UNITED STATES COURT OF APPEALS
ON APPEAL FROM THE
BRIEF OF APPELLEES REED, BRIGGS, MCKENNA, PENOYAR, BRIDGEWATER, HUNT, ALEXANDER, MADSEN, FAIRHURST, OWENS, AND JOHNSON
TABLE OF CONTENTS
|II.||COUNTERSTATEMENT OF ISSUES||1|
|III.||STATEMENT OF THE CASE||2|
|A.||Statement of Facts||2|
|1.||The Clark County Superior Court Enters Protection Orders in Two Domestic Violence Cases Involving Mr. Carr||2|
|2.||Mr. Carr Appeals the Orders of the Clark County Superior Court to the Washington Court of Appeals||3|
|3.||Mr. Carr Requests the Washington Supreme Court to Review the Court of Appeals' Decision||4|
|4.||Mr. Carr's Complaints to the Washington Judicial Conduct Commission||4|
|B.||Procedural History of Mr. Carr's Federal Lawsuit>||5|
|A.||Standard of Review||7|
|B.||The District Court Correctly Dismissed Counts I through VI||8|
|1.||The District Court Properly Held that the Rooker-Feldman Doctrine Bars Counts I through VI||8|
|2.||The District Court Properly Held Washington Preclusion Law Bars Counts I though VI||11|
|3.||The District Court Properly Held that Absolute Judicial Immunity Bars Counts I through VI||13|
|C.||The District Court Correctly Dismissed Count VII||15|
|1.||The Washington Supreme Court Does Not Select Election Candidates||15|
|2.||Washington's Requirement that Judicial Candidates Be Admitted to the State Bar is Constitutional, and Mr. Carr, as a Non-Lawyer, Lacks Standing||16|
|3.||Washington's Requirement that Judicial Candidates Pay a Filing Fee or File a Petition Supported by Voters' Signatures is Constitutional||18|
|4.||The Eleventh Amendment Bars Any Damages Claims Again ants Reed and McKenna||19|
|D.||The District Court Correctly Dismissed Count VIII||20|
|1.||Mr. Carr Lacks Standing and Cannot Demonstrate a Federal Right to Compel Defendant Briggs or the CJC to Pursue Disciplinary Action||21|
|2.||Defendant Briggs and the CJC Are Entitled to Absolute Immunity||24|
|3.||Mr. Carr Failed to Establish the Required Elements of a Claim Under 42 U.S.C. § 1986||26|
|4.||Defendant Briggs and the CJC Are Entitled to Immunity Under the Eleventh Amendment||28|
I. JURISDICTIONAL STATEMENT
The Amended Complaint filed by Appellant Pro Se Brian Carr alleges several claims involving federal questions - violations of the United States Constitution and related claims under 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1985 (2), and 42 U.S.C. § 1986. The district court has jurisdiction over federal questions under 28 U.S.C. § 1331.
Mr. Carr's Amended Complaint also alleged claims based on violations of the Washington State Constitution and other Washington statutes. The district court exercised supplemental jurisdiction over Mr. Carr's state law claims under 28 U.S.C. § 1367(a).
This court has jurisdiction over Mr. Carr's appeal from the district court's final order granting the defendants' motions for summary judgment under 28 U.S.C. § 1291.
II. COUNTERSTATEMENT OF ISSUES
III. STATEMENT OF THE CASE
A. Statement of Facts
The Clark County Superior Court Enters Protection Orders in Two Domestic Violence Cases Involving Mr. Carr
Mr. Carr and his ex-wife went through marital dissolution proceedings during 2004. His federal action arises out of two state court rulings in domestic violence cases issued in the Clark County Superior Court pursuant to Wash. Rev. Code 26.50: Cause Nos. 04-2-08824-4 and 04-2-08908-9. SER 60. Both of these cases were initiated by either Mr. Carr or his ex-wife. SER 60. The Superior Court entered a domestic violence protection order in favor of Mr. Carr's ex-wife and denied a request by Mr. Carr for a protection order in his favor. SER 11.
Mr. Carr Appeals the Orders of the Clark County Superior Court to the Washington Court of Appeals
Next, Mr. Carr filed a notice of appeal. SER 11. Defendants Joel Penoyer, C.C. Bridgewater, and J. Robin Hunt are judges who sit on Division II of the Washington Court of Appeals. SER 113. On May 9, 2006, these judges issued an opinion affirming the Clark County Superior Court orders of protection that had been entered against Mr. Carr and in favor of his ex-wife. Carr v. Huntting, 132 Wash. App. 1057 (2006), 2006 WL 1233082; SER 158-65. In its opinion, the Court of Appeals rejected arguments by Mr. Carr that his due process rights were violated:
Carr argues that his due process rights and his right to have a judge adjudicate his case were violated because Clark County allegedly appointed more than three court commissioners. However, a family law commissioner is not a `commissioner' within the meaning of the constitutional provision limiting the number of court commissioners in counties. Ordell v. Gaddis, 99 Wash. 2d 409, 409 - 10, 662 P.2d 49 (1983). Furthermore, in State v. Karas, 108 Wash. App. 692, 700 - 02, 32 P.3d 1016 (2001), we held that a domestic violence protective order did not violate the defendant's right to procedural due process and the statute granting authority to court commissioners included power to issue permanent protective orders under the Domestic Abuse Prevention Act. Therefore, Carr's challenge to the constitutionality of a protective order under the Domestic Violence Protection Act and to the commissioner's authority to issue the order must fail.
