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In the Supreme Court of California
En Banc
Michael M. Miller, et al,. Plaintiffs and Respondents
v.
Gale Filter, Defendant and AppellantThe petitions for review are denied
Filed Aug –8 2007
Frederick K. Ohirich ClerkGeorge
Chief JusticeMike, and Don, and all of the rest of us out there, here’s how my letter will read (first draft and only conceptual at this point):
We, the people, do not want non-representation by vigilante appointment loose to willy-nilly apply political notions contrary to the intent of the law.
We believe that our representative Republic will be at risk should illegal representatives mount positions of power and remain unchecked.
We, the people, expect law to be upheld, not re-interpted to fit into gray-area motives.
We believe that the review of this case has merit, citing the above points: that a non-representative body is using its power to usurp the intent of the law to its advantage, without shame.
Reviewing the intents of everything in this case, one has no other conclusion to draw.
With respect, we expect the Court will rule upon the intent of the law and such application.
Mike: barring your catastrophic objection, here it will go:
Your various Honors, et al it might concern:
Re: Gail Filter et al v Sixteen to One, Miller
The language of the law may well not lend itself to poetry, but
neither should it lead to @#$%ery.The violence done to our native tongue, our native rights and my
tediously if incompletely acquired sensibilities by the Court of
Appeals in the above referenced matter screams for review and redress.That a California citizen cannot question a lawyer’s authority, even
a prosecutor’s authority, without being deemed to have interfered
with free speech stands the anti-SLAPP concept on its head.For the sake of the law, for western civilization, for any hope of a
common citizen’s understanding, embrace of and pride in that law,
please take a careful look at this case.Neither of two superior court judges found the underlying question
frivolous. We citizens of Sierra County are interested to know how
lawyers who assume, perhaps to say usurp, our name to prosecute
friends and neighbors become immune from the plainly worded
requirements of the law. We consider the issue of sufficient import
that we are insulted to have it dismissed through a perversion of the
anti-SLAPP statutes. A decent respect for our intelligence should
prompt the Supreme Court to address those issues left moot by the
Appeals Court.Don Russell
Editor, The Mountain Messenger, Downieville
Yellow journal muckraker and harpy for freedomI hinted at this term (one I just now fashioned) in my last entry to Bluejay. I stated that I wasn’t an “ecomomist”, and most probably figured I had my spelling wrong or that my key-board had failed. (Crush would be proud.)
So, I will define the term now:
Ecomonist: (noun) 1) one who defines one’s ecconomic situation by the success of others and defines one’s own success as another’s, keeping their success as the target for the eventual montetary redistribution; (2) one who studies how to achieve the above; (3) ibid, although “communist” is often the substitute; (4) the actions of a public sector entity bent on achieving through taxation and regulation that which could not be achieved within the private sector without such entity in place; (5) robbery; (6) a term disguised so well that if one has read this far would not recognize the motivation so clevery hidden in the name: environmental policy designed to distribute an ecconomic model based upon trumped-up eccologic pathology blaming humans for their own downfall while disguising it in a non-scientigfic model of importance, relegating the human above the creator of the very environment upon which they depend, or the ignorance of fact, that such scientific models ignore for economic gain the ongoing scientific realitity that this has already happened, many times before, keeping the “commonist” in chains for the fraudulent explanation; (7) the manipulation of truth to gain an eco-commonist outcome.
It doesn’t take too much understanding to be aware of the growing number of crooks and abusers in our government and legal system.
This is what unbridled power and greed has led to. Sadly, people outside this country who read the real news understand this better than we do. Our way of life is being systemically destroyed and has been so for a good amount of time. Our legal rights and our currency’s buying power aren’t what they used to be.
The only financial hope for the common man is to own gold until positive steps are taken to stop and reduce the growing mountain of monetary expansion and debt.
In the background and through secret meetings plans are always being devised to take the public’s attention away from gold. Even today, western central bankers are speaking of more gold sales which depressed the metals price lower to the $670 level.
The major gold producing companies are freightened to take issue with the manipulation of gold for fear of some form of retribution and legal expenses against a well entrenched evil force, mainly the banks with the influence they exert on governemnt employed officials, along with the Fed.
Someday hopefully, a dynamic individual will surface and start a grass roots movement resulting in punishment to those responsible for abusing our legal rights, our right to invest in gold companies without the price suppression of its product and our way of living which is being assaulted by our fiat currency.
I wish my uncle were still
around. He did mining law in
Nevada and he was a “whiz”To offer an explanation to Rick (following two entries):
OUTRAGE OR PARTICIPATION IN JUDICIAL DEBATE IS FOREIGN TO AMERICANS
We fight, feud and rant about the behavior of Presidents, Governors and Congressmen. But for lawyers, Americans crack jokes as if everyone knows the judicial players are inherently corrupt and always worth a laugh. Why bother pursuing this playground in America’s democracy? Lawyers lie and mislead each other, their clients and the Court. Judges, once appointed, rarely have an opponent in elections. Maybe they remember what it was like before they assumed the privilege of wearing the black robe.
It’s a word game and hard for most non-lawyers to play. Anyway if Joe and Jane average American get into it with “them”, they stick together against anyone wanting to rock their fraternity.
Or so it seems. In our case three lawyers working for Californians decided against the wisdom of many familiar with the law, facts and evidence of the proceedings that were appealed for their review. In the November 5, 2002 Election Ronald B. Robie, a candidate for California State Court of Appeals (District 3), wrote in his campaign literature, “Whenever an appellate court reverses, it almost always allows the trial court to rehear the case using the correct law and procedures.”
Ronald B. Robie continues in his published statement. “All justices are bound to apply the law whether or not they personally agree with it. Justices may not substitute their own ideas for what the law should be, but are bound by the federal and state constitutions, statutes, and other rules and regulations enacted by those with the authority to do so, including the State Legislature and the voters by initiative. Justices must enforce all laws without being swayed by public opinion. The Code of Judicial Ethics requires all justices to “be faithful to the law regardless of partisan interests, public clamor or fear of criticism….”
Well, dear reader, who will evaluate the veracity of now justice Robie’s pre election campaign statements? He will continue to be unopposed, and his name, like all unopposed judges up for election, will not only have no opponent but will not appear on the ballot. Boy, those good old boys in Congress and the Executive branch continue to protect the brotherhood of lawyers.
Rick, I know the outrage because people offer their outrage to me constantly. Where are the voices, our leaders? I don’t have the answer. It appears to me that those men and women that are intellectually and financially capable of changing the appalling state of the law remain silent. There are two non-profit foundations that profess to advocate for American constitutional freedoms. Lawyers run them. Both have expressed concern for SLAPP legislation and its chilling effect on public participation. Both have taken a wait and see approach whether the California Supreme Court reverses the Court of Appeals. I have been told that it is very unlikely to happen. If it does not happen, three lawyers, now judges, will have twisted the intent of the California legislature and its statutes. Maybe Americans have it right. WHY BOTHER.
It’s frustrsting when I post a heavy topic and nobody chimes in. Where are you?
Good luck with the state sup.
ct. on the latest pet. You are
going to need it. The last
unfavorable ruling was an
effort to protect and sanctify
all prosecutors whithersoever
disbursed. mjnOur latest filing….
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
MICHAEL M. MILLER, et al.,
Plaintiff and Respondent
v.
GALE FILTER, et al.,
Defendants and AppellantsFrom Third District
Court Of Appeal
No. C051696OBJECTIONS TO APPELLANTS’ ANSWER TO PETITION FOR
REVIEW FILED BY RESPONDENT
ORIGINAL SIXTEEN-TO-ONE MINE, INC.Appeal From Sierra County Superior Court,
Honorable Stanley C. Young, JudgeDOWNEY BRAND LLP
TORY E. GRIFFIN (SBN 186181)
555 Capitol Mall, Tenth Floor
Sacramento, CA 95814-4686
Telephone: (916) 444-1000
Facsimile: (916) 444-2100
Email: tgriffin@DowneyBrand.comKLAUS J. KOLB (SBN 146531)
400 Capitol Mall, 11th Floor
Sacramento, CA 95814
Telephone: (916) 558-6160
Facsimile: (916) 492-0598
Email: KJKLaw@sbcglobal.netAttorneys for Respondent
ORIGINAL SIXTEEN-TO-ONE MINE, INC.OBJECTIONS TO APPELLANTS’ ANSWER
TO PETITION FOR REVIEWThe Original Sixteen-To-One Mine, Inc. (“Mine”), plaintiff and respondent, is mindful of the instructions in the Court’s letter of June 20, 2007, that any Reply to an Answer filed in response to the Mine’s petition for review should be “limited to the additional issues presented in the answer, if any.” California Rule of Court (“CRC”), Rules 8.500(e)(5), 8.504(a). Appellants’ Answer does not appear to raise any additional issues desired for review if the Mine’s Petition for Review is granted. The Mine therefore has resisted the temptation to respond to legal arguments and issues raised in the Answer, even though the Mine disagrees with much of the argument and legal analysis presented in the Answer.
However, CRC Rule 8.204 also requires that allegations of fact be limited to matters in the record, and that allegations of fact be supported by citations to the record. Appellants’ Answer to the Mine’s Petition for Review includes allegations about the Mine’s position in the trial court and the Court of Appeal that are not supported by citations to the record and that affirmatively misrepresent the Mine’s position on two issues that are critical to the Mine’s Petition for Review. The Mine therefore submits these Objections to Appellants’ Answer, limited to correcting those misrepresentations of the record.1. CDAA Defendants Falsely Allege That The Mine Failed To Argue Below That CDAA Defendants’ Conduct Was Not Constitutionally Protected.
CDAA Defendants (Appellants) argue in their Answer to the Mine’s Petition for Review (at IV.A.3, p. 7) that:
[T]he Mine argues that the anti-SLAPP statute should not apply here because government speech and conduct are not constitutionally protected speech. (Mine’s Petition, at 5, 6.) However, that new issue should not be considered by this Court because it was not timely raised in the Court of Appeal.
CDAA’s assertion is a complete misrepresentation of the record. The Mine repeatedly and adamantly argued to the Court of Appeal that CDAA Defendants’ conduct in wrongfully attempting to criminally prosecute plaintiffs (including the Mine) was not protected by constitutional guarantees of free speech and petition. For example, heading A.2. of the Mine’s Respondent’s Brief (at p. 25) states:
CDAA defendants do not qualify for the protections of the anti-SLAPP statute because they have no constitutional right to illegally impersonate district attorneys or to conduct a criminal prosecution of plaintiffs.
The Mine’s Respondent’s Brief follows up (at p. 26) by expressly arguing:
Nothing in the California or U.S. Constitutions provides a private entity with the right to unlawfully cloak itself with the authority and power of the government and to criminally prosecute another citizen.
And (at pp. 36-37):
Rather than engaging in free speech or petitioning the government for some action, CDAA defendants took over a portion of the government, and misused the government’s prosecutorial powers to initiate and pursue criminal charges against plaintiffs. …. [Italics in original.]
* * *
In this case, the CDAA defendants’ activity that gave rise to plaintiff’s damages and this action is that defendants unlawfully assumed the powers of the Sierra County District Attorney, in violation of the law and in violation of the express requirements of their Contract with Cal-OSHA. The defendants’ acts underlying plaintiffs’ cause of action do not constitute protected speech or petitioning, ….
