California Coalition Files Motion to Enjoin All California Domestic Violence Restraining Orders as First Amendment Violation and Tool of Racketeering
February 26, 2014—San Diego, CA—California Coalition for Families and Children today files a Motion for Preliminary Injunction in its ongoing civil rights and racketeering case against the Domestic Dispute Industry. In their Motion, the Coalition argues that the standard for invoking a domestic violence restraining order under the California Family Code—“abuse” –is an overbroad and vague content-based restriction on free speech, and therefore illegal. From the Motion:
MEMORANDUM OF POINTS AND AUTHORITIES
Domestic violence is a serious national concern. United States Department of Justice statistics indicate that despite a decrease in frequency of intimate partner violence over the last twenty years, incident rates for nonfatal domestic violence remain at two tenths of one per cent of the population. Voluminous research, writing, and debate regarding the causes, nature, and appropriate means of eradicating this social malady have not resolved the controversy among researchers about how to eradicate the offensive persistence of domestic strife.
The solution legislated by the state of California and enabled by Defendant JUDICIAL COUNCIL is a courageous initiative consisting of a body of laws, regulations, policies, formwork, and practice standards guiding the behavior of social workers, criminal prosecutors, public and private civil attorneys, judges, court staff, administrators, and law enforcement animating unique oversight and restrictions on those most likely to be involved in domestic violence crimes: Families. Thousands of studies commissioned by state and federal governments have shown in abundance that families are statistically more likely to commit crimes of domestic violence. One attorney for the United States Department of Justice recently explained that every domestic relationship is a potential “powder keg” warranting special government attention. Even more studies proving this clear point are ongoing, yet the final solution to how undesirable family discord will be fully exterminated remains illusive. Stuart Decl. ¶¶ 34-34.
In pursuit of this end, state and local entities in California devote special attention to families in order to deter behavior which may lead to injury. This Motion asserts that one embodiment of California’s scheme to eradicate domestic violence—preventive restraining orders—fails to properly observe constitutional boundaries. Specifically, to what extent may police powers be deployed onto families to accomplish desirable goals of domestic violence deterrence without overstepping constitutional restrictions on the use of state-sponsored tools of coercion?
This Motion offers that California’s present scheme to eradicate domestic strife penalizes behavior that (1) is expressly protected by clearly-established fundamental state and federal constitutional rights, (2) violates no law, (3) causes no compensable injury, and (3) may not found any action in equity outside of the jurisdiction of domestic relations courts. Among the wide array of appropriate tools available to the state of California in responding to undesirable behavior, California’s coercive intervention scheme has overstepped clear constitutional boundaries, is of unproven efficacy, is widely abused as a tool for fraud and extortion, and demeans the integrity and effectiveness of our civil and criminal justice institutions. Based upon these deleterious consequences and the strong likelihood of prevailing on questions of law, Plaintiffs seek an order enjoining substantial ongoing illegal interference with the protected liberty interests of citizens of the United States and the State of California.
The complete story, pleadings, and analysis from Weightier Matter.
The June 3, 2014 judicial election that tags along with the political party primaries is ordinarily a sleeper, but this year an incumbent Judge—Lisa Schall—is facing a stiff challenge from a startup outsider: Assistant United States Attorney Carla Keehn.
The rare challenge to a sitting judge has swept the San Diego Superior Court bench into some early controversy as Schall’s judicial colleagues mobilize to her defense by going on the offense against her challenger’s campaign support base. Two San Diego Superior Court judges, David Rubin and Paula Rosenstein, have deployed the Superior Court’s own political capital to aid Schall’s bid for re-election by not-so-subtle coercion toward Keehn’s supporters.
On Friday February 21, 2014, the San Diego Union Tribune broke the story pointing to potential manipulation of Keehn’s campaign by San Diego’s entire Superior Court bench. The UT reported that one of the groups that had endorsed Keehn, Tom Homann Lawyer’s Association (THLA), had been pressured by Rubin and Rosenstein to withdraw their endorsement.
