placement.

Practice Tip:

Practitioners should review state law and intergovernmental agreements as they may expand the protection of the ICWA, such as by expanding the definition of an Indian child. MINN. STAT. 257.0651 (1992); IOWA CODE 232.7 (2003).

Back to Question List

1.2 – What are the exceptions to ICWA’s application?

After defining those proceedings to which the ICWA does apply, the Act states: [s]uch term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents. 25 U.S.C. 1903(1). Thus, ICWA expressly provides for only two exceptions to its applicability: certain juvenile criminal proceedings based on a status crime, such as underage drinking which only a minor can commit, and divorce cases. There are no other exceptions.

Even so, a Montana court excluded an intra-family custody dispute finding that it was not a child custody proceeding because the Act is not directed at disputes between Indian families regarding custody of Indian children; rather, its intent is to preserve Indian cultural values under circumstances in which an Indian child is placed in a foster home or other protective institution. In re Bertelson, 617 P.2d 121 (Mont. 1980). See also In re Sengstock, 477 N.W.2d 310 (Wis. Ct. App. 1991); Comanche Nation v. Fox, 128 S.W.3d 745 (Tex. App. 2004). Other courts have expressly rejected the Bertelson analysis as contrary to the express provision of the Act enumerating which proceedings are excluded; that is, certain juvenile crimes and divorce cases. All other proceedings involving the custody of an Indian child fall within the ambit of the Act. Comanche Indian Tribe of Okla. v. Hovis (Hovis I), 847 F. Supp. 871 (W.D. Okla. 1994); D.J. v. P.C., 36 P.3d 663 (Alaska 2001); J.W. v. R.J., 951 P.2d 1206 (Alaska 1998); In re D.A.C., 933 P.2d 993 (Utah Ct. App. 1997); In re Q.G.M., 808 P.2d 684 (Okla. 1991); In re A.K.H., 502 N.W.2d 790 (Minn. Ct. App. 1993); In re S.B.R., 719 P.2d 154 (Wash. Ct. App. 1986); In re Jennifer A., 127 Cal. Rptr. 2d 54 (Ct. App. 2002); In re Lindsay C., 280 Cal. Rptr. 194 (Ct. App. 1991); In re Crystal K., 276 Cal. Rptr. 619 (Ct. App. 1990). Another court applied ICWA without deciding the intra-family issue because of the parties implicit assumption that ICWA applied to the situation. In re Anderson, 31 P.3d 510 (Or. Ct. App. 2001).

Practice Tip:

Counsel should be aware that although a case may start as a delinquency proceeding, ICWA may apply to subsequent child placements (i.e. foster care) based upon a determination that a return to the childs home would be inappropriate.

Back to Question List

1.3 – What is the so-called Existing Indian Family exception (EIF)?

The Existing Indian Family exception (EIF) is a judicially-created exception to the ICWA that originated in In re Baby Boy L., 643 P.2d 168 (Kan. 1982). In that case, the court held that the ICWA did not apply to an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be. The court interpreted the ICWA as being only concerned with removal of Indian children from an existing Indian family unit. Id. at 175. Although narrowly interpreted in subsequent cases, a Washington court required that in addition to an Indian child being removed from an Indian family, the child was to be returned to an existing Indian family unit or environment. In re Crews, 825 P.2d 305, 310 (Wash. 1992). The Crews decision appears to have been statutorily superseded. See WASH. REV. CODE 26.10.034(1), 26.33.040(1), 13.34.040(3) (2004).

The EIF exception has been raised to a constitutional level by two appellate districts of California (Second and Fourth). In re Bridget R., 49 Cal. Rptr. 2d 507 (Ct. App. 1996); In re Santos Y., 112 Cal. Rptr. 2d 692 (Ct. App. 2001); In re Alexandria Y., 53 Cal. Rptr. 2d 679 (Ct. App. 1996). These cases hold that the child and his or her parents, and maybe even the extended family when involved, must have a significant social, political and cultural relationship to their tribal culture to uphold the constitutionality of the ICWA under federal law.

The EIF, however, has been implicitly and explicitly rejected by courts and legislatures in a number of states that have addressed the issue.

States rejecting the EIF exception by decision

Alabama: S.H. v. Calhoun County Dept of Human Res., 798 So. 2d 684 (Ala. Civ. App. 2001)
Alaska: J.W. v. R.J., 951 P.2d 1206 (Alaska 1998); In re T.N.F., 781 P.2d 973 (Alaska 1989); A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982)
Arizona: Michael J., Jr. v. Michael J., Sr., 7 P.3d 960 (Ariz. Ct. App. 2000)
California: four of six appellate districts: In re Lindsay C., 280 Cal. Rptr. 194 (Ct. App. 1991) (1st Dist.); In re Junious M., 193 Cal. Rptr. 40 (Ct. App. 1983) (certified for partial publication) (1st Dist.); In re Crystal K., 276 Cal. Rptr. 619 (Ct. App. 1990) (3d Dist.); In re Hannah S., 48 Cal. Rptr. 3d 605 (Ct. App. 2006) (3d Dist.); In re Desiree F., 99 Cal. Rptr. 2d 688 (Ct. App. 2000) (5th Dist.); In re Alicia S., 76 Cal. Rptr. 2d 121 (Ct. App. 1998) (5th Dist.); In re Vincent M., 59 Cal. Rptr. 3d 321 (Ct. App. 2007) (6th Dist.)
Colorado: In re N.B., No. 06CA1325 (Colo. Ct. App. Sept. 6, 2007)
Idaho: In re Baby Boy Doe (Baby Boy Doe I), 849 P.2d 925 (Idaho 1993)
Illinois: In re S.S., 657 N.E.2d 935 (Ill. 1995)
Indiana: In re D.S., 577 N.E.2d 572 (Ind. 1991)
Iowa: In re R.E.K.F., 698 N.W.2d 147 (Iowa 2005)
Michigan: In re Elliott, 554 N.W.2d 32 (Mich. Ct. App. 1996)
Montana: In re Riffle (Riffle II), 922 P.2d 510 (Mont. 1996)
New Jersey: In re Child of Indian Heritage (Indian Child II), 543 A.2d 925 (N.J. 1988)
New York: In re Baby Boy C., 805 N.Y.S.2d 313 (App. Div. 2005)
North Carolina: In re A.D.L., 612 S.E.2d 639 (N.C. Ct. App. 2005)
North Dakota: In re A.B., 2003 ND 98, 663 N.W.2d 625
Oklahoma: In re Baby Boy L., 2004 OK 93, 103 P.3d 1099
Oregon: Quinn v. Walters (Quinn II), 881 P.2d 795 (Or. Ct. App. 1994)
South Dakota: In re Baade, 462 N.W.2d 485 (S.D. 1990)
Texas: In re W.D.H., III, 43 S.W.3d 30 (Tex. App. 2001); Doty-Jabbaar v. Dallas County Child Protective Servs., 19 S.W.3d 870 (Tex. App. 2000)
Utah: In re D.A.C., 933 P.2d 993 (Utah Ct. App. 1997)

States upholding ICWAs constitutionality, including those rejecting the EIF exception

Arizona: In re Pima County Juvenile Action No. S-903, 635 P.2d 187 (Ariz. Ct. App. 1981)
California: In re Vincent M., 59 Cal. Rptr. 3d 321 (Ct. App. 2007) (6th Dist.)
Colorado: In re N.B., No. 06CA1325 (Colo. Ct. App. Sept. 6, 2007)
Illinois: In re Armell, 550 N.E.2d 1060 (Ill. App. Ct. 1990
Maine: In re Marcus S., 638 A.2d 1158 (Me. 1994)
Michigan: In re Miller, 451 N.W.2d 576 (Mich. Ct. App. 1990)
Montana: In re Riffle (Riffle II), 922 P.2d 510 (Mont. 1996)
North Dakota: In re A.B., 2003 ND 98, 663 N.W.2d 625
Oklahoma: In re Baby Boy L., 2004 OK 93, 103 P.3d 1099
Oregon: In re Angus, 655 P.2d 208 (Or. Ct. App. 1982)
South Dakota: In re D.L.L., 291 N.W.2d 278 (S.D. 1980)

States rejecting the EIF exception by statute

California: CAL. WELF. & INST. CODE 224(a)(1) (2006); CAL. R. CT. 5.664
Iowa: Iowa Indian Child Welfare Act, IOWA CODE 232B.5(2) (2003)
Minnesota: Minnesota Indian Family Preservation Act, MINN. STAT. 260.751, .755, .761, .765, .771 (1999)
Oklahoma: Oklahoma Indian Child Welfare Act, OKLA. STAT. tit. 10 40.1-.3 (1994)
Washington: WASH. REV. CODE 26.10.034(1), 26.33.040(1), 13.34.040(3) (2004) (superseding In re Crews, 825 P.2d 305 (Wash. 1992))

States adopting the EIF exception by decision

California: two of six appellate districts: In re Bridget R., 49 Cal. Rptr. 2d 507 (Ct. App. 1996) (2d Dist.); In re Santos Y., 112 Cal. Rptr. 2d 692 (Ct. App. 2001) (2d Dist.); In re Derek W., 86 Cal. Rptr. 2d 742 (Ct. App. 1999) (2d Dist.); In re Alexandria Y., 53 Cal. Rptr. 2d 679 (Ct. App. 1996) (4th Dist.)
Kansas: In re Baby Boy L., 643 P.2d 168 (Kan. 1982)
Kentucky: Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996)
Louisiana: Hampton v. J.A.L., 27-869 (La. App. 2 Cir. 7/6/95); 658 So. 2d 331
Missouri: C.E.H. v. L.M.W., 837 S.W.2d 947 (Mo. Ct. App. 1992); In re S.A.M., 703 S.W.2d 603 (Mo. Ct. App. 1986)
Tennessee: In re Morgan, No. 02A01-9608-CH-00206, 1997 WL 716880 (Tenn. Ct. App. Nov. 19, 1997)
Washington: In re Crews, 825 P.2d 305 (Wash. 1992), superseded by WASH. REV. CODE 26.10.034(1) 26.33.040(1), 13.34.040(3) (2004)

The EIF exception still has vitality in the two California appellate districts (Second and Fourth) that have adopted a constitutionally-based EIF exception and one division within the Second District that has adopted it as an interpretation of ICWA. The exception is followed in Kentucky, Missouri and Tennessee (an unreported decision) which have no federally recognized tribes. In Kansas and Louisiana, whose courts have refused to apply the EIF exception following the one decision upholding it, the validity of the exception may be in doubt. In re S.M.H., 103 P.3d 976 (Kan. Ct. App. 2005); In re J.J.G., 83 P.3d 1264 (Kan. Ct. App. 2004); In re A.P., 961 P.2d 706 (Kan. Ct. App. 1998); In re H.A.M., 961 P.2d 716 (Kan. Ct. App. 1998); In re H.D., 729 P.2d 1234 (Kan. Ct. App. 1986); Owens v. Willock, 29-595 (La. App. 2 Cir. 2/26/97); 690 So. 2d 948.

At the Federal level, the Supreme Court in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), implicitly rejected the EIF exception when it interpreted the ICWA to apply to Indian children who were placed for adoption and who never physically lived in an Indian home or on an Indian reservation prior to being placed with non-Indian prospective adoptive parents. Id. at 54. The Court made a threshold determination that the ICWA applied to these children. Id. at 42. It found that the state court proceeding at issue was an adoptive placement as defined by 1903(1)(iv) of the Act and that the children involved were Indian children as defined by 1903(4) of the Act even though they had never lived in an Indian home or on an Indian reservation. The Court relied on the plain language of the ICWA in its application to the facts.

Back to Question List

1.4 – Who is an Indian Child under the ICWA?

An Indian child is an unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe . . . . 25 U.S.C. 1903(4). A key link to this definition is the meaning of Indian tribe.

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1.5 – What is an Indian tribe under ICWA?

Indian tribe is defined as any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians including any Alaska Native village as defined in section 1602(c) of title 43. 25 U.S.C. 1903(8). It means only federally recognized tribes. Canadian tribes, and other foreign Indian tribes, and non-federally recognized tribes are therefore excluded from its coverage.

From time to time, the Secretary of the Interior publishes a list of federally recognized tribes eligible for federal services and benefits. Indian Entities Recognized and Eligible to Receive Services From the United States Bureau of Indian Affairs. Most courts use this list to determine whether the Indian childs tribe, and thereby its children, are protected by the Act.

The Secretary, from time to time, will federally acknowledge an Indian tribe under the federal acknowledgment regulations contained at 25 C.F.R. Part 83 (2007). A newly-acknowledged tribe will not appear on the list of federally recognized tribes until the Secretary updates the list. If in doubt, a practitioner should contact the Office of Federal Acknowledgment (OFA), Bureau of Indian Affairs (BIA), Washington, D.C. Also, OFA keeps a list of non-federally acknowledged tribes which have filed a letter of intent to file a petition for federal acknowledgment or have filed a petition. The practitioner may want to consult this list to determine if claimed ancestry of the parent or child is to a non-federally recognized tribe.

In addition, Congress will from time to time reaffirm or restore government-to-government relations with a tribe whose relationship was terminated during the termination era of the 1950s when the United States severed its government-to-government relationship with a number of Indian tribes and thereby withdrew eligibility for federal services provided to Indians because of their status as Indians. Also, the Congress will at times federally acknowledge Indian tribes by legislation. See, e.g., Federal Recognition of Mashantucket Pequot Tribe, 25 U.S.C. 1758 (2000). The practitioner should contact the Assistant Secretarys Office of the Bureau of Indian Affairs, Washington, D.C.

Practice Tip:

Practitioners should review state law and intergovernmental agreements as they may expand the protection of the ICWA, such as by expanding the definition of an Indian tribe.

Back to Question List

1.6 – Who determines membership or eligibility for membership?

For ICWA purposes, the tribe or Alaskan Native village has the sole power to decide membership. In re A.G., 2005 MT 81, 326 Mont. 403, 109 P.3d 756; In re A.L.W., 32 P.3d 297 (Wash. Ct. App. 2001).

Back to Question List

1.7 – Who has the burden to prove an Indian child is involved?

The party seeking to establish the application of the ICWA has the initial burden to establish a prima facie case that an Indian child may be involved, although all parties and the court have a continuing obligation to inquire as to the status of the child. See, e.g., COLO. REV. STAT. 19-1-126 (2002); IOWA CODE 232B.4 (2000). There is no one proof of membership, although courts generally agree that an Indian childs enrollment in an Indian tribe is conclusive proof of membership. Tribal enrollment however, is not the only means of establishing membership. In re T.L.G., 108 P.3d 156 (Wash. Ct. App. 2005). Some tribes automatically include a person as a member if the person descended from a tribal member who was listed on the tribal rolls as of a specific date. In re Arianna R.G., 2003 WI 11, 259 Wis. 2d 563, 657 N.W.2d 363. Thus, in some instances, courts have remanded for proper notice even where the parent offered no proof of membership and was not enrolled in a tribe. In re Gerardo A., 14 Cal. Rptr. 3d 798 (Ct. App. 2004); Dwayne P. v. Superior Court, 126 Cal. Rptr. 2d 639 (Ct. App. 2002).

A tribe may determine that a child is not enrollable but later change its determination and enroll the child. In re E.S., 964 P.2d 404 (Wash. Ct. App. 1998). Once membership, or eligibility for membership, is established, and the ICWA is applied and accepted as applicable by all the parties, a party may not later change its mind and take a contrary position on appeal. In re R.L., 961 P.2d 606 (Colo. Ct. App. 1998); In re N.S., 474 N.W.2d 96 (S.D. 1991).

Back to Question List

1.8 – What if the childs Indian heritage is uncertain?

One purpose of ICWA notice is to enable the tribe or BIA to investigate and determine whether the minor is an Indian child. In re Gerardo A., 14 Cal. Rptr. 3d 798 (Ct. App. 2004). Some information relating to Indian heritage must be provided to the court or entity seeking placement for notice to be sent to a tribe(s) or BIA area office. If the tribes identity is unknown, notice must be sent to the BIA as agent for the Secretary of the Interior. In re Antoinette S., 129 Cal. Rptr. 2d 15 (Ct. App. 2002). See also FAQ 4.11. An unsubstantiated belief a child has Indian heritage is not conclusive to establish such heritage. See, e.g., In re Arianna R.G., 2003 WI 11, 259 Wis. 2d 563, 657 N.W.2d 363.

The BIA Guidelines are helpful in determining under what circumstances a court has reason to know that a child is an Indian child under the ICWA. The Guidelines describe the following circumstances under which a state court has reason to believe a child involved in a child custody proceeding is an Indian child:

(1) Any party to the case, Indian tribe, Indian organization or public or private agency informs the court that the child is an Indian child.

(2) Any public- or state-licensed agency involved in child protection services or family support had discovered information which suggests that the child is an Indian child.

(3) The child who is the subject of the proceeding gives the court reason to believe he or she is an Indian child.

(4) The residence or domicile of the child, his or her biological parents, or the Indian custodian is known by the court to be or is shown to be a predominantly Indian community.

(5) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child.

Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,586 (Nov. 26, 1979) (guidelines for state courts).

Back to Question List

1.9 – What if more than one tribe has an interest in the Indian child?

In this situation, a court is called upon to determine which tribe has more significant contacts with the Indian child, although notice should be sent to each tribe regardless of the final determination. The BIA Guidelines are helpful in guiding a court to make its determination. The Guidelines list at least eight factors for a court to consider in determining which tribe has the most significant contacts for the purpose of designating the Indian childs tribe under the ICWA, especially for the purpose of transfer of jurisdiction. See Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,587 (Nov. 26, 1979) (guidelines for state courts).

For the tribe that has the lesser contacts, the Guidelines provide that it still could be granted a right of intervention without undermining the right of the tribe with greater contacts. The tribe with lesser contacts could also be afforded the ability to serve as a placement preference under 1915 the Act.

