2004 WL 3155788 (9th Cir.)
For opinion see 2005 WL 1475615
and Other Related Documents
United States Court
Jeffrey R. GOLIN,
Elsie Y. Golin, Nancy K.Golin, Plaintiffs-Appellants,
(Director of California Department of Developmental Services
("dds"); in his
official and individual capacity; H.Dean Stiles (Of-fice of
Legal Affairs of
California Department of Developmental Services) in his
personal capacity, County of Santa Clara ("csc"); Jamie
Clara County Adult Protective Services ("aps")); Jose
M.Street (Santa Clara County Office of Public Defender
("opd")) each in
their official, individual and personal capacities; San
Center, Inc. ("sarc"); Santi J. Rogers, Mimi Kinderlehrer,
Tucker Liske (San
Andreas Regional Center), each in their individual and
Nancy J. Johnson (Berliner Cohen); City of Palo Alto; Lori
Kratzer (Palo Alto
Police Department) in her Official and individual capacity;
Embee Manor, Edna
Mantilla in her individual and personal capacity; and does 1-
On Appeal from the United States District Court for the
Northern District of California
Joint Brief and Argument of Appellants
R. Golin, Elsie Y. Golin, Plaintiffs-Appellants Pro Se, Personally and in their
capacity as Next Friend for daughter Nancy K. Golin, Appealing District Court's
Order Granting Defendants' Motion to Dismiss, Jeffrey R. Golin, 13736 De Leon
Ave., Santa Nella, CA 95322 Phone (650) 814-6284, Fax: (209) 826-5410, e-mail:
TABLE OF CONTENTS
TABLE OF CONTENTS ... i
TABLE OF AUTHORITIES ... iv
STATEMENT REGARDING ORAL ARGUMENT ... ix
STATEMENT REGARDING ATTORNEYS' FEES ... x
STATEMENT OF JURISDICTION ... 1
A. BASIS FOR DISTRICT COURT'S
SUBJECT MATTER JURISDICTION ... 1
BASIS FOR COURT OF APPEALS JURISDICTION ... 1
C. FILING DATES AND TIMELINESS OF APPEAL ...
ISSUES PRESENTED FOR REVIEW ...
REVIEWABILITY AND STANDARD OF REVIEW
STATEMENT OF THE CASE ...
A. CHARACTERISTRICS OF THE FAMILY ...
D. DAUGHTER ABDUCTED FROM HER FAMILY BY
STATE ... 6
E. ILLEGAL SECRET DETENTION;
MALICIOUS PROSECUTION ... 10
STATE CONSERVATORSHIP PETITION ... 13
G. INTERIM CONSERVATORSHIP, CHARGES DISMISSED ...
H. STATE TEMPORARY CONSERVATORSHIP
IMPOSED ... 15
I. CONSERVATORSHIP TRIAL:
PARENTS V. STATE ... 17
PETITIONS FOR APPEAL ... 27
STATUS OF NANCY GOLIN ... 28
RELEVANT TO ISSUES PRESENTED ... 31
SUMMARY OF ARGUMENT ... 31
ARGUMENT ... 32
COURT BELOW ERLOW ERRED BY DENYING PRO SE APPELLANTS FAIR OPPORTUNITY TO BE
NOTIFIED OF DEFICIENCIES AND OPPORTUNITY TO AMEND ORIGINAL COMPLAINT ...
II. THE COURT BELOW SPECIFICALLY ERRED
BY FAILING TO GRANT PETITIONER'S REQUESTED LEAVE TO AMEND
ORIGINAL COMPLAINT TO AVOID ROOKER FELDMAN BARS TO JURISDICTION ...
III. THE COURT BELOW EXPOSED ITS BIAS
TOWARDS THE STATE AND AGAINST PRO SE LITIGANTS, AND PROCEEDED DESPITE A VALID
DISQUALIFICATION CHALLENGE UNDER 28 U.S.C. § 144 ... 37
IV. THE COURT BELOW ERRED HOLDING PARENTS HAVE NO STANDING TO
REPRESENT THEIR DEVELOPMENTALLY DISABLED DAUGHTER AS NEXT FRIENDS OR AS
GUARDIANS AD LITEM ... 39
V. COURT BELOW
ERRED BY DENYING PARENTS OPPORTUNITY TO OBTAIN COUNSEL TO PURSUE GUARDIAN AD
LITEM STANDING ... 45
VI. ROOKER FELDMAN
ABSTENTION DOES NOT APPLY HERE ... 46
PETITIONERS MADE VALID APPLICATIONS FOR LEAVE TO AMEND TO REMOVE CLAIMS BARRED
BY ROOKER-FELDMAN AND YOUNGER WHICH SHOULD HAVE BEEN GRANTED ...
B. EVEN HAD APPELLANTS NOT AMENDED AS
PROPOSED, EXCEPTIONS TO ROOKER-FELDMAN CLEARLY APPLY HERE ... 47
1. THE STATE COURT TRIAL WAS A
CONTESTED CONSERVATORSHIP PROCEEDING RAISING DIFFERENT ISSUES SEEKING A
DIFFERENT RESULT THAN RAISED HERE ... 47
2. THE PARTIES TO STATE COURT PROCEEDING ARE DIFFERENT FROM
THE DEFENDANTS HERS, GIVING FURTHER PROFF THAT THIS IS A DIFFERENT MATTER ...
3. STATE COURT DID NOT AFFORD "FULL
AND FAIR" OPPORTUNITY TO LITIGATE FEDERAL CLAIMS AND PROVIDE DUE PROCESS,
REQUIRED FOR ROOKER-FELDMAN PRECLUSION TO APPLY ... 49
4. PETITIONERS RAISED FEDERAL ISSUES IN STATE COURT, WHICH
WERE NEVER ADDRESSED ON THE MERITS AS THE STATE COURT EXPRESSED DISDAIN FOR
FEDERAL CLAIMS ... 52
5. THE INJURY
COMPLAINED OF HERE DID NOT ARISE FROM THE STATE COURT JUDGMENT ITSELF ...
6. FEDERAL COURTS HAVE EXPRESSLY
AUTHORIZED JURISDICTION ARISING FROM 28 U.S.C. § 1343(A) OVER CASES INVOLVING CIVIL RIGHTS AND CIVIL
RIGHTS CONSPIRACIES UNDER 42 U.S.C. § 1985 ... 53
VII. YOUNGER ABSTENTION DOES NOT APPLY HERE ...
A. THE ISSUES AND CLAIMS IN THE
PRESENT CASE ARE DIFFERENT FROM THOSE IN THE STATE COURT MATTER ...
B. SECTION 1983 EMPOWERS FEDERAL
COURTS TO EXERCISE JURISDICTION IN COLLATERAL PROCEEDINGS NOTWITHSTANDING
YOUNGER ... 55
C. YOUNGER FIRST PRONG IS
NOW NO LONGER SATISFIED, STATE COURT APPELLATE PROCEEDING IS NO LONGER ONGOING
D. DOMESTIC RELATIONS EXCEPTION
DOES NOT APPLY HERE AS EXEMPLIFIED BY RUBIN, ANKENBRANDT, AND THOMAS SO FAILS
THE SECOND PRONG OF YOUNGER ... 57
COURT BELOW ERRED HOLDING THAT THE THIRD PRONG OF YOUNGER IS SATISFIED HERE,
HOLDING THAT DUE PROCESS WAS NOT DENIED IN STATE COURT PROCEEDINGS ...
VIII. THE COURT BELOW ERRED FAILING TO
CONSIDER PLAINTIFF DISMISSAL SATISFYING HECK FACORABLE OUTCOME PREREQUISITE FOR
PARENTS' CLAIMS OF MALICIOUS PROSECUTION ... 64
A. THE COURT BELOW ERRED PERMITTING
DEFENDANTS TO INTRIDUCE NEW ARGUMENTS AND FALSE FACTS AT THE HEARING WITHOUT
SUFFICIENT OPPORTUNITY FOR PLAINTIFF REBUTTAL OR BRIEFING ON THE FACTUAL BASIS
B. THE TORT OF MALICIOUS
PROSECUTION WAS COMMITTED AND IS CLEARLY SHOWN IN THE AVAILABLE RECORD ...
C. MOTHER'S OWN CLAIMS OF MALICIOUS
REJECTED BY COURT BELOW ... 70
PARENTS CLAIMS FOR MALICIOUS PROSECUTION WERE DISMISSED ON ERRONEOUS
GROUNDS THAT PROSECUTORS HAD SUFFICIENT PROBABLE CAUSE TO CONTINUE PROSECUTION
CONCLUSION AND RELIEF SOUGHT ...
STATEMENT OF RELATED CASES ...
SIGNATURE PAGE ... 1
STATEMENT OF COMPLIANCE REGARDING
RULE 32(a)(7) ... 1
SERVICE BY MAIL ... 2
TABLE OF AUTHORITIES
U.S. Constitutional Amendment I ... 40
U.S. Constitutional Amendment IV ... 49
U.S. Constitutional Amendment VI ... 3, 24,
U.S. Constitutional Amendment VIII ...
U.S. Constitutional Amendment XIV ...
U.S. Constitutional Article III,
Section 1 ... 54
Ad Hoc Committee of Concerned Teachers v. Greenburg # 11 Union
Free School District, 873 F.2d 25, 30-31 (2nd Cir. 1989) ...
Aetna Life Ins. Co. v.
Lavoie415 U.S. 813 (1986) ... 38
Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir.
1995) ... 33
Ankenbrandt v. Richards, 504 U.S. 689 (1992) ... 43,
Armstrong v. Rushing, 352 F.2d 836, (9th Cir.
1965) ... 32
Barber v. Barber, 62 US 582 (1859) ...
Blair v. Supreme Court of Wyoming, 671 F.2d 389,
390 (10th Cir.
Blake v. Papadakos, 953 F.2d 68, 71 n.2 (3d Cir. 1992)
Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.
1980) ... 33
Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir.1991) ...
Cheung v. YouthOrchestra Found. of Buffalo, Inc., 906 F.2d 59
(2d Cir. 1990) ... 46
Childrens v. Mineta, 205 F.R.D. 29 (2001) ...
Chrissy F. by Medley v. Mississippi Department of Public
Welfare, 883 F.2d 25 (5th Cir. 1989) ... 42
Coates v. Woods, 819 F2d 236, 237 (9th Cir. 1987) ...
Colorado River Water Conservation Dist. v. United States, 424 U.S.
800, 814 (1976) ... 56
Conservatorship of Roulet, 23 Cal.3d 219 (1979) ...
County of Allegheny v. Frank Mashuda Co., 360 U.S.
185, 188 (1959) ... 55
Crowford v. Washington, 124 S.Ct. 1354 (2004) ...
Csibi v. Fustos, 670 F.2d 134, 137 (9th Cir. 1982)
Developmental Disabilities Advocacy Ctr., Inc. v. Melton, 689
F.2d 281, 285 (1st Cir. 1982) ... 45
District of Columbia Court of Appeals v. Feldman, 460 U.S.
462 (1983) ... 36
Doe v. United States, 58 F.3d 494, 496-97 (9th Cir. 1995)
Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977) ...
Fouche v. Louisiana, 504 U.S. 71, (1992) ...
Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984) ...
Friendlander v. Friendlander, 149 F.3d 739 (7th Cir.
1998) ... 43
Garrick v. Weaver, 888 F.2d 687, 693 (10th Cir. 1989) ...
Gerry v. Giles, 82 F.3d 1362 (7th Cir. 1996): ...
Gold v. Superior Court of Marin County, 90 Cal.Rptr.161
(1970) ... 27
Gonzales ex rel Gonzales v. Reno, 86 F.Supp.2d 1167,
S.D.Fla. (2000) ... 45
Guarinov. Larsen, 11 F.3d 1151, 1161-62 (3rd Cir. 1993)
H.C. v. Koppel, 203 F.3d 610, 612 (9th Cir. 2000) ...
Heck v. Humphrey, 512 U.S. 477 (1994) ...
Hemon v. Office of Public
Guardian, 878 F.3d 13 (1st Cir. 1989
Hurlman v. Rice, 927 F.2d 74 (2d Cir. 1991) ...
In re Burrus, 136 U.S. 586 (1890) ...
In re Chicago, Rock Island &
Pacific R.R., supra, 788 F.2d at 1282 ... 42
In re Gault 387 U.S. 1 (1967) ... 24
In re Gruntz, 202 F.3d 107, C.A.9 (Cal) (2000) ...
In re Winship, 397 U.S. 358 (1970) ...
Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.
1997) ... 46
Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994) ...
Lake v. Arnold 112 F.3d 682 (3d Cir. 1997) ...
Lehman v. Lycoming County Children's Services, 458 U.S. 502
(1982) ... 62
Liljeberg v. Health Services Acquisition Corp. 486 U.S. 847
(1987) ... 38
Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir.
2002) ... 33
Lloyd v. Loeffier, 694 F.2d 489 (7th Cir. 1982) ...
Lopez v. Smith, 160 F.3d 567 (9th Cir. 1998) ...
M.L.B. v. S.L.J., 519 U.S. 102 (1996) ... 2, 27, 56,
Meeker v. Kercher, 782 F.2d 153 (10th Cir. 1986) ...
Miofsky v. Superior Court, 703 F.2d 332, 338 (9th Cir.
1983) ... 55
Mitchum v. Foster, 407 U.S. 225 (1972) ... 32, 43,
Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1987) ...
Ohio v. Roberts, 448 U.S. 56, (1980) ...
Olmstead v. L.C. by Zimring, 527 U.S. 581 (1999) ...
Osei-Afriyie v. Medical College, 937 F.2d 876, (3d Cir.
1991) ... 46
Parham v. JR, 442 U.S. 584 (1979) ... x,
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, (1987) ...
Pierce v. Society of Sisters, 268 U.S. 510 (1925)
Plyler v. Moore, 129 F.3d 728, 732 (4th Cir. 1997) ...
Potter v. McCall,433 F.2d 1087, 1088 (9th Cir. 1970) ...
Ritter v. Ross, 992 F.2d 750, 753 (7th Cir. 1993) ...
Rivera-Puig v. Garcia-Rossario, 983 F.2d 311, 319 (1st Cir.
1992) ... 54
Roberts v. Ohio Casualty Ins. Co., 256 F.2d 35, 39 (5th Cir.
1958) ... 43
Roberts v. Ohio Casualty Insurance Co., 256 F.2d 35, 39 (5th
Cir. 1958) ... 42
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ...
Rubin v. Smith, 817 F. Suppl.
995 (1993) ... 63
S.D. Meyers, Inc. v. City and County of San Francisco, 253
F.3d 461, 474(9th Cir. 2001) ... 4
Santosky v. Kramer, 455 U.S. 745 (1982) ... x,
Sell v. U.S., 539 U.S. 166 (2003) ...
Stanely v. Illinois, 405 U.S. 645 (1972) ...
T.W. v. Brophy 124 F.3d 893 (3rd Dist.,1997) ...
Thomas v. New York City, 814 F.Supp 1139, E.D.N.Y.,
(1993) ... 63
Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir. 1980)
Troxel v. Granville, 530 U.S. 57 (2000) ... x,
United States v. 20.64 Acres of Land, 795 F.2d 796, 805 (9th
Dist., 1986) ... 41
Valenti v. Mitchell, 962 F.2d 288, 296 (3d Cir. 1992) ...
Washington v. Harper, 494 U.S. 210 (1990) ... x,
Whitmore v. Arkansas, 495 U.S.
149 (1990) ... 32, 39
Winston v. Children and Youth Servs. of Delaware County, 948
F.2d 1380 (3d Cir. 1991) ... 64
Youngberg v. Romeo 457 US 307 (1982) ... x,
Younger v. Harris, 401 U.S. 37 (1971) ... 36,
Zamos v. Stroud, 12 Cal.Rptr.3d 54, Cal (2004) ...
Zubiate v. Sonoma County Social Services Dep't, 1997 WL
154395, N.D.Cal., (1997) ... 70
28 C.F.R. § 35.130(d) ... 22
28 C.F.R. Pt. 35, App. A, p. 450 (1998) ...
28 U.S.C. § 2241 ... 37
28 U.S.C. §§ 1331 ... 1
28 U.S.C. § 1291 ... 1
28 U.S.C. § 1341 ... 54
28 U.S.C. § 144 ... 38
28 U.S.C. § 1915 (e)(1) ... 45
28 U.S.C. § 1915(d) ... 34
28 U.S.C. § 2254 ... 35
42 U.S.C. § 1343 ... 1
42 U.S.C. § 1367 ... 1
42 U.S.C. § 1985 ... 1
42 U.S.C. § 1986 ... 1
42 U.S.C. § 1983 ... 1
Cal. Evid. C. § 1270 ... 23
Cal. PC 1203.4(a) ... 66, 67
Cal. PC 368(c) ... 65, 66
Cal. Prob. C. § 1825 ... 19
Cal. Welf. & I. § 5008(h)(3) ... 10
Cal. Welf. & I. § 5150 ... 10
Cal. Welf. & I. § 5250 ... 10
Cal. Welf. & I. § 5250(d)(1) ... 10
FRAP Rule 4(A)(a) ... 1
FRCP Rule 12(b)(6) ... 1, 31, 34
FRCP Rule 15(a) ... 33
FRE Rule 403 ... 67
FRE Rule 410 ... 68
Rights-Conspiracy to Deny-Mentally Retarded Persons 42 U.S.C.A. 1985(3), 1210(a)(7). Lake v. Arnold 112 F.3d 682 (3d Cir. 1997)," 12 No. 9 FEDLIT 250, Federal Litigator, September 1997 ...