The Mine repeated the argument again in its Answer to Amicus Curiae Brief Of Attorney General, for example, at page 9:
Unless defendants or the Attorney General first prove that defendants’ conduct in unlawfully assuming the powers of a district attorney to wrongfully prosecute Respondent was in furtherance of their valid exercise of the constitutional rights of free speech and petition, the Attorney General must wait for another motion in another forum to argue for expanding the scope of prosecutorial immunity. For the reasons already set forth in Respondent’s Brief at 21-38, neither defendants nor the Attorney General are entitled to reach the issue of prosecutorial immunity in this case, because this case does not arise from conduct by defendants that is protected by the constitutional rights of free speech or petition.
Furthermore, the Court of Appeal’s Opinion itself is unambiguously predicated on the same premise challenged by the petitioner in Vargas v. City of Salinas, Supreme Court No. S140911
– i.e., that government conduct qualifies as constitutionally protected speech or petition rights for purposes of the anti-SLAPP statute.The Court of Appeal’s decision found that CDAA defendants were de facto government employees so their criminal prosecution of plaintiffs was lawful (e.g., Opinion at 11), and that CDAA defendants were “uncompensated public officers” and therefore were entitled to “the absolute immunity granted by Government Code section 821.6” for any illegal conduct they committed during the course of their criminal prosecution of plaintiffs (e.g., Opinion at 24). The Court of Appeal’s published opinion ultimately holds that the anti-SLAPP statute requires dismissal of plaintiffs’ complaint because: (1) initiating and conducting a criminal prosecution qualifies as conduct protected by constitutional guarantees of free speech and petition for purposes of the anti-SLAPP statute; and (2) as de facto government employees, CDAA defendants are absolutely immune for any illegal conduct committed in the course of that criminal prosecution, so plaintiffs have no probability of success on the merits. The Court of Appeal’s published opinion ordering the trial court to grant CDAA defendants’ motion to dismiss therefore brings this appeal squarely within the grounds for review raised in the Petition for Review granted by this Court in Vargas, supra.
Throughout this litigation, the Mine repeatedly challenged CDAA defendants’ claim that their criminal prosecution of plaintiffs was “in furtherance of [CDAA Defendants’] right of petition or free speech under the United States or California Constitution …” as required by the anti-SLAPP statute, C.C.P. §425.16, subds. (a) and (b)(1). The Mine reminded the Court of Appeal of its position once more in the Mine’s petition for rehearing (at 6):As the Court is well aware, Respondent contends that the anti-SLAPP statute is not available to the CDAA defendants because there is no constitutional right to criminally prosecute a fellow citizen, and because, even if there were, CDAA defendants did not have a constitutional right to initiate and carry out a criminal prosecution of plaintiffs in violation of Government Code §24102, which expressly required that defendants “shall not act as deputy until: [] (a) A written appointment by the deputy’s principal is filed with the county clerk; … [and] [] The deputy has taken the oath of office ….” [Emphasis added.]
The assertion in CDAA Defendants’ Answer that the Mine’s Petition for Review either contradicts its position below, or that the Mine waived or forfeited the arguments raised in the Petition for Review by failing to raise them below, are contradicted by the record and are just plain wrong.
2. The Mine’s Petition For Review Is Not Based On Inadmissible Evidence.CDAA Defendants’ Answer to the Mine’s Petition for Review also argues that the Mine’s challenge to CDAA’s conduct is based on inadmissible evidence. Answer To Petition For Review at 9. CDAA’s Answer reveals that the facts relevant to the key issues presented for review are largely undisputed.
As noted in the Mine’s Petition for Rehearing filed with the Court of Appeal, the Mine contends that the Court of Appeal ignored evidence and permissible inferences from evidence, even though the Court initially acknowledged the existence of that evidence. For example, the Court of Appeal initially (at page 6) recognized that:According to plaintiffs, defendants knew that they lacked the lawful authority to prosecute plaintiffs and also knew that they lacked probable cause, but prosecuted the action anyway in order to gain notoriety and destroy plaintiff’s financial viability.
The remainder of the Court of Appeal’s opinion then appears to ignore this evidence.
However, it is misleading and inaccurate for CDAA Defendants to suggest that the Court of Appeal ruled that all of the Mine’s evidence was inadmissible. In fact, the Court of Appeal did not address the following undisputed evidence presented in the trial court and summarized in the Mine’s Respondent’s Brief, Answer to Amicus Curiae Brief of Attorney General, and again in the Mine’s Petition for Rehearing:(1) CDAA, a private entity, had a financial incentive to initiate a prosecution of Original Sixteen-To-One regardless of the merits of that prosecution, because CDAA was attempting to demonstrate that it deserved an extension of its contract with the Department of Industrial Relations (“DIR”) (3 C.T. 459, 456, 458; 4 C.T. 827, 979);
(2) CDAA pressed for a criminal prosecution of Original Sixteen-To-One Mine despite the fact that the state and federal agencies responsible for investigating worker safety at the Mine had concluded that there were no “willful” violations of any safety regulations at the Mine (3 C.T. 476, 481-84; 4 C.T. 810, 818, 829-830, 899-909; Request for Judicial Notice (“RJN”) Exs. 2, 3);
(3) It is undisputed that the Sierra County District Attorney did not request assistance from CDAA and expressed no desire to prosecute Original Sixteen-To-One Mine during the almost thirteen months between the date of the accident and the date CDAA representatives personally “presented” their proposed criminal prosecution to the District Attorney. It is also undisputed that no written appointments of CDAA defendants were ever prepared by the District Attorney or filed with the county clerk, as required by Government Code §24102.
(4) CDAA defendants’ declarations provide evidence that defendants were acting without the supervision or direction of the district attorney, in that they omit virtually any mention of supervision, control, or even interaction with the District Attorney (2 C.T. 422-24; 434-437; 442-443; 3 C.T. 449-450);
(5) CDAA initiated an improper prosecution and improperly obtained an indictment, which the Superior Court subsequently dismissed due to CDAA’s misconduct before the grand jury (1 C.T. 81-88), and which the newly elected District Attorney chose not to pursue (4 C.T. 827, 992-993; 2 C.T. 280).
Although the Court of Appeal based its decision almost exclusively on the declarations submitted by CDAA defendants – including the portions of those declarations that supposedly repeat statements made by the Sierra County District Attorney and other Sierra County representatives – the Court of Appeal expressly ruled (Opinion at 14, fn. 4) that declarations by Mine representatives and local newspapers about contrary statements made by the Sierra County District Attorney were inadmissible hearsay because:
There is no evidence that [District Attorney] O’Sullivan was defendants’ agent or that they authorized her to speak on their behalf. (See Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code (1995 ed.) foll. § 1222, p. 159.)The statements by District Attorney O’Sullivan that the Court of Appeal rejected as hearsay include (but are not limited to) statements to the effect that: “CDAA came to her with a completed investigation proposing to file criminal charges … and forced their way into Sierra County” (4 C.T. 810, 812; 3 C.T. 465; 2 C.T. 449, 436); the elected District Attorney “wanted nothing to do with the issue and saw no crime …” and “said she was not participating in the case ….” (4 C.T. 778-780, 810, 812-13, 819-820, 843; 2 C.T. 270).
The Court of Appeal found that CDAA defendants were acting on behalf of District Attorney O’Sullivan after she “appointed” them (Opinion at 23) – notwithstanding the missing appointment papers – and that CDAA defendants “assumed the responsibility and duties of prosecuting the criminal action against Miller and the Mine as deputy district attorneys” (Opinion at 24). Given the Court of Appeal’s findings, the Mine does not understand how that court could simultaneously conclude that the District Attorney was not authorized to speak on behalf of her deputies about the criminal prosecution that they supposedly were carrying out on the District Attorney’s behalf. See Evidence Code §1222.1 However, even assuming that a District Attorney needs express authorization from her deputies to comment about a case being handled by her deputies, and that failure to do so makes the District Attorney’s public statements about that case inadmissible hearsay, the Mine has presented sufficient other admissible – and largely undisputed – evidence to support the issues it has raised in its Petition for Review. It is therefore inaccurate and misleading for CDAA defendants to assert that the Mine’s Petition for Review depends on inadmissible evidence.
CONCLUSION
For the reasons set forth above, Petitioner Mine objects to unsupported factual allegations made by CDAA Defendants in their Answer to the Petition for Review filed by the Mine. The Original Sixteen-To-One Mine, Inc., therefore respectfully requests that the Court disregard assertions made by CDAA defendants that are contradicted by uncontroverted citations to the record, including to the Briefs and the Petition for Rehearing filed by the Mine with the Court of Appeal in this action. For the reasons set forth in its Petition for Review, the Mine respectfully requests the Court to grant its Petition, and to permit the Mine to address the CDAA defendants’ arguments more fully in future briefs to be presented to the Court after the Court has had an opportunity to consider many of the same issues raised in the pending Vargas v. City of Salinas petition for review.
Respectfully submitted July 16, 2007,
______________________________
Klaus J. Kolb
Attorney for Respondent
ORIGINAL SIXTEEN-TO-ONE
MINE, INC.
______________________________DOWNEY BRAND LLP
Tory E. Griffin
Attorney for Respondent
ORIGINAL SIXTEEN-TO-ONE
MINE, INC.CERTIFICATE OF WORD COUNT
The text of “OBJECTIONS TO APPELLANTS’ ANSWER TO PETITION FOR REVIEW FILED BY RESPONDENT
ORIGINAL SIXTEEN-TO-ONE MINE, INC.,” consists of 2,278 words, as counted by the Corel WordPerfect version 12 word-processing software I used to generate this Brief.
Dated: July 16, 2007.
______________________________
Klaus J. Kolb
Attorney for Respondent
ORIGINAL SIXTEEN-TO-ONE
MINE, INC.Martin, yes most do, and accept it as a “what-ever”.
This is the shame.
This is why it’s prudent to talk about the CDAA’s attempt to circumvent the Constitution. Also, crucial to bring to light how the current administration (albeit hated by the ill-informed), has our individual rights in concern, and why the Wall Street Journal published the piece that points this out.
I believe the current administration has our Constitutional rights as a primary focus, and not a right- wing legacy or crazy zealot adgenda in mind.
In the Wall Street Journal article (below topic), this fraud has been flagged, and it points out the administration’s focus to bring it to light.
Our mission is take a proactive position: to actively show our friends and neighbors how such passive acceptance of such actions by vigilante “focus groups” (that can be pronounced another way) will bite us all in the ass unless checked and rejected.
Let’s ask ourselves, “How does a non-Constitutional self-appointed vigilante group of thugs get away with charging innocent citizens of manslaughter!!!???”
…while knowingly misleading a grand jury…then saying to the court “whatever”…
Whether liberal or conservative, we need to recognize how such evil entities are in place.
Remember, “when Rome sleeps…” and the historic result.
Doesnt everyone know that most
litigation attys. will lie and
lie repeatedly to win their
point and case?When we recognized the breach of law by the CDAA in the fraudulent prosecution of this mine and its CEO and mine manager for thetr fraudulent fairy-tale breaches of law, no-where on the radar was a subsequent irrational decision by the district Court.
Initially, my question was: “Why? The CDAA broke the intention of the law, as their trumped charges were previously recognized as fraud and untrue, yet they proceded.”
Then we endured our challenge. As asserted by the CDAA, and that although they were fraudulent and criminal, they had prosicutorial immunity from financial liability. The circuit court found some quick-sand and bailed, essentially caving to a higher authority, which is where this whole thing now rests.
This is of national importance, essentially a Constitution crisis in the “n”th degree.
Now, the Wall Street Journal has the fortitude to publish Executive Branch (W) concerns in this arena (please read the latest posting).