Finally, Carr argues that he was unable to appeal the protective order issued against him and that his motions were denied without a hearing. The trial court specifically found that a hearing was not necessary. Carr's motions did not comply with Civil Rule (CR) 76(b)(1), which requires an application for order to state with particularity the grounds for the motion, and to set forth the relief or order sought. We find no due process violation.
Carr v. Huntting, 132 Wash. App. 1057 (2006), 2006 WL 1233082, at *3 (Wash. App.); SER 164-65.
Mr. Carr Requests the Washington Supreme Court to Review the Court of Appeals' Decision
Mr. Carr next filed a petition for review of the Court of Appeals' decision in the Washington Supreme Court. SER 111. Defendants Gerry L. Alexander, Barbara Madsen, Mary E. Fairhurst, Susan Owens, and James M. Johnson are Justices of the Washington Supreme Court. SER 113. On January 31, 2007, the Washington Supreme Court denied Mr. Carr's request for review. Carr v. Huntting, 153 P.3d 196 (2007); SER 166.
Mr. Carr's Complaints to the Washington Judicial Conduct Commission
Mr. Carr alleges he filed complaints with the Washington Judicial Conduct Commission (CJC) on July 9, August 12, and October 16, 2006, but that CJC did not pursue the complaints. SER 127. State law provisions regarding the CJC, its function and activities, and its absolute discretion concerning the initiation of proceedings against state judicial officers, are taken from the Washington Constitution and Wash. Rev. Code 2.64.
B. Procedural History of Mr. Carr's Federal Lawsuit
On May 25, 2007, Mr. Carr filed a Complaint in federal district court against several Clark County Superior Court judges and commissioners who were allegedly involved in the above domestic violence cases. SER 1-27. He also named as defendants the above judges of the Washington Court of Appeals and justices of the Washington Supreme Court, who were involved in proceedings related to his appeal of the Clark County Superior Court's decisions in these cases. Id. Mr. Carr also sued Washington Secretary of State Sam Reed and Washington State Attorney General Robert M. McKenna. Id. Mr. Carr later filed an Amended Complaint to assert an additional claim against Wanda Briggs, Chair of the Washington CJC. SER 78-80. Mr. Carr asserted eight claims in his Amended Complaint, which were summarized by the district court as follows:
Mr. Carr admitted in paragraphs 12, 14, and 15 of his Amended Complaint that he raised claims I though VI above in the state trial and appellate court proceedings relating to the domestic violence protection orders surrounding his martial dissolution, and that the state courts made rulings unfavorable to him on these claims. SER 62-63. Mr. Carr requested damages and various other forms of declaratory and injunctive relief in his Amended Complaint. SER 80-84.
All defendants filed motions for summary judgment. On August 30, 2007, Defendants Reed, McKenna, Penoyar, Hunt, Alexander, Madsen, Fairhurst, Owens and Johnson filed a motion for summary judgment. SER 88-103. On August 31, 2007, Defendants Hams, Nichols, Johnson, Eiesland, Melnick, Hagensen, and Osler filed their motion for summary judgment. SER 309. On September 27, 2007, Defendant Briggs filed her motion for summary judgment. SER 279-293. Mr. Carr responded to each of these motions. SER 175-275, 316-359, 376-379.
On November 11, 2007, the district court entered an order granting all defendants' motions for summary judgment and dismissing Mr. Carr's case. SER 380-399. The district court found that Claims I through VI were barred by both the Rooker-Feldman doctrine and res judicata. Id. The court rejected Claim VII, upholding Washington's statutes governing the qualifications for judicial office as constitutional and holding that Mr. Carr had no standing to make a challenge to these statutes. Id. The court likewise determined that Mr. Carr had no standing to assert any cause of action against the Washington CJC and could not compel it to pursue a complaint or to take disciplinary action. Id. Finally, the court found that each of the defendants was entitled to absolute immunity. Id.
A. Standard of Review
"The district court's grant of summary judgment is reviewed de novo." Qwest Communications, Inc. v. City of Berkeley, 433 F.3d 1253, 1256 (9th Cir. 2006); See also Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (dismissal based on Rooker-Feldman reviewed de novo); Intri-Flex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (dismissal based on res judicata reviewed de novo). This Court may affirm a district court's dismissal on any ground supported by the record. Wolfe, 392 F.3d at 362.
B. The District Court Correctly Dismissed Counts I through VI
Claims I through VI above were raised by Mr. Carr in the state court proceedings and considered by the state trial and appellate courts. These claims are asserted against judges of the Clark County Superior Court and Washington Court of Appeals, as well as Justices of the Washington Supreme Court. The district court properly dismissed these claims, finding that they are barred by the Rooker-Feldman doctrine, res judicata, and absolute judicial immunity.
The District Court Properly Held that the Rooker-Feldman Doctrine Bars Counts I through VI
Under 28 U.S.C. § 1257, only the Supreme Court of the United States has jurisdiction over appeals from final state court judgments. "Accordingly, under what has come to be known as the Rooker-Feldman doctrine, lower federal courts are precluded from exercising appellate jurisdiction over final state-court judgments." Lance v. Dennis, 546 U.S. 459, 126 S. Ct. 1198 (2006). In Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005), the Supreme Court revisited the decisions giving rise to the Rooker-Feldman doctrine, explaining the rationale for its application as follows:
In [the Rooker and Feldman] cases, the losing party in state court filed suit in federal court after the state court proceedings ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment. Plaintiffs in both cases, alleging federal question jurisdiction, called upon the District Court to overturn an injurious state-court judgment. Because § 1257, as long interpreted, vests authority to review a state court's judgment solely in this Court, the District Courts in Rooker and Feldman lacked subject-matter jurisdiction.
Id at 291 - 92 (citations omitted).