In South Dakota, a state court determined jurisdiction by looking at the childs domicile and the tribe with whom the child had the most significant contacts. The state court found jurisdiction vested in the tribe on whose reservation the child was domiciled and with whom the child had the most contacts, and not the tribe in which the child was enrolled. Cf. In re T.I., 2005 SD 125, 707 N.W.2d 826.

Practice Tip for tribal courts:

If the situation is not an emergency, two tribes that would have jurisdiction over a case, because the child is a tribal member or eligible for tribal membership in either tribe, should talk with each other about which tribal court should accept transfer jurisdiction under the Act to hear the case. At times, as for example in Alaska, a cooperative agreement can be worked out between the tribal courts to form a joint tribal court panel.

In emergencies, the tribal court that begins to handle a case should be recognized by the other tribal court to have priority jurisdiction until the tribal courts can sort out which court has primary jurisdiction. source

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

The Truth News — Fri, 11 Aug 2023 04:50:57 +0000

https://goodshepherdmedia.net/wp-content/uploads/2022/11/Fort-Minor-Remember-the-Name.mp3

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

Prior to the California Supreme Court’s decision in Wilson vs. Cable News Network, Inc., California Courts of Appeal were split on whether California’s anti-SLAPP statute applied to an employee’s claims of discrimination and retaliation. The Supreme Court in Wilson resolved this split in favor of the statute’s application, bringing a welcome bit of good (albeit narrowly tailored) news to California employers.

California Code of Civil Procedure section 425.16 is referred to as the anti-SLAPP statute. The term “SLAPP” refers to Strategic Lawsuits Against Public Participation, which are meritless lawsuits brought against critics in order to silence their criticism. Section 425.16 was first passed by the California legislature in 1992 due to its concern that real estate developers were attempting to bully project opponents into submission by filing frivolous litigation. This section provides a procedure for a defendant to challenge a pleading via a special motion to strike. In order to succeed on the challenge, the defendant must demonstrate that the claim or claims at issue arise out of protected speech or petitioning activity. If the defendant can make this showing, then the burden shifts to the plaintiff to demonstrate that the claim or claims have probable validity. If the plaintiff makes this showing, then the defendant’s motion is denied. If not, then the claim or claims at issue are dismissed and the defendant is entitled to his, her, or its attorneys’ fees and costs.

With this in mind, it is clear that the anti-SLAPP laws can be a powerful weapon if wielded correctly. And that is where the Supreme Court’s decision in Wilson comes into play, both with good news and bad news.

First the good news. Prior to Wilson, some California Courts of Appeal had held that the anti-SLAPP statute does not apply to claims of discrimination and/or retaliation by an employer. The reasoning of these courts was that a claim for discrimination and retaliation did not arise out of any protected speech or petitioning activity by the employer, even if the alleged adverse action implicated protected speech or petitioning activity. Rather, such actions arose out of the employer’s improper motivation in proceeding with the allegedly improper contact. For this reason, employer defendants could not satisfy the first prong of the anti-SLAPP statute.

The Supreme Court in Wilson rejected that reasoning and held that while claims for discrimination and retaliation do arise out of an employer’s improper motivation, they also arise out of the adverse action itself, which action may implicate protected speech. For this reason, and if the adverse action at issue does implicate conduct protected by the anti-SLAPP statute, the statute applies regardless of the allegations of improper motive.

This brings us to the bad news. Specifically, the category of cases and situations in which an employer’s alleged discrimination and retaliation implicates protected speech or petitioning activity for the purposes of the anti-SLAPP statute is limited. This is particularly true of private employers whose operations do not generally concern issues of public concern, which play a significant role in the relevant analysis. In Wilson, such conduct was implicated because the defendant was CNN – an international news organization reporting on international events. The same will generally not be true for a restaurant or general contractor who is alleged to have discriminated or retaliated against one of its employees.

Despite its narrow application, Wilson is good news for California employers and a case that needs to be kept in mind when defending against employment claims to determine if there is a way to tie such claims to protected speech. Beyond that, Wilson is also helpful in defending against arguments that laws of general application do not apply in the employment context. source

learn more about Anti-SLAPP:

Anti-SLAPP Law in California 1st Amendment Freedom of Press & Speech

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Anti Slapp Law Resources:

Anti-SLAPP Law in California

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Attorney Liability for Meritless Litigation Leading to Harm

Court tosses disbarred lawyer’s suit over newspaper article

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

Anti-SLAPP Law Cases – Case Law Summaries & Citings

Free Speech, the First Amendment, and Social Media

How Anti-SLAPP Laws Protect Your Right to Free Speech

Code of Civil Procedure – Section 425.16 California’s Anti-SLAPP Law

WRITS and WRIT Types in the United States

The Truth News — Tue, 25 Jul 2023 00:00:48 +0000

WRITS and WRIT Types in the United States

The Supreme Court (under Article 32) and the high courts (under Article 226) can issue the writs.

1. Habeas Corpus Means ‘to have the body of’. It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it

2. Mandamus Means ‘we command’. It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform.

3. Prohibition Means ‘to forbid’. Issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.

4. Certiorari Means ‘to be certified’ or ‘to be informed’. Issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order.

5. Quo-Warranto Means ‘by what authority or warrant’. It is issued by the court to enquire the legality of claim of a person to a public office.

INTRODUCTION

When we got independence, our forefathers gave us some rights and provided us with some rules and regulations with common consensus in the name of the constitution. The objective was to create a superstructure that could govern the nation by installing the rights in the hands of people and whenever there is a threat to human rights, the constitution will safeguard the innocent.

In our Constitution, fundamental rights hold extraordinary significance as they guarantee basic civic liberties for the citizens. Notwithstanding, note that these rights will lose all their importance if a wronged individual doesn’t have any component to move toward the court for infringement of his basic rights. Subsequently, keeping in see this need, the forefathers of our Constitution give us the “right to constitutional remedy” under Articles 32 and 226 of the constitution. We can move toward the court for the issuance of a specific writ for the insurance of our privileges. In this article, we will investigate the importance of Articles 32 and 226. We will likewise dive profound into the significance and sort of writs that can be given by our hon’ble courts.

Presently the inquiry emerges that what is a writ? The significance of the word ‘Writs’ signifies order recorded as a hard copy for the sake of the Court. It is an authoritative record given by the court that arranges an individual or element to play out a particular demonstration or to stop playing out a particular activity or deed. Orders, warrants, bearings, summons, and so forth are all basically writs. A writ appeal is an application recorded under the watchful eye of the skilled Court mentioning it to give a particular writ.

There are five kinds of writ – habeas corpus, mandamus, quo-warranto, prohibition, and certiorari.

Who can file a writ petition? A writ request can be documented by any individual whose Fundamental Rights have been encroached by the State. Under a Public Interest Litigation, any open energetic individual may document a writ request in light of a legitimate concern for the overall population regardless of whether his own Fundamental Right has not encroached.

Where can a writ petition be filed? Under Article 32, a writ appeal can be documented in the Supreme Court. The Supreme Court can give a writ in particular if the candidate can demonstrate that his Fundamental Right has encroached. Under Article 226, a writ appeal can be documented under the steady gaze of any High Court inside whose purview the reason for activity emerges, either entirely or to some extent.

TYPES OF WRIT

HABEAS CORPUS.

It is a real sense signifies “to have a body of”. This writ is utilized to deliver an individual who has been unlawfully confined or detained. By ideals of this writ, the Court coordinates the individual so confined to be brought before it to analyze the legitimateness of his detainment. Assuming the Court reasons that the detainment was unlawful, it guides the individual to be delivered right away.

Conditions of unlawful detention are: The confinement was not done as per the method set down. For example, the individual was not created before a Magistrate within 24 hours of his arrest. The individual was captured when he didn’t abuse any law. A capture was made under a law that is illegal.

This writ guarantees a quick legal audit of the supposed unlawful detainment of the detainee and prompt assurance of his entitlement to opportunity.

In the case of Sunil Batra v. Delhi Administration[1], an application was made to the Supreme Court through a letter composed by a co-convict on the abuse of the detainees. This letter was taken up by the Supreme Court and it gave the writ of habeas corpus expressing that this writ can not exclusively be utilized against illicit capture of the detainee yet additionally for his insurance against any abuse or cruel conduct by the keeping specialists.

In the case of Bhim Singh v State of J and K, Bhim Singh[2], a MLA of State of J and K was improperly captured and confined in the police headquarters and was kept from going to the State Legislative Assembly. The Court granted an amount of Rs.50,000 to the applicant as pay for the infringement of his Constitutional right of individual freedom under Art. 21.

MANDAMUS

A writ of mandamus, which in Latin signifies “we order, or once in a while “we command”, is the name of this right writ in the common law. It is given by a better court than force a lower court or an administration official to perform obligatory or absolutely ecclesiastical obligations accurately.

Mandamus is an order by the Supreme Court or High Courts to any open power to do or not to accomplish something in the idea of public obligation. It is given against the people or specialists who neglect to play out their compulsory obligations. For the motivation behind giving writ of mandamus, the official should have a pubic obligation and should neglect to perform such obligation. The candidate of this writ should likewise have the option to constrain the presence of some obligation cast upon the power.

In the case of Barada Kanta Adhikary v. The State of West Bengal[3], it was held that the writ of mandamus doesn’t lie against a private individual or private association since they are not dependent on a public obligation.

QUO-WARRANTO

It signifies ‘what is your authority?’ It is an Order scrutinizing the authority of an individual holding a public office. It is given against the holder of a public office calling upon him to show with what authority he holds such office. The object of this writ is to control the leader’s activity in making arrangements to the public workplaces and furthermore to shield general society from usurpers of public workplaces.

In the case of Jamalpur Arya Samaj Sabha v Dr. D. Smash,[4] the individual from the Working Committee of the Bihar Arya Samaj Sabha held the workplace for more than the recommended residency. The High Court would not issue the Writ of Quo Warranto on the ground that it was a private affiliation.

In the case of K.Bhima Raju v State of Andhra Pradesh[5], the Government pleader was named contrary to the principles. The solicitor documented a writ of Quo Warranto. The High Court suppressed the arrangement of Government Pleader on the ground that the arrangement was not made as per rules.

PROHIBITION

It signifies ‘to prevent. Each Court is relied upon to act inside the restrictions of their purview. A writ of preclusion is given to keep a substandard Court or Tribunal from surpassing its locale, which isn’t legitimately vested, or acting without a ward or acting contrary to the standards of common equity. The writ of Prohibition can be given against the Courts as well as against the specialists practicing legal or semi-legal capacities.

When can a Writ of Prohibition be granted? When the inferior Court or quasi-judicial authority exceeds its jurisdiction. When the inferior Court acts without lawful jurisdiction. When the inferior Court or quasi-judicial authority acts against the rule of natural justice. When there is an apparent error on the face of the judicial record.

When is the Writ of Prohibition not issued? At the point when the Court acts inside its legitimate ward. At the point when the Court notices standards of normal equity.

CERTIORARI

It intends ‘to certify’. Certiorari is a curative writ. It is an Order by the Supreme Court or the High Courts to a substandard Court to eliminate a suit from such second rate Court and mediate upon the legitimacy of the procedures or to suppress the Orders of the sub-par Court. Writ of Certiorari can be given against any second rate Courts as well as against a body practicing legal or semi-legal capacities. This writ is given under the administrative or unique ward and not under the redrafting purview. Any individual whose central right is abused can apply for a Writ of Certiorari.

When a writ of Certiorari can’t be allowed? To eliminate pastoral demonstrations. To eliminate or drop leader acts. To pronounce an Act as unlawful or void.

In the case of Rafiq Khan v State of UP[6], the Magistrate kept up the conviction of the charge as passed by a Panchayat Adalat which is no1 approved under Section 85 of the U. P. Panchayat Raj Act, 1947. Henceforth, the High Court subdued the conviction by a writ of certiorari.

CONCLUSION

The privilege to protected cure is a piece of our fundamental construction and it can never be repealed. Our Constitution has conceded the preeminent ability to give the writ to the Supreme Court and the High court according to Articles 32 and 226 individually.

Author’s Name: Harshita Swami (Guwahati University)

Image Reference

[1] (1978) 4 SCC 409

[2] AIR 1986 SC 494

[3] AIR 1963 Cal 161

[4] AIR 1954 Pat. 297

[5] AIR 1981 AP 24

[6] AIR 1954 All 3

source

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN:
Click Here Officers and DA’s for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF file

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

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Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

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We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

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We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

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Penal Code 134 PC – Preparing False Evidence

Penal Code 118.1 PC – Police Officer$ Filing False Report$

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Penal Code 148.5 PC – Making a False Police Report in California

Penal Code 115 PC – Filing a False Document in California

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

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Mi$Conduct – Pro$ecutorial Mi$Conduct

Prosecutor$

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Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

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National District Attorneys Association puts out its standards
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ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

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Petition for a Writ of Mandate or Writ of Mandamus

The Truth News — Mon, 24 Jul 2023 22:44:36 +0000

peremptory writ of mandate (or mandamus)

A peremptory writ of mandate, or mandamus, is a judicial writ (i.e. order) to any governmental body, government official, or lower court requiring that the they perform an act or cease to act where the court finds that an official law, duty or judgment requires them to do so. That is, it is a type of mandamus writ, since the court is compelling another governmental body to do an act. However, it differs from an alternative writ of mandate in that a lower court or government body has already been established that the act that the court compels in the peremptory writ of mandate must be completed. The defendant has no further opportunities to contend their subjection to the writ; a peremptory writ of mandate is absolute and unqualified. For example, in Sholtz v. U.S., the Circuit Court of Appeals, Fifth Circuit affirmed the issuance of a peremptory writ of mandate which required Florida state officials for the treasury department to pay a judgment, their liability therefor a lower court had established. As another example, the California Superior Court in California Building Industry Assoc’n v. State Water Resource Control Bd. issued a peremptory writ of mandate to compel the State Water Resource Control Board to halt the implementation of certain environmental standards where the invalidity of the standards has already been established. source

However, courts generally recognize the coercive nature of peremptory writs of mandate, and usually require that the defendant have notice of the petition of the writ and, if the case is of first instance, an opportunity to present their arguments. For example, California Code of Civil Procedure § 1088 requires that “[w]hen the application to the court is made without notice to the adverse party, and the writ is allowed, the alternative must be first issued; but if the application is upon due notice and the writ is allowed, the peremptory may be issued in the first instance.” Additionally, the California Court of Appeal in Campbell v. Superior Court illustrates an instance where defendants to a peremptory writ of mandate had the opportunity to present new evidence at a hearing to adjudge whether the writ should be issued. 2009 California Code of Civil Procedure – Section 1084-1097 :: Chapter 2. Writ Of Mandate

Master the distinctions between mandamus and mandate

Here we will discuss the difference and try to teach you.

Overview

The writ of mandate developed around 150 years ago to allow for judicial action when all else failed. Since then, its evolution has produced confused interpretations of the writ’s essential aspects. This article provides practical guidance for employing mandate and mandamus writs in California: which writ to bring, whether both would be appropriate and desirable, and how to anticipate the fact that a court always retains equitable discretion to deny a petition. This article concludes with a brief survey of structural changes that would do away with administrative mandamus and even the traditional writ of mandate altogether, save for the most extreme cases.

Analysis

Historical origins

The concept of mandamus traces back at least to 1615 with James Bagg’s Case,^[1] and some scholars suggest its roots reach even further back to the Magna Carta and medieval times.^[2] Originally it operated as a “prerogative writ,” brought exclusively by the British Crown.^[3] Over time subjects gained the ability to use the writ, but the authority underpinning it still rested with the Crown.^[4] Much like the contemporary writ, mandamus served to “compel public officials to perform their legal duties toward others.”^[5] Historically, the terms mandate and mandamus have been used interchangeably, but in California practice there is a fundamental distinction between the two, which is explained in more detail below.

Mandamus was written into the earliest versions of California’s Code of Civil Procedure (later amended to the modern California usage mandate), and in the 1930s it proved to be the only viable solution for reviewing decisions of state and local agencies. As citizens of a newly chartered state, early California politicians were tasked with developing and implementing a new legal system. Elisha Crosby, the first Senate Judiciary Committee chair, argued vigorously for adopting a common law system rather than a civil law system.^[6] He succeeded, and in 1851 the state legislature enacted the California Practice Act, which was based largely on the Field Code from New York and included provisions for writs of prohibition, mandamus, and certiorari.^[7] In 1872 the Practice Act became the California Code of Civil Procedure, and its sections on extraordinary writs remain largely the same today.^[8] These writs are denominated extraordinary relief because they are equitable last-resort remedies that are available only when no ordinary procedural vehicle is available.

The next major event in the writ’s evolution occurred with the emergence of the administrative state in the early 1900s, when the common law writ of mandate evolved to allow for judicial review of agency decisions. Applying this extraordinary relief to ordinary situations presented a judicial conundrum: by its nature mandate implicates the separation of powers. The essence of the writ is a judicial order compelling other officers to perform a duty, which presents the risk of overextending judicial branch authority. The next section explains how courts resolved that problem.

Evolution of administrative mandamus

While the traditional writ of mandate was adopted and implemented without issue in California courts, administrative mandamus developed in the mid-1930s as a last resort for reckoning with the growing administrative state. Faced with novel agencies that rapidly increased in number and powers, courts struggled with determining if and how they could review agency orders and decisions. There are three basic types of writs that a court could employ for that purpose: certiorari, which allows a court to review an inferior tribunal’s exercise of discretion; ^[9] prohibition, which allows a court to arrest the proceedings of an inferior tribunal;^[10] and mandate or mandamus, which allows a court to compel an inferior tribunal or officer to perform some duty.^[11] Early in this evolutionary process, the California Supreme Court rejected the writs of certiorari and prohibition in the administrative context.

