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1 Colbern C. Stuart III E-Mail: Cole.Stuart@Lexevia.com 2 4891 Pacific Highway Ste. 102 San Diego, CA 92110 3 Telephone: 858-504-0171 Facsimile: 619-231-9143 4 In Pro Se 5 Dean Browning Webb (pro hac vice) Email: RICOman1968@aol.com 6 Law Offices of Dean Browning Webb 515 E 39th St. 7 Vancouver, WA 98663-2240 Telephone: 503-629-2176 8 Eric W. Ching, Esq. SBN 292357 9 5252 Balboa Arms Dr. Unit 132 San Diego, CA 92117 10 Phone: 510-449-1091 Facsimile: 619-231-9143 11 Attorneys for Plaintiff California Coalition for Families and Children, PBC 12 13 14 15 16 CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, et al., 17 Plaintiffs, 18 v. 19 SAN DIEGO COUNTY BAR 20 ASSOCIATION, et al., 21 22 23 24 25 26 27 28 -i13-CV-1944 CAB BLM

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Case No. 3:13-cv-1944-CAB (BLM) Judge: Hon. Cathy Ann Bencivengo MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION RE: DOMESTIC VIOLENCE RESTRAINING ORDERS

Defendants Date: March 27, 2014 Time: 2:00 p.m. Courtroom: 4C ORAL ARGUMENT REQUESTED SUBJECT TO COURT APPROVAL Complaint Filed: August 20, 2013

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1 2 I.

TABLE OF CONTENTS INTRODUCTION ................................................................................................... 1

3 II. FACTS ..................................................................................................................... 2 4 A. Procedure for Obtaining a Domestic Violence Restraining Orider ..................... 3 5 1. Completing the Forms ....................................................................................... 4 6 2. Penalties For Violating Domestic Violence Restraining Orders .................... 12 7 8 III. DISCUSSION ........................................................................................................ 13 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ii13-CV-1944 CAB BLM

A. Likelihood of Success on the Merits .................................................................. 14 1. The Abuse Standard is Content-Based, and Therefore Presumed Invalid .. 14 2. Abuse is Void for Vagueness ...................................................................... 21 B. Irreparable Harm................................................................................................. 23 C. Balance of Equities ............................................................................................. 24 D. Public Interest ..................................................................................................... 24 IV. CONCLUSION .................................................................................................. 25

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TABLE OF AUTHORITIES

2 Abney v. Alameida, 334 F. Supp. 2d 1221 (S.D. Cal. 2004) ....................................... 13 3 Ashcroft v. American Civil Liberties Union, 535 U. S. 564 (2002).......................16, 19 4 Boos v. Barry, 485 U.S. 312 (1988)............................................................................. 23 5 Bounds v. Smith, 430 U.S. 817 (1977) ......................................................................... 13 6 Brandenburg v. Ohio, 395 U. S. 444 (1969)................................................................ 17 7 Burbridge v. Sampson, 74 F.Supp.2d 940 (C.D.Cal. 1999) ........................................ 14 8 Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) ...........................................17, 18 9 City of Houston v. Hill, 482 U.S. 451 (1987) .............................................................. 19 10 Cornett v. Donovan, 51 F.3d 894 (9th Cir. 1995)........................................................ 13 11 D.C. v. Heller, 554 U.S. 570 (2008) ............................................................................ 13 12 Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998) ........................................... 15 13 Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) ...................................................... 17 14 Giboney v. Empire Storage & Ice Co., 336 U. S. 490 (1949) ..................................... 17 15 Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) .................................................. 14 16 Golden Gateway Center v. Golden Gateway Tenants Assn, 26 Cal.4th 1013 (2001) . 14 17 Gonzales v. Superior Court, 180 Cal.App.3d 1116, 22 Cal.Rptr. 164 (1986) ............ 14 18 Grayned v. City of Rockford, 408 U.S. 104 (1972) ..................................................... 22 19 Hodgson v. Minnesota, 497 U.S. 417 (1990)............................................................... 13 20 Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ................. 22 21 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ........................................... 22 22 In re Berry, 68 Cal. 2d 137 (1968)............................................................................... 13 23 International Socy for Krishna Consciousness, Inc. v. Kearnes, 454 F. Supp. 116 24 (E.D. Cal. 1978) ....................................................................................................... 25 25 Jensen v. Wagner, 603 F. 3d 1182 (2010) ................................................................... 13 26 Kolender v. Lawson, 461 U.S. 352 (1983)................................................................... 23 27 Lewis v. City of New Orleans, 415 U.S. 130 (1974) .................................................... 19 28 Madsen v. Womens Health Ctr., Inc., 512 U.S. 753 (1994) ....................................... 13 -iii13-CV-1944 CAB BLM

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1 Mardi Gras v. City of San Luis Obispo, 189 F.Supp.2d 1018 (C.D.Cal. 2002) .......... 14 2 Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 3 U.S. 789 (1984) ........................................................................................................ 18 4 Miller v. California, 413 U. S. 15 (1973) .................................................................... 18 5 Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir. 2007) .......................... 13 6 N.A.A.C.P. v. Button, 371 U.S.415 (1963)................................................................... 18 7 N.A.A.C.P. v. Button, 371U.S.415, 433 (1963)............................................................ 23 8 Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) .............................................. 17 9 New York Times Co. v. Sullivan, 376 U. S. 254 (1964) ............................................... 17 10 New York Times Co. v. United States, 403 U. S. 713 (1971) ...................................... 17 11 New York v. Ferber, 458 U. S. 747 (1982) .................................................................. 17 12 Nunez by Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997) .......................... 13 13 Overstreet v. United Broth. of Carpenters and Joiners of America, Local Union No. 14 1506, 409 F.3d 1199 (9th Cir. 2005) ...................................................................... 19 15 Parham v. J. R., 442 U.S. 584 (1977) .......................................................................... 13 16 Peng v. Mei Chin Penghu, 335 F.3d 970 (9th Cir. 2003) ............................................ 13 17 Prince v. Massachusetts, 321 U.S. 158 (1944) ............................................................ 13 18 R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992)................................................ 18 19 Reno v. Flores, 507 U.S. 292 (1992) ........................................................................... 13 20 Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 903, 907-10, 153 Cal.Rptr. 21 854, 59 P.2d 341 (1979) ........................................................................................... 14 22 S.O.C., Inc. v. County of Clark, 152 F.3d 1136 (9th Cir. 1998) .................................. 23 23 Saenz v. Roe, 526 U.S. 489 (1999) .............................................................................. 14 24 Sammartano v. First Judicial District Court, in and for County of Carson City, 303 25 F.3d 959, 974 (9th Cir.2002).................................................................................... 25 26 Santosky v. Kramer, 455 U.S. 745 (1982) ................................................................... 13 27 Schenck v. Pro-Choice Network Of W. New York, 519 U.S. 357 (1997) .................... 13 28 Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, -iv13-CV-1944 CAB BLM

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127 (1991) ................................................................................................................ 16

