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- in reply to: CDAA Conduct #2931
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.
_______________________________________
in reply to: Gold Enters Major Bull Market #2930Gold $663.10
Silver $12.88
Gold/Silver Ratio 51.48
Gold/XAU Ratio 4.54The declining Gold/XAU Ratio from 4.66 on 7-05-07 to today’s last of 4.54 is saying that gold stocks are stronger than gold. In the past this type of market action has been the harbinger event of higher gold prices.
There is an excellent short essay written Mr. Jim Sinclair that was just added to the jsmineset.com website entitled “Proof The Shorts Are Frantic To Cover Gold Shares” that should be read by all.
The current illegal shorting of gold shares and all the dirty tricks used for this current manipulation are really no different than what Jim Fisk and Jay Gould and their buddies did to the gold market in 1869 that brought upon Black Friday. In this case they were bulling the market higher.
If the 150 level on the Pliladelphia Gold & Silver Index(XAU) gives way to buyers there could follow an advance than will explode in the faces of the shorts like a burning wildfire and incinerate them in a spectacular short term rally.
“Gold will have its revenge” – Ferdinand Lips
in reply to: Clips from Alleghany #2929No action on the 1000 level. This area gave way to the headings off the 800 level because short term prospects for gold seem better. The level will be in the same condition when the miners are allowed to continue with clearing the remaining 100 plus feet to the 1064 winze.
in reply to: Clips from Alleghany #2928Anything going on down in the 1000 level?
in reply to: Clips from Alleghany #2927Glad you asked about breaking rock. The mid week holiday took a toll on production: one miner planned for a long weekend but three just disappeared. HOWEVER, the rock was flying. A new raise started up-dip about thirty feet from the face on the 800-foot level. (For those who went underground at the shareholder meeting on June 23, it was where the long tom was sitting on the tracks.) One lead miner made about sixteen feet not including widening the hanging wall and down-dip side of the level in order to install an ore chute and slusher. The plan is to drill and blast the barren quartz lens as work advances. Then shoot the gold bearing lens separately. Today he got a round up the raise and before quitting time shot out about three feet of the floor of the raise (the gold bearing lens). Happily, the quartz is carrying little pieces of gold, which is what Ian and Mike expected to see. Of greater significance is the evidence that the gold carrying lens is getting wider as work continues up the raise.
This is reminiscent of a pack of hound dogs circling about the forest in order to tree and find a fox. This pack of alpha dogs has been sniffing out the small pieces of gold for a long time. They’re not about to leave this forest of quartz because the scent of gold is strong. Time will tell whether this fox is found up a tree.
The 800-level heading also advanced another twelve feet in the quartz. Ian says if these headings flop, he should get a new profession!
in reply to: Clips from Alleghany #2926Any rock breaking going on this week?
in reply to: Gold Enters Major Bull Market #2925Gold $647.00
Silver $12.41
Gold Silver/Ratio 52.14
Gold/XAU Ratio 4.66Today the anti-gold establishment is attempting to melt down gold’s price. From a high of 657.50 earlier, they have swan dived it to the 645.30 level. This is an old story: When the banking system is threatened they throw mud all over the alternate choice of safety by selling gold.
The weakness on the COMEX paper market for gold is a knee jerk reaction to the deepening and continuing OTC drivatives blow-up at a Milan bank reported July 4, 2007.
These people are like children that go on a rampage in a Toys R Us store each time they don’t get their way. Instead of crying and stomping their feet they just invent all types of ways to defecate on the gold price.
This is all what the new authoritarian free enterprise system is all about: There will be no way out for the common man to protect himself against the wrath of these people. The rich corporations along with their government buddies want it all. One only has to follow the employment movement of government authoritarians to big business and from big business to government authoritarians to understand this marriage.
They have already compromised the constitution and probably the judiciary system too, they have already stolen our pension fund benefits and they continue to steal from us by reducing our purchasing power through monetary expansion.
Ferdinand Lips has stated that gold will have its revenge.
It is apparent that smart money is now moving into the gold stock sector. The Gold/XAU Ratio this morning is 4.66, Friday it was 4.71. The lower it goes the stronger the gold stocks are becomming against the metal.