In 1936, the California Supreme Court in Standard Oil Co. v. State Bd. of Equalization foreclosed the writ of certiorari as an option for dealing with agency decisions. The case involved the Board of Equalization and its decision to assess additional retail taxes against the petitioner.^[12] The legislature had by statute provided for court review of certain board decisions, which effectively amounted to certiorari by another name. The state high court explained that the legislature cannot enlarge a court’s jurisdiction without constitutional authority.^[13] Worse, courts could only entertain writs of certiorari for judicial decisions, and accepting certiorari review would effectively confer judicial functions on the administrative agency.^[14] Since the legislature could neither expand the courts’ jurisdiction nor create a new judicial institution, the writ of certiorari was abandoned as a method for reviewing agency decisions.^[15]

Just a year later, in Whitten v. State Bd. of Optometry the California Supreme Court barred using the writ of prohibition to review agency decisions, relying on separation of powers concerns.^[16] As with certiorari, the court construed prohibition as applying only to the “restraint of a threatened exercise of the judicial power in excess of jurisdiction” and therefore inapplicable to the determination of a decidedly non-judicial agency.^[17] Again, the legislature lacked the power to create new judicial institutions by statute.

After rejecting certiorari and prohibition, that left just mandamus. The court in Whitten suggested that mandamus could lie to review administrative decisions, and the California Supreme Court adopted that view just a few years later in Drummey v. State Bd. of Funeral Directors and Embalmers.^[18] Drummey is important because it resolved the separation of powers problem: rather than being prevented by separation of powers concerns from reviewing agency decisions, that doctrine instead required judicial review. Agency decisions like this implicate constitutional property rights, and the separation of powers doctrine would be violated if courts could not review such deprivations: “[T]here is no warrant for the view that the judicial power of a competent court can be circumscribed by any legislative arrangement designed to give effect to administrative action going beyond the limits of constitutional authority.”^[19] And having previously rejected certiorari and prohibition, “mandate is the only possible remedy available to those aggrieved by administrative rulings” of this nature.^[20]

The legislature codifiedDrummey in 1945 with the Administrative Procedure Act. The APA adopted administrative mandamus as the appropriate avenue for reviewing agency decisions under Code of Civil Procedure section 1094.5.^[21] The APA authorizes courts to issue extraordinary relief by writ of administrative mandamus to “any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station . . . .”^[22] Any duty provided for by law — counting votes, levying taxes, suspending professional licenses — may be compelled through the writ under the right circumstances and according to the court’s discretion.

Mandamus and mandate are different

In this writ’s ancient beginnings mandamus and mandate had no distinction and were used interchangeably, but in current California practice they are distinct. Present-day writers often confuse the terms and use them synonymously; understandably so, given the historical evolution described above. But knowing what now distinguishes them is important. Mandate refers to the traditional writ, codified in Code of Civil Procedure sections 1085 and 1086, which require the absence of a “plain, speedy, and adequate remedy” as a basis for extraordinary relief.^[23] Mandamus refers to the administrative writ, and it is almost always preceded by the modifier administrative. Administrative mandamus is codified in sections 1094.5 and 1094.6. One should avoid saying administrative mandate — that’s not a thing.

The distinction between traditional mandate and administrative mandamus stems from the distinction between legislative and adjudicatory decisions.^[24] Legislative matters involve “the adoption of a broad, generally applicable rule of conduct on the basis of public policy,” while adjudicatory decisions “affect an individual as determined by facts peculiar to that individual.”^[25] As with many legal binaries, the extremes are easily categorized, but the “middle ground . . . is not clear at all.”^[26] In practice, the writs can be distinguished by the end goal. If one individual seeks to overturn one agency determination, use mandamus. If the petitioner hopes to change the way the agency makes a determination, use mandate. Finally, while most administrative mandamus cases must be filed first in the trial court, traditional mandate petitions may be brought in any court under its original jurisdiction. Note that writ petitions filed first in an appellate court likely will be rejected with directions to refile in the trial court — but if the facts are settled and an entire class of people is impacted then a higher court may be willing to intervene.^[27]

Traditional mandate

Traditional mandate can touch any area wherein an individual has a clear and certain right and a public official or agency has a duty.^[28] The writ may also be invoked when a party is unlawfully precluded from enjoying a right, including civil rights.^[29] In determining whether an official has a particular duty, courts look to statutes, constitutional provisions, and other precedential decisions. There must be a present duty to perform; the writ cannot compel an official to perform a “future act” based on speculation that the official would refuse, nor an act “which it is too late to perform.”^[30] That present duty must also be rooted in statutes as enacted, because statements of legislative intent do not create “any affirmative duty that is enforceable via writ of mandate.”^[31] Unlike declaratory relief, which “simply pronounces the duty to perform,” mandate “commands performance.”^[32] (The term mandate means “an authoritative order” or “formal command.”)^[33]

Writ relief is discretionary

Because it is an extraordinary remedy, writ relief is at the court’s discretion. Courts, in their “wise discretion” and “to a considerable extent,” control mandate proceedings.^[34] They can transform a petition for a writ of habeas corpus into a writ of mandate.^[35] They can deny the writ even when the requirements seem to be fully satisfied.^[36] Thus, although litigants are advised to only raise issues of law during mandate proceedings at the appellate level,^[37] the courts may use their discretion when faced with questions of fact. Ultimately, “the petitioner’s right to relief is determinable by the facts as they existed at the time the petition was filed,”^[38] but when and how those facts are determined is up to the court. One Court of Appeal justice described it: “We deny the vast majority of [writ] petitions we see and we rarely explain why.”^[39]

Compelling Duty

Even when a duty exists, courts do not require public officials to attain perfect performance of those duties. And before mandating that a duty be performed, courts may consider the extent to which the party has performed or has attempted to perform the duty. ^[40] When courts do find a duty, they may not compel the performance of that duty or the exercise of discretion “in a particular manner”^[41] unless there is but one “proper interpretation”^[42] of how the duty can be performed. Similarly, the court can correct an officer’s “erroneous conception”^[43] of his or her duties but cannot compel specific action beyond the correction. And courts cannot “command a person to perform an act beyond that enjoined by law upon him as a duty pertaining to his office or position.”^[44]

Although these principles seem to restrict a court’s ability to control the action compelled through mandate, some courts have offered guideposts to direct the party performing the mandated duty. In Ley v. Dominguez the court reminded the city clerk that “[u]nder the law, he should exercise his powers and perform his duties in such a manner as will, whenever possible, protect rather than defeat the right of the people to exercise their referendary powers.”^[45] In similar cases, courts have repeated this reminder that the clerk’s duty serves a right that is “precious to the people” when discussing how the clerk should go about performing that duty.^[46]

Similarly, in Palmer v. Fox, the court ordered the performance of a duty with specific directions. The plaintiffs were denied a residential building permit because of racially discriminatory deed restrictions. The court not only mandated that defendants issue the permit, but also required that plaintiffs receive “prompt and courteous treatment by defendant.” ^[47] Directing official behavior beyond the official’s bare duties (do your job, and be nice about it) is a striking example of the broad powers of writ relief. Although courts cannot dictate how a duty should be performed, they may use writ relief to remind officials of the substantial rights that are served by their performance.

Establishing Facts

The traditional writ is the rare exception to the rule that appellate courts do not gather new evidence. Code of Civil Procedure section 1090 provides for a jury trial — on appeal — if a question of fact is raised during mandate proceedings.^[48] At least once, a party in the California Supreme Court requested a factual hearing under this section.^[49] Predictably, the court denied the request, stating that trial by jury is “singularly inappropriate for appellate courts.”^[50] Rather than engage in fact-finding or dismiss the case, the court issued a writ of mandate tailored to avoid the disputed facts and address only the question of law.^[51]

When disputed facts arise on appeal in a mandate proceeding, the appellate court likely will reverse and remand with instructions to the trial court. For example, in Stone v. Bd. of Directors of Pasadena, the court held that, if facts alleged were true, then the writ of mandate should issue.^[52] But some “controverted issues which should be determined by the trial court” remained, and so the court could neither issue the writ itself nor order the trial court to do so.^[53] Alternatively, when a mandate writ with disputed facts arrives at the appellate level, courts may dismiss the case and advise the litigants to begin again at the trial court.^[54]

Administrative mandamus

Code of Civil Procedure sections 1094.5 and 1094.6 provide a complex pleading procedure for administrative mandamus. Nonetheless, areas of uncertainty and strange results persist. For example, section 1094.5 states that the reviewing court may apply either independent judgment or review for substantial evidence. If the court issues the writ, then the respondent may appeal the decision, and in that situation the appellate court treats the superior court as if it made a decision on the facts in the first instance.^[55] Yet that was not the case — the trial court was acting as a reviewing court. The upshot is that the appellate court determines if the trial court abused its discretion, and the trial court in turn determined if the agency abused its discretion.^[56] The central question of the case (the agency determination) moves to the periphery, and the lower court’s finding becomes the focus of the appellate review.

Another source of confusion is that some of the traditional writ (sections 1085 and 1086) procedures apply to section 1094.5 proceedings, raising questions as to whether other unwritten but persistent interpretations from traditional writ of mandate cases may apply. The exhaustion of remedies requirement is not mentioned in the text of section 1094.5. But it is required in traditional mandate, and exhaustion is often mentioned as a requirement for administrative mandamus.^[57] This reflects the ancient nature of writ relief as an extraordinary remedy that will only lie where no other adequate remedy exists at law. The result: administrative mandamus should only lie where administrative direct review fails or does not exist.

Choosing between mandate and mandamus — or not

If a case satisfies the administrative mandamus requirements, then a petitioner must plead that writ.^[58] Yet parties may also request section 1085 relief — in the same pleading — particularly if there is an argument that an agency decision will have an impact beyond the petitioner’s individual case.^[59] The upshot is that a party might plead either mandate or mandamus, or request both in the same pleading. And courts have discretion to consider one writ as the other when faced with a pleading that erroneously pleads the incorrect writ.^[60] But note that if a party chooses the wrong writ, on appeal the matter may be reversed and retried under the proper section, “even if nobody objected!”^[61]

A court’s prerogative cuts both ways

The equitable discretion that permits courts to grant extraordinary relief is a two-edged sword. Even if a petitioner satisfies the requirements of writ of mandate or administrative mandamus, it is the court’s prerogative to draw upon their equitable discretion to deny relief.^[62]

Because Code of Civil Procedure section 1085 gives no guidance on when writ relief is appropriate, courts have developed common law guidance. For example, in Bartholomae Oil Corp. v. Super. Ct. of San Francisco, the court explained that the writ “is not a matter of right but involves a consideration of its effect in promoting justice. Its issuance or refusal to a considerable extent lies within the sound discretion of the court.”^[63] Similarly, if compelling some individual or agency to perform a duty would align with the letter of the law but insult its spirit, then the court has the equitable power to deny that relief.^[64]

That common law guidance conflicts somewhat with section 1086, which in mandatory language states: “the writ must be issued in all cases where there is not a plain, speedy, and adequate remedy.”^[65] These seemingly contradictory principles can be reconciled by examining the points at which courts exercise their discretion in deciding mandamus cases. For example, courts analyze whether “one has a substantial right to protect or enforce” and whether “this may be accomplished by such a writ.”^[66] If a court finds that a right is too abstract, that other remedies are available, or that writ relief would be fruitless, the court is not required to issue the writ.^[67] On the other hand, if a substantial right exists, that mandamus would prevent injustice, and that no other avenue for relief is available, then “it would be an abuse of discretion to refuse it.”^[68] That equitable discretion even permits granting writ relief when no abuse of discretion occurred.^[69]

The bottom line is that in deciding traditional writ of mandate proceedings, courts are held to much the same standard as the officials they are being asked to compel: they may exercise their discretion, unless there is only one way to do so. And the same equitable discretion applies to both traditional writ of mandate proceedings and to administrative mandamus. Despite the intricacies and complexities of section 1094.5, an imperfect petition may nonetheless be granted if it would achieve justice.

Finally, remember that writ relief will not permit a court to direct the legislature. Lawmaking is the opposite of a ministerial duty.^[70] The legislature holds wide discretion in exercising its powers.^[71] Take, for instance, coming together during a legislative session to enact laws.^[72] Some commentators have suggested that the state legislature could be sued with a writ of mandate petition for its inaction around meeting remotely during the pandemic.^[73] Courts generally refrain from telling lawmakers how to do their jobs, but they very well may have the authority to tell lawmakers to, at the very least, do their jobs.

Conclusion

Writ practice in California, and especially writ of mandate and administrative mandamus, is essential to developing state law, safeguarding the public interest, and vindicating individual rights. The California Supreme Court has issued writs of mandate against a wide range of executive officials, from city clerks all the way to the governor.^[74] Laws may be invalidated when considered under a traditional writ of mandate petition.^[75] And writs were at the procedural core of some of the most significant cases in California Supreme Court jurisprudence.^[76]

Regardless of the future of administrative mandamus and traditional mandate, one thing remains certain: without a constitutional amendment cabining the original jurisdiction of the courts, some extraordinary relief procedure will persist. It releases the system’s inequitable pressure, providing a remedy for rights that have none. Because the power underlying the common law writs stems from the state constitution, the legislature cannot by statute unravel a century and a half of writ jurisprudence.

For the most extraordinary cases, where individuals or groups suffer a violation but enjoy no recourse in the usual course of law, extraordinary relief is the only option. These hard cases sometimes result in significant, groundbreaking decisions, and practitioners should know how to recognize the situations that call for mandate or mandamus. Success lies in the framing: the hard-and-fast elements of traditional mandate give way when equity demands it, and courts locate and employ their discretion accordingly.

—o0o—

Rachel Thompson is a research fellow at the California Constitution Center.