2 Snyder v. Phelps, 131 S. Ct. 1207 (2011) .................................................................... 18 3 Stanley v. Illinois, 405 U.S. 645 (1972) ....................................................................... 13 4 Stevens v. Rose, 298 F.3d 880 (9th Cir. 2002) ............................................................. 13 5 Thornhill v. Alabama, 310 U.S. 88 (1940) .................................................................. 19 6 Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir. 2008) .................................... 13 7 Troxel v. Granville, 530 U.S. 57 (2000) ...................................................................... 13 8 United States v. Alvarez, 132 S. Ct. 2537 (2012)..17, 19 9 United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000)............... 22 10 United States v. Call, 874 F. Supp. 2d 969 (D. Nev. 2012) ........................................ 13 11 United States v. Castleman, 695 F.3d 582 (6th Cir. 2012) ........................................... 22 12 United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013)............................................. 13 13 United States v. Hayes, 555 U.S. 415 (2009) .............................................................. 21 14 United States v. Reese, 92 U.S. 214 (1875) ................................................................. 23 15 United States v. Stevens, 559 U. S. 460 (2010) ........................................................... 16 16 United States v. Stevens, 559 U.S. 460 (2010) ............................................................ 18 17 United States v. Williams, 553 U.S. 285 (2008) .......................................................... 22 18 Vance v. Barrett, 345 F.3d 1083 (9th Cir.2003) .......................................................... 13 19 Vasquez v. Rackauckas, 734 F.3d 1025 (9th Cir. 2013) ..................................13, 14, 25 20 Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 21 (1976) ....................................................................................................................... 17 22 Virginia v. Moore, 553 U.S. 164 (2008) ...................................................................... 13 23 Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) .............................................. 23 24 Washington State Grange v. Washington State Republican Party, 552 U.S. 442 25 (2008) ....................................................................................................................... 18 26 Washington v. Glucksberg, 521 U.S. 702 (1997) ........................................................ 13 27 Watts v. United States, 394 U. S. 705 (1969) ........................................................17, 18 28 White v. Lee, 227 F.3d 1214 (9th Cir. 2000) ............................................................... 24 -v13-CV-1944 CAB BLM

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1 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) ..................... 14 2 Wisconsin v. Yoder, 406 U.S. 205 (1972) .................................................................... 13 3 4 STATUTES

5 Cal. Fam.C. 3026 ........................................................................................................ 7 6 Cal. Fam. C. 3027 ....................................................................................................... 7 7 Cal. Fam. C. 6320 ....................................................................................................... 7 8 Cal. Fam. C. 6320.5 .................................................................................................. 11 9 Cal. Fam. C. 6924 ....................................................................................................... 7 10 Cal. Fam. C. 6320 ..................................................................................................... 11 11 Cal. Fam.C. 3190 ........................................................................................................ 7 12 Cal. Fam.C. 6203 ........................................................................................................ 7 13 Cal. Fam.C. 6300 ........................................................................................................ 6 14 Cal. Fam.C. 6302 ...................................................................................................... 11 15 Cal. Fam.C. 3011 ........................................................................................................ 7 16 Cal. Pen.C. 243(e)(1). ............................................................................................... 15 17 Cal. Pen.C. 422 ......................................................................................................... 18 18 Cal. Pen.C. 166 ......................................................................................................... 6 19 Cal. Pen.C. 836(c)(1) ................................................................................................ 6 20 Cal. Pen.C. 13700(a) ................................................................................................... 7 21 Cal. Pen.C. 13700(b) ................................................................................................... 6 22 Cal. Pen.C. 311 .......................................................................................................... 18 23 Cal.Pen.C. 11165.6 ..................................................................................................... 7 24 Cal.Pen.C. 242 .......................................................................................................... 15 25 Cal. Pen. C. 653m ....................................................................................................... 8 26 27 28 OTHER AUTHORITIES Eugene Volokh, Parent-Child Speech And Child Custody Speech Restrictions 81 New York University Law Review 631, 649-662 (2006).......................................... 14 -vi13-CV-1944 CAB BLM

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1 Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 Cal. L. Rev. 2 4 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -vii13-CV-1944 CAB BLM

291, 319 (1987) ........................................................................................................ 21 Rev.79 (1991)........................................................................................................... 21 Battered Womens Movement, September, 2003 ..................................................... 15 TREATISES

3 Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. 5 Loretta M. Frederick, Kristine C. Lizdas The Role of Restorative Justice in the

9 Wright & Miller, Federal Practice and Procedure, 2948.1 (2d ed. 2004) .............. 23

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Plaintiffs move for a preliminary injunction under Federal Rule of Civil Procedure

2 65(a) enjoining Defendants from (1) use of or reliance on the abuse standard defined 3 in California Family Code sections 6203 and 6320 as the threshold showing for 4 issuance of any domestic violence restraining order, and (2) production, distribution, 5 use, and issuance of the JUDICIAL COUNCIL DV Forms identified herein. 6 7 I. INTRODUCTION Domestic violence is a serious national concern. United States Department of

8 Justice statistics indicate that despite a decrease in frequency of intimate partner 9 violence over the last twenty years, incident rates for nonfatal domestic violence remain 10 at two tenths of one per cent of the population.1 Voluminous research, writing, and 11 debate regarding the causes, nature, and appropriate means of eradicating this social 12 malady have not resolved the controversy among researchers about how to eradicate 13 the offensive persistence of domestic strife. 14 The solution legislated by the state of California and enabled by Defendant 15 JUDICIAL COUNCIL is a courageous initiative consisting of a body of laws, 16 regulations, policies, formwork, and practice standards guiding the behavior of social 17 workers, criminal prosecutors, public and private civil attorneys, judges, court staff, 18 administrators, and law enforcement animating unique oversight and restrictions on 19 those most likely to be involved in domestic violence crimes: Families.2 Thousands of 20 studies commissioned by state and federal governments have shown in abundance that 21 families are statistically more likely to commit crimes of domestic violence. One 22 attorney for the United States Department of Justice recently explained that every 23 domestic relationship is a potential powder keg warranting special government 24 attention.3 Even more studies proving this clear point are ongoing, yet the final solution 25 Report of United States Department of Justice, Bureau of Justice Statistics, Intimate Partner Violence in the U.S., p. 3; Declaration of Colbern Stuart (Stuart 27 Decl.), Ex. P. 2 For purposes of this motion, Family shall include those relations described in 28 California Family Code 6211. Stuart Decl. Ex. A, P3012. 3 Transcript of November 10, 2008 oral argument of Counsel for Petitioner United -126
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1

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1 to how undesirable family discord will be fully exterminated remains illusive. Stuart 2 Decl. 34-34. 3 In pursuit of this end, state and local entities in California devote special 4 attention to families in order to deter behavior which may lead to injury. This Motion 5 asserts that one embodiment of Californias scheme to eradicate domestic violence 6 preventive restraining ordersfails to properly observe constitutional boundaries. 7 Specifically, to what extent may police powers be deployed onto families to accomplish 8 desirable goals of domestic violence deterrence without overstepping constitutional 9 restrictions on the use of state-sponsored tools of coercion? 10 This Motion offers that Californias present scheme to eradicate domestic strife 11 penalizes behavior that (1) is expressly protected by clearly-established fundamental 12 state and federal constitutional rights, (2) violates no law, (3) causes no compensable 13 injury, and (3) may not found any action in equity outside of the jurisdiction of 14 domestic relations courts. Among the wide array of appropriate tools available to the 15 state of California in responding to undesirable behavior, Californias coercive 16 intervention scheme has overstepped clear constitutional boundaries, is of unproven 17 efficacy, is widely abused as a tool for fraud and extortion, and demeans the integrity 18 and effectiveness of our civil and criminal justice institutions. Based upon these 19 deleterious consequences and the strong likelihood of prevailing on questions of law, 20 Plaintiffs seek an order enjoining substantial ongoing illegal interference with the 21 protected liberty interests of citizens of the United States and the State of California. 22 23 25 States Nicole A. Saharsky, United States v. Hayes, Doc. No. 07-608, Stuart Decl. Ex. Q, pp. 2, 8. 4 27 (a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, 28 telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, -226
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II.