The Domestic Relations Exception to
Federal Jurisdiction: Rethinking an
Unsettled Federal Courts Doctrine Michael Ashley Stein, 36 BCLR 669 (Boston College Law Review) July 1995.): ...
"The Right To
Refuse Antipsychotic Drug Treatment And The Supreme Court: Washington v. Harper"
Jeannette Brian, 40 BFLR 251 Buffalo Law Review, Winter 1992 ...
5 Witkin, Summary of Cal. Law (9th ed.
1988) Torts, § 45 ... 72
Role of the Attorney for the Alleged Incapacitated Person Joan
O'Sullivan, 31 Stetson L. Rev. 687, Stetson Law Review, Spring 2002 ...
The Right to 'Just Say No': A History
and Analysis of the Right to Refuse Antipsychotic Drugs" Dennis E. Cichon, 53 LALR 283 (Louisiana Law Review) (1992) ...
Views of Practicing Physicians and the Public on Medical
Errors, Robert J. Blendon, et al, New Eng. J. of Med, v 347, p 1933 ...
Najeeb Hasan, "Saving Nancy", San Jose Metro News, April
28-May 4, 2004 17
STATEMENT REGARDING ORAL ARGUMENT
case of first impression lies at the nexus of unsettled laws in so many areas,
involving rules of evidence and adversarial misrepresentation of incompetent
persons in mental health, conservatorships, constitutional family rights,
constitutional rights of association, abuse of children and dependent adults in
state care, constitutional rights of mentally retarded adults the ADA,
profiteering and explotation from federal funding of state welfare programs, and
federal v. state jurisdiction disputes, making it difficult to resolve which
areas of law should prevail. Yet numerous fundamental constitutional rights and
historic Supreme Court decisions are clearly established as should wellsprings
from which to draw toresolve these conflicting lines of cases [FN1]. For these
reasons, Plaintiff/Appellants respectfully submit that oral argument is
necessary for the just resolution of this appeal and will significantly enhance
the decision-making process.
FN1. See, O'Connor v. Donaldson, 422 U.S. 563 (1975), Parham v. JR, 442 U.S. 584 (1979), Santosky v. Kramer, 455 U.S. 745 (1982), Sell v. U.S., 539 U.S. 166 (2003), Stanley v. Illinois, 405 U.S. 645 (1972), Washington v. Harper, 494 U.S. 210 (1990), Youngberg v Romeo 457 US 307 (1982), Whitmore v. Arkansas, 495 U.S. 149 (1990),, Troxel v.
Granville, 530 U.S. 57 (2000), Mitchum v. Foster, 407 U.S. 225 (1972), Olmstead v L.C. by Zimring, 527 U.S. 581 (1999), Pierce v. Society of Sisters, 268 U.S. 510 (1925)
STATEMENT REGARDING ATTORNEYS' FEES
Plaintiff/Appellant intends to seek
attorney's fees under authority of 42 U.S.C. § 1988 and 28 U.S.C. § 2412.
STATEMENT OF JURISDICTION
DISTRICT COURT'S SUBJECT MATTER JURISDICTION
The District Court has original
jurisdiction over 42 U.S.C. §§ 1983, 1985, 1986 Civil Rights lawsuits, as provided by 28 U.S.C. §§ 1331, 1343, 1367.
B. BASIS FOR COURT OF APPEALS JURISDICTION
This Court has jurisdiction over
appeals from final decisions of a District Court as provided by 28 U.S.C. § 1291.
C. FILING DATES AND TIMELINESS OF APPEAL
The U.S. District Court, Northern
District of California, Hon. William H. Alsup presiding, entered a final
judgment against appellants and plaintiffs on April 6, 2004. Plaintiffs filed a
notice of appeal from this order on May 5, 2004 (Exh. Y). FRAP Rule 4(A)(a) provides that "the notice of appeal required
by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered". Therefore, the
appeal was timely filed.
ISSUES PRESENTED FOR REVIEW
1. Whether a court may dismiss a
case on a FRCP Rule 12(b)(6) motion when each key issue of fact still
remains to be determined, contrary to dicta that "when reviewing a complaint
under Rule J2(b)(6), courts should accept all allegations as true and construe
those facts in the light most favorable to the plaintiff"?
2. Whether the class of cases now limited per Ankenbrandt v. Richards, 504 U.S. 689 (1992) to include
"divorce, alimony and child support" constituting the "domestic relations
exception" to federal jurisdiction may also encompass probate involuntary state
conservatorships of non-dangerous disabled adult family members.
3. Whether a State may statutorily abrogate
normal parental preferences in special probate involuntary conservatorship
proceedings in favor of the State, or receive equal or preferential footing with
caring parents or family for conservatorship of adult relatives, without
deference to parents' estimate of their child's best interests, without
violation of First Amendment rights of familial association, or.
4. Whether State conservator may, under the
First Amendment, impose involuntary familial associational restrictions between
willing non-criminal, non-dangerous adult conservatees and
their caring, capable families using enumerated state probate conservatorship
powers under the First Amendment.
the US Supreme Court's holding in M.L.B. v S.L.J., 519 U.S. 102 (1996) extends due process
rights including independent representation or free appellate transcripts to
indigent parents of adult mentally handicapped children in their care facing
loss of their personal liberty or dissolution of their familial liberty
6. Whether an indigent
incompetent person facing a permanent loss of personal liberty in a civil
proceeding has the same due process appellate rights to free trial transcripts
of involuntary conservatorship proceedings on appeal as does an indigent
criminal defendant, consistent with the In re Winship, 397 U.S. 358 (1970) and In re Gault 387 U.S. 1 (1967) line of cases, and does a
next friend, parent or caring relative have the right to advocate for this right
on behalf of the incompetent person?
Whether parents whose adult child has been involuntarily conserved by the state,
whose conservatorship is pending on appeal in state court nevertheless have
standing to sue on her behalf for unconstitutional harms and injuries as
guardians ad I item or next friends, in circumstances where the underlying
purpose of that conservatorship appears to be to thwart a lawsuit against the
state conservator for their own liabilities, when her conservators have a
conflict of interest and will not act?
8. Whether Crawford v. Washington, 124 S.Ct. 1354 (2004), as a new
Supreme Court rule revitalizing Sixth Amendment (U.S. Constitutional Amendment
VI) due process rights of criminal defendants to confront witnesses against them
barring testamentary hearsay evidence, may be extended to nominally civil cases
in which a person faces a loss of liberty, such as a civil commitment hearing,
consistent with the In re Winship, 397 U.S. 358 (1970) and In re Gault 387 U.S. 1 (1967) line of Supreme Court
9. Whether a federal court may
dismiss for denial of standing to represent an incompetent adult in a 28 U.S.C
§ 1983 lawsuit based on findings of a state trial court, when such findings are
clearly erroneous, based on deliberate falsehoods and reckless disregard for the
truth, as demonstrably provable from a mountain of overwhelming evidence and are
still being contested in ongoing appeal in state court and these findings are
stayed pending appeal?
10. Whether a
disputed state trial court "finding" that parents are supposedly unable to care
for their daughter as conservators - based on an unreasonable determination of
the facts in light of the evidence, unreviewable by a lower federal court under
the doctrines of Rooker and Feldman - sufficient to conclusively prove they
would also be unable to protect her legal interests against the state as next
friends, advocates or guardians ad litem, without any closer inquiry into their
exact qualifications to perform that different role?
REVIEWABILITY AND STANDARD OF REVIEW
A dismissal for
failure to state a claim pursuant to Rule 12(b)(6) is reviewed de novo. See e.g., Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003). A dismissal without leave
to amend is reviewed de novo. See e.g., Oki Semi conductor Co. v. Wells Fargo Bank, 298 F.3d 768, 772
(9th Cir. 2002). Standing is a jurisdictional question of law reviewed de
novo. See e.g., S.D. Meyers, Inc. v. City and County of San Francisco, 253
F.3d 461, 474 (9th Cir. 2001). The existence of subject matter jurisdiction
is a question of law reviewed de novo. See e.g., Chang v. United States, 327 F.3d 911, 922 (9th Cir.
STATEMENT OF THE CASE
CHARACTERISTICS OF THE FAMILY
Katherine Golin ("Nancy") is a 34-year-old autistic adult, severely retarded
since birth. An only child, she has lived with and been raised and cared for at
home essentially her entire life since birth by dedicated parent-petitioners
Jeffrey and Elsie Golin ("the parents") until 3 years ago. They know their
daughter well and care for her deeply. She had epilepsy since age 22 maintained
by antiseizure medications (Al) [FN2]. She has a propensity to wander that the
parents closely monitor. She is non-aggressive, has never been diagnosed with
mental illness or had psychiatric medications prescribed for her, nor has ever
committed or been charged with a crime. She is unable to read or write, and
speaks only a few words, but understands and communicates very effectively with gestures, expressions and actions. She is
alert, happy, charming, beautiful and gentle, optimistic and brave, patient and
persistent, emotionally and motivationally normal. She has a positive, sunny
disposition, the pure innocent product of a lifetime of love and devotion. Her
autism is atypical in that she is very sociable, relates well to people, and has
no tics, self-injurious or ritualistic behaviors. She is ambulatory and able
bodied, can toilet, dress and feed herself, and can tie her own shoelaces. She
and her parents are profoundly attached to one another, and her parents remain
with her constantly at all times. Her parents always put her needs before their
own, priding themselves on having protected her from State institutionalization,
integrated into normal community activities. The parents never saw it necessary
to conserve her.
FN2. Page reference to separately bound exhibits:
There is a long history of animus and abuse by S ARC
officials against the petitioners, going back nearly 25 years. Mrs. Golin is a
long time vocal critic of San Andreas Regional Center (SARC), the private
non-profit corporation exclusively responsible for State programs for the
retarded in Santa Clara, Santa Cruz, San Benito and Monterey Counties, for their
negligence or indifference towards the "weakest among men",
and the number of their clients they regularly kill through neglect. Mrs. Golin
sought in vain for years during Nancy's formative years using every available
means to obtain appropriate services such as speech therapy from local schools
and SARC. (S12-S15) She eventually gave up and obtained the best services she
could find on her own in spite of State harassment. Together with her husband of
42 years, a former professional engineer, high-tech marketer and postgraduate of
MIT, they have spent a lifetime seeking the best available resources for their
daughter's special needs. Their experience with State programs is theyalways did
more harm than good; they failed Nancy's individual needs, caused her severe
injuries [FN3], and exposed her to bad behaviors she mistakenly copied. (SI
FN3. Nancy's epilepsy is believed resultant from a severe,
near-fatal 1978 head injury caused Nancy, then eight, by a SARC program; two
bigger boys, known to attack in this manner, but yet there, unsupervised, threw
Nancy backwards on her head onto cement. Nancy stopped breathing, turned blue.
Remarkably, the program kept Nancy there for five more hours, not informing
doctor or family, merely because Nancy finally resumed breathing.
The parents are active
semi-retirees, who now operate a neon lighting and contracting business they founded in 1990 to give them the time
and flexibility to care for and provide activities for Nancy. Nancy loves to
watch her parents work, and the family was always out and about with Nancy, and
took frequent hikes together. Nancy's mother is a designer, fashion stylist,
nutritionist and musician, and Nancy very much enjoyed being involved in these
areas, and accessing the extraordinary collection of resources her mother
provided for creative outlets and skill development. Nancy required constant
supervision, but loved having access to "real" artistic pursuits, such as
putting together her own clothes, helping to make patterns, making and playing
fun musical instruments, and owning hundreds of recordings. Nancy also enjoyed
many sensory motor exercises and fitness activities in the "real" world. She
strongly disliked the "programs" for the retarded, being acutely aware of her
"second class citizen status" in them.
D. DAUGHTER ABDUCTED FROM HER FAMILY BY STATE
evening of November 14, 2001, Nancy wandered from her parents whilethey were
moving their workshops to neighboring Palo Alto. The parents immediately called
the Palo Alto police ("police") for help, searching the area all night. She
could not be found. Next morning Nancy found her way back herself, tired but
delighted, well and unharmed, to her parents' intense joy and
The police duped the unsuspecting
parents, advising them they onJy intended to take Nancy to
Stanford Hospital to make sure no one had harmed her while she was missing.
Police took Nancy without warrant or notice saying the parents could meet them
there. The parents cooperated without objection. Police delayed three hours,
then took her in different clothes to a locked psychiatric ward at Stanford and
obtained a TRO against her parents.
arrived at Stanford ER, the surprised parents were denied admission to see her
or talk to doctors. Security guards told them Nancy had been placed on a § 5150
psychiatric hold, and turned them away on threat of arrest. The parents were
justifiably terrified. Nancy had never been alone in a hospital without a parent
there for history and informed consent, and had never been in a psychiatric
ward. The staff let Nancy wander into rooms of dangerous mental patients
climbing into their beds seeking her usual maternal comfort, eating from their
Police led by defendant Det. Kratzer
created a cover story to psych ward doctors that Nancy was supposedly a homeless
urchin, the victim of abuse and neglect by the parents, saying that she was
"found in a shed behind a pile of garbage" [FN4]pretending at first she
had had no doctors or medical records. They insisted that Nancy had head lice,
so when the doctors could find no head lice they dutifully treated her with
Nizoral shampoo for "presumptive head lice". She had a-foot injury that
Stanford doctors admitted knowing their own ER doctors had caused with a
misplaced IV five months before. Her mother immediately had
it grafted and followed by a chief surgeon at Alta Bates (Dr. Jerome Kaplan)
when Stanford doctors refused to treat it. Yet police quoted a Stanford
psychiatric resident saying that the fully healed graft was a neglected open,
infected wound of unknown origin.
FN4. Det. Kratzer declined to reassert any of these outrageous
claims when questioned on the witness stand under oath at trial in October 2003,
and admitted she could have been mistaken about the situation when confronted
with the police photos of the scene and the certainty of impeaching testimony
SARC and Santa Clara County Adult Protective Services (APS),
immediately claimed custody of Nancy at the hospital without protective custody
proceedings. The police generated a report, in which most witness statements
were either misreported or falsified, including ones from SARC. SARC complained
from their institutionally biased view that Nancy needed to be placed in State
residential care instead of living at home, and that the parents since a 1993
SARC injury to Nancy, "refused services" (S12-S15).
Police misled Stanford psych ward doctors claiming Nancy's
mother was over medicating her on her Phenobarbital seizure medication. This was
based on an old, discredited complaint by an intern who caused Nancy seizures
two years be fore by erroneously cutting Nancy's
neurologist's prescribed dose in hospital (S46). These levels are highly
individual due to varying rates of metabolism ofthe medications, as any
qualified neurologist knows. In reality, there was no emergency. Nancy Golin was
perfectly fine, happy and well cared for, until the police took her to
the hospital! [FN5] She was not homeless nor had she exhibited any signs of
abuse or neglect (S10). Nancy's blood levels were correct, had no seizures or
adverse reactions on the day of admission and had not had any seizures for
several months. She did not require any medical assistance whatsoever, and
Stanford discharged her after two weeks for that reason.
FN5. Stanford psych ward doctors warned APS that it was unsafe
for Nancy with the men there, known to be dangerous, but APS officials ignored
these warnings insisting that she remain there in harms way. (Exh. B, p6,
11/19// 01) When seen by her parents next Nancy displayed unmistakable signs of
On admission, however, the clinical intake psych team led by
radiologist Dr. Hayward slashed her anti-seizure medication to what they
believed were "normal" levels throwing her into a week of protracted grand
mal seizures due to under medication. Neurology consult Dr. Schwartz was
called in on 11/17/01. He remembered Nancy from a previous
admission, and wrote on the 11/17/01 hospital record admitted into evidence,
"her level was good at time of admission" (T14), and by 11/23/01 Dr.
Deisseroth approvingly noted her levels restored close to these same good
admission levels (49.2) (T13). The hospital-caused seizures then abated. These
were the original levels that her mother, under the supervision of her regular
board certified neurologist Dr. Howard Belfer of San Mateo Hospital (Bl, T20)
and Stanford's own clinical neurologists themselves, had been
administering, that the police and APS called "overdosing" (S37-S42) [FN6]
FN6. Medical errors were surveyed to be the third leading cause
of death in the United States, see e. g., Views of Practicing Physicians and
the Public on Medical Errors, Robert J. Blendon, et al, New Eng. J. of
Med, v 347, p 1933.