A lessening in price of the ratio is indicating a strong and growing presence of buyers who are expecting higher gold prices to be just around the corner.
The bull trap for gold that was set at the Barrick Gold’s annual meeting has run its course. Gold is very cheap at these levels and even cheaper when compared to where it should be as a result of the continuing damage being done to it by the Fed.
in reply to: Gold Enters Major Bull Market #2924Gold $653.70
Silver $12.60
Gold/Silver Ratio 51.88
Gold/XAU Ratio 4.71Last Updated: 10:18AM BST 7/4/2007
Blow-up costs Milan bank 419 million Pounds
Clients losses at the Italian bank Italease mushroomed out of control following rate rises, reports Ambrose Evans-Pritchard.
A derivative blow-up at the Italian bank Italease has sent tremors through Milan’s banking fraternity and exposed the hidden dangers of exotic credit instruments.
The bank has paid off 419 million Pounds in recent days to counter-parties in what amounts to a massive margin call after interest rate rises in Europe caused hedging and derivative losses by clients to mushroom out of control.
“These derivatives were very complex and suddenly turned against us,” said Pierantonia Arrighi, the banks’s spokesman.
“They started moving in a non-linear way, so the losses were rising exponentially. We were afraid that in the worst case some of our clients would not be able to pay the contracts, so we stepped in to protect them, which means we took over the risk.” he said.
Jim Sinclair comment: One at a time the world’s central banks might be able to hide the growing financial disaster child of OTC derivatives.
However, this is number three in three weeks. That really bad day we have spoken about about could be any day now.
end..It appears that a financial systemic meltdown is in progress. Unless the central banks can harness this growing albatross of pending financial doom, gold will go bananas to the upside as people migrate toward safety just out of fear.
in reply to: Gold Enters Major Bull Market #2923Gold $657.00
Silver $12.59
Gold/Silver Ratio 52.18
Gold/XAU Ratio 4.72MarketWatch from Dow Jones reports the following excerpts by Myra P. Saefong and Polya Lesova under the story title, “Gold up over $8 on save-haven buying, dollar drop” 4:33 PM ET July 2, 2007.
The followingn quote is from Mark O’Byme, director of Gold and Silver Investments Ltd:
” However, of more importance is the Bear Stearns shambles and the increasing possibility of forced liquidation of more than $1 trillion of collaterized debt obligations which may lead to huge losses in large banks, insurance companies, and pension managers and systemic issues.”
Bear Stearns(BSC-NYSE) is having difficulty calculating the exact amount of losses at two hedge funds it runs, and investors will have to wait as long as two weeks for a current accounting of their value, according to a report in the Wall Street Journal Monday.
The illiquid nature of many of the exotic mortgage-backed securities the funds held is making it difficult to value the holdings, the Journal said.
It looks like the OTC derivatives market will be living up to its advanced billing by Warren Buffett when he said, they are weapons of mass destruction.
in reply to: Gold Enters Major Bull Market #2922Gold $656.60
Silver $12.59
Gold/Silver Ratio 52.15
Gold/XAU Ratio 4.76Good news out of Norway this morning concerning gold.
Lars Lindgren has predicted the US dollar will drop by over 10% this year to the .70 to .71 area. The last price on the US dollar Index is .8115
Lars on May 13th of this year predicted an oil price rise to 70 for this July when at the time it was 62.37. Crude oil today is 70.44.
Gold will advance with a declining dollar.
in reply to: Gold Enters Major Bull Market #2921Gold $647.50
Silver $12.30
Gold/Silver Ratio 52.64
Gold/XAU Ratio 4.76Posted On: Friday, June 29, 2007, 5:30:00 PM EST by Mr. Jim Sinclair at http://www.jsmineset.com
US Dollar Weakness Trumps Market Manipulation
They can manipulate as much as they want but it is all in the US dollar.
It is my opinion that those powerful short interests -both legal and illegal- are frantic to cover and are therefore pulling out all the stops.
Dirty tricks, use of media pals and all the underhanded methods seem to populate everything these days from gold to gold shares of good value.