FACTS

California county courts deploy local police power to restrain citizens through

24 issuance of Domestic Violence Restraining Orders under section 63204 of the

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1 Domestic Violence Prevention Act, California Family Code 6200 et seq. 2 According to Defendant C. GOLDSMITH: In San Diego County, more than 200 3 restraining orders are issued weekly, often for domestic violence.5 Detailed below, 4 these restraining orders restrict and compel a wide variety of conduct, including speech, 5 association, expression, and movement, and dictate use and enjoyment of vested real 6 and personal property rights of an identifiable class of United States citizens in 7 violation of those citizens fundamental rights under the constitutions of the United 8 States and State of California. 9 10 A. Procedure for Obtaining a Domestic Violence Restraining Order Domestic violence restraining orders are issued by county Family and Criminal

11 Division judges. Stuart Decl. Ex. C, (P3101-03). In Family Court, the orders may be 12 obtained by litigants represented by counsel or appearing in propria persona. Id. 13 Litigants and counsel may prepare their own motions, but may also use pre-printed 14 forms designed and distributed by Defendant JUDICIAL COUNCIL. Cal. Fam.C. 15 6226. A packet of Applicant and Respondent forms and various instructional 16 documentation is attached to the Stuart Decl. as Exhibit C. (JUDICIAL COUNCIL 17 Forms) 18 20 22 The JUDICIAL COUNCIL Forms are used by and made available from various Courts: County court clerks and judges maintain and distribute JUDICIAL Public Social Workers and Administrators: Entities such as Defendant 19 public and private entities including: 21 COUNCIL Forms for their own use and by lawyers and litigants. Ex. D 23 COUNTY OF SAN DIEGO make forms available from county Family Law 24 Facilitators offices, courthouse staff, self-help centers, county Internet websites, and 25 either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a 27 showing of good cause, of other named family or household members. Stuart Decl. Ex. A, P3028. 28 5 Elizabeth Marie Himchak, Judge Outlines Reasons for Domestic Violence Increase Pomerado News, March 2, 2012. Stuart Decl. Ex. B, P3052-53. -326
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1 cooperating agencies such as the Legal Aid Society, Volunteer Lawyers Program, 2 restraining order clinics and classes, and county law libraries. Ex. D; 3 Quasi-Private Social Workers Advocates: Private or quasi-private agencies 4 such as Defendant ALLIANCE, the San Diego Family Justice Center and entities such 5 as the YWCA, and Center for Community Solutions. Ex. E; 6 Law Enforcement: Cooperating public law enforcement entities such as the 7 City of San Diego Police Department and San Diego County Sheriffs Department. Ex. 8 F; Cal. Fam.C. 6250; 9 Prosecuting Attorneys: The San Diego City Attorneys Office Domestic 10 Violence Unit and the County of San Diego District Attorneys Office Family 11 Protection Division and victim advocate services therein. Ex. G; 12 Private Attorneys and Legal Organizations: SDCBA and many divorce 13 attorneys provide, refer, or advise regarding use of the JUDICIAL COUNCIL Forms 14 and laws for their private clients. Ex. H. 15 1. Completing the Forms 16 The process for completing the JUDICIAL COUNCIL Forms is described in the These instructions are 17 INFO forms of the Applicant and Respondent packets. Ex. C, P3101. Audio/video 18 instructions are available at http://wp.me/p4aG7J-I8. 19 incorporated herein as if set forth in full. Stuart Decl. 9. 20 An applicant may complete the forms on her own, hire an attorney, or obtain 21 assistance from public employees such as city and county social workers and 22 administrators, including court clerks, Family Law Facilitators Offices workers, 23 District Attorneys Victim Advocates, San Diego Family Justice Center employees. 24 Quasi-public social workers such as ALLIANCE and Center for Community Solutions 25 offer similar services. Stuart Decl. Exs. D-G, 9. A summary of the relevant steps in 26 the process for obtaining a domestic violence protective order follows. 27 28 -4PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

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1 2 3

a. Step One: Initiating the Request for Restraining Order: Judicial Council Form DV 100 Form DV 100 (Stuart Decl. Ex. C, P3105) provides a boilerplate checklist for

4 the filer identified in (1) to check I ask for the court to order the person identified in 5 (2) as follows: 6 1. Personal Conduct Orders: Orders enjoining the person in (2) from a wide 7 variety of behaviors including acts described as: Harass, attack, strike, threaten, 8 assault, (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, 9 disturb the peace, keep under surveillance, or block movements and Contact, either 10 directly or indirectly, in any way, including but not limited to, by telephone, mail, or 11 e-mail or other electronic means. 12 2. Stay-Away Order: Orders requiring the person in (2) to stay at least ____ 13 yards away from a variety of persons within the Domestic Relations Class, and 14 locations such as churches, schools, workplaces, residences, vehicles, and open-ended 15 any other locations the person in (1) requests. 16 18 20 22 3. Move-Out Order: Orders requiring the person in (2) to move out and not 4. Guns or Firearms and Ammunition: Orders requiring the person in (2) to 5. Record Unlawful Communications: Orders granting the right to record 6. Animals: Possession and Stay-Away Order: Orders granting the person in 17 return to his or her home. 19 not own, possess, purchase or receive a firearm or ammunition. 21 communications made to me by the person in (2) that violate the judges orders. 23 (1) the sole possession, care, and control of the animals listed below and that the 24 person in (2) stay at least ___ yards away from and not take, sell, transfer, encumber, 25 conceal, molest, attack, strike, threaten, harm, or otherwise dispose of identified 26 animals. 27 7. Child Custody and Visitation: Orders creating or altering existing child 28 custody orders for children of one or both of the person in (1) and (2). -5PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

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1 3 5 7

8. Child Support: Orders requesting child support orders and altering existing 9. Property Control: Orders that the court give only me temporary use, 10. Debt Payment: Orders that the person in (2) to make these payments while 11. Property Restraint: Orders that the person in (2) not borrow against, sell,

2 child support orders. 4 possession, and control of the property listed here:______ 6 the order is in effect: _____ 8 hide, or get rid of or destroy any possessions or property, except in the usual course of 9 business or for necessities of life. I also ask the judge to order the person in (2) to 10 notify me of any new or big expenses and to explain them to the court. 11 13 15 12. Spousal Support: Orders that the person in (2) to pay spousal support to 13. Lawyers Fees and Costs: Orders that the person in (2) pay some or all 14. Payments for Costs and Services: Orders that the person in (2) pay for lost 12 the person in (1). 14 of my lawyers fees and costs. 16 earnings costs for services caused directly by the person in (2) (damaged property, 17 medical care, counseling, temporary housing, etc.) 18 20 22 15. Batterer Intervention Program: Orders that the person listed in (2) to go 16. Other Orders: Any other orders against the person in (2) requested by the The Forms and California law provide that orders may be issued by any superior 19 to a 52 week batterer intervention program and show proof of completion to the court. 21 person in (1). 23 court and without notice to the restrained person in (2). Cal. Fam.C. 6300, 6320(a) 24 (Stuart Decl. Ex. C, P3023, P3028). Upon issuance, law enforcement are required 25 to arrest the person in (2) for any violation. Cal. Pen.C. 836(c)(1), 13700(b) (Stuart 26 Decl Ex. C, P3117; Ex. I, P3387, P3404-06). Violation of the orders can be charged 27 as a felony. Cal. Pen.C. 166, 273.6 (Stuart Decl. Ex. C, P3117, Ex. I, P3269-70, 28 P3308-10). -6PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

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1 2

i.

