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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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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.

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.

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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).

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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).

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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).

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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

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.

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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 –
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

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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.

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

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

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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

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Anti-SLAPP Law in California

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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 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

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Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

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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

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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 148.5 PC – Making a False Police Report in California

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

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New Supreme Court Ruling – makes it easier to sue police

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

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The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

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What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

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At the Intersection of Technology and Law

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What is Tort?

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

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CACI No. 1501 – Wrongful Use of Civil Proceedings

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

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PARENT CASE LAW

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

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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

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Frank C Brito – An American Hero, A Family Hero and one of the The RoughRiders

The Truth News — Sun, 23 Jul 2023 07:28:38 +0000

Frank C Brito – An American Hero, A Family Hero and one of the Teddy Roosevelt’s RoughRiders

An American Hero, an American Indian, an American Patriot and local Hero from Las Cruces New Mexico

Frank C Brito age 21 in 1898 his wedding photo

Frank C Brito in the 1940 Census

find other results in the 1940 census for Frank C Brito

Age	62, born abt 1878
Birthplace	New Mexico
Gender	Male
Race	White
Home in 1940	543 Tornillo Las Cruces, Dona Ana, New Mexico
Household Members		Age
Head	Frank C Brito	62
Wife	Petra P Brito	45
Stepdaughter	Emma Brito	15
Son	Armulfo Brito	11

Not the Frank C Brito you were looking for? View more results from the 1940 Census.

This snapshot of Frank C Brito’s life was captured by the 1940 U.S. Census.
Frank C Brito was born about 1878. In 1940, he was 62 years old and lived in Las Cruces, New Mexico, with his wife, Petra, son, and daughter.

Frank C. Brito Santa Fé, Territory of New Mexico

On our Military Regiments page, Frank C. Brito is listed as serving in Troop I. The document below is his Enlistment in the United States Military. He enlisted with his brother Jose.

Frank C. Brito Santa Fé, Territory of New Mexico

Source: History of New Mexico, Its Resources and People, Volume I, Pacific States Publishing Co., 1907.

Rough Rider Frank Brito one ‘Tough Hombre’

July 16, 1872 Frank Brito is one of the last three soldiers who were members of Teddy Roosevelt’s Rough Riders.

On July 16, 1972, Art Leibson told the story of Frank Brito who, at the time, was one of three surviving members of Teddy Roosevelt’s Rough Riders:

Frank Brito who admits what his record proves — that he is one tough hombre — underwent major surgery last week in a local hospital and expects to be fully recovered by Aug. 24 when he will be 95 years old. And he expects to go right on living alone and liking it.

Brito’s spirit indomitable

Brito has the distinction of being one of three survivors of Teddy Roosevelt’s Rough Riders who stormed Kettle Hill in the battle for San Juan Hill in the Spanish-American War. When Dale walker, who combines folklore research with his publicity duties at the University of Texas at El Paso, discovered Brito living in Las Cruces, N.M., he wrote an article on the old soldier saying there was only one other Rough Rider still living. Since then he learned that a Dr. George Hammer, living in Florida and 99 last May, also rode with Roosevelt.

His eyes are dim, his hearing almost gone, but Brito’s spirit is indomitable. He lived alone in Las Cruces, right up to the time he entered the hospital for surgery, ignoring the please of his children to live with them. He did most of his own cooking, in a small adobe home, his only recreation being his radio. He largely ignored a TV set because of his eyesight.

A daughter, Mrs. Ramon Mendoza, of El Paso, is hopeful that her father will finally admit he can use help and move in with her when he eves the hospital.

Brito is the son of a Yaqui Indian prospector an as born in 1877 at Pinos Altos, N.M., then a mining boomtown. As Walker pointed out in his account of his career, he was born the year following Custer’s Last stand at Little Big Horn. Rutherford B. Hayes was President. source

Spanish American War Regiments

New Mexico in the Spanish American War, 1898

New Mexico’s part in the Civil war, when the Territory was very young and its citizens and its interests less thoroughly American than now, is only dimmed by the lustre shed on her military annals by the performance of her sons in the war with Spain. The deeds of the famous regiment of “Rough Riders.” to which New Mexico furnished a large share of volunteers, will be a cherished heritage to the Southwest as long as men are stirred to enthusiasm by the exploits of war.

At the opening of the Spanish-American war, in 1898, Congress authorized the raising of three cavalry regiments from among the rough riders and riflemen of the Rockies and the Great Plains. The command popularly known as the “Rough Riders” the First United States Volunteer Cavalry, was recruited principally from these western states, and the mustering places for the regiment were appointed in New Mexico, Arizona. Oklahoma and Indian Territory. Before the detailed work of organization was begun. Dr. Leonard Wood was commissioned colonel, and Theodore Roosevelt, then assistant secretary of war, lieutenant-colonel of the regiment.

Within a day or two after it was announced that such a unique command was to be organized, the commanding officers were deluged with applications from every part of the country. While the only organized Bodies they were at liberty to accept were those from the four territories, the raising of the original allotment of seven hundred and eighty to one thousand men allowed them to enroll the names of individual applicants from various other sources, from universities, aristocratic social clubs and from men in whose veins flowed some of the most ancient blood in America.

The regiment gathered and was organized at San Antonio, Texas. The bulk of the regiment was made up of men who came from New Mexico, Arizona. Oklahoma and Indian Territory. “They were a splendid set of men, these southwesterners,” wrote Colonel Roosevelt, “tall and sinewy, with resolute, weather-beaten faces, and eyes that looked a man straight in the face without flinching. They included in their ranks men of every occupation: but the three types were those of the cowboy, the hunter and the mining prospector, the man who wandered hither and thither, killing game for a living, and spending his life in the quest for metal wealth. In all the world there could be no better material for soldiers than that afforded by these grim hunters of the mountains, these wild rough riders of the plains. They were accustomed to handling wild and savage horses; they were accustomed to following the chase with the rifle, both for sport and as a means of livelihood. Varied though their occupations had been, almost all had, at one time or another, herded cattle and hunted big game. They were hardened to life in the open, and to shifting for themselves under adverse circumstances. They were used, for all their lawless freedom, to the rough discipline of the round-up and the mining company. Some of them came from the small frontier towns; but most were from the wilderness, having left their lonely hunters’ cabins and shifting cow-camps to seek new and more stirring adventures beyond the sea.

“They had their natural leaders, the men who had shown they could master other men, and could more than hold their own in the eager, driving life of the new settlements.

“The captains and lieutenants were sometimes men who had campaigned in the regular army against Apache, Ute and Cheyenne, and who, on completing their service, had shown their energy by settling in the new communities and growing up to be men of mark. In other cases they were sheriffs, marshals, deputy sheriffs and deputy marshals, men who had fought Indians, and still more often had fought relentless war upon the lands of white desperadoes.” There was Captain Llewellyn, of New Mexico, a good citizen, a political leader, and one of the most noted peace officers of the country; he had been shot four times in pitched fights with red marauders and white outlaws. There was Lieutenant Ballard, who had broken up the Black-jack gang of ill-omened notoriety, and his captain, Curry, another New Mexican sheriff of fame. All easterners and westerners, northerners and southerners, officers and men, cowboys and college graduates, wherever they came from, and whatever their social position, possessed in common the traits of hardihood and a thirst for adventure. They were to a man born adventurers, in the old sense of the word.”

On Sunday, May 29, the regiment broke camp and proceeded by rail to Tampa, Fla., the trip consuming four days. On the morning of June 14 the troops proceeded, on board the transport Yucatan, for Cuba. For six days the thirty or more transports which had left Tampa steamed steadily southwestward, under the escort of battleships, cruisers and torpedo boats. On the morning of June 22 the troops began disembarking at Daiquiri, a small port near Santiago de Cuba, after this and other nearby points had been shelled to dislodge any Spaniards who might be lurking in the vicinity.

Before leaving Tampa the Rough Riders had been brigaded with the First (white) and Tenth (colored) Regular Cavalry under Brigadier-General S. B. M. Young, as the Second Brigade, which, with the First Brigade, formed a cavalry division placed in command of Major-General Joseph Wheeler. The afternoon following their landing they were ordered forward through the narrow, hilly jungle trail, arriving after nightfall at Siboney.

Before the tired soldiers (men who had been accustomed to traveling on horseback all their lives, for the most part, but now compelled to proceed on foot) could recuperate, the order to proceed against the Spanish position was given, and the first actual fighting was on. This was on Tune 24. During the advance against the Spanish outposts Henry J. Haefner, of Troop G., fell, mortally wounded. This was the first casualty in action. Haefner enlisted from Gallup, New Mexico. He fell without uttering a sound, and two of his companions dragged him behind a tree. Here he propped himself up and asked for his canteen and his rifle, which Colonel Roosevelt handed to him. He then began loading and firing, which he continued until the line moved forward. After the fight he was found dead.

After driving the enemy from their position at the American right a temporary hill followed. Fighting between the Spanish outposts and the American line was soon resumed, however. A perfect hail of bullets swept over the advancing line, but most of them went high. After a quick charge the enemy abandoned their main position in the skirmish line. The loss to the Rough Riders was eight men killed and thirty-four wounded; the First Cavalry lost seven men killed and eight wounded; the Tenth Cavalry lost one man killed and ten wounded. The Spaniards were under General Rubin. This fight, the first on Cuban soil, is officially known as the Battle of Las Guasimas.

On the afternoon of June 25 the regiment moved forward about two miles and camped for several days. In the meantime General Young was stricken with the fever. Colonel Wood then took command of the brigade, leaving Lieutenant-Colonel Roosevelt in command of the regiment. On June 30 orders were received to be prepared to march against Santiago. It was not until the middle of the afternoon that the regiment took its position in the marching army, and eight o’clock that night when they halted on El Paso hill. Word ^vent forth that the main fighting was to be done by Lawton’s infantry, which was to take El Caney, several miles to the right, while the Rough Riders were simply to make a diversion with the artillery.

About six o’clock the next morning, July 1, the fighting began at El Caney. As throughout the entire campaign, the enemy used smokeless powder, which rendered the detection of their location well-nigh impossible. Soon after the beginning of the artillery engagement. Colonel Roosevelt was ordered to march his command to the right and connect with Lawton, an order impossible to obey. A captive balloon was in the air at the time. As the men started to cross a ford, the balloon, to the horror of everybody, began to settle at the exact front of fording. It was a special target for the enemy’s fire, but the regiment crossed before it reached the ground. There it partly collapsed and remained, causing severe loss of life, as it indicated the exact point at which other troops were crossing.

The heat was intense, and many of the men began to show signs of exhaustion early in the day. The Mauser bullets drove in sheets through the trees and jungle grass. The bulk of the Spanish fire appeared to be practically un-aimed, but the enemy swept the entire field of battle. Though the troopers were scattered out far apart, taking advantage of every scrap of cover, man after man fell dead or wounded. Soon the order came to move forward and support the regulars in the assault on the hills in front. Waving his hat aloft. Colonel Roosevelt shouted the command to charge the hill on the right front. At about the same moment the other officers gave similar orders, and the exciting rush up ‘Kettle hill” began. The first guidons planted on the summit of the hill, according to Roosevelt’s account, were those of Troops G, E and F of his regiment, under their captains, Llewellyn, Luna and Muller.

No sooner were the Americans on the crest of the hill than the Spaniards, from their strong entrenchments on the hills in front, opened a heavy fire, with rifles and artillery. Our troops then began volley firing against the San Juan block-house and the surrounding trenches. As the regulars advanced in their final assault and the enemy began running from the rifle pits, the Rough Riders were ordered to cease firing and charge the next line of trenches, on the hills in front, from which they had been undergoing severe punishment. Thinking that his men naturally would follow. Colonel Roosevelt jumped over the wire fence in front and started rapidly up the hill. But the troopers were so excited that they did not hear or heed him. After leading on about a hundred yards with but five men, he returned and chided his men for having failed to follow him.

“We did not hear you. Colonel,” cried some of the men. “We didn’t see you go. Lead on, now; we’ll sure follow you.”

The other regiments joined the Rough Riders in the historic charge which followed. But long before they could reach the Spaniards the latter ran, excepting a few who either surrendered or were shot down. When the attacking force reached the trenches they found them filled with dead bodies. There were few wounded. Most of the fallen had bullet holes in their heads which told of the accurate aim of the American sharpshooters. “There was great confusion at this time,” writes Colonel Roosevelt, “the different regiments being completely intermingled, white regulars, colored regulars, and Rough Riders. We were still under a heavy fire and I got together a mixed lot of men and pushed on from the trenches and ranch houses which we had just taken, driving the Spaniards through a line of palm trees, and over the crest of a chain of hills. When we reached these crests we found ourselves overlooking Santiago.”

Here Colonel Roosevelt was ordered to advance no further, but to hold the hill at all hazards. With his own command were all the fragments of the other five cavalry regiments at the extreme right. The Spaniards had fallen back upon their supports, and our troops were still under a very heavy fire from rifles and artillery. Our artillery made one or two efforts to come into action on the infantry firing line, but their black powder rendered each attempt fruitless. In the course of the afternoon the Spaniards made an unsuccessful attempt to retake the hill. A few seconds’ firing stopped their advance and drove them into cover of the trenches.

The troops slept that night on the hill-top, being attacked but once before daybreak, about 3 A. M. and then for a short time only. At dawn the attack was renewed in earnest. The Spaniards fought more stubbornly than at Las Guasimas, but their ranks broke when the Americans charged home.

In the attack on the San Juan hills our forces numbered about sixty-six hundred. The Spanish force numbered about forty-five hundred. Our total loss in killed and wounded was one thousand and seventy-one.

The fighting continued July 2, but most of the Spanish firing proved harmless. During the day our force in the trenches was increased to about eleven thousand, and the Spaniards in Santiago to upwards of nine thousand. As the day wore on the fight, though raging fitfully at intervals, gradually died away. The Spanish guerrillas caused our troops much trouble, however. They were located, usually, in the tops of trees, and as they used smokeless powder it was almost impossible to locate and dislodge them. These guerrillas showed not only courage, but great cruelty and barbarity. They seemed to prefer for their victims the unarmed attendants, the surgeons, the chaplains and hospital stewards. They fired at the men who were bearing off the wounded in litters, at the doctors who came to the front and at the chaplains who held burial service.