Police applied at the hospital on intake for Nancy to be
placed on a 72-hour hold, Cal. Wolff. & I. § 5150, for psychiatric
evaluation alleging, "grave disability" as their reason to admit her. Then
police applied for an extension to a 14-day hold Cal. Wolff. & I. § 5250
for intensive treatment alleging "grave disability". Both laws are inapplicable
to merely mentally retarded persons or persons who can live safely with family
or friends by State law [FN7]. Therefore, the application for
the § 5250 hold was judicially denied (C4), November 26, 2001 at an in-hospital
hearing of which the parents were not notified and were prevented from
appearing. Nancy, being mute and incompetent, had no effective representation.
The State lost all further legal authority for holding her. The TRO against her
parents also expired. Nevertheless, when her parents went to pick her up, Nancy
had been spirited away by state authorities, refusing to disclose to anyone
where she was being hidden and drugged [FN8].
FN7. Cal. Welf. & I. § 5008(h)(3), Cal. Welf. & I. §
5250(d)(l). A mental health advocate warned police Nancy's detention was
inappropriate (B33-B34, 11/26/01).
FN8. Even though released and her § 5250 application denied,
Stanford gave the RCF a discharge prescription for Trazidone, a psychiatric
medication, for her caregivers to dope her with PRN (at their own discretion).
E. ILLEGAL SECRET DETENTION; MALICIOUS
Nancy was illegally taken from Stanford Hospital by SARC workers and secreted at
a SARC Residential Care Facility (RCF) known only to a few county workers [FN9]. Her signature was forged by SARC workers to a
SARC Individualized Placement Plan (IPP) (Exh. F, pp 6,7,8,9)), legally
requiring the informed consent and signature of a parent or legal conservator,
to attempt to qualify it as a voluntary commitment. It also cites cryptically
that "there was infringement on her rights due to 'consumer dilemma during
this period" " (F2) Nancy cannot read, write or sign her name, nor does she
have the capacity to give such informed consent as SARC's capacity declaration
states. APS records disclosed in their December 2001 records that their agents
and SARC's were all fully aware she was being held illegally so if the parents
found SARC's hideout so "if somehow the clients (sic) found where nancy I
was] placed by sarc, and showed up the RCF manager would have a hard time
keeping them away, and keeping them from taking nancy if nancy wanted to go with
them" (B5, 11/16/01 (Kinderlehrer)), and admitted [we] "want to avoid
court if at all possible" (B16, 3/1/02). Nancy was totally unable to obtain
help from her family or friends.
FN9. State psychologists warned SARC in a December 2001
evaluation (D3) thatNancy would suffer severe psychological abuse from
separation anxiety, waiting by the door for her parents to come for her, telling
the RCF operator Nancy may have been sexually molested in State care (D2).
Alto Daily News, contacted by the parents, printed four sympathetic stories in
late November 2001, panicking the police. (BIO, Bl 1) Police complained they
were "snooping around" asking questions about Nancy's whereabouts (B10-B11),
telling them they could not withhold information unless it was a criminal
matter. The paper was unable to find SARC's hideout (Bl 1, 11/29/01). The police
faxed deliberately false information provided by defendants Buckmaster, Kratzer
and SARC to the papers, alleging the parents to be something close tocareer
criminals, claiming "long criminal histories" or other preposterous claims such
as "arrest for assault on a police officer", etc. DA Hey's comments were
published by the paper, stating that the parents were certainly guilty of
intentional infliction of pain and abuse and undoubtedly would be convicted and
spend several years in prison. Shortly thereafter the parents were hastily
arrested on felony warrants right after defendant Buckmaster planted a phony
report from a fictional witness in her files, and then were able to bail out.
(BIO). The court set $100,000 bail, to keep the parents away from the press and
almost preventing them from further legal opposition to Nancy's State custody.
But the parents fortunately bailed out after one night in county jail and went
back to fighting for their daughter's freedom. DA Randy Hey abandoned his
absolute immunity by making prejudicial statements to the press.
After the parents' attorneys discredited the police version
of events to the Santa Clara County DA's office and her
doctor wrote the court a letter (El) rebutting their supposed allegations, the
DA knew or should have known there was no merit to these charges, (infra,
Four months after police seized
Nancy, March 2002, after APS was threatened with contempt, visits began one hour
per week, oppressively supervised by APS, at an outside visitation center to
strictly guard the location of her hiding place from friends and doctors. The
Golins observed Nancy displaying persistent unreported signs of sexual
molestation and drugging. She repeatedly begged her parents to take her home
with them by trying to pull them out the door with her or selecting her father's
car key out of his pocket and giving it to him, as she had always doneto ask to
be taken out.
F. SECRET STATE CONSERVATORSHIP PETITION
SARC and DDS proceeded in secret in
April 2002 to petition in probate to conserve Nancy and keep her in secret
detention, seeking permission to put her into a State hospital, without giving
the parents required notice of the proceedings against their daughter. Note in
the APS records show this was part of their scheme from the beginning. DDS
petitioned under Cal Hlth. & S. Code § 416.5 applicable only to abandoned
persons, seeking to avoid parental preferences. DDS and the Public Defender's
Office (PDO) attorneys protested on record in four monthly probate hearings
before probate judge Hon. Katherine Gallagher that it was impossible to notify
the parents, knowingly misrepresenting, their "whereabouts
were unknown," or that they had been "convicted of abusing Nancy" and were
in prison, despite the weekly visits with Nancy and the attorney
G.INTERIM CONSERVATORSHIP, CHARGES DISMISSED
August 2002, Gallagher ordered SARC to notify the unsuspecting parents of the
DDS conservatorship petition. They objected to it, rebutting the State's
un-founded allegations, and filed their own competing petition. The probate
investigator refused to qualify them, continuing to rely on a past investigation
of DDS based solely on misinformation she was given by SARC. Hon. Gregory Ward
finally heard this on October 15, 2002. The DA attended as a spectator (See
infra, p72) The Golins were unrepresented but were allowed by Ward to speak
articulately in great detail, repudiating APS's and SARC's
Ward felt unable to appoint the
parents while their criminal charges were stillpending, but appointed an
independent conservator for the Golins until charges were expected to be
dropped. The parents were able to discover in November 2002 that Nancy had
suffered serious injuries at the residential care facility including an
unreported and untreated broken collarbone, dislocated shoulder (L1-L2),
psychotropic drugging (Gl) and physical restraints. RCF records ironically
showed she wandered from them 138 times in 12 months (H4- H6), not reported to
the police. Nancy had on one occasion taken a closet pole to
break her bedroom window to try to escape. She had been taken by her SARC
caregivers to SARCapproved psychiatrist Dr. Hector Cerezo, misrepresenting her
behaviors and history to get him to prescribe Risperdal, an even more potent and
dangerous psychotropic medication to drug her "as needed" into a constant stupor
(Gl). He did not warn careworkers to monitor side effects that she suffered:
tremors, Parkinson's disorder, tardive dyskinesia [involuntary movements warning
signs of severe brain damage] never previously seen. Risperdal is FDA-listed
only for schizophrenia, not autism. It is barred for use with persons with
seizure conditions [FN10]. She had no neurologist for over a year because few
neurologists take MediCal. SARC is unwilling to pay for anything themselves, so
signs of tardive dyskinesia went unrecognized by her low-skilled caregivers. In
November 2002, the psychotropic drugswere discontinued by the stand-in at
parental insistence and her symptoms markedly improved.
FN10. Dr. John Friedberg, a leading neurologist consulted by the
parents, called these dopamine inhibiting medications "chemical lobotomy", and
"brain poison" and told them to get her off these drugs immediately. Cerezo
confirmed this view in trial (Ex S, pp 16-17). Martin instead deferred (Q9- Q10)
to a hearsay report by ER doctor Bason-Mitchell who admitted he knew nothing
about psychotropics and referred to SARC's own non-specialist
general practitioner Masada for authority
that the Golins were "uninformed" (S18-S32).
The false criminal charge
that had been dropped to a misdemeanor against Mrs. Golin was dismissed
completely in the Santa Clara County Criminal Division on January 28, 2003 on a
motion by the DA (11). The same false misdemeanor charge against Mr. Golin was
dismissed after pleading not guilty on August 4, 2003. Refer here to
Section IX, (infra, p 65) for factual details.
H.STATE TEMPORARYCONSERVATORSHIP IMPOSED
Golins expected their petition would be approved in probate and Nancy could
return home. Yet in probate a few days later Hon. Thomas Edwards moved temporary
conservatorship to the State pending a contested conservatorship trial between
parents and DDS. Edwards appointed opposing attorney, Santa Clara County public
defender Malorie Street ("Street") to represent Nancy. Street never conferred
with the parents. From the start, she did damage control for the State by
attacking the Golins. She appeared at opposing counsel table with State DDS
attorney Dean Stiles and SARC attorney Nancy Johnson, filing joinder motions.
Stiles-Johnson-Street had worked as a team on many such probate cases since
1995, in a consistent pattern and practice of defending State agencies
Street advocated for the
State to conserve Nancy, not the parents or other petitioners. She blocked Nancy's right to a jury. She objected
to Nancy being produced in court. She insisted that Nancy remain in the same RCF
where she was drugged and injured. Street argued the State had to conserve Nancy
to obtain her medical records; using this power, she shut down the parents'
discovery rights showing proof of State abuse on the excuse of Nancy's privacy,
at SARC's request (App., Exh. N, J, K). She argued for the State to conserve
Nancy to put her back on [brain injuring] Risperdal, asserting it benefited her
(see Chapnik declaration N1-N6). She got supervised visits dissolved by the
criminal court, reinstated by probate, orders restricting Nancy to Santa Clara
County and S ARC jurisdiction, that her parents could not take her to a doctor,
blocking her right to sue the State for injuries, and appointing her to
represent Nancy. Edwards granted these instant motions without showing good
cause or legal authority [FN11]. The certified hearing transcripts were severely
altered helping the State cover this up. Thus despite the dismissal of charges
the State took temporary conservatorship maintaining custody of
FN11. The parents' attempt in May 2003 to substitute an
effective non-conflicted private attorney for Nancy was denied by Gallagher.
Two weeks after Nancy was temporarily conserved by DOS
pending trial and Street's and SARC's demanded illegal drugging on Zyprexa
resumed, Nancy was rushed unconscious to San Jose Medical
Center, in serious condition with uncontrolled seizures vomiting up blood and
her entire esophageal lining in quarter inch chunks. This was a life threatening
disorder traced to the drugging in later testimony [FN12] Street's liability in
advocating this as an excuse to give Nancy to the statethus created further
conflicts of interest with her presumed client. The uncontrolled seizures caused
severe permanent brain damage, the loss of her entire esophageal lining, a
permanent precancerous condition, and huge esophageal ulcers (T15-T19). A San
Jose reporter found a caregiver was ordered by SARC never to take Nancy to ER's
when she had uncontrolled seizures, to prevent disclosures [FN13]. MediCal
records (J1-J5) finally disclosed just before trial in October that Nancy had
been charged for an ER visit on March 2, 2003 for an unreported skull fracture
and broken femur by a certain Dr. Tony Yuan, after which the parents were
blocked from seeing her for four months, but SARC obstructed discovery to any
evidence confirming the nature of this visit.
FN12. SARC concealed Nancy's Feb-March 2003 hospitalization when
they took control. SARC doctors lied about her condition; caregivers covered up
to police. The parents could not visit her to comfort her at the hospital. Nancy
could have died never seeing her parents again. Street covered up real
state abuse for months saying the parents were alarmists or liars
attacking their credibility. The parents
moved on an exparte emergency motion. Gallagher gave the parents a week to prove
Nancy was gravely ill, but denied a motion to compel discovery. SARC and Street
clamped a lid on their doctors (J5). Street sought out and counseled obstruction
to those served with subpoenas, alleging exclusive control of Nancy's records
and concern over her client's privacy at SARC's request (See Conner declaration
N7-N8). Parents instead substituted an affidavit of orthopedic expert Dr. Due
Nguyen (L1-L2). Gallagher denied the exparte motion. In May, subpoenaed records
surfaced confirming that Nancy had been given a life-threatening,
precancerous, nearly ruptured esophageal condition that had worsened seriously
from Zyprexa lowering her seizure threshold (T15-T19, SI9).
FN13. Najeeb Hasan, "Saving Nancy", San Jose Metro News,
April 28-May 4, 2004. Plaintiffs disagree with some of the disparaging
factual content in this article, but in this regard it is accurate.
I. CONSERVATORSHIP TRIAL: PARENTS V. STATE
October 2003, almost two years after Nancy was illegally seized from her family,
while she remained in State custody and control with the parents unable to
visit, a three-week court trial was held in Santa Clara County Superior Court,
HonWilliam Martin presiding. He was to decide if Nancy should be conserved and if so by whom, the parents or the State, (DOS,
The parents lacked counsel
and no longer had the several tens of thousands of dollars required to retain
one in such cases after being forced to dissipate their retirement funds in two
years of litigation. Mrs. Golin so objected to no avail, and with difficulty the
parents represented themselves. Both parents were personally knowledgeable on
the available evidence and put on an excellent case for nonlawyers. Mrs. Golin,
while intelligent and an excellent witness herself should nevertheless have been
represented by an attorney. Her courtroom demeanor, while admittedly very
difficult, that of a passionate caring mother instinctively fighting for her
child's welfare, and not that of an experienced trial attorney, was granted no
latitude in Martin's biased opinion (Q22).
The parents objected to Nancy being conserved arguing that it
was unnecessary living in her own home with her parents but if she were
conserved they should have first preference under Cal. Prob. Code § 1812. The court quickly disposed one of the
parents' friendly alternate candidates for conservator on suspicious procedural
grounds, displaying intolerance to any petitioner other than the State. The
other alternate folded under threat of personal attack by SARC.
Martin denied the parents' in limine challenge of
SARC's standing; the petitioner was the State DOS, not SARC. SARC was
represented by Johnson, a full partner in Berliner-Cohen ("BC"), a huge,
powerful personal injury and white- collar criminal defense
firm in San Jose. EC's improper motivation was clear from the start: to protect
their tortfeasing client SARC from injury claims and a fearedliability lawsuit
by appointing themselves Nancy's conservator, skewing the risk of erroneous
factfinding. Martin denied parents' challenge of attorney Street for conflicts
of interest. Street again blocked the parents' motion for a jury trial for their
daughter claiming she alone had standing to request this, and she did not
request it (Q4). BC played lead attorney for the State orchestrating SARC's
attack, tilting the playing field for conservatorship clearly favoring the
The parents won previously denied
right to require Nancy's presence in court as required Cal. Prob. C. § 1825, over the objections of the State, SARC
and Ms. Street. When Nancy Golin was presented to court, on her 33rd birthday,
she embarrassed the opposition by displaying such obvious affection for her
parents and they to her [FN14] that Martin and even Street backed off that there
had never been any question about the love and devotion that the parents had for
their daughter. He instead posed, who would make the better conservator in
Nancy's presumed best interests, the parents or the State? He thus explicitly
denied parental preference from the outset in competing with the State
explicitly contravening the US Supreme Court's rulings in family rights cases
such as Parham v. JR, 442 U. S. 584 (1979), cited by Mr. Golin,
(Q3), or Troxel v. Granville, 530 U. S. 57 (2000) establishing
deference to a parents estimation of his or her child's best
interests, state statutory due process guarantees embodied in Cal. Health & S. Code § 416. 5 and § 416. 23 and State
Supreme Court holdings in cases such as Bellino v. Superior Court of Riverside County, 137
Cal.Rptr.523 (1977), argued in Mr. Golin's motion for nonsuit. In fact, the
Martin court clearly appears to have applied the opposite presumption, that the
State was more capable and fit due to their putative professionalism despite all
their proven abuses.
FN14. On succeeding days, Street kept Nancy out of the court as
much as possible to avoid further embarrassment to the State's case, by having
her deprived of water many hours before court and given behavior modification to
leave the courtroom quickly to get water
Thirteen witnesses gave testimony for the parents. Only four
witnesses appeared for the State, and in each case, their testimony broke down
under crossexamination (S8-S10, S24-S30). The parents presented numerous medical
experts and family friends who observed and admired the family for years (Ml).
Mr. Golin unreservedly praised his wife's competence and devotion as a primary
caregiver and loving mother, testifying from personal knowledge she had never
neglected or abused Nancy, calling such charges ludicrous.
