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|#8 Transcript from hearing on May 28, 2004.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SIERRA
GALE FILTER, et. al.
MAY 28, 2004
Before Hon. RICHARD HAUGNER
For the Plaintiff: MICHAEL MILLER
In Propria Persona
For the Corporation: GEORGE R. GILMOUR,
Attorney at Law
Richmond, CA 94805
For the Defendant: THOMAS S. KNOX
Attorney at Law
KNOX, LEMMON & ANAPOLSKY, LLP
One Capitol Mall, Suite 700
Sacramento, CA 95814
Judy Bishop, CSR No. 2261
May 28, 2004
THE COURT: In the Miller versus Gale Filter et.al. Everyone ready?
MR. KNOX: Good afternoon, I'm Tom Knox for the defendants and moving party. I apologize to the Court on two fronts. We had this calendared at 2:30 and put it on our moving papers. Apparently the Court had this on a 1:30 calendar. We obviously messed up and I apologize for keeping the Court waiting.
THE COURT: I think it was set for 2:30. I wondered why it was set in the middle of all the child support matters.
MR. KNOX: Apparently --
THE COURT: Your office evidently goofed in not sending the copies to the pro per plaintiff.
MR. KNOX: I'll find out what happened. We may have -- well, I don't know what happened.
THE COURT: He did sign an opposition, which was filed by Mr. Gilmour.
MR. KNOX: I've taken a look at it.
THE COURT: All right. Now, Mr. Miller, do you have the response?
Mr. MILLER: Yes.
THE COURT: Okay. And do you, Mr. Knox, have what was filed today?
MR. KNOX: I have. Both parties gave me their papers when I came in.
THE COURT: The second memorandum of points and authorities. All right. And, Mr. Gilmour, you represent the corporation?
MR. GILMOUR: The corporation.
THE COURT: All right. Mr. Knox, you're the moving party, do you have -- let me say for the record I read the Complaint itself, the demurrer and notification of demurrer, the points and authorities, the opposition filed by George Gilmour. Mr. Gilmour and Mr. Miller. And the response filed by Mr. Knox's firm. And I've also read the two memorandums of points and authorities, which were filed today; one by Mr. Miller and the other by Mr. Gilmour. You have anything to add to what I've already read?
MR. KNOX: You've had a lot of paper on this, Judge. Just to boil it down, my clients were -- it's indisputable I think my client's were advised they were deputy district attorneys. They took the oath. There apparently is some irregularity about whether an appointment got filed, but it's very clear they took an oath. They performed acts that according to the face of the Complaint itself could only have been performed by deputy district attorneys. Seems to me they are probably de jure deputy district attorneys, but they're certainly de facto district attorneys. They performed acts presenting evidence to the grand jury, filing criminal complaints openly in a way that cannot be done unless everyone believes, and you honestly believe, you're a deputy district attorney. It seems to me the immunity has to extend that far. The law just wouldn't put deputies at risk because there was a failure at some other level to file this appointment. So for all those reasons we think immunity applies and the Court can make that determination from the face of the Complaint.
THE COURT: Okay. Mr. Gilmour on behalf of the corporation.
MR. MILLER: I'll go first.
THE COURT: Mr. Miller on behalf of himself.
MR. MILLER: Yes, sir. Thank you very much. First of all on the question of whether -- on the surface my service papers to the defendants clearly states that it was in pro per. The actual language is right in big
print, in pro persona.
THE COURT: That's not really relevant to the issue before us today.
MR. MILLER: I really --
THE COURT: You have all the papers and Mr. Knox now has papers he never had before.
MR. MILLER: No, sir, I don't have all the papers.
THE COURT: Then you get copies from Mr. Knox and Mr. Gilmour.
MR. MILLER: Well, the case is perhaps are a little more complex than Mr. Knox has stated as far as prosecutorial immunity goes. The situations are such that we do not believe, I do not believe that prosecutorial immunity is absolute in this case. And the facts would bear that out. Mr. Knox's clients were not district attorneys, and their behavior was not that of the district attorney. They were not employed by Sierra County. They were not employed by the State of California. They did not work under the authority of the Attorney General. Their employer clearly is a nongovernmental corporation, which lobbied for and received a specific contract from the California Department of Industrial Relations. And that contract contains specific language that the contractors and the members of the CDAA are not privileged under the government standards, and the government is held harmless from all of their activities. Their behavior was not that of a district attorney. And the California District Attorneys Association has a web site. It's a fine organization. We're certainly not here
To -- I'm not here to challenge the broad concept of immunity. But this was willful, and it was knowing, and it was extremely detrimental to me. I was accused of killing somebody by these people. And that statement is still with
me today, and I really have no other recourse to go after this and correct this injustice that was put upon me. The interesting thing about their web site, it
says, "The Ethical Duties of a Prosecutor". So it clearly states out by their own web site that in administering justice a prosecutor must abide by a strict code of ethics. "The prosecutor must always strive to discover the truth
while carrying out all official duties. Additionally, the prosecutor must exercise the utmost professionalism as he or she is in the position of demonstrating ideal social behavior for others to follow. At any level, the primary role of the prosecutor is to investigate and prosecute impartially, in
quotations, criminal suspects on behalf of the People. Guilt shall not escape or innocence suffer. Cited Berger vs. United States, 1935, 295 U.S. 78, 88. In carrying out their duties prosecutors are required to follow statutory regulations imposed on them by California Business and Professional Code section 6068 (a)-(d). These include upholding the federal and state constitutions and laws; respecting courts of justice and judicial officers; maintaining only such actions as appear to be legal or just; and employing only such means as are consistent with the truth and never seeking to mislead a judge or a judicial
officer." In this very courtroom all of these absolute requirements were violated. And this isn't a situation of randomly seeking revenge. This case was -- we have transcripts from grand jury records. We have transcripts from the hearings themselves. They prepared the case, the CDAA people, because they needed to create cases to fulfill their contract. We weren't the first --
THE COURT: You're proceeding as though this was an evidentiary hearing and it's not.
MR. MILLER: Well --
THE COURT: Basically you're stuck with your Complaint and his demurrer.
MR. MILLER: Right.
THE COURT: That's it.
MR. MILLER: Right.
THE COURT: In the demurrer we assume everything in the Complaint is true.
MR. MILLER: Okay.
THE COURT: Your allegations, et cetera.
MR. MILLER: Well, his demurrer is not. I don't think it's true at all. Because there seems to be quite a few different variations of -- for example, if a prosecutor stabs a defendant, would he be held criminally liable?
THE COURT: It depends on whether he is acting in the scope of his employment.
MR. MILLER: Well, I would imagine that if the prosecutor stabbed a defendant --
THE COURT: Depends on why.
MR. MILLER: So it depends on why?
THE COURT: Yeah. But the question here is one of whether or not immunity attaches to the fab four of Sierra County. Mr. Knox's position has always been that it does because, one, they probably are district attorneys de jure
even though the appointment wasn't filed. The second argument is if they aren't district attorneys de jure they're de facto district attorneys and de facto deputy district attorneys are entitled to immunity if they're acting within
the scope of their employment.
MR. MILLER: They certainly are not acting within the scope of their employment. And Mr. Knox also questions, he said how would the law -- he just said this -- just would not put prosecutors at risk. The law. We're here to talk
about the law, that's what I understand. And I think there's such a narrow interpretation of, quote, the law for immunity, that it has most of the people in this country extremely troubled. And --
THE COURT: I'm not here to worry about the rest of the country.
MR. MILLER: I'm not either.
THE COURT: I'm strictly interested in the Complaint and the demurrer.
MR. MILLER: Well, the Complaint --
THE COURT: And the grounds for the demurrer.
MR. MILLER: The Complaint is in the sense of that analogy about a prosecutor stabbing somebody. I think the facts would have something to do with that.
THE COURT: That has nothing to do with this.
MR. MILLER: Okay. And let me ask, may I ask something of Jan Hamilton that's directly related to her direction?
THE COURT: Its not an evidentiary hearing. If there's something you want to ask her you should have filed a counter affidavit.
MR. MILLER: I never received -- Your Honor, I never received anything from the defendants.
THE COURT: I find that hard to believe because you filed -- you filed a response and opposition.
MR. MILLER: Let me see if I can help you with that.
THE COURT: We're not here for an evidentiary hearing as such.
MR. MILLER: The interests of the Original Sixteen to One and my interest in this case for damages are very different. We have a de facto Chinese wall in place with the corporation as far as what goes on with Original Sixteen to
One and what goes on with Michael Miller in pro per. Michael Miller received nothing from the defendants, not even an answer. Original Sixteen –
THE COURT: They hadn't answered the demurrer?
MR. MILLER: I received nothing from them. Nothing.
THE COURT: You must have had something because you signed the opposition.
MR. MILLER: No, sir, I received nothing from them.
THE COURT: As I say, I find that hard to believe.
MR. MILLER: I came to court --
MR. GILMOUR: Your Honor, I can speak to that? I sent Mr. Miller the last page for his signature, the last page of pleadings. He did not get a full set.
THE COURT: He signed something not knowing what he was signing?
MR. GILMOUR: That's correct.
MR. KNOX: You talking about the Complaint or the opposition?
MR. GILMOUR: The opposition, that's correct.
THE COURT: You had him sign a document he hadn't read?
MR. GILMOUR: At the time, because of the time constraints that we were under, that's right.
THE COURT: That's not an excuse.
MR. GILMOUR: No, but it's a fact.
THE COURT: You put him in jeopardy.
MR. GILMOUR: But it's a fact.
THE COURT: Go on.
MR. MILLER: Well the declaration, I mean I would -- I had no opportunity to send a revised declaration by Jan Hamilton. I spoke with her on the telephone and I believe she's in a position to recant some of the statements that she's made. I felt she was given a piece of paper again from the offices of Mr. Knox, and they are –
THE COURT: This is your allegation.
MR. MILLER: Well, see, she's sitting right here.
THE COURT: Anything else you want to say on behalf of your opposition to the demurrer? As I say, it's not an evidentiary hearing.
MR. MILLER: Let me think about it just for a minute. I'll sit down if that's okay.