The firing was energetically resumed on the morning of the 3rd, but during the day the only loss to the Rough Riders was one man wounded. At noon the order to stop tiring was given, and a flag of truce was sent in to demand the surrender of the city. For a week following peace negotiations dragged along. Failing of success, fighting was resumed shortly after noon of the loth, but it soon became evident that the Spaniards did not have much heart in their work. About the only Rough Riders who had a chance for active work were the men with the Colt automatic guns and twenty picked sharpshooters who were on the watch for guerrillas. At noon, on the nth, the Rough Riders, with one of the Gatlings, were sent over to the right to guard the Caney road. But no fighting was necessary, for the last straggling shot had been fired by the time they arrived.

On the 17th the city formally surrendered. Two days later the entire division was marched back to the foothills west of El Caney, where it went into camp with the artillery. Here many of the officers and men became ill, and as a rule less than fifty present were fit for any kind of work. All clothing was in rags; even the officers had neither socks nor underwear. The authorities at Washington, misled by reports received from some of their military and medical advisers at the front, became panic-stricken and hesitated to bring the army home, lest it might import yellow fever into the United States. The real foe, however, was not yellow fever, but malarial fever. The awful conditions surrounding the army finally led to the writing of the historic “round robin,” in which the leading officers in Cuba showed that to keep the army in Santiago meant its complete and objectless ruin. The result was immediate. Within three days orders came to put the army in readiness to sail for home. August 6 the order came to embark, and the next morning the Rough Riders sailed on the transport Miami which reached Montauk point, the east end of Long Island, New York, on the afternoon of the 14th. The following day the troops disembarked and went into camp at Camp Wyckoff. The regiment remained here until September 15, when its members received their discharges and returned to civil life.

Teddy Roosevelt & The Rough Riders of 1898

The last two surviving veterans of the regiment were Frank C. Brito and Jesse Langdon. Brito, from Las Cruces, New Mexico, whose father was a Yaqui Indian

The Rough Riders is the name bestowed on the 1st U.S. Volunteer Cavalry Regiment, one of three such regiments raised in 1898 for the Spanish-American War and the only one of the three to see action. The United States Army was weakened and left with little manpower after the American Civil War roughly thirty years prior. As a result, President William McKinley called upon 1,250 volunteers to assist in the war efforts. It was also called “Wood’s Weary Walkers” after its first commander, Colonel Leonard Wood, as an acknowledgment of the fact that despite being a cavalry unit they ended up fighting on foot as infantry. Wood’s second in command was former assistant secretary of the United States Navy, Theodore Roosevelt, a man who had pushed for American involvement in Cuban independence. When Colonel Wood became commander of the 2nd Cavalry Brigade, the Rough Riders then became “Roosevelt’s Rough Riders.” That term was familiar in 1898, from Buffalo Bill who called his famous western show “Buffalo Bill’s Wild West and Congress of Rough Riders of the World.” The Rough Riders were mostly made of college athletes, cowboys, and ranchers.

The volunteers were gathered in four areas: Arizona, New Mexico, Oklahoma and Texas. They were gathered mainly from the southwest because the hot climate region that the men were used to was similar to that of Cuba where they would be fighting. “The difficulty in organizing was not in selecting, but in rejecting men.” The allowed limit set for the volunteer cavalry men was promptly met. They gathered a diverse bunch of men consisting of cowboys, gold or mining prospectors, hunters, gamblers, Native Americans and college boys; all of whom were able-bodied and capable on horseback and in shooting. Among these men were also police officers and military veterans who wished to see action again. Men who had served in the regular army during campaigns against Indians or served in the Civil War had been gathered to serve as higher ranking officers in the cavalry. In this regard they possessed the knowledge and experience to lead and train the men well. As a whole, the unit would not be entirely inexperienced. Leonard Wood, a doctor who served as the medical adviser for both the President and secretary of war, was appointed the position of Colonel of The Rough Riders with Roosevelt serving as Lieutenant Colonel. One particularly famous spot where volunteers were gathered was in San Antonio, Texas, at the Menger Hotel Bar. The bar is still open and serves as a tribute to the Rough Riders, containing much of their, and Theodore Roosevelt’s, uniforms and memorabilia.

Before training began, Lieutenant Colonel Roosevelt used his political influence gained as Assistant Secretary of the Navy to ensure that his volunteer cavalry regiment would be properly equipped to serve as any regular unit of the U.S. Army. For private soldiers and non commissioned officers, this meant the M1892/98 Springfield (Krag) bolt action rifle in .30 Army (.30-40) caliber: “They succeeded in getting their cartridges, revolvers (Colt .45), clothing, shelter-tents, and horse gear … and in getting the regiment armed with the Krag-Jorgensen carbine used by the regular cavalry.” Officers of the regiment each received a new lever-action M1895 Winchester rifle, also in .30 Army. The Rough Riders also used Bowie Hunter knives. A last minute gift from a wealthy donor were a pair of modern tripod mounted, gas-operated M1895 Colt-Browning machine guns in 7mm Mauser caliber.

In contrast, the uniforms of the regiment were designed to set the unit apart: “The Rough Rider uniform was a slouch hat, blue flannel shirt, brown trousers, leggings, and boots, with handkerchiefs knotted loosely around their necks. They looked exactly as a body of cowboy cavalry should look.” It was the ‘rough and tumble’ appearance and charisma that contributed to earning them the title of The Rough Riders.

Training was very standard, even for a cavalry unit. They worked on basic military drills, protocol, and habits involving conduct, obedience and etiquette. The men proved to be eager to learn what was necessary and the training went smoothly. It was decided that the men would not be trained to use the saber as other cavalries often used, because they had no prior experience with that combat skill. Instead, they chose to have the men stick to the use of their carbines and revolvers as primary and secondary weapons. Although the men, for the most part, were already experienced horsemen, the officers refined their techniques in riding, shooting from horseback, and practicing in formations and in skirmishes. Along with this the high-ranking men heavily studied books filled with tactics and drills to better themselves in leading the others. During times which physical drills could not be run, either because of confinement on board the train, ship, or during times where space was inadequate, there were some books that were read further as to leave no time wasted in preparation for war. The competent training that the volunteer men received prepared them best as possible for their duty. They were not simply handed weapons and given vague directions to engage in a disorderly brawl.

On May 29, 1,060 Rough Riders and 1,258 of their horses and mules made their way to the Southern Pacific railroad to travel to Tampa, Florida where they would set off for Cuba. The lot awaited orders for departure from Major General William Rufus Shafter. Under heavy prompting from Washington D.C., General Shafter gave the order to dispatch the troops early before sufficient traveling storage was available. Due to this problem, only eight of the twelve companies of The Rough Riders were permitted to leave Tampa to engage in the war, and many of the horses and mules were left behind. Aside from Lieutenant Colonel Roosevelt’s first hand mention of deep, heartfelt sorrow from the men left behind, this situation resulted in a premature weakening of the men. Approximately one fourth of them who received training had already been lost, most dying of malaria and yellow fever. This sent the remaining troops into Cuba with a significant loss in men and morale.

Upon arrival on Cuban shores on June 23 the men promptly unloaded themselves and the small amount of equipment they carried with them. Camp was set up nearby and the men were to remain there until further orders had been given to advance. Further supplies were unloaded from the ships over the next day including the very few horses that were allowed on the journey. “The great shortcoming throughout the campaign was the utterly inadequate transportation. If they had been allowed to take our mule-train, they could have kept the whole cavalry division supplied.” Each man was only able to carry a few days worth of food which had to last them longer and fuel their bodies for rigorous tasks. Even after only seventy-five percent of the total number of cavalry men was allowed to embark into Cuba they were still without most all of the horses that they had so heavily been trained and accustomed to using. They were not trained as infantry and were not conditioned to doing heavy marching, especially long distance in hot, humid, and dense jungle conditions. This ultimately served as a severe disadvantage to the men who had yet to see combat.

Within another day of camp being established, men were sent forward into the jungle for reconnaissance purposes, and before too long they returned with news of a Spanish outpost, Las Guasimas. By afternoon, The Rough Riders were given the command to begin marching towards Las Guasimas, to eliminate opposition and secure the area which stood in the path of further military advance. Upon arrival at their relative destination, the men slept through the night in a crude encampment nearby the Spanish outpost they would attack early the next morning.

The enemy held an advantage over the Americans by knowing their way through the complicated trails in the area of combat. They predicted where the Americans would be traveling on foot and exactly what positions to fire on. They also were able to use the land and cover in such a way that they were difficult to spot. Along with this, their guns used smokeless powder which did not give away their immediate position upon firing as other gunpowders would have. This increased the difficulty of finding the opposition for the U.S. soldiers. In some locations the jungle was too thick to see very far.

General Young, who was in command of the regulars and cavalry, began the attack in the early morning. Using long-range, large-caliber Hotchkiss guns he fired at the opposition, who were reportedly concealed along trenches, roads, ridges, and jungle cover. Colonel Wood’s men, accompanied by Lieutenant Colonel Roosevelt, were not yet in the same vicinity as the other men at the start of the battle. They had a more difficult path to travel around the time the battle began, and at first they had to make their way up a very steep hill. “Many of the men, footsore and weary from their march of the preceding day, found the pace up this hill too hard, and either dropped their bundles or fell out of line, with the result that we went into action with less than five hundred men.” Lieutenant Colonel Roosevelt became aware that there were countless opportunities for any man to fall out of formation and resign from battle without notice as the jungle was often too thick in places to see through. This was yet another event that left the group with fewer men than they had at the start. Regardless, The Rough Riders pushed forward towards the outpost along with the regulars. Using careful observation, the officers were able to locate where the opposition was hidden in the brush and entrenchments and they were able to target their men properly to overcome them. Towards the end of the battle, Edward Marshall, a newspaper writer, was inspired by the men around him in the heat of battle to pick up a rifle and begin fighting alongside them. When he suffered a gunshot wound in the spine from one of the Spaniards another soldier mistook him as Colonel Wood from afar and ran back from the front line to report his death. Due to this misconception, Roosevelt temporarily took command as Colonel and gathered the troops together with his leadership charisma. The battle lasted an hour and a half from beginning to end with The Rough Riders suffering 8 dead and 31 wounded, including Captain Allyn K. Capron, Jr. Roosevelt came across Colonel Wood in full health after the battle finished and stepped down from his position to Lieutenant Colonel.

The United States had full control of this Spanish outpost on the road to Santiago by the end of the battle. General Shafter had the men hold position for six days while additional supplies were brought ashore. During this time The Rough Riders ate, slept, cared for the wounded, and buried the dead from both sides. During the six day encampment, some men died from fever. Among those stricken by illness was General Joseph Wheeler. Brigadier General Samuel Sumner assumed command of the cavalry and Wood took the second brigade as Brigadier General. This left Roosevelt as Colonel of The Rough Riders.

The order was given for the men to march the eight miles along the road to Santiago from the outpost they had been holding. Originally, Colonel Roosevelt had no specific orders for himself and his men. They were simply to march to San Juan Heights where over one-thousand Spanish soldiers held the area and hold position. It was decided that Brigadier General Henry Lawton’s division would be the main fighters in the battle while taking El Caney, a Spanish stronghold, a few miles away. The cavalry was to simply serve as a distraction while artillery and battery struck the Spanish from afar. Lawton’s infantry would begin the battle and The Rough Riders were to march and meet with them mid-battle. In this way, The Rough Riders were not seen as a critical tool to the United States Army in this battle.

Colonel Roosevelt, deeply dissatisfied with General Shafter’s inaction with sending men out for reconnaissance and failure to issue more direct orders, became uneasy with the idea of leaving himself and his men sitting in the line of fire. He sent messengers to seek out one of the generals to try to coax orders from them to advance from their position. Finally, the Rough Riders received orders to assist the regulars in their assault on the hill’s front. Roosevelt, riding on horseback, got his men onto their feet and into position to begin making their way up the hill. He claimed that he wished to fight on foot as he did at Las Guasimas; however he would have found it difficult to move up and down the hill to supervise his men in a quick and efficient manner on foot. He also recognized that he could see his men better from the elevated horseback, and they could see him better as well. Roosevelt chided his own men to not leave him alone in a charge up the hill, and drawing his sidearm promised nearby black soldiers separated from their own units that he would fire at them if they turned back, warning them he kept his promises. His Rough Riders chanted (likely in jest) “Oh he always does, he always does!” The soldiers, laughing, fell in with the volunteers to prepare for the assault.

As the troops of the various units began slowly creeping up the hill, firing their rifles at the opposition as they climbed, Roosevelt went to the captain of the platoons in back and had a word with him. He stated that it was his opinion that they could not effectively take the hill due to an insufficient ability to effectively return fire, and that the solution was to charge it full-on. The captain reiterated his colonel’s orders to hold position. Roosevelt, recognizing the absence of the other Colonel, declared himself the ranking officer and ordered a charge up Kettle Hill. The captain stood hesitant, and Colonel Roosevelt rode off on his horse, Texas, leading his own men uphill while waving his hat in the air and cheering. The Rough Riders followed him with enthusiasm and obedience without hesitation. By then, the other men from the different units on the hill became stirred by this event and began bolting up the hill alongside their countrymen. The ‘charge’ was actually a series of short rushes by mixed groups of regulars and Rough Riders. Within twenty minutes Kettle Hill was taken, though casualties were heavy. The rest of San Juan Heights was taken within the hour following.

The Rough Riders’ charge on Kettle Hill was facilitated by a hail of covering fire from three Gatling Guns commanded by Lt. John H. Parker, which fired some 18,000 .30 Army rounds into the Spanish trenches atop the crest of both hills. Col. Roosevelt noted that the hammering sound of the Gatling guns visibly raised the spirits of his men: “There suddenly smote on our ears a peculiar drumming sound. One or two of the men cried out, “The Spanish machine guns!” but, after listening a moment, I leaped to my feet and called, “Itâ€s the Gatlings, men! Our Gatlings” Immediately the troopers began to cheer lustily, for the sound was most inspiring.”

Trooper Jesse D. Langdon of the 1st Volunteer Infantry, who accompanied Col. Theodore Roosevelt and the Rough Riders in their assault on Kettle Hill, reported: “We were exposed to the Spanish fire, but there was very little because just before we started, why, the Gatling guns opened up at the bottom of the hill, and everybody yelled, “The Gatlings! The Gatlings!” and away we went. The Gatlings just enfiladed the top of those trenches. We’d never have been able to take Kettle Hill if it hadn’t been for Parker’s Gatling guns.”

A Spanish counterattack on Kettle Hill by some 600 infantry was quickly decimated by one of Lt. Parker’s Gatling guns recently emplaced on the summit of San Juan Hill, which killed all but forty of the attackers before they had closed to within 250 yards of the Americans on Kettle Hill. Col. Roosevelt was so impressed by the actions of Lt. Parker and his men that he placed his regiment’s two 7mm Colt-Browning machine guns and the volunteers manning them under Parker, who immediately emplaced them – along with 10,000 rounds of captured 7mm Mauser ammunition – at tactical firing points in the American line.