The medical experts called by the parents built up a
compelling foundation of evidence proving state abuse showing
that because SARC kept new doctors in the dark concerning her past medical
history to support their cover story that she had been abandoned, they had
subjected her to a life threatening injury and illness from drugging, and
substandard care. This included failure to continue a necessary regimen of
treatment of a past chronic hiatal hernia and esophageal condition that had been
was remission in her mother's care. They showed a pattern of chronic orthopedic
injury (LI) and abuse in state care, dental neglect, injury due to improper
drugging (Gl), and caregiver subservience to SARC (Kl). The parents presented an
MP3 video of Nancy displaying involuntary tremors, lip pursing, symptoms of
tardive dyskinesia, and another video displaying Nancy's unmistakable
despondency at having to return to the RCF after a visit with her
All evidence of abuse by SARC and
Ms. Street was whitewashed by Martin. Critical witnesses such as
gastroenterologist Fair were allowed to evade subpoenas when Martin prematurely
rested the parents' case [FN15], imposed arbitrary time limits on key testimony
[FN16], denied requests permitting many key witnesses from appearing, and kept
out damning evidence against the State. The transcript showing these events is
out of reach by the high cost and the court's refusal to provide it or any
alternative settled statement procedure.
FN15. Street was seen in the hallway during breaks openly
petitioner's witnesses during trial (Exh. S,
p34), such as Drs. Morgan and Cerezo, after which Morgan lamely tried to
disparage the Golins in his testimony, but backed down on cross examination
(Exh. S, pp33-34). Martin refused to order Street's intimidation stopped, and
cites only Morgan's initial disparaging remarks (Exh. Q, p9) as evidence of the
parents supposed inability to get along with "most professionals". The parents
relationship with both Morgan and Cerezo was actually quite cordial. The parents
got alone fine over a long period of time with most knowledgeable professionals
as attested by the second declaration of expert witnesses including attending
physician Dr. Kaplan (M1-M2), and with orthopedist Dr. Nguyen (LlL2) who both
testified consistently with this declaration, and neurologist Dr.
FN16. Martin cut parents key expert orthopedic witness Dr.
Nguyen to only 20 minutes, refusing to extend the session past 4:30pm "quitting
time" and not one minute more leaving many unanswered questions, when Nguyen had
left an office full of patients and sped to court to testify. Then Martin
misconstrued his evidence on a shaky premise (S32) "finding" that the shoulder
was not really dislocated (Q7) even though everyone could easily see it was out
of its socket from the x-rays.
The parents endured an inquisition by the Court into their
finances and assets, normally not required for close relatives. They disclosed
their fine recently built home in a respectable neighborhood in Merced County,
70 mi. from Nancy'sRCF [FN17]. Prior to November 2001, they had sufficient cash
to purchase a house for Nancy. These resources were squandered fighting the
FN17. The parents moved 90 miles to Merced County in July 2002
to leave SARC territory and avoid continued police harassment.
SARC's staff psychologist Ms. Mulhoe testified that Nancy
would benefit from a limited conservatorship in RCF because it "facilitated
socialization with her peers" [FN18]. She idealized the notion of being
segregated with other retarded people, saying that it was good for people to
socialize with their peers (defined as DD), objecting to the idea that Nancy
could "socialize with lawyers and judges". The parents' unique understanding of
Nancy's emotions, wishes and idiosyncrasies from their lifelong observations of
her posture, expressions, gesture and behavior told them she hated to be
segregated from the community in the company of retarded persons in state
programs. It made her feel inferior, categorized and discriminated. Martin
faintly criticized Mulhoe's contention, stating that "within reason, Nancy
should occasionally be exposed to persons and circumstances in addition to day
programs, residential care facilities, and her "peers".
(Q18) [Carefully! not too much!] which totally contravenes Title II of the ADA's
integration mandate (42 U.S.C. § 12132) [FN19]
FN18. Ironically, young Ms. Mulhoe opined from SARC records that
it was Mrs. Golin, not SARC, who had refused desperately-sought services
that could have benefited Nancy when she was younger (S12-S15).
FN19. Title II of the ADA, 42 U.S.C. § 12132, services "should be provided in the
setting that is least restrictive of the person's personal liberty." The
Attorney General adopted the integration mandate, which requires public entities
to administer services "in the most integrated setting appropriate to the
needs of qualified indi-victuals with disabilities." 28 C.F.R. § 35.130(d). The preamble to the United States
Attorney General's ADA Title II regulations defines that language to mean "'a
setting that enables individuals with disabilities to interact with non-disabled
persons to the fullest extent possible."' 28 C.F.R. Pt. 35, App. A, p. 450
Martin's Statement of Opinion (Q) which at first seems
overwhelmingly condemning to the parents, was clearly improperly relied on in
the denial of the parents request to act as guardians ad litem in the
present case in District Court) by Judge Alsup (X2). It must
be read very carefully, because on fair reading it can be seen to be highly
deceptive and entirely lacking substance, and he preposterously brushes aside
any of the evidence of state abuse ("never rises to the level of abuse or
neglect in state care" (Q8) even when speaking of an unexplained black eye
shown in photographs how many parents could get away with that?) He never
actually says that\\zfinds a history of abuse and neglect by the parents,
just reiterating SARC and the PDO claim that there is one (Q8). He merely
recites the state's inflammatory repetitious groundless accusations that they
criticize them for some unsupported "history of abuse and neglect". (Q9)
"...DOS, SARC, and the Public Defender criticize the Golins", (Q9), or
"DDS, SARC, and the Public Defender also contend.."(Q13) without
referring to a single reasonable inference or the State's complete failure to
meet its burden of proof of any such instance of abuse or neglect at trial. SARC
had to dig back 20 years and more into their records trying to find any hearsay
or gossip trying to establish that claim, ignoring reams of reports praising
Mrs. Golin's care. Moreover, there was never any parental discord at all when it
came to Nancy's care; the parents were always united on this subject. Nor
"substandard care"; on the contrary (Q9).
Martin's "clear and convincing" standard cannot be justified.
His principal findings relied entirely on now-excludable testamentary hearsay
evidence formerly allowed by the Cal. Evid. C. § 1270) business records (hospital records) hearsay exception (see e.g. mention of
Bason-Mitchell and Hay ward at Q7, QIO, Ql 1) to trump live testimony. Records
relied upon by Martin in his conclusions exclusively cited highly erroneous
hearsay by witnesses who never appeared or testified, rather than those that
did, and therefore could not be confronted or cross examined. This evidence rule
formerly condoned under the old Ohio v. Roberts, 448 U.S. 56 (1980) rule was since then
effectively overturned by the May, 2004 Supreme Court's new rule held in Crawford v, Washington, 124 S.Ct. 1354 (2004),
reinvigorating the Sixth Amendment's (U.S. Constitutional Amendment VI)
Confrontation Clause, and for good reason as amply shown by this instant case.
Martin could never have reached any of his findings without committing even more
obvious mendacities under the new rule of Crawford, extended by analogy
with In re Gault 387 U.S. 1 (1967) and In re Winship, 397 U.S. 358 (1970) to any nominally civil
proceeding where a person faces a loss of personal liberty. Martin kept out
evidence and testimony of medical error and abuse after hearing a valid offer of
proof, and then claimed in his opinion that there was no such admissible
Martin's only serious
contention of abuse centered on his most outrageous "finding" that the doctors
that had misguidedly slashed Nancy's Phenobarbital seizure medication at
Stanford Hospital the week she was taken, without the benefit of any medical
history, throwing her into a week of seizures until a neurology con sult was called to restore her long prescribed
dosages (T13) they were in fact the ones that were correct in their estimation
of Nancy's medication levels as found in non-confrontable hearsay testamentary
evidence [FN20] (Q10, Ql 1), not Nancy's permanent board certified neurologists
(T20), or Stanford's own neurology consult (T14). This is an unreasonable
inference given the resulting seizures, the only attempt to justify any finding
of abuse, claiming that Nancy's mother had been overdosing her daughter. Had any
of these medical reporters Martin relied upon such as Hay ward, Masada or
Bason-Mitchell actually been made to appear, as did plaintiff/appellants' expert
witnesses, they would have not even passed qualification as expert witnesses in
these fields. Martin then proceeded from this faulty finding that Mrs. Golin's
special knowledge of her daughter was "misinformed" [by medical experts] to
conjure a scattershot of other increasingly preposterous findings such as
"educate themselves on various medical topics from the internet" ("informed
consent"?) (Q11), "dangerous non-compliance with physicians' directions as to
medication" (none) (Ql 1) "the Golins' mistaken over confidence in their limited
medical knowledge" (confirmed by expert witnesses) (Ql1-Q12), "willingness to
shop around for a physician who will accommodate their demands rather than
confront them"(she had only two neurologists in ten years) (Q12) "Mr. Golin's
agreement with or acquiescence to Mrs. Golin's misinformed medical
decisions" (Mrs. Golin made no medical "decisions"
misinformed or otherwise) (Q12), or "Inability to get along with most
professionals" (never with actual professionals), and absurdly faulting the
mother for instances where she was overcautious and overprotective
(merely suspecting "tainted salmon"(Q14) or "rubbing alcohol"
(Q15) ("lofty standards [FN21] ") (Ql 1) all based on written hearsay records
contradicted by live evidence. He also said that Nancy didn't seem aggressive,
so the drugs must be working (App, infra 13a). Nancy was never aggressive
in the first place, as her parents had testified. Martin even said Nancy's did
not have a dislocated shoulder or perhaps the broken collarbone was
merely an accident in spite of x-rays showing them plainly apparent even to the
untrained eye and expert testimony (Q7, LI).
FN20. Martin cites, "The Stanford records, Exhibit AL,
express concern about the critically high levels of Phenobarbital found in Nancy
Golin upon admission on 11/15/01." This claim is nonsensical because it is
totally controverted by the evidence admitted at trial, presented in this
Appendix (T14), "level was Rood at time of admission".
FN21. Martin here expressing disapproval of lofty standards in
favor of no standards at all for treating handicapped persons, as long as
someone has some professional degree, which only means they are working for
Her parents testified that Nancy had suffered a burn injury
in 1995, a tragic event they could not have foreseen, caused by a dress made of
a now-banned highly flammable fabric. The unsuspecting parents were
closely monitoring her contrary to Martin's presumption (Q14) [FN22]. Dr. Jerold
Kaplan testified against any allegations of abuse or neglect (El,
FN22. The DA's office twice dropped prior investigations,
finding this was an accident (B4, 5/7/01). No one prior to the end of the
trial not even Street or the DA, had ever contended this was more than a
terrifying accident or blamed the distraught parents.
Martin denied the parents'
petition in favor of the State's for six out of seven requested powers of
limited conservatorship over that of the parents, "without conditions or
limitation" (Q17) and for an indefinite period (R5), starkly contradicting
SARC's putative goals of "maximizing self-reliance and independence" (T10-T11).
These powers prevent any future opposition to SARC abuse. A perfunctory one-year
review required by Cal. Prob. C. § 1850 in 2004 relied on by Judge Alsup in his
opinion (Exh. X) was never held.
J. SUCCEEDING PETITIONS FOR APPEAL
parents filed for a new trial with affidavits listing extensive abuses of discretion, citing admitted evidence, errors at law, and
irregularities at trial, a change of the trial opinion based on findings not
supported by the evidence, judgment not supported by the findings (Exh. S).
Martin denied it in January 2004 [FN23]. The Parents included this in their
Request for Judicial Notice in the court below, in the record
FN23. The State at that hearing said that Nancy now has an
undisclosed life threatening condition justifying their continuing
custody; Martin thus ordered that State conservatorship orders be imposed during
the pendency of the appeal contravening parents' cited Gold v. Superior Court of Mann County, 90 Cal.Rptr.161
In December 2003, the parents filed a notice of appeal from
the conservatorship orders in the State Court of Appeals for the Sixth District.
That appeal was just dismissed for failure to procure the record necessary to
appeal the state court decision, and consequent failure to file an opening
brief, December 2, 2004, just as the parents were starting to procure the trial
transcripts on their own.
The parents filed
and were granted leave to proceed in forma pauper is (IFP) by the Court
of Appeals. They then moved the court below to provide transcripts citing this
Court's equal protection analysis of M.L.B, v S.L.J., 519 U.S. 102 (1996). That request was twice
denied by the State sixth District Court of Appeals without comment,
contravening the US Supreme Court's holding [FN24]. An alternate settled
statement proceeding originally allowed by the state appellate court, which the
parents were entitled to, was denied by Martin, leaving no alternative means of
appeal with the use of a trial record. We contend this trial record would
completely refute the erroneous findings of Judge Martin's Statement of
Decision. We have now begun to struggle to procure them.
FN24. The parents analogized Conservatorship of Roulet,
23 Cal.Sd 219 (1979) contending Nancy had the same rights to a free transcript
on appeal as an indigent criminal defendant, as both face a deprivation of their
K. CURRENT STATUS OF NANCY GOLIN
rapidly destroying Nancy. Her parents fear for her health and life. She is
suffering from tardive dyskinesia from drugging (tremors, involuntary lip and
tongue movements, head contracted towards shoulder, and muscle rigidity). Her
hand often shakes from tremors due to the long term off-label use of
psychotropics. The parents cannot have other doctors see her or obtain records
from her caregivers. She still has seizures, but to maintain the pretense the parents negligently failed to control them [FN25],
seizures are well concealed. SARC general practitioner Masada, who improperly
resumed Zyprexa resulting in her being hospitalized in serious condition in
February-March 2003 and lied about her condition, is still supervising her care.
Her drugging is causing her edema, circulatory and heart failure. She urgently
needs to be seen by a cardiologist, yet to avoid the damaging appearance of any
urgency, doctor appointments are always scheduled as non-emergency routine
office visits, and follow-ups are haphazard.
FN25. All epileptics have occasional breakthrough seizures
despite proper medication (S41).
She is now bent over like an old woman and has imminent tooth
loss from 20% bone loss due to osteoporosis due to the resumption of Dilantin
for anti-seizure medication in November 2001 that the Golins warned against
[FN26]. Where she used to appear completely normal in public and be able to run
and hike all day and feed herself (J2) she is suffering from muscle rigidity and
contractures from the psychotropic drugging to the extent that she can only walk
and move very slowly. She still has had no urgently needed dental care for three
years. The parents see signs she is still being physically and chemically
restrained behind their backs. The parents are unable to protect their daughter
in any way and are either lied to or told to mind their own
FN26. When S ARC dentist Santos echoed parents' earlier warnings
of imminent tooth loss from Dilantin August 2003, SARC'S neurologist Gaskins
advised switch to Phenobarbital alone, just as Mrs. Golin's neurologist did;
SARC's nurse Wendt intercepted her to avoid vindicating Mrs. Golin.
It is mental cruelty to Nancy to be separated from her
parents (E2). Nancy is always delighted to see her parents come and depressed to
see them leave. Her security and innocent trust are battered when her parents
appear, seeming indifferent to her plight by not responding to her desperate
efforts to be taken home. This creates the appearance in her immature mind of
rejection and collaboration of her parents in dumping her in State custody. SARC
thus forces the parents to become accomplices in SARC's emotional abuse of
Nancy. Except for caregivers, she mostly sees only retarded
SARC has done its utmost to sever
family ties, barring parents at birthdays, Christmas, Thanksgiving, Easter,
Halloween and family outings. SARC pressures careworkers and doctors to attest
that the parents were disruptive or demanding, or to call the police or security
if they show up, or just to claim they were called when they weren't, or pick
fights with the parents, or twist accounts of events, for no reason at all even
when relations were quite cordial, in order to continue
concocting a false record. Visits have been terminated for many months at SARC's
whim. Martin approved SARC-requested authority to impose supervised visitation
[FN27] (P1-P3). SARC will not approve any neutral supervisor and will not agree
to unsupervised visits, contrary to what is in Johnson's letter. SARC routinely
incites arguments as justification whenever it appears the time has come to meet
any of their promised goals, purely an exercise in dominance. SARC limits
parents to one 4hrs/wk scheduled visit at Nancy's RCF only. The parents can walk
outside with her for 2hrs/wk. only with a chaperone, but may not take her home.
SARC agitates to further limit or terminate visits. The parents have not seen
their daugh ter without supervision for three years and no end is in sight,
despite SARC's original "plan". The parents' innocence does not matter. Neither
the court nor SARC seriously attempt to justify these restrictions which seem
only centered with SARC's obsession with preventing the parents from taking her
to independent doctors or discovering her true condition (Exh. P), saying only
"supervised visitation should continue for some period of time while the
Golins adjust to the reality of a DDS permanent conservator ship (PI)". This
is simply retaliation and triumphal muscle flexing against the parents using
their daughter as a sword, for opposing SARC, and one way to stubbornly defend
discredited past contentions without which their entire justification dissolves.
Clearly these are Eighth Amendment (U. S. Constitutional Amendment VIII) violations that cannot remain unnoticed by the Federal
FN27. A thorough search of cases and statutes found no available
authority for a court to impose contact restrictions between consenting adult
family members under the applicable codes or cases, and we contend there is
none. The only authority is SARC's power to control social contacts (R4#4):
SARC's exercise barring familial association here is unconstitutional under the
First Amendment (U. S. Constitutional Amendment I).