THE COURT: All right. Mr. Gilmour?
MR. GILMOUR: Thank you, Your Honor. It's undisputed that the defendants were not sworn -- not appointed pursuant to the Government Code.
THE COURT: Where do you find that?
MR. GILMOUR: Where do I find?
THE COURT: Yes.
MR. GILMOUR: In the --
THE COURT: In the Complaint?
MR. GILMOUR: No, in the declaration of -- submitted with our opposition, of the County, I forget her -- Clerk, I guess, under penalty of perjury. The custodian of records for the County in any event, who said that no affidavit --
THE COURT: You mean the clerk, the County Clerk?
MR. GILMOUR: Yeah. Who swore that no affidavit, no appointments were ever filed. It's undisputed that they -- there was no appointments made.
THE COURT: There's an issue. I am not convinced that's true, because you have to recall that the County Clerk at one time was the ex official clerk of the superior court. And so filing a document with a deputy clerk was filing it
with the County Clerk. Somewhere along the line, and I'm not sure when, they took the administration of the courts away from the County Clerk and placed it with -- in the State, and also with local court executives.
MR. GILMOUR: I don't quite understand, Your Honor. Are you saying that
THE COURT: What I'm saying is I am not sure but that filing the oath of office with the Court Administrator as a clerk may be in compliance or substantial compliance with 24102. I don't have to find that.
MR. GILMOUR: Yes. That's one of our issues here. Because if indeed, and it's a question of fact, I don't know whether for the sake of a demurrer --
THE COURT: Tell me about why these people aren't de facto deputy district attorneys.
MR. GILMOUR: I'm saying they very well may be, but that's a factual question again. It wasn't addressed in the demurrer. I'd like to --
THE COURT: It was in the Complaint.
MR. GILMOUR: I'd like to do some discovery with regard to that question.
THE COURT: We're at the demurrer stage.
MR. GILMOUR: I understand. So how does one just demurrer by a mere allegation that I have something that I have to proof up?
THE COURT: You demurrer to the language of the Complaint. I think, as Mr. Knox's brief points out, that the Complaint itself basically sets up the fabulous four as deputy district attorneys de facto. Who can file a criminal
action? How do you start a criminal action?
MR. GILMOUR: Are you saying that a de facto district attorney --
THE COURT: I'm asking you a question. How do you start a criminal action?
MR. GILMOUR: By filing an Information I suspect. I don't do criminal law.
THE COURT: There's only two ways you can do it. One is the district attorney has to file the Complaint in the Municipal Court and proceed by way of preliminary examination, or to the grand jury with a Complaint; or the
grand jury on it's own with the help of the district attorney indicts certain people. Now, here it's alleged in the Complaint that the fab four basically filed the Complaint against Mr. Miller and the corporation.
MR. GILMOUR: I understand what they did.
THE COURT: And also, in very clever language by Mr. Miller, in effect misled the grand jury, which resulted in an indictment. Now that's a deputy district attorney's function, as is the filing of the Complaint.
MR. GILMOUR: Exculpatory evidence is part of his obligation as well.
THE COURT: I don't think you know what you're talking about.
MR. GILMOUR: Okay.
THE COURT: Because the problem is, when they do this they're acting as deputy district attorneys.
MR. GILMOUR: They're acting as if. Now, your question was whether or not they're de facto, and I said that's a question of proof. First of all --
THE COURT: You're right. And assuming, assuming the allegations of the Complaint to be true, it would appear from the Complaint itself that they are de facto.
MR. GILMOUR: The question then comes down to assume arguendo they are de facto.
THE COURT: Does the immunity apply to them?
MR. GILMOUR: Exactly.
THE COURT: Why doesn't it?
MR. GILMOUR: And the law I cited, and the only law I could find in three days, that came from old now Mr. Witkin, says no, they are not immune. The jury immunity; de facto, zip. That's the law.
THE COURT: All right.
MR. GILMOUR: Mr. Knox has not cited any authority to the contrary. I would -- I'm not a betting man, but I'd bet that the Court would not be able to find any law to the contrary in any of the 50 states. De facto, no immunity. No
immunity, no demurrer.
THE COURT: Okay. Thank you. Mr. Knox?
MR. KNOX: Your Honor, I just don't see how that can be the law. The fab four, as you call them, take the oath, perform prosecutorial functions. They are left in this proceeding apparently by -- I don't know what happened to that appointment. I agree with the Court that the oath itself is a substantial compliance with the requirement that there be an appointment, but surely they don't lose their prosecutorial immunity that would otherwise attach if they
were on the payroll of the County.
MR. GILMOUR: Your Honor, there is -- this is a very -- the latest law is about 1926 that I can find on the question of de facto status.
THE COURT: Well, there's a 1914 case.
MR. GILMOUR: Not having to do with immunity. Nothing.
THE COURT: That's the one in which where the deputy sheriff was commissioned by the sheriff and they didn't file the paper.
MR. GILMOUR: That's correct, but it has nothing to do with that deputy sheriff's immunity; nothing. That's where I got confused, too. It took me a long time to get through this stuff. I ended up reading a 1926 edition of
Southern California Law Review and the cases cited therein. It's that bad. But interestingly, Mr. Witkins relied upon it. I would hope this Court would as well.
MR. KNOX: The 1940 case was Cradlebough and that officer probably deserved what he got, which was to be prosecuted as an officer for excessive force. Certainly if the burden's attached to a de facto officer the privileges and immunities must as well.
MR. GILMOUR: Your Honor, that case had to do with an officer being charged as an officer for committing a crime in violation of a statute governing officers. It had nothing to do with immunity.
THE COURT: All right. You thought of something else you want to say, Mr. Miller?
MR. MILLER: Yes, sir.
THE COURT: Go ahead.
MR. MILLER: I'd like to add to the duties of a district attorney to a grand jury. And as a person of the public I thought it was interesting when I had a chance today to read some of Mr. Knox's assertions that this is all in the
public interest. It's clear in the California Penal Code, 939.7, that is it also incumbent upon a district attorney to reveal exculpatory evidence and to, in grand jury proceedings, to exactly explicitly point that out and to protect that innocence -- innocent people will not be damaged through the type of hearings and presentations that I, along with the Original Sixteen to One Mine, and another person, went through in this very courtroom. It was not -- these men and women, they are called Team Filter in the grand jury hearings. It is clear that they have stepped well beyond the concept of immunity, at least in the eyes of the public. For Mr. Knox to suggest that allowing the State of California to grant the specific -- grant an absolute immunity in this case
is actually against the People of the State of California's best interest. That's what would come out in a factual presentation should we be able to proceed in this hearing.
THE COURT: Anything else?
MR. MILLER: Yes, sir, one more thing. The – I hold the judicial system in the highest regard of the three branches of our government. I'm the only person in this room who went through what happened in Sierra County with Team Filter and CDAA. I'm not a lawyer, I was in pro per throughout this hearing because it was very, very complex. It was impossible to reach labor law, mining law, administrative law, civil law. I could find no attorney that knew all of these branches of the law. Judge Young, I think on special notice, and the fact that the motion to set aside, this was Mr. Knox's clients, were thrown out of court.
Professional attorneys who are now private attorneys employed by the CDAA on their payroll, now have extended this immunity and they get thrown out by a person in pro per on a motion to set aside. I think -- and we weren't the first case.
THE COURT: I don't know why the Information was set aside. I know what your argument was in the motion, but Judge Young merely said it was granted, he didn't say why. He's an old time judge, he didn't want to give a reason and
be wrong probably, so I don't know why.
MR. MILLER: Your Honor, I plead with you that this case is in the public's best interest to know go forward.
THE COURT: May be in the best interest to go forward, the problem is whether or not the defendants, the four defendants, the fab four, have immunity under 82126.
MR. MILLER: Everything I've read says employee, employee, employee.
THE COURT: They were employees.
MR. MILLER: No, sir, they were not.
THE COURT: Let's go back; okay?
MR. MILLER: They weren't employees of Sierra County.
THE COURT: No, no. The only person who can -- who can appoint deputy district attorneys is the District Attorney himself or herself. Now, they evidently were
appointed by her, or told to be appointed by her. They were given the oath by Ms. Hamilton. She holds the documents. Now, the district attorney didn't file the paper with the County Clerk. Whether that's required or not I don't know.
There's no cases on this except the Cradlebough case.
MR. GILMOUR: There's a statute.
THE COURT: There is a statute, yes, but what's it mean?
MR. GILMOUR: It means –
THE COURT: You have to remember they changed the court system.
MR. GILMOUR: That statute was from 1907, and it is current today.
THE COURT: I know it's still there.
MR. GILMOUR: The language is unequivocal.
THE COURT: But they have changed the structure of the Superior Court.
MR. GILMOUR: I understand that. But it says until an appointment. You cannot –
THE COURT: I've heard enough from you, you can sit down.
MR. GILMOUR: I'm sorry.
MR. MILLER: Can I say one more thing and then you can tell me to sit down?
MR. KNOX: I'll tell him to sit down, Your Honor.
MR. MILLER: I would love to talk to you because this is a very serious matter. The fact that you just said, Your Honor, that the only person that can appoint someone to come into our county. This is my county. This is where I live. I work here, I run a company. Been here 30 years. And the district attorney, the fact is that she didn't appoint, she didn't authorize directly Jan Hamilton to
appoint these people, and I know that for a fact. And when do we get a chance to say this? Sherry the clerk is sitting over there. The current district attorney is not here. Jan Hamilton will say that what she said in statement four is not necessarily absolutely correct. And if that's in your own
words, if that's the only way they can appoint, they were not appointed that way. They blew in here, came over and said this is and that is.
THE COURT: They were appointed over a period of about six or eight months one at a time.
MR. MILLER: I'm fully aware of the time dates on there when they were appointed, and the one in particular.
THE COURT: You just tried to tell me they were appointed at the same --
MR. MILLER: No, sir, I didn't. No, no, no. Mr. Hedum was in 2001, Mr. Patchett was October 28th, 2002, the day of the grand jury. He came in from Los Angeles, Sharon O'Sullivan was not even in the courthouse, and said "Appoint
me". Jan did her job. She got a call, she didn't know. We're kind of a little relaxed here, too, which is maybe to our detriment, but there are laws. And not only did they break the law of appointment, they broke every other law you
can imagine in presenting and prosecuting this case to the grand jury. People up here are outraged.