Using the baseball analogy, Three strikes and you’re out,” I rate today as strike two at the .8050 to .8150 range on the USDX(U.S. Dollar Index). The interesting part of this is that commentators are looking at the differential rate between the US Fed and other Central Banks. My comment is, “Like hell that is the reason.”
The real reason is a meltdown of sub prime mortgages that appears to have caused Bear Stearns more of a problem than was first thought. When you see a new man come on board at Bear Stearns who specialized in asset maximization you know the horse dung has hit the proverbial fan.
I believe that Over the Counter Derivatives are now melting down, threatening many other well known international investment firms. And that is why the dollar looks like death warmed over. In addition, that is why the price of gold is under the great power of manipulation to hold it down so as not to reveal the degree of the problem.
Remember this about Over the Counter Derivatives:
1. They have no regulation.
2. They have no standards.
3. Without standards there can be no viable market.
4. They are unlisted.
5. They are traded by private treaty negotiation.
6. They are valued by “Mark to Model” which is a total cartoon.
7. They have no financial guarantee such as a clearing house.
8. They are unfunded special performance contracts floating in cyberspace. All funds in the OTC Derivatives are taken out as spreads and commissions.
9. More than 50% of the earnings of major international investment banks come from granting in private negotiations these instruments of mass financial destruction.
10. The financial performance of the specific performance contract called OTC Derivatives depends on the financial capacity of the loser in the transaction.
11. Control has been loose in the interest sensitive OTC Derivatives because of multiple dealings outside of the initiating two until no one knows who has what.
12. The replacement value of these instruments is in the multi trillions of dollars.
Interest rate differential would not hammer the dollar as we are seeing today. Remember that three strikes and the US dollar is out. Expect every dirty trick and media negativity towards everything gold as quiet but frantic insiders attempt to offset a panic by subverting early warning systems.
Those in the know are frantic to cover their short positions which can only be accomplished if they stampede you by every means possible. They are going to fail. You are not. If you wish to screw the shorts royally – simply do nothing. They can make price but they cannot make cover as long as you are not spooked into selling everything gold. The gloves are off and the major battle between longs and shorts in gold is here.
Gold is going to $682-$761 and then to $887.50-$1000 plus.
The bear market in gold shares is a total construction of bear raiding hedge funds that is doomed to failure.
Their really bad day is close at hand!
end..The miscreants have been doing a real hatchet job on gold and the gold shares in past months. It is best to keep in mind, concerning their ultimate ability to suppress prices, that there is only approximately 44,000 tons of gold yet to be mined in the world today and that the annual deficit of 1,500 tons of mine supply versus demand are not going away.
in reply to: Clips from Alleghany #2920My “friendly” dentist just
filled a tooth of mine with
some kind of silver amalgam,
so I have some silver too, ha,ha.in reply to: Clips from Alleghany #2919Congrats to the “Pres” he’s
still a young’un at 65. My mom
Dorothy Armstrong was was born
not too far from the Mine ofc
between the “strong box” and
the Redstar Cafe in Jan. 1906.
If she still live she would be
approx. 100-1/2 yrs. old.in reply to: Clips from Alleghany #2916The saga of the brownies.
Three years ago I made a deal with Caree at Casey’s Place to have her bake the brownies for the annual shareholder’s meeting lunch. The first year one of the miners Faris Dolgoff happened to pick up the phone when Caree called to say they were ready. He hopped on his motorcycle and went to get them. On the way back to the meeting site he crashed!!! A portion of the brownies survived the crash but most had to be thrown out. Last year once again Caree was going to bake the brownies. Her oven kept going out and they didn’t bake as perfectly as she would have liked. When Reid came to pick them up she said “Give them to the miners don’t take them to the meeting” So Reid took them down to the portal instead of to the meeting site. It didn’t take long for word to get to the meeting site that the brownies were at the portal. Somebody was sent to get them and they tasted fine even if they were soft in the middle. MOST of the shareholders got brownies last year. This year Caree decided to bake them in advance. It was hot Friday so she waited until evening to turn on the ovens. She was up until 10 pm baking 200 brownies. They turned out perfect. She put them at the Red Star Cafe for us as instructed.