"If issues presented in a federal suit are `inextricably intertwined' with issues presented in a forbidden de facto appeal from a state court decision, Rooker-Feldman dictates that those intertwined issues may not be litigated." Kougasian v. TMSL, Inc., 359 F.3d 1136, 1142 (9th Cir. 2004) (citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983)). Thus, where finding for the plaintiff requires the district court to hold that he state court was wrong, Rooker-Feldman will bar the plaintiff's federal lawsuit even if the state court did not address the legal arguments raised by the plaintiff in the district court. See, e.g., Doe & Assoc. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001); Samuel v. Michaud, 980 F. Supp 1381, 1411 (D. Idaho 1996) (claims raised in federal court need not have been argued in the state proceedings for them to be barred under Rooker-Feldman); See also Johnson v. Bd. of Bar Overseers of Mass., 324 F. Supp. 276, 285 (D. Mass. 2004) (lower federal courts have no jurisdiction to hear appeals from state court decisions, even if the state judgment is challenged as unconstitutional).
In Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003), this Court identified two general situations where the Rooker-Feldman doctrine will defeat the jurisdiction of a federal district court: (1) where the plaintiff complains of a harm caused by a state court judgment that directly withholds a benefit from or imposes a detriment on the federal plaintiff based on an allegedly erroneous ruling by that court; or (2) where the federal plaintiff complaints of a legal injury caused by a state court judgment based on an allegedly erroneous legal ruling in a case in which the federal plaintiff was one of the litigants. Id. at 1163. This case presents both of the circumstances identified in Noel.
In Counts I through VI of his Amended Complaint, Mr. Carr complains of harm allegedly caused by domestic violence orders for protection that were entered by the state courts. Mr. Carr was a party to the state court proceedings, which he litigated and appealed to the state appellate courts. While Mr. Carr makes a vague assertion that the state courts did not address some of the arguments he makes now, Mr. Carr admitted in paragraphs 12, 14, and 15 of his Amended Complaint that he raised these issues in state court. More importantly, overturning the state trial court, Washington Court of Appeals, and Washington Supreme Court by undoing these domestic violence protection orders is the central objective of claims I through VI in Mr. Carr's Amended Complaint. Therefore, even if the state courts did not specifically address each of the arguments Mr. Carr makes relating to these claims, they are inextricably intertwined with the state court's decision and consequently barred as a matter of law.
After the Washington Supreme Court rejected Mr. Carr's request for discretionary review, a final judgment was entered on January 31, 2007. Mr. Carr's only possible recourse following this final state court appeal was to petition the United States Supreme Court to review the decision under 28 U.S.C. § 1257. The district court correctly held that it lacked jurisdiction over these claims under the Rooker-Feldman doctrine.
The District Court Properly Held Washington Preclusion Law Bars Counts I though VI
Even if this court determines that Rooker-Feldman does not apply, dismissal of Claims I through VI of Mr. Carr's Amended Complaint should be affirmed based on the alternative holding by the district court that they are barred by res judicata. Federal courts must give the same preclusive effect to a state court judgment that the judgments would be given in the courts of the state from which the judgment emerged. Migra v. Warren City School Dist. Bd. Of Educ., 465 U.S. 75, 83, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984). This rule applies equally to claims brought in federal court under § 1983. Id. at 83-84 (citing Allen v. McCurry, 449 US 90, 97-99, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980)). The Constitution's Full Faith and Credit Clause, U.S. Const., art. IV, § l, which is implemented by the Federal Full Faith and Credit Statute, 28 U.S.C. § 1738, requires that federal courts honor state judicial determinations in this manner. Migra, 465 U.S. at 81.
Under Washington law, res judicata refers to "the preclusive effect of judgments, including the relitigation of claims and issues that were litigated, or might have been litigated, in a prior action." Loveridge v. Fred Meyer, Inc., 125 Wash. 2d 759, 763 P.2d 898 (1995). Res judicata applies to bar an action when it is identical to a prior state court action with respect to (1) persons or parties; (2) causes of action; (3) subject matter; and (4) quality of persons for or against whom the claim is made. Pederson v. Potter, 103 Wash. App. 62, 67, 11 P.3d 833 (2000). The prior action must also have resulted in a final judgment on the merits. Id.
Here, the district court correctly held that res judicata is an alternative ground for dismissing Counts I through VI. Mr. Carr was a party to both this case and the domestic violence cases in state court. Again, Mr. Carr admitted in his Amended Complaint that he presented the same claims and defenses in the state court cases that he asserts in Counts I through VI in his Complaint in federal district court. A federal court is required to give full faith and credit to a Washington court's decision regarding these issues, and it cannot allow Mr. Carr to re-litigate them in a federal forum. Thus, the district court correctly held that res judicata also bars these claims.
The District Court Properly Held that Absolute Judicial Immunity Bars Counts I through VI
The district court correctly held that Counts I through VI, which are asserted against judges of the Clark County Superior Court, Washington Court of Appeals, and Washington Supreme Court, are barred by these defendants' absolute judicial immunity. State court judges are absolutely immune from liability in damages for alleged deprivation of federal civil rights in underlying state court proceedings. Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099 (1978). Absolute immunity from damages claims will bar this suit even if "the action [the judge] took was in error, was done maliciously, or was in excess of his authority." Id. at 356-57 (The Stump court upheld this principle even though the underlying state court proceedings had resulted in the judicially-decreed sterilization of a minor).