Flint, The Evolving Standard for the Granting of Mandamus Relief in the Texas Supreme Court: One More Mile Marker down the Road of No Return (2007) 39 St. Mary’s L.J. 3. ↑
Howell, An Historical Account of the Rise and Fall of Mandamus (1985) 15 Victoria U. Wellington L.Rev. 127, 129–32. ↑
Id. at 128. ↑
Ibid.↑
Flint, supra note 1, at 18. It was brought to restore individuals to public office, command outgoing officers to deliver records to successors, and require courts to render final judgments. Id. at 16 n.34. ↑
See Crosby, Memoirs of Elisha Oscar Crosby: Reminiscences of California and Guatemala from 1849 to 1864 (1945) 57–59. ↑
Blume, Adoption in California of the Field Code of Civil Procedure: A Chapter in American Legal History (1966) 17 Hastings L.J. 701. ↑
See Moskowitz, Spinning Gold into Straw: The Ordinary Use of the Extraordinary Writ of Mandamus to Review Quasilegislative Actions of California Administrative Agencies (1980) 20 Santa Clara L.Rev. 351, 365. ↑
Cal. Civ. Proc. § 1068. ↑
Id. § 1102. ↑
Id. § 1085(a). ↑
Standard Oil Co. v. State Bd. of Equalization (1936) at 559. ↑
Ibid.↑
Ibid.↑
Id. at 565. This decision came as a surprise to attorneys and the lower courts, who had been using certiorari in this nature for years, and one historian claimed in 1964 that “probably no California case has caused more comment.” Clarkson, The History of the California Administrative Procedure Act (1964) 15 Hastings L.J. 237, 241. ↑
Whitten v. State Bd. of Optometry (1937). ↑
Id. at 445. ↑
Drummey v. State Bd. of Funeral Directors and Embalmers (1939) at 77. ↑
Id. at 85 (quoting St. Joseph Stock Yards Co. v. United States (1936) at 52); see also Laisne v. Cal. State Bd. of Optometry (1942) at 835 (“[A]ppellant would be deprived of his constitutional right unless he had a right to into a court of law and question the validity of [the agency’s] order.”). ↑
Drummey at 83. ↑
Clarkson, supra note 15. ↑
Cal. Code Civ. Proc. § 1085. ↑
Witkin referred to this as a “mystical concept,” explaining that “the test of inadequacy of remedy is to a large extent an exercise of pure, uncontrolled discretion.” Witkin, Extraordinary Writ — Friend or Enemy? (1954) 29 J. State Bar Cal. 467, 471. ↑
See Saleeby v. State Bar (1985) at 560. ↑
Asimow, A Modern Judicial Review Statute to Replace Administrative Mandamus (Nov. 1993) in 27 Cal. Law Revision Com. Rep. 403, 414. ↑
Ibid.↑
See, e.g., Mooney v. Pickett (1971). ↑
For instance, courts can compel issuing a building or use permit (Court House Plaza Co. v. Palo Alto (1981)); signing a bond or warrant (Paso Robles War Memorial Hospital Dist. v. Negley (1946)); compliance with a city charter (Squire v. San Francisco (1970)); and the publication of a parking district ordinance (Palm Springs v. Ringwald (1959)). Although not discussed at length here, writs of mandate may also be used as a means of judicial review of court decisions. For instance, a reviewing court can compel a lower tribunal to exercise jurisdiction (Golden Gate Tile Co. v. Super. Ct. of San Francisco (1911) 159 Cal. 474); to prevent improper discovery proceedings (Harabedian v. Super. Ct. of Los Angeles County (1961)); and to set a case for trial (Lindsay Strathmore Irrigation Dist. v. Super. Ct. of Tulare County (1932) 121 Cal.App. 606). SeeAppellate Review in California with the Extraordinary Writs (1948) 36 Calif. L.Rev. 75 for a more extensive discussion; see also Friedhofer, To Writ or Not To Writ? Taking the Drama Out of Deciding to File a Petition for Writ of Mandate (2005) League of California Cities — City Attorneys Spring Conference. ↑
See, e.g., Piper v. Big Pine School Dist. (1924) 193 Cal. 664, 667 (holding it unconstitutional to deny a Native American child access to a public school on the basis of her race). ↑
Treber v. Super. Ct. (1968) at 134. ↑
Physicians Com. for Responsible Medicine v. Los Angeles Unified School Dist. (2019) at 189 (citing Common Cause v. Bd. of Supervisors (1989) at 444. ↑
Berkeley Unified School Dist. v. City of Berkeley (1956) at 845. ↑
Mandate, Merriam-Webster Dictionary (accessed Feb. 25, 2021); Mandamus, Black’s Law Dictionary (11th ed. 2019) (tracing the term’s roots to the Latin for “we command”). ↑
Wheelright v. County of Marin (1970) at 457. ↑
Escamilla v. Cal. Dept. of Corrections & Rehabilitation (2006) at 419. ↑
Fawkes v. City of Burbank (1922) 188 Cal. 399, 401. ↑
See Fowler, Mandamus as an Original Proceeding in the California Appellate Courts (1963) 15 Hastings L.J. 177, 179. ↑
American Distilling Co. v. City Council of Sausalito (1950) at 666; seeChrist v. Super. Ct. (1931) 211 Cal. 593, citing United States ex rel. International Contracting Co. v. Lamont (1894) 155 U.S. 303, 308. ↑
Science Applications Internat. Corp. v. Super. Ct. (1995) at 1100. ↑
See, e.g., Sutro Heights Land Co. v. Merced Irrigation Dist. (1931) 211 Cal. 670, 704–05 (“[D]efendant . . . is endeavoring to comply with the requirements of said statute. While it has not succeeded in discharging this duty to its fullest extent, it has done all that could reasonably be required of it with the money available for that purpose.”). ↑
Common Cause v. Bd. of Supervisors (1989) at 442. ↑
Anderson v. Phillips (1975) at 737. ↑
Consolidated Printing & Publishing Co. v. Allen (1941) at 66. ↑
Davis v. Porter (1885) 66 Cal. 658, 659. ↑
Ley v. Dominguez (1931) 212 Cal. 587, 602. ↑
Wheelright at 458–59; see alsoRakow v. Swain (1960) at 899; Reites v. Wilkerson (1950) at 829. ↑
Palmer v. Fox (1953) at 455, 457. ↑
Administrative mandamus, on the other hand, expressly states that the court sit without a jury. Cal. Code Civ. Proc. § 1094.5(a). ↑
Mooney at 682–83. ↑
Id. at 683 (quotation and citation omitted). ↑
Id. at 671. ↑
Stone v. Bd. Of Directors of Pasadena (1941) at 754. ↑
Ibid.↑
Robinson v. Moran (1935) at 637 (dismissing the case without prejudice because “the several issues of fact presented in this proceeding may readily be determined in the superior court”); Boone v. Kingsbury (1928) 206 Cal. 148, 179, 194 (asserting that “the pleadings in this proceeding should have been settled and the disputed questions of fact found and determined by the superior court” and dismissing the petitions marred by disputed facts before rendering a final decision on the questions of law). ↑
State Bd. of Medical Examiners (1948) at 316–18 (Traynor, J., dissenting). ↑
See id.↑
See Kumar v. Nat. Medical Enterprises, Inc. (1990) at 1055; see alsoBollengier v. Doctors Medical Center (1990). ↑
Asimow, supra note 25, at 412. ↑
See Conlan v. Bonta (2002) at 793–94. ↑
See, e.g., Escamilla at 411 (concluding that the “petition for writ of habeas corpus should be treated as a petition for writ of mandamus” given the circumstances). ↑
Asimow, supra note 25, at 410. ↑
See Witkin, supra note 23, at 470 (“[T]his vital and expanding part of our review system is still clouded with a completely anachronistic theory of prerogative power. . . . [T]his results in denying a writ to a petitioner entitled to it under the existing precedents, or in issuing it to a petitioner not entitled to it under those precedents (and both have happened often) . . . .”). ↑
Bartholomae Oil Corp. v. Super. Ct. (1941) at 730 (citations omitted). ↑
Clough v. Baber (1940) at 53; see alsoWiedwald v. Dodson (1892) 95 Cal. 450, 453, 454 (holding that a statute, when strictly applied, would lead to the disincorporation of the town of San Pedro, which exceeded the true purpose of the statute). ↑
SeeMay v. Bd. of Directors (1949) at 133–34 (holding that although petitioner could have gone to the superior court for relief, the Court would nonetheless mandate the local government to take action); Betty v. Super. Ct. (1941) at 622 (explaining that the possibility of a procedural appeal did not foreclose the Court issuing a writ of mandate). ↑
Gay v. Torrance (1904) 145 Cal. 144, 147–48. ↑
Id. at 147. ↑
Id. at 148. ↑
For example, in Curtin v. Dept. of Motor Vehicles (1981) the trial court granted petitioner’s writ although it found no error in the DMV’s suspension of the petitioner’s license. Curtin at 485 (“One’s entitlement to a writ of mandate is largely controlled by equitable principles. The same equitable principles will apply to administrative mandamus . . . .”). ↑
See Howard Jarvis Taxpayers Assn. v. Padilla (2016) at 497–98 (“[T]he Legislature has the actual power to pass any act it pleases, subject only to those limits that may arise elsewhere in the state or federal Constitutions.”) ↑
See, e.g., Legislature v. Deukmejian (1983) at 665–66 (“[T]he normal arguments in favor of the ‘passive virtues’ suggest that a court not adjudicate an issue until it is clearly required to do so.”). But some challenges are allowed pre-election. SeeSenate v. Jones (1999). ↑
Cal. Const., Art. IV, sec. 3(a). ↑
Carrillo & Duvernay, Why Isn’t California’s Legislature Meeting Remotely? (July 16, 2020) The Recorder. ↑
See, e.g., Harpending v. Haight (1870) 39 Cal. 189, 213 (“Would the . . . great officers of State, by reason of their mere official rank, be beyond the reach of the process of the law in all cases, and not be compelled to perform any official act, no matter how distinctly enjoined upon them? . . . It seems to us that the assertion of such a doctrine would draw after it the most serious complication and confusion . . . and practically disrupt the whole fabric of government.”). ↑
See, e.g., Perez v. Sharp (1948) (holding unconstitutional a law that forbade interracial marriages and mandating a county clerk to issue a marriage license to an interracial couple); Davis v. Municipal Court (1988) (reversing the Court of Appeal’s holding that a section of the penal code was unconstitutional on separation of powers principles and denying the petition for writ of mandate). ↑
See, e.g., Lockyer v. City and County of San Francisco (2004); Strauss v. Horton (2009)
source

Petition for a Writ of Mandate

The writ of mandate is a type of extraordinary writ in the U.S. state of California.^[1]^[2] In California, certain writs are used by the superior courts, courts of appeal and the Supreme Court to command lower bodies, including both courts and administrative agencies, to do or not to do certain things. A writ of mandate may be granted by a court as an order to an inferior tribunal, corporation, board or person, both public and private.^[3] Unlike the federal court system, where interlocutory appeals may be taken on a permissive basis and mandamus are usually used to contest recusal decisions, the writ of mandate in California is not restricted to purely ministerial tasks, but can be used to correct any legal error by the trial court. Nonetheless, ordinary writ relief in the Court of Appeal is rarely granted.

Writs are generally divided into two categories: the most common form of writ petition is ordinary mandate, which is a highly informal process mostly governed by advisory rules of court rather than by strict rules or statutes. A separate and much more formalized procedure called administrative mandate is used to review certain decisions by administrative agencies after adjudicatory hearings, and are distinguished from ordinary writ proceedings by the addition of a panoply of statutory requirements.^[4] Despite the name, however, ordinary mandate encompasses a wider variety of administrative appeals than administrative mandate does, and an administrative mandate petition may allege ordinary mandate as another cause of action.^[5] Many common writ petitions directed towards administrative bodies, such as actions to compel the disclosure of public records,^[6] do not share the requirements of administrative mandate as there is no ‘adjudicatory hearing’.

A petition for a writ of mandate is a request for a court to review an agency’s decision and issue a writ directing the agency to set aside, reconsider, or take some other action. The terms “mandamus” and “mandate” are synonymous.

A writ of mandate can be issued by any court to any inferior tribunal, corporation, board, or person to compel the performance of an act that the law specially enjoins. For example, a writ of mandate can be used to challenge an agency’s failure to follow its legal obligation or ministerial duty.

You can’t file a petition for a writ of mandate until you’ve exhausted all administrative remedies. There’s no set time limit for filing a petition for a common law writ.

The three-part test for issuing a writ of mandamus is that the petitioner must have a clear legal right to the requested relief, the agency must have an indisputable duty to perform the requested action, and the petitioner must have no other options.

PETITION FOR A WRIT OF MANDATE IN A MISDEMEANOR, INFRACTION, OR LIMITED CIVIL CASE

Information on Proceedings for Writs in the Appellate Division of the Superior Court

PETITIONS FOR WRIT OF MANDATE: WHEN TO FILE THEM AND WHAT TO SAY

PETITIONS FOR WRIT OF MANDATE Sample:

Petition for a Writ of Mandamus

Petition for a Writ of Mandamus – What is a writ of mandamus?

Here we will discuss the difference and try to teach you.

What is a writ of mandamus?

A writ of mandamus is a remedy that can be used to compel a lower court to perform an act that is ministerial in nature and that the court has a clear duty to do under law. When filing a petition for writ of mandamus, you must show that you have no other remedy available.

A writ of mandamus is different from an appeal. It asks the higher court to order the lower court to rule on some issue, but does not tell the judge how to rule. In an appeal, you would be asking the higher court to rule that the trial court made an error at the trial, such as improperly admitting evidence or giving incorrect jury instructions.

When Can a Writ of Mandamus Be Filed?

There is no time limit for filing a writ of mandamus. However, a petition for a writ of mandamus could be dismissed if you unreasonably delay in filing it.

When filing a petition for a writ of mandamus, you must comply with the requirements of Florida Rule of Appellate Procedure 9.100. You must show all of the following:

That you have a clear right to relief
That there is an undisputed duty on the lower court
That there is no adequate remedy at law
That you asked the lower court act first

You could file a petition for a writ of mandamus in these situations:

To compel the lower court to rule on a motion, such as a post-conviction motion, that was filed a long time ago and no action was taken
To compel a lower court to decide a case that was dismissed for lack of jurisdiction in error
To compel the release of records after a public records request was made
To compel a court-appointed lawyer or public defender to provide information to you
To compel the Department of Corrections to award you credit for time served

Limitations on a Writ of Mandamus

A writ of mandamus can only be filed in limited circumstances. It cannot be used to:

Seek review by an appellate court of an erroneous lower court decision
Order the lower court to perform a discretionary act
Control how a lower court acts
Circumvent the restrictions in the Florida constitution on when a writ of mandamus can be used source

Petition for a Writ of Mandamus

A petition for a writ of mandamus is a remedy that can be used to compel a lower court to perform an act that the court has a clear duty to do under law. For example, a writ of mandamus might be filed in a case where a judge has a personal connection to a case or its participants but refuses to remove themself from the case. The mandamus would be asking the higher court to compel the lower court judge to appoint another judge to the case.

To file a petition for a writ of mandamus, you must show that you have no other remedy available. You must file the petition with the circuit clerk and serve it on all parties to the proceeding in the trial court. You must also provide a copy to the trial-court judge.

Unlike appeals, which are heard as a matter of right, writ petitions are generally heard as a matter of discretion, and they are governed by equitable principles.

Article 226 of the US Constitution

Article 226 of the US Constitution allows the High Court to enforce both Fundamental Rights and Legal Rights. It also allows the High Court to issue a writ exclusively in its own local jurisdiction. This limits the territorial authority of High Courts

Article 226 also states that the State shall assure assistance to the family and create mechanisms to suppress violence within the family.

Unlike appeals, which are heard as a matter of right, writ petitions are generally heard as a matter of discretion, and they are governed by equitable principles.

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
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We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

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Learn More About What is Obscene…. be careful about education it may enlighten you

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Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

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Petition for a Writ of Mandate or Writ of Mandamus (learn more…)

PARENT CASE LAW

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Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
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Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
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Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

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Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
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case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

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Rules of Admissibility – Evidence Admissibility

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Prosecutor’s Obligation to Disclose Exculpatory Evidence

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Cases Remanded or Hearing Granted Based on Brady/Napue Claims

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Penal Code 851.8 PC – Certificate of Factual Innocence in California

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SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92 & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

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The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Venue in Family Law Proceedings

The Truth News — Mon, 24 Jul 2023 18:46:10 +0000

Venue in Family Law Proceedings

Venue refers to the location of a case, usually the county where the action is filed and heard. For example, if you are suing someone, venue is usually the county where the person lives or does business.

If you want to move your case, you can file a motion asking the judge to change the venue. This is a written request to the court to change the location of the case.

Parties can agree to transfer venue and submit a Stipulation and Order for Change of Venue. If one side does not agree, the court will decide which venue is the most efficient for adjudicating the issues.

A change of venue is the transfer of a case from one court to another in the same district. Usually, a change of venue is requested when one of the parties thinks that it would be fairer or more convenient to have a trial in a different location.

Different types of family law proceedings have different standards for appropriate venue. For example, in California, jurisdiction will attach in the county where the child has resided with their parent for six months immediately preceding the filing of the custody action.

Now there is no similar durational residency requirements for legal separation cases. In those cases, either the petitioner or respondent must be a resident of the county in which the petition is filed. Then for parentage cases, paternity cases, or child custody and visitation cases, the appropriate venue is the county in which the minor child resides or is found and that is a similar standard to adoption cases and termination of parental rights proceedings. It is common for appropriate venue to rest in two different counties. Now when that happens the county that first perfects jurisdiction is the county in which the case will typically move forward.

Now jurisdiction is perfected by serving on the other party process. That’s the summons and petition. So whichever petition is first-served is the one in which the case will typically go forward. Now, the one exception is if that would not promote the ends of justice and in that consideration, the court will take into account the balance of hardships for the parties and witnesses. So for example, let’s say in a dissolution of marriage case in Los Angeles County one of the parties resides here with the minor children while the other party files for dissolution in say Orange County.

It is unlikely that that proceeding would go forward in Orange County because most of the evidence regarding the children’s well-being would be here in Los Angeles County. So in those cases the balance of hardships and the interest of justice would suggest that the case go forward here and that is a discretional decision that the courts would end up making. Then after the case has been going forward, it’s also possible to transfer venue. This typically happens when both parties move out of the county in which the proceedings have been going forward. Now, this doesn’t necessarily mean that the court will do so. It depends on what stage of the litigation this happens, but if neither of the parties is residing in the county in which the proceedings are going forward. It is likely that the county would then transfer venue to a county in which either of the parties resides. The court would again consider the balance of hardships and the interest of justice that would be promoted in that transfer. source

If I want to change a custody or visitation order, do I have to go back to the same court that made the order?

Yes. Things sometimes change after a court makes a custody or visitation order. That is called a change of circumstances. If this happens, you can file a petition to modify the old order. Modify means to change.

The court that made the original custody or visitation order is the court that has jurisdiction to modify that order. This is the rule even if your child now lives somewhere else, and has lived there for more than six months. source

Change Of Venue California Family Law Code Of Civil Procedure 397.5

Family Law Code of Civil Procedure 397.5 is a pretty specific code section that says;
In any proceeding for dissolution or nullity of marriage or legal separation of the parties under the Family Code, where it appears that both petitioner and respondent have moved from the county rendering the order, the court may, when the ends of justice and the convenience of the parties would be promoted by the change, order that the proceedings be transferred to the county of residence of either party. source

A court may, in its discretion, choose to refrain from exercising its jurisdiction to hear a case if the case may be more appropriately tried elsewhere. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744).

On a motion for forum non conveniens

“Forum non conveniens” is a Latin phrase that means “an inconvenient forum”. It’s a common law doctrine that allows a court to decline to exercise its jurisdiction when another court or forum may more conveniently hear a case. The doctrine allows a court to dismiss a case if it believes that the case would be better heard in another court. For example, a court might dismiss a lawsuit arising from an accident if the plaintiff files the complaint in their home state, but the witnesses and doctors are in the state where the accident occurred.

California codified this principle, known as forum non conveniens, in Code of Civil Procedure section 410.30.” Code of Civil Procedure section 410.30, subdivision (a),(2) provides as follows: “When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may by just.“ Courts sometimes reframe the question as whether the chosen forum is “seriously” inconvenient. The party seeking change venue has the burden of proof.

When a motion to change venue is made on the grounds of “convenience of witnesses and the ends of justice” pursuant to Code Civ. Proc. §396b, the party tendering that issue bears the burden of showing through affidavits, declarations or other admissible evidence, both the reasons it would be inconvenient for witnesses to attend, and the materiality of their anticipated testimony. (Flanagan v. Flanagan (1959) 175 Cal.App.2d 641, 643, 346 P.2d 418.)

The declarations must be competent evidence, i.e. should not consist solely of hearsay, generalities and conclusions. (Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 919, 225 Cal.Rptr. 845).

Child custody: where is the proper venue for deciding child custody matters; change of venue

THE DIFFERENCE BETWEEN JURISDICTION AND VENUE IN CUSTODY MATTERS.

Jurisdiction refers to the power of courts in a particular state to make decisions about custody. Venue refers to the particular judicial geographic area, usually the County, within a state where the action should be filed and heard. learn more about venue here

JURISDICTION OVER CUSTODY ISSUES

Any California court has jurisdiction to make an initial decision about the custody and visitation for a minor child if the child has been living continuously in California with a parent or person acting as a parent for the six months immediately before the commencement of the proceeding involving child custody matters.

Once a California court has issued a custody order and/or judgment, California has continuing and exclusive jurisdiction over subsequent issues involving custody and visitation. California’s jurisdiction over the modification or enforcement of the order continues until a court determines that the child and the parents no longer reside in California, or a California court determines that the child and one of the parents does not have a significant connection to California, and substantial evidence is no longer available in California concerning the child’s care, protection, training and personal relationships.