Nicholas Fox, President of THLA, wrote to Keehn on Feburay 10 expressing what he called “concerns” he was receiving from Judges Rubin and Rosenstein as well as “their colleagues at the Superior Court” about Keehn’s candidacy. Weightier Matter has obtained a copy of the email. In it Fox writes:
As you know, both Judge Rubin and Judge Rosenstein have expressed a concern coming from their colleagues on the Superior Court regarding your running against a sitting judge. As strong supporters of THLA, Judges Rubin and Rosenstein wanted to alert THLA of these concerns.
As you know, many judges on the Superior Court support THLA and its mission. They attend our events, including our annual dinner. In fact, I think the THLA annual dinner has the best showing from the Superior Court as compared to all other diversity bar associations. Our good relationship with the bench is something we have worked hard to establish, and something we cherish and need to protect.
Many of THLA’s lawyer members practice in the San Diego county courts, and Fox claims those attorneys also expressed concern about judges becoming alienated by THLA’s endorsement of a challenger to one of their judicial colleagues. Fox’s email goes on to describe “tension” between THLA and the San Diego bench:
The underlying tension is that these supportive judges are concerned by a THLA Board member taking on one of their colleagues in an election. Although all judges are individuals and subject to electoral challenge, they also collectively form part of the greater “Superior Court.” There is a great deal of collegiality among judges, and having a Board member of an organization that the judges strongly support directly challenge one of their own colleagues has raised concern.
Fox explains that by February 10 “tension” between the Court and THLA had spread to other THLA board members and “the legal community” in general. Fox conveys fears that by sticking by their endorsement of Keehn, THLA’s members would “alienate allies” on the bench, and that THLA’s members who appeared before Superior Court judges would suffer. Fox writes:
There is a generally expressed a concern that a Board member openly challenging a sitting judge will reflect poorly on the organization and be seen as an affront to the Superior Court and its sitting judges generally. The Superior Court’s perception of THLA may be negatively affected (as is perhaps evidenced by the concerns received thus far)
Fox didn’t write Keehn merely to pass along concerns from the bench. Keehn had been a member of THLA’s Board of Directors for years prior to her announced candidacy, and had sought, and obtained, the group’s support when she announced in October. But in the February email Fox notified her that THLA no longer wanted Keehn on its Board:
Because of the concerns coming from various sectors in the legal community, we ask that you consider resigning from the Board during the pendency of the election. This will protect THLA by not having a current Board member directly challenge a sitting judge, and hopefully will alleviate concerns from the Board and bench that THLA’s reputation may be damaged as part of the electoral process.
Fox also notified Keehn that THLA’s prior endorsement of her candidacy was no longer valid—as a matter of “policy”:
In addition, because of these changed circumstances, I need to emphasize that the endorsement THLA provided to you back in October 2013 was for an election to a vacant seat on the bench. Now that you are running against a sitting judge and not for a vacant seat, THLA’s prior endorsement is no longer in effect under Policy 2 of our Standing Policies and Procedures.
Fox, a lawyer at San Diego’s office of Foley & Lardner, explained that he was not withdrawing the endorsement, but that because Keehn had “changed” from running for an open seat to running against an incumbent, THLA’s endorsement was no longer good.
Fox expressed no reservations about Keehn’s merit against Schall, offering:
From my personal perspective, I think it is great you are running for judge, and I of course want you to be successful (in the election or otherwise). However, my personal opinions are irrelevant to the issues above. As members of the Board, we are stewards of the organization. We have a duty to the organization not only to promote what is in the best interests of THLA, but also to avoid actions that may harm THLA or its reputation.
In response to Weightier Matter’s email requesting clarification, Fox advised yesterday that Keehn has not resigned, but that if she chooses to do so “she would be welcome to return to the Board after the election if she is willing and able to do so. The proposal that she resign was only for the pendency of her campaign.”
Fox also confirmed to Weightier Matter that his statements in the email regarding the “pressure” coming from the entire San Diego “Superior Court bench” was a “mischaracterization.” Fox told Weightier Matter “there was a misunderstanding on my part. Everything is cleared up, as Judge Rubin noted in his comments in the U-T article.” The UT quoted Rubin as stating that his comments about “concerns” from the bench were “not in any way advocating on behalf of my colleagues.”