FACTS RELEVANT TO ISSUES PRESENTED
The most important fact to be
presented is that at no time did either parent ever abuse, neglect, abandon,
mistreat, or fail to care adequately for their beloved daughter Nancy, with love
and devotion far above the call of duty and more than ample medical care,
clothing, food and most importantly love, affection, and tireless devotion. No
competent court could ever find otherwise, without serious abuses of
SUMMARY OF ARGUMENT
The court below erroneously granted
defendants' motions to dismiss for failure to state a case under FRCP Rule 12(b)(6) after a single hearing, without granting
appellant/petitioner's motions for leave to amend even once, without hearing any
evidence, claiming that amendment would be futile.
We will show that proposed amendments
would not have been futile, and that therefore dismissal without leave to
amend or furnishing a notice of deficiencies, especially for a pro se litigant,
was an abuse of discretion to be reviewed de novo.
The court below showed bias in favor of state defendants and
against pro se litigants. Judge Alsup refused to follow the required due process
to defeat his 28 U. S. C. § 144 challenge. It also erred finding that the
parents lacked standing to represent their retarded adult daughter's claims as
next friends despite clear qualification under Whitmore v. Arkansas, 495 U. S. 149 (1990) even though
the state is named as a defendant and has abused her and refuses to act to
adequately protect her legal rights. We will show the Court below refused to
accept jurisdiction on erroneous grounds that this case was barred by
Rooker-Feldman and Younger abstention doctrines, and ignoring that this Court
could exercise collateral jurisdiction due to 28 U. S. C. § 1341 and. Mitchum v. Foster, 407 U. S. 225 (1972), granting
original jurisdiction over federal civil rights and civil rights conspiracy
claims. Finally we will argue that the court erred by hastily dismissing the
parents own claims for malicious prosecution and tort damages based on an
incomplete understanding of the facts and the law.
THE COURT BELOW ERRED BY DENYING PRO SE APPELLANTS FAIR OPPORTUNITY TO BE NOTIFIED OF DEFICIENCIES AND OPPORTUNITY TO AMEND ORIGINAL
It is well established 9th
Circuit law to be clear error and an abuse of discretion for a District Court to
deny a pro se litigant a fair opportunity to be notified of any defects
in a complaint and be afforded a fair opportunity to amend under FRCP Rule 15(a), Armstrong v. Rushing, 352 F. 2d 836, (9th Cir. 1965), see
also Noll v. Carlson, 809 F. 2d 1446 (9th Cir. 1987),
Potter v. McCall, 433 F. 2d 1087, 1088 (9th Cir. 1970),
Lopez v Smith, 160 F. 3d 567 (9th Cir. 1998), over'd
on other grounds and reviewed at 203 F. 3d 1122. A pro se litigant must be granted leave
to amend his or her complaint unless it is "absolutely clear that the
deficiencies of the complaint could not be cured by amendment" Broughton v.
Cutter Laboratories, 622 F. 2d 458, 460 (9th Cir. 1980) (Per Curiam).
Considering policy of liberality behind Rule 15, a court which fails to even consider motion to amend,
much less grant it, has abused its discretion. Marks v Shell Oil Co. (1987, CA6 Midi) 830 F2d 68, 9 FR Serv
3d 593. No matter how unlikely it may seem that plaintiff will prove its
entitlement to relief, Federal policy favors dispositions on proofs rather than
on pleadings; plaintiff should be granted every opportunity to cure defects in
its pleadings by amendment no matter how unpromising the initial attempt. Sixth Camden Corp. v Evesham (1976, DC NJ) 420 F Supp
709. Mandate that leave to amend be "freely given" is to be heeded. Roloffv Arabian American Oil Co. (1970, CA2 NY) 421 F2d
Note that a party
is entitled to amend pleadings once "as a matter of course" at any time before a
responsive pleading is served. See FRCP Rule 15(a); see also Lipton v. Pathogenesis Corp., 284 F. 3d 1027, 1039 (9th Cir.
2002); Allwaste, Inc. v. Hecht, 65 F. 3d 1523, 1530 (9th Cir. 1995)
(noting motion to dismiss is not a responsive pleading); Doe v. United States\ 58 F. 3d 494, 496-97 (9th Cir.
Here, however, the District Court
held only one brief hearing on motions to dismiss for failure to state a case
after briefing by both sides, on March 25, 2004, granting dismissal on FRCP Rule 12(b)(6) motions by several appellees, issued
essentially no notice of any deficiencies in appellants' complaint and granting
no leave to amend whatever [FN28], and provided little opportunity to argue the
FN28. While the dismissal was styled by the District Court as a
dismissal of a "First Amended Complaint", this "First Amended Complaint" was
never actually amended but merely corrected for a filing mistake and there are
actually no material differences between this original and the version
which was used. This version was accepted and construed by all parties as
actually the only operative original complaint that was considered in all the
defendants' pleadings, (Exh. U, Docket #21, entered 2/4///04) a sort of "second
original complaint", as noted by Judge Alsup himself (X3, fn2).
While Franklin v. Murphy, 745 F. 2d 1221 (9th Cir. 1984) carved
out specific exceptions to the holdings of Armstrong, supra, allowing
dismissals characterizing the complaint to be "frivolous" [FN29] under 28 U. S. C. § 1915(d) when the plaintiff is proceeding in
forma pauperis (IFP), these exceptions are inapposite to the present case
for two reasons: 1) Appellants are not proceeding IFP, and 2) the
dismissal occurred long after service of process.
FN29. As Judge Alsup did state in oral argument, (VI9, 120).
II. THE COURT BELOW SPECIFICALLY ERRED BY FAILING TO
GRANT PETITIONER'S REQUESTED LEAVE TO AMEND ORIGINAL COMPLAINT TO A VOID ROOKER
FELDMAN BARS TO JURISDICTION
Alsup in his Statement of Opinion mischaracterizes this case as "the
second in a series of federal collateral attacks on a state conservatorship
proceeding" (Exh. X, pi, line 19). He continues, "Mr. and Mrs. Golin
filed the instant suitseeking, in essence, to reverse the order of the probate
court appointing the state as Nancy's conservator and to restore Nancy to their
custody" (Exh. X, p3, lines 2-3).
Plaintiff-Appellant and father Jeffrey Golin proceeding
pro se without counsel filed this original complaint
on October 23, 2003, erroneously mixing valid federal constitutional questions
under 42 U. S. C. § 1983(5) and valid tort claims for damages, with
relief which would require the overturn of state court conservatorship
decisions. His understanding improved on further study that the equitable,
injunctive and declaratory relief sought in his Section XXVI of his complaint is
subject to bars by the Rooker-Feldman abstention doctrines and sought to
separate out this relief to a different matter. Petitioner refiled a companion
28 U. S. C. § 2254 Habeas petition after exhausting state
remedies as required in the State Supreme Court on December 29,
When various defendants filed motions
for dismissal arguing Rooker Feldman and Younger doctrines, petitioner further
understood this error and sought to narrow the scope of this complaint to the
substantial federal constitutional questions in this civil rights action and
tort damages which were not barred by appellate review of the state
conservatorship petition, seeking instead to appropriately review the erroneous
findings of fact and judgments unsupported by the evidence with the federal
Habeas petition. Plaintiffs during February and March of 2004 moved the District
Court for leave to amend the complaint to remove any issues that would appear to
relitigate the decision of the state, even though valid exceptions to
Rooker-Feldman exist here that we also argue may make this unnecessary. He
repeatedly stated in his Motions our intention to separate out these matters by
amendment. These defects were therefore curable by
amendment, and amendment had already been sought in nearly all of
Plaintiffs' Briefs in Opposition to Motions to Dismiss. Petitioners motions to
cure these defects by amendment were ignored by Judge Alsup who ruled that
amendment would be futile and dismissed this action without leave to amend. This
was a material error by the District Court.
Judge Alsup is ducking very substantive federal questions by
invoking the Rooker [FN30]-Fe]dman [FN31] and Younger [FN32] abstention
doctrine, which are inapposite here, as we shall argue (See, infra,
FN30. Rooker v. Fidelity Trust Co., 263 U. S. 413 (1923)
FN31. District of Columbia Court of Appeals v. FeWman, 460 U. S.
FN32. Younger v. Harris, 401 U. S. 37 (1971)
The rational test for whether or not this lawsuit is truly
separate from the state conservatorship matter or inextricably intertwined may
be settled by answering the pivotal question: If the conservatorship had been
awarded to the parents instead of the state, would there then still be any
causable action pursued by the parents against the state for federal civil
contend, absolutely yesl This litigation effort started months before the
commencement of the conservatorship trial when the outcome was still unknown
[FN33] . Even if appellants had won the conservatorship, we would have sued the
state for the nightmarish constitutional wrongs committed since the period when
Nancy Golin was originally illegally kidnapped and held hostage under color of
law by the state without any legal authority as a flamboyant abuse of state
process aimed at stopping this very sort of lawsuit against themselves,
continuing right up to the present day. Many if not most of the offenses
complained of here occurred long before the state conservatorship was
imposed. (See, infra, p53) Judge Alsup and the state have thus conflated
this civil rights lawsuit with the concurrent petition formerly before this
Court for Writ of Habeas Corpus (No. 04-15922) also on appeal to the US Supreme
Court in this regard, which he cites in his order (X3, fn3). This is a separate
action in which we did seek here with substantial authority to review the
erroneous decisions of the state court, as is "expressly authorized"
FN33. Judge Alsup mistakenly infers from the coincidental timing
of this lawsuit, that Mr. Golin filed this suit to appeal the adverse outcome of
the state court conservatorship and the subsequent filing of this lawsuit (X3,
fn2). In fact, deeply infuri-
Congress under 28 U. S. C. § 2241 (See infra, p54).
III. THE COURT BELOW EXPOSED ITS BIAS TOWARDS THE STATE
AND AGAINST PRO SE LITIGANTS, AND PROCEEDED DESPITE A VALID DISQUALIFICATION
CHALLENGE UNDER 28 U. S. C. § 144.
During the proceedings of March 25, 2004, Judge Alsup in
abruptly dismissing petitioner's complaint for failure to state a case,
unexpectedly blurted out shockingly biased statements, against pro se litigants
and favoring the state. In a nut-
these injustices to his daughter and motivated by his profound respect for the
Constitution, Mr. Golin started interviewing civil rights attorneys for this
case in February 2003, long before any state court decision. He hired attorneys
in February and July, 2003 to pursue it. When they dropped the ball, he then
studied for months on his own to learn how to file such a civil rights lawsuit
pro se. Given the fact that he had no previous legal experience it should
be apparent even to Judge Alsup that Mr. Golin could not possibly have slapped
this complaint together out of thin air in only a few days shell, he stated with
deliberate naivete that "if [the petitioners] had any kind of case they would
have no trouble whatever getting a pro bono attorney, and that since they did
not have an attorney there must be something wrong with their case". This
means Judge Alsup presumes pro se litigants have frivolous cases. He
extensively praised the Attorney General and expressed unquestioning confidence in the state. He then expressed blind
faith in the deliberations of the state trial and appellate courts, implying
thus that no further inquiry was necessary to presume the petitioner's case to
requesting that Judge Alsup recuse himself for prejudice and bias during the
proceedings. Judge Alsup declined and refused to refer the matter to another
judge for a disqualification ruling, denying that he had shown any kind of bias.
Plaintiffs then, filed a formal motion April 1, 2004 (Exh. W) to disqualify
Judge Alsup on this and other substantive grounds, seeking to have the
disqualification matter heard by another judge as provided for by 28 U. S. C. § 144, citing Liljeberg v. Health Services Acquisition Corp. 486 U. S. 847
(1987) [a judge may not rule on his own disqualification], Aetna Life Ins. Co. v. Lavoie 475 U. S. 813 (1986). The
court below ignored this challenge, terminating the motion when the file was
closed. Judge Alsup subsequently filed his Judgment on April 6, 2004,
terming the motion as "frivolous".
Petitioners found that the objectionable statements heard in
court supporting their contentions of Judge Alsup's partiality were missing or
altered in the reporter's transcripts. We filed our FRAP 10(e)(2)(C) Motion for Correction of Transcripts, on
October 4, 2004 before this Court. For brevity, more complete details of the
facts, contentions and arguments are presented including a
memorandum of points and authorities are presented there.
We therefore contend that the hasty judgment of the court
below was either strongly influenced by its own bias, or improperly influenced
by the biased and erroneous opinions of the state court judge then stayed by
appeal, or both.
IV. THE COURT BELOW
ERRED HOLDING PARENTS HAVE NO STANDING TO REPRESENT THEIR DEVELOPMENTALLY
DISABLED DAUGHTER AS NEXT FRIENDS OR AS GUARDIANS AD
Judge AIsup ruled that the
parent-plaintiffs have no standing to represent their adult retarded daughter in
this action, stating that they failed the test for next friends or guardian
ad-litem standing. This was a fatal error that goes to the root of this entire
matter, as it denies Nancy any protection of her legal interests, and results in
her being turned into what the U. S. Supreme Court in Parham v. JR, 442 U. S. 584 (1979) termed, "a mere
creature of the state" (Id. at 603).
US Supreme Court in Whitmore v. Arkansas, 495 U. S. 149 (1990), established a
three-pronged standard that the parents clearly meet as next friends. First, as
Nancy is a prisoner of the State and an incompetent adult lacks the capacity to
represent her own interests she has an "adequate explanation as to why [she]
cannot appear on her own behalf" (Id. at 163). Second, the parents are
uniquely qualified as devoted lifelong caregivers as being "truly dedicated
to the best interests of the person on whose behalf he seeks to litigate"
(Id. at 163). This was a finding which even Judge Martin volunteered on the oral record, that there was no question that
the parents were truly devoted to their daughter. Thirdly, the parents
unquestionably have a very "significant re lationship with the real party in
interest"(Id. at 164) having served as her competent devoted caregivers for
essentially her entire life.
roles of a conservator are different from the role of a next friend or a
guardian ad litem, and require different qualifications (see "Role of the Attorney/or the Alleged Incapacitated Person", Joan O'Sullivan, 31 Stetson L. Rev. 687, Stetson Law Review,
Spring 2002) The role of a conservator is to protect the welfare of the
conservatee, whereas the role of the guardian ad litem or next friend is
to protect the legal rights of the conservatee, and only for an
Judge Martin never reached a
finding of the parents' qualifications to serve as next friends or guardians
ad litem, or that they would fail to meet any of the three Whitmore
standards. On the contrary he stated in the record that they seemed to be truly
devoted. Therefore no state court ruling need necessarily be overturned to find
the parents qualified to act as guardians ad litem or next friends.
Furthermore the District Court failed to proceed to the question of who should
serve as guardians ad litem to protect Nancy Golin's federal claims if
the parents were disqualified.
Thus her most
basic First Amendment (U.S. Constitutional Amendment I) rights of familial association and liberty may be violated at will by
the State if no other interested non-conflicted party may represent. The US
Supreme Court's guarantees of her constitutional right to refuse anti-psychotic
medication in Washington v. Harper, 494 U.S. 210 (1990), and recently
revisited in Sell v. U.S., 539 U.S. 166 (2003) [FN34], rights that are
available even to those who unlike Nancy have been diagnosed with mental
illness, and her right to safe protection in State custody in Youngberg v Romeo 457 US 307 (1982), are mere empty
promises in her case without her right to continued protection by her family
being also constitutionally protected under the due process
FN34. See also "The Right to 'Just Say No': A History and
Analysis of the Right to Refuse Antipsychotic Drugs" Dennis E. Cichon, 53 LALR 283 (Louisiana Law Review) (1992), and "The Right To
Refuse Antipsychotic Drug Treatment And The Supreme Court: Washington v.
Harper", Jeannette Brian, 40 BFLR 251 Buffalo Law Review, Winter 1992
Two cases cited by the County in Docket #23, 2/6/04
actually cut directly on point against the defendants' favor. In United States v 20.64 Acres of Land, 795 F.2d 796 (9th Dist.,
1986), this Court held:
an incompetent person is represented, it is only where the representative refuses to act or whose interests conflict with the person
represented that the incompetent may sue by next friend." (Id. at 805) (emph.
But that is exactly the situation we
find here. The State has a conflict of interest, because they themselves are
named as defendants here, so to act would mean they must sue themselves for the
past and present torts alleged. They have refused to act and are unlikely to act
since the true purpose of this conservatorship is a flamboyant abuse of process
to pre-emptively defend against a liability suit against themselves such as this
by appointing themselves as Nancy Golin's exclusive legal representatives and
supposed protectors, after having essentially kidnapped her, abused her civil
rights, and injured and traumatized her Furthermore
" [ajlthough the court has broad discretion and need not
appoint a guardian ad litem if it detennines the person is or can be otherwise
adequately protected, it is under a legal obligation to consider whether the
person is adequately protected". See Roberts v. Ohio Casualty Insurance Co.,
256 F.2d 35, 39 (5th Cir.1958)."(id at 805)."
Secondly, the State's reliance on T. W. v Brophy 124 F.3d 893 (3rd Dist., 1997) during oral
argument (App., Exhibit V, p 7-8) is misplaced. The County misreads T. W. to
hold that the parents cannot "sidestep" the State's appointment of them as
general representatives in Federal Court for the purposes of this lawsuit, even
when it is absolutely clear that they have a direct conflict
of interest. The discussion in T. W. (Id., at 895, 896) is highly recommended
for review of the general topic.
problem for the T. W. plaintiffs was that they failed both the second and third
prong of the Whitmore test, being found neither to be "truly dedicated" nor
having any "significant relationship". The 3rd Circuit considered them
"ideologically motivated" rather than having a "compelling interest", and thus
sought a compromise. Furthermore,
[next friend and guardian ad litem] are essentially interchangeable, but
"nextfriend" is normally used when the child [or mental incompetent] is the
plaintiff, and "guardian ad litem" when the child is the defendant....[next
friend] can be challenged as not being a suitable representative, just as a
guardian ad litem can be. Garrick v. Weaver, 888 F.2d 687, 693 (1C?1 Cir.] 989)...