THE COURT: That's your allegation, I don't know.
MR. MILLER: When do we get a chance to prove it? I don't think that the Constitution, in what I cited to you about the special privileges for different groups, there's no special groups for absolute immunity for anybody in the
United States. Where do we say that in the Constitution, either the State or the Federal?
THE COURT: It's not in the Constitution.
MR. MILLER: Where did we ever say that in –
THE COURT: The statute grants immunity to public employees performing in the scope of their employment.
MR. MILLER: Exactly. No law is going to breach the values of the Constitution. They don't presume to override the Constitution. And both California and state are in there.
THE COURT: You are out of order on that.
MR. MILLER: I'll stand corrected.
THE COURT: All right.
MR. MILLER: But this is not a frivolous issue.
THE COURT: I know it's not a frivolous issue.
MR. MILLER: And the concept of people coming in and evaluating this and doing this. I think that if this is not allowed to go forward it definitely is not what anyone imagined the need for having prosecutorial immunity absolute.
I'm not here to argue that either. We're here to discuss the specifics of this case.
THE COURT: There's no doubt there's prosecutorial immunity providing you are performing prosecutorial work. The question, as Mr. Gilmour says, is does it apply to these people, the fab four.
MR. GILMOUR: That's correct.
MR. MILLER: Yeah, I have a little different opinion than Mr. Gilmour. I know that they did not -- that they did not carry out the laws of the land when they
presented this to the grand jury.
THE COURT: It isn't the cleanest case presented, that's the problem.
MR. MILLER: By whom?
THE COURT: By both sides. There aren't enough facts involved in it. The demurrer is probably good as to the third count, because you haven't pled anything for interference with the business advantage.
MR. MILLER: If that's the case, having never even had a copy of Mr. Knox's client's report –
THE COURT: That's your complaint.
MR. MILLER: Okay. Whatever he is claiming, I would certainly, if the worst case scenario is right, like a right to amend our Complaint. I just think --
THE COURT: Is the matter submitted?
MR. KNOX: Yes, Your Honor.
THE COURT: All right. I'm going to deny the demurrer on the -- as to the four defendants on the three causes of action on the grounds of immunity because I don't think the record is full enough for that. I'll grant the demurrer as to the third count with leave to amend. You can file an amended Complaint.
MR. GILMOUR: Thank you, Your Honor.
THE COURT: Which you would have to set forth the requisite allegations for interference with business advantage.
MR. GILMOUR: Thank you very much, Your Honor.
THE COURT: I think also that you're going -- you should clean up your Complaint because if there are differences between the corporation and the individual then I think your damages are going to be different. I think you have to allege that.
MR. GILMOUR: Yes, Your Honor.
THE COURT: I don't think there is any difference between the way you pled it.
MR. GILMOUR: It was a last moment. I live in Alameda County.
THE COURT: I think what's going to -- what will eventually happen is this thing will come back on a judgment on the pleadings after more information.
MR. GILMOUR: Fine. At least as long as we have the opportunity to do that. Thank you very much, Your Honor.
MR. MILLER: Thank you.
MR. KNOX: Thank you, Your Honor.
THE COURT: Will you prepare the order, Mr. Knox?
MR. KNOX: Yes, Your Honor. How long to amend? He is present in court so 20 days, is that what he gets to amend -- to file the amended Complaint, 20 days from today?
THE COURT: From today's date. You want longer?
MR. MILLER: I have a shareholders meeting June 26th, and I have something in U.S. Court of Appeals on June 11th. And I apologize for this but we run -- I run a public company but I'm really small.
THE COURT: By July 15th?
MR. MILLER: Yes, sir, July 15th would be excellent for me.
MR. GILMOUR: Thank you very much, Your Honor.
CERTIFICATE OF CERTIFIED SHORTHAND REPORTER
I, JUDY BISHOP, hereby certify that I am a Certified Shorthand Reporter, and that I recorded verbatim in shorthand writing the following proceedings completely and correctly according to the best of my ability:
COURT: Superior Court, Dept. 1
JUDGE: Hon. Richard Haugner
ACTION: Miller vs. Filter, et. al.
DATE: May 28, 2004
I further certify that my said shorthand writing has been transcribed into typewriting, and that the preceding pages constitute an accurate and complete transcript of my shorthand writing for the date specified.
I further certify that I have complied with CCP 237(a)(2) in that all personal juror identifying information has been redacted if applicable.
Dated: June 5, 2004
Certified Court Reporter
CSR No. 2261
|#7 Miller memorandum to Demurrer
Plaintiff Michael M. Miller was never served any papers filed by defendants. His ability to respond to the motion has been violated by the omission of defendants to serve the first and second motion before the court. Miller waives his right to service if the court rules against the motions. If the court believes it lacks sufficient documentation to strike down defendants’ motions, Miller asks the court to order defendant to serve Miller and allow him time to respond.
BACKGROUND of Defendants
The official California District Attorneys Association web site has a section entitled, “What is a prosecutor. Section V, Becoming a prosecutor says, “Individuals seeking a position as a prosecutor must know the law.” Section IV provides the “Ethical Duties of Prosecutors”. Excerpts presented orally.
Defendants entered into a contract with the California Department of Industrial Relations in the spring of 2001. Specific terms of the agreement pertinent to the motion before the court today are contained in the following pages of the contract.
“The California District Attorneys Association will employ these individuals.” Page One, section 1.
“In addition, elected District Attorneys will, as appropriate, deputize these prosecutors. The California district Attorneys Association will employ the Circuit Prosecutors and Investigator.” Page One, section 2.
“The California District Attorneys Association (hereinafter the Association or “CDAA”) is a private, non-profit association.” Page Two, section 4. (b)
“The Circuit Prosecutors and Investigator will be employed by the CDAA” Page Three section c.
DUTIES of Defendants
The individuals are members of the California State Bar and are required to follow its requirements. See Motion to Set Aside. Exhibit B. CDAA web site includes a description of duties entitled, “The Ethical Duties of Prosecutors”. It is not a stretch to believe that defendants knew the duties and requirements of a prosecutor. Also, the Sierra County Grand Jury transcript contains many statements by defendants that they were aware of the obligations they assumed as private prosecutors. Team leader and defendant Filter instructed the Sierra County Grand Jury that, “You must accept and follow the law as it is stated regardless of whether you agree with the law.” Page 37 lines 26-27. His omissions to the Grand Jury are flagrant transgressions of the law.
The individuals took an obligation to “bear true faith and allegiance to the Constitution of the United States and the Constitution of California” They ignored the constitution and subsequent statutes and regulations as stated in the Motion to Set Aside and Exhibit A
Breaking the laws and claiming it is on behalf of the publics’ interest and seeking absolute protection under the doctrine of immunity is a specious argument in light of the circumstances involved in the murder prosecutions of Michael M Miller by the defendants. For these reasons and the testimony entered today, Michael M. Miller prays that defendants’ demurrer be overruled.
May 28, 2004 Michael M. Miller
|# 6 Sixteen to One Response
to CDAA Response to Memorandum of points
Defendants demurrer was based on the unequivocal and false assertion that the individual defendants are deputy district attorneys of Sierra County.
Now, in their Response, they admit that that assertion is untrue, is false, that they are in fact not deputy district attorneys of this County.
But, they claim, although they have falsely presented themselves to this Court and to the people of this County as being deputy district attorneys, and because the Court and the citizens of this County came to believe this fraud, they are nonetheless entitled to immunity from liability for injuries they caused to citizens and a major business of this County.
It’s a novel argument.
Deputy District Attorneys
The individual defendants’ status as deputy district attorneys was not only repeatedly claimed as fact in their Demurrer (five times in seven pages), the claim was also sworn to under oath by one of the defendants in his Declaration in support of the Demurrer. (Declaration of Gale Filter.)
Had these assertions been true, defendants’ demurrer might well have had some merit. But they were not true. They were false, they were sworn to, and they were in the Demurrer falsely presented to this Court, as true.
The falsity of the defendants’ claims was revealed by plaintiffs’ in their Opposition to the Demurrer filed on May 10.
On May 21, less than one week from the calendared hearing on their Demurrer, defendants served their “Response.”
In that Response defendants have presented an entirely novel characterization of their status in this County. They almost, but not quite, admit that in their Demurrer they had misrepresented both fact and applicable law, but they request that the Court now take yet more “judicial notice” of, declare to be true, matters which are most certainly “reasonably subject to dispute” and hardly “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Evidence Code Section 452(h). Although the defendants repeat in their Response their untrue claim that they were appointed (p. 2, lines 22-23), it is not true and they admit it is not true.
So, what have they done? In their Response they assert now that they are “de facto officers.”
That may well be true. But it may well not be. Defendants attempt to have the assertion of de facto status established as fact, a question of complex fact not to be determined by a demurrer. For example, whether the defendants’ “acts in prosecuting plaintiffs involved the interest of the public” (Response, p. 4, line 1) is undoubtedly a factual question far beyond the allegations of the complaint, and not capable of being resolved by judicial notice at a demurrer.
But the real issue here is whether the defendants are, by virtue of purported de facto status, immune from liability for the injuries they are claimed in the Complaint to have caused.
Defendants claim that as de facto officers they are entitled to Government Code Section 821.6 immunity. They offer no authority for such a proposition. There is none.
Bernard Witkin in addressing de facto officers throughout his various treatises repeatedly refers to the article on De Facto Public Officers in 9 So.Cal.L.Rev. 189 as an “exhaustive discussion.” See, e.g., 2 Witkin Procedure, “Courts,” Section 44, p. 59.
While the acts of an officer de facto are valid insofar as the rights of the public are involved, or the rights of third persons having an interest in them are concerned, yet if a party defends or sues in his own right as a public officer for his protection or benefit, it is not sufficient that he be merely an officer de facto; he must be an officer de jure. That is, when the incumbent is sued for the commission of an act which is criminally or civilly enforceable against the “officer” as such, a defense of de facto status will not be heard, since an “officer” in in this capacity includes de facto as well as de jure officers. And when the incumbent is sued for doing an act normally excusable in a de jure officer, the de facto officer cannot put up the defense of the immunity of the office, for this defense belongs exclusively to the de jure officer. (Emphasis added.)