Keehn also reports having received “other calls from the bench” “urging her to reconsider.”
Judges Went on Attack Once Schall Was Challenged
When Keehn announced her candidacy in October, the seat she was running for was vacant. Her professional colleagues enthusiastically supported her. She sought the official endorsement of THLA, which did so. However, when the open seat she was running for became unavailable, Keehn chose to capitalize on the momentum she had built since October, and switched her candidacy to challenge Schall, who’s term ends this year.
Schall’s colleagues on the bench and throughout the county mobilized, mounting a collective defense as well as going on the offensive. Schall’s election website went live early last week promoting that “all 127 judges of the San Diego Superior Court” have endorsed her, as have District Attorney Bonnie Dumanis, City Attorney Jan Goldsmith, and Public Defender Harry Coker.
Good Reasons To Challenge a Problem Judge?
Keehn is not alone if she senses that Schall may not be the best choice for further public service. In her three terms Schall has been the subject of three public admonishments from the California Commission on Judicial Performance, and is at the center of an ongoing racketeering lawsuit brought by California Coalition for Families and Children based on Schall’s performance on the Family Court bench, irritating parents to the point of bringing a racketeering lawsuit. California Coalition also reports additional complaints that have not been published by the Commission, but are made part of the Coalition’s First Amended Complaint.
Keehn apparently tuned in to the public discord surrounding Schall, and decided to give voters a choice. “I’m a qualified candidate. And I think I would make a good judge,” Keehn said. “The California constitution mandates that every six years Superior Court judges come up for re-election. This makes them accountable to the citizens of their counties. It gives voters a chance to choose who should hold the office based on each candidate’s qualifications and their record.”
Carpe Dicta researched Keehn’s qualifications and reports her to be an extraordinarily talented lawyer with a diverse personal and professional background. Her academic accomplishment include degrees from Princeton University and University of California, Hastings College of the law, exemplifying the highest academic achievement, discipline, and intelligence. As a federal prosecutor she participated in a remarkable variety of criminal prosecutions and in developing pilot drug offender diversion programs for alternative sentencing, saving taxpayers the expense of high security lockups for low-risk drug offenders. Her website bio indicates she served as a lead prosecutor in the military Judge Advocate General (JAG) Corp, has competed in over twenty marathons, and is a mother of three. She has served both as a prosecutor and public defender in over thirty years of public service.
Keehn’s entry in the June contest brings not only controversy to an ordinarily pedestrian contest, but a very rare choice to business as usual on the bench. County judges are ordinarily appointed by the Governor from San Diego County’s District Attorney’s Office. Most are groomed for the position by more senior local prosecutors and judges, and once elected they rarely face a serious challenger. The strong resistance to Keehn’s candidacy from the sitting bench reveals the level of behind-the-scenes pressure that can prevent qualified challengers from seeking office. The result is a high percentage of former District Attorney criminal prosecutors with little fear of accountability managing not only criminal courtrooms, but civil, family, probate, juvenile, and appeal calendars.
Federal prosecutors are not part of that herd, in part because federal agencies are at times adverse to state agencies. Federal law enforcement, courts, and politicians possess substantial oversight responsibility for state and local officials to prevent campaign corruption and civil rights enforcement, drug interdiction, election oversight, and competing border issues. A federal presence on the state court bench represents a potentially strong independent influence that is—according to at least two judges who claim not to advocate for any others—unwelcome.
At Weightier Matter we think that kind of diversity may be well worth welcoming, and keeping, on the Board of San Diego County’s most important law organization.
Stay tuned as Carpe Dicta and Weightier Matter bring more coverage and analysis of a race that’s shaping up to be a real choice between an ambitious novel talent and business as usual in San Diego.