If the general representative has a conflict of interest (for example because he
is named as the defendant in the child's suit), or fails without reason to sue
or defend (as the case may be) the child may with the court's permission sue by
another next friend, or the court may appoint a guardian at litem for the child.
In re Chicago, Rock Island & Pacific R.R., supra, 788 F.2dat 1282;
Ad Hoc Committeeof Concerned Teachers v. Greenburg #11 Union Free School District,
873 F.2d25, 30-3J (2nd dr. 1989), Chrissy F. by Medley v. Mississippi Department of Public Welfare,
883 F.2d 25 (5th Cir. 1959); Adelman ex rel. Adelman v. Graves, 747 F2d 986 (5lh
Cir, 1984); Roberts v. Ohio Casualty Ins. Co., 256 F.2d 35, 39 (5th Cir.
The second problem for
the T. W. plaintiffs was that their suit was not a § 1983 suit as the present instance so Article 5 expressly
authorized grants of jurisdiction under § 1983 and as held in Mitchum v. Foster, 407 U.S. 225 (1972), as argued herein
in §§ VI(B)(7) (infra, p53),VII(B)(m/ra, p55) which apply here were
lacking in T. W. A third distinction was that T. W. actually
was in fact a child custody matter properly encompassed by the
domestic relations exception, so that jurisdiction was properly referred to the
forum state, as the County appellee argues should apply here also. But that
argument depends on whether the domestic relations exception applies to an adult
probate conservatorship case such as this, and we contend that it may not. As we
argue here in § VII(B) (infra, p55), the domestic relations exception has only
been applied once in Hemon v. Office of Public Guardian, 878 F.3d 13 (1st
Cir. 1989) to a probate conservatorship case such as this and would appear to
have been overruled by narrow limits imposed by the U.S. Supreme Court in the
more recent Ankenbrandt v. Richards, 504 U.S. 689
Another circuit in Friedlander v. Friedlander, 149 F.3d 739 (7lh Cir. 1998)
disagreed with T. W., finding that the domestic relations exception did
not deter federal courts from exercising their jurisdiction, musing (at
" held in Lloyd [FN35]
that the domestic relations exception to diversity
jurisdiction did not extend to proceedings that merely arise out of a domestic
relations dispute; and any doubt about the validity of that holding was
dispelled by Ankenbrandt [FN36]. Had Mr. Friedlander murdered his former
father-in-law, the ensuing suit for wrongful death would not have been conducted
by a domestic relations court as an ancillary proceeding to the original divorce
case; and it makes no difference that, happily, he did not behave quite so
FN35. Lloyd v. Loeffler, 694 F.2d 489 (7th Cir.1982)
FN36. Ankenbrandt v. Richards, 504 U.S. 689 (1992)
A conservatorship is an
adversarial proceeding against the proposed conservatee to "suspend the civil
and legal rights" and remove her personal. Here, Nancy's state court appointed
attorney, defendant/appellee Malorie Street, advocated for and declines
to appeal Nancy's conservatorship, or request a transcript of the oral
proceedings that would disclose the truth of the matters contended before the
trial court for one good reason, because she took a position adversarial to her
own client to protect her own liability and possible criminality and railroaded
her into this conservatorship. She refuses to act because she herself abused and
injured her; see e.g., Chapnik declaration
On each and every instance where
they have had an opportunity to do so, or have been asked to do so, Defendants
have repulsed all efforts to initiate a liability lawsuit, even when Santa Clara
County Superior Court Judge Gallagher in November 2002, concluded that there was
a cause of action and recommended that an attorney be sought by the Plaintiffs.
Ms. Street has gone on record as turning away and threatening attorneys who
would seek to represent Nancy's liability rights. She has suppressed
investigations into Nancy Golin's reported injuries and obstructed discovery.
They not only sought to oppose the Golin's petition and attack their credibility
but opposed two other contesting petitioners and threatened to attack them as
well if they continued to seek the conservatorship, and the trial court
demonstrated an intolerance to any petitioner other than the
Other courts have held similarly under
such exceptional circumstances. Citing Gonzales ex rel Gonzales v. Reno, 86 F.Supp.2d 1167,
S.D.Fla. (2000): (rehearing denied by 215 F.3d 1243 (11th Cir. 2000), cert denied by 530 U.S. 1270 (2000)):
Developmental Disabilities Advocacy Ctr., Inc. v. Melton, 659 F.2d 281, 285
(1st Cir. 1982), the First Circuit recognized that even when a plaintiff has a
duly appointed guardian and Rule 17 (c) 'would appear to preclude suit by a next
friend,' Rule 17 (c) actually mandates that the Court utilize
its discretion to override the duly appointed guardian's position if necessary
'for the protection of the infant or incompetent person.' See id.
Fed.R.Civ.P. J7 (c).
Gonzalez has illustrated his dedication to Plaintiff's interests in several
ways: He has embraced the responsibility of prosecuting the instant case; he has
cared for Plaintiff in his own home for more than two months, and he
demonstrated sufficient interest in the child such that the INS itself placed
Plaintiff in his hands on November 25, 1999.
Thus state actors may be sued in district court for
constitutional claims under § 1983 by a special guardian ad-litem or next friend without
imposing the burden of first reversing the conservatorship in state
V. COURT BELOW ERRED BY DENYING
PARENTS OPPORTUNITY TO OBTAIN COUNSEL TO PURSUE GUARDIAN AD LITEM
Here, Judge Alsup dismissed
Appellants case with prejudice because they had not yet retained an
attorney to represent them, without granting them leave to retain one within a
reasonable period of time. This was error and Judge Alsup should at least have
dismissed it for this reason without prejudice. (Alternatively, the
parents petition under 28 U.S.C. § 1915 (e)(l) for appointed counsel (Docket #27,
2/9/04, at p7) could have been granted at its discretion under these
extraordinary and compelling circumstances.) Judge Alsup therefore clearly
abused his discretion by denying the parents an opportunity
to retain counsel as they finally have done. Here Judge Alsup cited Johns v. County of San Diego, 114 F. 3d 874, 876 (9th Cir.
1997) also see Osei-Afriyie v. Medical College, 937 F.2d 876, (3d
Cir.1991); Cheung v. Youth Orchestra Found, of Buffalo, Inc., 906 F.2d
59 (2d Cir. 1990); Meeker v. Kercher, 782 F.2d 153 (10th Cir.
Judge Alsup granted Defendant
County's motion for immediate dismissal of Plaintiff's complaint with prejudice
without leave to amend. In Johns, however, as was pointed out in
Plaintiff/Appellants' Brief in Opposition to County, Docket #27, 2/9/04, pi2,
finding "the district court should have dismissed the complaint without
prejudice, thereby giving Johns further opportunity to secure an attorney at
some later time within the limitations period"(Id. at 876). The court in Cheung
reached a similar conclusion (Id., at 60). The basic principle behind these
rulings in all these districts on this issue emphasizes protection of the child
or incompetent person's rights. Childers v. Mineta, 205 F.R.D. 29 (2001), "Pro se litigant
should receive more latitude than parties represented by counsel to correct
defects in service of process and pleadings". (Id. at 31)
Now the parents have obtained representation and could if
granted standing pursue Nancy's claims on remand without denying her due process
VI. ROOKER FELDMAN ABSTENTION DOES NOT APPLY HERE
Judge Alsup cites the Rooker-Feldman
doctrine as barring appellate review of a state court
decision by a lower federal court, (X9). We will argue that this was in
MADE VALID APPLICATIONS FOR LEAVE TO AMEND TO REMOVE CLAIMS
ROOKER-FELDMAN AND YOUNGER WHICH SHOULD HAVE BEEN GRANTED
repeatedly and clearly expressed our intention to amend and limit the present
suit to our very substantial civil rights claims, removing the few claims that
would require overturning any state court decisions, and clearly state that we
were not seeking relitigation in this case of the state conservatorship matter,
as much as we would have liked to have done so, to cure the defect which exposed
us to Rooker Feldman and Younger abstention doctrines [FN37] .
However, as stated in Section II infra, p58), the district court erred by
dismissing the present case on appeal without leave to amend in this way, ruling
incorrectly that amendment would be futile.
FN37. As we stated in our Brief in Opposition to Ms. Street's
Motion to Dismiss (Docket #47, 3/10/04, p2): "At the risk of repeating this one
critical point to remind the Court to please not be confused by the defendants
misleading repetition here; that is emphatically NOT a conservatorship
B. EVEN HAD
APPELLANTS NOT AMENDED AS PROPOSED, EXCEPTIONS TO ROOKER-
FELDMAN CLEARLY APPLY HERE.
1. THE STATE
COURT TRIAL WAS A CONTESTED CONSERVATORSHIP PROCEEDING RAISING
DIFFERENT ISSUES SEEKING A DIFFERENT RESULT THAN RAISED
Citing, In re Gruntz, 202
F.3d 107, C.A.9 (Cal) (2000)
"In Pennzoil Co. v. Texaco, Inc. 481 U.S. 1, (1987), in
which the Court required Younger abstention by federal courts pending resolution
of the issue by state courts, five Justices expressly refused to apply
Rooker Feldman to a federal cause arising from state proceedings. See
id. at 18, 107 S.Ct. 1519 (Scalia, J., joined by O'Connor, J., concurring);
id. at 21, 107 S.Ct. 1519 (Brennan, J., concurring); id. at 28, 107 S.Ct. 1519 (Blackmun, J., concurring); id. at 31 n. 3, J07
S.Ct. 1519 (Stevens, J., concurring).
the constitutional issues raised here could not be raised in state court because
it was a different proceeding seeking a different result raising different
questions with different parties concerning different causes of action. The
state trial court had only two questions presented: 1) whether Nancy Golin
should be permanently conserved, and 2) if so who should conserve her, the
parents or DDS (infra, pi8). This federal case presents different
Otherwise, Nancy Golin's right to
seek due process relief anywhere, ever again, from any tort damages in any forum
in the future would be permanently barred merely as a result Nancy being reduced
to involuntary servitude by the state in some other state
proceeding, barring the door to a federal court. The state actors would thereby
gain the permanent immunity they seek through such an action from their torts
and criminal behavior. By the time the state court findings were hopefully
rectified on those issues, Nancy would lose her timelines to sue due to
non-tolled Statute of Limitations bars. The state could merely run out the clock
on any damages they had caused and literally get away with slow murder of a
perfectly innocent person, apparently without suffering any liability
2. THE PARTIES
TO STATE COURT PROCEEDING ARE DIFFERENT FROM THE DEFENDANTS
HERE, GIVING FURTHER PROOF THA T THIS IS A DIFFERENT MA
Again citing Gruntz, supra,
More recently, the Court held
Rooker-Feldman inapplicable to federal cases involving parties other than
those before the state court, terming itan "abstention doctrine, under which a
party losing in state court is barred from seeking what in substance would be
appellate review of the state judgment in a United States district court."
Johnson v. De Grandy, 572 £7.5. 997, 1005-06 (1994)".
In the contested state conservatorship case, In the
Conservatorship of Nancy Go!in, Santa Clara County Superior Court No.
1-01-PR-151096 (Probate Division), the State DDS is one petitioner. The parents
are also petitioners. Nancy Golin is the real party in interest. Beyond that,
none of the 13 other defendants to this matter are parties in
this state court action. Therefore per Gruntz, Rooker Feldman is
inapplicable here. This supports the conclusion that "litigation" here simply is
not the same litigation, and the issues being litigated here were not the
subjects of the state court matter. The state conservatorship lacked the
jurisdiction to litigate the present tort claims lawsuit, just as the federal
court lacks the jurisdiction barring exceptional circumstances to litigate
conservatorship claims. There was no question of liability damages raised in the
state court, and Nancy's attorney Ms. Street was one of the many parties that
3. STA TE COURT
DID NOT AFFORD "FULL AND FAIR" OPPORTUNITY TO LITIGATE FEDERAL
PROVIDE DUE PROCESS, REQUIRED FOR ROOKER-FELDMAN PRECLUSION TO
Moreover, for Rooker-Feldman
to apply the state court must have afforded the litigant a full and fair
opportunity to litigate his federal claims in state court and be provided with
Fourteenth Amendment (U.S. Constitutional Amendment XIV) due process in such a
proceeding. Citing Valenti v. Mitchell, 962 F.2d 288, 296 (3d Cir.1992)
'the Rooker-Feldman doctrine and claim preclusion will only apply when
litigants have had a "full and fair opportunity to litigate their...
claim instate court.' Nancy Golin was essentially kidnapped and held by
the state without legal authority or due process (infra, p10). This act violates
Nancy Golin's Fourth Amendment (U.S. Constitutional Amendment IV) right to be
free from unreasonable personal seizure. The State clearly capitalized on its earlier constitutional abuses to deny due
process when they finally got around to pursuing a legal
That at least one relevant abuse of
due process is present here is clear as ruled by the US Supreme Court in Fouche v. Louisiana, 504 U.S. 71, (1992) The Supreme
Court, Justice White, held that:
Louisiana statute allowing continued confinement of
insanity acquittee on basis of his antisocial personality, after hospital review
committee had reported no evidence of mental illness and recommended conditional
discharge, violated due process. He may be held as long as he is both mentally
ill and dangerous, but no longer. Here, since the State does not contend that
Foucha was mentally ill at the time of the *72 trial court's hearing, the basis
for holding him in a psychiatric facility as an insanity acquittee has
disappeared, and the State is no longer entitled to hold him on that
Here we alleged that due process
was never afforded to us or to Nancy in the state trial, or in the appellate
proceedings. Witnesses and testimony were improperly excluded (infra, p21),
discovery was obstructed (infra, fn 12, p16), constitutional issues,
particularly regarding parental preference, were dismissed (infra, p19),
the parents were forced to proceed without legal representation (infra,
p18), and Nancy Golin had an adversary, defendant-appellee here Ms. Street, as a
representative, who in a long pattern and practice denied her Sixth Amendment
(U.S. Constitutional Amendment VI) rights, including her
right to a jury trial on the issue of her loss of liberty (infra, p 15).
Judge Martin acted as a timekeeper rather than a factfinder cutting off witness
examinations long before completion12, and the pro se parents were for
the most part held to a stringent rather than a liberal standard of evidence
unfamiliar to them that excluded much important evidence, and permitted much
non-confrontable hearsay testamentary evidence now barred by Crawford
(infra, p24). Witnesses were seen being intimidated and threatened during
recesses by Nancy's supposed attorney Street working against Nancy's interests
during recesses15 (infra, p21), and the Martin court refused to stop it.
Appellants were denied standing or constitutionally protected family preference
from the outset to represent Nancy's interests, and therefore she was denied due
Furthermore the appellants are being
totally denied due process on appeal, on account of the state court of appeals
denying them either an affordable record of the oral proceedings on appeal
(infra, p28), or a settled statement procedure (infra, p28), and due to
the refusal of Nancy's supposed attorney to appeal her case or advocate on her
behalf. Nancy's due process rights on appeal have also been blocked as Martin
has exceeded his jurisdiction in unreasonably appointing the state as her
permanent conservators without staying the judgment pending appeal barred by
state statute except under very extraordinary circumstances not met here23
(infra, p27) (T1-T9)
claims, to lack of due process, cannot be determined by the district court for
purposes of settling whether Rooker Feldman can apply here, without
proceeding to an evidentiary review on these issues, and that cannot be done
without allowing the case to proceed.
RAISED FEDERAL ISSUES IN STATE COURT, WHICH WERE NEVER ADDRESSED
ON THE MERITS AS
THE STATE COURT EXPRESSED DISDAIN FOR FEDERAL CLAIMS.