Colonel Roosevelt’s example of valor and fearlessness in the face of danger served as motivation to his men to promptly follow his command and spring into the fray. Had it been another leader with less charisma and spunk, the order to charge may not have been given and the cavalry may not have had the same enthusiasm in their charge uphill. As for Roosevelt himself, he gave most of the credit to Lt. Parker and his Gatling Gun Detachment: “I think Parker deserved rather more credit than any other one man in the entire campaign… he had the rare good judgment and foresight to see the possibilities of the machine-guns. He then, by his own exertions, got it to the front and proved that it could do invaluable work on the field of battle, as much in attack as in defense.”

Colonel Roosevelt and the Rough Riders played a key role in the outcome of the Spanish-American war by serving as the catalyst with other American units on constricting the ring around the city of Santiago. The ultimate goal of capturing the San Juan Heights (also known as Kettle Hill and San Juan Hill) was from that strategic position to move downhill and take Santiago de Cuba, a strong point for the Spanish army. The Spanish had a fleet of their cruisers in port. By taking areas around Santiago and consequently moving in on the city from many sides, the United States hoped to scare the Spanish cruisers into leaving port out to sea where they would encounter the United States Navy. This, in fact, was the exact result. Only a couple of days after the battle on San Juan Heights, the Spanish cruiser fleet was quickly sunk. This took a tremendous toll on the Spanish army due to the fact that a large portion of a nation’s military power lies upon their naval capabilities.

However, the sinking of the Spanish cruisers did not mean the end of the war. Battles continued in and around Santiago. By July 17 the Spanish forces in Santiago surrendered to General Shafter and the United States military. Various battles in the region continued on and the United States was continuously victorious. On August 12 the Spanish Government surrendered to the United States and agreed to an armistice that relinquished their control of Cuba. The armistice also gained the United States the territories of Puerto Rico, Guam, and the Philippines. This was an enormous turning point for America which had been wounded by civil war for over thirty years. Gaining such a large mass of land all at once brought the United States up on the ladder of world powers. The Spanish-American War also began a trend of United States intervention in foreign affairs which has lasted to present day.

On August 14 the Rough Riders landed at Montauk Point in Long Island, New York. There, they met up with the other four companies that had been unfortunately left behind in Tampa. Colonel Roosevelt made note of how very many of the men who were left behind felt guilty for not serving in Cuba with the others. However, he also stated that “those who stayed had done their duty precisely as did those who went, for the question of glory was not to be considered in comparison to the faithful performance of whatever was ordered.” During the first portion of the month that the men stayed in Montauk they received hospital care. Many of the men were stricken with Malarial fever (described at the time as “Cuban fever”) and died in Cuba, while some were brought back to the United States on board the ship in makeshift quarantine. “One of the distressing features of the Malaria which had been ravaging the troops was that it was recurrent and persistent. Some of the men died after reaching home, and many were very sick.” Aside from malaria, there were cases of yellow fever, dysentery and other illnesses. Many of the men suffered from general exhaustion and were in poor condition upon returning home, some twenty pounds lighter. Everyone received fresh food and most were nourished back to their normal health.

The rest of the month in Montauk, New York was spent in celebration of victory among the troops. The regiment was presented with three different mascots that represented the Rough Riders: a mountain lion by the name of Josephine that was brought to Tampa by some troops from Arizona, a war eagle named in Colonel Roosevelt’s honor brought in by some New Mexican troops, and lastly a small dog by the name of Cuba who had been brought along on the journey overseas. Accompanying the presented mascots was a young boy who had stowed away on the ship before it embarked to Cuba. He was discovered with a rifle and boxes of ammunition and was, of course, sent ashore before departure from the United States. He was taken in by the regiment that was left behind, given a small Rough Riders uniform, and made an honorary member. The men also made sure to honor their colonel in return for his stellar leadership and service. They presented him with a small bronze statue of Remington’s “The Bronco-buster” which portrayed a cowboy riding a violently bucking horse. “There could have been no more appropriate gift from such a regiment … most of them looked upon the bronze with the critical eyes of professionals. I doubt if there was any regiment in the world which contained so large a number of men able to ride the wildest and most dangerous horses.” After the turning over of their gift, each and every man in the regiment walked by and shook Colonel Roosevelt’s hand and bid him a good-bye.

On the morning of September 15 the regimental property including all equipment, firearms and horses were turned back over to the United States government. The soldiers said one last good-bye to each other and the 1st U.S. Volunteer Cavalry Regiment, Roosevelt’s Rough Riders, was disbanded at last. Before they all returned to their respective homes across the country, Colonel Roosevelt gave them a short speech that commended their efforts in the war, expressed his profound pride and reminded them that, although heroes, they would have to integrate back into normal society and work as hard as everyone else. Many of the men were unable to gain their jobs back from when they lost them before leaving for war. Some, due to illness or injury, were unable to work for a long time. Money was donated by a number of wealthier supporters of the regiment and used to supplement the wellbeing of the needy veterans, many of whom were too proud to accept the help.

A first reunion of the Rough Riders was held in the Plaza Hotel in Las Vegas, New Mexico in 1899. Roosevelt, then Governor of New York, attended this event. In 1948, fifty years after the Rough Riders disbandment, the U.S. Post office issued a commemorative stamp in their honor and memory. The stamp depicts Captain William Owen “Bucky” O’Neill, who was killed in action while leading A Troop at the Battle of San Juan Hill, July 1, 1898. The Rough Riders continued to have annual reunions in Las Vegas until 1967, when the sole veteran to attend was Jess Langdon. He died in 1975.

The last two surviving veterans of the regiment were Frank C. Brito and Jesse Langdon. Brito, from Las Cruces, New Mexico, whose father was a Yaqui Indian stagecoach operator, was 21 when he enlisted with his brother in May 1898. He never made it to Cuba, having been a member of H Troop, one of the four left behind in Tampa. He later became a mining engineer and lawman. He died April 22, 1973, at the age of 96. Langdon, born 1881 in what is now North Dakota, “hoboed” his way to Washington, D.C., and called on Roosevelt at the Navy Department, reminding him that his father, a veterinarian, had treated Roosevelt’s cattle at his Dakota ranch during his ranching days. Roosevelt arranged a railroad ticket for him to San Antonio, where Langdon enlisted in the Rough Riders at age 16. He was the last surviving member of the regiment and the only one to attend the final two reunions, in 1967 and 1968. He died June 29, 1975 at the age of 94, twenty-six months after Brito.

source 1 source 2

The names of the Rough Riders from New Mexico, as obtained from the muster-out roll, are as follows:

Field and Staff

Major, Henry B. Hersey, Santa Fe
First Lieutenant and Quartermaster, Sherrard Coleman. Santa Fe
First Lieutenant and Adjutant, Thomas W. Hall, Lake Valley, on account of disability tendered his resignation, which took effect August 1, 1898.

Hospital Corps

First Lieutenant. James A. Massie, Santa Fe
Steward, James B. Brady, Santa Fe
Steward, Herbert J. Rankin, Las Vegas

Troop A

Corporal, George L. Bugbee, Lordsburg
Troopers
Fred W. Bugbee, Lordsburg* William Bulzing, Santa Fe	Lawrence E. Huffman. Las Cruces Harry B. Pierce, Central City
*Wounded in head in battle of San Juan, July 1, 1898

Troop B

Troopers
James A. Butler, Albuquerque Robert Day, Santa Fe John C. Peck, Santa Fe	George C. Whittaker, Silver City Wallace W. Wilkerson, Santa Fe

Troop D

Troopers
Charles H. Green, Albuquerque Emmett Laird, Albuquerque	Eugene Schupp, Santa Fe Theodore Folk*, Oklahoma City, N. M.
*Transferred to Troop K. U. S. V. C, May 11, 1858.

Troop C

Field and Staff
Captain, William H. H. Llewellyn, Las Cruces First-lieutenant, John Wesley Green, Gallup Second-lieutenant, David J. Leahy, Raton* First-sergeant, Columbus H. McCaa, Gallup Q.-M. Sergeant, Jacob S. Mohler, Gallup Sergeant, Rolla A. Fullenweiden, Raton Sergeant, Matthew T. McGehee. Raton Sergeant, James Brown, Gallup Corporal, Henry Kirah, Gallup Corporal, James D. Ritchie, Gallup Corporal, Luther L. Stewart, Raton**	Corporal, John McSparron, Gallup+, 1 Corporal, Frank Briggs, Raton Corporal, Edward C. Armstrong, Albuquerque Corporal, William S. Reid, Raton Corporal, Hiram E. Williams, Raton Farrier, George V. Haefner, Gallup Saddler, Frank A. Hill, Raton Wagoner, Thomas O’Neal, Springer Trumpeter, Willis E. Somers, Raton Trumpeter, Edward G. Piper, Silver City
On sick list from July I to Sept. 3, from wound received in San Juan battle *Wounded in battle June 24 +Wounded July

Troopers

Alvin C. Ash, Raton, Arthur T. Anderson, Albuquerque Robert Brown, Gallup John J. Beissel, Gallup Cloid Camp, Raton Marion Camp, Raton Thomas F. Cavenaugh,Raton Michael H. Coyle,* Raton Frederick Fornoff, Albuquerque Wm. C. Gibson, Gallup John Goodwin, Gallup John Henderson, Gallup* Albert John Johnson, Raton John S. Kline, San Marcial Bert T. Keeley, Lamy Elias M. Littleton, Springer Fred, P. Meyers+ Gallup Daniel Moran, Gallup John Noish, Raton T. W. Phipps, Bland	Archibald Petty, Gallup George H. Quigg, Gallup Walter D. Quinn, San Marcial Wm. Radcliff. Gallup Richard Richards, Albuquerque Robert W. Reid, George Roland, Deming Charles M. Simmons, Raton Charles W. Shannon, Raton Neal Thomas, Aztec Grant Travis, Aztec Richard Whittington, Gallup Lyman E. Whited, Raton William D. Wood, Bland Clarence Wright, Springer George D. Swan++, Gallup Frank M. Thompson++, Aztec Samuel T. McCulloch#, Springer Eugene A. Lutz, Raton## Henry J. Haefner*** Gallup
Absent from July I to Sept. 7 on account of wound received in battle; Raton, wounded June 24 ** Killed in battle June 24. +reduced from 1st Sergeant, to trooper on account of absence caused by wound received in battle July 1 ++Discharged on account of disability #Deserted from camp at Tampa, Florida, August 4, 1898. ##Died in yellow fever hospital. August 15, 1898.
Transferred to Troop I May 12, 1898
Sergeant Henry J. Arendt, Gallup
Henry C. Bailie, Gallup Wm. J. Love, Raton Evan Evans. Gallup Oscar W. Groves, Raton Wm. H. Jones, Raton	John H. Tait. Raton Harry Peabody, Raton Alexander McGowan, Gallup John Brown, Gallup Joseph B. Crockett, Raton

Troop E

Field and Staff
Captain, Frederick Muller, Santa Fe First-lieutenant, Wm. E. Griffin, Santa Fe First-sergeant, John S. Langston, Cerrillos Quartermaster-sergeant, Royal A. Prentice, Las Vegas Sergeant, Hugh B. Wright, Las Vegas Sergeant, Albert M. Jones, Santa Fe Sergeant, Timothy Breen, Santa Fe* Sergeant, Berry F. Taylor, Las Vegas Sergeant, Thomas P. Ledgwidge, Santa Fe Corporal, Harmon H. Winkoop, Santa Fe,**	Corporal, James M. Dean, Santa Fe,*** Corporal, Richard C. Conner, Santa Fe Corporal, Ralph E. McFie, Las Cruces Trumpeter, Arthur J. Griffin, Santa Fe Trumpeter, Edward S. Lewis, Las Vegas Blacksmith, Robert J. Parrish, Clayton Farrier, Grant Hill, Santa Fe Saddler, Joe T. Sandoval. Santa Fe Wagoner, Guilford B. Chapin, Santa Fe
wounded in arm and sent to hospital July 1, 1898; wounded in line of duty and sent to hospital July 2, 1898; returned to duty Sept. 4, 1898 **wounded in left thigh, in line of duty, and sent to hospital June 24, 1898; returned to duty August 31, 1898

Troopers

Roll Almack, Santa Fe
John M. Brennan, Santa Fe
Jose M. Baca, Las Vegas
George W. Dettamore, Clayton*
Freeman M. Donavan, Santa Fe
Wm. T. Easley, Clayton
Frank D. Fries, Santa Fe
Joseph Gisler, Santa Fe
James P. Gibbs, Santa Fe
Wm. R. Gibbie, Las Vegas
John D. Harding, Socorro
Daniel D. Harkness, Las Vegas
Wm. M. Hutchison, Santa Fe
Wm. H. Hogle, Santa Fe
Arthur J. Hudson, Santa Fe
John Hulskotter, Santa Fe
Wm. S. E. Howell, Cerrillos
Thomas L. Hixon, Las Vegas
Thomas B. Jones, Santa Fe
Charles W. Jacobus, Santa Fe
Charles E. Kingsley, Las Vegas
Frank Lowe, Santa Fe
Dan Ludy, Las Vegas
Hyman S. Lowitzki, Santa Fe

James E. Merchant, Cerrillos
Wm. J. Moran, Cerrillos
Samuel McKinnon, Madrid
Charles E. McKinley, Cerrillos**
Charles F. McKay, Santa Fe
Frederick A. McCabe, Santa Fe
John C. McDowell. Santa Fe
Amaziah B. Morrison, Las Vegas
Lloyd L. Mahan, Cerrillos
Henry D. Martin. Cerrillos
Otto F. Menger, Clayton***
Wm. C. Mungor, Santa Fe
Adolph F. Nettleblade, Cerrillos
Thomas Roberts, Golden
John E. Ryan, Santa Fe,****
Ben F. Seaders, Las Vegas
Arthur V. Skinner, Santa Fe
Wm. C. Schnepple, Santa Fe
Edward Scanlon, Cerrillos
Wm. W. Wagner, Bland
George Wright, Madrid
Charles W. Wynkoop, Santa Fe
George W. Warren, Santa Fe

*Wounded in line of duty and sent to hospital July 1, 1898
**Wounded in head in line of duty July I, 1898
***Wounded in left side July I, 1898
****Wounded July I, 1898

First Sergeant William E. Dame, Cerrillos, discharged per O. reg. commands, August 10, 1898
Sergeant, Frederick C. Wesley, Santa Fe, wounded July 1, 2 or 3, 1898, and discharged on account of disability August 26, 1898.

