Kim Berry Alleges The Ninth Circuit Court Violates Supreme Court Precedent to Affirm Rooker-Feldman Dismissals

According to family rights activist Kim Berry, the Ninth Circuit Court of Appeal misquoted their own holdings and violated U.S. Supreme Court precedent in affirming dismissal of his federal complaint, which had alleged that a California statute violates the First Amendment of the Constitution.

Sacramento, CA (PRWeb) January 29, 2007 -- According to family rights activist Kim Berry, the Ninth Circuit Court of Appeal misquoted their own holdings and violated U.S. Supreme Court precedent in affirming dismissal of his federal complaint, which had alleged that a California statute violates the First Amendment of the Constitution.

In the September 16, 2005 article "Taking the Kozinski Challenge: Does the Ninth Circuit follow its own case law?" Ninth Circuit Justice Alex Kozinski "demanded that he be shown one situation - just one - where the Ninth Circuit is playing fast and loose with its own precedents."

A law professor concurs that, on November 14, 2006 the Ninth Circuit delivered on Kozinski's request in their disposition of "Berry v. The State of California" (05-16637).

Rooker-Feldman is a procedural doctrine that bars lower federal courts from hearing appeals from state courts. But Ninth Circuit precedent, co-authored by Justice Kozinski, is clear that a complaint is only barred by Rooker-Feldman if it seeks to "vacate or set aside a State judgment":

"The Rooker-Feldman doctrine asks: is the federal plaintiff seeking to set aside a state judgment, or does he present some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party? If the former, then the district court lacks jurisdiction; if the latter, then there is jurisdiction...." Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003) at 1158.

However, in their disposition affirming dismissal, the panel of Edward Leavy, Ronald M. Gould, and Richard R. Clifton wrote:

"We reject Berry's contention that he brings an independent action seeking prospective relief because his complaint "asserts as a legal wrong an allegedly erroneous disposition by a state court. [period" [Noel v. Hall 341 F.3d 1148 (9th Cir. 2003) at 1164

According to Berry, his key point on appeal was that he "was not and could not" have been seeking relief from the state judgment - a $13,000 sanction - since the state case was closed and his prayer only sought declarative and injunctive relief, prospectively. But the Ninth Circuit unfaithfully applied their own precedent, changing a comma to a period to omit the pivotal "seeks relief" prong. The Noel authority actually states:

"If a federal plaintiff asserts as a legal wrong an allegedly erroneous disposition by a state court, and seeks relief from a state court judgment based on that disposition, Rooker-Feldman bars subject matter jurisdiction in federal district court." [Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003) at 1164

The panel also applied a novel test for whether a complaint seeks prospective relief - one which ignores the prayer. At paragraph 62, Berry's complaint prayed "for relief and judgment as follows:"

•tFor a declaration that - either on its face or as applied - it is unconstitutional to sanction appeals under California Family Code Section 271;

•tFor an order enjoining the California State Judiciary from sanctioning appeals under Family code Section 271;

Since the panel was unable to show how Berry's complaint sought "relief from a state court judgment," they altered precedent, omitting that pivotal portion from the authority.

Furthermore, the panel ignored that, consistent with Wolfe v. Strankman 392 F.3d 358 (9th Cir.2004), Berry could not possibly have been seeking relief from the $13,000 sanction judgment in State court, because that case was closed long before Berry filed the federal complaint challenging the sanction statute.

•tBoth Berry and Wolfe were previously prosecuted under a State statute

•tBoth Berry and Wolfe filed federal complaints seeking a declaration that the State statute is unconstitutional; to bar future prosecution under the statute, during a time that nothing was pending in State court.

Without distinguishing, the Ninth Circuit reversed the district court's Rooker-Feldman dismissal in the Wolfe case, but affirmed dismissal of the Berry case under essentially the same set of facts.

The Berry holding violates 30 year old U.S. Supreme Court precedent of the scope of "wholly prospective," which Berry relied upon in his briefs:

"Here, however, the suit is in no way 'designed to annul the results of a state trial' since the relief sought is wholly prospective, to preclude further prosecution under a statute alleged to violate appellees' constitutional rights." Wooley v. Maynard, 430 U.S. 705, 711 (1977) [AOB 15, RB 6, 7

In September 2005 Justice Alex Kozinski wrote, "Whether our court is diligent in applying circuit law and faithful to Supreme Court precedent are issues that deserve public attention."

Since the Ninth Circuit denied Rehearing - even when Berry brought this miscarriage of justice to their attention - Berry's only possible "prayer for relief" is that the Ninth Circuit and media will give this matter the public attention that it deserves.

Berry's federal complaint had alleged the Constitutional harm of a State statute chilling access to the courts "pursuant to the petition clause of the First Amendment," citing Supreme Court precedent:

"[No state law is above the Constitution ...if they conflict with the Fourteenth Amendment federal courts have a duty to prescribe appropriate remedies." Milliken v. Bradley, 418 U.S. 717 (1974)

"When the Ninth Circuit abrogates this duty, arbitrarily denying access to the federal courts to redress constitutional harms, then President Bush is correct: 'The Constitution is just a god-damned piece of paper.'" states Berry.

The complaint, briefs, caselaw, and disposition are archived at www.ninthcircuit.us.

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