I believe that this current battle waged by MMM and the Original Sixteen to One Mine against the vigilante prosecution by the fraudulent CDAA will become the poster-front so well illustrated in the Wall Street Journal editorial. As citizens, this is our cause and rally.
Anyone who is interested in what happened in Sierra County is encouraged to file letters in support of the petition for review. Letters should be sent A.S.A.P.
The Supreme Court has assigned the petition for review No. S153654 – Michael M. Miller, et al., vs. Gale Filter, et al. An amicus curiae letter in support of the petition for review may be filed by anyone – the person filing need not be a lawyer. The letter may not incorporate documents by reference (other than to refer to documents already filed in the case), and it must “describe the interest” of the person submitting the letter (why he or she is interested in the appeal). The letter does not need to follow any other formalities, and should be relatively short (1-3 pages), with an argument focused on why the Supreme Court should accept review, rather than on why the Court of Appeal was wrong (although these may overlap). A copy of the letter must be served on each party to the action (sample below)and an original and eight copies must be sent to the Supreme Court. The address for the Supreme Court is: Supreme Court of the State of California, 900 N Street, Room 400, Sacramento, CA 95814.
Sample proof of service: Use copy and paste or e-mail corp@origsix.com and we will send a word document to you that is better formatted.
CERTIFICATE OF SERVICE
Court and Case No: SUPREME COURT OF THE STATE OF CALIFORNIA
Case No. S153654Case Name: MICHAEL M. MILLER, et al. v. GALE FILTER, et al.
I am a citizen of the United States, employed in ______________ County, California. My business address is: ____________________________________________. I am over the age of eighteen years and not a party to the above-entitled action. On: ____________________________, 2007, I served the following documents in the manner listed below:
Letter In Support Of Petitions For Review By ORIGINAL SIXTEEN-TO-ONE MINE, INC., and Michael M. Miller
MANNER OF SERVICE
XX U.S. MAIL: By placing a true copy of the above documents into a sealed envelope, addressed as listed below, with the proper first-class postage affixed, and then depositing the envelope in a U.S. mail box on the date indicated above.
PERSONAL SERVICE: By causing a true copy of the above documents to be personally delivered by hand to the offices of:
OTHER: By causing a true copy of the above documents to be delivered to the addressee(s) listed below by and/or through:
PARTIES SERVED AND ADDRESSES
Thomas S. Knox, Esq. Attorney for Defendants
KNOX, LEMMON & ANAPOLSKY, LLP Gale Filter, Denise Mejlszenkier,
One Capitol Mall, Suite 700 Anthony Patchett, Kyle Hedum,
Sacramento, CA 95814-3229 California District Attorneys’ AssociationMichael M. Miller Plaintiff and Respondent in pro per
Original Sixteen-To-One Mine, Inc. President, Original Sixteen-To-One Mine, Inc.
P.O. Box 941
Alleghany, CA 95910William N. Brieger, Esq. Attorney for Amicus Curiae
Deputy Attorney General Attorney General of the State of California
1300 I Street
P.O. Box 944255
Sacramento, CA 94244-2550Klaus J. Kolb, Esq. Attorney for Plaintiff and Respondent
400 Capitol Mall, 11th Floor Original Sixteen-To-One Mine, Inc.
Sacramento, CA 95814Sierra County Superior Court
P.O. Box 476
Downieville, CA 95936PROOF OF SERVICE
Supreme Court Of The State Of California Original plus 8 copies
900 N Street, Room 400
Sacramento, CA 95814-4869I declare under penalty of perjury that the foregoing is true and correct. Executed this July _____, 2007 in SACRAMENTO, California.
_______________________________________
On the eve of our shareholder’s meeting, just in case I can’t make it up to the mine-site (although I plan to be there), I want to chime in on the latest chapter in the legal arena….
Any of us who know the history of the mine, and mainly the history of California gold-mining and all the subsequent issues that arise (take the rising of the city of San Francisco for example and the legal sortings that eventually played through), know that litigation has always been a necessary obstacle to the ultimate success. Gold mining has a way of transcending the litigation, all the while enduring it’s inevitability.
Reviewing the countless episodes of historic gold-ming booms, how miners would leave given diggins and seek richer ground, one has only to follow the money to see where other riches were realized…usually not from those who mined the gold, but where those who knew how to exploit the situation set their traps and watched.
On to the next derivative: the salted mine and the modern hype eventually exposing nothing but a hole in the ground and a hole in the investor’s pocket-book, how even today we’ve witnessed and continue to watch the modern version of snake-oil mining. Many, many speculations and only a very few true ventures. All we need to do is reseach recent fraudulent gold-mining-potentials to see how the money is made on speculation, not on true production and historic ore.
(Right now is where I should make clear that the Original Sixteen to One has the true track record of real mining. Anyone reading this blind, without knowing the historical reality of real-life-gold-mining and historical production of the Original Sixteen to One Mine, those of you new here and checking everything out, this mine is for real.)
Given the topic title under which I’m writing this right now, there’s just one more thing I need to comment on:
Throughout history the opportunists have come in all disguises, usually the salted mine frauds. Yet in the case of this mine, there has been an assault by an opportunist which hasn’t been trying to sell a fake mine, instead taking advantage of potential political potential by attempting to shut it down through illegal tampering with a Grand Jury, since then now exposed…their actions through entirely fraudulent methods, mis-using the legal system, hoping to capture political capital rather than the traditional money angle.
Above, I mentioned litigation attempts to influence gold-mining success, and the Sixteen to One Mine has endured nothing new in the history of fraudulent attempts to prosper from the desk of a crook.
This is why I write tonight. I supported and continue to support every action the President and CEO of the Original Sixteen to One Mine, as well as the Board of Director’s decisions in this regard.
We will always encounter crooks. The day a mine rolls over and watches the crooks operate is the day that mine will sign the “deep-enough” grave-stone.
Fortunately, this mine and it’s director and it’s back-bone is strong.
THE TWO BRIEFS DESCRIBED BELOW CAN BE FOUND UNDER THE ‘NEWS’ HEADING.
On June 18,2007, a Petition for Review by Respondent Original Sixteen to One Mine, Inc. was filed in the Supreme Court of the State of California. Attorneys for Respondent are Downey Brand LLP (Tory E. Griffin) and Klaus Kolb.
The issues presented are:
(1) Can defendants who unlawfully took over the power and authority of the Sierra County District Attorney, in violation of the express requirements of Government Code 24102 and in direct violation of their contract with the State, and who abused the powers reserved to an elected district attorney in order to pursue a baseless and malicious criminal prosecution against plaintiffs, use the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute to dismiss plaintiffs’ subsequent suit for damages and obtain an award of attorneys’ fees against plaintiffs?(2) Should California’s “de facto officer” doctrine be extended to automatically and as a matter of law entitle a private party who unlawfully exercises the powers of an elected prosecutor to the same absolute immunity otherwise reserved for the duly appointed public employees?
WHY REVIEW SHOULD BE GRANTED
1. The Court of Appeal’ s opinion is a dangerous precedent because it makes every suit challenging an abuse or usurpation of government power subject to the anti-SLAPP statute.
2. The Court of Appeal’s opinion vastly expands the “de facto officer doctrine” to immunize private parties who unlawfully assume and unlawfully exercise government power.
On June 18, 2007, Michael M. Miller filed a petition for review as plaintiff and involuntary respondent with the same Court. The issues presented are;
(1) Can the anti-SLAPP statute be applied to a pro per party who had taken defendants’ default before the anti-SLAPP motion was filed, when defendants’ default was not set aside until after the Superior Court had entered its order denying the anti-SLAPP motion?
(2) Can private prosecutors who were never appointed to act as deputy district attorneys in Sierra County escape all responsibility for the damages they caused by maliciously conducting a baseless and illegal criminal prosecution of a private citizen?WHY REVIEW SHOULD BE GRANTED
1. Defendants had no right to file an anti-SLAPP motion against plaintiff Miller, and the Superior Court had no jurisdiction to rule on it, when the anti-SLAPP motion was filed while defendants were in default.
2. Defendants should not be entitled to automatic and absolute immunity for the harm they caused Miller and the Mine in this case.California Rules of Court allow a party to petition for rehearing within 15 days after the filing of a decision. If the court does not rule on the petition before the decision is final, the petition is deemed denied. Klaus Kolb, attorney for Respondent, Original Sixteen to One Mine, Inc (the mine) filed a Petition for Rehearing yesterday, May 23, 2007. Michael M. Miller, a co-plaintiff with the mine but not a party to the anti-SLAPP motion filed a petition to correct the record.
The petition follows. You are invited to review and evaluate our beliefs and position. Legal scholars have begun to decipher the laws and statutes of legislation that promulgated the SLAPP. Has the language of the statute evolved as the 3rd Court of Appeals panel interprets the facts of this case? Is this the intent of the legislation?
California’s anti-SLAPP statue provides for a special motion to strike a complaint where the complaint arises from conduct that falls within the rights of petition and free speech. The statue was first enacted in 1992. The concept of SLAPP was created to protect individuals’ and the public’s civil and constitutional rights against frivolous lawsuits. Should the Court of Appeals be allowed to make legal precedent with its disposition? If so, the judicial branch will have cast aside what the executive and legislative branches of our government have sworn an oath to protect.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICTMICHAEL M. MILLER, et al.,
Appeal No. C051696
Plaintiff and RespondentFrom Sierra County
Superior Court Case
No. 6293
v.
GALE FILTER, et al.,
Defendants and AppellantsPETITION FOR REHEARING
BY RESPONDENT
ORIGINAL SIXTEEN-TO-ONE MINE, INC.Appeal From Sierra County Superior Court,
Honorable Stanley C. Young, JudgeKLAUS J. KOLB (SBN 146531)
400 Capitol Mall, 11th Floor
Sacramento, CA 95814
Telephone: (916) 558-6160
Facsimile: (916) 492-0598
Attorney for RespondentORIGINAL SIXTEEN-TO-ONE MINE, INC.
INTRODUCTION
Respondent Original Sixteen-To-One Mine, Inc., respectfully submits this Petition for Rehearing to address two issues that appear to be based on errors about facts presented in the record for this appeal.
First, the Court’s May 8, 2007 Opinion concludes that plaintiff Michael M. Miller is a party to this appeal, apparently because the Court found no citation to the record or legal analysis to the contrary. Respondent respectfully suggests that the Court overlooked the portions of Respondent’s Brief that provides the relevant record citations showing that Mr. Miller had obtained a default against all defendants before defendants purported to serve their anti-SLAPP motion, and that default was not set aside until after the Superior Court granted the anti-SLAPP motion. The Superior Court therefore had no jurisdiction to consider defendants anti-SLAPP motion as to Mr. Miller, and Respondent’s Brief notes that there is no evidence in the record that the Superior Court actually did so.
Second, the Court’s May 8, 2007 Opinion initially (at page 6) recognizes that:According to plaintiffs, defendants knew that they lacked the lawful authority to prosecute plaintiffs and also knew that they lacked probable cause, but prosecuted the action anyway in order to gain notoriety and destroy plaintiff’s financial viability.
However, when the Court later discusses defendants’ claims to anti-SLAPP protection and to prosecutorial immunity as de facto prosecutors, the Court appears to summarize plaintiffs’ opposition as based “simply because the district attorney neglected to file her written appointments of the CDAA employees as deputy district attorneys ….” Opinion at 9. Respondent respectfully suggests that the Court’s analysis of defendants’ claims to prosecutorial immunity and the anti-SLAPP statute overlooked the evidence and reasonable inferences from evidence that would allow a jury to conclude that defendants knew their conduct in prosecuting plaintiffs was unlawful – evidence and inferences that are in addition to the fact that CDAA defendants violated the express command of Government Code §24102 by acting as deputy district attorneys without ensuring that a written appointment existed and had been filed with the county clerk.