Assistant City Attorney Emily Garson’s Assault on Parents Seeking Family Court Reform Detailed by California Coalition
California Coalition’s recently-filed Amended Complaint in its Racketeering lawsuit details the collaboration between the San Diego City Attorney’s Office and the San Diego Divorce Industry to silence parents affecting reform. The Complaint details collaboration between the City Attorney, Jan Goldsmith who is a former family court judge, his wife, Christine Goldsmith, sitting family court jduge, Michael Groch, sitting family court judge, and Assistant City Attorney Emily Garson, the “point woman” prosecutor manufacturing evidence and comitting perjury to prosecute CCFC President Colbern Stuart.
From the Complaint:
Prosecutorial Misconduct of Assistant City Attorney Emily GARSON
1. On about March 24, 2010, on information and belief, San Diego Assistant City Attorney Ms. Emily Garson (GARSON), made out a perjurous complaining witness declaration based on falsified or altered evidence, causing STUART to be charged with several misdemeanor violations of Cal. Pen.C. § 653m(a) (harassing by electronic communication) and (b) (repeated harassing by electronic communication), and one alleged misdemeanor violation of Cal.Pen.C. § 646.9(a) (stalking). The case GARSON initiated is identified as People of the State of California v. Colbern Stuart, San Diego Superior Court Case No. M104094DV (“People v. Stuart”).
2. The evidence of STUART’S crime has been kindly provided to this Court by counsel for Ms. Stuart at Doc. No. 48-14. The emails therein are impolite, rude, and indeed contain vulgarities. Yet unlike the sworn declaration that utilized those emails to initiate a retaliatory criminal prosecution and solicit a sentence of four years, the emails are not, and cannot be, crimes. See, U.S. v. Alvarez, 567 U.S. ___, 132 S.Ct. 2537 (2012).
3. GARSON lacked probable cause to initiate the People v. Stuart matter. Her sworn declarations as a complaining witness in doing so are crimes—felonies under federal law—several and severe. STUART has endured years in persecution as a result of such outrageous behavior. He re-appears today to redress those acts for himself and, he prays, thousands of others who have suffered similar and even more outrageous insults, violations, deprivations, and injuries under the indecency of those who today occupy offices of honor, yet who regularly debase those offices while driven by motives no one, perhaps not even they themselves, could honor.
4. Such behavior was intended to retaliate, obstruct, and deprive STUART of rights, privileges and immunities under state and federal Constitutions, constituting numerous misdemeanors under federal law. STUART’S subsequent arrests, imprisonment, injury, and severe mental distress constitute numerous serious felonies under state and federal law, as detailed fully below.
5. GARSON’S acts in investigating, manipulating evidence, witnesses, and the San Diego Superior Court, and initiating the prosecution of the People v. Stuart matter constitute CULPABLE and UNREASONABLE breach of one or more PROFESSIONAL DUTIES, and have foreseeably resulted in deprivations of STUART’S clearly-established rights under the First Amendment to the Constitution of the United States. Such acts are not immune from criminal accountability, and those on which the Claims of this Count are based, are not immune from civil.
6. These acts of GARSON will be referred to as GARSON PERJURY ONE.
7. On about April 6, 2010, GARSON caused to be filed a second perjurous Declaration In Support of Arrest Warrant relating to People v. Stuart containing similar false statements and misrepresentations based upon the same purported evidence. This documents is filed, though not authenticated, in this matter at Dkt#16-1, Ex. “A.”
8. The acts of GARSON in relation to the Declaration in Support of Arrest Warrant shall be referred to as GARSON PERJURY TWO.
9. On information and belief, GARSON collaborated, agreed, affiliated, and conspired with her boss, San Diego City Attorney and former San Diego Superior Court Family Division judge Jan Goldsmith, and her boss’s wife, sitting Family Division judge, and instant Defendant Christine Goldsmith, in such activities. On information and belief, C. Goldsmith and J. Goldsmith supervised, directed, encouraged, facilitated, and tolerated GARSON PERJURY ONE and TWO to interfere with and retaliate for Plaintiffs’ PUBLIC BENEFIT ACTIVITIES and the DUE ADMINISTRATION OF JUSTICE.