The state court's "subject-matter jurisdiction" is key. Under Wash. Rev. Code 26.50.020, the Clark County Courts had general jurisdiction to consider, issue and enforce domestic violence orders. As to the appellate state court judges, Mr. Carr invoked the appellate jurisdiction of those tribunals. If a court has jurisdiction over the general subject matter, the judge is absolutely immune. Mullis v. U.S. Bankruptcy Court for Nevada, 828 F.2d 1385, 1389 (9th Cir. 1987). Furthermore, federal civil rights claims do not abrogate judicial immunity. Pierson v. Ray, 386 U.S. 547, 554-55, n.9 (1967); Tennev v. Brandhove, 341 U.S. 367, 71 S. Ct. 783 (1951). Judicial immunity bars all claims under 28 U.S.C. § 1981 through 1988. Haldane v. Chagnon, 345 F.2d 601, 603-04 (9th Cir. 1965).
Given that Counts I through VI are asserted against judges, Mr. Carr's requests for injunctive or declaratory relief pursuant to these claims are also barred by absolute immunity. In 1996 Congress amended the federal civil rights laws to enact absolute judicial immunity from injunctive or declaratory relief claims as well as damages claims: 28 U.S.C. § 1983, for example, provides "injunctive relief shall not be granted" in an action brought against "a judicial officer for an act or omission taken in such officer's judicial capacity." Wolfe v. Strankman, 392 F.3d 358, 366 (9th Cir. 2004); See also Huminski v. Corsmes, 386 F.3d 116, 137-38 (2d Cir. 2004) (the paradigmatic judicial act triggering immunity is the resolution of a dispute between parties invoking the jurisdiction of the court.); Ballew v. Bush, 2007 WL 1434500 (E.D. Ark. 2007) (28 U.S.C. § 1983 precludes injunctive relief against judges for an act or omission committed in the judge's judicial capacity.); LeClerc v. Webb, 2003 WL 21026709 (E.D. La. 2003) (Congress has provided that injunctive relief shall not be granted in a § 1983 action against a judicial officer).
Mr. Carr asserted Counts I through VI of his Complaint against judges of the state court trial and appellate courts for acts that were judicial in nature: resolving disputes in cases that were properly before them. The district court correctly held that these claims - whether seeking damages or equitable relief - are barred by their absolute judicial immunity.
C. The District Court Correctly Dismissed Count VII
Count VII of Mr. Carr's Amended Complaint challenged the statutes establishing the qualifications for judicial office in Washington, arguing that they violate his rights to due process, equal protection, and freedom of assembly under the U.S. Constitution. The district court correctly dismissed this claim, because Washington's statutory qualifications for judicial candidates are constitutional, and Mr. Carr lacks standing to bring this claim.
The Washington Supreme Court Does Not Select Election Candidates
Mr. Carr now argues that this claim is based on the contention that "[t]he Supreme Court in Washington has the ability to determine who run against them [sic] in upcoming elections." Br. Appellant at 20; SER 77. However, this contention is simply inaccurate. So long as a candidate meets the eligibility requirements for judicial office and pays the required filing fees and/or provides a petition supported by sufficient registered voters' signatures, a person may run for election by filing a declaration of candidacy with the Secretary of State. Wash. Rev. Code 29A.24.070. The Washington Supreme Court has no power to dictate who will declare candidacy in upcoming elections.
Washington's Requirement that Judicial Candidates Be Admitted to the State Bar is Constitutional, and Mr. Carr, as a NonLawyer, Lacks Standing
Wash. Const. art. IV, § 17 requires that Superior Court and Supreme Court judges be persons admitted to practice in the Washington courts. Wash. Rev. Code 2.06.050 and 3.34.060 impose the same requirement for state District Court and Court of Appeals candidates. Federal courts have upheld state laws that similarly make being a lawyer admitted to practice a qualification to hold state judicial office. For example, in O'Connor v. State of Nevada, 27 F.3d 357, 362 (9th Cir. 1994), the Court rejected First and Fourteenth Amendment challenges to Nevada laws mandating that State Supreme Court judges be attorneys. Plaintiffs were non-lawyers who were excluded from running for judicial office. The Court rejected the same claims Mr. Carr raises in this case that such laws impermissibly exclude non-lawyers and frustrate the voting preferences of the public. Id.; see also, Benham v. Driegert, 853 F. Supp. 951, 954 (N.D. Tex. 1994) (requirement that state judicial candidate obtain law degree and be in practice four years serves legitimate state objective of fostering a competent judiciary and burdens only candidates without law degrees who have little competence in the practice of law); Zielasko v. Ohio, 693 F. Supp. 577, 586-87 (N.D. Ohio 1988) (age restrictions on state judicial office holders do not violate freedom of association of voters or due process or equal protection rights of office seekers.)1 The district court correctly held that these requirements are lawful.___________________________
Though Mr. Carr has not alleged that laws requiring active bar
membership violate state law, the Washington courts have routinely
rejected such challenges. See In re Bartz, 47
Wash. 2d 161, 287 P.2d 119 (1955), and Kraft v.
Harris, 18 Wash. App. 432, 568 P.2d 828 (1977).
Furthermore, the district court correctly held that Mr. Carr, as a non-attorney, lacks standing to challenge Washington's laws governing qualifications of judicial candidates. SER 389. In order to demonstrate constitutional standing, a plaintiff must prove that (1) he or she suffered an injury in fact; (2) the existence of a causal connection specifically traceable to the unconstitutional conduct of defendants; and (3) the likelihood that a favorable outcome will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Given that Mr. Carr is not an attorney and not admitted to the Washington State Bar, he is not qualified to seek judicial office in Washington as a matter of law, and this court cannot provide him with any relief. Thus, the district court correctly held that he lacks standing to challenge these Washington Constitutional and statutory requirements. This Court need not address any further arguments by Mr. Carr relating to this claim.