ARGUMENT
1. Defendants had no right to file an anti-SLAPP motion against Mr. Miller, and the Superior Court had no jurisdiction to rule on it, when the anti-SLAPP motion was filed while defendants were in default.Near the conclusion of the Court’s Opinion (at page 26), the Court concludes:
Due to the absence of any analysis, relevant legal authority, and citations to the material facts in the record to support a contrary conclusion, we find that Miller is a proper party on appeal.
Respondent respectfully suggests that the Court’s conclusion about the absence of any analysis or citations to the material facts in the record to support a contrary conclusion is inaccurate.1 Respondent’s Brief explains, over the course of two and one-half pages (pp. 19-21) and with specific citations to the record, that plaintiff Michael M. Miller took the default of CDAA defendants on February 28, 2005, and that defendants’ motion to set aside the default was not granted until December 29, 2005. 1 C.T. 239-240; 11 C.T. 2782-84. Respondent’s Brief also explains that defendants did not file their anti-SLAPP motion until March 9, 2005, and that the Court ruled on defendants’ anti-SLAPP motion on December 1, 2005. R.T. 57-121; 11 C.T. 2777-2781. Respondent’s Brief further explains that defendants did not file a separate anti-SLAPP motion against Mr. Miller after their default was set aside, and that Mr. Miller did not participate in the briefing or hearing on defendants’ anti-SLAPP motion. R.T. 57-121.
Respondent’s explanation apparently was sufficiently specific that Appellant’s Reply Brief devoted a separate major heading and three pages of the Reply Brief to addressing the issue of whether Mr. Miller was a proper party to the appeal. See heading “I. MICHAEL MILLER IS A RESPONDENT IN THIS CASE,” Reply Brief at 3-6. Notably, defendants do not contest the facts recited in Respondent’s Brief, and expressly acknowledge that Mr. Miller had obtained a default against defendants before defendants filed their anti-SLAPP motion, and that the Superior Court did not indicate its intent to set aside the default until October 19, 2005, after all briefing on the anti-SLAPP motion had been completed. Reply Brief at 4-5, also providing specific citations to the record at 1 C.T. 239, 11 C.T. 2782. Defendants do not dispute the indisputable fact that the Superior Court’s order granting their motion to set aside Mr. Miller’s default was not entered until after defendants’ anti-SLAPP motion had been denied by the Court.
It is well-established black letter law that entry of default instantaneously cuts off a defendant’s right to participate in the action until either the default is set aside, or a default judgment is entered. See, e.g., Weil and Brown, California Practice Guide Civil Procedure Before Trial (The Rutter Group Rev. #1 2006) “Defaults,” 5:6, p.5-2. As was explained in W.A. Rose Co. v. Municipal Court (Fitzsimmons) (1959) 176 Cal.App.2d 67, 71-73:The subsequent untimely filings … did not affect the duty of the clerk to enter default when requested, nor did they restore the jurisdiction to the court which was lost when default should have been entered.
In this case, it is undisputed that the clerk entered a default against defendants before they filed their anti-SLAPP motion, and the Court did not enter an order setting aside the default until after the Court had decided the anti-SLAPP motion. According to well-settled California law, the Superior Court had no jurisdiction to consider defendants’ anti-SLAPP motion as to Mr. Miller, and Mr. Miller had no obligation to respond to the anti-SLAPP motion. The record demonstrates that Mr. Miller did not respond, and the record reveals no evidence that the Superior Court entered an order denying the anti-SLAPP motion as to Mr. Miller, as distinct from the Original Sixteen-To-One Mine.
In light of the undisputed procedural history summarized in Respondent’s Brief, supported by specific citations to the record, and the fact that well-settled California law holds that a default deprives a court of jurisdiction to consider any subsequently filed or served motions until the default is set aside, Respondent’s counsel thought it sufficient to mention in a footnote that “there has been no order granting or denying an anti-SLAPP motion with respect to Mr. Miller.” Respondent’s Brief at 2, fn. 2. Respondent’s counsel apologizes for not briefing the matter more extensively. However, the fact that the trial court was without jurisdiction to consider the anti-SLAPP motion with respect to Mr. Miller means that there could be no appeal of a nonexistent order granting the motion with respect to Mr. Miller, which means that this Court does not have jurisdiction to order that the anti-SLAPP motion be granted as to Mr. Miller. Further, as a purely equitable matter, it would be highly unfair to direct the Superior Court to consider awarding attorneys’ fees against Mr. Miller on a motion that defendants had no right to serve on Mr. Miller, that the Superior Court had no jurisdiction to consider as to Mr. Miller, and that Mr. Miller did not have an opportunity to oppose in his own name, either in writing or at the hearing on the anti-SLAPP motion.2. Plaintiffs presented admissible evidence and reasonable inferences from admissible evidence sufficient to show “a probability” of prevailing against defendants’ affirmative defense of prosecutorial immunity.
As the Court is well aware, Respondent contends that the anti-SLAPP statute is not available to the CDAA defendants because there is no constitutional right to criminally prosecute a fellow citizen, and because, even if there were, CDAA defendants did not have a constitutional right to initiate and carry out a criminal prosecution of plaintiffs in violation of Government Code §24102, which expressly required that defendants “shall not act as deputy until: [] (a) A written appointment by the deputy’s principal is filed with the county clerk; … [and] [] The deputy has taken the oath of office ….” [Emphasis added.] Since defendants never argued – let alone established – that Government Code §24102 was itself unconstitutional, how can doing an act in express violation of a statute be constitutionally protected? See, e.g., Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 819 (“If the defendant’s act is not constitutionally protected how can doing the act be ‘in furtherance’ of the defendant’s constitutional rights?”). There is no evidence that a written appointment of CDAA defendants was ever prepared by the Sierra County District Attorney, and it is undisputed that no such written appointment was ever filed with the Sierra County Clerk. 1 C.T. 11-17, 44-45; 4 C.T. 810, 811-12, 836-37. 2
In any event, even if the Court concludes that defendants’ conduct of acting as deputy district attorneys in violation of Government Code §24102 constituted “the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” (C.C.P. §425.16, subd. (a); Flatley v. Mauro (2006) 39 Cal.4th 299, 313, 317-18), CDAA defendants are not entitled to an order dismissing this action unless defendants prove that plaintiffs do not have “a probability of success” in defeating defendants’ affirmative defense of prosecutorial immunity. Briggs v. Eden Council for Hope & Opportunity (1997) 19 Cal.4th 1106, 1122; Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 477 (placing duty of proving affirmative defense on defendant).
In this case, the Court’s Opinion appears to assume that plaintiffs’ only objection to CDAA defendants’ conduct was “simply because the district attorney neglected to file her written appointments of the CDAA employees as deputy district attorneys, ….” See, e.g., Opinion at 9, 11, 13, 15, 16, 21. As noted above, there is absolutely no evidence that the district attorney ever prepared written appointments, so it is not merely a failure to file written appointments with the county clerk that is at issue. Secondly, Government Code §24102 makes it the responsibility of the prospective deputy (CDAA defendants in this case) – not the responsibility of the district attorney – to make sure that written appointments are on file with the county clerk before the prospective deputy is permitted to “act as deputy.” It is therefore exceedingly charitable and incorrect for the Court to conclude that the “technical deficiency in their [CDAA defendants’] appointment process …is not of their own making.” Opinion at 21.
More importantly, Respondent never relied on merely a “technical deficiency … in the appointment process” to oppose CDAA defendants’ anti-SLAPP motion. As Respondent outlined in its Respondent’s Brief (at 15-18, 41-48) and again in its Answer to the Amicus Brief (at 4 and in more detail at 11-14), Respondent claims intentional wrongdoing by the CDAA defendants in addition to their failure to comply with Government Code §24102, including the following:
(1) CDAA, a private entity, had a financial incentive to initiate a prosecution of Original Sixteen-To-One regardless of the merits of that prosecution, because CDAA was attempting to demonstrate that it deserved an extension of its contract with the Department of Industrial Relations (“DIR”) (3 C.T. 459, 456, 458; 4 C.T. 827, 979);(2) CDAA pressed for a criminal prosecution of Original Sixteen-To-One Mine despite the fact that the state and federal agencies responsible for investigating worker safety at the mine had concluded that there were no “willful” violations of any safety regulations at the Mine (3 C.T. 476, 481-84; 4 C.T. 810, 818, 829-830, 899-909; RJN Exs. 2, 3);
(3) The Sierra County District Attorney did not request assistance from CDAA and expressed no desire to prosecute Original Sixteen-To-One Mine during the almost thirteen months between the date of the accident and the date CDAA representatives personally “presented” their proposed criminal prosecution to the District Attorney – “CDAA came to her with a completed investigation proposing to file criminal charges … and forced their way into Sierra County” (4 C.T. 810, 812; 3 C.T. 465; 2 C.T. 449, 436);
(4) The CDAA did not carry out its prosecution of Original Sixteen-To-One Mine under the supervision and control of the elected District Attorney, as required by state law and its contract with DIR, but rather pursued the prosecution despite the fact that the elected District Attorney “wanted nothing to do with the issue and saw no crime …” and “said she was not participating in the case ….” (4 C.T. 778-780, 810, 812-13, 819-820, 843; 2 C.T. 270). The declarations submitted by CDAA defendants provide additional evidence that defendants were acting without the supervision or direction of the district attorney, in that they omit virtually any mention of supervision, control, or even interaction with the District Attorney;
(5) CDAA then initiated an improper prosecution and improperly obtained an indictment, which the Superior Court subsequently dismissed due to CDAA’s misconduct (1 C.T. 81-88), and which the newly elected District Attorney chose not to pursue (4 C.T. 827, 992-993; 2 C.T. 280).
This additional evidence of misconduct by CDAA is material to this appeal because defendants’ attempt to invoke the “de facto” officer doctrine depends on defendants proving that they “exercise[d] the duties of a public officer under color of a known and authorized appointment, …” People v. Cradlebaugh (1914) 24 Cal.App. 489, 491. Taken as a whole, the evidence plaintiffs were able to gather at this early stage of the litigation – with virtually no discovery – is sufficient to allow a reasonable inference by a jury that CDAA defendants knew they were in violation of the requirement of their own contract with the Department of Industrial Relations (“DIR”), knew that the District Attorney had not requested their assistance, knew that the District Attorney did not supervise their work, knew that the District Attorney disapproved of the prosecution of plaintiffs, knew – as supposed experts in the process of appointing deputy district attorneys – that they had not been properly appointed, and knew that at least some members of the public (including plaintiffs3) were challenging their authority to engage in the prosecutions. Furthermore, as the Court’s Opinion recognizes, the California Supreme Court has previously held that actions of a de facto officer exercising the functions of the office “ ‘ “lawfully and with the acquiescence of the public …” ’ ” are valid and binding. Opinion at 11, citing Marine Forests Society v. California Coastal Com’n (2005) 36 Cal.4th 1, 54 (other citations omitted). For the reasons outlined above, Respondents have always maintained that CDAA defendants’ conduct was unlawful for reasons that go beyond and are in addition to CDAA defendants’ unlawful exercise of power as unappointed deputy district attorneys.
The same evidence and conduct summarized above also applies to the Court’s analysis of whether “de facto” district attorneys are entitled to prosecutorial immunity. The Court’s Opinion concludes (at 22) that:[W]here a person appointed as a deputy district attorney acts under color of authority and is performing the same function as would a de jure deputy district attorney, the person is entitled to prosecutorial immunity even if his or her appointment was irregular ….