Standard for Issuance of Domestic Violence Restraining Orders: Abuse The remedies available under the Domestic Violence Prevention Act are invoked

3 upon an applicants single showing: The existence of abuse. See, Cal. Fam.C. 4 6203, 6320 (Stuart Decl. Ex. C, P3101, 3108-11, 3118, 3124).6 Though abuse is a 5 simple word in laymans parlance, comprehending the concept as used within the 6 Domestic Dispute Industry requires study. The lesson begins with the JUDICIAL 7 COUNCIL Form description of abuse: 8 9 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 28
6

(25) Describe Abuse Describe how the person in (2) abused you. Abuse means to intentionally or recklessly cause or attempt to cause bodily injury to you; or to place you or another person in reasonable fear of imminent serious bodily injury; or to molest, attack, hit, stalk, threaten, batter, harass, telephone, or contact you; or to disturb your peace; or to destroy your personal property. Abuse can be spoken, written, or physical. (For a complete definition, see Family Code 6203, 6320). For purposes of this act, "abuse" means any of the following: (a) Intentionally or recklessly to cause or attempt to cause bodily injury. (b) Sexual assault. (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. (d) To engage in any behavior that has been or could be enjoined pursuant to Section 6320. Abuse appears in several contexts in the Family and Penal Codes, including child abuse, (Cal. Fam.C. 3011, 3026, 3027, 6924, 7020, Cal.Pen.C. 11165.6), abuse of parental authority (Fam. C. 7507), sexual abuse (Cal Fam.C. 6220, Cal. Pen.C. 11165.1), substance abuse (Cal. Fam.C. 3190), drug abuse (Fam.C. 6929), and spousal abuse and domestic violence-oriented abuse (Cal. Pen.C. 13700(a). This Motion is directed only to the definition relating to abuse as defined in domestic violence restraining orders provided at Cal. Fam.C. 6203, 6211, 6300, 6320. Stuart Decl. Exs. A, I. -7PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

16 Following the references one looks to Family Code 6203, which provides:

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1 The next step, Family Code 6320, provides: 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

7

(a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members. 653m. Telephone calls or contact by electronic communication device with intent to annoy (a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith. (b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business. Stuart Decl. Ex. I, P3329-3330. -8PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

10 One then looks to Californias Penal Code 653m,7 which provides in relevant part:

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1 2 3 4 5 6 7 8 9 10

(g) For purposes of this section, the term electronic communication device includes, but is not limited to, telephones, cellular phones, computers, video recorders, facsimile machines, pagers, personal digital assistants, smartphones, and any other device that transfers signs, signals, writing, images, sounds, or data. Electronic communication device also includes, but is not limited to, videophones, TTY/TDD devices, and all other devices used to aid or assist communication to or from deaf or disabled persons. Electronic communication has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

11 With fundamental liberty and vested property rights at jeopardy, one would be well 12 advised to continue the research, because several defendants hereto continue to 13 expand the conceptual dragnet on public (and private) websites, brochures, flyer, 14 seminars, and books. Defendant JUDICIAL COUNCIL expands on its instructions 15 describing abuse at its Internet website: 16 17 18 19 20 21 22 23 24 25 26 27 28 Abuse is a repetitive pattern of behaviors to maintain power and control over an intimate partner. These are behaviors that physically harm, arouse fear, prevent a partner from doing what they wish or force them to behave in ways they do not want. Abuse includes the use of physical and sexual violence, threats and intimidation, emotional abuse and economic deprivation.8 JUDICIAL COUNCIL website: http://www.courts.ca.gov/1258.htm to: http://www.thehotline.org/is-this-abuse/abuse-defined/. Stuart Decl. Ex. J, P3340-41. The lesson continues. One would also be wise to understand the San Diego County District Attorneys Offices policy for charging abuse to include behavior that undermines the victims self-worth or self-esteem, or controls the victims freedom. For example: Humiliation, controlling what you can or cannot do, deliberately making you feel diminished, isolating you from friends or family, denying you access to money or other basic resources, undermining yourself [sic] worth . . . constant criticism, use of the children against you. Economic Abuse: your partner controls your money and other economic resources. For example: Withholding money at will and forcing you to beg for money, putting you on allowance, preventing you from finishing your education or from gaining employment, intentionally misusing family resources. The -9PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM
8

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Form DV 100 provides a space to describe the most recent abuse, identify

2 witnesses to the abuse, and additional space to detail abuse of you or your 3 children and other related history of abuse. An applicant may use a form DV 105 4 to supplement form DV 100 to request child custody and visitation orders. The Forms 5 solicits no other evidence.9 6 7 b. Step Two: Notice to Party to Be Restrained: Judicial Council Form DV 109 In addition to Judicial Council Form DV 100, the party (1) completing a Form

8 DV 100 is instructed to provide notice to the party to be restrained (2) by completing 9 Judicial Council Form DV 109. Ex. C. A detailed audio/video presentation explaining 10 the instructions for completing form 109 is available at http://wp.me/p4aG7J-I8. 11 13 Form DV 109 includes instructions to the person in (2) to be restrained as For information about responding to a restraining order and filing your 12 follows: 14 answer, read Form DV-120-INFO , How Can I Respond to a Request for Domestic 15 violence Restraining Order? 16 Whether or not you respond in writing, go to the court hearing if you want 17 the judge to hear from you before making orders. You may tell the judge why you 18 agree or disagree with the orders requested. You may bring witnesses and other 19 evidence. 20 22 23 24 25 26 27 28 involved idoms of abuse, domestic violence, harassment, batter, and obscene language are further explained at volume too extensive to include in this pleading. See Stuart Decl. Ex. G, P3231-32; 7. 9 See also, Stuart Decl. Ex. C: Forms DV-100-INFO (Request for Temporary Restraining Order); DV-500-INFO (Can A Domestic Violence Restraining Order Help Me?; DV-505-INFO (How Do I Ask For A Temporary Restraining Order?; DV 520 (Get Ready for Court Hearing); CR 6001-6001 (Detailed DV Form Instructions); FM-1013 (Declaration In Support of Ex Parte Application for Orders); Custody and Visitation Orders (Ex. C, P3134-3171). -10PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

At the hearing the judge may make restraining orders against you that could The judge may also make other orders about your children, child support,

21 last up to five years.

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1 spousal support, money, and property and may order you to turn in or sell any firearms 2 that you own or possess. 3 Form DV 109 indicates that a judge need only find reasonable proof of a past 4 act or acts of abuse (Cal. Fam. C. 6320 and 6320.5) to issue an ex parte restraining 5 order lasting up to five years.10 Cal. Fam.C. 6302; Ex. C, P3118, P3125. The court 6 may issue any order ex parte (Fam. C. 6320). Ex. C, P3118, 3120. 7 9 10 The Form does not advise the person in (2) of possible objections, ramifications c. Step Three: Responding to a DV 100 Form: Judicial Council Form DV 120 Upon being served with a form DV 100 and 109, JUDICIAL COUNCIL Form 8 for completing the form as instructed, or to seek assistant of counsel.