Now it just so happens that the Fire Dept. does a bake sale on the annual meeting date and they were having one Saturday. The woman who came to the Red Star to bake the pasties saw the brownies and for some reason she assumed they were for the bake sale! You guessed it. This year the brownies got donated to the fire dept. bake sale. By the time we figured out what had happened there were about 50 brownies left. So SOME of the shareholders got brownies with thier lunch.in reply to: Clips from Alleghany #2918Rae – your Brownie story is one of the neatest that I have ever read. Keep up the good work and thank all of you for the great meeting.
Congratulations Mike – reaching 65 is a good start in life – the best is yet to come!
Don Jones
P.S. Dorothy and I thought the brownie was delicious!in reply to: Clips from Alleghany #2917Such “hidden” talent, both in
displaying the Mine and its gold as well as baking and
distributing brownies at
Annual Meeting Day, Ha,Ha.in reply to: Clips from Alleghany #2915Watched the Gold Fever show that they filmed there at the mine turned out pretty good.
Rae,Ian,& mike all better watch out Hollywood might be calling.
All in all one of the better Gold Fever shows thats been done.
Hats off to all the Sixteen to One family.Jeff
in reply to: Clips from Alleghany #2914That gust of wind meant somthingss good going to happen undreground, what we already know, now and how evryone up on top already beleves its good
in reply to: Clips from Alleghany #2913Over 150 shareholders and guests attended the annual meeting yesterday. All is well in Alleghany. The only moment of concern was when a monster gust of wind knocked one of the poles down that held the shade netting, Confusion but no injuries.
in reply to: CDAA Conduct #2912On 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.
in reply to: CDAA Conduct #2911THE TWO BRIEFS DESCRIBED BELOW CAN BE FOUND UNDER THE ‘NEWS’ HEADING.
in reply to: Clips from Alleghany #2909The busiest week of the year is here! The week before our annual shareholder’s meeting is always a busy one. You know how at home clean flat surfaces accumulate stuff? Well the site where we have the annual meeting is one of the few flat surfaces on the mine property. Every year we clean it up for the shareholders meeting. By the time the next year rolls around guess what? It is full of junk again!!! I mean valuable things of course. Big and heavy valuable things that take a tractor to move.
The mine has been in more of a “famine” than “feast” period for too long. The office staff is back to juggling bills and “putting out the closest fire first”. Friday brought a nice end to the week as the men brought up a good size bag of cut rock. The saws are going which is always a reassuring sound.
Currently we have three active headings all in the area North of the Tightner Shaft.
Mike Miller was at Klaus Kolb’s Office in Sacramento yesterday working on a filing for the Supreme Court. More on that in another topic soon.
The clampers were in Alleghany last weekend. Michael Miller gave a tour to members of the local Mining Council on Saturday. There were 25 participants. All had a great time and they even got to see a little gold in the face.
in reply to: CDAA Conduct #2910On 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.in reply to: Gold Enters Major Bull Market #2907Gold $651.60
Silver $$13.10
Gold/Silver ratio 49.74
Gold/XAU Ratio 4.70(In the past few weeks the gold stocks have been stronger than gold.)The following excerpts are from an article published by Joe Kay at http://www.wsws.org on June 11, 2007 entitled, “US: CEO pay climbs to “Stratospheric Heights.”
“CEO pay(up 38% in 2006 compared to 2005), high as it is, is nevertheless dwarfed by the compensation for managers at the top hedge funds, which coordinate investments for the extremely wealthy. The 25 highest-paid hedge fund managers in the US had an average income of $540 million in 2006, according to a report in Alpha magazine in April.”
According to the amount of inflicted damage by suspected hedge funds on gold related stocks recently, the average incomes of the top 25 hedge fund managers may exceed their 2006 totals.
“The beneficiaries of the continued rise in the stock market are increasingly a tiny layer of the population. In 2004, nearly 60 percent of all capital income(income from interests, dividends, rents and capital gains) went to the top 1 percent. This share was the largest since these figures were first recorded in 1979.”