9 So.Cal.L.Rev., at 220, and cases cited.
Not surprisingly, defendants have misrepresented the nature and applicability of the ancient de facto doctrine. Its purpose is to protect the public and third parties from loss, and not the people inappropriately exercising the powers of an office which they have had no lawful business occupying from liability for their wrongdoing.
The two cases cited by defendants with regard to de facto status, Oakland Paving Co. v. Donovan (1912) 19 Cal.App. 488 and Nofire v. United States (1897) 164 U.S. 657, have nothing to do with the question of the immunity of de facto officers.
The defendants argue that their status as deputy district attorneys is implied in the Complaint. But that is not true.
In Paragraph 7, it is stated that “…the defendants, and each of them, knowingly and willfully conspired and agreed among themselves to without probable cause or other reasonable bases have felony criminal charges brought…,” hardly the actions of legitimate public servants.
In Paragraph 8 it is stated that “pursuant to and in furtherance of said conspiracy on June 132, 2002, defendants cause a complaint to be filed against plaintiff MICHAEL M. MILLER and one Jonathan Farrell…” hardly the actions of legitimate public servants.
In paragraph 9 it is stated that “…further pursuant to an in furtherance of said conspiracy, defendants, and each of them, wrongfully misled the Sierra County Grand Jury…,” hardly the actions of legitimate public servants.
Nowhere in the Complaint is there an allegation much less an inference that the defendants were legitimate, lawfully entitled, deputy district attorneys of this County.
Defendants request the Court to take judicial notice of certain matters, that is to assume certain matters to be indisputably true. Evidence Code section 452(h) provides that matters which “…are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy may be permitted to be judicially noticed.
In her declaration filed with the defendants’ Response, Jan Hamilton states that she was told by the District Attorney that the District Attorney had appointed the defendants. It is submitted that had the District Attorney in fact appointed the defendants she would herself have told this Court, that she would have sworn to such an event. Ms. Hamilton’s hearsay upon hearsay statement is odd indeed in that it amounts to a statement that the District Attorney of this County had repeatedly violated the law. It is a statement which at best is “disputable” and not “capable of immediate and accurate determination” as true.
For all of the foregoing reasons, plaintiffs pray that defendants’ demurrer be overruled.
May 27, 2004
GEORGE R. GILMOUR
|#5 CDAA Response to plaintiff’s Memorandum of Points and Authorities in Opposition to Demurrer
May 28, 2004
Defendants Gale Filter, Denise Mejlszenkier, Anthony Patchett, Kyle Hedum, and California District Attorney Association submit this response to Plaintiff’s Memorandum of Points and Authorities in Opposition to Demurrer.
Plaintiffs argue that no written “appointments” have been filed by the Sierra County Clerk in connection with the service of Defendants as Sierra County Deputy District Attorneys. That is true.
Plaintiffs argue that because no “appointments” were filed, Defendants did not in fact serve as Deputy District Attorneys and do not enjoy the prosecutorial immunity conferred by Government Code section 821.6. That is not true.
The Court Executive Officer of Sierra County, Jan Hamilton, administered an oath to each of the Defendants. The oaths, designating each Defendant respectively as a Deputy District Attorney, are evidenced by writings attached to Defendants’ moving papers. Defendants performed the duties of Deputy District Attorneys as the allegations in Plaintiff’s complaint show. It is in fact connection with their performance of those duties that Defendants have been named as parties to this lawsuit.
For the reasons stated below, Plaintiffs arguments are simply unavailing.
1. There exists Judicially noticeable evidence that Defendants were Sierra County Deputy District Attorneys.
Plaintiffs argue that, under Evidence Code section 452(d), the Court can only take judicial notice of the existence of the Oaths in the court file, but cannot take judicial notice of the truth of the facts asserted therein. However, Defendants have also requested judicial notice of the Oaths and administration of same by the Court’s Executive Officer pursuant to Evidence Code section 452(h).
Under section 452(h), the Court may take judicial notice of facts and propositions that are not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. That Defendants were sworn as Sierra County District Attorneys of Sierra County is not reasonably subject to dispute. Further, that defendants were appointed as Deputies is also not reasonably subject to dispute. These facts are subject to verification by Sierra County Court’s own Executive Officer, as evidenced by the accompanying affidavit. According to Court Executive Officer Jan Hamilton, she administered Oaths of Office to Defendants after then District Attorney Sharon O’Sullivan communicated the fact of Defendants’ appointment to CEO Hamilton’s office. (Affidavit of Jan Hamilton, Pg 2, lines 1-3). District Attorney O’Sullivan has the power to appoint Deputies pursuant to Government Code § 24101.
Defendants request that the Court take judicial notice of the information contained in Court Executive Officer Hamilton’s affidavit under Evidence Code section 452(h) as information capable of immediate and accurate determination by resort to sources of reasonable indisputable accuracy.
2. Defendant Gale Filter’s Declaration is offered to authenticate the documents offered for judicial notice.
Plaintiffs argue that the Declaration of Filter has been inappropriately presented to the Court as it is offered to refute the factual allegations of the complaint. However, Filter’s Declaration is not offered to refute the factual allegations made in the complaint, but rather to authenticate the documents being offered for judicial notice by the Court.
3. Defendants were de facto Deputy District Attorneys to whom statutory immunity applies, notwithstanding the absence of filed written appointments.
Plaintiffs argue that no evidence exists that the Defendants have ever been appointed as Deputy District Attorneys of Sierra County, because no written appointments were found in the files of the county clerk’s office, as required by Government Code section 24102. However, even in the absence of filed appointments, Defendants were officers de facto, to whom immunity applies.
An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as involving the interests of the public or third persons, where the duties of the officer were exercised either: (1) under color of a known and valid appointment, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath or give a bond, or; (2) without a known appointment, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry, to submit or invoke his action, supposing him to be the officer he assumed to be. Oakland Paving Co. v. Donovan (1912) 19 Cal.App. 488, 495. The same validity and the same presumptions attach to the actions of an officer de facto as to those of an officer de jure. Nofire v. United States (1897) 164 U.S. 657, 661.
a. Defendant’s acts in prosecuting Plaintiffs involved the interest of the Public
In their complaint for damages, Plaintiffs alleged the following acts by Defendants:
1.) Defendants had “felony criminal charges brought against plaintiffs in the county of Sierra, State of California.” (Complaint for Damages, Page 3, Paragraph 7).
2.) Defendants filled a criminal complaint against Plaintiffs in Sierra County charging Plaintiffs with violations of Penal Code section 192(b) (involuntary manslaughter) and Labor Code section 6425(a) (willful violation of occupational health or safety standard resulting in death). (Complaint for damages, Pages 3-4, Paragraph 8).
3.) Defendants “misled the Sierra County Grand jury by inter alia concealing exculpatory evidence, to returned a two-count felony indictment against plaintiffs… charging each of them with violations of Penal Code section 192(b) and Labor Code section 6425(a). (Complaint for Damages, Page 4, Paragraph 9).
4.) Defendants “initiate[ed] the prosecution of plaintiffs…” (Complaint for Damages, Pages 4-5, Paragraph 11).
These acts, undertaken in furtherance of a criminal prosecution against the Plaintiffs, served a vital public interest. As noted by the California Supreme Court, the efficient functioning of our system of law enforcement is dependent largely upon the investigation of crime and the accusation of offenders by trained officers. White v. Towers, (1951) 235 P.2d 209, 211. The Court warned that, “a breakdown of this system at the investigative or accusatory level would wreak untold harm.” Id.
b. Defendants exercised their duties under color of a known and valid appointment, but where the officer had failed to conform to some precedent requirement or condition.
Defendants were de facto officers under both standards discussed above. First, as evidenced by the accompanying affidavit from Court Executive Officer Jan Hamilton, each of the defendants performed their duties under color of a known and valid appointment to the office of Deputy District Attorney, even though they had no written appointment filed with the county clerk. According to the Court Executive Officer Hamilton, she administered Oaths of Office to Defendants after then District Attorney Sharon O’Sullivan Communicated the fact of Defendants’ appointment to CEO Hamilton’s office. (Affidavit of Jan Hamilton, Pg. 2, lines 1-3). Court Executive Officer Hamilton also stated that District Attorney O’Sullivan did not file a written affidavit of appointment with the county clerk’s office for any of the twelve Deputies that District Attorney O’Sullivan appointed. (Affidavit of Jan Hamilton, Pg. 2, lines 3-7).
c. Alternatively, Defendants exercised their authority without a known appointment, but under circumstances that would induce others to conclude that they were Deputy District Attorneys.
Defendants can also be found to be de facto officers applying the second standard, to wit, performing their duties without a known appointment, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry, to submit or invoke his action, supposing him to be the officer he assumed to be. Here, Defendants each took the Oath of Office for the office of Deputy District Attorney. (Defendants’ Request that Court Take Judicial Notice, Exhibit “1”, Affidavit of Jan Hamilton, Pg. 2, lines 21-26). Further, Defendants made criminal charging decisions, filed criminal complaints and presented evidence to fact finders such as the Sierra County Grand Jury. (Complaint for Damages, Paragraphs 7-9, 11). In other words, Defendants acted in such a way as would induce others to submit to their authority as Deputy District Attorneys.
The acts undertaken by Defendants served the vital public interest of upholding the law. Further, Defendants executed their duties under either under color of a known appointment, or without appointment, but under such circumstances that others would conclude that they were Deputy District Attorneys of Sierra County. Hence, Defendants were officers de facto and they are entitled to the same immunity afforded all prosecutors.
4.) Defendants status as Deputy District Attorneys can be inferred from Plaintiff’s own Pleadings.
Even if the court refused to take judicial notice of any document or fact in this case, Defendants status as Deputy District Attorneys can be inferred from the Plaintiffs’ own pleadings.