11 DV 120 and DV-120-INFO instruct the person in (2) to review the DV 100 form and 12 complete and file a written response on Form DV-120. Stuart Decl. Ex. C. Form DV13 120 provides a list of check-boxes to agree or disagree to the requested order. 14 The form instructs the person in (2) to tell your side of the story. It provides no 15 advice as to rights, privileges, or immunities, or other options for responding. 16 Audio/Video instructions for completing Form DV 120 are available at 17 http://wp.me/p4aG7J-I8. 18 19 d. Step Four: Issuance of Restraining Order A judicial officer receiving a request for a restraining order may grant the order

20 with or without hearing, and may use Form DV 110 Temporary Restraining Order. 21 Ex. C, P3113-17. If a court holds a hearing, it may issue an order on Form DV 130 22 Restraining Order After Hearing which is substantially identical to Form DV 110. 23 Stuart Decl. Ex. C, P3156-3161. A court may include child custody orders using Form 24 25 26 27 28 This citation to the Family Code is incorrect. Neither Cal. Fam.C. 6320 nor 6320.5 require a finding of reasonable proof for issuance of any order. The statutes require a finding of good cause only when a party requests to extend an order to cover other named family or household members. Such extensions may be issued in the discretion of the court. In fact, the Family Code articulates no burden of proof for issuing any order depriving the person in (1) of the rights identified herein. Ex. A. Neither reasonable proof nor good cause are defined under California law. -11PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM
10

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1 DV 105. Ex. C, P3153-55. A court may also issue a California Law Enforcement 2 Telecommunications System (CLETS) Information Form to provide law 3 enforcement with information that will help them enforce any JUDICIAL COUNCIL 4 Form order. Ex. C, P3122. 5 2. Penalties For Violating Domestic Violence Restraining Orders 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 The form orders include boilerplate Warnings and Notices to the Restrained 21 Person in (2) including instructions relating to child custody, visitation, support, and 22 enforcement by attaching assets and income, interstate travel, real and personal 23 property use and enjoyment, firearms and ammunition. Ex. C, P3116. 24 The Forms include boilerplate Instructions for Law Enforcement stating the 25 order is effective when made (without notice to the restrained person), and that If 26 an officer has probable cause to believe that the restrained person had notice of the 27 order and disobeyed the order, the officer must arrest the restrained person. Ex. C, 28 P3117. The JUDICIAL COUNCIL makes the forms mandatory and represents that -12PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

Forms DV 110 and DV 130 (court orders) advise the person in (2): The Court has granted the temporary restraining orders checked below. If you do not obey these orders you can be arrested and charged with a crime. You may be sent to jail for up to one year, pay a fine of up to $1,000, or both. If You Do Not Obey This Order, You Can Be Arrested and Charged With a Crime It is a felony to take or hide a child in violation of this order. If you travel to another state or to tribal lands or make the protected person do so, with the intention of disobeying this order, you can be charged with a federal crime. If you do not obey this order, you can go to jail or prison and/or pay a fine.

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1 the forms are approved by DOJ. See, e.g., Ex. C, P3113, P3118, 3138. 2 3 III. DISCUSSION The JUDICIAL COUNCIL Forms and the abuse standard enable private

4 parties to deploy state police powers to burden citizen rights guaranteed under 5 numerous provisions of the Constitutions of the United States11 and the State of 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The abuse standard burdens many fundamental rights. Personal Conduct orders offend First and Fourteenth Amendment rights to access justice (prohibition on contacting an opposing litigant). Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007); Bounds v. Smith, 430 U.S. 817, 827 (1977); Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir. 1995). Stay Away orders burden the fundamental right of free movement. Vasquez v. Rackauckas, 734 F.3d 1025, 1037 (9th Cir. 2013) (stay away injunctions); Madsen v. Womens Health Ctr., Inc., 512 U.S. 753, 759 n.1 (1994) (buffer zone injunction); In re Berry, 68 Cal. 2d 137, 14142 (1968) (anti-picketing injunction); Schenck v. Pro-Choice Network Of W. New York, 519 U.S. 357, 390 (1997) (illegal buffer zone). Property Control, Property Restraint, Move-Out, and Guns or Firearms and Ammunition orders offend vested property rights under the Second, Fifth and Fourteenth Amendments. Abney v. Alameida, 334 F. Supp. 2d 1221, 1229 (S.D. Cal. 2004) (vested property rights); Vance v. Barrett, 345 F.3d 1083, 1089 (9th Cir.2003) (vested property rights); D.C. v. Heller, 554 U.S. 570, 595 (2008) (The right to bear arms for the defense of himself and family and his homestead as one of the three indispensable safeguards of liberty ... under the Constitution); United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); United States v. Call, 874 F. Supp. 2d 969, 976 (D. Nev. 2012) (collecting Second Amendment cases). The Instructions to Law Enforcement deprive fundamental criminal procedure rights. See Torres v. City of Los Angeles, 548 F.3d 1197, 1207 (9th Cir. 2008) (probable cause for a criminal offense); Virginia v. Moore, 553 U.S. 164 (2008). Criminal sanctions for property control or debt matters may aid and abet extortion. Peng v. Mei Chin Penghu, 335 F.3d 970, 977 (9th Cir. 2003) (pro-arrest policy to enforce payment of money or debt may constitute extortion); Stevens v. Rose, 298 F.3d 880, 882 (9th Cir. 2002) (Arrest to enforce property dispute held extortion). Custody Orders must survive strict scrutiny. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); Troxel v. Granville, 530 U.S. 57 (2000); Parham v. J. R., 442 U.S. 584, 602 (1977); Reno v. Flores, 507 U.S. 292, 304 (1992); Jensen v. Wagner, 603 F. 3d 1182 (2010); Washington v. Glucksberg, 521 U.S. 702, 720 (1997); Stanley v. Illinois, 405 U.S. 645, 651; Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Prince v. Massachusetts, 321 U.S. 158 (1944); parental authority to control movement of children: Nunez by Nunez v. City of San Diego, 114 F.3d 935, 944 (9th Cir. 1997); -13PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM
11

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1 California.12

This Motion addresses one category of deprivation immediately

2 disposable as a matter of law: Illegal interference with freedom of expression under the 3 First Amendment to the United States Constitution, and Article I, 2(a) and 26 of the 4 California Constitution. 5 "A plaintiff seeking a preliminary injunction must establish that he is likely to 6 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 7 preliminary relief, that the balance of equities tips in his favor, and that an injunction 8 is in the public interest." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 9 7 (2008). The First Amendment analysis of both statutes and policies relating to 10 enforcement of protective orders such as the JUDICIAL COUNCIL Forms is identical. 11 See, e.g., Vasquez v. Rackauckas, 734 F.3d 1025, 1037 (9th Cir. 2013). 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Likelihood of Success on the Merits The JUDICIAL COUNCIL Forms and abuse standard burden expression Hodgson v. Minnesota, 497 U.S. 417, 44647 (1990) (The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to the American tradition.). Contentbased restrictions on parent-child speech are unconstitutional. Eugene Volokh, Parent-Child Speech And Child Custody Speech Restrictions 81 New York University Law Review 631, 649-662 (2006). The right to travel with children is fundamental. Saenz v. Roe, 526 U.S. 489, 490 (1999); Gilmore v. Gonzales, 435 F.3d 1125, 1137 (9th Cir. 2006). These additional deprivations will be addressed in due course. 12 The California Constitution and California cases construing it accord greater protection to the expression of free speech than does the United States Constitution.' Gonzales v. Superior Court, 180 Cal.App.3d 1116, 1122, 22 Cal.Rptr. 164 (1986) (citing Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 903, 907-10, 153 Cal.Rptr. 854, 59 P.2d 341 (1979)); Golden Gateway Center v. Golden Gateway Tenants Assn, 26 Cal.4th 1013, 1019, 29 P.3d 797 111 Cal.Rptr.2d 336 (Cal. 2001). "The state constitutional provisions are more protective and inclusive of the rights to free speech and press than the federal counterpart." Mardi Gras v. City of San Luis Obispo, 189 F.Supp.2d 1018, 1035-36 (C.D.Cal. 2002) (quoting Gonzales, at 1123). "[W]here state law affords greater protection to expression or free speech than federal law, state law prevails. Mardi Gras, at 1035-36 (quoting Gonzales, at 1122); Burbridge v. Sampson, 74 F.Supp.2d 940, 947 (C.D.Cal. 1999). -14PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