Washington's Requirement that Judicial Candidates Pay a Filing Fee or File a Petition Supported by Voters' Signatures is Constitutional
Wash. Rev. Code 29A.24.091 declares, in part, that candidates for any office, compensated at an annual salary greater than $1,000, shall pay a filing fee of 1% of that office's salary. Alternatively, the statute states that persons lacking "sufficient assets or income" can submit a petition in lieu of filing fee that contains registered voters' signatures that equal the amount of the filing fee. Mr. Carr calculates this to mean that the statute would require him (if otherwise qualified) to either pay $1,320 or get 1,320 valid, qualifying signers on a petition to run for judicial office. SER 78.
The U.S. Supreme Court ruled that laws requiring indigent candidates to pay statutory fling fees, in the absence of reasonable alternative means of ballot access, fail to meet constitutional standards. Lubin v. Panish, 415 U.S. 709, 94 S. Ct. 1315 (1974). In response to that decision, however, states enacted statutes like Wash. Rev. Code 29A.24.091. They incorporate the "reasonable alternative means of ballot access" the Constitution requires and the federal courts have so held. See, e.g., Storer v. Brown, 415 U.S. 724, 740, 94 S. Ct. 1274 (1974); Andress v. Reed, 880 F.2d 239 (9th Cir. 1989); Cross v. Fong En, 430 F. Supp. 1036, 1040 (N.D. Cal. 1977).
In Andress, the plaintiff challenged a California statute that, like Wash. Rev. Code 29A.24.091, had a filing fee or required signatures on a petition to qualify for state elected office- The California law required Andress to obtain roughly 100,000 signatures in two months. It was upheld as an exercise of the state's "legitimate interest to ensure the seriousness of a candidate for statewide office ... through the signatures of significant numbers of registered voters." Andress, 880 F.2d at 242. This result was consistent with the Supreme Court's determination that requiring candidates to get 325,000 voter signatures in twentyfour days was constitutional. Storer, 415 U.S. at 740. Requiring plaintiff in this case to amass merely 1,320 signatures is constitutional. The district court correctly rejected Mr. Carr's challenges to these statutes.
The Eleventh Amendment Bars Any Damages Claims Against Defendants Reed and McKenna
Defendants Reed and McKenna were sued only in their official capacities. SER 64. The district court correctly held that the Eleventh Amendment to the United States Constitution bars any claims for damages against these defendants. SER 390. The Eleventh Amendment created immunity for the states from liability in federal cases brought by that state's own citizens as well as other state's citizens. Clark v. State of Washington, 366 F.2d 678 (9th Cir. 1966). This immunity also applies to state employees acting in their official capacities. Hirsh v. Supreme Court of California, 67 F.3d 708, 715 (9th Cir. 1995). This immunity protects states and their representatives from federal civil rights claims as well as other suits. Clark, 366 F.2d at 680. Mr. Carr apparently does not contest that any damages claims sought in Count VII against Defendants Reed and McKenna are barred, and this holding by the district court should consequently be affirmed.
D. The District Court Correctly Dismissed Count VIII
Count VIII of Mr. Carr's Amended Complaint was asserted against Wanda Briggs, Chair of the Washington CJC, in her official capacity. The district court correctly dismissed this claim on several grounds. First, Mr. Carr lacks standing and can demonstrate no constitutional or other federal right to compel Defendant Briggs or the CJC to pursue a complaint or otherwise take any action. Second, Defendant Briggs and the CJC enjoy absolute immunity to this claim, because it is premised on conduct that is quasi judicial and quasi -prosecutorial in nature. Third, Mr. Carr failed to show sufficient facts to make out a prima facie claim under 42 U.S.C. § 1986. Finally, any damages claims asserted by Mr. Carr against Defendant Briggs and the CJC are barred by the Eleventh Amendment.
Mr. Carr Lacks Standing and Cannot Demonstrate a Federal Right to Compel Defendant Briggs or the CJC to Pursue Disciplinary Action
As the district court noted, to establish a claim under the federal civil rights laws, a plaintiff must prove deprivation of a right or privilege secured by the U.S. Constitution or some federal statute. Dunham v. Wadley, 195 F.3d 1007, 1010 (8th Cir. 1999). "Statutes or policies that are only procedural, or that grant to a decision maker discretionary authority in their implementation ... do not create protected property interests." Id. Federal courts have rejected claims that an individual's right allows him to compel a state disciplinary agency, such as a bar association,. to institute or pursue a complaint. See, e.g., Saier v. State Bar of Michigan, 293 F.2d 756 (6th Cir. 1961); Doyle v. Oklahoma Bar Ass'n, 998 F.2d 1559 (10th Cir. 1993). The district court properly dismissed Mr. Carr's claim against Defendant Briggs and the CJC, because Mr. Carr has no federal right to compel the CJC to take any action and consequently lacks standing.
The CJC is a creature of Article IV, section 31 of Washington's Constitution. Wash. Rev. Code 2.64.120 confirms that the CJC is an independent part of the judicial branch of government. When it receives a complaint concerning a judge, the CJC is required to conduct an investigation, which is confidential.
The procedures for handling complaints and, if warranted, the disciplinary process applicable to state judges are contained in formal state procedural rules for the CJC. Its powers and duties are set forth in Washington Commission on Judicial Conduct Rules of Procedure (C.J.C.R.P.) 3(d) and include:
(6) Reviewing the recommendations of the investigative officer and/or disciplinary counsel after screening and a preliminary investigation, and either authorizing a full investigation of a complaint against a respondent in initial proceedings or dismissing the complaint;
(9) Where appropriate, making recommendations to the supreme court for discipline pursuant to Rule 24; or
(10) Dismissing the case.