A judge deciding whether to sustain or overrule a demurer is guided by a number of general principals. Material facts alleged in a pleading are treated as true for the purpose of ruling on the demurrer. Gruenberg v. Aetna Ins. Co. (1973) 9 C3d 566, 572. The judge also takes as true facts that may be inferred from those expressly alleged. Harvey v. City of Holtville (1969) 271 CA2d 816.
In their complaint for damages, Plaintiffs allege that Defendants made criminal charging decisions, filed criminal complaints and presented evidence to fact finders such as the Sierra County Grand Jury. (Complaint for Damages, Paragraphs 7-9, 11). These are all functions of the Sierra County District Attorney and his or her deputies.
Further, Plaintiffs allege that Defendants took the actions complained of between May 2002 and February 2003, when the case was dismissed. (Complaint for Damages, Pg. 3, Line 14 through Pg. 4, Line 25.) Certainly, the Defendants could not have, over a period of nine months, taken a criminal case from its initial stages to fruition in Sierra County Superior Court unless they were Deputy District Attorneys.
Hence, there lies an extremely strong inference from the plaintiffs’ pleadings alone that Filter, Mejlszenkier, Patchett and Hedum were Sierra County Deputy District Attorneys.
The Oath of Office and the fact of Defendants’ having been sworn as Deputy District Attorneys are judicially noticeable under the evidence code. Further, Defendants’ status as Deputy District Attorneys can be easily inferred from the Plaintiff’s own Complaint for Damages. Defendants’ reiterate their request that their demurrer be sustained as to Plaintiffs’. First, Second and Third Causes of Action because Filter, Mejlszenkier, Patchett and Hedum enjoyed absolute immunity as prosecutors acting within their official capacity and because this immunity attaches to CDAA through the doctrine of respondeat superior.
Defendants also reiterate their request that the demurrer be sustained as to Plaintiff’s Third Cause of Action for failure to state facts sufficient to constitute a cause of action. Plaintiffs have pleaded none of the elements necessary to sustain a cause of action for interference with prospective business advantage.
Filed May 10, 2004 Michael Miller enter default of defendant for non service
|#3 Original Sixteen to One Response to Demurer
The Court may of course take judicial notice of certain matters. The issue here is what those matters are permissibly to be. Defendants ask the Court to take judicial notice of matters not permitted to be so or which are in fact patently false.
This lawsuit is, stripped of legal argot, about the defendants having allegedly engaged in unlawfully exploiting, abusing, making a mockery of the Office of the District Attorney, the judicial process, and causing serious damage to, among others, the plaintiffs.
In their arrogance, by this demurrer the defendants are attempting to do the same yet again.
II. THERE EXISTS NO JUDIALLY NOTICEABLE EVIDENCE
OF DEFENDANTS EVER HAVING LAWFULLY OCCUPIED THE OFFICE OF OR FUNCTIONED AS DEPUTY DISTRICT ATTORNEYS OF SIERRA COUNTY.
The defendants cite Dawson v. Martin (1957) 150 Cal.App.2 379 for the proposition that the defense of immunity provided by Gov. Code section 821.6 need not be pleaded as an affirmative defense by a government-employed prosecutor. That is true. But, as discussed below, that immunity is not available to the defendants, and that statute has no applicability to them.
1. Defendants' Purported "Oaths For the Office of Deputy District Attorney" Do Not Constitute Cognizable or Judicially Noticeable Evidence of Defendants' Having Ever Lawfully Occupied Such Offices.
Defendants request that the Court take judicial notice of documents filed with their pleadings each bearing the title "OATH," and identified as being "For the Office of DEPUTY DISTRICT ATTORNEY, SIERRA COUNTY." The affiant and signatory of each document is one of the defendants herein, and each document bears the signature and identity of the Sierra County Court Executive Officer, Jan Hamilton.
As will be discussed further infra, however. these "Oaths" are not "appointments" to any office whatsoever. Obviously, anyone could take an "Oath" to do and be anything, including a deputy district attorney or a space explorer. So what? Without a lawful appointment there is simply no position obtained. Nothing is stated, no language is contained in these "Oaths pertaining to the nature and scope of the duties and obligations, of either the affiants or the County, vis-a-vis the "Office of Deputy District Attorney." What is the meaning, the significance of these documents? What powers and what duties were acquired and imposed? What was the agreement? The documents reveal no such thing. The defendants in referring to these "Oaths" appear to be suggesting that they were thereby accorded unfettered prosecutorial powers within this entire County. But no such thing is mentioned in them. The defendants request that the Court interpret the documents and conclude that they constitute an agreement between the County and them which accords them awesome powers, including the power to place people in jail.
The controlling law has been long and well established:
A trial court may properly take judicial notice of the records of any court of record of any state of the United States. (Evid.Code, section 452, subd. (d)); Flores v. Arroyo, 56 Cal.2d 492, 496-497 [15 Cal.Rptr. 87, 364 P.2d 263].) But, as is stated in Jefferson, California Evidence Benchbook (1972) Judicial Notice, section 47.3, at page 840: "Caveat: Limitations on judicial notice of court records. What is meant by taking judicial notice of court records? There exists a mistaken notion that this means taking judicial notice of the existence of facts asserted in every document of a court file, including pleadings and affidavits. However, a court cannot take judicial note of hearsay allegations as being true, just because they are part of a court record or file. A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments."
Day v. Sharp (1975) 50 Cal.App.3d 904, 914, 123 Cal.Rptr. 918, emphasis added.
These documents, these "Oaths," are not orders, findings of fact, conclusions of law, judgments, or any other evidence of a judicial factual determination. This Court may take judicial notice of the documents' existence under Evidence Code section 452, but may not conclude that the rather strange language they contain is in fact true.
Defendants claim that they "were sworn as Deputy District Attorneys of Sierra County...by Sierra County Court Executive Officer Jan Hamilton...." (See, Defendants' Request That Court Take Judicial Notice of Defendants' Status as Deputy District Attorneys and That Government Code section 821.5 Provides Immunity From Suit to Prosecutors, p. 1, lines 27-27, emphasis added; Declaration of Gale Filter in Support of Defendants' Demurrer to Complaint, p. 1, lines 23-26.) Nothing in the "Oaths" suggests that the Court's Executive Officer Jan Hamilton conferred the rights, privileges, and obligations of the Office of Deputy District Attorney on any of the defendants, or had any right or power to do so. Defendants' claim, albeit implied, that Ms. Hamilton had such authority is simply unfounded, is odd. There is simply nothing in the documents to suggest in any fashion that the defendants were appointed deputy district attorneys of Sierra County, by Ms. Hamilton or anyone else.
Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (See Middlebrook-Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal.App.3d 1023, 1038, [96 Cal.Rptr. 338].) On a demurrer a court's function is limited to testing the legal sufficiency of the complaint. (Marina Tenants Assn. v. Deauville Marina Development Co. (1986), 181 Cal.App.3d 122, 127 [226 Cal.Rptr. 321].) "A demurrer is simply not the appropriate procedure for determining the truth of disputed facts." Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879 [138 Cal.Rptr. 426].) The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605, [176 Cal.Rrtr. 824].
Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374,228 Cal.Rptr. 878.
2. Defendant Gale Filter's Declaration Offered to Controvert the Factual Allegations of the Complaint Has Been Inappropriately Presented in Support of Defendants' Demurrer.
One of the defendants. Gale Filter, has offered his Declaration in support of the demurrer. He swears that the defendants became actual deputy district attorneys in Sierra County. But, again, there is nothing in Filter's Declaration to suggest that the Defendants were lawfully appointed, pursuant to law, to the office of deputy district attorney.
The same fundamental principles of law governing judicial notice apply to this Declaration. There is nothing about Gale Filter entitling his pronouncements to judicial notice or to be deemed beyond reasonable question by this Court. There is nothing about his pronouncements which permit a demurrer to be transmuted into an adversary proceeding because Filter has under oath claimed something to be true. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605, 176 Cal.Rptr. 824.
3. There Exists No Evidence of the Defendants Ever Having Been Appointed to Serve as Deputy District Attorneys in Sierra County.
Government Code sections 24101 and 24102 provide that a county or district officer may appoint deputies to assist in the discharge of his or her office. However, an appointee shall not act as such a deputy until, inter alia, "a written appointment by the deputy's principal is filed with the county clerk." "Shall" and "until" plainly mean what they mean.
Not surprisingly, no such written appointments of the defendants were ever filed with the Sierra County Clerk. See Declaration of Mary Jungi, Sierra County Clerk/Recorder and custodian of the Counties official records, filed herewith. The Court may take judicial notice of the contents of this County's Official Records, as reflected in Ms. Jungie's Declaration, pursuant to Evidence Code section 452(c)
The Defendants' demurrer, regrettably, is a legal and factual sham. It should be dealt with accordingly. Defendants are no strangers to misrepresenting fact and law to this Court.
Appropriate sanctions should be imposed.
Dated: May ______, 2004
GEORGE R. GILMOUR
Attorney for Plaintiff
SIXTEEN-TO-ONE MINE, INC.
Plaintiff in Propria Persona
|#2 CDAA Demurrer
CDAA Motion Demurrer
Superior Court of the State of California
County of Sierra
May 28, 2004
Case No. 6293
Memorandum of Points and Authorities in support of demurrer of Gale Filter, Denise Mejlszenkier, Anthony Patchett, Kyle Hedum and California District Attorneys Association to Complaint of Michael M. Miller and Original Sixteen to One Mine, Inc.
Defendants Gale Filter (“Filter”), Denise Mejszenkier (“Mejlszenkier”), Anthony Patchett (“Patchett”), Kyle Hedum “(Hedum”), and California District Attorney Association (“CDAA”) each demurrer individually, and not jointly with any other party, to the Complaint of Michael M. Miller (“Miller”) and Original Sixteen-to-One Miner Inc. (“Sixteen-to-One”). Filter, Mejszenkier, Patchett and Hedum are and were Deputy District Attorney of Sierra County and entitled to immunity from suit for malicious prosecution and related causes of action pursuant to California government Code § 821.6. That immunity attaches to CDAA by virtue of the doctrine of respondent superior. Also, plaintiff’s Third Cause of Action does not state facts sufficient to constitute a cause of action for interference with prospective business advantage.