“It has been steadily rising over the past decade, and no doubt over 60 percent in 2006. At the same time, corporate profits relative to employee compensation and the national income are also at a record highs and rising.”
“This means that there has been a steady redistribution of wealth over the past quarter century, and in particular over the past several years. Real wages have stagnated or declined, while the earnings of top executives and investors have skyrocketed.”
“An AP article notes, citing a study by the Institute for Policy Studies, that if the federal minimum wage had increased at the same rate as CEO pay, it would now stand at $22.61. Instead, it will increase to a meager $5.85 in July. The real minimum wage has actually fallen substantially over the past three decades.” The “real minimum wage” is the inflation adjusted wage.
At jsminest.com last night Dan Norcini displayed two charts: One showing a recent break out to the upside for the price of wheat and the other showing a runaway advance relating to the price of milk. These increases will be showing up fast enough in your supermarkets.
in reply to: Gold Enters Major Bull Market #2908Gold $651.00
Silver $13.08
Gold/Silver Ratio 49.77
Gold/XAU Ratio 4.70In a surprise move GATA(Gold Anti-Trust Action Committee) retained lawyer Edwin Vieira of Washington D.C. to pursue the truth about what has happened to the U.S. gold reserves using the Freedom of Information Act.
In GATA’s press release of June 14, 2007 its Chairman William J. Murphy said, “As the nominal holder of the largest official gold reserves in the world and the issuer of the primary world reserve currency, the U.S. government has much to answer for here.
No one is more expert in these issues than Ed Vieira, and all GATA wants is the truth. In a democracy that should not be too much to ask.”
in reply to: Gold Enters Major Bull Market #2906Gold $650.70
Silver $13.09
Gold/Silver Ratio 49.71
Gold/XAU Ratio 4.76Part 2
Message from Ferdinand Lips that was delivered in Dawson City, August 8, 2005 to the “Gold Rush 21” Convention.
Returning to a gold based monetary system and how it can be achieved:
1) GATA
2) Knowledge
3) Mining
GATA
-Gold Anti Trust Action Committee-GATA for seven years under the leadership of Bill Murphy and Chris Powell have been fighting for free markets, for a free gold market. Bill’s courage is without example. It is a fight of David against Goliath. Day after day he is hammering out his message for transparency through honesty.
Day after day he informs us how honest people are robbed by arrogant governments, bureaucrats, useless central banks and an all mighty banking system. It is a total crime. If you manipulate the price of assets of other people, destroy the economy of all nations, primarily Africa, and drive hundreds of millions of people into poverty, it is a crime.
GATA courageously fights for free markets, better markets, honesty and a better world. GATA deserves our full support.
The mining industry has often been criticized by GATA and rightly so. GATA criticized it for not protesting against the obvious manipulation. The mining people don’t realize what is happening to their product and to them and to their shareholders.
They are mostly engineers and don’t understand what some dark and obscure characters on COMEX(commodities market in New York) are doing to them, they are just closing their eyes. If you realize how much it takes to get a few grams of gold out of the ground then it is obvious that this manipulation is a major crime.
It can only be in the interest of the mining people to support GATA. Actually, it was the job of the World Gold Council but they have failed. That is one of the strangest organizations I have ever met. In any case, they are not the friend of the gold mining industry.
All the gold and silver mines of this world should give GATA an annual contribution. All investors, primarily those interested in gold and silver mines, must subscribe to GATA. GATA is the only organization fighting for miners and investors, fighting for their rights and their money.
GATA should become a structured business corporation. The benefits for everybody would be enormous. Not just for a few stock market gains but for the whole economy, the mines, the shareholders and the workers and for freedom.
Can it be done? Yes, it can. It is needed because the cabal can not endlessly steal our money. GATA must live and grow. Let’s build GATA into a powerful organization. Bill deserves it, he is a pioneer.
in reply to: Gold Enters Major Bull Market #2905Gold $646.50
Silver $12.99
Gold/Silver Ratio 49.77
Gold/XAU Ratio 4.79The Gold/XAU Ratio is included for it tells the true story on the health of gold and silver stocks. When the ratio is at 5 the shares are a buy and when the ratio is at 3 they are a sell for intermediate trading purposes. This is a time tested approach to understanding the health of gold and silver shares as opposed to scary current events. The ratio is availble at kitco.com and is updated frequently.