Troop F

Field and Staff
Captain, Maximilian Luna First-lieutenant, Horace W. Weakley Second-lieutenant, William E. Dame* First Sergeant, Horace E. Sherman Sergeant, Garfield Hughes Sergeant, Thomas D. Tennessy Sergeant, Wm. L. Mattocks Sergeant, James Doyle Sergeant, George W. Armijo** Sergeant, Eugene Bohlinger Sergeant, Herbert A. King	Corporal, Edward Donnelly Corporal, John Cullen Corporal, Edward Hale Corporal, Arthur P. Spencer Corporal, John Boehnke Corporal, Albert Powers+ Corporal, Wentworth S. Conduit Farrier, Ray V. Clark++ Farrier, Charles R. Gee Wagoner, Jefferson Hill Bugler, Arthur L. Perry#
Transferred from Troop E to F *Wounded in action June 24, 1898 +Wounded in action July 1, 1898 ++Wounded July 1, 2 or 3, 1898 #Wounded July 1, 2 or 3; all from Santa Fe

Troopers***

H. L. Albers*
Ed. J. Albertson*
James Alexander
Chas. G. Abbott
James F. Alexander
Tames S. Black
Robert Z. Bailey*
Jeremiah Brennan
Walter C. Burris
John H. Bell
Wm. O. Cochran
Calvin G. Clelland
Edward C. Conley
Willard M. Cochran
Charles C. Cherry
Louis Dougherty

John C. De Bohun
Wm. Farley
Will Freeman**
Henry M. Gibbs**
Wm. D. Gallagher
Samuel Goldberg**
Otis Glessner
John D. Green
Albert C. Hartle*
Charles O. Hopping
George Hammer
Stephan A. Kennedy
Charles E. Leffert
Guy M. Lisk
John M. Leach
Thomas Martin

John B. Mills
Herbert P. McGregor**
William E. Nickell
Otto W. Nesbit
George W. Newitt
John M. Neal
Charles A. Parmele
Frank T. Quier
Millard L. Raymond
Harry B. Reed
Clifford L. Reed*
Charles L. Renner
Edwin L. Reynolds
Arthur L. Russell
Adolph T. Reyer
Albert Rogers

Lee C. Rice
Louis E. Staub
Wm. G. Shields
Arthur H. Stockbridge
George H. Sharland
John G. Skipwith
James B. Sinnett
Edward Tangen
Norman O. Trump
George E. Vinnedge
Louis C. Wardwell
Paul Warren
Charles E. Watrous
Beauregard Weber
John Walsh
Thomas J. Wells

*Wounded in action June 24, 1898
**Wounded July 1, 1898
***All from Santa Fe

Private James Douglass. Santa Fe, discharged on account of disability.
Second-lieutenant Maxwell Keyes, Santa Fe, promoted to Adjutant August 1, 1898

Privates transferred from Troop F to I, May 12, 1808

Joseph F. Flynn
Hedrick Ben Goodrich
Walter Hickey
Michael Hogan
Harry Bruce King
George M. Kerney
Louis Larsen
John McCoy

Charles A. Nehmer
Leo G. Rogers
Hyman Rafalowitz
Edwards John Spencer
Carl J. Schearnharst, Jr.
Frank Temple
Joseph L. Bawcom

Troop H

Captain, George Curry, Tularosa
First-lieutenant, William H. Kelly, Las Vegas
Second-lieutenant. Charles L. Ballard, Roswell
Sergeant, Nevin P. Gutilius, Tularosa
Sergeant, Oscar de Montell, Roswell
Sergeant, Michael C. Rose, Silver City
Sergeant, Nova A. Johnson, Roswell
Corporal, Marton M. Morgan, Silver City

Corporal, Arthur E. Williams, Las Cruces
Corporal, Frank Murray, Roswell
Corporal, Morgan O. B. Llewellyn, Las Cruces
Corporal, James C. Hamilton, Roswell
Corporal, Charles P. Cochran, Eddy
Trumpeter, Gaston R. Dehumy, Santa Fe
Farrier, Robert L. Martin, Santa Fe
Wagoner, Taylor B. Lewis, Las Cruces

Troopers

Albert B. Amonette, Roswell Columbus L. Black, Las Cruces John B. Bryan, Las Cruces Frank Bogardus, Las Cruces Thomas F. Corbett, Roswell John S. Cone, Tularosa Abell B. Duran, Silver City Jose L. Duran, Santa Fe Lewis Dorsey, Silver City George B. Doty, Santa Fe Frederick W. Dunkle, Las Vegas Arthur L. Douglas, Eddy Frank A. Eaton, Silver City Augustus C’ Fletcher, Silver City James B. Grisby, Deming James M. Hamilton, Deming	Leary O. Herring, Silver City Robert C. Houston, Hillsboro Amandus Kehn, Silver City Frank H. Lawson, Las Cruces John Lannon, Hillsboro Thomas A. Mooney, Silver City George F. Murray, Deming Charles H. Ott, Silver City Lory H. Powell, Roswell Norman W. Pronger, Silver City John F. Pollock, Tularosa Alexander M. Thompson, Deming Daniel G. Waggoner, Roswell Curtis C. Waggoner, Roswell Patrick A. Wickham, Socorro
Transfers Sergeant John V. Morrison, Santa Fe
Robert E. Lee. Donahue C. Darwin Casad, Las Cruces Numa C. Fringer. Las Cruces	George Schafer. Pinos Altos Morris J. Storms. Roswell
Edwin Eugene Casey. Las Cruces, died in hospital at Camp Wyckoff. New York. September 1, 1898. Samuel Miller, Roswell, deserted from Tampa. Florida, June 28. 1898.

Troop I

Field and Staff
First-lieutenant. Frederick W. Wintge, Santa Fe First-sergeant. John B. Wylie, Fort Bayard Sergeant, William H. Waffensmith, Raton Corporal, Numa C. Frenger, Las Cruces	Corporal, William J. Sullivan, Silver City Corporal, William J. Nehmer, Silver City Corporal, Hiram T. Brown, Albuquerque Trumpeter, Robert E. Lea, Dona Ana

Troopers

Horton A. Bennett, Tularosa Frank C. Brito, Pinos Altos Jose Brito*, Santa Fe Charles D. Casad, Mesilla George M. Coe. Albuquerque Henry C. Davis, Santa Fe Thomas P. Dolan, Pinos Altos Robert W. Denny, Raton Evan Evans, Gallup Joseph F. Flynn, Albuquerque John R. Gooch, Santa Fe Oscar W. Groves, Raton Hedrick Ben Goodrich, Santa Fe Ernest H. Hermeyer, Roswell William H. Jones, Raton	Cal Jopling, La Luz Harry B. King, Raton Alexander McGowan, Gallup Ben F. T. Morris, Raton Roscoe E. Moore, Raton Harry Peabody, Raton John P. Roberts, Clayton Louis Larsen. Santa Fe Carl J. Scheamhorst, Jr., Santa Fe George Schafer, Pinos Altos John H. Tait, Santa Fe John L. Twyman, Raton Harry B. Wiley, Santa Fe Roy O. Wisenberg, Raton
* Added with Enlistment Papers as proof.

Troop K
First-sergeant, Frederick K. Lee, Organ

Troopers

William C. Bernard, Las Vegas	Stephen Easton*, Santa Fe	Joseph L. Duran, Santa Fe
*Transferred to Troop H, July 15, 1898

source: History of New Mexico

Frank Brito of the Rough Riders

Frank C. Brito taken in his Rough Rider uniform, about 1905.

1st U.S. Volunteer Cavalry, Troop I

(1877 – 1973) By Frank Brito (Grandson)

Frank Brito served with the 1st U.S. Volunteer Cavalry (“Rough Riders”) and was the second-to-the-last surviving Rough Riders when he passed away at age 96.Biography:

One April 1898 morning found Frank C. Brito out tending cattle with his older brother Jose for the Circle Bar Ranch near Silver City, New Mexico. He was making $1 a day working as a 20-year-old cowboy. He and Jose received a message from their father to return home immediately to Pinos Altos, a small mining town at the edge of the Gila Wilderness in southwestern New Mexico. Their father was Santiago Brito, a Yaqui Indian mine owner and stage coach operator originally from Janos, Mexico.

Frank was born on August 24, 1877 in Pinos Altos, still a killing ground between citizens and the bands of Apaches under Geronimo, Victorio, Juh and Nana. He studied at the local grammar school and became a printer’s apprentice, then a miner. The average employee made no more than $30 a month and worked long hours, usually at hard labor in the mines, ore mills or outdoors.

After a long ride home and listening to their father, Frank and Jose did as they were told and were enlisted as volunteer privates at Santa Fé, New Mexico on May 6, 1898. Frank was three months short of age 21 and his occupation listed as “miner.” Lt. Col. Theodore Roosevelt and Col. Leonard Wood, as commander, formed the 1st U.S. Volunteer Cavalry, also known as the “Rough Riders,” to fight in the Spanish-American War. They chose cowboys, miners and college athletes as their soldiers of choice. The Brito brothers were assigned to Troop H captained by George Curry, a future New Mexico territorial governor. Curry and Frank Brito were to remain lifelong friends. Shortly thereafter they were transferred to Troop I captained by Schuyler McGinnis. Here, Frank had as his bunkmate, Numa Frenger, later a District Judge in Las Cruces, New Mexico.

They were shipped to San Antonio, Texas where the men were drilled in cavalry basics until the end of May. On the 29th, they were shipped to Tampa, Florida. Because he was bilingual in speaking, reading, and writing in Spanish, Frank was placed in charge of the stockade established to deal with the potential Spanish prisoners of war. To his pleasure, he met Theodore Roosevelt and was nicknamed “Monte” by him, short for “Montezuma.”

The men had some time for enjoyment during the seemingly endless preparations for war. Frank Brito, described an event that occurred in a shooting gallery in Ybor City, Florida while the men were seeking some sort of entertainment to break up the monotony of camp life. The shooting gallery was quite popular among the many troops stationed nearby. Frank Brito stated:

“I went in one time with Tom Darnell [a Sergeant in H Troop from Denver, Colorado who was later killed, according to Mr. Brito, while trying to shoot up the town of Central City, near Santa Rita, New Mexico] and some other troopers and we paid 25 cents to get in. There were bales of cotton behind the moving targets to catch the .22 caliber bullets and the whole place was surrounded with a fence of chicken wire. We told the man we would use our own six-shooters instead of the .22’s and when we all started shooting, it scared hell out of everybody and people started jumping over that chicken wire fence. Somebody called the 10th Georgia Cavalry to quiet us down but we took the pins off our hats and nobody knew for a while that we were Rough Riders. The Colonel found out but by then it had all blown over. “

The revolvers used by the Rough Riders were Colt single action artillery models with a 5 ½” barrel and shot the powerful .45 Colt cartridge. The noise would have been deafening!

Unfortunately, Frank never made it to Cuba, remaining in Tampa with the stockade, most of the horses, the men of his troop and three other troops. The reason that Frank did not go to Cuba was that, because of a shortage of space aboard the transport ships, only eight of the regiment’s twelve troops were permitted to board for Cuba. Also, because of the space shortage, those that did go to Cuba went without their horses, which were left behind for Frank’s I Troop, joined by C, H, and M Troops, to care for.

The orders splitting the regiment met with protest. Roosevelt noted that “the four [Troops] left behind feel fearfully.” Later he added “To the great bulk of them I think it will be a life-long sorrow. I saw more than one, both among the officers and privates, burst into tears…”

Partially to assuage them, those remaining behind were told by Colonel Wood that they would shortly be taken to Cuba also. Brito commented “We were too angry to hear him, and if we had, I doubt we would have believed him. We had come a long way together and being left out at the last minute was not something any of us had counted on.”

At the war’s end, all the Rough Riders were reunited at Camp Wikoff, Montauk Point on Long Island, New York to recover from their wounds and tropical diseases. Frank spent time in a New Jersey hospital recovering from malaria and dysentery prevalent in the Tampa area.

Frank was discharged from the Rough Riders on September 15, 1898. His brother remained in the service, joining another military unit after the Rough Riders were disbanded and was listed as “missing” in the Philippines during the latter phase of the Philippine-American War. Jose never returned and was presumed dead.

Frank returned to mining in Pinos Altos and was involved in a tragedy in September 1900. He returned home during the day and mistakenly killed his wife’s sister. He was sentenced to the territorial prison for ten years but served only five. Territorial Governor Miguel Otero granted him a full pardon. In prison, he learned the emerging technology of electricity in operating dynamos and motors. During this time, he was divorced from his first wife.

He worked as a hoisting engineer at various mines, which required a high degree of skill, lowering equipment and men into deep shafts. Leaving Silver City, he moved to Las Cruces and was married a second time. He was also an electrician for the city of Las Cruces after his mining days were over. He later became a deputy sheriff, town constable, city jailor and game warden. Frank C. Brito was praised for a long and useful law enforcement career.

Las Cruces Town Constable Frank Brito, right, with his deputy, Santa Rosa Rico, left. The photo is from about 1917.Frank also served in the U. S. Army National Guard and was sent to Columbus, New Mexico with his unit immediately after Pancho Villa’s 1916 raid on that border city to guard from further raids. They were released when Villa went deeper into Mexico.

In his first days in Las Cruces, Frank held a part-time job as bartender at various saloons. He worked for John Barncastle’s saloon and Dan Read’s Cowboy Saloon. At the Cowboy Saloon, he met and became friends with Pat Garrett, the law officer who tracked and killed Billy-the Kid. Frank’s seven children went to school with several of Garrett’s children.

There were numerous reunions of the Rough Riders, the first taking place at Prescott, Arizona. There is a statue of Bucky O’Neill in the city park with a plaque listing all the Rough Riders. Frank’s name is not on this plaque, however, his brother’s name is on the plaque. It was probably thought Frank and Jose Brito were the same person. Both brothers’ names are listed on all the original regiment records so there is an opportunity for the City of Prescott to correct this oversight. The later reunions were held at Las Vegas, New Mexico. The Rough Rider Museum was established in Las Vegas to commemorate this patriotic group. Las Vegas is not far from Santa Fé and this museum is worth visiting as it houses many artifacts dealing with this period.