On February 13, 2004, Plaintiffs filed a complaint against Defendants, alleging malicious prosecution, intentional infliction of emotional distress and interference with prospective business advantage.
Plaintiffs allege each cause of action on the same underlying course of conduct. Specifically, Plaintiffs allege that Defendants conspired to have felony criminal charges brought against plaintiffs with malice and in the absence of probable cause. Plaintiffs further claim that plaintiffs filed a criminal complaint against Defendants and concealed evidence from the Sierra County Grand Jury resulting in the return of a two-count felony indictment against plaintiffs.
Defendants are Deputy District Attorneys of Sierra County. They are, therefore, entitled to absolute immunity against suit for actions taken within the scope of their employment. California Government Code § 821.6; Falls v. Superior Court (1996) 42 Cal. App. 4th 1031, 1042-1043. Standard
When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, of from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading. Cal. CCP § 430.30(a).
Judicial notice shall be taken of the decisional, constitutional and public statutory law of [California] and of the United states. Cal. Evid. Code § 451(a).
Judicial notice may be taken of the records of any court of this state, to the extent that they are not embraced within Section 451. Cal. Evid. Code § 452(d)(1).
Judicial notice may be taken of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy, to the extent that they are not embraced within Section 451. Cal. Evid. Code § 452(h).
The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter. Cal. Evid. Code § 453.
1. Defendants have absolute immunity from claims for malicious prosecution and related causes of action.
California statutory law provides immunity for prosecutors, stating: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” Cal. Gov. Code 821.6. The defense of immunity need not be pleaded by an answer, but may be taken advantage of by demurrer. Dawson v. Martin (1957) 150 Cal.App.2d 379, 381-382.
When a quasi-judicial officer, such as a prosecutor, acts within his official capacity he, like a judicial officer, enjoys absolute immunity. This is true even if the acts committed by the prosecutor are alleged to have been done maliciously and corruptly. Falls v superior Court (1996) 42 Cal. App.4th 1031, 1042-1043. An absolute immunity defeats a suit at the outset, so long as the official’s actions were within the scope of the immunity. Id. At 1037. A prosecutor acts within his official capacity, for purposes of absolute immunity, when his conduct is an integral part of the judicial process or intimately associated with judicial phase of criminal process. Id. At 1044.
A. Defendants were public employees
Plaintiffs’ complaint alleges that Filter, Mejlszenkier, Patchett and Hedum filed a criminal complaint against Plaintiffs in the Sierra County Superior Court and presented evidence to the Sierra County Grand Jury. Implicit then, in the Complaint, is the fact that Filter, Mejlszenkier, Patchett and Hedum were Deputy District Attorneys of Sierra County. This fact is evidenced further by the Oaths for the Office of Deputy District Attorney, attached tot eh accompanying Request of Judicial Notice, indicating that Filter, Mejlszenkier, Patchett and Hedum were sworn by the Sierra County Court Executive Officer Jan Hamilton as Sierra County Deputy District Attorneys on August 23, 2002, June 11, 2002, October 28, 2002, and November 27, 2001, respectively. Defendants request that the Court take judicial notice of the Oaths For the Office of Deputy District Attorney pursuant to California Evidence Code §§ 452(d)(1) and 452(h) as the documents comprise records of the Sierra County Court. Defendants’ status as Sierra County Deputy District Attorneys is not reasonably indisputable accuracy. Defendants further request that judicial notice be taken under California Evidence Code § 453 as each party has been given sufficient notice of the request through these pleadings and the Court has been furnished with sufficient information to take judicial notice of the matter.
B. By prosecuting Plaintiffs, Defendants acted within the scope of their employment.
A Prosecutor acts within his official capacity, for purposes of absolute immunity, then his conduct is an integral part of the judicial process or intimately associated with judicial phase of criminal process, Hall at 1044.
Plaintiffs allege each cause of action – malicious prosecution, intentional infliction of emotional distress and interference with prospective business advantage – on the following underlying course of conduct:
1. Defendants “conspired and agreed upon themselves to without probable cause or other reasonable bases have felony criminal charges brought against plaintiffs”. (Complaint for Damages, Page 3, Paragraph 7).
2. Defendants filed a criminal complaint against Plaintiffs in Sierra County (Case No.CR 00632) charging Plaintiffs with violations of Penal Code § 192(b) (involuntary manslaughter) and Labor Code § 6425(a) (willful violation of occupational health or safety standard resulting in death) “in furtherance of said conspiracy.” (Complaint for Damages, Pages 3-4, Paragraph 8)
3. Defendants misled the Sierra County Grand Jury by concealing exculpatory evidence. (Complaint for Damages, Page 4, Paragraph 9).
4. The grand jury returned a two-count felony indictment against plaintiffs, charging them with violations of Penal Code § 192(b) and Labor Code § 6425)(a). (Complaint for Damages, Page 4, Paragraph 9).
5. Defendants acted without probable cause “in initiating the prosecution of plaintiffs in that they did not honestly, reasonably, or in good faith believe plaintiffs to be guilty of the crime (six) charged…” (Complaint for Damages, Pages 4-5, Paragraph 11).
Clearly, making charging decisions, filing complaints and presenting evidence to fact finders are integral parts of the judicial process or intimately associated with the judicial phase of the criminal process. Defendants’ actions, therefore, fall within the immunity created by Evidence Code § 821.6. This is true even in the face of Plaintiffs’ claims of concealment of exculpatory evidence by the defendants, as the alleged acts fall within the scope of employment.
In Randle v. City and Country of San Francisco (1986) 186 Cal.App.3d 446, the plaintiff, whose felony conviction was reversed because of newly discovered exculpatory evidence, brought an action against a prosecutor, a police officer and a municipality based on their suppression of the exculpatory evidence in the criminal trial. In sustaining the trial court’s demurrers without leave to amend as to all causes of action, save for one against the municipality, the appellate court stated that even the alleged act of suppressing evidence, either by the prosecutor or by the police officer, was clearly within the scope of employment of the individual respondents. Id. at 457. The district attorney and the investigating officer were both necessarily involved in handling the evidence in the case, the court stated. Id. That the complaint alleged improper conduct regarding the evidence did not alter the fact that the acts alleged fall within the scope of employment, the court held. Ld.
Turning to the case at bar, the act that forms the basis of Plaintiffs’ case is the alleged suppression of evidence. Handling evidence was clearly within the scope of the employment of Filter, Mejlszenkier, Patchett and Hedum and any alleged mishandling of the evidence also fell within the scope of that employment.
Finally, plaintiffs’ allegations that defendants “conspired and agreed upon themselves to without probable cause or other reasonable bases have felony criminal charges brought against plaintiffs,” also do nothing to overcome Defendants’ immunity.
A malicious prosecution is one begun in malice without probable cause to believe the charge can be sustained, White v. Brinkman (1937) 23 Call.App.2d 307, 313. A complaint for such prosecution is properly confined to a statement of those substantive elements. Id. Averments of conspiracy contribute no substantial increment to the cause pleaded. Id. Pleading such evidentiary averments add nothing material to the statement of the case, and are to be treated as surplusage. Id.
C. CDAA is Also Immune From Prosecution
CDAA is immune from prosecution fro the same reasons defendant prosecutors are.
Under the doctrine of respondent superior, the employer’s liability is wholly derived from the liability of the employee, and the employer cannot be held vicariously liable unless the employee is found responsible. Lathrop v. Healthcare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1423. Because the vicarious liability of the employer is wholly dependent upon or derivative from the liability of the employee, any substantive defense that is available to the employee inures to the benefit of the employer. Id.
Hence, the immunity that shields Filter, Mejlszenkier, Patchett and Hedum similarly shields CDAA.
2. Plaintiffs’ Third Cause of Action Fails to Allege the Elements of Interference with a Prospective Business
The Third Cause of does not state facts sufficient to constitute a cause of action for interference with prospective business advantage. The elements of the tort include (1) the existence of a prospective business relationship containing the probability of future economic rewards for plaintiff; (2) knowledge by defendant of the existence of the relationship; (3) intentional acts by defendant designed to disrupt the relationship; (4) actual causation; and (5) damages to plaintiff proximately caused by defendant’ conduct. (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 122, Cal.Rptr. 745, 537 P.2d 865.) The general wrong inherent in this tort is the unlawful interference with a business opportunity through methods that are not within the privilege of fair competition. (See 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 652, p. 740.)
None of the above listed elements have been plead by Plaintiffs.
Defendants’ demurrer should be sustained as to Plaintiffs’ First, Second and Third Causes of Action because Filter, Mejlszenkier, Patchett and Hedum enjoyed absolute immunity as prosecutors acting within their official capacity and because this immunity attaches to CDAA through the doctrine of respondent superior. Because handling and presenting evidence were within the scope of employment, allegations of concealing exculpatory evidence do not vitiate the privilege.
Further, the demurrer should be sustained on behalf of each defendant as to Plaintiff’s Third Cause of Action for failure to state facts sufficient to constitute a cause of action because Plaintiffs have plead none of the elements necessary to sustain a cause of action for interference with prospective business advantage.
WHEREFORE, Defendants pray for judgment as follows;
1. This demurrer be sustained and plaintiffs take nothing by their complain;
2. For costs of suit incurred herein;
3. For reasonable attorney’s fees: and
4. For such other and further relief as the Court may deem just and proper.
Defendants Gale Filter, Denise Mejlszenkier, Anthony Patchett, Kyle Hedum and California District Attorneys Association, in support of their Demurrer to Plaintiffs’ Complaint for Damages, request the Court to take judicial notice of the following:
1. Defendants request that the Court take judicial notice that FILTER MEJLSZENKIER, PATCHETT and HEDUM were sworn as Deputy District Attorneys of Sierra County on August 22, 2002, June 11, 2002, October 28, 2002 and November 27, 2001, respectively, by Sierra County Court Executive Officer Jan Hamilton, under California Evidence Code § 452(h) . The fact of Defendants’ status as Sierra County Deputy District Attorneys is not reasonably subject to dispute and is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Defendants further request that judicial notice be taken under California Evidence Code § 453 as each party has been given sufficient notice of the request and the Court has been furnished with sufficient information to take judicial notice of the matter.