Holding gold and gold related companies has been made difficult recently by the criminal elements in the marketplace. We all know who they are, all the way up to the “all mighty” FED. If the gold is in Fort Knox why can’t the auditors confirm it? “Secrets destroy organizations.”
Following this anti-gold charade, those who own the gold shall make the rules. Don’t be a sold out bull, hold your ground.
in reply to: Gold Enters Major Bull Market #2904Gold $648.40
Silver $13.05
Gold/Silver Ratio 49.69The price manipulation of gold has cost owners of gold companies untold billions of dollars and has forced many of them out of business and left most of the remaining ones just fighting for their lives.
As Ferdinand Lips has said, “Gold has been the standard of all great civilizations.” Ferdinand Lips was a Swiss banker, a gold market analyst, an author and was the leading advocate in returning to the gold standard. Sadly, Mr. Lips passed away not seeing his dream come true in September of 2005.
On August 8th of 2005 the Gold Anti Trust Action Committee(GATA) sponsored “Gold Rush 21” in Dawson City where many concerned people joined in a convention to mainly discuss the western central bankers’s management of the world gold price.
During the conference one of my Lips’ business partners, J.P. Schumacher, presented his speech that he was unable to present himself because of illness.
Following are some excerpts from that speech:
“The gold standard was the highest monetary achievement of the nineteenth century.”
Mr. Lips gives his forecast of the future with his 10 conclusions:(Remember this is August of 2005 when gold was just above $400 an ounce)
1- There will be no more Federal Reserve. The central bank is the fourth in the country’s history. The former three all ended in financial disaster. This organization has tragically failed. It has run the 1913 dollar to 5 cents or lower of its original value. I suspect that a revolution will take place against the FED. It has made people poor.
2- Most of the central banks must go. They have been too irresponsible. They have provided money for the banks and the wealthy to speculate and left ordinary people holding the bag. They have fraudulently sold their citizens gold and invested in U.S. dollars with its debt backed by nothing. They sold gold at the bottom and later sold some dollars at the bottom in recent years for the Euro. Gold is the only alternative to worthless paper monetary reserves.
3- I am worried about the future of the United States. They have a dying manufacturing sector. They are bleeding to death with endless wars. They have no real enemy from the outside but have one that comes from the inside. People are not informed what is going on. I hear people are losing their freedom, of course this is the consequence. Americans should remember their heritage and the principles of their founding fathers. Wonderful men created a great and successful country that was admired by the whole world. This is all gone. Their government is only interested in teaching the world democracy. They want to rule the world but don’t understand it. They want to manage markets they no longer control and go to war when nothing else works.
4- China will be the biggest economy in the world, believe me. This is far superior than Disneyland. China will be the most important country in the world but will have to be careful managing its growth. The growth will create tensions and China could divide into three countries. It has happened before. The three countries would find management easier.
5- India will become wealthier and more successful. I wonder if a country is that successful if it has so many poor people. Contrary to predictions, India will buy more and more gold. They will never change. The gold road to India and all over Asia starts in Dubai. Dubai is building the biggest gold refineries in the world.
6- Russia could become the greatest power of the world. Russia may have the biggest gold reserves. In 1917 under the Czar Russia had the biggest buildup of gold reserves, including the Bank of England. It is a fabulously rich country with enormous resources, a lot of good people and a lot of culture.
7- Together with Russia, Europe could again be the center of the world but first the Euro needs a link to gold. The E.U will fail and the Euro may fail.
8- Gold and Silver will be much much higher, along with oil. There is not enough gold. Who wants to produce gold and silver as much as when prices are held artifically low? This whole manipulation of the gold price has no end. It will end just like the London Gold Pool in 1968, just collapse. The Gold Pool was created in 1960 by the central banks to keep gold at $35 an ounce. It could not last. Gold was stronger than the central banks and gold will also be stronger than the hedge fund boys who are criminally borrowing and shorting stocks of gold rich exploration companies just to bring them down on their knees. Only this time the explosion of the price of gold and gold stocks will be more spectacular, they will go to the moon and the manipulators will be hit by a real boomerang. Gold will take its revenge.