Frank retired and spent his later life enjoying his family, friends, televised baseball, and stray cats. He enjoyed talking about his Spanish American War year and was interviewed many times by magazines, newspapers and historians. He was appointed as a Colonel and Aide-de-Camp to New Mexico Governor David F. Cargo on July 8, 1968 for his longevity as the sole remaining New Mexico Rough Rider and for many years of public service.

Frank C. Brito died on April 22, 1973, the penultimate Rough Rider to endure. He was 96 years old.

The last two Rough Riders – Frank Brito, left and Jesse Langdon, Right. Jesse Langdon would outlive Brito by just over two years.

Bibliography: Brito Family – Information from Santiago and Frank Brito.

Jones, Virgil Carrington, Roosevelt’s Rough Riders. (New York: Doubleday, 1971) 57-58, 287.

Walker, Dale L., “The Last Rough Riders,” Rough Writings: Perspectives on Buckey O’Neill, Pauline O’Neill and Roosevelt’s Rough Riders. (Prescott, AZ: Sharlot Hall Museum Press, 1998) 13

Walker, Dale L., “The Next to the Last Man: Rough Rider Frank Brito,” Nova (a publication of the University of Texas at El Paso). February – April 1971 edition, vol.6, no.2.

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http://www.donaanacountyhistsoc.org/HistoricalReview/2019/Review%202019%20WEB%20VER.pdf

The Rough Riders was a nickname given to the 1st United States Volunteer Cavalry, one of three such regiments raised in 1898 for the Spanish–American War and the only one of the three to see action. The United States Army was small and understaffed in comparison to its status during the American Civil War roughly thirty years prior. As a measure towards rectifying this situation President William McKinley called upon 1,250 volunteers to assist in the war efforts. The regiment was also called “Wood’s Weary Walkers” in honor of its first commander, Colonel Leonard Wood. This nickname served to acknowledge that despite being a cavalry unit they ended up fighting on foot as infantry.

Wood’s second in command was former Assistant Secretary of the Navy, Theodore Roosevelt, a man who had pushed for American involvement in the Cuban War of Independence. When Colonel Wood became commander of the 2nd Cavalry Brigade, the Rough Riders then became “Roosevelt’s Rough Riders.” That term was familiar in 1898, from Buffalo Bill who called his famous western show “Buffalo Bill’s Wild West and Congress of Rough Riders of the World.” The Rough Riders were mostly made of college athletes, cowboys, ranchers, miners, and other outdoorsmen. A common trait shared by many members of the regiment was a shared origin. With these men being from southwestern ranch country, they were quite skilled in horsemanship.

The rough riders by Theodore Roosevelt full audiobook

Formation and early history

The volunteers were gathered in four areas: Arizona, New Mexico, Oklahoma and Texas. They were gathered mainly from the southwest because the hot climate region that the men were used to was similar to that of Cuba where they would be fighting. “The difficulty in organizing was not in selecting, but in rejecting men.” The allowed limit set for the volunteer cavalry men was promptly met. They gathered a diverse bunch of men consisting of cowboys, gold or mining prospectors, hunters, gamblers, Native Americans and college boys — all of whom were able-bodied and capable on horseback and in shooting. Among these men were also police officers and military veterans who wished to see action again, most of which had previously retired. Men who had served in the regular army during campaigns against Native Americans or served in the Civil War had been gathered to serve as higher ranking officers in the cavalry. In this regard they possessed the knowledge and experience to lead and train the men well. As a whole, the unit would not be entirely inexperienced. Leonard Wood, a doctor who served as the medical adviser for both the President and Secretary of War, was appointed the position of Colonel of The Rough Riders with Roosevelt serving as Lieutenant-Colonel. One particularly famous spot where volunteers were gathered was in San Antonio, Texas, at the Menger Hotel Bar. The bar is still open and serves as a tribute to the Rough Riders, containing much of their, and Theodore Roosevelt‘s, uniforms and memorabilia.

Equipment

Before training began, Lieutenant Colonel Roosevelt used his political influence gained as Assistant Secretary of the Navy to ensure that his volunteer cavalry regiment would be properly equipped to serve as any regular unit of the U.S. Army. For private soldiers and non-commissioned officers, this meant the M1892/98 Springfield (Krag) bolt-action rifle in .30 Army (.30-40) caliber: “They succeeded in getting their cartridges, revolvers (Colt .45), clothing, shelter-tents, and horse gear … and in getting the regiment armed with the Krag–Jørgensen carbine used by the regular cavalry.” Officers of the regiment each received a new lever-action M1895 Winchester rifle, also in .30 Army. The Rough Riders also used Bowie Hunter knives. A last-minute gift from a wealthy donor were a pair of modern tripod mounted, gas-operated M1895 Colt–Browning machine guns in 7mm Mauser caliber.

In contrast, the uniforms of the regiment were designed to set the unit apart: “The Rough Rider uniform was a slouch hat, blue flannel shirt, brown trousers, leggings, and boots, with handkerchiefs knotted loosely around their necks. They looked exactly as a body of cowboy cavalry should look.” This “rough and tumble” appearance contributed to earning them the title of “The Rough Riders.”

Training

Training was very standard, even for a cavalry unit. They worked on basic military drills, protocol, and habits involving conduct, obedience and etiquette. The men proved eager to learn what was necessary, and the training went smoothly. It was decided that the men would not be trained to use the saber as other cavalries often used, because they had no prior experience with that combat skill. Instead, they chose to have the men stick to the use of their carbines and revolvers as primary and secondary weapons. Although the men, for the most part, were already experienced horsemen, the officers refined their techniques in riding, shooting from horseback, and practicing in formations and in skirmishes. Along with these practices, the high-ranking men heavily studied books filled with tactics and drills to better themselves in leading the others. During times which physical drills could not be run, either because of confinement on board the train, ship, or during times where space was inadequate, there were some books that were read further as to leave no time wasted in preparation for war. The competent training that the volunteer men received prepared them best as possible for their duty. They were not simply handed weapons and given vague directions to engage in a disorderly brawl.

On May 29, 1898, 1060 Rough Riders and 1258 of their horses and mules made their way to the Southern Pacific railroad to travel to Tampa, Florida where they would set off for Cuba. The lot awaited orders for departure from Major General William Rufus Shafter. Under heavy prompting from Washington D.C., General Shafter gave the order to dispatch the troops early before sufficient traveling storage was available. Due to this problem, only eight of the twelve companies of The Rough Riders were permitted to leave Tampa to engage in the war, and many of the horses and mules were left behind. Aside from Lieutenant-Colonel Roosevelt’s first hand mention of deep, heartfelt sorrow from the men left behind, this situation resulted in a premature weakening of the men. Approximately one fourth of them who received training had already been lost, most dying of malaria and yellow fever. This sent the remaining troops into Cuba with a significant loss in men and morale.

Upon arrival on Cuban shores on June 23, 1898, the men promptly unloaded themselves and the small amount of equipment they carried with them. Camp was set up nearby and the men were to remain there until further orders had been given to advance. Further supplies were unloaded from the ships over the next day including the very few horses that were allowed on the journey. “The great shortcoming throughout the campaign was the utterly inadequate transportation. If they had been allowed to take our mule-train, they could have kept the whole cavalry division supplied.” Each man was only able to carry a few days worth of food which had to last them longer and fuel their bodies for rigorous tasks. Even after only seventy-five percent of the total number of cavalry men was allowed to embark into Cuba they were still without most of the horses they had so heavily been trained and accustomed to using. They were not trained as infantry and were not conditioned to doing heavy marching, especially long distance in hot, humid, and dense jungle conditions. This ultimately served as a severe disadvantage to the men who had yet to see combat.

Battle of Las Guasimas

The Spanish held an advantage over the Americans by knowing their way through the complicated trails in the area of combat. They predicted where the Americans would be traveling on foot and exactly what positions to fire on. They also were able to utilize the land and cover in such a way that they were difficult to spot. Along with this, their guns used smokeless powder which did not give away their immediate position upon firing as other gunpowders would have. This increased the difficulty of finding the opposition for the U.S. soldiers. In some locations the jungle was too thick to see very far.

Regardless, The Rough Riders pushed forward toward the outpost along with the regulars. Using careful observation, the officers were able to locate where the opposition was hidden in the brush and entrenchments and they were able to target their men properly to overcome them. Toward the end of the battle, Edward Marshall, a newspaper writer, was inspired by the men around him in the heat of battle to pick up a rifle and begin fighting alongside them. When he suffered a gunshot wound in the spine from one of the Spaniards another soldier mistook him as Colonel Wood from afar and ran back from the front line to report his death. Due to this misconception, Roosevelt temporarily took command as Colonel and gathered the troops together with his leadership charisma. The battle lasted an hour and a half from beginning to end with The Rough Riders suffering only 8 dead and 31 wounded, including Captain Allyn K. Capron, Jr. Roosevelt came across Colonel Wood in full health after the battle finished and stepped down from his position to Lieutenant-Colonel.

The order was given for the men to march the eight miles along the road to Santiago from the outpost they had been holding. Originally, Colonel Roosevelt had no specific orders for himself and his men. They were simply to march to San Juan Heights where over one thousand Spanish soldiers held the area and hold position. It was decided that Brigadier General Henry Lawton’s division would be the main fighters in the battle while taking El Caney, a Spanish stronghold, a few miles away. The cavalry was to simply serve as a distraction while artillery and battery struck the Spanish from afar. Lawton’s infantry would begin the battle and The Rough Riders were to march and meet with them mid-battle. In this way, The Rough Riders were not seen as a critical tool to the United States Army in this battle.

San Juan Hill and another hill were separated by a small valley and pond; the river ran near the foot of both. Together, this geography formed San Juan Heights. Colonel Roosevelt and The Rough Riders made their way to the foot of what was dubbed Kettle Hill because of the old sugar refinement cauldrons that lay along it. The battle of San Juan Heights began with the firing of the artillery and battery at the Spanish location. Soon after battery-fire was returned and The Rough Riders, standing at the position of the friendly artillery, had to promptly move to avoid shells. The men moved down from their position and began making their way through and along the San Juan River towards the base of Kettle Hill. There they took cover along the riverbank and in the tall grass to avoid sniper and artillery fire that was being directed towards their position, however they were left vulnerable and pinned down. The Spanish rifles were able to discharge eight rounds in the twenty seconds it took for the United States rifles to reload. In this way they had a strong advantage over the Americans. The rounds they fired were 7mm Mauser bullets which moved at a high velocity and inflicted small, clean wounds. Some of the men were hit, but few were mortally wounded or killed. Theodore Roosevelt, deeply dissatisfied with General Shafter’s inaction with sending men out for reconnaissance and failure to issue more direct orders, became uneasy with the idea of leaving himself and his men sitting in the line of fire. He sent messengers to seek out one of the generals to try to coax orders from them to advance from their position. Finally, the Rough Riders received orders to assist the regulars in their assault on the hill’s front. Roosevelt, riding on horseback, got his men onto their feet and into position to begin making their way up the hill. He claimed that he wished to fight on foot as he did at Las Guasimas; however he would have found it difficult to move up and down the hill to supervise his men in a quick and efficient manner on foot. He also recognized that he could see his men better from the elevated horseback, and they could see him better as well. Roosevelt chided his own men to not leave him alone in a charge up the hill, and drawing his sidearm promised nearby black soldiers separated from their own units that he would fire at them if they turned back, warning them he kept his promises. His Rough Riders chanted (likely in jest) “Oh he always does, he always does!” The soldiers, laughing, fell in with the volunteers to prepare for the assault.

The Rough Riders’ charge on Kettle Hill was facilitated by a hail of covering fire from three Gatling Guns commanded by Lt. John M*A*S*H. Parker, which fired some 18,000 .30 Army rounds into the Spanish trenches atop the crest of both hills. Col. Roosevelt noted that the hammering sound of the Gatling guns visibly raised the spirits of his men:

“There suddenly smote on our ears a peculiar drumming sound. One or two of the men cried out, “The Spanish machine guns!” but, after listening a moment, I leaped to my feet and called, “It’s the Gatlings, men! Our Gatlings!” Immediately the troopers began to cheer lustily, for the sound was most inspiring.”

Trooper Jesse D. Langdon of the 1st Volunteer Infantry, who accompanied Col. Theodore Roosevelt and the Rough Riders in their assault on Kettle Hill, reported:

“We were exposed to the Spanish fire, but there was very little because just before we started, why, the Gatling guns opened up at the bottom of the hill, and everybody yelled, “The Gatlings! The Gatlings!” and away we went. The Gatlings just enfiladed the top of those trenches. We’d never have been able to take Kettle Hill if it hadn’t been for Parker’s Gatling guns.”

A Spanish counterattack on Kettle Hill by some 600 infantry was quickly devastated by one of Lt. Parker’s Gatling guns recently emplaced on the summit of San Juan Hill, which killed all but forty of the attackers before they had closed to within 250 yards of the Americans on Kettle Hill. Col. Roosevelt was so impressed by the actions of Lt. Parker and his men that he placed his regiment’s two 7mm Colt–Browning machine guns and the volunteers manning them under Parker, who immediately emplaced them—along with 10,000 rounds of captured 7mm Mauser ammunition—at tactical firing points in the American line.

Colonel Roosevelt gave a large share of the credit for the successful charge to Lt. Parker and his Gatling Gun Detachment:

“I think Parker deserved rather more credit than any other one man in the entire campaign…he had the rare good judgment and foresight to see the possibilities of the machine-guns..He then, by his own exertions, got it to the front and proved that it could do invaluable work on the field of battle, as much in attack as in defence.”

Siege of Santiago

Theodore Roosevelt and the Rough Riders played a key role in the outcome of the Spanish–American War by assisting the American forces in forming a constricting ring around the city of Santiago de Cuba. The ultimate goal of the Americans in capturing the San Juan Heights (also known as Kettle Hill and San Juan Hill) was to attain a strategic position from which to move downhill and attack Santiago, a strong point for the Spanish military. The Spanish had a fleet of cruisers in port. The United States drove the Spanish cruisers out of their port by taking areas around Santiago and subsequently moving in on the city from multiple directions. Two days after the battle on San Juan Heights, the US navy destroyed Spain’s Caribbean cruiser fleet at Santiago Bay. This took a tremendous toll on the Spanish military due to their widespread empire and heavy reliance upon naval capabilities.

However, the sinking of the Spanish cruisers did not mean the end of the war. Battles continued in and around Santiago. By July 17, 1898, the Spanish forces in Santiago surrendered to General Shafter and the United States military. Various battles in the region continued on and the United States was continuously victorious. On August 12, 1898, the Spanish Government surrendered to the United States and agreed to an armistice that relinquished their control of Cuba. The armistice also gained the United States the territories of Puerto Rico, Guam, and the Philippines. This large acquisition of land elevated the United States to the level of an imperial power. The Spanish–American War also began a trend of United States intervention in foreign affairs which has lasted to the present day.