C.J.C.R.P. 6 (b) enumerates the disciplinary measures the CJC may impose: the Commission may admonish, reprimand or censure a judge, but suspension or removal are only advisory recommendations that are left to the Supreme Court to affirm, reject or modify. Under C.J.C.R.P. 25, any decision adverse to the judge is reviewable by the Supreme Court---even the lesser sanctions-and the Court reviews the decision to sanction de novo.
This case is analogous to Doyle, where the court flatly rejected plaintiff's alleged standing. Holding that "a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another," the Tenth Circuit ruled that the public does not have either substantive or procedural due process rights to "compel the state to take punitive action against another person. Id. at 1568-69. "The fact that [plaintiff] filed a grievance guaranteed him nothing under state law by way of a certain outcome with respect to the discipline or lack of discipline of another person." Id. at 1570. The court further observed that the underlying court rulings that plaintiff was aggrieved by would in no way be changed by the outcome of the disciplinary complaints. Id.2___________________________
2 For a more detailed discussion of the topic "Private Citizens Do Not Have Standing to Initiate or Participate in Attorney Disciplinary Hearings," see Attorney Disciplinary Proceedings: Who Has Standing, 26 J. Legal Prof. 279, (2002).
The same result holds under state law. E.g., In the Matter of A Request for Investigation of an Attorney, 449 Mass. 1013, 1014, 867 N.E.2d 323, 324, 25 (2007) (Individual who files a complaint with Board of Bar Overseers lacks standing to challenge in court the Board's decision not to prosecute complaint); and Akinaka v. Disciplinary Bd. Of Hawaii Supreme Court, 91 Haw. 51, 59, 979 P.2d 1077, 1085 (1999) (Complainant has no right to dictate the course of an investigation or even compel Commission to take action on his complaint.); Washington Code of Judicial Conduct Preamble (2006) (The Code is not intended as a basis for civil liability or criminal prosecution.).
Under these authorities, the district court properly held that Mr. Carr has no standing to complain that the CJC failed to do his bidding. If the CJC had pursued Mr. Carr's alleged complaints and recommended sanctions be imposed, the proposed sanctions would still be subject to review by the Washington Supreme Court and the ultimate outcome in the disciplinary proceedings, as a matter of law, could not alter the conduct of the underlying state court proceeding and rulings he complains of in this case. More importantly, none of the above constitutional provisions, statutes or rules allows a complaining party to initiate disciplinary proceedings against state judges, other than through the CJC. No laws or rules allow plaintiff to appeal the CJC's exercise of discretion about proceeding with, or dismissing, a complaint lodged against a state judge. Thus, the district court correctly held that Mr. Carr lacked standing to bring this claim and failed to state an essential element of a civil rights claim.
For example, in Clark v. State of Washington, 366 F.2d 678 (9th Cir. 1966), the court affirmed dismissal of the Washington Bar Association and its employees due to the immunity the Bar enjoyed regarding suits arising out of its decision to disbar an attorney. The court extended immunity to those who exercise "prosecuting functions" or acted as "an integral part of the judicial process" and dismissed the plaintiff's claims. Id. at 681. The same rationale was applied to reject a lawsuit against California's Bar Association in Hirsh v. Justices of the Supreme Court of California, 67 F.3d 708, 715 (9th Cir. 1995) (Bar court judges and prosecutors are protected by quasi judicial immunity.) For the same reasons, absolute immunity bars Mr. Carr's claims based on the CJC's decisions to pursue, or not pursue, his complaints.
Claim VIII of Mr. Carr's Amended Complaint, which is asserted against the Chair of the CJC, is defective because it arises out of the alleged dismissal of complaints lodged with the CJC. Under state law, the CJC and its staff perform quasi judicial and prosecutorial functions. The Commission and staff have unlimited discretion to pursue disciplinary actions against judges based on citizen complaints. The rejection and dismissal of his complaints, as alleged by Mr. Carr, occurred because of the discretion vested by law in the CJC. The district court correctly held that absolute immunity defeats his claims in Count VIII.
Defendant Briggs and the CJC Are Entitled to Absolute Immunity
The district court also correctly dismissed Mr. Carr's claim against Defendant Briggs on the alternative ground that she is entitled to absolute immunity, because the activities of the CJC and Defendant Briggs as its chairman are quasi-judicial and prosecutorial functions. Administrative agencies and staff, such as the CJC and Defendant Briggs, are absolutely immune to lawsuits over decisions or actions that are functionally similar to those of judges or prosecutors. Olsen v. Idaho State Board ofMedicine, 363 F.3d 916, 926 (9th Cir. 2004); Mishler v.Clift, 191 F.3d 998, 1003-04 (9th Cir. 1999).
Mr. Carr Failed to Establish the Required Elements of a Claim Under 42 U.S.C. § 1986
Mr. Carr's claim against Defendant Briggs and/or the CJC was asserted under 42 U.S.C. § 1986. SER 80. The district court also correctly dismissed this claim, because Mr. Carr failed to prove the elements of a § 1986 cause of action. Mr. Carr has not addressed this holding by the district court in his .Appellant's Brief, and this holding should consequently be affirmed.