13 1. The Abuse Standard is Content-Based, and Therefore Presumed Invalid

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1 based on content. Form DV 100 states: Abuse can be spoken, written, or physical. 2 A regulation is content-based if it is not possible to determine whether the expression 3 violates the restriction without looking at the content of the speech. Foti v. City of 4 Menlo Park, 146 F.3d 629, 636 (9th Cir. 1998). 5 A court cannot determine if an expression is abuse without examining the 6 content of the accused expression. In order to perform the analysis necessary to reach 7 a finding of abuse, a judicial official must examine the content of the spoken, 8 written acts alleged to determine: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Like abuse, there is no criminal analogue to the term batter under California law. Cal. Pen.C. 242 defines battery as any willful and unlawful use of force or violence upon the person of another. See also, domestic battery Cal. Pen.C. 243(e)(1). Stuart Decl. Ex. I. However, in the parlance of the Domestic Dispute Industry, batter has acquired a divergent meaning to describe certain behavior by a man against a woman in a heterosexual relationship. This kind of violence, called battering, is chiefly a problem of violence against women by men and should be understood in the wider social context of mens subordination of women. The Role of Restorative Justice in the Battered Womens Movement, Loretta M. Frederick, Kristine C. Lizdas, September, 2003, p. 37 (available at http://www.bwjp.org/files/bwjp/articles/Role_of_Restorative_Justice_Battered_Wom en's_Movement.pdf). See Stuart Ex. K. 14 Harass is defined under Cal. Pen.C. 646.9 as a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. As this term also sweeps broadly to prohibit speech based on content, it is also likely unconstitutional, and will be addressed in due course. -15PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM
13

If the person in (1) is reasonably in fear of imminent serious bodily injury (i.e.: Is the person in (1) claiming abuse reasonably in fear of imminent, serious bodily injury because the person in (2) said/wrote/expressed themselves in this way: _________?) (Form DV 100); If the person in (2) threaten[ed] batter[ed]13 harass[ed]14 telephone[ed] or disturb[ed] your peace; If the person in (1) is in reasonable apprehension of imminent serious bodily injury to that person or to another. (Cal. Fam.C. 6203(c)); If the person in (2) is (verbally or in writing) attacking . . . threatening . . . battering, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, . .

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1 2 3 4 5 6 7 8 10 11 12

. or disturbing the peace of the other party. (Cal. Fam.C. 6320(a)); If the person in (2) used obscene language with intent to annoy by telephone or electronic communication (Cal.Pen.C. 653m(a)); If the person in (2) intended to annoy or harass in repeated telephone calls or repeated contact by means of an electronic communication device Cal.Pen.C. 653m(b) (the intent to annoy may only be determined by examining the content of the communication). The abuse standard and all laws, forms, regulations, and policies derived a. As a Content-Based Restriction on Expression, the Abuse Standard is Presumed Invalid Interference with non-commercial expression is rarely legal. The line between

9 therefrom define and burden expression based on content.

13 permissible restrictions on expression and illegal ones has been drawn brightly by our 14 Supreme Court. [A]s a general matter, the First Amendment means that government 15 has no power to restrict expression because of its message, its ideas, its subject matter, 16 or its content. Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002). 17 As a result, the Constitution demands that content-based restrictions on speech be 18 presumed invalid . . . and that the Government bear the burden of showing their 19 constitutionality. Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 660 20 (2004). 21 Due Process balancing tests comparing the value of speech with the governments 22 interest in restriction are inappropriate formulas to analyze government interference 23 with non-commercial speech. In light of the substantial and expansive threats to free 24 expression posed by content-based restrictions, this Court has rejected as startling and 25 dangerous a free-floating test for First Amendment coverage . . . [based on] an ad 26 hoc balancing of relative social costs and benefits. United States v. Stevens, 559 U. S. 27 [460, 461] (2010) (slip op. at 7). [C]ontent-based restrictions on speech have been 28 permitted, as a general matter, only when confined to the few historic and traditional -16PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

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1 categories [of expression] long familiar to the bar United States v. Alvarez, 132 S. Ct. 2 2537, 2544 (2012) (internal citations omitted). 3 Abuse does not fit any of the categories of permitted interference. 15 The 4 definition of abuse is breathtakingly broad, including merely telephoning or 5 contacting a person with an intent to annoy, using obscene language, harassing 6 disturbing the peace of a person, as well as a vast array of behavior falling within the 7 ideological descriptions of domestic violence and abuse. Stuart Decl. Ex. J. These 8 categories are far broader than those historic and traditional categories [of expression] 9 long familiar to the bar. 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Some of the expression falling within this definition of abuse may fall within the 11 traditional categories. True threats,16 fighting words,17 and obscenity18 may Among these categories are advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam); obscenity, see, e.g., Miller v. California, 413 U. S. 15 (1973); defamation, see, e.g., New York Times Co. v. Sullivan, 376 U. S. 254 (1964) (providing substantial protection for speech about public figures); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) (imposing some limits on liability for defaming a private figure); speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co., 336 U. S. 490 (1949); socalled fighting words, see Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); child pornography, see New York v. Ferber, 458 U. S. 747 (1982); fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976); true threats, see Watts v. United States, 394 U. S. 705 (1969) (per curiam); and speech presenting some grave and imminent threat the government has the power to prevent, see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931), although a restriction under the last category is most difficult to sustain, see New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam). These categories have a historical foundation in the Courts free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules. 16 Watts v. United States, 394 U. S. 705 (1969); Cal. Pen.C. 422 ("Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement ... is to be taken as a threat ..."). 17 Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). 18 Miller v. California, 413 U. S. 15, 24 (1973) (Obscenity may be prohibited if: (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary -17PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM
15

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1 be properly restricted by narrowly-drawn statutes. Yet abuse as defined in the 2 statutes, regulations, forms, and policies that comprise it is not so tailored. As such, it 3 is presumed invalid. 4 5 b. Abuse Is Overbroad Any regulation on speech beyond the historic and traditional categories [of

6 expression] long familiar to the bar is facially invalid as overbroad. [A] law may be 7 invalidated as overbroad if a substantial number of its applications are 8 unconstitutional, judged in relation to the statute's plainly legitimate sweep. United 9 States v. Stevens, 559 U.S. 460, 473 (2010) (citing Washington State Grange v. 10 Washington State Republican Party, 552 U.S. 442, 449, n. 6, (2008)); See also 11 Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 12 U.S. 789, 799 (1984). Because First Amendment freedoms need breathing space to 13 survive, government may regulate in the area only with narrow specificity." N.A.A.C.P. 14 v. Button, 371 U.S.415, 433 (1963). 15 16 c. Abuse Burdens Clearly Established Rights to Expression Burdening abuse also interferes with clearly-established rights of expression.