2. Defendants request that judicial notice be taken of the attached signed Oaths For the Office of Deputy District Attorney, administered and maintained by Sierra County Court Executive Officer Jan Hamilton, pursuant to California Evidence Code §§ 452(d)(1) and 452(h). The documents comprise records of the Sierra County Court and the fact of Defendants’ status, as Sierra County Deputy District Attorneys is not reasonably indisputable accuracy. Defendants further request that judicial notice be taken under California Evidence Code § 453 as each party has been given sufficient notice of the request and the Court has been furnished with sufficient information to take judicial notice of the matter.
3. Defendant request that judicial notice be taken of California Government Code § 821.6, which states: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” This request is made under Evidence Code § 451, which provides that judicial notice shall be taken of the decisional, constitutional and public statutory law of [California] and of the United States.
|#1 Complaint Filed February 13, 2004.
MICHAEL M. MILLER
Post Office Box 941
Alleghany, California 95910
Plaintiff in Propria Persona
GEORGE R. GILMOUR (SBN 62169)
6536 Arlington Boulevard
Richmond, California 94805
Attorney for Plaintiff Original Sixteen-
to-One Mine Inc., a California corporation
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SIERRA
COMPLAINT FOR DAMAGES
AUTHORITIES IN OPPOSITION
TO DEMURRER OF GALE
FILTER, DENISE MEJLSZENKIER,
ANTHONY PATCHETT, KYLE
HEDUM, and CALIFORNIA
HEARING DATE: 5/28/04
TIME: 2:30 p.m.
MICHAEL M. MILLER and
MINE, INC., a California
GALE FILTER, DENISE
PATCHETT, KYLE HEDUM,
and DOES 1 through 1621,
1. Plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC. is, and at all times herein mentioned was, a corporation duly organized and existing within the State of California with its principle place of business located in Sierra County, State of California.
2. Plaintiffs are informed and believe and thereon allege that each of the personally-named defendants are, and at all times mentioned herein were, attorneys at law, licensed to practice in the State of California, employees of defendant CALLIFORNIA DISTRICT ATTORNEYS ASSOCIATION, and residents of Sacramento County, State of California.
3. Plaintiffs are informed and believe and thereon allege that defendant CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION is, and at all times herein mentioned was, a non-profit corporation organized and existing within the State of California with its principle place of business located in Sacramento County, State of California.
4. Plaintiffs are ignorant of the true names and capacities of defendants sued herein as Does 1 through 1621, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities when ascertained. Plaintiffs are informed and believe and thereon allege that each of the fictitiously named defendants is responsible in some manner for the occurrences herein alleged, and that plaintiffs' damages as herein alleged were proximately caused by such defendants.
5. Plaintiffs are informed and believe and thereon allege that during all times herein mentioned each of the defendants was the agent and representative of each of the remaining defendants, in doing the things herein alleged, was acting within the scope of said agency, and that each of the defendants is thus jointly and severally liable for the damages suffered by plaintiffs.
FIRST CAUSE OF ACTION
6. Plaintiffs refer to and incorporate herein as though fully set forth Paragraphs 1 through 5, inclusive.
7. Plaintiffs are informed and believe and thereon allege that on or about May, 2002, defendants, and each of them, knowingly and willfully conspired and agreed among themselves to without probable cause or other reasonable bases have felony criminal charges brought against plaintiffs in the County of Sierra, State of California.
8. Plaintiffs are informed and believe and thereon allege that pursuant to and in furtherance of said conspiracy on June 12, 2002, defendants caused a complaint to be filed in the County of Sierra, State of California, against plaintiff MICHAEL M. MILLER and one Jonathan Farrell alleging that on November 6, 2000, at and within the County of Sierra, State of California, plaintiffs and said Farrell violated Section 6425(a) of the California Labor Code, to wit: violation of occupational safety or health standard, order, or special order causing death or permanent or prolonged impairment, when acting as an employer and as an employee having direction, management, control or custody of any employment, place of employment, or of any other employee.
9. Plaintiffs are informed and believe and thereon allege that on October 29, 2002, further pursuant to and in furtherance of said conspiracy, defendants, and each of them, wrongfully misled the Sierra County Grand Jury by inter alia concealing exculpatory evidence, to return a two count felony indictment against plaintiffs and said Jonathan Farrell, charging each of them with involuntary manslaughter in violation of Penal Code Section 192(b) and Labor Code Section 6425(a), to wit: that plaintiffs and said Farrell, while acting as the employer and as an employee having direction, management, control and custody of any employment, place of employment, and of another employee, willfully violated an occupational safety or health standard, viz., Title 8, California Code of Regulations Section 7010(e)(9-60), and that that violation caused the death of one Mark Fussell, an employee of plaintiffs.
10. On February 13, 2003, the Superior Court, County of Sierra, dismissed the charges against plaintiffs.
11. Plaintiffs are informed and believe and thereon allege that defendants, and each of them, acted without probable cause in initiating the prosecution of plaintiffs in that they did not honestly, reasonably, or in good faith believe plaintiffs to be guilty of the crime charged because there existed no substantial evidence of plaintiffs' negligence, inadvertence or other wrongdoing.
12. Plaintiffs are informed and believe and thereon alleged that defendants, and each of them, acted maliciously in instigating the criminal prosecution in that they knew throughout that they lacked any probable cause for doing so.
13. As a proximate result of the criminal prosecution initiated by defendants, plaintiff have been severely damaged.
14. Plaintiff are informed and believe and thereon allege that defendants' acts were willful, wanton, malicious, and oppressive in that they were undertaken and pursued without any reasonable grounds whatever. These acts therefore justify the awarding of punitive damages.
WHEREFORE, plaintiffs pray judgment against defendants, and each of them, as hereinafter set forth.
SECOND CAUSE OF ACTION
(Intentional Infliction of Emotional Distress)
15. Plaintiffs refer to and incorporate herein by reference Paragraphs 1 through 14, inclusive, as though fully set forth.
16. Plaintiffs are informed and believe and thereon allege that defendants' conduct was intentional and malicious and done for the purpose of causing plaintiff MICHAEL M. MILLER to suffer humiliation, mental anguish, and emotional and physical distress, and was conducted with a wanton and reckless disregard of the consequences to said plaintiff.
17. As a proximate result of the acts alleged above, plaintiff MICHAEL M. MILLER suffered humiliation, mental anguish, and emotional and physical distress, and has been injured in mind and body as follows: said plaintiff suffered, and continues to suffer, the consequences of the very real threat of having the remainder of his life physically, economically, socially and psychologically destroyed.
18. By reason of the acts alleged above, said plaintiff's ability to pursue his usual occupation as the chief executive officer of plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC.has been undermined, and he has lost significant income as a consequence.
19. The acts of defendants alleged herein were willful, wanton, malicious, and oppressive, and justify the awarding of punitive damages.
WHEREFORE, plaintiffs pray judgment as hereinafter set forth.
THIRD CAUSE OF ACTION
(Intentional Interference with Prospective Advantage)
20. Plaintiffs refer to and incorporate herein by reference Paragraphs 1 through 19, inclusive, as though
fully set forth.
21. Defendants' actions as herein alleged resulted in a severe undermining of the previously-sterling business reputation of plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC. and rendered said plaintiff's ability to continue in business nearly non-existent.
22. The aforementioned acts of defendants, and each of them, were willful, oppressive and malicious. Plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC. is therefore entitled to punitive damages.
WHEREFORE, plaintiffs pray judgment as follows:
On the First Cause of Action, to both plaintiffs MICHAEL MILLER and ORIGINAL SIXTEEN-TO-ONE MINE, INC.:
1. For general damages according to proof:
2. For exemplary and punitive damages;
On the Second Cause of Action, to plaintiff MICHAEL MILLER:
1. For general damages according to proof:
2. For exemplary and punitive damages;
On the Third Cause of Action to plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC.:
1. For general damages according to proof:
2. For exemplary and punitive damages;
On all causes of action, to both plaintiffs MICHAEL MILLER and ORIGINAL SIXTEEN-TO-ONE MINE, INC.:
1. For costs of suit herein incurred; and
2. For such other and further relief as the court may deem proper.
February 12, 2004.
GEORGE R. GILMOUR
Attorney for Plaintiff
SIXTEEN-TO-ONE MINE, INC.
Plaintiff in Propria
|First of all congratulations to Mike for trusting his instincts/feelings for smelling the rat in the first place - because now it looks as if the rats are scurrying for their holes. I am looking forward to the annual meeting and an update on the latest and greatest news concerning yet another battle of the little putting one over on the big guy.
|The recent article that appeared in the Mountain Messenger, also on this web-site where I first read it, addressed the current statis of the civil suit brought against the CDAA by the Original 16 to 1 Mine, for damages incurred while the CDAA fraud tried to persist.
While most recent discussions on this forum have centered around Fed-monetary-policy, (extremely valid discussion, one I'm intrigued by and learn from all related site-citations), there is an absence of perspective from the regulars here....so I implore you all to chime in, after me, since I'm the first to bite it off, and get the juices flowing.
I think the CDAA bit off more than they thought they could chew, knowing they were immune; which turned out to be thinking they were immune from civil action. This has never been tested in court, and will be, since never before has a vigilante "legal" force maskerading as an appointed-body-representing-jurisdiction been taken to task, challenging a stated body of law and court records with lies and deceit, which the CDAA has been exposed for doing.
And now, there needs to be accountability.
Lawyers are valuable when the cause is just. In this case the cause was fraud, politically motivated fraud, a vigilante wild-cat attempt to dismantle and re-define a shut-case. Now we must have accountability, or there's no stopping the lynch-mob.