§ 1986 establishes certain prerequisites to a cause of action.3 First, § 1986 claims are entirely derivative of § 1985 conspiracy claims; if the plaintiff fails to allege and prove an actionable conspiracy under § 1985, there is no claim under § 1986. Park v. City of Atlanta, 120 F.3d 1157, 1159-60 (11th Cir. 1997); Wilson v. Moore, 270 F. Supp. 2d 1328, 1354 (N.D. Fla. 2003). Next, by its terms, the statute requires plaintiff to prove "knowledge" by Ms. Briggs of "wrongs conspired to be done [that] are about to be committed, and having power to prevent or aid in preventing of the same, neglects or refuses to do so." Finally, the statute contemplates liability in damages, but does not provide for injunctive or declaratory relief.___________________________
3 Fed. R. Civ. P. 56 requires Mr. Carr to show there are genuine and material fact issues to defeat summary judgment. Mr. Carr must prove a prima facie case as to each element of his § 1986 cause of action; he must produce admissible evidence and cannot meet his burden by offering "plausible scenarios" to support his claim. See Celotex Corp. v. Cetrett, 477 U.S. 317 (1986); Al-Zubaidy v. Tek Indus. Inc., 406 F.3d 1030, 1036 (8th Cir. 2005); Swanson v. Leggett & Platt, Inc., 154 F.3d 730, 7,33 (7th Cir. 1998).
Mr. Carr failed to allege and, therefore, could not meet his burden of proving these elements. As a preliminary matter, he claims he lodged complaints with the CJC in July, August and October, 2006. SER 79. However, the orders he complains of were issued or rejected in 2004 and early 2005. SER 159-161. The Court of Appeals' consideration of his appeals from these rulings terminated on May 9, 2006. Clearly, then, the CJC's allegedly wrongful conduct came after the allegedly wrongful judicial conduct. The judicial acts the CJC was supposed to prevent were not acts "about to be committed," as § 1986 requires. The CJC cannot be faulted for failing to prevent judicial acts that already had occurred by the time plaintiff supposedly complained about them.
Next, Mr. Carr did not allege a § 1985 "conspiracy" by the co-defendant judges. By definition, such a conspiracy requires proof of a "meeting of the minds" of the alleged conspirators to deprive someone of their civil rights that is accompanied by racial or other invidious discriminating animus. Roger v. Bruntrager, 841 F.2d 853, 856 (8th Cir. 1988); Friends of Falun Gong v. Pacific Cultural Enterprises, Inc., 288 F. Supp. 2d 273 (E.D.N.Y. 2003), aff'd 109 Fed. Appx. 442 (2004); Caldwell v. Green, 451 F. Supp. 2d 811 (E.D. Va. 2006). Mr. Carr makes no such allegation and could not prove any "conspiracy" as the trial and appellate judges, by Carr's pleaded allegations, acted separately and, if they harmed him, did so independently and at different times. There are no facts that prove that the CJC was aware of, and could have prevented, these separate judicial actions. There are no facts that prove a "conspiracy" of any kind. The district court properly dismissed Mr. Carr's claim for this reason, as well.
Defendant Briggs and the CJC Are Entitled to Immunity Under the Eleventh Amendment
Finally, the district court correctly held that any damages claims asserted by Mr. Carr against the CJC or Defendant Briggs are barred by the Eleventh Amendment for the same reasons that damages claims could not be asserted against Defendants Reed or McKenna. Mr. Carr has not addressed this ground for dismissal in the Appellant's Brief, and he apparently concedes it was correct. Thus, this holding by the district court must be affirmed.
The majority of Mr. Carr's claims were decided by the Washington state trial and appellate courts. The district court properly held that it was precluded from reftigating these claims by both the Rooker-Feldman doctrine and res judicata. Mr. Carr's remaining claims were correctly dismissed due to the defendants' immunity or because Mr. Carr failed to make out a cognizable claim. The district court's order dismissing this case should be affirmed.
RESPECTFULLY SUBMITTED this 30th day of January, 2008.
Attorneys for Appellees: Reed, Briggs, McKenna, Penoyar, Bridgwater, Hunt, Alexander, Madsen, Fairhurst, Owens and Johnson
TABLE OF AUTHORITIES
Akinaka v. Disciplinary Bd. Of Hawaii Supreme Court,
Allen v. McCurny,
Al-Zubaidy v. Tek Indus. Inc.,
Andress v. Reed,
Ballew v. Bush,
Benham v. Driegert,
Caldwell v. Green,
Carr v. Huntting,
Carr v. Huntting,
Celotex Corp. v. Cetrett,
Clark v. State of Washington,
Cross v. Fong Eu,
District of Columbia Court of Appeals v. Feldman,
Doe & Assoc. Law Offices v. Napolitano,
Doyle v. Oklahoma Bar Ass'n,
Dunham v. Wadley,
Exxon Mobil Corp. v. Saudi Basic Industries Corp.,
Friends of Falun Gong v. Pacific Cultural Enterprises, Inc.,
Haldane v. Chagnon,
Hirsh v. Supreme Court of California,
Huminski v. Corsmes,
In re Bartz,
In the Matter of A Request for Investigation of an Attorney,
Intri-flex Technologies, Inc. v. Crest Group, Inc.,
Johnson v. Bd. of Bar Overseers of Mass.,
Kougasian v. TMSL, Inc.,
Kraft v. Harris,
Lance v. Dennis,
LeClerc v. Webb,
Loveridge v. Fred Meyer, Inc.,
Lubin v. Panish,
Lujan v. Defenders of Wildlife,
Migra v. Warren City School Dist. Bd. Of Educ.,
Mishler v. Clift,
Mullis v. U.S. Bankruptcy Court for Nevada,