17 Family Code section 6203(c) burdens expression by an effect on observer test; 18 burdening speech by looking to whether the expression places another in reasonable 19 fear. Such tests have been expressly rejected by our Supreme Court many times. See, 20 e.g., Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011) (speech causing emotional 21 distress); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 380 (1992) (speech causing 22 anger, alarm, or resentment in others); Cohen v. California, 403 U.S. 15, 26 (1971) 23 (words are often chosen as much for their emotive as their cognitive force.). 24 Criticism, disagreement, or expression of disapprovaleven if targeted at specific 25 personsis protected speech. First Amendment jurisprudence establishes that 26 individuals ordinarily have the constitutional right to communicate their views in the 27 presence of individuals they believe are engaging in immoral or hurtful behavior. 28 community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.); Cal. Pen.C. 311. -18PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

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1 Thornhill v. Alabama, 310 U.S. 88, 104 (1940); City of Houston v. Hill, 482 U.S. 451, 2 461 (1987) (the First Amendment protects a significant amount of verbal criticism and 3 challenge); Overstreet v. United Broth. of Carpenters and Joiners of America, Local 4 Union No. 1506, 409 F.3d 1199, 1211 (9th Cir. 2005); Lewis v. City of New Orleans, 5 415 U.S. 130, 132 (1974) (statute prohibiting wantonly cursing, reviling, and using 6 obscene or opprobrious language held invalid). 7 8 9 d. Defendants Cannot Resurrect the Abuse Standard From the Presumption of Invalidity [T]he Constitution demands that content-based restrictions on speech be

10 presumed invalid ... and that the Government bear the burden of showing their 11 constitutionality. Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660, 12 (2004); Alvarez at 2544. In addition, when the Government seeks to regulate 13 protected speech, the restriction must be the "least restrictive means among available, 14 effective alternatives." Ashcroft at 666. Defendants cannot establish that the burden 15 on expression falling within the category of abuse both (1) falls within one of the 16 above historic and traditional categories [of expression] long familiar to the bar, and 17 (2) is the least restrictive means among available, effective alternatives. 18 Defendants are unlikely to carry their burden of showing that no less restrictive Like 19 means of achieving the statutes articulated interests exist. Ashcroft at 666.

20 statutes, injunctive relief should be no more burdensome . . . than necessary to provide 21 complete relief . . . . Califano v. Yamasaki, 442 U.S. 682, 702 (1979); Vasquez at 22 1037. California Family Code section 6220, the preface to the Domestic Violence 23 Prevention Act in which the definition of abuse appears, articulates Californias 24 interest: 25 26 27 28 The purposes of this division are to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence. -19PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

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Stuart Decl. Ex. A, P 3014. The State of California seems to claim two enabling

2 interests: (1) to prevent recurrence of acts of violence and sexual abuse, and (2) to 3 provide for a separation of the persons involved in the domestic violence for a period 4 sufficient to enable these persons to seek a resolution of the causes of the violence. 5 Defendants bear the burden of persuasion here, and they face a significant hurdle in 6 parsing and analyzing this confusing section. While prevention of a recurrence of 7 crimes relating to sexual abuse (Cal. Pen.C 11165.1) and physical assault (Cal. 8 Pen.C. 240) are at least legitimate, the remaining state interests are not so easily 9 classified. Section 6220 references domestic violence. Under the California Penal 10 Code, the term domestic violence incorporates a more restrictive definition of 11 abuse than the broader definition used in the Forms and Family Code. (Cal. Pen.C. 12 13700(b): Domestic violence means abuse committed against an adult or a minor 13 who is a . . . [list of Domestic Relations Class members]); 13700(a): "Abuse" means 14 intentionally or recklessly causing or attempting to cause bodily injury, or placing 15 another person in reasonable apprehension of imminent serious bodily injury to himself 16 or herself, or another.) (Stuart Decl. Ex. I19). Thus, Defendants must explain how the 17 18 20 21 22 23 24 25 Congress has defined misdemeanor domestic violence more narrowly: 18 U.S.C. 921(a)(33)(A) provides:[T]he term misdemeanor crime of domestic violence means 27 an offense that . . . has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon. (emphasis added). The Supreme Court has 28 unanimously adopted Congresss definition for purposes of 18 U.S.C. 921(a)(33)(A). See United States v. Hayes, 555 U.S. 415, 421, 430 (2009) (the seven justice majority -2026
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Californias definition of domestic violence has not achieved consensus within the Domestic Dispute Industry. See, e.g., November 10, 2013 Transcript of Oral 19 Argument, United States v. Castleman, Stuart Decl. Ex. R: Justice Sonia Sotomayor: Misdemeanor domestic violence Melissa Arbus Sherry: Misdemeanor crime of domestic violence. So both the word "misdemeanor" and the phrase" domestic violence" is a broad spectrum of abusive behavior. It's characterized by a pattern of escalating abusive conduct. It may start with something like emotional abuse, include isolating the person from friends and family, include threats of violence, threatening to take away the kids.

19

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1 State of California possesses a compelling interest in providing a separation for 2 purposes of resolv[ing] the causes of each act within the definition of abuse, 3 which abuse definition Family Code 6220 is referring to, and that the burdens of 4 the restraining orders are narrowly tailored to achieve that end. Aschcroft, supra, at 5 666. As California has disclaimed any interest to resolve issues of fault in dissolution 6 proceedings,20 such an achievement seems dubious. 7 Finally, criminalizing abuse is not the least restrictive means for preventing For any electronic communications, filtering software, call 8 undesirable speech.

9 blocking, or simply disengaging have been asserted to invalidate similar statutes. See, 10 e.g., Ashcroft at 658; United States v. Playboy Entertainment Group, Inc., 529 U.S. 11 803, 826 (2000). 12 2. Abuse is Void for Vagueness 13 A statute is void for vagueness unless it provide[s] a person of ordinary 14 intelligence fair notice of what is prohibited. Hoffman Estates v. Flipside, Hoffman 15 Estates, Inc., 455 U.S. 489, 494495 (1982); United States v. Williams, 553 U.S. 285, 16 286 (2008); Holder v. Humanitarian Law Project, 561 U.S. 1 (2010); Grayned v. City 17 of Rockford, 408 U.S. 104, 108 (1972) (if arbitrary and discriminatory enforcement is 18 19 20 21 22 23 24 25 26 27 28 and two justice dissent in Hayes adopt section 921(a)(33)(A)s definition of domestic violence). 20 In 1970 California led the nation in the no-fault revolution abolishing consideration of fault in a divorce. Family Law Act of 1969 (Former Cal. Civ. C. 4000-5138). After 1970, proof of adultery, extreme cruelty, wilful desertion, willful neglect, habitual intemperance, conviction of a felony, or incurable insanity and cruel and inhuman treatment that threatened the physical and mental well-being of the Plaintiff were deemed improper and inadmissible to dissolution proceedings. Former Cal. Civ. C. 4501, 4509; Herma Hill Kay, An Appraisal of California's NoFault Divorce Law, 75 Cal. L. Rev. 291, 319 (1987). Stuart Decl. Ex. L, p. 83. The pre-1970 fault provisions were widely recognized to cause harm to litigants, children, and the legal system itself, and widely recommended to abandonment by the American Bar Association, many divorce law professional organizations, communities, schools, and churches. Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. Rev.79 (1991). Stuart Decl. Ex. M. Abuse did not reappear in the Family Code until 1994 with the Domestic Violence Prevention Act. Cal. Fam.C. 6203; Stuart decl. Ex. A. -21PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