10. On information and belief, GARSON, J. GOLDSMITH, and C. GOLDSMITH did so with the knowledge and support of SCHALL and WOHLFEIL, all of whom acted with the specific intent to retaliate against STUART for the DDIJO COMPLAINTS I and II against them.
11. Defendants C. GOLDSMITH, J. GOLDSMITH, GARSON, SCHALL, and WOHLFEIL will hereafter be referred to as “CITY ATTORNEY DEFENDANTS.”
12. Based upon GARSON PERJURY ONE and TWO, CITY ATTORNEY DEFENDANTS caused STUART to be imprisoned without probable cause causing a false imprisonment for approximately 10 hours by agents of GORE. At the time STUART was imprisoned by GORE, GORE knew or should have known of the perjurous and retaliatory nature of the CITY ATTORNEY DEFENDANTS’ acts (FALSE IMPRISONMENT 1).
13. STUART became aware of the charges in the People v. Stuart matter in late April,
14. STUART became intimidated, frightened, and oppressed as a result of CITY ATTORNEY DEFENDANTS’ illegal activities, and refrained from pursuing the CLAIM AND DEMAND, DUE ADMINISTRATION OF JUSTICE, PUBLIC BENEFIT ACTIVITES, and this Action.2010. STUART perceived the charges to be illegal actions to retaliate for, deter, and oppress Plaintiffs from pursuing PUBLIC BENEFIT ACTIVITIES, the CLAIM AND DEMAND, and the DUE ADMINISTRATION OF JUSTICE.
Prosecutorial Misconduct in People v. Stuart
15. In about June or July, 2010, STUART appeared for arraignment on the above-referenced misdemeanor charges relating to People v. Stuart.
16. STUART requested his attorney to discuss the case with the prosecutor representing the CITY ATTORNEY DEFENDANTS to determine the basis for the charges. STUART’S attorney approached the Assistant City Attorney prosecuting the matter, on information and belief Ms. GARSON, to initiate discussions.
17. After a few minutes of discussion, STUART’S attorney returned and explained to STUART to the effect that GARSON was “really pissed off on this one.” He stated that GARSON was angry for “something you did at a bar association meeting.” STUART recognized this as the STUART ASSAULT and the same “criminal trespass” charge that SDCBA’S insurance carrier had made. STUART explained the circumstances of the STUART ASSAULT to his attorney, who was unable to draw any conclusions.
18. STUART’S attorney advised that the GARSON stated she was intending to add more charges. Based on his conversation with GARSON, he surmised and advised STUART that GARSON was intending to “bump it up to a felony.” STUART’S attorney advised STUART to the effect of “they’re going to throw everything they can at you on this one.” STUART understood the “everything” to mean charging STUART for a felony relating to ENGAGEMENT based on the same charge that CHUBB had made as “criminal trespass.” A further status conference was scheduled to permit GARSON to amend the criminal complaint with more charges.
19. Sensing that the CITY ATTORNEY DEFENDANTS were using the threat of a felony or “criminal trespass” charge as an intimidation tactic retaliate against STUART for his CLAIM AND DEMAND, the DDIJO COMPLAINTS, DUE ADMINISTRATION OF JUSTICE, and PUBLIC BENEFIT ACTIVITIES, on two occasions between about May 1, 2010 and February, 2011, STUART contacted GARSON by telephone, requesting that GARSON drop all charges in exchange for STUART’S backing off of the DUE ADMINISTRATION OF JUSTICE, the CLAIM AND DEMAND, and PUBLIC BENEFIT ACTIVITIES. GARSON refused to return STUART’S telephone overtures. On information and belief, GARSON’s notes or other documents related to the People v. Stuart matter will reflect these communications.
20. At a subsequent status conference STUART was arrested immediately upon appearing in court illegally and without probable cause as a foreseeable consequence of the GARSON PERJURY ONE and TWO, causing a false imprisonment for approximately 12 hours in the custody of GORE, who knew or should have known of the malicious and retaliatory nature of the prosecution and arrest (FALSE IMPRISONMENT 2).