VENUE OVER CUSTODY ISSUES

Assuming the child has been living in California for six months, any California court will have jurisdiction to handle such a case, however, the county in which the action should be brought, i.e. the venue, is where at least one of the parties has resided for at least three months in the case of a divorce, and for an initial petition involving custody without a divorce, the county where the child and a parent or person acting as a parent resides.

Any post judgment issues involving custody should be brought in the county where the underlying order or judgment has been issued, subject to a motion for change of venue in appropriate circumstances.

CHANGING VENUE AT THE BEGINNING OF THE DIVORCE OR OTHER CUSTODY PROCEEDING

Assuming jurisdiction and venue is otherwise appropriate, a party may ask the court to change venue “when the convenience of witnesses and the ends of justice would be promoted by the change.“ [California Code of Civil Procedure section 397 subdivision [c], & subdivision (e).] Note that it is the convenience of the witnesses, and not the convenience of the parties. [Although it could be argued that the convenience of the party would fall under the ends of justice rationale].

Factors considered by the court include where evidence and witnesses concerning the child’s care, protection, training and personal relationships can be found, where the children and parties reside and the general convenience of keeping or changing venue. Courts have broad discretion in making decisions around changing venue [assuming that venue is not otherwise prohibited by statute], and they are largely fact driven determinations, dependent on the particular circumstances of each case.

Typically, the motion for a change of venue must be brought early in the action, and in any and event, “within a reasonable time” after commencement of the action, or from when the reasons for the change of venue become apparent.

CHANGING VENUE AFTER THE DIVORCE JUDGMENT HAS BEEN ISSUED.

Change of venue after a divorce judgment has been issued is appropriate when both parties have moved from the county that issued the divorce judgment, “when the ends of justice and the convenience of the parties would be promoted by the change.” [California Code of Civil Procedure section 397.5] Note in this situation it is the convenience of the parties, and not just witnesses.

It is an open question whether a post judgment motion for change of venue would be appropriate when only one of the parties has moved out of the county where the divorce judgment was entered.

It certainly could be argued that since the statute dealing with a post-judgment change of venue covers situations where both parties have moved out of the county, it is implied that it is not appropriate to change the venue where only one party has moved out of the county because the legislature could have said only one party need have moved if that’s they intended to allow a change of venue in either situation.

On the other hand, if the party who has moved out of County has sole or primary custody, it is arguable that a change of venue might be warranted under the general statute dealing with the grounds for a change of venue [California Code of Civil Procedure section 397], assuming those grounds, such as the convenience of the witnesses and the ends of justice, support such a move.

Since the courts have broad discretion in deciding change of venue motions, it is likely the court’s decision either way would be upheld if challenged on appeal. source

if you are failing to get the rights you deserve and change of venue is denied and all other avenues are exhausted try looking into

Petition for a Writ of Mandate or Writ of Mandamus (learn more…)

CHANGE OF VENUE [CCP §396b] – Change of Venue Form

or download the editable word file .doc here motionchangevenue

forum non conveniens

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Forum non conveniens refers to a court’s discretionary power to decline to exercise its jurisdiction where another court, or forum, may more conveniently hear a case. Dismissing a case on forum non conveniens grounds is not a bar for res judicata purposes and, therefore, does not prevent a plaintiff from re-filing their case in the more appropriate forum. This doctrine may be invoked by either the defendant, or sua sponte by the court.

Even if a plaintiff brings a case in an inconvenient forum, a court will not grant a forum non conveniens dismissal unless there is another forum that could hear the case and potentially recover damages. Additionally, courts will not grant a forum non conveniens dismissal where the alternative forum’s judicial system is grossly inadequate. For example, an American court would not grant a forum non conveniens dismissal where the alternative forum was Cuba.

Courts typically use a 2-part test to determine whether they will grant a defendant’s forum non conveniens motion. The first part is a balancing test of both private and public factors, and the second part looks at what adequate alternative courts are available.

Balancing Test
- Private Factors
  - Ease of access to evidence
  - Interest of the two parties in their connections with the respective forums
  - The plaintiff’s chosen court would be burdensome to the defendant
  - If a court finds this factor to be true, then that is often sufficient to dismiss the case and accept a forum non conveniens claim
  - Ease of obtaining witnesses
  - Enforceability of judgment
- Public Factors
  - Whether the trial would involve multiple sets of laws, thus potentially confusing a jury
  - Having juries who may have a connection to the case
  - Local interest in having local interests heard at home
  - Having the trial in a place where state laws govern
Adequate Alternative Inquiry Test
- The defendant must offer an alternate court that is able to hear the case
- The alternate court must have the ability to provide a remedy to the plaintiff

A court will typically only invoke forum non conveniens sua sponte if it meets a 2-step test:

The court is a seriously inappropriate forum.
There is a substantially more appropriate court that is available for the plaintiff’s claim.

Sometimes, courts attach conditions to forum non conveniens dismissals. For example, the court might require the defendant to waive defenses that would prevent the plaintiff from re-filing the suit in the alternative forum. Alternatively, a court might dismiss the case in favor of a foreign court, but only on the condition that the defendant allow discovery.

On appeal, forum non conveniens decisions are evaluated using an abuse of discretion standard.

The Supreme Court considered forum non conveniens in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). In that case, the Court held that so long as there was a remedy available in the alternate forum, it did not matter if the remedy was clearly insufficient. However, lower courts do not strictly follow this rule. Instead, they usually consider the adequacy of the alternative forum’s remedy as another factor to be balanced when deciding whether or not to grant a forum non conveniens dismissal.

The Supreme Court has heard two cases on the issue of forum non conveniens in recent years:

In Sinochem International Co. Ltd. v. Malaysia International Shipping Corp, the Supreme Court held that that a federal court may hear and pass a ruling on a forum non conveniens motion even if that court does not necessarily have subject-matter jurisdiction or personal jurisdiction over the case in front of the court. The Court decided that while courts typically need to consider personal jurisdiction and subject-matter jurisdiction before hearing a case on the merits, this procedure does not necessarily apply when considering non merits issues.

The second case was Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas, which determined that courts should use 28 U.S.C. 1404(a), which allows for the transfer of cases between jurisdiction, for the purposes of granting a forum non conveniens motion. source

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Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

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The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Judge Israel Claustro

The Truth News — Sun, 23 Jul 2023 08:11:03 +0000

Disgraced retaliatory judge throws constitution, civility, temperance and true leadership in the trash to harm a young boy father and inheritantly his little boy who cried for his father, while being ripped away by lawyers and this judges orders.

a true coward, a powerfless soft boy beta male!

Judge Israel Izzy Claustro should rename himself to Israel Clouded Claustro aka Dizzy Izzy

Judge Israel Izzy Claustro, loves stealing Indian Children away from their ancestors

Michael Lombardi is an Registered American Indian. He is from theYaqui Indian Tribe and Piro-Manso-Tiwa tribe

The Yaqui are a Native American people of Arizona. The Piro-Manso-Tiwa tribe is an historical tribe located in the Mesilla Valley in southern New Mexico. The tribe is a Pueblo people and lived along the Rio Grande River Valley in Las Cruces, New Mexico.

you can read about Michael Lombardi’s Great Great Grandfather Frank C. Brito who fought side by side with Teddy Roosevelt and was an active member of The Rough Riders. You can read all about Frank and his patriotic historic life that is in American History Books and Museums including the Smithsonian

Michael Lombardi was taken illegally from the father, due to Judge McConville being vindictive nature and removed from the case.

The new judge Israel is continuing Judge McConville vindictiveness which you can find HERE

The mother is a Belize Citizen, born in Belize who has finally obtained naturalization in the United States. The courts have given 100% custody to a BELIZEAN BORN NATIVE WOMAN and the courts have assisted the mother and her old council the perjurer Paul Toepel in an ferocious attempt in STRANGLING THE REALTIONIONSHIP of MICHAEL LOMBARDI’s AMERICAN INDIAN HERITAGE AND REALTIONS WITH HIS TRIBE AND FAMILY OF THE TRIBE

Marcia is a naturalized Citizen who underwent the Naturalization is a process. Citizenship is a status. Naturalization is the process by which an immigrant becomes a U.S. citizen after meeting certain requirements, while citizenship applies to anyone who is a United States citizen, regardless of whether they were born within the U.S. or outside the U.S. We are Native American Indians who were savagely victimized and slaughtered by the US Government and given sovereignty and rights all our own. Now the US Government is once again victimizing an entire US BORN NATIVE AMERICAN FAMILY! Grandparents cannot see their own grandchild! Grandma is 100% Native Indian!

This judge must RECUSE HIMSELF (Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves)
This case has had so many corrupt players from several judges to OCDA Office tampering, malicious prosecution, abuse of process and denial of my due process and civil rights and liberties. All my cases need a CHANGE OF VENUE all these judges and DA’s are friend. THE JUDGES COULD CARE LESS CARE ABOUT JUSTICE. THESE JUDGES ONLY CARE ABOUT PROTECTING THEIR OWN KIND FROM TORT CLAIMS AND LOSS OF LICENSE, DIGINITY, REPUTATION, STATUS, POWER AND OF COURSE FUTURE WORK! ON THE OTHER HAND THEY THE JUDGES HAVE DONE NOTHER TO PROTECT MY SON FROM A WANTED FUGITIVE SEX OFFENDER WHO HAS MULTIPLE SEX CRIME WARRANTS AND HAS STILL NOT BEEN PROSECUTED FOR ALL THE DICK PICS HE TOOK WITH MY SONS PHONE, AND WAS ON MY SONS PRIMARY COMMUINCATION DEVICE WHICH IS A FELONY 288PC OR 288.2 PC. THEY LIKE MY SON AROUND A FUGITIVE SEX OFFENDER, THEY COULD CARE LESS! BUT HISTORY HAS SHOWN MANY GOVERMENT OFFICIALS DONT LIKE FAMILY UNITS AND HAVE SHADY PASTS OR ACCUSAATIONS OF INAPPROPRIATENESS THEMSELVES WITH CHILDREN.

Maybe the Judge forgot he is still an Attorney, he must have forgot The Attorney’s Sworn Oath . His bias requires him to recuse himself or to be re-assigned by his SUPERIOR. He was so biased he couldn’t see his vindictiveness and I had to point it out to his Superior The Honorable Julie A. Palafox she is apparently well known for her Using Her Role on the Bench to Help Families Judge Julie Palafox seems to be more fair it appears, (read here).

If the system forgets there is always a way (learn more) for the people to secure their rights if your read up and know your constitution well.

and if i find a bias judge that is too bias to see his bias there is always Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case using Removal a Judge / Recusal of Judge

https://goodshepherdmedia.net/wp-content/uploads/2022/10/Kid-Rock-We-The-People-ft-Tucker-Carlson-Made-with-Clipchamp.mp4

“The elements of a cause of action for negligence are: duty, breach of duty, legal cause, and damages. (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 463.)”

HOW DID MY SONS LA COUNTY FAMILY LAW CASE GET INTO BIASED ORANGE COUNTY ANYWAYS? I LIVE IN LA COUNTY. MY SON WAS BORN IN LA COUNTY. THE FAMILY DEPENDENCY CASE WAS STARTED IN LOS ANGELES COUNTY. WE ARE OUT OF JURISDICTION. MRS ROBERTSON, THE PETITIONER MANIPULATED THE WHOLE SYSTEM. SHE SIMPLY WENT TO FILE A RESTRAINING ORDER AND CUSTODY AND BROUGHT THIS LA COUNTY CASE INTO ORANGE WITHOUT MY CONSENT. I DID NOT UNDERSTAND JURISDICTION AT THE TIME OF MY FIRST ORANGE COUTNTY HEARING. PLEASE RETURN MY FAMILY LAW CASE BACK TO ITS ORIGIN WHICH IS LA COUNTY ALSO PROTECT MY AMERICAN INDIAN SON AND RETURN HIM TO OUR FAMILY AND TRIBE.

OUR TRIBE IS PREPARED TO DEFENT OUR RIGHTS

This case started in Los Angeles as a dependency case at Edmund D. Edelman Child Courts somehow the mother filed paperwork in the wrong county, as she lives in LA Habra on the border of Los Angeles. My son was born in Panorama City Kaiser Permanente with Me at his side and he resided in Los Angeles County at one of my mansions in Santa Clarita. I never agreed to have it switched, and the mother, living on the border of Los Angeles / Orange County may have accidentally or intentionally chose orange county courts. This case is out of its jurisdiction where it started in Edmund D. Edelman courts, please return this case back to Edmund D. Edelman courts meanwhile return custody and visitation to us the Native American Family and punish the contemptuous mother. By repeatedly allowing a wanted fugitive sex offender over against the judges orders repeatedly passive aggressively spits on the judges orders! another instance when the judge had issued phone calls for me the father, she never gave me one call!! I got mad in court at the judge Scott B. Cooper for allowing her to NEVER OBEY HIS ORDERS and he punishes me for being mad at the courts consistent prejudice towards me the father and the blatant passive aggressive spitting on judges orders by the mother, all the time me losing more and more of my son time with me.

https://michaelsorganichoney.com/wp-content/uploads/2018/03/I-Made-This-with-My-Dad.mp3

My son honey company needs him https://michaelsorganichoney.com/about-michaels-organic-honey/

https://goodshepherdmedia.net/daddy-son-suffer/

Can You Transfer Your Case to Another County or State With Family Law? – Challenges to Jurisdiction

Venue in Family Law Proceedings

This is a 14th amendment violation Section 9.32

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship
Parent’s Rights & Children’s Bill of Rights Amdt 5.4.5.6.2 Parental and Children’s Rights – Fifth Amendment

MY SON IS A REGISTERED AMERICAN INDIAN THAT YOU THE US GOVERNEMENT ARE DEPRIVING OF HIS FATHER, HIS FAMILY, HIS AMERICAN INDIAN TRIBAL BLOODLINE. THESE ARE DEPRIVATION OF RIGHTS

Indian Child Welfare Act US – Indian Children – Family Law

18 U.S. Code § 242 – Deprivation of rights under color of law

18 U.S. Code § 241 – Conspiracy against rightsImpartiality of the Judge – Judicial Bias

The right to an impartial judge is based on the Due Process Clause of the United States Constitution and is expressly set forth in many state constitutions.[16] In addition, state codes of judicial conduct require that judges be impartial. The ABA Model Code of Judicial Conduct, state code analogs, and the common law of many states use a two-part test for disqualification or recusal – a subjective and objective test.[17] The subjective test is met when the judge believes that she is, in fact, biased; the objective test is met if a disinterested person might reasonably question the judge’s impartiality. If either test is satisfied, the judge must recuse herself.[18]

Counsel may question a judge’s impartiality based on her treatment of, and comments made to or about, counsel or counsel’s client. According to Liteky v. United States,[19] judicial remarks and actions require recusal when “they reveal an opinion that derives from an extrajudicial source” – that is, the judge has relied on evidence from outside the case – or where they “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” As to the first part, judges may be exposed to extrajudicial information, but they cannot rely on it.[20] For example, the judge may overhear court staff discussing a parent’s bad behavior in the courthouse lobby, but the judge cannot issue an order based on that information unless it is introduced in evidence. In a Massachusetts case, Care and Protection of Zita, the judge granted temporary custody to CPS based on her memories of a previous dependency case that involved the mother’s other children; as a result, the appellate court reversed.[21] Further, judges cannot actively seek outside information; they cannot do web searches for the parties or the facts at issue, and they cannot ask their law clerks or other staff to do so.[22]

What isn’t Bias?

Inappropriate behavior. Litecky sets a high bar; mean or rude comments by a judge do not constitute bias unless they “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.”[23] Criticism, disapproval, or even hostility to counsel, the parties, or their cases isn’t bias unless it is extreme or pervasive.[24] Appellate courts are extremely forgiving when judges only make one or two nasty comments; they examine the entire trial to place the judge’s comments in context.[25] Even if the judge’s comment or behavior is clearly inappropriate, judges are given considerable leeway. For instance, in an Ohio case, State v. Johnson, the judge cried during sentencing because she was sympathetic to the victim’s family.[26] The appellate court affirmed; the judge was permitted to exhibit human emotion, and doing so did not show bias.[27]

Preference for a party. Judges may show a preference for one side, but only if that preference is based on information learned from the case.[28] A judge may, therefore, express her preliminary views of the merits of the case so long as those views stem from information learned at trial or observations of the parties during trial. A judge’s preference shows bias only if it is “undeserved, or because it rests upon knowledge that the subject ought not to possess . . . or because it is excessive in degree.”[29] Accordingly, if a parent equivocates during testimony, the judge can question the parent’s credibility and call him a liar. But the judge probably cannot call him the “worst liar ever” (which is excessive) and definitely cannot say he’s a liar based on extra-judicial information.

Criticism of counsel. Judges may scold and criticize counsel in an effort to control the courtroom and the progress of trial.[30] If, for example, counsel is talking over the judge or repeatedly asking leading questions to a witness on direct despite warnings to stop, the judge can criticize counsel’s performance. Indeed, the worse counsel’s behavior, the harsher the judge is permitted to be to manage the trial. A judge is not biased if she held counsel in contempt in a prior case or even in the same case.[31] Even if the judge’s poor behavior is unrelated to counsel’s misconduct, it does not indicate bias unless it is extreme, pervasive, or “reveal[s] such a high degree of favoritism or antagonism as to make fair judgment impossible.”[32]

Remanded or related dependency cases. Judges may sit on the same dependency case on remand, even if the appellate court has found prejudicial errors (although an appellate court can remand specifically to a different judge).[33] Judges who presided over a parent’s prior dependency cases involving the same or other children can sit on new cases, even if the judge terminated parental rights in the prior case.[34] The judge cannot rely on memories of the prior cases when ruling in the current case – she must rely on evidence admitted, or observations made, in the current case.[35]

What is Bias?