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1 to be prevented, laws must provide explicit standards for those who apply them). 2 To understand what behavior is burdened under the Family Codes prohibition 3 of abuse, one of ordinary intelligence would be required to undertake the course of 4 study described at Section II.A.1(a)(i) above, including all caselaw interpreting the 5 statutes, as well as the numerous policies, customs, habits, and ideologies of entities 6 within the relevant local jurisdiction, which in this District includes the San Diego 7 District Attorneys Office, the CITY ATTORNEY, SDPD, the county Sheriff and 8 courts, and the ALLIANCE relating to the involved ideoms.21 9 Its difficult to imagine how drafters of the 1994 DVPA could believe that the 10 breadth and ideologically lathered term abuse would lead to anything other than 11 confusion. Indeed, abuse standard appears to have been crafted by persons intending 12 to inject terminology burdening permissible categories of regulation and impermissible 13 ones.22 The drafters might have recognized that subsequent judicial construction or 14 discretion at application could not cure their draftsmanship. See, e.g., United States v. 15 Reese, 92 U.S. 214, 221 (1875) (It would certainly be dangerous if the legislature 16 could set a net large enough to catch all possible offenders, and leave it to the courts to 17 step inside and say who could be rightfully detained, and who should be set at large.); 18 Boos v. Barry, 485 U.S. 312, 329 (1988). Moreover, where a statute cleaves closely to 19 fundamental constitutional rights, deviant draftsmanship can be recognized only as a 20 21 22 23 24 25 26 27 28 Stuart Decl. 7, 11; Ex. G, J, K, P3231-32. The Supreme Court has recently expressed unusual skepticism toward the Domestic Dispute Industrys etymology for abuse domestic violence batter and related terms. The proper constitutional scope and construction of these terms appears to be of new interest to our highest Court. See Jan 14, 2014 transcript of oral argument in United States v. Castleman, 695 F.3d 582 (6th Cir. 2012), cert. granted, 134 S. Ct. 49, (U.S. Oct. 1, 2013). Stuart Decl. Ex. R. 22 E.g., Obscene language may exist within prohibited obscenity but is not itself obscenity; reasonably in fear may the result of an utterance of fighting words or true threats, but not all reasonable fear would be a result of true threats or fighting words. Given that these historic and traditional categories [of expression] long familiar to the bar existed for decades prior the 1994 enactment of the Domestic Violence Prevention Act, one may assume drafters were aware of permitted restrictions, yet oddly chose to ignore them, or worse. -22PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM
21

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1 foul against a deviant drafter. 3 U.S. 352, 357 (1983). 4 5 B.

N.A.A.C.P. v. Button, 371U.S.415, 433 (1963)

2 (government must regulate speech with narrow specificity); Kolender v. Lawson, 461 Irreparable Harm

Since abuse burdens rights of expression, and the orders invoked by a finding

6 of abuse interfere with fundamental liberty and vested property interests, irreparable 7 harm must be presumed. Warsoldier v. Woodford, 418 F.3d 989, 1001 (9th Cir. 2005) 8 ("irreparable injury sufficient to merit the grant of relief [established] by demonstrating 9 the existence of a colorable First Amendment claim"); When an alleged deprivation 10 of a constitutional right is involved, most courts hold that no further showing of 11 irreparable injury is necessary." Wright & Miller, Federal Practice and Procedure, 12 2948.1 (2d ed. 2004). It is no defense that the deprivation caused by the orders may be 13 temporary. S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1148 (9th Cir. 1998) 14 ("The loss of First Amendment freedoms, even for minimal periods of time, 15 unquestionably constitutes irreparable injury."). Even the threat of issuance and 16 criminal repercussions for enforcement of the orders creates an irreparable harm by 17 chilling speech. See White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000) (government 18 conduct violates the First Amendment when it "would chill or silence a person of 19 ordinary firmness from future First Amendment activities"). 20 STUART and CALIFORNIA COALITION members and affiliates have 21 experienced past deprivations of protected rights under the abuse standard, and all 22 members of each of the EQUAL PROTECTION CLASSES in the state of California 23 are presently subject to deprivation. Stuart Decl. 36, Ex. B. Stuart is presently under 24 an order issued by Defendant Goldsmith in or about May, 2010 by use of the Forms 25 and remains at jeopardy for further deprivation in his relationships with his ex-wife and 26 son. Id. Such past and ongoing deprivation constitutes irreparable harm and standing 27 for purposes of this Motion. 28 -23PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

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1 2

C.

Balance of Equities

Enjoining Defendants use of the Forms and abuse standard would impose no

3 burden to any legitimate interest of any Defendant. Threats, fighting words, obscenity, 4 and obstruction of justice will remain crimes. Civil remedies for property damage, 5 reputational injury, and emotional injuries remain available. Enjoining use of the 6 JUDICIAL COUNCIL Forms will not prohibit individualized petitions for equitable 7 remedy in the case of truly irreparable damage should a need arise. 8 Yet continued reliance on the abuse standard will perpetuate deprivations of 9 fundamental rights identified herein, but also the means for committing extortion, 10 fraud, and abuse of process well-known to the Domestic Dispute Industry. See, e.g., 11 Peng v. Mei Chin Penghu, 335 F.3d 970, 977 (9th Cir. 2003); Stuart Decl. 15-30, Ex. 12 N; First Amended Complaint allegations re: MALICIOUS PROSECUTION, 13 PROSECUTORIAL MISCONDUCT, DOYNE TERRORISM, OBSTRUCTION OF 14 JUSTICE. Ending such disgraceful and malicious practices today is nothing short of 15 humane. 16 17 D. Public Interest [T]he protection of constitutional rights is always in the public interest."

18 International Socy for Krishna Consciousness, Inc. v. Kearnes, 454 F. Supp. 116, 125 19 (E.D. Cal. 1978). Protecting rights of intimate association with family and friends is 20 a public interest. Vasquez v. Rackauckas, 734 F.3d 1025, 1037 (9th Cir. 2013) 21 (enjoining protective orders that burdened constitutionally protected freedom of 22 intimate association, association with family members in public places such as 23 schools, churches, parks, libraries, stores, and restaurants and in the home); 24 Sammartano v. First Judicial District Court, in and for County of Carson City, 303 25 F.3d 959, 974 (9th Cir.2002) (Courts considering requests for preliminary injunctions 26 have consistently recognized the significant public interest in upholding First 27 Amendment principles.). Enjoining the constitutional burdens posed by the broad 28 abuse standard serves cherished public interests that are, without exception in a free -24PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

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1 society, in the public interest. 2 3 4 IV. CONCLUSION Our communities have rightly mobilized to address the serious problem of

5 domestic violence. As awareness has increased, our experience and understanding of 6 its causes and variety of appropriate means of preventing and redressing it have 7 evolved. Unfortunately, in the present case the attention devoted to prevention of 8 domestic violence has led to an expansion of police powers beyond traditional shoals 9 which restrain such means, leading to deprivation and nefarious consequence. Given 10 the State of Californias ability to address domestic strife by a variety of effective, 11 efficient, and legal means, allowing the continued existence of an illegal form of 12 those many responses serves not to prevent the ill of domestic strife, but to compound 13 it into a widespread and demeaning social injustice. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -25PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM

Plaintiffs respectfully request that the Court grant the injunction. Respectfully Submitted: DATED: February 26, 2014 By: /s/ Colbern C. Stuart, III Colbern C. Stuart, III, President, California Coalition for Families and Children, PBC, in Pro Se

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the court's CM-ECF system per Federal Rule of Civil Procedure 5(b )(2)(E). Any other counsel of record will be served by facsimile transmission and/or first class mail this 26th day of February, 2014. By: /s/

Colbern C. Stuart, III

Colbern C. Stuart, III, President, California Coalition for Families and Children, PBC in Pro Se

-1PLTFS MEMO ISO PRELIM INJ 3:13-cv-1944 CAB BLM