21. After he was illegally imprisoned, STUART’S attorney conferred with GARSON about the case and charges. He advised STUART, who was in custody, to the effect of “They’re adding more charges for stalking and harassment” and that the charges related to “something about the bar association.” He had few details but asked STUART to explain his understanding of the email exchanges and bar association events.
22. STUART summarized the events of the “annoying email” exchanges between him and his ex-wife, and the SDCBA ENGAGEMENT and SEMINAR, including the CLAIM AND DEMAND and the CHUBB “criminal trespass” threat. The attorney indicated to the effect that “653m is unconstitutional” but that prosecutors “still charge it to get you to agree to a protective order.” He advised that “they never seek jail time on these.”
23. After further conversations with GARSON, the attorney returned to advise STUART that the City Attorney’s Office was taking an unusually hard line on the case. He advised GARSON would be seeking to add new stalking charges as a felony.
24. STUART understood the “new charges” to relate to the threat of a “criminal trespass” and/or “felony stalking” “CounterClaim” originally made by CHUBB. Because he was under ongoing prosecution for an illegal charge against protected speech, and threatened with additional illegal charges STUART was intimidated and frightened to take any action to assert the CLAIM AND DEMAND, DUE ADMINISTRATION OF JUSTICE, or further PUBLIC BENEFIT ACTIVITY.
25. On information and belief, while STUART was in custody GARSON requested and received leave to add several additional misdemeanor charges, but no felony stalking charge.
26. In or about December, 2010-January, 2011, Stuart attended a pre-trial conference in the People v. Stuart matter. He was once again arrested immediately upon appearing. The arrest was without probable cause and a foreseeable consequence of the GARSON PERJURY ONE and TWO, causing a false imprisonment for approximately 10 hours in the custody of GORE, who knew or should have known of the malicious and retaliatory nature of the prosecution and arrest (FALSE IMPRISONMENT 3).
27. STUART’S attorney, Mr. Solomon Chang, advised consistent with prior attorneys that the City Attorney’s Office and GARSON were taking an unusually hard line in the case, and still seeking to add additional charges. Mr. Chang indicated the additional charges would include what he described as “felony stalking” charges. STUART understood these charges to relate to the bar association false “criminal trespass” theory.
28. STUART’S attorney inquired if GARSON would be willing to negotiate to dismiss the charges in exchange for backing off the CLAIM AND DEMAND, DUE ADMINISTRATION OF JUSTICE, and PUBLIC BENEFIT ACTIVITIES. Mr. Chang advised he would speak with GARSON. He did so, and returned, advising “no way” and to the effect “they want you to serve time on this one” and “you really made them angry.” He asked for more details about the ENGAGEMENT, and STUART ASSAULT. STUART shared the details, and Mr. Chang advised caution—to “wait and see” whether the City Attorney would be adding felony charges, or leaving the charge as several misdemeanors.
29. STUART was released from imprisonment the following day. He thereafter remained in fear that the CITY ATTORNEY DEFENDANTS would add manufactured charges based upon the “criminal trespass” and “bump it up” to a charge for “felony stalking.”
30. On the first day of the People v. Stuart trial in late February, 2010, before jury selection the assigned trial judge Michael GROCH placed STUART under “house arrest” illegally and without probable cause as a foreseeable consequence of the GARSON PERJURY ONE and TWO, causing a false imprisonment of approximately one week (FALSE IMPRISONMENT 4). STUART was not charged, arraigned, or prosecuted for any crime.
31. GROCH ordered that STUART could avoid being jailed through trial only if he rented a hotel room in downtown San Diego and did not travel beyond the hotel and the downtown County courthouse. GROCH denied STUART’S request to return to his home in Los Angeles during the week-long trial to gather clothing and toiletries. GROCH did not advise STUART of any charges or violation of law. Such acts, though possibly immune from civil suit, constitute “monstrous” felony criminal violations of STUART’S rights relating to SEARCH AND SEIZURE, PROCEDURAL and SUBSTANTIVE DUE PROCESS, and CRUEL AND/OR UNUSUAL PUNISHMENT.