Judges do not get a free pass for all types of mistreatment of counsel and clients.

Unfair treatment. Sometimes a judge’s treatment of counsel is so virulent that her fairness must be questioned. For example, where the judge’s extreme harshness:

is not intended to address misbehaving counsel,
has not been triggered by counsel’s misbehavior,
is grossly disproportionate to counsel’s misbehavior, or
is aimed at only one lawyer when all are acting the same way.

In a Massachusetts case, Commonwealth v. Sylvester,[36] the judge ridiculed defense counsel, threatened to cut off her argument, and interrupted her questioning of witnesses. Most of the judge’s harsh comments were directed at her, nearly all disparaged her skills, and many had personal overtones. Meanwhile, defense counsel had conducted a skillful trial, objected respectfully, and “painstakingly attempted to preserve her client’s rights.”[37] The appellate court reversed, holding that the judge’s bias denied the defendant a fair trial.[38]

Denial of due process. Appellate courts will also reverse when a judge’s harsh treatment deprives that party of due process.[39] For example, if counsel bungles a cross-examination, the judge can call counsel inept and warn him publically that he must raise his game. But the judge cannot declare that, as a result of the incompetent cross, the client has rested. Judges also cannot, in order to “punish” a poorly behaving client or underperforming lawyer, refuse to hold a normal trial, act as a prosecutor, improperly restrict counsel’s cross-examination, prevent offers of proof, or unreasonably cut off counsel’s closing.[40]

Early determination of case merits. Appellate courts will reverse for bias when judges make up their minds on the merits before all evidence is presented.[41] Although, as noted above, tentative views of the merits are permissible before the end of trial (provided they arise from what the judge has heard and observed in the case), the judge cannot “decide” a legal issue before the end of trial. For example, in Adoption of Adina,[42] a Massachusetts case, the appellate court reversed because the trial judge stated that the mother was unfit even without a trial. Even appearing to have decided the merits before the close of evidence is reversible. In another Massachusetts case, Adoption of Tia,[43] the appellate court warned that trial judges must maintain not just fairness but the appearance of fairness; otherwise, counsel and the parties will lose faith in the impartiality of the judiciary.[44]

Expression of personal bias or prejudice. Finally, appellate courts will reverse for judicial bias when the judge expresses an actual personal bias or prejudice about the parties or counsel. For instance, judges cannot express disdain for people of a certain faith or color or an opinion that single parents are per se inadequate. In a United States Supreme Court case, Berger v. United States,[45] a criminal case in which the defendant had German ancestry, the trial judge made several insulting comments about Germans, including “[t]heir hearts are reeking with disloyalty.” The Court reversed based on bias.[46]

Removing the Judge

Sometimes it serves the client’s interests to seek recusal of a judge. As noted above, many states apply a two-part test for recusal. First, the subjective test – does the judge believe she is, in fact, biased? Second, the objective test – would a disinterested person reasonably question whether the judge is biased? If either the subjective or objective test is satisfied, the judge must recuse herself.[47] In addition, the judge should recuse herself if she has personal awareness of material, disputed facts.[48]

Counsel must file a motion to recuse at the earliest moment after learning the facts suggesting bias or improper conduct.[49] This can be tricky if the problematic statements or conduct occurred in a lobby conference or sidebar, where judges tend to be less careful with their comments about clients, counsel, and disputed facts. In such a case, counsel must move to recuse immediately after the lobby conference or sidebar. If the lobby conference or sidebar was unrecorded, counsel must, on the record, state what occurred, including the judge’s exact words (to the extent possible); otherwise, there is no record of the judge’s improper statement or action for the appellate court to review. Judges should rule on counsel’s motion to recuse in a timely fashion.[50] If a judge believes recusal is necessary, in most jurisdictions that recusal is for all purposes; the judge should have no involvement with any aspect of the case.[51] source

His honey company was hand built with his dad and all the proceeds are for Michael, they are for his future and to teach him to save, handle money, and run a business! like a good parent should be doing!

maybe he needs to re-up on his laws Indian Child Welfare Act US – Indian Children – Family Law

Click Below to see the relationship that you are harming and depriving from both me and my son! not just me you sick twisted vindictive humans!

On top of the judge abusing the process for his former employers, in the DAs office

His request is irrational and won’t actually provide the opposing party there due process rights and the opposing parties due process rights would include the ability to investigate and see all evidence I want to give the mother’s attorney everything I want her rights to be fully intact

“On top of the other issues the judge abusing the process for his former employers, in the DAs office…”

It is impossible to provide video files on paper and these video files are lengthy, huge video data files that have the forensic location of when and where it took place. This evidence that opposing counsel with me can only be provided digitally.

I don’t want anyone to say they didn’t have all the evidence!

so I uploaded all of the evidence, both videos, photos and digital paperwork.

this avoids also destroying trees and hurting the environment with useless printing of digital documents since the rest of the digital evidence videos cannot be printed they are videos!

so in the end everything provided in one solid format, called digital format is better than partial evidence provided in paper format, and then not be able to give the opposing counsel everything to be prepared, I would never want opposing counsel not to have every bit of evidence that I am offering. I don’t want any excuses,

The digital evidence that would be beneficial to my case and opposing party, needs to defend herself, was was given to them as a Google Drive link

At first, the judge because he didn’t look over the case, and didn’t know any thing about the case. Instructed me to actually give the evidence and contact the opposing party. Had he done some homework and read a little bit about the case he would’ve known I have a restraining order that was falsely give it to me, however, I still do have one and I can’t contact her mother so he then told me to give it to the courts

I wanted to provide every opportunity to opposing party. which hopefully the mother or her attorney will use

The Google Drive link also shows if people fail to do look, which will help my case.

Since there’s so much prejudiced in the quart room, I need evidence that people are doing what they are supposed to do in the Google Drive link I provided

so I’ve provided a method that is not only fluent in one format, which saves the environment and provides all the needed evidence that the mother would need.

It is also impossible to provide video files on paper and these video files are lengthy, huge video data files that have the forensic location of when and where it took place.

This evidence that opposing counsel with me can only be provided digitally. I don’t want anyone to say they didn’t have all the evidence! Because I care about opposing party’s due process and ability to defend herself against her multiple contempt’s, so I uploaded all of the evidence, both videos, photos and digital court paperwork. This avoids also destroying trees and hurting the environment with useless printing of digital documents since the rest of the digital evidence videos cannot be printed, they are videos!

In the end everything I provided in one solid format, called digital format is better than partial evidence provided in paper format, and then not be able to give the opposing counsel everything to be prepared, I would never want opposing counsel not to have every bit of evidence that I am offering. I don’t want any excuses, regarding the digital evidence that would be beneficial to my case and is 100% exactly what the opposing party needs to defend herself. All of which was given to them as a Google Drive link

The judge also, aside from taking time to bring the bias from a previous judge and court her never took the time to look up the mother and what she has been up to nor see the angle she played the courts for.

Judge Israel Claustro didn’t ever look over the case other than learn the bias he must carry over from another judge! Had he looked at the case which he would know the basic contents and history, which would be needed to judge any case. He unfortunately didn’t know anything about the case. Instructed me to actually give the evidence and contact the opposing party. Had he done some homework and read a little bit about the case he would’ve known I have a restraining order that was falsely give it to me, however, I still do have one and I can’t contact her mother so he then told me to give it to the courts

So I emailed it to them. By me giving it to the courts as the judge has instructed me that the other side needs the evidence and to give his courtroom L62 The evidence I have emailed the Google Drive link to L62@occourts.org

I’ve also taken the liberty to send via certified mail which they have signed for. a scannable link to scan and there is a QR code which they have scanned so they have also read the same exact evidence and these words here

they now know that they should check their email for the Google Drive link for sure!

Thanks to GOOGLE’s awesome statistics. It will also be able to provide the courts proof of who actually uses the Google link and access is it to defend himself or herself.

AND REMEMBER The Google Drive link also shows if people fail to do look, which will help my case.

I wanted to provide every opportunity to opposing party. which hopefully the mother or her attorney will decide to open and use. But if anyone ever paid attention this mother has been using a perjurious attorney and her own perjury to manipulate the tribunal and avoid accountability for the willful endangerment my son after the fact, willfully goes against a judges order and entered contempt ally by allowing a WANTED FUGITIVE SEX OFFENDER to be around my son.

I am not the criminal here! I am the caring good father who demands justice, fair equal time with his son and a safe environment for my son!

Since there’s so much prejudiced in the quart room, I need evidence that people are doing what they are supposed to do in the Google Drive link I provided

so I’ve provided a full proof method that is not only fluent in one format that the court legally allows when submitted via email prior to the hearing.

This also saves the environment and provides all the needed evidence that the mother would need. It will also provide proof of people accessing it, or not accessing it, which is vital.

And don’t forget to recuse yourself please

SEARCH GOOGLE FOR “Clouded Claustro”

SEARCH GOOGLE FOR “Judge Israel Claustro”

https://goodshepherdmedia.net/wp-content/uploads/2023/07/It-only-takes-1-to-topple-you.mp4

WE ARE GOING TO NEED A CHANGE OF VENUE THE OC COURT SYSTEM CO-MINGLING WITH THE OCDA OFFICE AND HAVING PAWNS EX-DA NOW BEING JUSTICES WITH NO EXPERIENCE OUTSIDE OF PROSECUTION DOES NOT SOUND LIKE FAIRNESS. NOR DOES THE REPEATED ABUSE OF THE PROCESS, THE SYSTEM, JUSTICE ITESELF, ABUSE OF MY SONS RIGHTS AND SAFETY, ABUSE OF MY RIGHTS OR ABUSE OF THE CONSTITUTION AS WRITTEN ALLOW THIS. THE SYSTEM IN OC COURTS IS CORRUPT, I PERSONALLY HAVE BEEN A VICTIM OF THE ABUSE WHICH STARTED IN THE FAMILY COURTS, CARRIED THROUGH LHPD AND LACK OF HELPING A MINOR ARROUND A SEX OFFENDER REPEATEDLY THAT HAS TAKE PHOTOS OF HIS PENIS AND PUT THEM ALL OVER MY 8 YEAR OLDS PRIMARY COMMUNICATION DEVICE WHICH IS A FELONY TO DO THIS PC 288 OR PC 288.2 AS THIS WANTED FUGITIVE SEX OFFENDER IS ALSO A CAREGIVER TO A MINOR (MY SON IS 8) THE CAREGIVER IS A FULL GROWN ADULT MALE WHO IS WANTED FOR OTHER SEX CRIMES IN OTHER COUNTIES. HE HAS NOT YET BEEN CHARGED FOR WHAT HE DID TO MY SON! THIS HAS NOW SPILLED INTO THE PENAL SYSTEM AND BACK INTO FAMILY LAW COURTS WHERE JUDGE ISRAEL CLOUDED CLAUSTRO HAS FORCED ME TO ATTEND A CIVIL HEARING THAT I STARTED! THIS CIVIL CONTEMPT CLAIM I FILED INTO THE FAMILY LAW CASE THE MOTHER OPENED YEARS AGO, IS PROOF THIS WANTED SEX OFFENDER IS STILL IN AND OUT OF THE HOME ALL THE TIME AND AROUND MY MINOR SON AS WELL. THERE IS A JUDGES ORDER BANNING THIS HE WAS ORDERED TO MOVE OUT AND NEVER BE THERE AGAIN AROUND MY SON IN ANY WAY YET HE HAS! THIS JUDGE IS WILLING TO LET THE MOM REPEATEDLY ENDANGER MY SON, FINE ME FOR NOT SHOWING UP, ALLOW ANOTHER SUPERIOR COURT JUDGES ORDERS TO BE REPEATEDLY BROKEN BY MOM ALL SO HE CAN HELP HIS FRIENDS IN THE DA OFFICE SECURE AN ARREST WITH FALSE CHARGES. THEY WOULD RATHER MY SON NOT HAVE A DAD, BE AROUND A WANTED FUGITIVE SEX OFFENDER WHO HAS CRIMES AGAINST OTHERS, HE IS ALSO NOT BEEN ARRESTED FOR THE FELONIES HE DID TO MY SON ALL ALONG THIS SYSTEM PROTECTS HER AND HARRASS ME DUE TO THEM BEING INCOMEPTANT AND HATING A MAN WHO STANDS HIS GROUND AND WANTS GOOD FOR HIS FAMILY

THEY NEVER RELEASE BODY CAM FOOTAGE WHICH SHOWS OFFICER HUNTLEMAN DOING THE FOLLOWING :

Penal Code 135 PC – Destroying or Concealing Evidence

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 31 PC – Aiding and Abetting Laws

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

DA LETTER TO EX ATTORNEY

JUDGE ISRAEL CLOUDED CLAUSTRO

as you can see above Mr. Bradbury is quite aware of his MALICIOUS PROSECUTION, and since has not only NOT DROPPED THEM but ADDED 3 MORE FALSE FELONIES from a lying cop OFFICER HUNTLEMAN. They wont even give up the BODYCAM FOOTAGE which also verifies my claim that the wanted fugitive sex offender is at my sons home. on his bodycam footage you will see the sex offender there. but they dont want to give this up and instead this same cop files fake 422 and stalking charges to cover hismself from not

I am being abused by the OCDA OFFICE, Mr Mathew Bradbury is Maliciously Prosecuting me and Abusing the Process with the Warrant system on false charges he plans on dismissing. This punk judge was a DA earlier this year, now this man of all Judges is my judge. He demands I physically show up to a CIVIL CASE, his willingness to carrying out the injustices and ABUSE THE PROCESS for his friends in the OCDA office which he just left

THIS ARTICLE WAS SUBMITTED BY ONE OF OUR VALUED READERS!

more information and news coming soon

The oc courts have been prejudiced before and this guy never went against the grain – learn more here Judge disqualifies all 250 prosecutors because of widespread corruption in Orange County

WHAT TO KNOW ABOUT THE TRUTH CLICK HERE TO LEARN MORE

Lawyers, upon being licensed and admitted to the practice of law are under oath and have a duty to be truthful with the Court in all pleadings, appearances and interactions in their role as a lawyer with the Court.

20-659 Thompson v. Clark (04-04-2022) 

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution.
 Cases in which federal employees face personal liability cut across everything the government does in all three branches of government.
 Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

DIRECT VIOLATION OF California Civil Code Section 52.1 AND THE US CONSTITUTION THE OC DA OFFICE HAS LIMITED OR TAKEN MY FREEDOMS BY BOOKING ME WITH FALSE FELONY CRIMES BY A LYING HOSTILE WITNESS THAT HAS COMMITED PERJURY IN OPEN COURT MULTIPLE TIMES,
THEIR STAR HOSTILE WITNESS HAS MISLEAD/MANIPULATED THE COURT OVER 20 TIMES, AND LIES DIRECTLY IN POLICE REPORTS WITH FACTS THE DA DID NOT CHECK :)
AND THEIR POLICE CAUGHT ON TAPE LYING... AND THEY FILE FALSE CHARGES THAT ARE PROVABLE!

PLEASE MAKE PEACE WITH YOU

(harassment by law for failure of them to uphold laws to protect my son) aka vindictive malicious prosecutionary misconduct with gross negligence and failure to protect a child by ignoring his orders completely and siding with a 22 wanted fugitive sex offender and his momma. call them in good faith to help and they refuse so you call them a few 1st amendment legal names and they book you. never once do they tell me to stop and how can they ? i am a citizen needing their help with a good faith phone call!)

Identifying Abuse of Process

As distinguished from extortion, abuse of process is the actual filing of a lawsuit or the taking of other legal action, to achieve a purpose unrelated to the substance or merits of the legal action. To prove an abuse of process, a plaintiff must show that the defendant entertained an ulterior motive in using the legal process, and committed a willful act in a wrongful manner. See Coleman v. Gulf Insurance Group (1986) 41 Cal.3d 782, 792. “The gist of the tort is the misuse of the power of the court: It is an act done under the authority of the court for the purpose of perpetrating an injustice, i.e., a perversion of the judicial process to the accomplishment of an improper purpose. Younger v. Solomon (1974), 38 Cal.App.3d 289, 297.

He knows he has NO 401 CASE …..but he still keeps them 401 charges on AGAINST HIS OWN WORDS on and adds the CHARGES he said he was going to add so he is compelled to add more 653(M) to violate my constitutional rights even more to become even more malicious by adding charges BUT ..NOT CORRECT HIS MALICIOUS PRESEUCTION OF 401pc LIKE HE SAID HERE IT IS

He abuses the process as well by requiring I pay for a bail warrant on crimes he admits he has to drop!

IMAGINE I AM A LEGAL TAX PAYING BUSINESS OWNER AND THEY USE MY TAX DOLLARS TO FRAME MY UP AND NOT EVEN FIX THEIR MISTAKES TRUE DOUCHE BAG IS A CRIMINAL NOT ME…. The PROSECUTOR, is the ignorant law violating DAMN CRIMINAL! He is not a prosecutor of criminals he is a criminal prosecuting innocent tax paying fathers seeking help for the sex offender this SHIT BAG OFFICE LEAVES with my son!! AGAINST A JUDGES ORDER AND THEY DONT DO THEIR JOB TO ENFORCE THE JUDGES ORDER OR PICKUP THIS WANTED SEX OFFENDER WITH 2 WARRANTS FOR SEX CRIMES LIVING AT MY SONS HOUSE AGAINST COURT ORDERS. WAY TO HELP OUT CAITLYN HARRINGTON AFTER SHE FAILED TO DUE HER JOB, YOU THEN HELP HER “FIX ME” FOR COMPLAINING ABOUT THE DUMB CUNTS LACK OF KNOWLEDGE OF LAW AND INTEGRITY TO THE CASE!