The Court’s Opinion implies that if a deputy district attorney knows that he or she is not authorized to act, he or she is not entitled to prosecutorial immunity for the unauthorized acts. For the reasons set forth above, Respondent maintains that it has presented enough evidence and reasonable inferences from that evidence to meet the “minimal merit” prong of the anti-SLAPP statute, and to show a probability of success in showing that defendants are not entitled to seek protection under the de facto officer doctrine. Navellier v. Sletten (2002) 29 Cal.4th 82, 89.
The same evidence also is material to the Court’s analysis of whether CDAA defendants qualify as “uncompensated public officers or public servants of the Sierra County District Attorney’s Office” within the meaning of Government Code §§810.2 and 821.6. The Court’s Opinion notes (at 23) that, “the fact they were employees of CDAA does not preclude them from being uncompensated public employees, servants, or officers within the meaning of Government Code section 810.2 and the immunity statute” (emphasis added). However, the fact that CDAA’s contract with DIR does not preclude CDAA employees from being uncompensated public employees also does not prove conclusively that they were uncompensated public employees – and CDAA defendants have the burden of proof on this affirmative defense. Defendants presented no evidence that CDAA defendants were uncompensated public employees – in fact, CDAA defendants never even cited Government Code §810.2 in their briefs to the Superior Court or the Court of Appeal. The Court’s Opinion states that defendants “acted on behalf of” District Attorney O’Sullivan, but defendants have not carried their burden of conclusively proving this with admissible evidence, and Respondent has offered sufficient evidence to allow a jury to reach a contrary conclusion, even at this early stage of the litigation.
The Court’s Opinion cites hearsay in the declarations of CDAA defendants as evidence that District Attorney O’Sullivan appointed them and approved of their activities. Opinion at 12. Those hearsay declarations obviously are not the equivalent of the appointments required by Government Code §24102. Similarly, the Court’s observation (at 13) that District Attorney O’Sullivan was “aware of the criminal action against Miller and the Mine” may allow an inference that District Attorney O’Sullivan appointed CDAA defendants to prosecute it, but it does not conclusively prove that she did so, and a jury would be permitted to draw a different inference after considering the evidence offered by Respondent. Moreover, if the hearsay declarations of CDAA defendants are admissible evidence to show that District Attorney O’Sullivan approved of CDAA defendants’ acts, and authorized them to carry out her directions, then it is inconsistent for the Court to conclude that District Attorney O’Sullivan was not authorized to make public comments about the scope of her authorization to CDAA defendants, or about their conduct in supposedly carrying out her directions. Evidence Code §1222.
California Constitution, Art. XI, §1, authorized and made District Attorney O’Sullivan responsible for any prosecution being conducted by her office. If CDAA defendants claim to have been acting as appointed deputy attorneys acting pursuant to the directions and supervision of District Attorney O’Sullivan, then they necessarily authorized District Attorney O’Sullivan to make public comments about their conduct. Accordingly, District Attorney O’Sullivan’s comments about whether and the extent to which she authorized or approved of CDAA defendants’ conduct is admissible evidence which a jury could decide to believe over the assertions of CDAA defendants. Nothing more is required to show “a probability” of success in defeating CDAA defendants’ affirmative defense of prosecutorial immunity, based on a claim to have been acting as de facto, uncompensated public employees.
CONCLUSION
For the reasons set forth above, Respondent Original Sixteen-To-One Mine, Inc, respectfully requests the Court to grant this Petition for Rehearing. The admissible evidence cited by Respondent shows that Michael M. Miller was not a party to the anti-SLAPP motion in the Superior Court, and cannot be made a party to the anti-SLAPP motion on appeal. The admissible evidence, when considered as a whole and with all reasonable inferences in favor of Respondent, also is sufficient to show that Respondent’s claims have “minimal merit,” and “a probability” of overcoming defendants’ affirmative defenses.Respectfully submitted May 23, 2007,
______________________________
Klaus J. Kolb
Attorney for Respondent
ORIGINAL SIXTEEN-TO-ONE MINE, INC.CERTIFICATE OF WORD COUNT
The text of PETITION FOR REHEARING BY RESPONDENT ORIGINAL SIXTEEN-TO-ONE MINE, INC., consists of 3,500 words, as counted by the Corel WordPerfect version 12 word-processing software I used to generate this Brief.
Dated: May 23, 2007.
______________________________
Klaus J. Kolb
Attorney for Respondent
ORIGINAL SIXTEEN-TO-ONE MINE, INC.One can go to state supreme
court. there can be a reversal
there. A very minute but very
crucial issue is up: Can a
deputy DA be duly sworn if
exact prodecure is NOT followed
Calapp3 said yes. Who are they
protecting? Take your best shot. Gray Davis and every
prosecutor in Calif. not pro-
perly sworn.Answer to Bluejay’s question below: Maybe me.
When I read the news, I just shook my head in dismay. It isn’t because we didn’t win (I think we did, regardless)…it is because all this stupid crap gets in the way.
(Everyone knows the CDAA’s prosecution of the mine and MMM was faulty…heck they know it, so do all the justices.)
What bugs me most is why all of a sudden the shift goes back to the money instead of the fight for our ability to mine gold without obstruction of justice. Yes, I know…always follow the money. But, “#%$^%&#!!” doesn’t the whole idea of what happened bug you?
I realize that mining gold means mining money…it’s the whole reason anyone goes into business. But when the concept of conducting an honorable business is assaulted (we are talking about the most volitile of all, to date, throughout history…gold), do we just cave when we’re being fleeced?
Never forget the scams and the competition by everyone trying to exploit and sell the latest snake oil, (or for that matter the latest gold discovery)….hello global warming caused by man….
Next thing we’ll hear is that fighting the CDAA was all a sham, and crap and crap.
Whatever happened to the honor of doing the right thing?
To the Board of Directors:
Now that your quest to sue the CDAA has failed, how much will that decision be costing the shareholders?
We received the Oral Argument in Miller et al v. Filter et al., Case # C051696 at the Court of Appeal Third Appellate District. If you would like to hear the session, contact us by e-mail, phone or letter. All the addresses or numbers are on this web site. There is no cost for this CD.
I just listened to the CD. If you know nothing about the facts of this suit, the concept of absolute immunity, the purpose of the anti-SLAPP legislation or the state of the judicial system in California or the United States, you may be bored, confused, angry, disappointed or reassured in your beliefs about the law and those we have officially allowed to practice it as “Officers of the Court”.
The normal time allowed for oral argument is fifteen minutes. Klaus asked the Court for an additional ten minutes, which was granted. He had a lot of information to provide the Court that had occurred after the written briefs were submitted. It is noteworthy that Klaus was interrupted at least 48 times by the panel of judges. It is even more noteworthy that the judges spoke for about fifteen minutes in presenting either their questions or expressing their opinions.
If you know much about the case as I do as do others, you will arrive at some conclusions about this panel of judges. It is noteworthy that the presiding justice, Arthur G. Scotland said, “we are governed by statute” (between 36:28 and 37:47). I look forward to the written decision.
Your comments are welcomed in the FORUM or sent to me.
Be mindful that the prosecutor
back east (Duke lacross) is
now “on the carpet” with his
state bar because of his conduct. 16-1 had a very fine
trial judge (Young) and will
get a fair shake at Calapp3.AN AMERICAN MYTH
At some point in our history the criminal prosecution industry convinced legislators that for prosecutors to perform their duty, they need a cover of protection. This cover of protection evolved into what is now called “absolute immunity”. The rational for this very unusual social protection is grounded in the theory that prosecutors must be completely shielded from accountability for their mistakes, illegal behavior and all other real or alleged behavior during the course of executing their job. All of this is necessary, as advocates proclaimed, in order to serve the public interest. The time has come, no the time is long overdue, to toss this fallacious and cavalier position that law breaking lawyers or even malicious lawyers are shielded from the abuses they cause their victims
Will the three-judge panel continue to perpetuate the myth or will they render a decision that truly is in the public’s best interest? Perhaps we will know soon. Not only will the judges abide illegal behavior with a verdict against Original Sixteen to One Mine, they will emasculate the decision from one of their fellow judges most familiar with the case in Sierra County. No other member of the California State Bar or former members in the courtroom (and there were five) judged the facts, the law or the evidence, as did Superior Court Judge Stanley Young. He made the right decision. He said that the defendants did not meet the threshold necessary to prevail in an anti-SLAPP motion. He denied the motion.
Sacramento: 2pm.
The State appellate Court is on the South side of a circle and west of the State capitol building. The courtroom has low light and plenty of well-preserved wood. It is a friendly courtroom, not the least bit intimidating. It also is somewhat circular. The judges are elevated and the advocates sit at a long table with a podium between them. The public has access to about thirty chairs that are also in a half moon shape. Metal detectors and armed patrolmen are at the entrance. Once court is called into session, an armed guard sits close to the panel. God bless America. What a judicial legacy we are leaving our children!As I looked around the room I counted twenty-five people: twenty came in support of the mine’s position, one was a newspaper journalist and the rest were participants in the next case or students watching the system at work. We were the first case scheduled, right about 2pm. Klaus Kolb represented Original Sixteen to One Mine and Tom Knox represented the appellant. Mr. Knox went first. After the session I learned that I was not the only one who could not hear or understand his statements. A shareholder sitting on the right front side said he could not hear him and there was a recording device with a volume monitor that barely moved. He offered nothing new beyond the words in his brief. The judges questioned him but most of us later could only comment on his body language not the content of his words.
When Klaus got up to speak, everyone in the room could hear him. That simple conduct helped us and honored our effort to make the trip to Sacramento. Everyone drove a long way to see the system at work. One thing stood out for everyone. Klaus lost a significant amount of his time by lengthy and somewhat unnecessary questions by the judges. Therefore, Klaus spent much of his time responding and was unable to present the new responses he prepared after Mr. Knox slammed the Court with a bunch of cases in his last brief. Few if any of the points of Knox’s last brief were on point with our case. I hope the judges have hired smart and energetic clerks to read the cases.
The people in the room were really interesting to me. I drove down with two directors and the owner/publisher of the Mountain Messenger. George Gilmour’s wife and George’s life long friend and confidant drove up from Richmond and Sonoma. Shareholders and other mine owners were sprinkled around the room. Our great advocate at the hearing in January 2003, Tom Crary drove down from Colfax (See web-site “NEWS” 04/02/2003). He may have been the most experienced lawyer in the courtroom, having been a deputy district attorney in San Francisco at one time in his career. After the session he offered some insight for the hoard of us milling around on the courthouse steps. When parties or interested supporters of a party leave a courtroom hearing, a couple of things take place almost every time. We all stand around and ask, “What happened in there? Who won?’’
Tom pointed out and we all agreed that Klaus was able to get in the record our unanimous position that the anti-SLAPP motion was an improper motion. No one felt completely comfortable in speculating how the decision would go. As a high-grade gold miner I suggested we would prevail because one judge said that the appellate court must follow the law. At least my raw optimism brought a laugh. It is an uncontested fact that there is no written appointment on record in Sierra County. It is required by the State legislature! Defendants were not appointed according the law. My optimism is probably in the minority. Others felt that the judges might opt to keep absolute immunity, unfettered by the individual facts of our case. (You know, for the public good.) Hog wash! Law breaking prosecutors do not serve the public, and if Californians choose to allow this to happen, politicians continue to control the judicial branch of our government. Anyway, and this must always stay at the front of the discussion, IMMUNITY IS NOT THE ISSUE. Mr. Knox is very clever to shift his defense to a broad absolute immunity approach, which is not the issue. My position is this: if Californians know the legal abuses (provable in our case,) that exist in our state in the twenty-first century, they will demand a change. I’m not willing to wager a bet on this decision but I will wager that change is in the wind.