32. Mr. Chang failed to object or seek hearing on the illegal arrest, explanation of charge, or other remedy for STUART’S arrest and “house arrest” sentence, advising only to the effect “I told you, they’re pissed.” STUART immediately purchased a hotel room for the entire week, and was forced to purchase several suits, shirts, ties, undergarments and toiletries to last through the week-long trial.
33. On information and belief, the People v. Stuart matter was GROCH’S first trial since being appointed from the District Attorney’s Office four months earlier, and also on information and belief his last. GROCH was transferred to the Superior Court’s Family Law Division shortly after the People v. Stuart criminal matter, where he remains.
34. On the first day of trial, before jury selection, Mr. Chang again advised to the effect that Assistant City Attorney GARSON was “holding” additional charges for felony stalking relating to the “bar association.”
35. STUART advised Chang that he could testify as to the bar association events to prove they were not “stalking” but free speech activity. Chang told STUART “you can’t testify in this case,” explaining that they City Attorney would be able to elicit testimony relating to the ENGAGEMENT and bring more serious charges accusing such acts as a pattern of “felony stalking” in addition to whatever charges the City Attorney was then “holding.”
36. STUART protested that such charges would be unfounded. Chang politely agreed, but advised “they might still bring the stalking charges as a felony” and that STUART would “have to take your chances with a jury and on appeal” and “you’re looking at a lot more time for a felony.” As a result of the fear of being charged with “felony stalking”, STUART did not testify at trial on his own behalf.
37. Each charge for “annoying or threatening electronic communications” under Cal. Pen.C. § 653m(a) and (b) carries a maximum sentence of six months in County jail. The statute prohibits “electronic communications” that use “obscene language or address to the other person any threat to inflict injury to the person or property of the person.” Cal. Pen.C. § 653m(a).
38. GARSON apparently charged each email sent by STUART in the exchange between STUART and his ex-wife from September, 2009 and February, 2010 as a separate misdemeanor offense. According to GARSON’s closing argument at trial, if STUART used a “curse word” in his email, GARSON charged the email as an “obscene language” under the statute. STUART used several “curse words” which were clearly insults, though clearly not threatening or “obscenity” under controlling United States Supreme Court and Supreme Court of the State of California precedent. GARSON also charged the entire group of emails as a single misdemeanor “stalking” charge under Cal. Pen.C. § 646.9 (stalking). Doc. No. 48-14.
39. STUART requested that Chang move to dismiss the criminal complaint on grounds that the statute it is brought under imposes unconstitutionally overbroad and vague restrictions on free speech, as “annoying” communications may not be criminalized. STUART also requested that Mr. Chang move to dismiss the case on the grounds that the email conversations were protected speech as they were neither threatening nor obscene under clearly established U.S. Supreme Court and Ninth Circuit Court of Appeals precedent, and that a motion seeking judgment as a matter of law on the uncontested evidence would be appropriate. See, U.S. v. Alvarez, 567 U.S. ___, 132 S.Ct. 2537 (2012).
40. Mr. Chang agreed, and advised STUART he would make such a motion. Yet thereafter Mr. Chang failed to do so, instead raising the arguments—arguments on a question of law—in closing argument to the jury. GARSON successfully objected to the tactic. Mr. Chang failed to make a further motion to the Court, and the constitutional issues were not adjudicated.
41. Mr. Chang’s failure to properly assert the constitutional defense is inexplicable behavior for faithful, competent counsel. On information and belief, GARSON unduly influenced Mr. Chang, then a junior attorney on information and belief in his first trial, to forbear on asserting the constitutional defenses in order to impose duress, intimidation, and fear to impede and delay STUART’S CLAIM AND DEMAND and DUE ADMINISTRATION OF JUSTICE, and this Action.
42. On information and belief, GARSON collaborated, agreed, affiliated, and conspired with her boss, City Attorney and former family division judge Jan Goldsmith, other STUART ASSAULT COORDINATORS, and other ENTERPRISE PERSONS, including Mr. Goldsmith’s wife, sitting Family Division judge, and instant Defendant Christine Goldsmith, in such activity.