9- If the price of gold and silver were left to free markets sources, everyone would benefit: South America, and most of the continent of Africa, especially South Africa. Even the U.S. which is the third biggest gold producer would benefit. There would be a renaissance in mining benefits to the economies as a whole.
10- My most important forecast is the following: A return to the gold standard. Without a return to the gold standard you cn forget it. I repeat, you can forget it. If we go back to the gold standard I can see the best scenario for mankind. Everyone would benefit from sound money. South America, South Africa and the U.S. could again be a great economic power and nation. Asia may benefit the most. The world economy would run on its full potential. There would be full employment everywhere. The young could again find jobs. Peace would return to the world.
How can it be achieved?
1) GATA revelation
2) Knowledge revelation
3) Mining revelation
The completion to follow another night.
in reply to: Clips from Alleghany #2903Heavy rains last night. Could be the last storm of the year and the community is glad the rains came down. However it stopped all the weed eaters that were buzzing around town.
A sack of heavy arsenopyrite and gold was delivered into inventory yesterday. No one was particularly happy because it was not jewelry quality. Gold is gold, however. The crew expects more from the area but it will likely be the same type.
Since no one tried to answer the question about troy weight vs. avoirdupois weight for gold, Scoop will give a weak beginning. Avoirdupois is the ordinary system of weights of the United States and Great Britain in which 16 ounces avoirdupois make a pound. Troy weight has less than 16 ounces per pound and is the system of weights designed by people jealous of the 16 to 1 mine.
in reply to: Miscellaneous #2902JR Lientztz
I can’t finger out what yuor trying to say.
Better even more why your not nocking down the doors at the mine nsted of writin from the cumputre. GFo there and talk to IaN and quit being a fake miner.
in reply to: Miscellaneous #2901Mr. Miller, I take it you don’t have any job opening at this time. Thank you for your time and patience.
Jesse
in reply to: From the Sixteen to One Archives #2900GOLD ALLOYING
The metals for alloying are weighed in troy ounces, and it is necessary to understand the weights used.
12 oz. troy = 1 pound troy
1 oz. Gold (troy wt.) =20 pennyweight (dwt.)
1 dwt. = 24 grains (gr.)
=480 grains = 31.10 grams
1 grain = 0.065 gram (gm.)
1 gram = 15.43 grains
31.10 grams = 1 oz.in reply to: From the Sixteen to One Archives #2899Years ago our company and crew went to San Francisco for an outing at the Pacific Stock Exchange. We set up our high-grade furnace on the front steps, melted 100 ounces of gold and poured a gold bar. The event was coordinated with friends of the old mint, which was closed. “Save the Mint” was the shared battle cry. Here is a slice of old California history.
On July 8, 1852, President Fillmore signed an act authorizing a branch mint in California. Its construction took a long time for many reasons but on May 26, 1870 the cornerstone of the Mint was laid. The building opened on a rainy Saturday, November 5, 1874. The Mint rode out the severe earthquake of 1906. By 1934, one third of the United States’ gold reserve was stored in the vaults of the SF Mint. In 1961 it was designated a National Historic Landmark. It had a little life as a museum but the Treasury Department planned to close it permanently in 1994. Senators Boxer and Feinstein arranged a reprieve until December 30, 1995. The Sixteen to One got involved during this crisis time. The crew set up a gold pour on the steps of the Pacific Exchange. Afterwards, we all (most of the guys were either drunk by this time or hung over from the booze consumed on the chartered bus ride from Nevada City to SF) marched over to the Mint. The plan was to sell special gold medallions from the gold in the pour to raise money to save the Mint. Willie Brown was to come but he sent a rep; however in 2001 he established the San Francisco Old Mint Task Force to keep the Granite Lady alive.