Return home

On August 14, the Rough Riders landed at Montauk Point on Long Island, New York. There, they met up with the other four companies that had been left behind in Tampa. Colonel Roosevelt made note of how very many of the men who were left behind felt guilty for not serving in Cuba with the others. However, he also stated that “those who stayed had done their duty precisely as did those who went, for the question of glory was not to be considered in comparison to the faithful performance of whatever was ordered.” During the first portion of the month that the men stayed in Montauk they received hospital care. Many of the men were stricken with Malarial fever (described at the time as “Cuban fever“) and died in Cuba, while some were brought back to the United States on board the ship in makeshift quarantine. “One of the distressing features of the Malaria which had been ravaging the troops was that it was recurrent and persistent. Some of the men died after reaching home, and many were very sick.” Aside from malaria, there were cases of yellow fever, dysentery and other illnesses. Many of the men suffered from general exhaustion and were in poor condition upon returning home, some twenty pounds lighter. Everyone received fresh food and most were nourished back to their normal health.

The rest of the month in Montauk, New York was spent in celebration of victory among the troops. The regiment was presented with three different mascots that represented the Rough Riders: a mountain lion by the name of Josephine that was brought to Tampa by some troops from Arizona, a war eagle named in Colonel Roosevelt’s honor brought in by some New Mexican troops, and lastly a small dog by the name of Cuba who had been brought along on the journey overseas. Accompanying the presented mascots was a young boy who had stowed away on the ship before it embarked to Cuba. He was discovered with a rifle and boxes of ammunition and was, of course, sent ashore before departure from the United States. He was taken in by the regiment that was left behind, given a small Rough Riders uniform, and made an honorary member. The men also made sure to honor their colonel in return for his stellar leadership and service. They presented him with a small bronze statue of Remington’s “Bronco Buster” which portrayed a cowboy riding a violently bucking horse. “There could have been no more appropriate gift from such a regiment … most of them looked upon the bronze with the critical eyes of professionals. I doubt if there was any regiment in the world which contained so large a number of men able to ride the wildest and most dangerous horses.” After the turning over of their gift, each and every man in the regiment walked by and shook Colonel Roosevelt’s hand and bid him a good-bye.

Disbandment

On the morning of September 15, 1898, the regimental property including all equipment, firearms and horses were turned back over to the United States government. The soldiers said one last good-bye to each other and the United States First Volunteer Cavalry, Roosevelt’s Rough Riders, was disbanded at last. Before they all returned to their respective homes across the country, Colonel Roosevelt gave them a short speech that commended their efforts in the war, expressed his profound pride and reminded them that, although heroes, they would have to integrate back into normal society and work as hard as everyone else. Many of the men were unable to gain their jobs back from when they lost them before leaving for war. Some, due to illness or injury, were unable to work for a long time. Money was donated by a number of wealthier supporters of the regiment and used to supplement the well being of the needy veterans, many of whom were too proud to accept the help.

A first reunion of the Rough Riders was held in the Plaza Hotel in Las Vegas, New Mexico in 1899. Roosevelt, then Governor of New York, attended this event. In 1948, fifty years after the Rough Riders disbandment, the U.S. Post office issued a commemorative stamp in their honor and memory. The stamp depicts Captain William Owen “Bucky” O’Neill, who was killed in action while leading troop A at the Battle of San Juan Hill, July 1, 1898. The Rough Riders continued to have annual reunions in Las Vegas until 1967, when the sole veteran to attend was Jesse Langdon. He died in 1975.

Last survivors

The last two surviving veterans of the regiment were Frank C. Brito and Jesse Langdon. Brito, from Las Cruces, New Mexico, whose father was a Yaqui Indian stagecoach operator, was 21 when he enlisted with his brother in May 1898. He never made it to Cuba, having been a member of H Troop, one of the four left behind in Tampa. He later became a mining engineer and lawman. He died April 22, 1973, at the age of 96.

Langdon, born 1881 in what is now North Dakota, “hoboed” his way to Washington, D.C., and called on Roosevelt at the Navy Department, reminding him that his father, a veterinarian, had treated Roosevelt’s cattle at his Dakota ranch during his ranching days. Roosevelt arranged a railroad ticket for him to San Antonio, where Langdon enlisted in the Rough Riders at age 16. He was the last surviving member of the regiment and the only one to attend the final two reunions, in 1967 and 1968. He died June 29, 1975 at the age of 94, twenty-six months after Brito.

World War I

Just after the United States entered the war against the Central Powers, the U.S. Congress gave Roosevelt the authority to raise up to four divisions similar to the Rough Riders. Roosevelt immediately selected eighteen officers (including: Seth Bullock, Frederick Russell Burnham, and James Rudolph Garfield) to raise a volunteer infantry division, and began corresponding with Newton D. Baker, Secretary of War. After several months, many more men joined Roosevelt’s World War I volunteers, but Baker refused to offer any assistance or guidance to the new unit. Frustrated, Roosevelt telegraphed President Woodrow Wilson requesting his assistance; however, as Commander-in-chief, Wilson refused to make use of the volunteers and Roosevelt disbanded the unit.

Muster roll

Mustered In:

Officers: 56Enlisted Men: 994

Mustered Out:

Officers: 76Enlisted Men: 1,090

Total Number Accounted for on Muster Out Roll:

Officers: 52Enlisted Men: 1,185

Losses While in Service:
Officers:

Promoted or Transferred: 0Resigned or Discharged: 2Dismissed: 0Killed in Action: 2Died of Wounds: 0Died of Disease: 1Died of Accident: 0Drowned: 0Suicide: 0Murdered: 0Total Officer losses: 5

Enlisted Men:

Transferred: 0Discharged for Disability: 9Discharged by General Court Martial: 0Discharged by Order: 31Killed in Action: 21Died of Wounds Received in Action: 3Died of Disease: 19Died of Accident: 0Drowned: 0Suicide: 14Murdered or Homicide: 0Deserted: 12Total enlisted Losses: 95

Wounded:

Officers: 7Enlisted Men: 97

(Source: The Adjutant General’s Office, Statistical Exhibit of Strength of Volunteer Forces Called Into Service During the War With Spain; with Losses From All Causes. (Washington: Government Printing Office, 1899) As presented in an Electronic Edition by the US Army Center of Military History)

Theatrical productions

Colonel Theodore Roosevelt and the Rough Riders were popularly portrayed in Wild West Shows such as Buffalo Bill’s Wild West and Congress of Rough Riders of the World and in Minstrel shows such as William H. West’s Big Minstrel Jubilee. Roosevelt himself had a hand in popularizing the legends of the Rough Riders, recruiting Mason Mitchell, a fellow Rough Rider with theatrical talent, to perform for the Republican State Committee of New York. More than anyone else, William Frederick Cody, better known as Buffalo Bill, can be credited with helping to create and preserve the dramatic myth of the Rough Riders and the American Old West. His extravaganzas glamorized it into an appealing show for Eastern American audiences and helped permanently preserve the legends.

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Indian Child Welfare Act US – Indian Children – Family Law

The Truth News — Sat, 22 Jul 2023 23:02:26 +0000

Indian Child Welfare Act US – Indian Children – Family Law

The American Civil Liberties Union, along with 12 ACLU state affiliates, filed an amicus brief with the U.S. Supreme Court today urging the court to uphold the constitutionality of the Indian Child Welfare Act.

WASHINGTON — The American Civil Liberties Union, along with 12 ACLU state affiliates, filed an amicus brief with the U.S. Supreme Court today urging the court to uphold the constitutionality of the Indian Child Welfare Act. The Indian Child Welfare Act (ICWA) — which establishes basic requirements to protect Native American children from continued forced removal from their families, tribes, and tribal culture — is slated to be reviewed by the Supreme Court this fall via Brackeen v. Haaland.

The Indian Child Welfare Act was passed by Congress in 1978 to address the nationwide epidemic of American Indian children being forcibly removed from their homes by child welfare agencies and placed into non-Native homes at disproportionate rates. Throughout history, federal and state governments have sought to undermine and threaten the existence of tribes via the forced separation and assimilation of Native children. ICWA requires state courts to make active efforts to keep Native families together. The law aims to prioritize the placement of Native children within their extended families or tribal communities, where their cultural identities will be understood and celebrated. If the Supreme Court overturns ICWA, states would once again be allowed to indiscriminately remove Native children from their families and culture while simultaneously depriving tribes of future generations — putting the very existence of tribes in jeopardy.

“Throughout history, the United States government has enacted countless policies to steal Indigenous children from their homes and to erase their identities,” said Theodora Simon (Navajo), Indigenous Justice Advocate with the ACLU of Northern California. “The explicit goal of these policies was, and continues to be, the complete erasure of Indigenous people. If the Indian Child Welfare Act is overturned, tribes will again be stripped of their right to keep their families together. This is a tragedy as we know that having connection to our cultures, languages, and identities is in the best interest of Native children.”

Tribes have an inherent right to govern themselves and make decisions on issues that affect their people — including Native children. The ACLU’s brief argues the Indian Child Welfare Act is constitutional and urges the Supreme Court to uphold the centuries-long legal precedent upholding tribal sovereignty — including tribes’ right and ability to preserve their unique cultural identities, raise their own children and govern themselves.

“Separating children from their families and communities remains one of the most tragic and traumatizing vestiges of colonialism in Alaska,” said ACLU of Alaska Executive Director Mara Kimmel. “We join this litigation to honor our constitutional promise of tribal self-determination and to ensure Alaska’s children and cultures thrive into the future.”

The brief was filed by the ACLU, ACLU of NorCal, ACLU of Alaska, ACLU of Arizona, ACLU of Maine, ACLU of Montana, ACLU of Nebraska, ACLU of New Mexico, ACLU of Oklahoma, ACLU of South Dakota, North Dakota, and Wyoming chapter, ACLU of Texas, ACLU of Utah, and ACLU of Washington. The Supreme Court will hear oral arguments in Brackeen v Haaland on November 9, 2022.

This release can be found online here:

A blog about the case can be found here:

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MORE ABOUT THIS SUBJECT: learn more….

Supreme Court upholds Indian Child Welfare Act – read here PROTECTING THE INDIAN CHILD WELFARE ACT AT THE federal LEVEL
Click Here for Indian Child Court Forms
DOCKET NO. No. B314238 in L. A. Cnty. Dep’t of Children & Family Servs. v. D.P. (In re Daphne G.) California Court of Appeals, Second District, First Division
In re N.G. The Court also concluded that DPSS had to be ordered to further investigate N.G.’s paternal lineal ancestry
L. A. Cnty. Dep’t of Children & Family Servs. v. Sandra C. (In re Ezra C.)
- In Antoinette S., supra, 104 Cal.App.4th 1401,Both California Rules of Court, rule 5.481(a)(5)(A) and section 224.3 indicate that the ICWA notice requirement is triggered when a person who has an interest in the child “provides information suggesting that the child” is an Indian child. (Italics added.) Mother provided both a specific tribe and a specific family member from whom the ancestry followed. “The Indian status of the child need not be certain to invoke the notice requirement.” (Desiree F., supra, 83 Cal.App.4th at p. 471.) “The determination of a child’s Indian status is up to the tribe; therefore, the [dependency] court needs only a suggestion of Indian ancestry to trigger the notice requirement.” (Nikki R., supra, 106 Cal.App.4th at p. 848.)

- In In re Alice M. (2008) 161 Cal.App.4th 1189 (Alice M.),
  the court held that notice was required after the mother submitted an ICWA-020 indicating that the child may be eligible for membership in an Apache or Navajo tribe. The appellate court held that the information provided on the ICWA-020 “gave the court reason to know [the child] may be an Indian child… The ambiguity in the form and the omission of more detailed information, such as specific tribal affiliation or tribal roll number, do not negate appellant’s stated belief that [the child] may be a member of a tribe or eligible for membership.” (Id. at p. 1198.)

- (In re J.T. (1997) 166 Vt. 173, 182-83 [693 A.2d 283, 289]),
  Section 224.3 requires notice to the tribe when there is information provided by “[a] person having an interest in the child… suggesting the child is a member of a tribe or eligible for membership in a tribe or [that] one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe.” (§ 224.3, subd. (b)(1), italics added.) California Rules of Court, rule 5.481(a)(5)(A) also specifies that “[t]he circumstances that may provide reason to know the child is an Indian child include…. [¶] [t]he child or a person having an interest in the child, … informs or otherwise provides information suggesting that the child is an Indian child to the court [or] the county welfare agency….” (Italics added.) “The determination of a child’s Indian status is up to the tribe; therefore, the [dependency] court needs only a suggestion of Indian ancestry to trigger the notice requirement.” (In re Nikki R. (2003) 106 Cal.App.4th 844, 848 (Nikki R.), italics added.)Determining whether enough information has been provided to trigger the ICWA notice provisions requires a fact-sensitive analysis. As noted in In re Pedro N. (1995) 35 Cal.App.4th 183, 186, “[t]he requisite notice to the tribe or [Bureau] serves a twofold purpose. First, it enables the tribe or [Bureau] to investigate and determine whether the minor is an ‘Indian child.’… [Citations.] Secondly, it advises the tribe or [Bureau] of the proceedings and the tribe’s right to exercise its jurisdiction in the matter or at least intervene in the proceedings. [Citations.]” (Fn. omitted.) Given these purposes “‘it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child.’” (Dwayne P., supra, 103 Cal.App.4th at p. 257, citing In re M.C.P. (1989) 153 Vt. 275, 289 [571 A.2d 627, 634-635].)
  
  The information required to trigger the ICWA notice provisions is minimal in comparison to the showing required “to establish a child is an Indian child within the meaning of ICWA.” (In re Miguel E. (2004) 120 Cal.App.4th 521, 549; see also Dwayne P., supra, 103 Cal.App.4th at p. 258 [the party initiating the dependency proceeding must “distinguish between a showing that may establish a child is an Indian child within the meaning of the ICWA and the minimal showing required to trigger the statutory notice provisions”].) While eligibility to enroll and enrollment are central to a finding that the child is an Indian child within the meaning of the ICWA, a lack of such information does not waive the court’s affirmative duty to provide notice when the court knows or has reason to know that an Indian child is involved. (§ 224.3; Cal. Rules of Court, rule 5.481(a)(5)(A).)