I’ll be leaving Alleghany soon, destination Sacramento and the Court of Appeals. My truck will have a full load with fellow directors and a journalist. A dozen people have plans to attend the oral arguments. Even with nothing to do today, I still have those butterflies of apprehension.
Klaus called last night. He is ready but continues to spend time on the cases Tom Knox lists as evidence supporting his pleadings. Most are not on point. The defendants’ strategy from the beginning has been to bury us in paper. Klaus has the integrity, education and judicial righteousness to go far in his profession. Never have we discussed a tactic or strategy that is unlawful, immoral or beyond the behavior one would expect from officers of the Court.
I brought Klaus up to date on my recent activities. You may as well know too because all aspects of this case must become public for public outrage necessary to change illegal practices of certain lawyers. America has had enough! It costs the country a fortune in every segment of our economy.
The Amicus Brief filed by my Attorney General really irritated me. It supports law-breaking behavior. It defies common sense and is a major breach of legal ethics by our elected leader. Mr. Lockyer. Perhaps he was not aware of the actions by his subordinates. Someone associated with the defendants may have coerced actions. Nevertheless, the AG’s review of the facts was shoddy or at least superficial. Each and every person who signed off on this brief is responsible for its conclusion. With this in mind, I set forth a plan in November 2006 to have the Amicus Brief withdrawn. Jerry Brown would take office in January. He must become aware of this case. The responsibility is now his; however, if he does not know that the amicus brief was filed, his responsibility is diminished. I took steps to inform him and they were successful. I waited and waited to hear from the AG’ office. Nothing. I admire Jerry Brown. He went to Jesuit school with George. Politically, the Amicus Brief is on the wrong side and Jerry Brown knows politics. What’s next?
Monday I set out to contact the highest officials in the AG’s office. I started with Jerry Brown. I talked with his secretary in Oakland, laid out my position and detailed why the AG should get involved. She understood and would respond. During the process of finding the highest people, I talked with Manny Maderar’s secretary. After pouring out the reasons for the AG’s office to pull the Amicus Brief and potential consequences of the highest public officers of the Court sanctioning serious law breaking lawyers claiming its “in the public’s best interest”, I asked her to have Mr. Maderar phone me. Well. a short time later he did just that.
It was a great discussion. We actually discussed the brief and the case. He pulled up our web site and we discussed the language of the brief and other points. Mr Maderar is the State Solicitor General and one of his duties is to approve all Amicus Briefs. I told him that I was sad that my attorney general would side with these defendants. The situation in North Carolina was discussed. He didn’t know what he could do at this time. I said that he could pull the brief and that each and every top executive has the responsibility to take an action immediately upon learning that a prior decision was incorrect. He said, “Well. I guess I have some reading to do.” We will know later today his decision.
The Judges will not rule today. We can expect a decision in thirty days or so.
I guess I’m the initial, not by design, but because all of us are right now sorting things out in our heads. I’ll wait a while to pontificate, as it’s out of our hands now and into the honor of the courts to figure.
Klaus, you have stepped to the plate, along with truth and honor and intent of the law. Your (our) position never swayed from the intent of the Constitution. Passion is the ally of truth, and you stood up with truth behind you.
Right now, we’re all digesting the gravity of the setting. Heavy-duty. Many questions within the boundaries of intent and procedure. Klaus held to the principals of the case, my personal pride: in short, true Constitutional authority and the administration of true Constitutional authority.
Mostly, I was struck by the burden of proof today…it seemed to be placed upon Klaus, rather than the CDAA, the appellants.
Who was appealing today?
More than 20 yrs. ago I was a
public member in the State Bar
Court along with two attys. from Auburn. We had a case
brought by the State Bar against a rather well known
shyster lawyer from Grass Valley. After 4 days of hearings we found against the
lawyer on the 12 counts brought.We unaminously voted for disbarment.After at least 5
years of review and discipline
the illustrious officer of the
court DID get disbarred! What
a system!As Klaus once again presents the truth this coming Wednesday in the long-overdue exposure of the CDAA’s vigilante attempted lynching of law-abiding citizens and their attempt to derail a legitimate business for political advantage, an obvious OUTRAGEOUS fact remains staring us all in the face:
There is no question on either side that the CDAA cheated in court, in the Grand Jury, because their entire appeal is based not on pretending they didn’t cheat, but that they were ALLOWED to mislead the Grand Jury because they claim immunity from any resultant attempt to expose them.
WHAT? Let me try that again, paraphrasing as if I were a CDAA lawyer, presenting the ground for appeal:
“Okay, we left out exculpatory evidence in charging the mine and Mike Miller and Johnathon Farrell with manslaughter, and yeah, the case was tossed out as soon as they protested, and yeah, their reputations were tarnished, and okay, yeah, the mine lost millions of dollars while they exposed what we did, and okay, potential investors shied away while all this is sorted out…So what! We thought we could get away with it…didn’t, but that’s beside the point…and just try to hold us accountable. Here’s why…..”
The complete audacity is beyond comprehension. We’re currently living in a climate in this country where a mere allegation carries clout, not evidence, convicting innocence pre-tial with politics (aka Duke’s lacrosse team), and even when exposed these OUTRAGEOUS actions seem to be swept under the rug. Because they were immune?
There is no question that public, legally deputized and elected D.A.s should have the tools they need to prosecute alleged criminals, within the boundaries of law and Constitutional authority. How can criminal CDAA lawyers suggest that they can operate outside the bounds of law and Constitutional authority? Because they pretend to have immunity??? This should be a RED FLAG to all sitting D.A.s and A.G.s…the CDAA’s posture undermines this given authority, the very life-line of law enforcement.
Where is the OUTRAGE? I am a citizen and believe that the Original Sixteen to One Mine’s decision to expose this illegal vigilante action is not only an action to provide justice and retribution to the mine and Mike Miller, but represents my OUTRAGE AS A CITIZEN and should prevail in the US Court of Appeals.
I plan on being there.
Rick
Excellent input!
These power abusing scum bags need to be brought to justice.
I once heard from a former DA that the reason that some of the DA’s lie and deceive is to compete with the criminals who also lie and deceive. When the DA’s start acquiring criminal behavior and start applying it to non-criminals they become the criminals themselves and the circle is complete.
If I were in charge I would submit all DA’s to periodical psychological review to determine if they were still fit to serve the people.
I have personal experience with a current senior DA who likes to steal from a family trust. He is able to do this only because his 88 year old mother continues to have confidence in him and she is too old to understrand the facts.
Rick, these guys also do senior abuse.
The justice system is not meant to be a good old boy’s club for the select few who know how to break the law and get away with it the best.
With reference to the pending
case, all attys on the pro-
secution side including the
former DA, all CDAA’s, excepting the current Sierra Co. DA deserve some sort of punishment, and if they continue the same mode of
tactic in similar cases, they
deserve to suspension from
law practice.The average American rarely experiences the importance of the judicial process in a free society. I am an average American and am relying on the integrity of California’s second highest court in the upcoming appeal of the defendants in our lawsuit. Following will be entries in a new topic on a subject that began in November 2000. Your input is welcomed, or you can sit back and watch the process continue.
Lawyers believe they can use any tactic to benefit their client; however the legislature and the State Bar have placed restrictions on abusing or misleading the Court. What is not happening in America today is punishment for serious breaches in lawyers’ behavior towards the Court. Let’s hope the Appeal scheduled for April 18, 2007 at 2pm in Sacramento will fail as all other motions have failed that were brought before the Court by this unscrupulous group.
April 10, 2007
Dear Klaus,
Following are my comments on the five documents generated by the anti-SLAPP appeal. I read them in order, which is what you suggested. Some of my observations were covered in later filings. I look forward to April 18 as a response to a necessary but non-defendable action by Tom Knox on behalf of his clients. I encourage you to use a moment of your precious time before the Court to seek sanctions and damages for misusing the law. Otherwise, I have nothing new to suggest. My friends agree that this motion insults the integrity of the judicial system. It is seen as ruse to buy time and drive up expenses.
Best wishes, Mike1. The Introduction in appellants opening brief misstates the case in second paragraph; it describes “this case” as “prosecuting a criminal case openly and publicly”. Not so. Used the public shield of the Grand Jury.
2. Introduction says, “with the express authorization of the elected DA”. Is this an assertion of fact that should be judged in a trial? The only suggested authorization is in a letter by me to O’Sullivan, which I wrote before obtaining a copy of the CDAA contract. She wrote me back on July 18, saying “As you know I am not the prosecutor of record on this case and therefore, I will not be discussing this case with you.” On August 28, 2002 I wrote her after studying the contract. Michael Mason from DPR wrote O’Sullivan that CDAA would be presenting the case to her. Minor stuff but goes to the point that defense is misstating the facts in subtle ways to gain the privilege of immunity. There are no letters signed by DA authorizing the bad guys to prosecute in Sierra County.
Last paragraph on page 1 presents the appellant court with a representation that the “four natural Appellants were experienced prosecutors”. Not so with Denise, as Filter tells Sierra County Grand Jury that she is new and a rising star. She was a new member of the State Bar with no prosecution experience.
These may seem on their face trivial points. Not so because this properly identifies the approach the defense has taken from the very beginning of the case. These are purposeful examples of misleading the court. This is how they decided to defend the case.
Page 2 (1). O’Sullivan’s “acting in response to a report from Cal OSHA” is backwards from the language of contract between DPR and CDAA. She is supposed to ask for help. She never did.
(2). Larry Allen did not agree to dismiss the charges. Judge Young granted the motion to set aside the indictment. Allen decided not to refile. Subtle but important.
Page 3
1. Knox validated the motion before the appeals court saying it “arose out of protected constitutional activity.” Has he ever specifically identified which clause in our constitution? This is something you know better than I; however all readers of this case cannot understand how an anti-SLAPP motion applies. Also, you should ask for sanctions so we can recover the costs of this frivolous motion.Page 4. Knox relies on two points where Young was wrong: prosecution was illegal by law. Therefore, Knox must provide facts to support that CDAA was legal. I don’t know what they are. Second he must prove that CDAA is entitled to immunity and they established a likelihood of prevailing on their claims.
Page 4. Paragraph starting “Appellant’s”… what is the relevance that motion “was undertaken in furtherance of right of petition”?
Page 6 in Knox’s statement of facts, he says that DA may request assistance. No evidence that O’Sullivan requested help. The facts continue to page 9 where it is presented O’Sullivan appointed etc; however there is no record of an appointment. It’s his clients’ statement. It is odd that Knox supports his “evidence” by saying on Page 11 that O’Sullivan directed and authorized Ms Mejlszenkier. See her letter to me where she (O’Sullivan) said she had nothing to do with this case, corroborated by Don Russell statement.
Klaus, they are making up a defense and the judges need to know how Knox is proceeding with his defense. .
On page 2 of Young’s decision to toss the motion (line 11 to 14) defendants did not prove their first burden. Young further says that even if they passed first test, they failed second test.