Guarino v. Larsen, 11 F.3d 1151, 1161-62 (3rd Cir. 1993):
"A litigant suffers no real harm by attempting to raise his or her
constitutional claim in state court: if the state court refuses to address the
constitutional claim, the litigant can then raise the claim in federal court
without any jurisdictional, abstention, or collateral estoppel problems"
Here, Judge Martin essentially told the parent-petitioners when they raised
the question of parental preference, expressly disdaining and misconstruing the
US Supreme Court's family rights holdings in Parham v. JR, 442 U.S. 584 (1979) (Exh. Q, p3)
that he was not interested in constitutional issues, that if they wanted to
raise constitutional issues they should "go down the street to the federal
court", "we don't do that here". There was therefore essentially no discussion
concerning the constitutional issue that the parents attempted to
INJURY COMPLAINED OF HERE DID NOT ARISE FROM THE STATE COURT JUDGMENT
Also, citing the discussion in Gerry v. Giles, 82 F.3d 1362 (7th Cir. 1996):
"In order to
determine the applicability of the RookerFeldman doctrine, the
fundamental and appropriate question to ask is whether the injury alleged by the
federal plaintiff resulted from the state court judgment itself or is distinct
from that judgment. If the injury alleged resulted from the state court judgment
itself, Rooker-Feldman directs that the lower federal courts lack
jurisdiction. If the injury alleged is distinct from that judgment, i.e., the
party maintains an injury apart from the loss in state court and not
"inextricably intertwined" with the state judgment, see infra, res
judicata may apply, but RookerFeldman does not. While we have not always
emphasized this aspect of the RookerFeldman doctrine (since thecontrast
to res judicata was not usually at issue), it emerges from the fountainhead
cases themselves and has been consistently respected in our application of the
Here, this is the most relevant
inquiry possible, because Nancy Golin suffered sexual and physical abuse and
denial of her constitutional rights beginning in November 2001. The
conservatorship trial took place in October 2003, almost two years later. The
crimes and civil rights violations mostly took place before Nancy was ever
conserved by the State by the October 2003 proceeding that the defendants' claim
settled the issue in state court. Therefore the greatest harm being complained
of cannot be the result of the state court proceeding, and at the very least
this case certainly cannot be entirely dismissed due to facts alleged which took place prior to the conservatorship trial in
October, 2003 as they could not be causally related to a subsequent
6. FEDERAL COURTS
HAVE EXPRESSLY AUTHORIZED JURISDICTION ARISING FROM 28
U.S.C. § 1343(a) OVER CASES INVOLVING CIVIL RIGHTS
AND CIVIL RIGHTS
CONSPIRACIES UNDER 42 U.S.C. § 1985
Appellants alleged sufficient facts to state a case in their original complaint
that the various defendants here engaged in a deliberate, premeditated,
coordinated and well documented conspiracy to deny the civil rights of Nancy
Golin, a member of a protected class of handicapped persons established in cases
such as Lake v. Arnold 112 F.3d 682 (3d Cir. 1997) following enactment
of Title II of the ADA [FN38]. At this point the Court is obliged to "accept all
allegations as true andconstrue those facts in the light most favorable to
the plaintiff." Clegg v. Cult Awareness Network, 18 F.3d 754 (9th Cir.
1994), and allow this matter to proceed.
FN38. See, "Civil Rights Conspiracy to Deny Mentally
Retarded Persons 42 U.S.C.A. 1985(3), 12101(a)(7), Lake v. Arnold 112 F.3d 682 (3d Cir. 1997)," 12 No. 9 FEDLIT 250, Federal Litigator, September 1997
The doctrine of
Rooker and Feldman merely expresses the fact that Congress never
"expressly authorized" the lower federal courts with jurisdiction to act as courts of appellate jurisdiction over
final decisions of a state court as established by Article III, Section 1 of the US Constitution (U.S.
Constitutional Article III, Section 1). Clearly, however, Rooker-Feldman does
not apply to all State Court decisions. Federal Courts have been
expressly authorized by Congressional to assert jurisdiction to review state
court decisions in bankruptcy, tax and habeas corpus writs (28 U.S.C. § 2251), where it is well settled that Rooker
Feldman does not touch the writ of Habeas Corpus See Plyler v. Moore, 129 F.3d 728, 732 (4th Cir.1997); Ritter v. Ross, 992 F.2d 750, 753 (7th Cir. 1993);
Blake v. Papadakos, 953 F.2d 68, 71 n. 2 (3d Cir. 1992).
They have also expressly authorized district courts to assert original
jurisdiction over cases involving civil rights and civil rights conspiracies (28 U.S.C. § 1341). Therefore these allegations constitute a
properly stated case not barred by Rooker-Feldman abstention, (infra,
VII. YOUNGER ABSTENTION DOES NOT APPLY HERE
A. THE ISSUES
AND CLAIMS IN THE PRESENT CASE ARE DIFFERENT FROM THOSE IN THE
STATE COURT MATTER
In Rubin v. Smith, 817 F
Suppl. 995 (1993) (cf infra, p63), the court ruled,
"...The matter of whether plaintiffs were deprived of
their constitutional rights by events occurring in New Hampshire is not before
the Connecticut court, which will hear the divorce and custody matters.
Abstention is not warranted in the present case, under the
Younger abstention doctrine, because this court's decision will 'not enjoin or
interfere with any state proceeding [which is] pending' Rivera-Puig v Garcia-Rossario, 983 F. 2d311, 319 (1st Cir.
1992). 'The present situation is not the type contemplated by the Younger
abstention doctrine.' Id at 320."
B. SECTION 1983 EMPOWERS FEDERAL COURTS TO EXERCISE JURISDICTION
COLLATERAL PROCEEDINGS NOTWITHSTANDING YOUNGER
Citing Miofsky v. Superior Court, 703 F.2d 332, 338 (9th Cir,
"However, civil rights
actions under Sec. 1983 are among the exceptions to the Anti-Injunction Act
that have been "expressly authorized by Act of Congress," id. Mitchum v. Foster, 407 U.S. 225 (1972) Thus, as Mitchum
makes clear, Congress has not rendered federal courts impotent in the face of an
infringement of constitutional rights by the judicial arm of state government.
As the Court said in Mitchum, "[t]he very purpose of Sec. 1983 was to interpose the federal courts between the States
and the people, as guardians of the people's federal rights - to protect the
people from unconstitutional action under color of state law, 'whether that
action be executive, legislative, or judicial."' 407 U.S. at 242, 92 S.Ct. at 2162 (quoting Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1879) (emphasis added)).
In light of Mitchum, we conclude that
district courts have subject matter jurisdiction over suits brought under Sec. 1983 even when the state action allegedly violating plaintiff's federally protected rights takes
the form of state court proceedings. Accordingly, we hold that the district
court erred in dismissing Miofsky's claim for lack of subject matter
"In determining whether to
expand the Younger doctrine to make it applicable to civil litigation generally,
we must bear in mind the fundamental principle that federal courts have an
"unflagging obligation" to exercise their jurisdiction. Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir.1980)
(quoting Colorado River Water Conservation Dist. v. United States, 424
U.S. 800, 814 (1976).
is particularly weighty when those seeking a hearing in federal court are
asserting... their right to relief under 42 U.S.C. Sec. 1983." 609 F.2d at 1293. Although Younger and its progeny teach us that
principles of federalism and comity sometimes offset this obligation to
entertain civil rights actions, the doctrine of abstention remains 'an
extraordinary and narrow exception to the duty of a district court to adjudicate
acontroversy properly before it.' County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188
(1959) (quoted Colorado River Water Conservation Dist. v. United States, 424 U.S.
800, 814 (1976)). To extend the Younger doctrine to encompass conventional
civil litigation would effectively permit the exception to consume the rule. In
addition, we note that such a transformation would drain Mitchum v. Foster of
all its vitality by emasculating the exception to the
Anti-Injunction Act that Congress created in enacting Sec. 1983."
FIRST PRONG IS NOW NO LONGER SATISFIED, STATE COURT APPELLATE
PROCEEDING IS NO LONGER ONGOING
As of last Thursday, December 2,
2004, appellants received word the Sixth District Court of Appeals dismissed
plaintiff/appellants' case by denying him an extension of time to complete the
procurement of the trial transcripts on his own, and then denying him a motion
for an extension of time to file an opening brief based on those transcripts,
needed by petitioners' attorney William Gilg for an effective appeal of the
false findings so necessary here in this case.
Due to the burdens of litigation the parents could no longer
pay for transcripts on their own until recently, and repeatedly told the State
Court of Appeals so in motion after motion. They began to procure them last
month, but too late according to the Sixth District. As previously stated
herein, the transcripts should have been provided to satisfy due process and
equal protection requirements either to Nancy Golin or to her parents free as
IFP litigants, see infra, p27, this raises significant federal
constitutional questions. The State Court of Appeals has now barred access to
their courts with a direct contravention of the US Supreme Court's M.L.B. v S.L.J., 519 U.S. 102 (1996), of due process and
equal protection. Therefore, unless the parents appeal to the
State Supreme Court for review or are able to get the dismissal vacated, the
first prong of Younger is no longer currentlymet the state case is no longer
ongoing and no federal court interference with an ongoing state matter is
implicated. The State Appellate Court thereby dismissed the case without ever
reaching the merits, when it appeared most likely that a factual basis finally
could be presented on appeal.
the jurisdiction of the lower superior court is not, as Judge Alsup
optimistically presumed, continuing. This is not like a family court or
juvenile court matter. A required and perfunctory - one year review that Judge
Alsup cites (Xl1, line 14) did not take place in November, 2004 (not that it
would have been that effective since Judge Martin has rubber-stamped literally
everything the state has done so far, and he apparently is challenge-proof in
Santa Clara County Courts), and Judge Martin appears to mean what he says when
he states that the conservatorship is "for an indefinite period of time"
(R5). Therefore the state appeal is not ongoing and jurisdiction not
RELATIONS EXCEPTION DOES NOT APPLY HERE AS EXEMPLIFIED BY RUBIN,
AND THOMAS SO FAILS THE SECOND PRONG OF YOUNGER
Here Judge Alsup dismissed
Plaintiff's case defendants' Rule 12(b)(6) motion on grounds that the federal courts should
abstain due to the "domestic relations exception" vaguely asserting without
explicitly citing this rule (X11) satisfying the "strong state interest" second
prong of abstention rule under Younger v. Harris, 401 U.S. 37 (1971). Judge Alsup cites
three cases in his judgment (Id at 11) to support this contention, H.C v Koppel, 203 F.3d 610, 612 (9th Cir. 2000), Coates v. Woods, 819 F2d 236, 237 (9th Cir. 1987), and Csibi v. Fustos, 670 F.2d 134, 137 (9th Cir.
1982). He circumvents explicit invocation of the "domestic
relationsexception" by merely claiming, "[f]amily relations are a traditional
area of state concern". (X11) This vagueness is necessary because a closer
analysis shows that this argument is unsupportable due to several factors that
render this case inapposite to domestic relations.
The so-called domestic relations exception which established
family relations as a traditional area of state concern is rooted in dicta
contained in Barber v. Barber, 62 US 582 (1859) which Congress has
left undisturbed for 150 years. It was revisited in In re Burrus, 136 U.S. 586 (1890) which Judge Alsup cites
in the dismissal of the Habeas matter for the proposition that: "[t]he whole
subject of the domestic relations of husband and wife, parent and child, belongs
to the laws of the States and not to the laws of the United States," (Id., at
More recently however, the US
Supreme Court reviewed this question in Ankenbrandt v. Richards, 504 U.S. 689 (1992).
Ankenbrandt held that the "traditional area of state concern" aka
domestic relations exception was narrowly constrained to areas concerning
"divorce, alimony and child custody disputes". It
specifically held that in cases involving tort claims that the Younger doctrine
did not implicate an area of strong state interest dictating federal abstention,
even when there was an ongoing interfamily dispute in state
A closer reading of the three cases
cited by Judge Alsup shows that these involve traditional areas of family law,
divorce, alimony or child custody, i.e., family law or juvenile law matters.
This is true of both Barber and Burris as well. In fact the
domestic relations exception to federal jurisdiction is an exception to the
diversity jurisdiction rule. The citation above from Burris, when closely read
incontext of the case itself, appears to be an overreaching interpretation when
applied to all matters merely involving families.
Here, there is no diversity jurisdictional argument. There is
no interfamily dispute to settle. The parents cohabit and therefore do not live
in separate states so there is no diversity issue. There is no ongoing divorce,
alimony or child custody dispute between them. Both parents have always been
united in their view of what is in their daughter's best interests. Neither
parent has abandoned his child to the state, or has given up custody, or has
failed to provide for her, or ever declined to show interest in her life. They
are totally involved in her life and care for her deeply, and have long
demonstrated their ability to care for her. The only dispute here is between the family and the state, not between family
Furthermore there is no dispute
between the child and the parents. Nancy Golin has said in every way she knows
how that she wants to continue to live with her parents at home. The state
recognized that when they removed her, saying in APS records that "if somehow
the clients(sic) found where nancy placed by sarc, and showed up the RCF manager
would have a hard time keeping them away, and keeping them from taking nancy if
nancy wanted to go with them" (B5, 11/16/01 (Kinderlehrer)) (infra, p 11),
and Nancy's affectionate demeanor with her parents was unmistakable even to the
State (infra, p.27)
The kind of "child
custody" matters embraced by the domestic relations exception cannot be
construed on close reading of all cases available for review to be anything but
family court and juvenile court matters. The kind of "child custody matters"
envisioned in the domestic relations exception have never been the kindinvolved
in this present case. It is not even a "relations" question, because here the
court is not obliged to look into the relations between family members, who are
united in purpose and viewpoint. Nancy is an adult, not a child, and therefore
subject to the laws of probate, not family or juvenile court. The only state
laws that apply to her are those of the state Probate or Welfare and
Institutions Code, and these are not subject to traditional abstention by
federal courts. Her associational and liberty interests are fully vested absent
a conservatorship order, which she is entitled to resist as
a constitutional matter.
A search of cases
found only one case which held, from an extension of Burris, that a
conservatorship fell into the realm of domestic relations: Hemon v. Office of
Public Guardian, 878 F.3d 13 (1st Cir. 1989), presumed the subject matter
bar to federal Habeas jurisdiction held in a conservatorship matter, principally
from a reading of Burris (infra, p.58). The 9lh Circuit has never reached
any case finding that conservatorship matters are precluded by the domestic
relations subject matter jurisdiction exception. Indeed Ankenbrandt could
be viewed as overturning the rule of Hemon. The Matter of Heldris, 1 996
WL 382916 (N.D. Cal 1996) involving state abuse of an elderly conservatee cited
by the County at the March 25, 2004, hearing (V5) which the court below
dismissed under the domestic relations exception clearly would rightly have
fallen under Ankenbrandt if it had ever risen to an appeal in this Court.
"The mere existence of a family involved
somewhere in the dispute does not in and of itself automatically render it a
domestic relations case",
quoting Colorado River Water Conservation Dist. v. United States, 424
U.S. 800, 814(1976)
itself, although the Supreme Court acknowledged the existence of a domestic
relations exception to federal jurisdiction, it held that this exception did not
preclude the federal courts from hearing damage suits stemming from domestic
relations issues. Rather, the Court ruled that the domestic
relations exception only "divests the federal courts of power to issue divorce,
alimony, and child custody decrees," matters which the state courts "are more
eminently suited" to decide, and over which the state courts possesses "greater
expertise," than the federal courts. Id, at 2215. Ankenbrandt also
stated (Id at 705):
axiomatic, however, that "[a]bstention from the exercise of federal jurisdiction
is the exception, not the rule." Colorado River Water Conservation Dist. v. United States, 424
U.S. 800, 813 (1976). Abstention rarely should be invoked, because
the federal courts have a "virtually unflagging obligation... to exercise the
jurisdiction given them." Id., at 817, 96 S.Ct., at
Here the usual arguments weighing
in favor of state court jurisdiction over family or child custody matters are
not compelling, nor do they implicate strong state interests. First it could
hardly be said that the state courts have established special expertise in such
an unsettled area of the law as this case of first impression. A case such as
this, where a parent continues to serve as a caregiver of a developmentally
disabled child at home far into adulthood is not unheard of but hardly
commonplace enough for any judge to develop "special expertise", or to clog
federal dockets. It would be an extreme stretch to call any all-purpose superior
court judge, such as Judge Martin, who never previously heard a case such as
this in probate and professed indifference to constitutional
arguments on record, an expert in these unsettled areas of conservatorship law.
It was Judge Martin who attempted to impose unconstitutional and statutorily
unauthorized supervised visitation limitations and numerous other unauthorized
and irrelevant requirements such as "pay all debts" or "obey all
laws" or "establish a history of gainful employment for at least two
years (as if we weren't already)" or "reestablish all vehicle and
contractors licenses" on the parents (Exh. Q, pp15-17) treating this case as
if this were a family law or criminal, or traffic court matter, when no
statutory or common law authority vested him with the power to do so under the
Probate or Welfare and Institutions Codes.