1. Shortly after his release from illegal imprisonment in May, 2011, STUART was contacted by the State Bar of California regarding an action that had been initiated relating to his law license. STUART contacted the State Bar and spoke with a State Bar investigator assigned to the case, Case No. 10-C-03559, one Mr. Radigan. Mr. Radigan advised STUART that GARSON had contacted the State Bar to report STUART for misconduct.
2. The State Bar investigator shared details of his conversations with GARSON, advising STUART to the effect that “you’ve really stirred up some anger down there” and that GARSON demonstrated unusual animus toward STUART. He advised that GARSON had claimed that STUART was “harassing judges” referring specifically to the SDCBA ENGAGEMENT and the DDIJO COMPLAINT I regarding SCHALL. Mr. Radigan repeated Ms. GARSON’S use of a number of extremely derogatory insults, epithets, and vile language inappropriate for repetition here. He was oddly delighted with Ms. GARSON’S vitriol and rather perversely intrigued at what had enlivened her so.
3. Mr. Radigan stated that GARSON had pressed him aggressively to invoke disciplinary proceedings, but that she was the only complaining witness. He stated that Ms. Stuart was not a complainant and would not be a witness. He stated to the effect that because of GARSON’S involvement in the criminal prosecution and lack of any attorney-client relationship injury, GARSON was “not the best witness,” but that she was nevertheless insisting that the State Bar pursue discipline.
4. STUART explained the details of the SDCBA ENGAGEMENT, STUART ASSAULT, PUBLIC BENEFIT ACTIVITIES, and the email exchanges with his ex-wife to Mr. Radigan. Mr. Radigan indicated he had read certain relevant emails and read or heard details about the STUART ASSAULT, ENGAGEMENT, and PUBLIC BENEFIT ACTIVITIES. He indicated that he personally didn’t believe any of the activities warranted discipline, but that GARSON’s aggressive pursuit of the matter compelled him to continue the matter. He advised STUART, “put something on file and this should go away.” On information and belief, Mr. Radigan’s notes, from which he read to STUART during their telephone conversation, will reflect these conversations, including Ms. GARSON’S defamatory, perjurous, and insulting statements.
5. STUART on about October, 2011, delivered a written response to the State Bar
explaining his political activity, the STUART ASSAULT, the email exchanges, giving his defense, and requesting dismissal of all charges. STUART did not receive a further response from the State Bar.
6. On information and belief, GARSON alone initiated the State Bar proceeding and illegally induced Mr. Radigan and possibly other State Bar employees to pursue a groundless investigation and prosecution of STUART within the State Bar to retaliate, intimidate, harass, and oppress him relating to the CLAIM AND DEMAND, DUE ADMINISTRATION OF JUSTICE, and PUBLIC BENEFIT ACTIVITY. On information and belief, GARSON collaborated, agreed, affiliated, and conspired with each CITY ATTORNEY Defendant in such activity.
7. Because of the pending charges from the State Bar being aggressively pursued by MS. GARSON, the looming four year “suspended sentence”, the vague DVILS ORDERS, GARSON’s connection to them and demonstrated willingness to commit felony crimes to persecute STUART, after his first conversation with Mr. Radigan STUART was further intimidated and fearful of reprisal from CITY ATTORNEY DEFENDANTS. He refrained from pursuing the CLAIM AND DEMAND, DUE ADMINISTRATION OF JUSTICE, and PUBLIC BENEFIT ACTIVITES under the additional fear of jeopardizing his law license.
voters seeking to do their own thinking have choices—but often little information. Judges by nature operate in closeted forums—a courtroom is public, but unlike politicians, the public and media have limited time or inclination to follow and record a judge’s every move.
But judges create many records—in court almost every word they utter is transcribed. Their opinions are written in orders. Their reasoning is carefully reviewed by other judges on appeal. Access to those records, however, is limited, and few other than those immediately interested in a given matter have sufficient desire to access such records.
If it were possible to gather in one place all of a candidate judge’s public statements, transcripts, orders, opinions, records, financials, campaign literature, publications, and personal data in one place, available to all voters, wouldn’t that be a great way to evaluate a judge running for office? [More…]