California Code, Welfare and Institutions Code – WIC § 361.31

(b) Preference shall be given to the child’s placement with one of the following, in descending priority order:
- (1) A member of the child’s extended family, as defined in Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.).
(c) In any placement of an Indian child, preference shall be given to a placement with one of the following, in descending priority order:
- - (1) A member of the child’s extended family, as defined in Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.).
  - (2) Other members or citizens of the child’s tribe.
  - (3) Another Indian family. source

25 United States Code section 1901 et seq.

25 United States Code section 1901 et seq is the Indian Child Welfare Act, a 1978 federal law that seeks to keep Native American children with Native American families. Here are some provisions of the act:

Consent to adoption given by an Indian child’s parent is not valid unless it’s executed in writing at least 10 days after the child’s birth and recorded before a judge
An Indian tribe has exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law
No foster placement proceeding of an Indian child can be held unless the parent has been given ten days notice by registered mail or, if the parent cannot be found, the Secretary of State has been notified
In any adoptive placement of an Indian child under State law, preference shall be given, in the absence of good cause to the contrary, to a placement with a member of the child’s extended family, other members of the Indian child’s tribe, or other Indian families

The Supreme Court upheld key provisions of the Indian Child Welfare Act. The law has come under fire from conservative groups and a national adoption advocacy organization. The Brackeen case sought to overturn ICWA as unconstitutional because it applies to Indian children and thus is race-based.

25 U.S. Code § 1901 – Congressional findings

Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds—

(1) that clause 3, section 8, article I of the United States Constitution provides that “The Congress shall have Power * * * To regulate Commerce * * * with Indian tribes [1]” and, through this and other constitutional authority, Congress has plenary power over Indian affairs;
(2)that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;
(3)that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;
(4)that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
(5)that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.

(Pub. L. 95–608, § 2, Nov. 8, 1978, 92 Stat. 3069.)

source

Public Law 95-608

Public Law 95-608, also known as the Indian Child Welfare Act (ICWA), is a federal law that establishes minimum standards for the removal and placement of Indian children. The law’s main objective is to restrict the placement of Indian children by non-Indian social agencies in non-Indian homes and environments. The ICWA also gives tribal governments exclusive jurisdiction over children who reside on a reservation.

The ICWA protects the interests of both Indian children and tribes by upholding family integrity and stability and by keeping Indian children connected to their community and culture. The Supreme Court rejected a challenge to the constitutionality of the ICWA. source

§1901. Congressional findings

Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds—

(1) that clause 3, section 8, article I of the United States Constitution provides that “The Congress shall have Power * * * To regulate Commerce * * * with Indian tribes ¹” and, through this and other constitutional authority, Congress has plenary power over Indian affairs;

(2) that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;

(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;

(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and

(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.

(Pub. L. 95–608, §2, Nov. 8, 1978, 92 Stat. 3069.)

§1902. Congressional declaration of policy

The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

(Pub. L. 95–608, §3, Nov. 8, 1978, 92 Stat. 3069.)

§1903. Definitions

For the purposes of this chapter, except as may be specifically provided otherwise, the term—

(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.

(2) “extended family member” shall be as defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent;

(3) “Indian” means any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a Regional Corporation as defined in section 1606 of title 43;

(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;

(5) “Indian child’s tribe” means (a) the Indian tribe in which an Indian child is a member or eligible for membership or (b), in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts;

(6) “Indian custodian” means any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child;

(7) “Indian organization” means any group, association, partnership, corporation, or other legal entity owned or controlled by Indians, or a majority of whose members are Indians;

(8) “Indian tribe” means 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;

(9) “parent” means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established;

(10) “reservation” means Indian country as defined in section 1151 of title 18 and any lands, not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation;

(11) “Secretary” means the Secretary of the Interior; and

(12) “tribal court” means a court with jurisdiction over child custody proceedings and which is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe which is vested with authority over child custody proceedings.

(Pub. L. 95–608, §4, Nov. 8, 1978, 92 Stat. 3069.)

SUBCHAPTER I—CHILD CUSTODY PROCEEDINGS

§1911. Indian tribe jurisdiction over Indian child custody proceedings

(a) Exclusive jurisdiction

An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.

(b) Transfer of proceedings; declination by tribal court

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s tribe shall have a right to intervene at any point in the proceeding.

(d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes

The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.

(Pub. L. 95–608, title I, §101, Nov. 8, 1978, 92 Stat. 3071.)

§1912. Pending court proceedings

(a) Notice; time for commencement of proceedings; additional time for preparation

In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.

(b) Appointment of counsel

In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title.

Each party to a foster care placement or termination of parental rights proceeding under State law involving an Indian child shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to such action may be based.

(d) Remedial services and rehabilitative programs; preventive measures

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

(e) Foster care placement orders; evidence; determination of damage to child

No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

(f) Parental rights termination orders; evidence; determination of damage to child

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

(Pub. L. 95–608, title I, §102, Nov. 8, 1978, 92 Stat. 3071.)

§1916. Return of custody

(a) Petition; best interests of child

Notwithstanding State law to the contrary, whenever a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the child, a biological parent or prior Indian custodian may petition for return of custody and the court shall grant such petition unless there is a showing, in a proceeding subject to the provisions of section 1912 of this title, that such return of custody is not in the best interests of the child.

(b) Removal from foster care home; placement procedure

Whenever an Indian child is removed from a foster care home or institution for the purpose of further foster care, preadoptive, or adoptive placement, such placement shall be in accordance with the provisions of this chapter, except in the case where an Indian child is being returned to the parent or Indian custodian from whose custody the child was originally removed.

(Pub. L. 95–608, title I, §106, Nov. 8, 1978, 92 Stat. 3073.)

source

2023 California Rules of Court

Rule 5.487. Petition to invalidate orders

(a) Who may petition
Any Indian child who is the subject of any action for foster-care placement, guardianship or conservatorship placement, custody placement under Family Code section 3041, declaration freeing a child from the custody and control of one or both parents, preadoptive placement, adoptive placement, or termination of parental rights; any parent or Indian custodian from whose custody such child was removed; and the Indian child’s tribe may petition the court to invalidate the action on a showing that the action violated the Indian Child Welfare Act.
(Subd (a) was amended effective January 1, 2020.)
(b) Court of competent jurisdiction
If the Indian child is a dependent child or ward of the juvenile court or the subject of a pending petition, the juvenile court is a court of competent jurisdiction with the authority to hear the request to invalidate the foster placement or termination of parental rights.
(c) Request to return custody of the Indian child
- If a final decree of adoption is vacated or set aside, or if the adoptive parents voluntarily consent to the termination of their parental rights, a biological parent or prior Indian custodian may request a return of custody of the Indian child.
  - (1) The court must reinstate jurisdiction.
  - (2) In a juvenile case, the juvenile court must hold a new disposition hearing in accordance with 25 United States Code section 1901 et seq. where the court may consider all placement options as stated in Welfare and Institutions Code sections 361.31(b), (c), (d), and (h).
  - (3) The court may consider placement with a biological parent or prior Indian custodian if the biological parent or prior Indian custodian can show that placement with him or her is not detrimental to the child and that the placement is in the best interests of the child.
  - (4) The hearing on the request to return custody of an Indian child must be conducted in accordance with statutory requirements and the relevant sections of this rule.

Rule 5.487 renumbered and amended effective January 1, 2020; adopted as rule 5.486 effective January 1, 2008; previously amended effective January 1, 2013

How can child welfare systems apply the principles of the Indian Child Welfare Act as the “gold standard” for all children?

The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 to protect American Indian and Alaska Native (AI/AN) children and families. Before ICWA, as many as one-third of all AI/AN children were removed from their homes by state child welfare and private adoption agencies, and the vast majority of these children were placed outside of their families and communities. This mass family separation resulted in devastating losses of language, culture, and identity for individuals, families, and entire Tribes. ICWA was created to address this history and prevent further generational trauma.

ICWA was ahead of its time in recognizing core values and principles of child welfare best practice by requiring active efforts to keep children safely in their homes and connected to their families, communities, and culture. This law does not affect all children — its provisions apply only in child welfare cases involving members of federally recognized Tribes, and the Tribes, per their sovereignty, have the ability to define membership. However, the values and spirit embedded in ICWA are critical to the well-being of AI/AN children, youth, and families and should form the basis of child welfare practice for all.

This brief describes four key principles inherent in ICWA, provides examples of these principles in practice, and offers questions for consideration to help agencies further explore how they should apply these principles to support the permanency and well-being of both Native and non-Native children, youth, and families.^1,2

Principle 1: Children’s right to their families and communities

ICWA specifically promotes children’s right to be connected to their extended family, elders, community, and culture. Sheldon Spotted Elk, program director of tribal justice relations at the National Council of Juvenile and Family Court Judges, describes these connections as concentric circles. When children are situated within these circles, they naturally build resilience. Awareness of connectedness to family, community, and environment has been found to be a protective factor for American Indian and Alaska Native youth.³

In recognition of the importance of these connections, ICWA has a higher standard to prevent removal of an Indian child from their families than other child welfare statutes — including a requirement that children may not be removed without the testimony of a culturally qualified expert witness, except in emergencies (narrowly defined as when a child is in danger of imminent harm). ICWA also governs placement decisions. When children must be removed from their homes, the law dictates that agencies and courts first consider placement with relatives or, if that is not possible, with other families within their Tribal community where they can remain connected to their culture and identity.

For Adams County (Colo.) Children and Family Services, this sometimes means putting extra supports in place or working with a family member to resolve barriers to placement approval. In one case, when a close family friend could take some but not all of a sibling group of four, the agency was able to license a second friend and neighbor to keep the siblings connected. As in this instance, tribal definitions of family relationships should be acknowledged in placement decisions whenever possible.

The Native Village of Barrow (Alaska) lñupiat Traditional Government Children’s Code explicitly recognizes children’s right to family, extended family, and identity:

A child has the right to learn about and preserve his identity throughout his life, including the right to maintain ties to his birth parents, his extended family and his village. A child has the right to learn about and benefit from tribal history, culture, language, spiritual traditions, and philosophy.

In the Navajo view, the land, our language, and our way of life make us who we are. We want our children to stay within our people so we can help them be successful into the future.

– JONATHAN NEZ, PRESIDENT, NAVAJO NATION

The responsibility to support a child’s identity in these ways is assigned to parents, extended family members, and the Tribe as a whole. When separation from birth parents is necessary, the code specifies that the preferred placement is lñuguq, or placement with an extended family member. The word Iñuguq “refers to a traditional Inupiat adoption process in which a child gains, but does not lose, a parent.”

Implementation of ICWA requirements currently falls far short of achieving the statute’s goal. AI/AN children are still three times more likely to be removed by state child welfare systems than non-Native children. While recognizing the particular urgency for AI/AN children, child welfare agencies also can act on the knowledge that all children fare best when they can remain safely with their own families, and that when they must be removed from their homes, placement with relatives produces the best outcomes.

Questions to consider:

In what ways do your agency’s policies assert and protect all children’s rights to their families, communities, and culture?
How could your jurisdiction reassess removal criteria and keep more families safely together with in-home support?
How can your agency apply an equity lens to understanding and addressing the root causes of a family’s involvement with the agency?
In what ways do your agency’s placement priorities and resource family approval policies align with ICWA by prioritizing placement for all children within their extended families and communities?
How does your agency honor the definition of relatives as determined by the family, clan, and Tribe?

Principle 2: “Active efforts” to preserve and reunify families

ICWA’s requirement of “active efforts” is a higher standard of engagement than the Title IV-E program’s “reasonable efforts” requirement. Active efforts are defined in regulation as “affirmative, active, thorough, and timely” efforts by the agency to maintain or reunify children with their families.⁴ They are intended to help parents complete their case plans and access or develop resources necessary to keep or bring their child safely home. Examples include helping parents overcome barriers to services (such as making phone calls together rather than handing a parent a list of phone numbers), helping parents access supportive community resources (including housing, financial, and mental health support), and facilitating transportation to ensure parents and their children can attend appointments or visits.

Adams County acknowledges that providing active efforts can be time intensive. The county supports these efforts in ICWA cases by having a dedicated ICWA caseworker who is knowledgeable about the requirements. The county strives to keep that dedicated caseload low, when the agency’s workflow allows, to support spending extra time on each case. The ICWA caseworker also serves as an expert and resource throughout the agency, providing assistance to other caseworkers who may have ICWA cases.

Native Americans do not have a colonized understanding of family. In my family, my cousins were considered siblings, and my ‘aunties’ are my children’s grandmothers. To protect children’s cultural identity, courts and agencies need to understand how their Tribes define relatives.

– SHANA KING , (MHA NATION | THREE AFFILIATED TRIBES), PARENT MENTOR, ICWA LAW CENTER

ICWA requires that active efforts be provided in a culturally competent manner, and “in partnership with the Indian child and the Indian child’s parents, extended family members, Indian custodians, and tribe.” Regulations describe engaging with the child’s Tribe early to determine what types of services would be most culturally appropriate and what cultural resources or programs are available within the Tribe. It also includes ensuring all services are trauma-informed and follow best practices in addressing historical and intergenerational trauma. Being trauma-informed means that agencies must be skillful and patient in building trusting relationships with families and communities that may have significant personal and historical reasons to mistrust state and county government systems.

Questions to consider:

What active efforts do your agency’s caseworkers regularly make to safely preserve and reunify all families? Do they equal the efforts everyone would want for their own families?
What additional steps could help ensure that your agency’s efforts on behalf of all children and families are not just “reasonable” but “active”?
In what ways does your agency consider children and parents’ culture when creating case plans and providing services? How could your agency better partner with families and their communities to ensure programs and services are culturally appropriate, and to ensure active efforts are successful?
In what ways could your agency’s services be more trauma-informed, particularly in addressing historical and intergenerational trauma?
How can your agency provide training and ongoing coaching and support to caseworkers to build relationships with families that are centered on trust and cultural humility?

Principle 3: Valuing inclusive and diverse cultural practices

ICWA was created to address harm inflicted on AI/AN communities due to the imposition of dominant cultural values, including assimilation. Therefore, the law requires jurisdictions to view child welfare matters from a different cultural perspective — that of the family’s own tribal community. ICWA regulations state that jurisdictions are to “conduct Indian child-custody proceedings in a way that reflects the cultural and social standards prevailing in Indian communities and families.”

One way this is done is requiring a qualified expert witness to testify from a social and cultural perspective as to whether children are at risk of serious emotional or physical harm, prior to removal. Jurisdictions with ICWA courts also have found that cultural training by local Tribes can greatly increase understanding and appreciation of a Tribe’s traditional child-rearing practices and cultural values.