I hope you all chime in.
|In response to the two forum entries by Gold Master. The first being on 05/07/03. I figured that these were the suggestions and observations of a well meaning individual who had no first hand knowledge of the Alleghany mining district. The mining plan that was suggested might be fine in Canada or "Down Under" or even Arizona. In Alleghany, it would be the equivalent of putting a core drill on the roof of your house, drill every five feet and try to find grapefruit!!! As for management organazation and protection, there could be some merit in those suggestions but, that's up to the "Sixteens" officers. As for the entry of 05/08/03 (which follows this one) well... It flat ticked me off! Are you sure that you don't work for the CDAA? If you can't run your business and apply a little shoe leather to somebody's tail feathers who tried to ruin your business and everything around you, then you don't belong in business! I think that Gold Master's take on the whole CDAA situation is just a little too goody-goody for me. There were some people who attacked this country a short time ago who thought that there wouldn't be anything that we could do about it. That's not the American way. I think Gold Master should change their name to Gandhi. As for the rest of Gold Masters "Armchair Quarterbacking," I'm sure Mike Miller would probably say (not trying to put words in your mouth Mike) "Been there, done that!" As a finishing statement I would like to submit the mining plan that has been used for over one hundred years In Alleghany, and it still works today. "Less talk. Break more rock!"
|Return? The website is reflecting an 80 cent bid. Not too long ago the stock traded at 20 cents. I call that progress. This is a significant increase in the value of our shares. For the past years the high end of the share's trading range was just above 50 cents. Obviously, the new buyers have confidence in management.
The recent attack by the CDAA has cost the Company its reputation to do any current refinancing. This has impacted the president's plan to open up the Red Star property for development.
Michael Miller saved the Company thousands of dollars in legal expense through his innovative approach to cost cutting while not degrading the quality of its defense. Has anyone thanked him?
I can assure shareholders that there are competent people in the Company, and along with certain other shareholders, that are giving their experience and time that should make the difference in moving us ahead.
For people who think they hold a stock with little return, I can only direct your attention to the fate of millions of people who invested in the NASDAQ stocks in the late 90's.
Our Company, aside from the distractions from the the CDAA and governmental agencies and the lack of operating cash, may have been one of the best performers compared to all of the other stocks that people were buying as the old century came to its close.
People should be aware of the fact that Michael Miller saved this Company and your investments in it by tenanciously beating back the CDAA with the aid from two sympathetic and brilliant attorneys.
I thought your last piece was excellent. Your contributions along with your inspiring insight bring creditability to the Forum and they are most educational. Thanks
Now that we've endured the 2003 Diversion.....Today's G. Davis State-of-the-State-Show, during which he's 'warned' us (the private-sector-producer side of the equation) of the severity of the issue, I've got a SCOOP.
Let's state publicly, whether through a press conference, an editorial, perhaps even an embarassing public open letter to the Lord Gov Himself how it works:
Stifle chance, stifle success; And while you're at it forget whatever revenue is gained through any tax levied against the successful endeavor.
Here's a great illustration: Let's have G. Davis and the Original Sixteen to One Mine square off on a game-board, both sides standing there with bare hands. Next, allow each side equal access to an undeveloped garden plot, say 30 feet by 30 feet, each without gophers or moles or other undefined pests, yet, both plots must pay a tax based upon whatever production results from the endeavor. (G. Davis would try to say the more flowers come up, the more you owe.)
Allow that each side has a green light to plant anything: plant flowers, or veggies, or weeds for that matter, and in ten weeks present flowers or veggies or weeds (anything that's been undertaken) at the next State-of-the-State-Show.
G. Davis: Tax the results.
Now, if nothing's planted, there's no tax. But if some flowers come up, or God forbid some marketable comodity, why, there's a tax.
And some new rules about planting flowers. And more rules about which flowers to plant (some people might not like the flowers you decided to grow.) And then a Flower Regulation Commission to regulate the unfair way you didn't plant flowers, like the guy who let his chance to plant flowers peter out so that the Commission could regulate the unfair way you planted flowers.
Oau: "Actually, we discovered something, not planting flowers, they just came up on their own. All we were doing was checking out our opportunity, decided instead to dig a little deeper, and look what we found: gold."
"Not, fair. You cheated."
"We didn't look for gold in our garden. Maybe if we had a gopher, and a gopher hole, maybe we did, but hey, gophers are protected. So, we aren't looking down gopher holes for your exploitation crap, so it's unfair: You're now under suspicion for not only breaking the rules of gardening, also taking advantage of gopher holes and whatever's inside them, especially if a quartz deposit has gold in it, that's what rules have been broken. Now we're going to quit this experiment, not only that but regulate garden development: (....throw the game-pieces around the room, turn over the Monopoly Board) and make you clean it up."
"But, our garden has flowers, and there's gold underneath, which generates revenue to the treasury, those taxes we were talking about. How much revenue are you sending to the treasury, your garden still sitting there undeveloped?"
"Unfair: ours doesn't have flowers, or gold."
"You haven't even looked! You haven't even turned the ground! You didn't plant any seeds, being all busy watching us plant ours; we have flowers, wish you did too. In fact, if you'd try and can't produce any flowers, come over: we've got some you can buy. Even give them to you if you can't afford it. BUT...."
"You have to try."
"Unfair!! Unfair again. To make sure we all have flowers, next time you try to take advantage of us, (planting seeds both had), we'll make sure this never happens again. Flowers are just for rich people, on their tables."
And so this is where we are.
Given the G. Davis Administation's dependence on revenue, ask this question:
Where would success be, if no one planted any seeds?
|Although the Stella Awards may exist, the awards given as noted are for fictional events and are being emailed I believe for fun. Who's laughing? You can check this out yourself by researching the town's press or court system; or checking website's such as truthorfiction.com or about.com, etc. Don't believe everything you read!
|I received the following letter from a thirteen year old shareholder. If a 13 year old can figure out America's single biggest problem affecting the quality of our lives, what is wrong with our politicians, our judicial system, our leaders and ourselves?
"In my opinion there are far too many Lawyers in our country. As a result, people are being sued for th most ridiculous things.
There is now a yearly award given for the outrageous lawsuit named after 81-year- old Stella Liebeck. It all started when Stella spilled coffee on herself and successfully sued McDonalds. This case inspired the Stella Awards for the most successful lawsuits in the United States.
Kathleen Robertson of Austin, Texas, was awarded $780,000 by a jury of her peers after breaking her ankle tripping over a toddler who was running inside a furniture store. The owners of the store wewe surprised at the verdict, considering the misbehaving little toddler was Mrs. Robertson's son!
Terrence Dickerson of Bristol, Pennsylvania, was leaving a house he had just finished robbing by way of garage. He was not able to get the garage door to go up since the automatic door opener was not working. He couldn't reenter the house because the door connecting the house and garage locked when he pulled it shut. The family was on vacation, and Mr. Dickson found himself locked in the garage for eight days. He lived off a case of Pepsi he found and a large bag of dry dog food. He sued the homeowner's insurance claiming the situation caused him "mental Anguish". The jury agreed to give him $500,000.
A Philadelphia restaurant was ordered to pay Amber Carson of Lancaster, Pennsylvania, $113,500 after she slipped on a soft drink and broke her tailbone. The beverage was on the floor because Ms. Carson had thrown it at her boyfriend 30 seconds earlier during an argument.
This year's favorite could easily be Mr.Merv Grazinski of Oklahoma City, Oklahoma. Mr. Grazinski bought a brand new 32-foot Winnebago motor home. On his first trip home, driving onto the freeway, he set the cruise control at 70 mph and calmly left the drivers seat to go back and make himself a cup of coffee. Not surprisingly, the R.V. left the freeway, crashed and overturned. Mr. Grazinski sued Winnebago for not advising him in the owners manuel that he couldn't actually do this. The jury awarded him $1,750,000 plus a new motor home. The company actually changed their manuals, just in case ther were any other complete morons buying their recreation vehicles.
And people wonder why lawyers are so rich and insurance rates are so high."
|For years now, through clever diversion tactics, imposing shut-downs, questionable citations, politically appointed bodies of law, eventually the CDDA and now inconvieniently (for him) back to the G. Davis administration's need to finally address the obvious, without another bill to defer responibility: The Original Sixteen to One has real logistical and stable ground upon which to stand, than what the G. Davis politically appointed quicksand can support.
Whether or not the imbedded Bench feels the bottom of the pit remains to be seen. So . . .we keep an eye open to truth (always the truth,) and watch for the next move.
However, given the fiscal predicament now facing the G. Davis administration's limited longevity (temporarily preventable should it entertain progressive economic policy, i.e. private sector autonomy,) we wonder if no-one will show up for the show-down.
Dismissal would be sweet; defeat will be even better.
|"No man's life, liberty, or property is safe while the legislature is in session."
|Seems curious that no one wants to bite this one off except Mike and perhaps J. I will.
Accidents will always happen, no matter the precaution (prescibed or not) by those of us who aren't captivated by the restrictions of social (dare I say commy?) wind-sniffing. And when they do, sharks circle.
CDAA has no better target?
Typically we'd expect $$$$ as the motivator, but that's certainly not object (or is it?)....so what is?
I'm willing to wait, just a while, to see who's got the balls to say it besides me.
|The Sierra County Grand Jury has just handed
down an indictment for manslaughter against the
Original Sixteen to One Mine and some of its key
employees. The California District Attorney's
Association has been a key player in pushing the
Grand Jury into this indictment.
The CDAA is a group of attorneys who stand ready
to assist county district attorneys when their
support services have been requested. Sierra
County never initially requested their services. CDAA
just appeared one day at the door. What motivated
the CDAA to push for this criminal investigation and
not Sierra County will always be a question.
The CDAA is a political organization swooping down
like birds of prey with an agenda of their own. This
has all been done outside of their legal status
contract with the State's Labor Department who
employs this private contractor. Over zealous?
You bet it is!
It is strongly suggested by the State Labor
Departments's inaction to censure the CDAA that
they condone this trespass outside the legal boundries
of their contract with this group of attorneys. This is
no more than a breach of legal ethics for both parties
and constitutes an embarrassment for the State.
The CDAA's power play to bring the mine to its knees
is a typical example of a state bureaucracy totally out
of control. Unfortunately, the damage has already
been done. It is a sad state of affairs in this country
when elected officials condone the activities of a
rogue pack of attorneys to rake over the lives of
people and their property.
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PO Box 909
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