Beginning on Page 13, Knox begins a line of attack that somehow Michael Miller by his letters has authorized the CDAA defendants to be DA’s. Ridiculous but an important note is that the July 9, 2002 letter and all correspondence up to August 28 was before I read the contract between CDAA and State of California. More importantly Michael Miller runs a mining company and is not a lawyer. He had no idea that the California legislature passed a set of requirements that private lawyers must perform to act as government prosecutors. Interestingly, CDAA presents itself as great teachers and aids to county district attorneys. They should have been aware of the law. There are no excuses for taking shortcuts on procedures of appointment. Interestingly, they did it the right way in Yolo County and other counties (certified proper appointments are part of the record). Perhaps procedures were not followed in Sierra County because the sitting DA did not appointment them and was never around. Whether it was her incompetence or some other reason, CDAA should have had the knowledge and experience to make sure it was done legally. Judge Young is clear in his December 1, 2005 ruling that: “defendants rely on their own declarations and their own admissions …. Page 3, L 26 on.
Again on Page 18 near top, Knox claims that On Feb 13, 2003 DA Allen agreed to dismiss. This is completely and unequivocally a lie. Allen made two newspaper quotes after that day. The first said he would review the case and Young’s decision. Don Russell talked with him after a number of people exploded. Days later he decided not to refile. Since Knox repeats this twice and it is provable false, it must be a big deal in his appeal.
Page 19. Probably not important to judges but Knox tries to validate Sierra County involvement by citing my claim to county for damages, saying it proves “implicit” position. No way, it was a strategy to keep option open for negotiations. Attorney/client privilege.
The rest of the opening brief is word-crap disguised in poor legal logic. I’m going to your reply now.
I still believe that the notion that an anti-SLAPP motion to dismiss is beyond the legislative intent on the law passed by the Assembly and Senate, and is, if not a central issue, an issue of abuse that these judges must consider.
Klaus, I read your reply and cannot find anything to bring up that we have not discussed.
Appellant’s Reply Brief
1. This is a criminal case under discussion, not an Administrative Procedures Act. Comparison fails. (page 14). Criminal cases have a higher standard than administrative law.
2. Page 2-bottom first paragraph. Knox tells court that our case is not grounded in CDAA’s prosecution. On page 24, thrust of claim is unlawful assumption of power. Knox cites your brief, page 35 and wrongly tells court that prosecution is not the issue. You write that they cloaked themselves …to bring unwarranted criminal charges ie. PROSECUTION!!! Just another example of Knox distorting what others say. Must we point these ongoing misstatements to the judges? My take on all this is that Knox probably with his clients input has seized a motion that does not apply with the facts of the case for an appeal. It is a last unethical gasp from a sinking group of lawyers who continue to take the law into their own hands for their own personal benefit. If I were a judge on this case, I would sanction their behavior in my courtroom.
3. Whoever wrote this either has a very poor grasp of the English language or is purposely writing to confuse the reader. Clarity is not present and it is difficult to offer comments. Page 2. When he challenges our position that the anti-SLAPP does not apply, what is he telling the judges with the following: Respondents assert that the anti-SLAPP statue does not apply because any conduct by Appellants otherwise falling within the ambit of the statute is merely incidental to the true basis for Respondents’ complaint. Ambit is a boundary or extent. So what is the relevance or purpose of the writer to tell the judges this opinion? If it has one or the other, maybe it needs to be addressed.
4. Klaus, You asked me to read in order the filings again. I want to puke. Who signed this brief, anyway? Oh, Tom Knox signed it. Page 2. “But Respondents ignore the policy undergirding the doctrine of prosecutorial immunity.” He refers the reader to page 30. par IV.A. He says our position “flies in the face of reason and offends common sense.” He says it is okay, to break the law in appointments and that the word employee means anyone an official wants to recognize. He must take points from a case he cites and massages it to fit his contrived theories. From his choice of words, I get the feeling that Knox is writing an English 1A paper instead of a serious argument to some very serious judges in a very serious case. Page 31 has caps and bold print: Prosecutorial Immunity Does Not Depend on Who Signs the Paycheck. The game of law is a game of words just as George would remind me. When words are meaningful, their meanings should not be challenged. “It depends on the definition of is”, comes to mind. Well-established definitions, such as those for “employee” do not need a bunch of court cases to define. I doubt that the Attorney General spent the time required to take any position in his Amicus Brief. His lack of attention is no excuse. He has taken the wrong side for what is best for the California public, which he is entrusted to protect. Knox opines that our case threatens the very basis of immunity. Bunk! He tells the judges that our case “would eviscerate the authority otherwise enjoyed by DA’s to appoint such deputies.” There is no evidence or do we offer a case for this to happen. No evisceration will take place here. Do the judges need to hear this from you?
He cited White v. Towers (1951). The Court said: “the doctrine of immunity is not for the benefit of the few who might otherwise be compelled to respond in damages. It is for the benefit of all to whom it applies, that they may be free to act in the exercise of honest judgment, uninfluenced by fear of consequences personal to themselves. This again is not for their personal advantage or benefit. It is only that they may be enabled to render a better public service.” Key words or meanings: honest judgment, not for personal advantage or benefit, render a better public service. Filter and his fellow carpetbaggers judgment is provably not honest. Reading the Grand Jury transcript is proof.
They needed cases to get more money for a contract extension and none of the defendants’ actions rendered public service to Sierra County residents or Californians.Fortunately, the Duke lacrosse prosecutor was exposed. Our case, however, is more serious. We are in the position to help the Court system to clean itself from dishonest players or those who break the law by telling lawyers there are consequences. I hope the Court will see that the White v. Towers case as defined by Knox does not apply to our situation. It is too broad an application, but what does a guy do when his hand is in the cookie jar and he has no defense.
Knox tells the judges that his clients met the threshold of “substantial compliance” with the oath and a public record was provided. The appointment is the key because the appointer must be an elected district attorney. This would be the only recourse the public has to terminate dishonest, illegal or harmful prosecutions. It is called the Recall. Public notice is one reason the legislature codified a procedure. Others are accountability and responsibility.
Knox raises the de facto excuse, saying on page 14 that appellants were at least de facto deputies. He lists five reasons why Flatley and Paul for Council do not apply. Number four is “exercising the function of that office lawfully. Well, none were lawfully appointed. Also and most importantly they were not “exercising their functions lawfully and with the acquiescence of the public”. (Page 16). Bunker Hill case. This is what the Supreme Court described as the application of the de facto doctrine. Well, Klaus, they were not functioning lawfully by withholding exculpatory evidence and the public did complain about their behavior. I was not the only one to complain. At bottom of page 16 Knox uses the words, “uncontradicted evidence”. How can the judges believe Knox as to his claim of meeting the requirement of exercising the function of the office? The Sierra County DA, the Sierra County Sheriff. The federal MSHA inspectors and the state CAL/OSHA inspectors functioned as investigators and prosecutors to determine that there were no criminal activities surrounding Mark Fussell’s tragic accident.
I think that somehow the Court should be informed about the purposeful misrepresentations this defense consistently uses. Maybe contemporary lawyers have accepted this behavior, but it certainly is frowned upon by the public and the Courts. If we show the judges how much and often this ploy is used, it may be of value. Let me know and we will set out to find more.
AMICUS BRIEF
In the statement of interest the AG defends this brief by a general suggestion that it is in the public interest. Everything about this brief is so general that I find it insults the office. If there ever was a time to a movement by prosecutors, it is now and with this case, not the anti-SLAPP motion. My biggest question is where does the AG believe that Judge Young went wrong with his decision? Judge Young heard the whole case and he is the one whose job it is to protect the public as well as individuals. He did. This brief mentions “neutrality”. The AG was not neutral. The defendants were not neutral when they lied to a grand jury and also broke the law. These guys were not “principled and fearless decision-makers as the AG cites in Imbler v. Pachtman. I could turn his case evidence to our side. Here is an example.
Page 4. Gregoire v. Biddle (1949). The California Supreme Court position that absolute immunity is absolute and is “grounded on principles of public policy”. The AG picks the following language to make his point. “It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and. If it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery.” Wow!!
Gayle Filter, according to an internal memo from co-defendant (Denise) knew that his case had no probable cause. We also know that Filter was lobbying for more money from CDAA papers and needing to prove the value of getting taxpayer money for his personal use. Where is the public benefit from putting a hundred year old company out of business and putting its management in prison?
This gang was not public employees or public servants as the AG states are the reasons for taking their side. When the AG yaps about the general claims of immunity that are applicable, he never says the individuals who break the law are immune. He completely shows his ignorance of the facts of the grand jury proceedings. He says that Judge Young “ignored the core of immunity analysis.” Judge Young dealt with an anti-SLAPP motion and his decision is clear as to why he denied the motion. He makes no stab to enlighten the Court about particular misdeeds by Judge Young. As an aside, I have had occasions to interview many people connected with State government about the work CDAA has offered them. Some and I am sure not all CDAA employees use flattery, their expense account or intimidation at times to get their way. In the AG’s conclusion he writes, “a technicality must yield to the robust public policy favoring prosecutorial immunity. Prosecutors must be free to fearlessly enforce the law on the public’s behalf.”
You have my correspondences about the Mr. Lockyer’s office, so nothing more to add.
Last paper to read is your answer to Amicus Brief. Well done. I wish I could add something. We already discussed the input from a former director. Phew! I’m done.
Michael M. Miller should be re-
cognized as not only a top notch mine CEO but also as a
top notch entrepenuer. That’s
just what it takes to keep a bit of history going and viable. Cheers!!Rick and Bluejay, thanks for your views. My turn now.
I also am in the business world, dealing with a cornucopia of issues and events in the fields of gold production, environment, public-reporting companies in an American market and global economic powers. I possess no illusions about how insignificant the gold mines of Original Sixteen to One Mine are perceived. But, are they? My goals are very simple: find and sell gold in order to issue an in-kind gold dividend or distribute profits in dollars. I want physical gold in my possession and believe a profitable Sixteen to One is the way to go. Along this path, a competing goal may prove to be a better idea: build assets, increase value and support long term capital appreciation.
I won my first lawsuit in my first six months of business (1965). My partner and I were defendants. I won my second lawsuit in 1973. I was a plaintiff suing a stockbroker, who wrote my sell order as a buy ticket for Polaroid options. I only won a little money because the judge ruled that I did not “mitigate” my losses by immediately selling the options. I didn’t know about mitigating and believed I never owned the extra options because of his mistake. I learned an important legal lesson, one that I have incorporated into my practice and certainly documented in the CDAA prosecution.The Barrick/ Blanchard deal is puzzling. There is more to this settlement than has been released. Barrick’s lawyers may have been more skillful, smarter or unethical. Blanchard may have been foolish to trust its lawyers or ill advised. The point is that none of this collapsed Barrick’s, appeal in the marketplace. If one were to read the 10-Q or 10-K of many reporting companies, he would find under the heading “legal”, many lawsuits. A serious analysis of those in which the companies are defendants is appropriate. The outcome could be negative. When a company is a “plaintiff” a lawsuit could be either modesty relevant or significantly important. If the case has a chance of succeeding and scoring some bucks, it is a positive disclosure. Lloyds of London is the insurer for defendants. We are “plaintiffs”. It is positive.
Is CDAA a powerful association of lawyers? I hope so. The more powerful the more likely its strongest members (elected district attorneys of California’s 58 counties and their deputies) will realize how damaging the performances of Filter, Hedum, Denise, and Patchett were to the lawful practice of law. A greater number of lawyers than what we would like to believe have questionable ethics, little integrity, a lot of arrogance and litle respect for their profession. Americans and and others are really tired of their bull. I know some really good people who are lawyers. As I have written before, four of my personal lawyers went on to become judges. They are not corrupt nor do they break the law. I cannot say the same for the defendants in our case.