In 2003, the San Francisco Museum and Historical Society took up the cause. Senators Feinstein and Boxer introduced federal legislation to authorize a commemorative coin honoring the Old Mint. Finally Mayor Brown bought the national landmark with a borrowed silver dollar that was minted in the Granite Lady 124 years earlier. The goal is to complete the project and give San Francisco a world-class museum. The Old Mint could use the Sixteen to One gold collection as a world class draw. Our gold collection is one of the great single mine gold collections and perhaps the greatest for its variety. Is there a person or company interested in bringing this collection to the Old Mint in San Francisco, gateway to the west?
Our top specimen of interest is “the Whopper”. Another is the “Crystal Palace”. We have been very careful in preserving the provenance for each specimen, which adds greatly to the value. A leading mineral specimen authority, Bryan Lees, said that interest in mineral specimen collecting is growing and hopes more specimens find their way into museums. He sold a gold specimen in 1999 called “the Dragon” for $350,000. It resold in 1999 for $650,000 and recently sold again for $2 million. The Whopper and its story is every bit as appealing as the Dragon.
My favorite specimen doesn’t have a name yet. Both placer gold and lode gold are embedded in quartz, which is as unusual as any geologic structure can be. It is a priceless example of nature’s ways. There are many more and each has a story, appealing to children and adults. The Company held onto the specimens through all the financial turmoil because it belongs as a collection, but time is running out.
Please broadcast this opportunity to philanthropic individuals or companies.
in reply to: Clips from Alleghany #2898Those hundred year old miners predicted they would be mucking the last cave-in before reaching the 1064 winze by today or tomorrow. It’s not going to happen, they say. Wednesday after shift, a Volkswagen sized rock fell from the backs completely blocking the level. It had to be drilled and blasted for advancement to continue. It’s not an excuse. It’s a reason. Reason accepted.
in reply to: CDAA Conduct #2897California 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.in reply to: Miscellaneous #2896It’s a pleasant surprise to wake up to your humor. See last three entries below.
You can be my chuck tender any round in the sixteen to one veins. One hundred years of experience will get you a try out but no guarantees for employment. Those with no experience have turned out okay as well for quite a few men who continued a career in mining. Before an offer of employment to anyone is extended, experienced or otherwise, you will be given an invitation to attend a forty-hour program that is provided by the 100 year old guys. You need this as a prerequisite to work underground.
The last time the invitation/ program was advertised and given three men were selected as “fit to be employed in the mine”. One left the first day around lunch time.. One showed up for work a week after completing the program. He called to say he had a personal issue to deal with and never returned. The last “want-to be-a-miner” finished the training, asked for a week to get his things in order and we never saw or heard from him again. Those 100-year-old guys teach, demand and expect compatibility and growth no matter who or how long they work.for the company.
If you still want an application, send your name, telephone number, address and e-mail address to any of the addresses you wish. You two will be moving to the miscellaneous topic. Thanks for your wit and interest. Oh, as far as the ultraviolet light goes. Sometimes it is effective in identifying minerals. It has been scientifically proven that all the minerals give off electrical energy that distinguishes them. Detection looms large in our technology future.
Our crew is not camera shy. Gold is an evergreen topic with many facets. CT, make the American Miner a reality.
in reply to: Miscellaneous #2895I would like to inquire about job openings at your company. Would you please advise me on how I may apply for work, preferably as a miner, entry-level miner, or as a nipper. Also, please let me know how much experience I’d need if you had any job openings. A lot of other places I’ve applied to require 100 years experince, I hope this is not the case with your company. J/K !
in reply to: Miscellaneous #2894if i understand correctly all minerals give off a glow under ultraviolet light .
in reply to: Miscellaneous #2893seems to me there could be alot of benefits if such a show came to town and did a piece on the mine. or perhaps the show “cash & treasures” . seems we fit the criteria for either.
or perhaps our own “AMERICAN MINER” series like the chopper,hotrod,idol,deadliest catch genre.
in reply to: Clips from Alleghany #2892Good ground may be found, spilpping into the cav-in. Where woorries are and the work gets bad, its like the ruberband. The tuffer it pulls the bigger then snap.
Ian and your crew, you rock.
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