Noel v. Hall,
O'Connor v. State of Nevada,
Olsen v. Idaho State Board of Medicine,
Park v. City of Atlanta,
Pederson v. Potter,
Pierson v. Ray,
Qwest Communications, Inc. v. City of Berkeley,
Roger v. Bruntrager,
Saier v. State Bar of Michigan,
Samuel v. Michaud,
Storer v. Brown,
Stump v. Sparkman,
Swanson v. Leggett & Platt, Inc.,
Tenney v. Brandhove,
Wilson v. Moore,
Wolfe v. Strankman,
|7, 8, 14|
Zielasko v. Ohio,
|U.S. Const., art. IV, § 1||12|
|Wash. Const. art. IV, § 17||16|
|28 U.S.C. § 1257||8, 11|
|28 U.S.C. § 1291||1|
|28 U.S.C. § 1331||1|
|28 U.S.C. § 1367(a)||1|
|28 U.S.C. § 1738||12|
|42 U.S.C. § 1981||1|
|42 U.S.C. § 1983||1, 12, 14, 15|
|42 U.S.C. § 1985(2)||1, 26, 27|
|42 U.S.C. § 1986||passim|
|Wash. Rev. Code 02.06.050||16|
|Wash. Rev. Code 02.64||5|
|Wash. Rev. Code 02.64.120||21|
|Wash. Rev. Code 03.34.060||16|
|Wash. Rev. Code 26.50||2|
|Wash. Rev. Code 26.50.020||13|
|Wash. Rev. Code 29A.24.070||16|
|Wash. Rev. Code 29A.24.091||18, 19|
|C.J.C.R.P. 06 (b)||22|
Attorney Disciplinary Proceedings: Who Has Standing, 26 J. Legal Prof. 279, (2002)
Washington Code of Judicial Conduct Preamble (2006)
Certificate of Compliance Pursuant to Fed. R. App. P. 32(a)(7)(C) and Circuit Rule 32-1 for Case Number NO. 07-35962
Form Must Be Signed by Attorney or Unrepresented Litigant And Attached to the Back of Each Copy of the Brief
I certify that: (check appropriate option(s))
|X||1.||Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-I, the attached opening/answering/reply/cross-appeal brief is|
|•||Proportionately spaced, has a typeface of 14 points or more and contains 6,729 words (opening, answer, and the second and third briefs filed in cross-appeals must not exceed 14,000 words; reply briefs must not exceed 7,000 words),||or is|
|•||Monospaced, has 10.5 or fewer characters per inch and contains ________ words or ________ lines of text (opening, answering, and the second and third briefs filed in crossappeals must not exceed 14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of text).|
|2.||The attached brief is not subject to the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because|
|•||This brief complies with Fed. R. App. P. 32(a)(l)-(7) and is a principal brief of no more than 30 pages or a reply brief of no more than 15 pages;|
This brief complies with a page or size-volume limitation
established by separate court order dated ________ and is|
|3.||Briefs in Capital Cases|
This brief is being filed in a capital case pursuant to the typevolume
limitations set forth at Circuit Rule 32-4 and is|
|•||Pursuant to Fed. R. App. P. 29(d) and 9t" Cir. R. 32-1, the attached amicus brief is proportionally spaced, has a typeface of 14 points or more and contains 7,000 words or less,||or is|
|•||Monospaced, has 10.5 or fewer characters per inch and contains not more than 7,000 words or 650 lines of text,||or is|
|•||Not subject to the type-volume limitations because it is an amicus brief of no more than 15 pages and complies with Fed. R. App. P. 32(a)(1)(5).|
1 - 30 - 08
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN P. CARR
SAM REED, et al
STATEMENT OF RELATED CASES
There are no known related cases pending in this court. This Statement is made in accordance with the requirements of Ninth Circuit Rule 28-2.6.
RESPECTFULLY SUBMITTED this 30th day of January, 2008.
Attorneys for Appellees: Reed, Briggs, McKenna, Penoyar, Bridgwater, Hunt, Alexander, Madsen, Fairhurst, Owens and Johnson
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN P. CARR
SAM REED, et al
CERTIFICATE OF SERVICE
I hereby certify that on January 30, 2008, I arranged for the original and 15 copies of the Brief of Appellees Reed, Briggs, McKenna, Penoyar, Bridgewater, Hunt, Alexander, Madsen, Fairhurst, Owens and Johnson (including Statement of Related Cases and Rule 32 Certificate of Compliance), and five copies of Appellees' Supplemental Excerpts of the Record, to be delivered by Federal Express overnight delivery service, for filing with the 9th Circuit Court of Appeals on January 30, 2008, at the following address:
Office of the Clerk
United States Court of Appeals for the 9th Circuit
95 Seventh Street
San Francisco, CA 94103-1526
And, I hereby certify that on January 30, 2008,1 arranged for service upon the Plaintiff Appellant, one copy of the Brief of Appellees Reed, Briggs, McKenna, Penoyar, Bridgewater, Hunt, Alexander, Madsen, Fairhurst, Owens and Johnson (including Statement of Related Cases and Rule 32 Certificate of Compliance), and one copy of Appellees' Supplemental Excerpts of the Record, by Federal Express at the following address:
Brian P. Carr
11301 N.E. 7th Street Apt. J5
Vancouver, WA 98684
And, I hereby certify that on January 30, 2008, I arranged for service upon the CoDefendants-Appellees, one copy of the Brief of Appellees Reed, Briggs, McKenna, Penoyar, Bndgewater, Hunt, Alexander, Madsen, Fairhurst, Owens and Johnson (including Statement of Related Cases and Rule 32 Certificate of Compliance), and one copy of Appellees' Supplemental Excerpts of the Record, by Federal Express at the following address:
Bernard F. Veljacic
Clark County Prosecuting Attorney, Civil Division
PO Box 5000
Vancouver, WA 98666-5000
VALERIE TUCKER - Legal Assistant