When the facts and evidence become fully known, most of the CDAA and the California State Bar (perhaps, jury still out on this one) and the California Attorney General will likely ride the bad guys out of the state. If they do not, Californians will have before them a succinct example of how far the system has decayed.
Now as for the money or business perspective: Our suit is not consuming corporate money or time. When we were defending ourselves as accused criminals, it did. There was no choice. Shareholders and the general public are blessed and fortunate that our front men, George Gilmore and Klaus Kolb, are lawyers of the highest caliber. They are not taking this for strictly money reasons. They love the law and hate injustice. We are also fortunate that a number of lawyers, great men and women, also support this case and help us achieve victory.
There are a lot of points, issues, facts, laws, and strategies that I cannot publicly discuss with you. I wish I could and will think about this possibility for a while. You would crack up at how well we have orchestrated this suit. I’m sure the bad guys think they are really something for stalling the case with the volumes of their legal “gobbeligook”. They are arrogant and full of themselves. We are smarter, more dedicated and have, as Rick would say, “the truth” going for us.
Our plaintiff’s lawsuit is not stopping any serious investor, be it the $100 or $3 million person. I know this to be true.
If I am wrong, I know how to fix the problem.There is no better deal in gold investments than becoming associated with our company. All we need is exposure to prove it.
Hi Rick
You are a true loyalist to the mine and one that deserves respect with your passion to defend her.
I come out of the business world. I am interested in profits. In investing I make my mistakes, I learn from them, I adjust and I go on.
I have spent thousands of dollars dealing with attorneys usually with dismal results.
When you are attacked by attorneys for whatever reason it is just bad luck. It affects your health and it reduces your wealth.
My wife was a juror on a trial that saw a group of local apple farmers from Sebastopol sue the Bank of America for breach of contract in Santa Rosa, California in 1985.
The trial took months and was quite a strain on our family and the farmer’s families. In the end the jury awarded the farmers millions of dollars and up to that time it was the largest jury award against a U.S. corporation. Months later a special group of appellate judges reversed the jury’s decision and the jury’s awards. The sad fact is that the jury only followed the judge’s instructions. What else were they suppose to do?
What I’m expounding is that when you are dealing with a powerful company or group of lawyers it’s never over until they say it is. Not something our forefathers had in mind for us.
In the past pages on the Forum I have pointed out what happened in a New Orleans court between Blanchard and Company and Barrick Gold some years back. Blanchard actually proved their case against Barrick but a loophole let them off the hook. Barrick said that they were an agent of the central banks and were immune from prosecution.
Blanchard was fighting for holders of gold and the gold mining companies who had suffered from Barrick’s suppression of gold’s price for years with the sale of borrowed gold.
Yes, the Sixteen to One was damaged by the CDAA.
It is my contention that waging war against powerful people, although totally justified, will prove to be futile while it drains our resources.
Living in the world today is far more complex than it was years ago and so is the legal system.
Unless you have a battery of lawyers and a pocket full of money, it is far better to lose a battle as opposed to engaging a battalion of attorneys along with the possibility of legal uncertainties.
The Board has elected to pursue the CDAA. I respect them for their passion, along with Mike’s relentlessness and personal expense, but my life experiences indicate that the percentages are not on their side. As a shareholder, I hope I am wrong and wish them well.
In the meantime, potential investors will keep their distance as litigation continues.
Bluejay, that’s a tough one to contain, hoping to keep the passion inside the bottle. As far as I can figure, passion has gone to the line to see justice and posture.
Usually I’m tagged with writing from an ideal philosophy without regard to reality, but I’m also a pragmatist. If the hooligans run the machine, it should stop…and if they’re trying to run the machine, they should be stopped along the way of their attempt.
My gut tells me that the true investor out there, those who need to be involved in the next chapter in Alleghany mining potential, will inevitably be confronted by the de-railers…a.k.a. this time around the CDAA…and need to stand against it with maximum fortitude, and describe its territory and potential realistically (not diluted by crap litigants), even if the current climate suggests that it’s a deterent to investment.
I say, those sitting by and watching aren’t strong enough. Those potential investors who have the stones to ignor the litigation, (let’s not forget it’s pro-active) have a true window.
Bluejay, I believe I understand who you speak of, and believe not a stranger to the mine. I speak of those who are yet to be part of this; personally, and we may disagree, but I believe it an asset, showing the fortitute to defend the existing potential; and don’t think that attempting to de-rail those who try to de-rail the mine is ill conceived.
In other words, either we bow down or go bold.
Empirical evidence suggests that as long as we are involved in litigation our company will continue to be viewed with indifference by prospective investors.
The CDAA is a pack of rattlesnakes. This venomous organization has allowed some of their cohorts to degrade the savings of people who elected to invest in the Company in good faith.
The legal system in this country is basically fixed. To a significant degree, even the short and intermediate term markets are as well.
The trick is knowing this and acting accordingly. We are in a land of declining rights and increasing injustices. Not something our forefathers had in mind for us.
Dear Friends
I have not opened this forum topic to update its order until now. “Nowhere to Start” was while ago but remains an ever moving thread. The following begins the process of finding criminal behavior.My case and the Company case is a prosecution driven case whereby massive deception, purposely deceiving a Sierra County Grand Jury to indict. Those who created and drove this Grand Jury presentation are asked to explain. Start with paragraph 939.6 RECEPTION OF EVIDENCE, CA Penal Code. It says, “the grand jury shall not receive any evidence except that which would be admissible over objection at the trial of a criminal action, but the fact that evidence that would have been excluded at trial was received by the grand jury does not render the indictment void where sufficient competent evidence to support the indictment was received by the grand jury”.
All of the “evidence” presented by the five defendants was not even available as evidence. The “evidence” disappeared both federally and California: MSHA and CAL-OSHA citations were dismissed by the agency issuing the citation or the US Court of Appeals. No evidence was presented to the local citizen jurors. I feel refrained from returning to the thoughts three years ago that I had while mounting a case to defend and attack. It succeeded: let’s have a trial in a courtroom deserving respect to battle truth against opinion.
Dear Friends,
As a friend wrote last week, “Nowhere to start.” Well, when someone goes beyond the horizon, those left behind tend to tell their stories. Following is the first letter I received after George’s accident.“Nowhere to start.
So I will. First, how fortunate I was to have met him; there were a few silent times standing around in the corp office, but the biggie was only one real time, the dinner at your house, but I believe George and I really met that night. We connected because we think alike. That night, despite the 50th bottle of wine, he told me that we should talk, that we both stood for the same ideals, that I could write and he and I shook hands.
We were shaking hands with each other. Mirror. (Although I have never been arrested for helping people.)
There is so much on the table, and it is split between life and legal crap. Well, we know priority. After all, this is why George got involved, eh? And why we fight.
I’m not sure in what capacity I can help, with so many prerogatives and necessities. Since I’m not needed in the family arrangement (yet I would be honored if perhaps George’s wife knew these words), I want/need to help carry the torch.”
Last Saturday Betsey (George’s wife) invited friends into their home in Richmond for a gathering. Mid afternoon everyone assembled in the living room , where an eccletic minister spoke and invited us to speak. There were old friends from pre college days, college friends, his first wife (a young folk singer in the 60’s), his daughter, and grieving others. Just like the writer of the above letter, the binding for all of us was the recognition that George had a manner that reached into our souls. Our reasons may differ but the affection shared in the room encompassed all.
I dreaded putting into words my loss and love, but it was not about me. It’s all about George. My time came towards the end. My desire was to be quick for there is great difficulty in relating what we were doing let alone all the whys and how we were doing what we were doing. The room got warmer and warmer as I stood and spoke. I knew it was not the room but my head, as I began relating the experiences for George and me in this friendly and loving setting. Allow me to pause and give you the second letter I read after George’s accident, written a few hours after Scoop posted the sad news.
“Dear Mike,
I want you to know that I am SO very proud of you. I can’t even imagine the pain of the loss you have just suffered. The history you share with George. The power of that history. The power of the convictions you shared with George about right and wrong. I totally hold you in the highest esteem for your “fight”. I pray that George will lend you the strength to continue and win. Other than the loss of a child I can’t imagine anything more crushing than the loss you have suffered. I think I can relate just a little.
I didn’t know George that long, however the time I have known him I have really enjoyed. Thank you for giving me some history about him on the website. I want to tell you that George and I had a joke about MONDAYS. He would call and ask how I could be so “chipper” on a MONDAY! I teased him that FRIDAY must be his day. I explained that Monday lets me know I am still “here” and I still have a job. What more perfect life is there?
I will miss him, as we all will. I just want to tell you that you will still do it. George was under your wings and a very big part of your life and always will be there still, but he knows this is something you can finish alone. I’m still in your corner!”
So, all of this is fresh in my broken mind as I look into the eyes of his wife, his daughter (whom I had yet to meet) and the others as I begin to speak.. …..
“George and I are partners in something beyond what I will be able to convey fully but will try anyway. It has to do with more than any single point: the law, justice, compensation, and social good or even social responsibility. We spent hours in the truck driving somewhere and more hours at the dinner table. The topics were many. George spent hours at his desk downstairs. We knew what we were doing and we loved it! Also we are very good at what we are doing and George, finally and fully admitted it during our last meeting just before his accident. It is important for you to know his activities now because George had turned a corner in his personal healing process in life and business. This is a part of my overwhelming sadness. It has nothing to do with the outcome of our fight. We know the outcome. He does the law and I do the evidence. He taught me how to argue and welcomed it. He knows that the theater housing our play is the courtroom. He knows the game is a game of words and he knows the words better than the other side; but George won’t be on the stage or watching the performance. I am sad because he labored and obsessed over the language of his beloved profession and won’t see the final act.”
I just wanted to crawl away quickly and mourn within myself, but that was not to be. Whatever they knew or felt about George was not the same as the George who died that Monday. It was for Betsey, who saw this composure that morning, his daughter, who had not seen him for several years, his first wife, and the others who knew him before and after his mental collapse or just after. Few probably knew him in the sphere of his passion, the law. My George was more than anyone could know because that was the nature of the pragmatic and ethereal, dynamic and currently active relationship we practiced and enjoyed.
I spoke a long time because there were questions and a sincere desire in the room to hear our story. Later a dozen people told me how much the information helped them understand George, even his mother-in-law told me that she , for the first time, understood his behavior. At one point I asked a woman standing next to a table with the Downieville Mountain Messenger newspaper on it to read the caption under Sourdough Jack Sez… “Ol George’ll be a pretty hard ack to foller. Rural America will probably never learn how much it owes that city boy.”
The night before I had broken into tears when I read what Don Russell, owner, publisher and editor of the paper put on his front page. It dawned on me as I talked Saturday afternoon to a gathering of people who loved George as I loved George that here is something that everyone in the room can do to relieve their grief: remove the words “probably never” so George will be remembered and recognized for the judicial scholar and sensitive soul we knew. “Ol George’ll be a pretty hard ack to foller. Rural America will learn how much it owes that city boy.”
So, will you do the same for George and for our country? Even if you never met George, familiarize yourself with the social issues of the dream we share. It can be your dream as well. For those of you who have written about the substance of our legal history, maybe you can more clearly express the issues and help ignite our country into action. George and I know what to do. So do others. America will learn how much it owes George.
September 19, 2005
To All Who Loved Him,
Thank you all for the love, support, and friendship you’ve given my father(George) in the past few years. I have only spoken to him on the phone in the past couple of years, due to living so far apart, but I loved him sooo… much and, as all of you, will miss him teribly also.
So Thank you all for loving him and giving him the pride and joy that made him so happy in his work.God Bless You All,
Katie
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