Zamos v. Stroud

California Supreme Court, 2004
32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d 802

The tort of malicious prosecution includes continuing to prosecute a lawsuit discovered to lack probable cause. (This decision expands the tort, which previously was limited to commencing an action without probable cause.) Evidence to this effect is sufficient to defeat a special motion to strike a complaint for malicious prosecution.

learn about how NOT TO violate your employers rights, after all civil servants work for the people, the tax payer. Got it DA Federal Civil Right$ $tatute$

424 F.2d 1021 US v. Horton R. PRUDDEN,No. 28140. . United States Court of Appeals, Fifth Circuit.April 1970 Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading.

U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977) Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading. We cannot condone this shocking conduct… If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately.

Morrison v. Coddington, 662 P. 2d. 155, 135 Ariz. 480(1983). Fraud and deceit may arise from silence where there is a duty to speak the truth, as well as from speaking an untruth. In regard to courts of inferior jurisdiction, “if the record does not show upon its face the facts necessary to give jurisdiction, they will be presumed not to have existed.”

Introducing the DA’s & Cops TEXTs & EMAIL as Digital Evidence

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Employer$ Beware: La $upreme Court Open$ Line for Direct Negligence Claim$ from Employee Action$

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling Makes it easier to Sue PROSECUTORS & POLICE

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Functions and Duties of the Prosecutor – Prosecution Conduct

Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

The Hon. Julie A. Palafox should know…….

Julie should know that judge ISRAEL CLOUDED CLASUTRO has violated my rights, become vindictive and used the law illegally to block my rights to challenge his lack of knowledge of law and Rights afforded to me via the US Constitution. He labeled me a vexatious litigant when the two cases mentioned I am the respondent on, and the law requires 5 cases to be fininalyzed NOT IN MY FAVOR! Family law case is still open, and i am only the respondent! So you have not met any of the criteria necessary for vexatious litigant. Being in charge of an abusive subordinate is now your responsibility morally, civically, constitutionally and now legally through Martin v. Thomas et al. 2022. It is imperative that all leaders are civic minded, show temperance and use caution when inherent rights of the US Constitution is involved, which they swore an oath to protect FIRST!

A Judge’s requirement is to make sure with diligence that he/she does not violate the Equal Protection or Due Process rights of parents involved in custody disputes. California has “sufficiently important” interests, Zablocki v. Redhail, 434 U.S. 374, 388 (1978), in ensuring the orderly resolution of disputes and protecting parents and courts from vexatious litigants. See Cox v. Louisiana, 379 U.S. 559, 562 (1965).

Wolfe v. George With respect to a First Amendment claim, the Court must first determine whether the Vexatious Litigant Statute actually encroaches upon a right guaranteed by the First Amendment. The United States Supreme Court has long recognized that the right to petition for a redress or grievance is a liberty safeguarded by the Bill of Rights and is intimately connected both in origin and in purpose with the other First Amendment rights of free speech and free press. United Mine Workers of America, Dist. 12 v. Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967). However, the Supreme Court has also consistently held that “baseless litigation is not immunized by the First Amendment right to petition.” Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 743 (1983) (“[S]ince sham litigation by definition does not involve a bona fide grievance, it does not come within the first amendment right to petition.”). In fact, as the Supreme Court stated in Bill Johnson’s Restaurants, “The first amendment interests involved in private litigation — compensation for violated rights and interest, the psychological benefits of vindication, public airing of disputed facts — are not advanced when the litigation is based on intentional falsehoods or on knowingly frivolous claims.” Id.

The First Amendment is “incorporated” against the states by virtue of the Fourteenth Amendment. Hague v. C.I.O., 307 U.S. 496, 512-13 (1939).

the statute is only implicated once the state court has concluded that there is “no reasonable probability that [the plaintiff] will prevail in the litigation against the moving defendant.”Cal. Code Civ. Proc. § 391.3. Further, even when a plaintiff has been declared a vexatious litigant, the statute does not preclude a plaintiff from filing subsequent lawsuits, so long as those lawsuits have merit. See Cal. Code Civ. Proc. § 391.7; see Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43, 60 (1997) (“When a vexatious litigant knocks on the courthouse door with a colorable claim, he may enter.”) Thus, to the extent that Plaintiff’s argument is premised on his belief that the Vexatious Litigant Statute encroaches upon a First Amendment right because it is a prohibitive ban on meritorious litigation, his argument is fatally flawed. The Vexatious Litigant Statute is not, as Plaintiff contends, an absolute ban on the right to petition for grievances.

The court was required to assess the merits of the petition before refusing to file it under the prefiling order, we direct the trial court to file the petition and evaluate it in accordance with habeas corpus procedure. ( People v. Duvall, supra, 9 Cal.4th at pp. 474-479.)

Bravo v Ismaj 2002 – [7] Under our state Constitution, a party must generally prove he or she was prejudiced by an error to obtain a reversal. (Cal. Const., art. VI, § 13.) An exception to this rule applies if the defendant was denied a fair hearing. [99 Cal. App. 4th 226] (Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 677.) [6b]

the significant consequences that result from the outcome of a motion to declare a litigant vexatious support that a party is entitled to an oral hearing, regardless of whether the defendant is seeking security or a prefiling order. (See McColm v. Westwood Park Assn., supra, 62 Cal.App.4th at p. 1216, fn. 4; TJX Companies, Inc. v. Superior Court, supra, 87 Cal.App.4th at pp. 750-751.)

[7] Under our state Constitution, a party must generally prove he or she was prejudiced by an error to obtain a reversal. (Cal. Const., art. VI, § 13.) An exception to this rule applies if the defendant was denied a fair hearing. [99 Cal. App. 4th 226] (Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 677.) [6b]

Pierce v. Cantil-Sakauye Id. at 383. Instead, it calls for an individualized determination that a litigant is vexatious based on specific instances of harassing or frivolous litigation tactics. SeeCal. Civ. Proc. Code § 391(b); Wolfe v. George, 486 F.3d 1120, 1124-25 (9th Cir. 2007); see also Cal. Civ. Proc. Code §§ 391.2-391.3. It then requires a court to examine a pro se parent’s proposed filings to ensure that “the litigation has merit and has not been filed for the purposes of harassment or delay” before allowing the parent to seek a custody-order modification. SeeCal. Civ. Proc. Code § 391.7(b); George, 486 F.3d at 1126-27. And if a court orders a vexatious litigant to post security, see Cal. Civ. Proc. Code. § 391.7(b), it must “make an individualized determination of the appropriate amount.” George, 486 F.3d at 1126-27 (citing Cal. Civ. Proc. Code § 391.3).

Nor does applying the VLS to parents in custody disputes “destroy permanently all legal recognition of the parental relationship.” M.L.B. v. S.L.J., 519 U.S. 102, 128 (1996). It does pose an additional hurdle to modifying a custody order, but only after the litigant has been found to be vexatious. The statute therefore does not unnecessarily perpetuate the “unique kind of deprivation” that imposing record preparation fees on parents appealing parental status termination decrees did. See id. at 127.

Being a firm believer in family rights the judges she rules over and oversees should be aware of her position and the US Constitution regarding the rights of parents, which is often overlooked in family courts!

That said all of the judges she oversees should study the 2 informational pages to learn more about the oath to the US Constitution they took and are clearly breaking

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship
Parent’s Rights & Children’s Bill of Rights Amdt 5.4.5.6.2 Parental and Children’s Rights – Fifth Amendment
Malicious Use of Vexatious Litigant – Civil Right$ Violation Check – Vexatious Litigant Order Reversed
California’s Vexatious Litigant Law
Are CA family courts declaring pro se parents Vexatious Litigants to force them to hire a lawyer?
Marco Gonzalez – Petitioner, vs. Panda Restaurant Group Inc.
Respondent On Petition for a Writ of Certiorari to the California Supreme Court

Further, even when a plaintiff has been declared a vexatious litigant, the statute does not preclude a plaintiff from filing subsequent lawsuits, so long as those lawsuits have merit. See Cal. Code Civ. Proc. § 391.7; see Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43, 60 (1997)

The court was required to assess the merits of the petition before refusing to file it under the prefiling order, we direct the trial court to file the petition and evaluate it in accordance with habeas corpus procedure. (People v. Duvall, supra, 9 Cal.4th at pp. 474-479.)

Israel Claustro failed to actually look into the issue. Israel Claustro lack of care and due diligence has caused me substantial emotional and psychological harm as he is assisting in the violation of my Civil Rights afforded to me via the US Constitution.

The Hon. Julie A. Palafox allows my cases with merit in, only to have a subordinate male bias judge reject the very paperwork his superior let in, as it was a very valid cases with merit and the The Hon. Julie A. Palafox knows the law and wanted to protect me but she may be unaware of the bias and prejudice of her subordinate Judge Israel Claustro !

Judge Palafox is a great judge so we learn, but oversight over the vindictive personalities beneath her must be stepped up to find justice for children and their best interests which is 2 parents!

In the midst of a successful career as a civil litigator, the Honorable Judge Julie A. Palafox made an altruistic pivot that ultimately led her to becoming a judicial officer and Family Law Supervising Judge. While Judge Palafox described her eight years as a family law judge as the “best job ever,” Judge Palafox has found that greater attention must be given to the ever-increasing demands placed on the family court and that the greater bar and court system do not recognize the importance of the family court’s work.

The Supreme Court made the same astute observations in Elkins v. Superior Court, 41 Cal. 4th 1337 (2007), acknowledging that family law litigants may often be “subjected to second-class status or deprived of access to justice.” This led to the appointment of the Elkins Family Law Task Force to “study and propose measures to assist trial courts in achieving efficiency and fairness in marital dissolution proceedings and to ensure access to justice for litigants.” However, despite Elkins and the efforts that followed, Judge Palafox asserts “much more needs to be done.” Now, Judge Palafox brings these pivotal issues to the forefront of Orange County and embarks on a five-year self-imposed deadline to re-examine the Elkins Commission.

What led Judge Palafox to this pivot from civil litigator to crusader for justice in our courts? Her journey is in some ways typical, which makes the destination that much more remarkable. Judge Palafox comes from the American Southwest with familial roots in El Paso and Chihuahua, Mexico. Judge Palafox went on to the University of Notre Dame, which had just become coeducational. Judge Palafox made up one of the very first classes with a significant female student body. While she truly enjoyed one of the most quintessential collegiate experiences, the midwestern climate proved too cold for the native of the American Southwest. Judge Palafox came out west where she obtained her juris doctor degree at Pepperdine Caruso School of Law.

In Southern California, Judge Palafox made her home in Orange County. Judge Palafox went into civil litigation where she became a partner at Alevizon, Smith, Susson, and Palafox and then Alevizon, Edwards, and Palafox. In 2000, Judge Palafox left her partnership to become a solo practitioner. The move afforded her more flexibility to juggle her family life and maintain some semblance of work-life balance. In her private practice, Judge Palafox handled just one family law matter, which she recalled being a rather unpleasant experience. This perhaps shaped her drive toward the bench and her desire to improve family law in Orange County.

Once her three children were launched, Judge Palafox was at a crossroads. She wanted to close her small practice to return to something with more activity and fulfillment. This is when Judge Palafox had an epiphany. She questioned whether she made a difference and, when she looked back at her life, whether she had made a positive impact on the lives of others. Judge Palafox understood that service to others can be the highest calling and most rewarding. In this moment, Judge Palafox decided to submit an application to the governor for a judicial appointment.

It was a long three years before the governor called, but he eventually did, and in 2015, Judge Palafox began her assignment on the family law bench. The opportunity afforded her the chance “to do something more meaningful” and make a substantial difference in the lives of children and families. In a stark contrast with her civil experience, where attorneys had fewer trials and less frequently dealt with real people and real problems, family law of fered that in spades. Typically, each day, Judge Palafox took a morning walk around the courthouse, often with the late Honorable Frank J. Ospino. Each day, she was front and center adjudicating issues for dozens of litigants in evidentiary hearings and trials. Judge Palafox would try child custody, domestic violence, spousal support, and law and motion practice, all before lunch. Judge Palafox explained that, on the bench, she felt as if she “accomplished something meaningful to someone every day.”

Judge Palafox recalled one hearing as particularly impactful. In a custody case that involved a parent overcoming severe substance abuse issues, Judge Palafox recognized the angst felt between the parties and sense of betrayal.The emotions permeated the courtroom. Understanding that the parent had started a multi-step program requiring an admission of wrongdoing and an apology, Judge Palafox poignantly asked the parent whether there was any other person in the courtroom that the parent wanted to address.The parent turned to the other and accepted responsibility by apologizing for the betrayal. On another occasion, where Judge Palafox issued multiple restraining orders against a parent with a substance abuse issue that led to a child abduction, after thirty hearings over the course of five years, there was a pivotal moment which led to a full recovery and tearful forgiveness from the abused family.These heartfelt moments diffuse the litigiousness in the courtroom and are starting points for those involved and for others to observe that rebuilding trust for the fractured families is possible.

While these dramatic scenes may only happen from time-to-time, the intensity of emotions and the importance of the work is a constant. Unfortunately, even after Elkins, family law judicial resources are strained. Judges, clerks, and administrators work tirelessly, but Judge Palafox emphasizes that “more must be done” and repeats the California Supreme Court’s finding: “The same judicial resources and safeguards should be committed to a family law trial as are committed to other civil proceedings.” Elkins, 41 Cal. 4th at 1368. Family law courts have significant volume and while streamlining does help, family law litigants are entitled “to resolve their disputes in the usual adversary trial proceeding governed by the rules of evidence established by statute.” Id.

Beyond those two best practices, Judge Palafox offered some advice to newer attorneys. “Consider looking into family law because there is so much court time” and “you can get into the arena” more quickly than in almost any other practice. Unlike civil law and motion practice, family law courts hold evidentiary hearings for temporary issues such as custody, support, and attorneys’ fees, and routinely bifurcate trial issues to have multiple trials over extended periods of time. For these new attorneys, Judge Palafox stressed the importance of learning evidence and how to present evidence in a persuasive manner.

Attorneys who have appeared before Judge Palafox recognize her efforts to help heal families, think prospectively and practically, and have clarity in her rulings. “Judge Palafox applies common sense to her rulings and makes orders that actually work for the parties and their children. A judge who makes clear orders prevents future problems,” said Jason Blonska of The Blonska Firm. Jason Schwartz of Stegmeier, Gelbart, Schwartz, and Benavente echoed those comments:

Judge Palafox makes a great effort to understand the nuances of each case and encourage the litigants to reach a fair resolution of their matter before trial. However, she is not afraid to make the tough call at trial. Win or lose, Judge Palafox makes sure you understand the reasoning for her decision. It is helpful for us as attorneys to explain what went right or wrong to our clients because of the detail she includes in her rulings.

Michael A. Morris of Minyard Morris summed it up most succinctly, “Good judge. Great understanding of family law. Wonderful to try a case in front of.”

After five years on the bench, in the midst of the pandemic, Judge Palafox ascended to her current role as Supervising Judge where she still maintains her full case load. As both a judicial officer and Supervising Judge, she works every weekend. She still volunteers and undertakes often thankless projects to streamline existing court procedures or create new ones to help litigants. However, the Supervising Judge functions within a large court system filled with longtime courthouse staff with immense institutional know-how and experience. Judge Palafox had to coordinate between the clerk’s office, the administration offices, the Orange County Sheriff for courtroom deputies, and navigate judicial calendars following elections, appointments, and reassignments.

Judge Palafox treated the institutional complexities as one of her motivations to improve the court system. Judge Palafox steadfastly promised herself to “leave the court in a better place” than when she arrived. She has spearheaded programs to clear the backlog caused by the pandemic and to facilitate settlement for future cases such as working on a pilot program for early mediation for self-represented parties and continuing to support the Family Law Voluntary Settlement Program launched by Judge Silbar and the Family Law bar during the pandemic. In doing all of this, Judge Palafox feels that she “made a difference for the better and considers this last chapter [her] best chapter.”

Today, there is good and bad news to report. The good news is the family law backlog from COVID-19 is much improved and, in some cases, nonexistent, and courtrooms are again processing cases both in-person and remotely. Even short-staffed, the family law court now processes orders and judgments more quickly than before. In family law, especially with child custody, “people need timely orders” and any delay can harm families according to Judge Palafox. The bad news is, while the world and court are recovering, filings are ticking up again and, in some cases, such as domestic violence, are even greater than pre-pandemic filings. This is proving challenging with the limited availability of judicial officers which, in turn, limits in-person hearings and justice for litigants on an already constrained family law court system. The family court has about four fewer judicial officers on the bench than just a few years ago.

In an effort to increase visibility for the benefit of the family law court, Judge Palafox has reluctantly stepped outside her judicial comfort zone and into the legal community. She has hosted the Annual Judge’s Barbeque on behalf of the Orange County Hispanic Bar Association. Judge Palafox presented at the most recent American Academy of Matrimonial Lawyers Annual Conference in San Diego. She has now made regular appearances at the Orange County Bar Association’s Judges’ Night.

Judge Palafox emphasizes that she “enjoys” her role as Supervising Judge, but before she leaves the court, Judge Palafox hopes to develop a five-year plan, with the assistance of the presiding judges, the court executives, the family law bench, and bar to re-examine Elkins’ recommendations and put Orange County at the forefront of family courts in California.

Judge Palafox still finds time to enjoy Orange County and spend time with her musically talented husband. When not working, Judge Palafox attends her husband’s local gigs or they play golf together. She and her long-time friends also take full advantage of the local hiking trails. Judge Palafox “loves Orange County.” Having lived in both Los Angeles and Orange County she reasons Orange County “is not Los Angeles, but has the best of Los Angeles.” Judge Palafox noted Orange County has less traffic than Los Angeles but still has a myriad of diverse ethnic communities, subcultures, restaurant options, and outdoor activities from hiking to the beach. Orange County offers all of this while having perfect weather, a far cry from South Bend’s winters and El Paso’s dry scorching summers.