Active efforts happen within a relationship of trust. As a social worker, attorney, or judge, if I don’t have a culturally humble and ‘listen first’ orientation, my efforts will miss the mark. I could be the most active social worker in the world, but my efforts will not have the intended impact if I have not established a relationship of trust with you.

– SHELDON SPOTTED ELK, (NORTHERN CHEYENNE TRIBE), PROGRAM DIRECTOR, TRIBAL JUSTICE RELATIONS, NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES

This change in approach requires cultural humility. In particular, child welfare professionals may need to critically analyze long-held assumptions about which family structures or communities can best support child well-being. For example, courts sometimes have required children in ICWA cases to be moved from unrelated foster homes to relatives’ homes, even after the children have bonded with the foster family. While this may contradict western ideas about the best interests of children, it is important to understand and honor Tribal values that prioritize long-term, multigenerational connections among family, Tribe, and culture over children’s short-term connections to one specific nuclear family. “The relationships that we develop with our tribal partners, and our understanding of their values, are so critical,” emphasizes District Judge Katherine R. Delgado, Adams County, Colo., ICWA Court, “I would encourage other judges and child welfare leaders to go visit some of their local Tribes, develop those relationships, and be open to understanding the issues that our Native Nations face.”

Questions to consider:

What cultures are present among the children and families your agency serves? How can your agency learn more about the range of childrearing practices and values that exist in different cultures and communities?
In what ways do dominant cultural assumptions influence agency decisions about the best interests of children? Is it possible that more children could remain safely with their families if these assumptions were reconsidered? What traditions and values are important to the family?
Are there language and literacy barriers to be mindful of? What kind of community support is needed for the family and caseworker to have a meaningful dialogue?
How could the concept of a culturally qualified expert witness be applied to non-ICWA child welfare cases?
How might your agency work with local cultural resource providers to support greater cultural competence of services to families?
How could your agency work alongside families and communities to better support healing for the generational and historical trauma experienced by children, youth, and families of color?

Principle 4: Authentic engagement with Tribes

ICWA provides for a Tribe to be included in child welfare cases concerning member children. Although the Tribe’s perspective does not always prevail, the law guarantees Tribes the right to participate fully in the case, be heard by the court, provide expert witnesses, and define placement preferences for their children.

ICWA specialty courts make a particular effort to include Tribe leaders and representatives in all cases involving their children, something that COVID-era virtual hearings have made a little easier. This also can be facilitated by scheduling ICWA cases at a consistent date and time that is convenient for the Tribe so that representatives are present even at early shelter hearings that offer limited opportunities for advance notice. There is emerging evidence that when a Tribe representative is present at a child’s first hearing, permanency occurs four months faster on average and reunification occurs seven months faster. “I see big differences in how caseworkers are working with the Tribes, the response back from the Tribes, and their efforts to work together toward reunification,” notes Judge Kathleen Quigley, Pima County, Ariz., ICWA court, “Without the Tribe’s participation, our ICWA court would not be where it is.”

What we would want for our own family should be the overriding goal for all cases. If my daughter’s family was in child protection court, what would I do? I would make sure my daughter had a ride to everything, and that my grandchildren were well cared for. That’s the gold standard to me.

– JUDGE SALLY TARNOWSKI, ST. LOUIS COUNTY, MINN., ICWA COURT

Some ICWA courts incorporate cultural art, Tribal flags, and Native practices such as smudging in the courtroom. Other jurisdictions have found that creating ICWA units with dedicated caseworkers, supervisors, and attorneys facilitates relationship-building and collaboration between the state, Tribe social workers, and any local culturally appropriate service providers. Family group conferences can offer another opportunity to invite Tribe representation and relinquish agency control of the process.

On a systems level, power-sharing might look like creating workgroups comprised of equal numbers of state representatives and Tribe members. For example, Washington’s Tribal State Workgroup is a joint effort to review and update the Department of Children, Youth, and Families’ ICWA policies and procedures.

Meeting Tribes and families where they are, beyond the walls of child welfare agency offices, demonstrates respect and can help build cross-cultural understanding. Judge Delgado of Adams County recalls the impact of a trip she took to visit several nearby tribal nations and meet with tribal judges: “That trip really cemented my passion for not only the black-letter law of ICWA, but the spirit of the law.” In Yellowstone County, Mont., members of the Yellowstone ICWA Court Team traveled more than 100 miles to meet with the Tribe’s Human Services Department to staff cases and to introduce themselves to new executive branch officials and Tribal Council members. During COVID, the State and the Tribe continue to collaborate on these cases through monthly zoom calls. This and other relationship-building efforts have resulted in increased kinship placements and fewer terminations of parental rights.

Questions to consider:

In what ways does your agency share power with families and communities by meeting them where they are?
How could community leaders and representatives have a greater voice in your agency’s services and decision-making (for example, by ensuring they are included in all family group conferences)?
How can your agency embrace and incorporate tribal culture and Native practices in its engagement with Native families both inside and outside the courtroom?
How can your agency incorporate culturally sensitive practices for any family it works with?

1 Content of this brief was informed by consultation with members of the Knowledge Management Lived Experience Advisory Team on Oct. 5 and 21, 2021. This team includes youth, parents, kinship caregivers, and foster parents with lived experience of the child welfare system who serve as strategic partners with Family Voices United, a collaboration between FosterClub, Generations United, the Children’s Trust Fund Alliance, and Casey Family Programs. Members who contributed to this brief include Dee Bonnick, Sonya Begay, Aleks Talsky, Gloria Torma, and Jeremiah Donier.
2 Content of this brief was informed by interviews with Judge Kathleen Quigley, Pima County, Ariz., on Aug. 17, 2021; District Judge Katherine R. Delgado, Adams County, Colo., on Aug. 17, 2021; Judge Sally Tarnowski, St. Louis County, Minn., on Aug. 10, 2021; Sheldon Spotted Elk, National Council of Juvenile and Family Court Judges, on July 9, 2021; Shana King, ICWA Law Center, on July 13, 2021; Angela Cuellar and Peter Pace, Adams County (Colo.) Children and Family Services, on Sept. 7, 2021.
3 Saniguz Ullrich, J. (2019). For the love of our children: an Indigenous connectedness framework. AlterNative, 15(2), 121-130.
4 In determining whether active efforts have been met, the courts have discretion to consider the facts and circumstances.
5 source

The Supreme Court honored tribal nations with their decision

Demonstrators stand outside of the US Supreme Court on November 9, 2022 as the court heard arguments over the Indian Child Welfare Act.
Mariam Zuhaib/AP

My adoption papers said my mother was “very attractive” and that my “grandmother has some education and is considered to be an intelligent woman.” My father, who was listed as “Plains,” was described as having “hair with a slight tendency to wave.”

These small nuggets of information from my adoption papers were my only connection to my birth family. Only much later in life, as a young adult taking Native American studies at Dartmouth College, did I learn that I also had a legal connection with the Navajo Nation as a citizen of the Tribe.

’m like many Native Americans who were placed in White families under the Department of the Interior’s Indian Adoption Project in the 1960s and 1970s.

As with the placements of Indian children in boarding schools, this program removed Native children from their Tribes without justification and assimilated them into mainstream America. When I met my birth family as a young adult, one of my aunts held me and cried, saying the last time she held me I was a baby and she had told the hospital officials that she and my extended family would take care of me, but to no avail. I was taken away and put up for adoption anyway.

Recognizing that the continued existence of Tribal Nations was at stake because of the loss of up to 35% of their children, Congress outlawed this practice in 1978 with the passage of the Indian Child Welfare Act (ICWA). At the time, placement with White families was estimated to be at 90%.

In November, the US Supreme Court held oral arguments in a closely watched case, Haaland v. Brackeen, to decide whether the Indian Child Welfare Act is unconstitutional because it favors the adoption of Native children by Native families.

On Thursday, the Court left the decades-old law intact. The placement of Native American children with Native families or tribes can continue to be prioritized in child custody proceedings, it said, rejecting challenges brought by several adoptive parents. I could not be more pleased.

The states of Texas, Louisiana and Indiana, along with non-Native parents seeking to adopt Native children, held the position that ICWA amounts to racial discrimination because it has nothing to do with the “ability of Indians to govern themselves.” They argued that the states and non-Native parents should be able to decide the placement of Native children free of consideration of their tribal status because there is no political interest of the Tribes at stake.

And opponents of the Indian Child Welfare Act even went a step further, saying that the law went against the best interests of Native children by imposing standards that make it harder for them to be adopted into stable, loving homes.

As a Native person who was adopted into a White family before the implementation of ICWA, that’s not the way I see it. I can attest firsthand, as a citizen of both the United States and the Navajo Nation, that ICWA is not about race.

I grew up in southern New Jersey, but I always knew I was Navajo. Born in Zuni Pueblo, New Mexico, I was separated from my family with only a few papers as evidence of my Tribal status. source

Indian welfare act

read a web version on a government site here

Passed House amended (10/14/1978)

(Measure passed House, amended, in lieu of H.R. 12533)

Indian Child Welfare Act – =Title I: Child Custody Proceedings= – Declares that it is the policy of Congress to establish minimum Federal standards for the removal of Indian children from their families (extended families) and for the placement of such children in foster or adoptive homes which will reflect Indian culture.

Grants an Indian tribe jurisdiction exclusive as to any State over custody proceedings involving an Indian child who resides within the reservation of such tribe or is a ward of a tribal court except where jurisdiction is vested in the State by existing Federal law.

Allows the Indian tribe of a child to intervene at any point in a State Court proceeding for the foster care placement of, or termination of parental rights to, an Indian child.

Stipulates that, upon application by an Indian individual who has reached age 18 and who was the subject of an adoptive placement, the court which entered the final placement decree shall inform such individual of the tribal affiliation, if any, of his or her biological parents, and provide such other information as may be necessary to protect any rights flowing from his or her tribal relationship.

Allows any Indian tribe which became subject to State jurisdiction pursuant to Federal law to reassume jurisdiction over child custody proceedings upon approval of a petition by the Secretary of the Interior.

Provides for emergency removal of an Indian child, who is a resident of or domiciled on a reservation but temporarily located off the reservation, from the parent or Indian custodian and the emergency placement of such child under applicable State law, in order to prevent harm to such child. Stipulates that such removal or placement must be terminated immediately when no longer necessary to prevent imminent physical harm to such child.

=Title II: Indian Child and Family Programs= – Authorizes the Secretary of the Interior to make grants to Indian tribes and organizations for the establishment and operation of Indian child and family service programs on or near reservations and for the preparation and implementation of child welfare codes. States that the objective of every Indian child and family service programs shall be to prevent the breakup of Indian families.

Authorizes every Indian tribe to operate and maintain facilities for: (1) the counseling or treatment of Indian families or individuals; (2) the temporary custody of Indian children; and (3) legal representation and advice to Indian families involved in tribal, State, or Federal child custody proceedings.

Authorizes the Secretary to make grants to Indian organizations to establish and operate off-reservation Indian child and family service programs.

=Title III: Recordkeeping, Information Availability, and Timetables= – Directs the Secretary to collect and maintain records of all Indian child placements which are affected under the date of this Act. Requires the Secretary to insure that the confidentiality of such information be maintained where the court records contain an affidavit that the identity of the biological parents remain confidential.

Directs the Secretary to promulgate, within 180 days of enactment of this Act, such rules and regulations as may be necessary to carry out the provisions of this Act.

=Title IV: Miscellaneous= – Directs the Secretary to prepare, in consultation with appropriate agencies in the Department of Health, Education, and Welfare, a report on the feasibility of providing Indian children with schools located near their homes, and to submit such report to the Senate Select Committee on Indian Affairs and House Committee on Interior and Insular Affairs. source

tHANKS for readings

Indian Child Court Forms

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

The Truth News — Tue, 18 Jul 2023 17:11:39 +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.

Biography = loser

The Hon. Julie A. Palafox is a judge of the Superior Court of Orange County in California.

She was appointed by former governor Jerry Brown on July 23, 2015, filling a vacancy created by the retirement of Judge Wendy S. Lindley.

Palafox attended the University of Notre Dame, where she earned a bachelor’s degree in business administration. She completed her J.D. at the Pepperdine University School of Law in 1983.

Palafox began her career as an associate at Gould and Sayre in 1983. One year later, she started work as an associate at Alevizon, Smith and Lawrence. Between 1990 and 1998, Palafox worked as a partner at Alevizon, Smith, Susson and Palafox. She spent the next two years working as a partner at Alevizon, Edwards and Palafox. Then, from 2000 to 2015, she worked as an attorney in her own private practice.

Palafox was living in Trabuco Canyon at the time of her appointment to the Superior Court of Orange County.

She is registered to vote without party preference.

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

Julie should know that judge McConville 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

Even though I was illegally declared a Vexatious litigant. Maybe because Hon. Julie A. Palafox has a heart, she also is a competent judge who preside over the others beneath her that keep cheating me of fairness. Hon. Julie A. Palafox understands the law, and the case that I presented the three contempt against the mother of my son, had complete and 100% merit. Eventually after it being excepted the court case was in transferred to the judge, who declared me a vexatious litigant, upon showing up to his quart room. All three contempt cases that had complete and 100% merit and allowed in by Miss Palafox is proof that not only is the judge biased. He’s been vindictive , malicious, and in violation of my civil rights afforded to me in the US CONSTITUTION that I am afforded and protect me from men like judge Thomas McConville

The head Judge over the family law circuit The Hon. Julie A. Palafox, allowed the case to continue, but the actual Judge dislikes me, and is completely malicious and out of his jurisdiction! He through my case out and still, my son is around they wanted fugitive sex offender. He never gave me due process for the restraining order either!

Here The Hon. Julie A. Palafox allows my case with merit! But in court but McConville cons me out of my own rights and cancels my case once it appears in his lap!

Case # 17FL000138 – Envelope # 9949749
Case # 17FL000138 Envelope # 9949870
Case # 17FL000138 – Envelope # 9950272
Case # 17FL000138 – Envelope # 11677828

Israel Claustro denies a legitimate complaint about the predjudice bias judge Thomas McConville I think Judge Israel Claustro is also prejudice and not capable of reading law or finding out if there was a wrongdoing

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.

Click Image Below to ENLARGE to CLEARLY READ

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 Thomas McConville the con !

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.

Alexander C. Payne is a partner at Minyard Morris, practicing family law.

Attorneys who have appeared before Judge Palafox recognize her efforts to help heal families, think prospectively and practically, and have clarity in her rulings. source

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.

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).

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.

Mother'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