Further, considerations of finality and permanence in
settling child custody disputes normally for the best interests of a minor child
in establishing secure and nurturing emotional bonds with a parent during
childhood do not apply here (see e.g., Lehman v Lycoming County Children's Services, 458 U.S. 502
(1982), Santosky v. Kramer, 455 U.S. 745 (1982). Nancy Golin was
already permanently bonded with her natural parents through a lifetime of trust
and protection, and the states unwarranted intrusion has only disturbed what was
there before to her emotional distress and abuse. She sees us coming and going,
and knows we are still alive and well and therefore appears to feel betrayed by
us, with all her security and emotional supports of a lifetime ripped from
A legal treatise
(see "The Domestic Relations Exception to Federal Jurisdiction: Rethinking an
Unsettled Federal Courts Doctrine" Michael Ashley Stein, 36 BCLR 669 (Boston College Law Review, July 1995) argues that
federal judges merely invoke the domestic relations argument here as a solution
to their congested federal court dockets, and perhaps to their perception that
family mattersare unpleasant and messy.
Three cases (including Ankenbrandt) illustrate how
federal courts have asserted proper jurisdiction over cases such as the
instant case when it clearly appears that the litigation involves exclusively a
federal or constitutional matter involving tort claims rather than viewing them
as domestic relations cases.
Rubin v. Smith, 817 F Suppl. 995 (1993) there actually was a child
custody case pending, and yet the District Court correctly perceived that the
case before it was a civil rights complaint separate from the child custody
decisions in state court. (See infra, p54)
In Thomas v. New York City, 814 F. Supp 1139, E.D.N.Y.,
(1993) we see:
"Mother and her children
brought civil rights action against city, city foster care officials and foster
care contractors, alleging that children were physically and emotionally abused
while in care of city foster care system .... Here it was ruled that 'domestic
relations exception to federal subject matter jurisdiction did not apply to
action based on alleged sexual abuse of children while in
city's foster care programs and alleged interference with mother's and
children's familial relations when children were separated from mother'.
The defendants view plaintiffs' case as a
disguised attempt by Yvonne Thomas to regain her parental rights previously
terminated by the New York family court and to recover custody of her children.
If this were so, the domestic relations exception might well apply; but
defendants' reading of the complaint in this regard is wrong
... Plaintiff does not request that this Court issue a decree
ordering the state to return to her custody of her children or to restore her
parental rights for one thing, because she has had them restored.
"...Under the federal Constitution, there is
a constitutionally protected liberty interest in familial relations. Stanley v. Illinois, 405 U.S. 645 (1972); Hurlman v. Rice,
927 F.2d 74 (2d Cir.1991); Duchesne v. Sugarman, 566 F.2d 817
(2d Cir. 1977). Moreover, questions of visitation between a parent and her child
placed in foster care may implicate this liberty interest. See, e.g., Winston v. Children and Youth Servs. of Delaware County, 948 F.2d 1380 (3d Cir. 1991), cert, denied, [504 U.S. 956], 112 S.Ct. 2303, 119 L.Ed.2d 225 (1992); Blair v. Supreme Court of Wyoming, 671 F.2d 389, 390 (10th
Cir.1982). Thus, the adjudication of whether the state's procedure used to
separate a parent from a child complies with the constitutional due process
requirements is squarely within this Court's federal question jurisdiction and does not entail any investigation by
the federal court into the fitness of the parent to care for the child or the
issuance of any decree that the parent must necessarily be reunited with the
E. THE COURT BELOW
ERRED HOLDING THAT THE THIRD PRONG OF YOUNGER IS SATISFIED
HERE, HOLDING THAT
DUE PROCESS WAS NOT DENIED IN STATE COURT PROCEEDINGS.
Judge Alsup's holding here fails
in every respect to consider the factual background of the serious and ongoing
due process and equal protection denials by the state court in this case, as we
have already amply argued in Section VI (B)(5) herein8, 12, 15 (infra, pp27,
49, 52 64).
VIII. THE COURT
BELOW ERRED FAILING TO CONSIDER PLAINTIFF DISMISSAL SATISFYING
VORABLE OUTCOME PREREQUISITE FOR PARENTS' CLAIMS OF MALICIOUS
The court below erroneously
dismissed the parents' own claims for violation of their civil rights based on
claims of malicious prosecution.
A. THE COURT BELOW
ERRED PERMITTING DEFENDANTS TO INTRODUCE NEW ARGUMENTS AND
FALSE FACTS AT THE
HEAR ING WITHOUT SUFFICIENT OPPORTUNITY FOR PLAINTIFF RE
BUTTAL OR BRIEFING ON THE FACTUAL BASIS
Judge Alsup permitted the defendants
an opportunity to introduce new surprise arguments and false facts not
previously briefed with sufficient notice in any of their Motions to Dismiss
regarding the parents own claims, at the March 25, 2004 12(b)(6) dismissal
hearing. Mr. Golin was thus not notified that the opposition
intended to bring these issues up, and therefore had not responded to them in
his reply briefs. Then, when Mr. Golin attempted to respond, Judge Alsup cut him
off and would not listen, nor would he permit him time to brief him accurately
on these new issues. Judge Alsup hastily dismissed Mr. Golin's claims. This is
Judge Alsup thereby sustained
County's false contention that Mr. Golin had made a final plea of guilty
to a state charge of Cal. PC 368(c). and therefore the DA must have had
sufficient probable cause to have charged him with dependent adult abuse, which
he then presumed to be the "underlying criminal matter" for the permanent
removal of his daughter from her family. Neither the facts nor the conclusion
are supported here.
Here is the history Judge
Alsup did not wait to hear. First, that both parents' charges first of all were
simply groundless and no abuse or neglect ever happened, as the DA finally
conceded after a 14 month in-depth investigation. There never was any "long
history of abuse and neglect", or evidence of parental unfitness shown, despite
the State's efforts at reaching back 30 years into their archives of hearsay
reports. The criminal prosecution was maliciously pursued without probable cause
as an attempt to aid SARC in their conservatorship bid in their conspiracy
against Nancy. In November 2002, the DA first reduced all charges to a
misdemeanor with only a slap on the wrists. The parents would still not plead to
Then on the
day of trial, January 28, 2003, the DA trying again to salvage something struck
a final bargain. If either of the parents, it didn't matter which would
initially plea nolo contendere to only one count of supposedly
allowing Nancy Golin to wander away one time, on November 14, 2001, he would
drop the charges against the other parent immediately, and agree to drop the
charges against the other parent in 6 months. The remaining parent would be
allowed to withdraw his nolo plea and enter a plea of not guilty under the
usual provisions of Cal. PC 1203.4(a) (O13) and his case would be dismissed with
full expungement of the record and exoneration. The DA had already reduced them
to a misdemeanor under Cal. PC 368(c) (O10), and the DA amended the complaint to
remove all clauses of that statement that claimed abuse or willful neglect (O10,
O33). It was stipulated in writing in the order that this outcome would have no
effect upon the conservatorship petition. (O9-O32) The no-contact orders were
immediately dissolved (09, O23, 024, O32).
Mr. Golin, deeply concerned with the immediate safety and
welfare of his daughter, and wishing to save his wife and Nancy's mother from
unnecessary emotional trauma of a trial, volunteered to agree to these terms and
plead nolo contendere with the only supporting probable cause being that
Mrs. Golin (?) had supposedly "let" Nancy wander away one time, on
November 24, 2001 (O21, lines 6-15). Had it not been for the stipulation that
this outcome would not affect the conservatorship, or that there would be a
dismissal of his own charges in 6 months, he would not have
agreed to this. Mr. Golin followed the advice of his attorneys that there would
be no long term consequences to accepting this agreement in either the
conservatorship or any succeeding lawsuit for recovery of damages, and that he
was giving up nothing of substance other than a $100 fee as long as the terms of
the agreement were followed.
Mr. Golin simply
completed the 6-month period, and then was allowed to change his plea to not
guilty so his charges could be dismissed on August 9, 2003 (O6). Therefore,
all charges against both parents were ultimately dropped after both parties
plead not guilty, in Mr. Golin's case as is normally provided by Cal. PC
1203.4(a) (O13). The order of August 9, 2003 states that Mr. Golin's record is
expunged and Mr. Golin is exonerated (06). It is hard to see how a more
favorable outcome could be required of them.
Judge Alsup said, "You plead guilty apparently" (V11). Not
only was that not true, but that was not even the end of the story. Mr. Golin
tried to explain that he initially plead nolo contendere, a
distinction relevant in criminal court, but not admissible in a collateral civil
case. Here, a nolo plea as he understood from his attorneys is not
the same as a guilty plea for purposes of a civil suit because it involves no
admission of supporting fact Mr. Golin admitted nothing, because there was
essentially nothing to admit. Judge Alsup also ridiculed Mr. Golin for failing
to include the DA Randy Hey as a defendant (V9), implying
that Mr. Golin had sued everybody involved - hardly the case. Mr. Golin could
have added this defendant if it were necessary and if leave to amend had been
In fact it is likely that evidence
of Mr. Golin's initial nolo contendere plea would be inadmissible under
FRE Rule 403, which permits relevant evidence to be excluded
"if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury....", or under FRE Rule410, which provides in relevant part as follows:
"[E]vidence of the following is not, in any civil... proceeding, admissible
against the defendant who made the plea or was a participant in the plea
discussions:...(2) a plea of nolo contendere;"
In Heck v. Humphrey, 512 U.S. 477 (1994), the US Supreme
Court held that:
y(3)27in order to
recover damages for allegedly unconstitutional conviction or imprisonment, or
for other harm caused by actions whose unlawfulness would render a conviction or
sentence invalid... a §§ 1983 plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called
into question by a fed eral court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. (512 U.S. at 486-87) (footnote omitted).
Thus the parents had satisfied all the Heck prerequisites of
having their own charges exonerated and
B. THE TORT OF
MALICIOUS PROSECUTION WAS COMMITTED AND IS CLEARLY SHOWN IN THE
A VAILABLE RECORD
Malicious prosecution in civil as
well as criminal law is grounded in the common law of torts, a prosecution for
an improper purpose, a purpose other than that which is purported, as was done
here. Here, the prosecution's probable cause was frivolous and insufficient to
warrant the degree of prosecution, and was done for an improper
In fact, we now know from a reading
of the record that petitioner's claim that close coordination existed between
SARC, DDS, APS and the DA's office for an improper purpose amounting to a
conspiracy goes far beyond mere speculation. When Nancy's § 5250 hold was
denied, and SARC lost all legal right to continueto detain her, DDS and SARC
placed phone calls to the Santa Clara County District Attorney to enlist his
help by pursuing criminal prosecution of the parents when DDS attorneys
initially declined to pursue a temporary conservatorship in December, 2001,
("DDS emphasized the DA and the TRO") (B14-B15) merely as an alternative
means of holding Nancy in illegal custody while DDS completed their
Records of Liske/SARC
plotting to conserve Nancy against her parents' wishes as an reflexive
pre-emptive tactical response to a feared legal action go back to 1993 when her
mother removed her from an abusive SARC program, again on 7/19/99 when SARC was caught by Mrs. Golin claiming Nancy as a
client to receive State money when she had not been a client for over six years
and threatened to blow the whistle on SARC (B17), and finally on 4/13/01
The improper true purpose pursued by
prosecutors was to conspire with state officials in gaining conservatorship of
the daughter and thereby hopefully immunizing these state actors from
prosecution and litigation, by disqualifying or delaying her parents from
contesting the state's petition through trumped up criminal charges and
depletion of their resources needed to fight. The conspirators' motive is in
part to profiteer from the exploitation of handicapped children through special
state funding programs, receipts of Social Security payments, and a spectrum of
other available federal subsidies, and in part to protect their state monopoly
power by regularly making examples of any parent that dares oppose them. The
group home industry has become a extremely lucrative big business seeded with
corruption, exploitation, kickbacks and waste, with the state DDS alone
receivinga budget of 6 Billion dollars per year. The motivation to remove a
child from a family is exactly the same as that of a corporation seeking new
customers. Thus, instead of state officials providing welfare for disabled
children, disabled children are being forced to provide welfare for state
In addition, child protection
workers such as defendant have duties analogous to a prosecutor and may thus be
held liable for malicious prosecution. Citing Zubiate v. Sonoma County Social Services Dep't, 1997 WL
154395, N.D.Cal., (1997) "When social workers are not acting under the
supervision of a court, however, they may only claim qualified immunity, Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir.1991) (social
worker transported children out of state without filing petition with court or
seeking hearing before judicial officer)."
C. MOTHER'S OWN
CLAIMS OF MALICIOUS PROSECUTION WERE ERRONEOUSLY REJECTED BY
Mrs. Golin, however, was not obliged
to undertake any such a burden as Mr. Golin. Her charges were summarily
dismissed entirely on January 28, 2003, after her plea of not guilty was
granted. (11) Judge Alsup therefore had no excuse whatever to hastily dismiss
her claims for failure to state a case, nor did he provide a reasonable
explanation for doing so.
D. THE PARENTS
CLAIMS FOR MALICIOUS PROSECUTION WERE DISMISSED ON ERRONEOUS
PROSECUTORS HAD SUFFICIENT PROBABLE CAUSE TO CONTINUE PROSECUTION
When the parents received copies of
the police report, they realized that the police, S ARC and APS falsified most
of the evidence they cited. Attorneys for the parents provided prosecutors with
letters, affidavits and information that the caselacked probable cause
(discussed in depth, infra, pi 2). After that, prosecutors knew of
should have known that the case lacked probable cause for the original
providing the information the prosecutors still refused to discuss the case with
the parents' attorneys. The only specification made in the warrants against the
parents was a literal restatement of the statute penal code 368(c). Parents'
attorneys persisted in asking prosecutors to furnish a bill of particulars on
what precise acts they were charging the parents with, but they received
nothing, and ultimately never did. Instead, after being notified their original
case lacked merit, prosecutors kept plodding along with the case for 14 months,
seeking to dig up other probable causes to give time to DDS. Thousands of
pages, a small file cabinet of medical records, SARC and APS records were
subpoenaed and pored over by prosecutors, the parents and their attorneys,
showing clearly evidence of the parents innocence and state guilt in abusing
Nancy Golin and her constitutional rights in state care.
More discovery needed to oppose the conservatorship was
barred by prolongment of the state's criminal case, the restraining orders and
the inaccessibility of their daughter or her records. State actors here appear
to have believed that the ongoing groundless criminal charges against the
parents would disqualify them from pursuing any claims of their own for
conservatorship and prevent them from opposing the state's petition until it was
too late. Ultimately after all this the only probable cause which could be
claimed was one charge of Mr. Golin supposedly letting his autistic child wander
one time (infra, p66). Cast in perspective with thestate's performance in
controlling Nancy's AWOL in state care of 138 times in one
year (H4-H6), (infra, pp66) this charge faded into insignificance and
When before Hon. Judge Gregory
Ward in a probate hearing on Nancy's conservatorship on October 15, 2002
(infra, pi3), with prosecute Hey in the gallery as a spectator, they were
asked by Judge Ward "did you tell the DA about all of thisT" Mrs. Golin
responded, "I did better than that, your Honor. I had Nancy's doctor write a
letter which was sent to the District Attorney [repudiating these claims]".
This clearly put the DA on notice. Judge Ward's and Mrs. Golin's comments were
washed out of the transcripts with large chunks of comments incriminating to
many of these state actors.
In Zamos v. Stroud, 12 Cal.Rptr.3d 54, Cal (2004), the tort
of malicious prosecution is discussed:
attorney may be held liable for malicious prosecution for continuing to
prosecute a lawsuit discovered to lack probable cause, that is, one that any
reasonable attorney would agree is totally and completely without merit. See 5
Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §
CONCLUSION AND RELIEF SOUGHT
For all the reasons stated above, we
appellants and petitioners hereby request that
1. The district court's granting of these defendants' motions
to dismiss under FRCP Rule 12(b)(6) for failure to state a case for which relief
can be granted be reversed and remanded to another judge to
grant leave to amend and allow the matter to proceed.
2. That the petitioner's previous Motion for Emergency
Preliminary Injunctionfiled March 18, 2004 (Docket Entry #61) for declaratory
and injunctive relief of State Officers under Ex Parte Young 209 U.S. 123 (1908) be permitted to be heard.
3. That we be granted standing to represent our daughter's
claims either as next friends or guardians ad litem.
4. That this Court direct the completion the oral record of
the state trial court in accordance with the Supreme Court's M.L.B. v S.L.J., 519 U.S. 102 (1996) to augment the
record here to resolve the truth of the matters contended necessary to
accurately qualify or disqualify Plaintiffs as guardians ad litem or next
STATEMENT OF RELATED CASES
are currently no related cases before this Court.
Jeffrey R. GOLIN, Elsie Y. Golin, Nancy K.Golin,
2004 WL 3155788
Briefs and Other Related Documents
(Back to top)
• 2005 WL 516589 (Appellate Brief) County Respondents' Brief (Jan.
Image of this Document (PDF)
• 2005 WL 516590 (Appellate Brief) Appellee Nancy J. Johnson's
Answering Brief (Jan. 19, 2005)Original
Image of this Document (PDF)
• 2005 WL 627252 (Appellate Brief) Joinder of Appellee Edna
Mantilla, Individually and Dba Embee Manor (Jan. 17, 2005)Original
Image of this Document (PDF)
• 04-15900 (Docket) (May. 10, 2004)
END OF DOCUMENT