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Employers Beware: La Supreme Court Opens Line for Direct Negligence Claims from Negligent Employee Actions

read case Martin v. Thomas et al. 2022 – Opens Line for Direct Negligence Claims from Employee Actions

Government / Public Servants / Officers / Judges Not Immune from suit!

State v. Sutton, 63 Min 147, 65 NW 262, 30 LRA630, AM ST 459 When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetuated, and no one is bound to obey it.
Miranda vs Arizona, 384 U.S. 436 p. 491 “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
“The officers of the law, in the execution of process, are required to know the requirements of the law, and if they mistake them, whether through ignorance or design, and anyone is harmed by their error, they must respond in damages.” Roger v. Marshall (United States use of Rogers v. Conklin), 1 Wall. (US) 644, 17 Led 714.
“It is a general rule that an officer, executive, administrative, quasi-judicial, ministerial, or otherwise, who acts outside the scope of his jurisdiction, and without authorization of law may thereby render himself amenable to personal liability in a civil suit.” Cooperv. O`Conner, 69 App DC 100, 99 F (2d)
“Public officials are not immune from suit when they transcend their lawful authority by invading constitutional rights. “AFLCIO v.Woodard, 406 F 2d 137 t.
“Immunity fosters neglect and breeds irresponsibility while liability promotes care and caution, which caution and care is owed by the government to its people.” (CivilRights) Rabon vs Rowen MemorialHospital, Inc. 269 N.S. 1, 13, 152 SE 1 d 485, 493.
Government Immunity – “In Land v. Dollar, 338 US 731 (1947), the court noted, “that when the government entered into a commercial field of activity, it left immunity behind.” Brady v. Roosevelt, 317 US 575 (1943); FHA v. Burr, 309 US 242 (1940); Kiefer v. RFC, 306 US 381 (1939).
The high Courts, through their citations of authority, have frequently declared, that “…where any state proceeds against a privateindividual in a judicial forum it is well settled that the state, county, municipality, etc. waives any immunity to counters, cross claims and complaints, by direct or collateral means regarding the matters involved.” Luckenback v. The Thekla, 295 F 1020, 226 Us 328; Lyders v. Lund, 32 F2d 308;
“When enforcing mere statutes, judges of all courts do not actjudicially (and thus are not protected by “qualified” or “limitedimmunity,” – SEE:Owen v. City, 445 U.S. 662; Bothke v. Terry, 713 F2d 1404)
Thompson v. Smith, 154 S.E. 579, 583; Keller v. P.E., 261 US 428; F.R.C. v. G.E., 281, U.S. 464 “but merely act as an extension as an agent for the involved agency — but only in a “ministerial” and not a“discretionary capacity…” .
Thompson v. Clark 2022 Holding: Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution; an affirmative indication of innocence is not needed.
Immunity for judges does not extend to acts which are clearly outside of their jurisdiction. Bauers v. Heisel,C.A. N.J. 1966, 361 F.2d 581, Cert. Den. 87 S.Ct. 1367, 386 U.S. 1021, 18 L.Ed. 2d 457 (see also Muller v. Wachtel, D.C.N.Y. 1972, 345 F.Supp. 160; Rhodes v. Houston, D.C. Nebr. 1962, 202 F.Supp. 624 affirmed 309 F.2d 959, Cert. den 83 St. 724, 372 U.S. 909, 9 L.Ed. 719, Cert. Den 83 S.Ct. 1282, 383 U.S. 971, 16 L.Ed. 2nd 311, Motion denied 285 F.Supp. 546).
“Judges not only can be sued over their official acts, but could be held liable for injunctive and declaratory relief and attorney’s fees.” Lezama v. Justice Court, A025829.
“The immunity of judges for acts within their judicial role is beyond cavil.” Pierson v. Ray, 386 U.S. 547 (1957). Keyword within their role, outside of that role they are not.
At least seven circuits have indicated affirmatively that there is no immunity bar to such relief, and in situations where in their judgment an injunction against a judicial officer is necessary to prevent irreparable injury to a petitioner’s constitutional rights, courts will grant that relief. “There is no common law judicial immunity.” Pulliam v. Allen, 104S.Ct. 1970; cited in Lezama v. Justice Court, A025829.|
“Judges, members of city council, and police officers as well as other public officials, may utilize good faith defense of action for damages under 42-1983, but no public official has absolute immunity from suit under the 1871 civil rights statute.” (Samuel vs University ofPittsburg, 375 F.Supp. 1119, ‘see also, White vs Fleming 374 Supp. 267.)
U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. “
Pierce v. United States (“The Floyd Acceptances”), 7 Wall. (74 U.S.) 666, 677 (“We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority”);
Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 (“In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him… It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority”); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912
“Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.” (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988).
“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings.” Hagans v. Lavine, 415 U. S. 533
“If you’ve relied on prior decisions of the Supreme Court you have a perfect defense for willfulness.” U.S. v. Bishop, 412 U.S. 346
Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called ‘the tenderness of the law Page 11 of 48 for the rights of individuals’ [FN1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not ‘plainly and unmistakably’ within the confines of the statute. United States v. Lacher, 134 U.S. 624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080; United States v. Gradwell, 243 U.S. 476,485, 37 S. Ct. 407, 61 L. Ed. 857. FN1 United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.
We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168,196 [26: 377, 386].
We said in Boyd v. United States, 116 U. S. 616, 630 [29: 746, 751]—and it cannot be too often repeated—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employes of the sancity of a man’s home, and the privacies of his life.As said by Mr. Justice Field in Re Pacific R. Commission, 32 Fed. Rep. 241,250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happinessthan the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”
Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326 When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost.
JURI$DICTION: NOTE: It is a fact of law that the person asserting jurisdiction must, when challenged, prove that jurisdiction exists; mere good faith assertions of power and authority (jurisdiction) have been abolished.
Albrecht v. U.S. Balzac v. People of Puerto Rico, 258 U.S. 298 (1922) “The United States District Court is not a true United States Court, established under Article 3 of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under Article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts, in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court.”
“Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.” [U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)]
Stump v. Sparkman, id., 435 U.S. 349. Some Defendants urge that any act “of a judicial nature” entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing. A judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity.
Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872) “Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.”
Chandler v. Judicial Council of the 10th Circuit, 398 U.S. 74, 90 S. Ct. 1648, 26 L. Ed. 2d 100 Justice Douglas, in his dissenting opinion at page 140 said, “If (federal judges) break the law, they can be prosecuted.” Justice Black, in his dissenting opinion at page 141) said, “Judges, like other people, can be tried, convicted and punished for crimes… The judicial power shall extend to all cases, in law and equity, arising under this Constitution“.
Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938) A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts.
“Jurisdiction, once challenged, cannot be assumed and must be decided.” Maine v. Thiboutot, 100 S. Ct. 250
Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.”
Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.”
Tort & Insurance Law Journal, Spring 1986 21 n3, p 509-516, “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants’ civil rights.” – Robert Craig Waters.

NO IMMUNITY – “Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622 “Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

- [a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud.” Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 1994
- Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. As found in Black’s Law Dictionary, Fifth Edition, page 509.
- “Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows, 91 U.S 426.
- “Fraud vitiates everything” Boyce v. Grundy, 3 Pet. 210
- “Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61
- When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S.196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court. In so voiding the title of the United States, the Court declared:
  “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his prop erty by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country,it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.”
- Marbury v. Madison Chief Justice John Marshall Marbury v. Madison,5 US (1Cranch) 137, 174, 176 (1803) All laws which are repugnant to the Constitution are null and void. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States. Marbury v. Madison, 5 US 137,(1803) “The Constitution of these United States is the supreme law of the land. Any law that is repugnant to the Constitution is null and void of law.” Marbury v. Madison, 5 U.S. (2 Cranch) 137, 180 (1803) “… the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional. “In declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank”. “All law (rules and practices) which are repugnant to the Constitution are VOID”. Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional.

JUDICIAL IMMUNITY: See also, 42 USC 1983 – Availability of Equitable Relief Against Judges.

Note: Judges have given themselves judicial immunity for their judicial functions. Judges have no judicial immunity for criminal acts, aiding, assisting, or conniving with others who perform a criminal act or for their administrative/ministerial duties, or for violating a citizen’s constitutional rights. When a judge has a duty to act, he does not have discretion – he is then not performing a judicial act; he is performing a ministerial act. Nowhere was the judiciary given immunity, particularly nowhere in Article III; under our Constitution, if judges were to have immunity, it could only possibly be granted by amendment (and even less possibly by legislative act), as Art. I, Sections 9 & 10, respectively, in fact expressly prohibit such, stating, “No Title of Nobility shall be granted by the United States” and “No state shall… grant any Title of Nobility.” Most of us are certain that Congress itself doesn’t understand the inherent lack of immunity for judges. Article III, Sec. 1, “The Judicial Power of the United States shall be vested in one supreme court, and in such inferior courts, shall hold their offices during good behavior.”

Both the US Constitution and Californian Constitution has

42 U.S. Code § 1983 – Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
California Civil Code Section 52.1

Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights The Bane Civil Rights Act (California Civil Code Section 52.1) forbids anyone from interfering by force or by threat of violence with your federal or state constitutional or statutory rights. The acts forbidden by these civil laws may also be criminal acts, and can expose violators to criminal penalties. California Civil Code Section 52.1 – Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights.

Maybe the Judge did not understand his oath or get the new message from the WHITE HOUSE to all judges, prosecutors and police

click here

Israel “Izzy” Claustro

He lives here, maybe the local community, through peaceful public assembly, should get together and let their Judge Israel “Izzy” Claustro to resign for his criminal activities and negligence

5470 Camino De Bryant, Yorba Linda, CA 92887

13567 Oxford Ct
Chino, CA 91710

452 Phillips Blvd,
Pomona, CA 91766

140 S Sunkist St
Anaheim, CA 92806
xxx xxx xxxx

Grandparent’s Suffer – Grandson Suffers

Daddy Son Suffer

9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

Amdt5.4.5.6.2 – Parental and Children’s Rights“> – 5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

DEPRIVATION OF RIGHTS UNDER COLOR OF LAW

if you are failing to get the rights you deserve and change of venue is denied and all other avenues are exhausted try looking into

Petition for a Writ of Mandate or Writ of Mandamus (learn more…)

https://goodshepherdmedia.net/wp-content/uploads/2022/10/Kid-Rock-We-The-People-ft-Tucker-Carlson-Made-with-Clipchamp.mp4

https://goodshepherdmedia.net/wp-content/uploads/2021/12/Little-Michaels-Adventures-MARCH-10-2013.mp4

https://youtu.be/HitYoovJrBk

Dizzy Izzy is very Clouded

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN:
Click Here Officers and DA’s for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF file

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers – 1st Amendment Protected Speech

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Penal Code 148.5 PC – Making a False Police Report in California

Penal Code 115 PC – Filing a False Document in California

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed

Mi$Conduct – Pro$ecutorial Mi$Conduct

Prosecutor$

Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Functions and Duties of the Prosecutor – Prosecution Conduct

Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

Mi$Conduct – Judicial Mi$Conduct

Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial Performance – Judge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process? When the Government Fails Us

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

Misconduct by Government Know Your Rights Click Here (must read!)

Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court?

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

Tort Claims Form File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

Federal – Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California – Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here

California Motions in Limine – What is a Motion in Limine?

Petition for a Writ of Mandate or Writ of Mandamus (learn more…)

PARENT CASE LAW

RELATIONSHIP WITH YOUR CHILDREN &
YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law Appeal – Learn about appealing a Family Court Decision Here

9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

Amdt5.4.5.6.2 – Parental and Children’s Rights“> – 5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1
Interference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

Child’s Best Interest in Custody Cases

Are You From Out of State (California)? FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

Can You Transfer Your Case to Another County or State With Family Law? – Challenges to Jurisdiction

Venue in Family Law Proceedings

GRANDPARENT CASE LAW

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Retrieving Evidence / Internal Investigation Case

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Orange County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below:

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

Cleaning Up Your Record

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92 & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons – What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Please take time to learn new UPCOMING

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Rule 1.1 – Competence (DA REPRESENTS THE STATE)

Rule 1.2 – Assisting in a Crime

Rule 3.1 – Meritorious Claims & Contentions

Rule 3.4 – Fairness to Opposing Party and Council

PAUL TOEPEL PLAY THE NEXT VIDEO REMEMBER SUGGESTING ME TO BE MADE A VEXATIOUS LITAGANT YOU PUNK FUCK

Model Rule 3.8 pt.2 – Special Duties of Prosecutors

Learn More: ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Model Rule 4.1 – Truthfulness in Statements to Others

PAUL TOEPEL PLAY THE NEXT VIDEO

Model Rule 4.4 – Respect for the Rights of Others

PAUL & Mathew TOEPEL LISTEN TO THE NEXT VIDEO

Model Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer

Model Rule 5.2 Responsibilities of a Subordinate Lawyer

Model Rule 8.1 Bar Admission & Disciplinary Matters

Model Rule 8.2 – Judicial & Legal Officials

Model Rule 8.3 – Reporting Professional Misconduct

Model Rule 8.4 pt.1 – Lawyer Misconduct

PAUL TOEPEL LISTEN TO THE NEXT VIDEO

ABA Formal Op. 493 pt.1 – Rule 8.4(g): Purpose, Scope & Application

Model Rule 8.4 pt.2 – Discrimination & Harassment

ECONOMIC STATUS ATTACKS!

https://goodshepherdmedia.net/wp-content/uploads/2023/07/Never-give-up-YOU-ARE-A-DAD.mp4

https://goodshepherdmedia.net/wp-content/uploads/2023/07/It-only-takes-1-to-topple-you.mp4

https://goodshepherdmedia.net/wp-content/uploads/2023/07/Forgive-yourself.mp4

https://goodshepherdmedia.net/wp-content/uploads/2023/07/Work-on-you.mp4

Learn More About on Stoicism – The Stoic Man An Unstoppable Force to Reckon With…..

Father's Rights Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Disclaimer

Proving the “Prior Action” Requirement of a Malicious Prosecution Case

How To Sue For Malicious Prosecution For A Civil (Not Criminal) Lawsuit.

The Benefits of Malicious Prosecution Suits

The Technical Legal Test to Win at Malicious Prosecution

The Easier to Understand Test for Malicious Prosecution

What Does “Maliciously” mean?

What Is Reasonable Grounds?

Our Law Dislikes Malicious Prosecution Cases

Probable Cause Weighs In Too!

The Easy to Understand Test for Probable Cause

Can I Get Punitive Damages To Punish?

Conclusion

Learn more about these sujects

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

learn more about Anti-SLAPP:

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Which of the following cases fits into the tort of abuse of process? and… Which of the following cases fits into the tort of malicious prosecution?

Abuse of Process aka Abu$e of Proce$$

trying to hold someone on warrants that are based on charges you plan on dropping as they are malicious but you still request them to turn themselves in and be held on the bond for those crimes for which you know have no merit!

Malicious Prosecution aka Maliciou$ Prosecution

This tort has four elements a plaintiff must show to win her case:

The prosecutor knew no probable cause existed and still continued to prosecute and try to prove guilt

Malicious Prosecution, Abuse of Process, and False Arrest

People falsely accused of crimes, and prosecuted as a result, have been severely harmed

Malicious Prosecution

Relationship to “Abuse of Process” and “False Arrest”

Malicious Prosecution and False Arrest as a Civil-Rights Violation

What To Do If You Believe You Have Been a Victim of Malicious Prosecution

Lawsuits for Malicious Prosecution or Abuse of Process

If someone has wrongfully sued you or prosecuted you for a crime, you may have a valid malicious prosecution or abuse of process claim.

Difference between Malicious Prosecution and Abuse of Process

Essential Elements of Abuse of Process

Essential Elements of Malicious Prosecution

A Proceeding

Reasonable Grounds

Improper Purpose

Favorable Termination

Differentiation of Abuse of Process and Malicious Prosecution

Abuse of Process and Malicious Prosecution Lawyer

Abuse of Process

Malicious Prosecution

What Are My Rights as a Dad? Father’s Parental rights: Existing law and established boundaries

California Fathers’ Rights 2024 – What Are My Rights as a Dad?

Fathers’ Rights

Fathers’ Rights

FAQs

Q: What Are My Parental Rights as a Father in California?

Q: Can a Mother Keep the Child Away From the Father in California?

Q: Is the Mother Given Preference in Custody in California?

Q: What Do I Do About False Allegations of Domestic Violence or Child Abuse?

THE CONSTITUTIONAL FRAMEWORK OF FATHERS’ RIGHTS

The Fourteenth Amendment

Section 9.32 Particular Rights — 14th Amendment — Due Process — Interference with Parent / Child Relationship (read all about that here) (and can be downloaded here)

read another amendment section under the 5th amendment below Amdt 5.4.5.6.2 Parental and Children’s Rights – under the Fifth Amendment:

Parents Rights Current law

Parents Absolutely Have Rights to Their Children’s Education

Many Supreme Court Cases Have Interpreted the 14th in Conjunction with Parents Rights

Troxel Golden Nuggets

Parents Have a Right to Know What is Happening to Their Child at School

What About a Child’s Privacy Rights?

Parents are NOT the Enemy

Laws are Suppose to Protect Children

Parental Notification Policy

WHAT ARE FATHER’S RIGHTS IN CALIFORNIA?

CHILD CUSTODY IN CALIFORNIA

LEGAL CUSTODY VS. PHYSICAL CUSTODY

LEGAL CUSTODY

PHYSICAL CUSTODY

PRESUMPTION OF JOINT CUSTODY

ESTABLISHING PATERNITY

VOLUNTARY DECLARATION OF PATERNITY

COURT ORDER

FATHER’S RIGHTS IN CHILD CUSTODY

REQUESTING CUSTODY

MODIFYING CUSTODY ORDERS

Which of the following cases fits into the tort of abuse of process?
and…
Which of the following cases fits into the tort of malicious prosecution?

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN:
Click Here Officers and DA’s for (Procedure to Follow)

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment