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- in reply to: CDAA Conduct #2151
October 29, 2002 8:54 a.m.
MR. FILTER: Good morning, everybody. We’re on 5 time. This is always a good sign. Before we get started there’s a couple things I have to go over with you, a couple items that are evidentiary. First, in your book there is an item — before we even get started we need to take the role; sorry. (Roll was taken) MR. FILTER: Good morning. Okay. In your books there is — there is an item that has not been marked, which will be marked number 21, and it is a certified copy of the death certificate. I’m sorry, it has been marked, it’s marked, as there doesn’t have to be any testimony regarding this. This is a certified copy, and what that means is that it’s self-authenticating. So you won’t really hear any testimony about how it was obtained or anything else. The rules of evidence allow us to introduce this because of the nature of the item, that it’s reliable, and that’s all that really has to be said about that. The other thing that you need to know regarding evidence is on October 16th letters were sent to Michael Miller as well as Jonathan Farrell. The letters were identical, but I am required to read to you this letter so you understand what the next piece of evidence that you will hear about is.
“Dear Mr. Miller: On October 28th” — and this letter is written by Denise. “I, Deputy District Attorney Gale Filter, and the Sierra County grand jury will be conducting an investigation into a criminal matter in which you, as well as the Original Sixteen to One Mine, Incorporated, may be involved. The matter under investigation relates to the death of Mark Fussell on November 6th, 2000. Pursuant to Penal Code section 939.71 I will make the grand jury aware of exculpatory evidence related both to your liability as well as to the liability of the Original Sixteen to One Mine, Incorporated. Exculpatory evidence is that evidence which tends to explain away the charge. If you are in possession of any exculpatory evidence related to either your own liability, or the liability of the Original Sixteen to One Mine, Incorporated, you should provide it to me so that I will be able to present it. You do not have a right to appear and testify before the grand jury. Please provide any exculpatory evidence in a sealed box or envelope to the Sierra County Sheriff’s Office located at 100 Courthouse Square, Downieville, California, within 48 hours from the time that you receive this letter. Delivery of any materials will be accepted between the hours of 8:00 a.m. and 5:00 p.m., and is to be made to any of the following individuals: Sheriff Adams, under sheriff Marshal, or Ms. Blackwell. The Sheriff’s Office will provide you with a receipt for any materials you provide; however, the Sheriff’s Office will not accept any evidence from you that is not delivered in a sealed box or envelope. Any evidence that you choose to provide will subsequently be returned to you. Please be aware that this invitation is being extended to you so that you will have an opportunity, if you so desire, to offer to the grand jury any exculpatory evidence that you might have regarding the matter under investigation. You are not being ordered, compelled or advised to accept this invitation to produce any exculpatory evidence. Sincerely, Denise Mejlszenkier.” This should be marked item 26. I believe it’s next; is that right? 26. (Whereupon People’s Exhibit 26 was marked for identification.) 25 is — let me explain this to you. There was a package that was sent to Sheriff Adams, it was forwarded to us. It remained under seal and it was opened, and it was reviewed by Ms. Mejlszenkier, myself and Mr. Patchett. We are required by law to review that and make a determination as to whether what was submitted constitutes exculpatory evidence. In our view item 25, or Exhibit Number 25, constitutes exculpatory evidence. And what that is — it will speak for itself, so this does not have to be introduced. You won’t hear anything about how did the letter originate or any of that, what it is. If you look at it I believe it’s self-explanatory. But in a nutshell, what it is is a person who is Mr. Miller’s expert, who looked at the control device for the locomotive, and is rendering an opinion as to how that device malfunctioned, or what was the defect in the device; okay? So this can now be marked 25. And 26 is our letter. That is all of the exculpatory evidence, after review, that we found in the materials that were submitted to us. (Whereupon People’s Exhibit 25 was marked for identification.) FOREPERSON: Including the package? MR. FILTER: I can say this, the package that you received yesterday, with the exception of a cover letter, which would never be evidence to begin with, is exactly identical. Is that correct, Tony? MR. PATCHETT: That’s correct. FOREPERSON: To what you already received? MR. FILTER: To what we already received. And with that, if you’re ready, we’ll call the next witness, Tim Hurley.FOREPERSON: Could you stand and raise your right hand?
EDWARD TIM HURLEY called as a witness by the People, having been duly sworn, was examined and testified under oath as follows:
FOREPERSON: Okay. Thank you.
EXAMINATION BY MR. FILTER: Q. Mr. Hurley, could you state your name and spell it, please?
A. Edward Tim Hurley, H-u-r-l-e-y.
Q. And what is your occupation, Mr. Hurley?A. Associate Safety Engineer, Cal OSHA, mining and tunnel unit.
Q. And how long have you been employed with Cal OSHA?
A. Nine years.
Q. And just briefly, could you explain to the jury what the mining and tunneling unit does with Cal OSHA?
A. The mining and tunneling is a specialty unit within Cal OSHA. We specialize in mines and tunnels.
Q. And what’s your primary task with that? Is it to enforce safety regulations?
A. It is to do the mandated inspections as required by Labor Code, to inspect accidents and complaints, and to conduct testing for required licenses.
Q. And what did you do prior to going to work for Cal OSHA?
A. I worked in the mines for 20 years as a geologist, engineer, surveyor, supervision, up to and including manager. Worked underground for 13 of those years.
Q. And when we’re speaking of Cal OSHA, that refers specifically to the California Department of Occupational Safety and Health; correct?
Cal OSHA is a nickname for the Department of Industrial Relations, Division of Occupational Safety and Health.
Q. But to make it clear, you’re primarily responsible for the enforcement of state laws and regulations?
A. Correct.
Q. Were you at the Sixteen to One Mine on November 7th, 2000?
A. Yes.
Q. And what was your reason for being there?
A. To investigate a fatality accident that was reported to us.
Q. And how is that reported to you?
A. With a telephone call to our office from Michael Miller.
Q. Did you take the phone call?
A. Yes.
Q. Did you know Michael Miller the day that you received that phone call?
A. Yes.
Q. And how long had you known Michael Miller?
A. I first knew of Michael Miller in 1984.
Q. And how did you become acquainted with him?
A. I knew of him. He was introduced or pointed out when I was in Alleghany sometime in 1984.
Q. And when you say you were in Alleghany what were you doing there in those years?
A. I was the manager of the Oriental Mine.
Q. Did your work in those days result in being introduced to Mr. Miller?
A. I was only introduced casually, the work did not require it.
Q. Okay. In your position with Cal OSHA did you become involved with the investigation of the death of Mark Fussell?
A. Yes.
Q. When did your investigation regarding this case begin?
A. November 7th, 2000.
Q. And if you look behind you, if you would, please, you recognize that person?
A. Yes.
Q. And who is that?
A. Michael Miller.
Q. And that’s the person that you received the call from on November 7th, was it?
A. I got the call on the 6th.
Q. Okay. Did you, in your investigation of this case, work with any other agency?
A. Yes.
Q. And what agency was that?
A. MSHA.
Q. And what does that stand for?
A. Mine Safety Health Administration, Federal agency.
Q. At some point in time did you go to the Sixteen to One Mine?
A. Yes.
Q. And what day did you go there?
A. In reference to the fatal accident I went there on November 7th, 2000.
Q. On that date did you go to the 1700 level?
A. Yes, I did.
Q. And what was your reason for going to that level?
A. To investigate the site of the accident?
Q. Prior to going to the 1700 foot level did you speak with anyone in management at the Sixteen to One Mine?
A. The representative from MSHA and myself conducted a joint opening conference for the inspection.
Q. And who was that with?
A. Mr. Steve Cain.
Q. Did you speak with anyone from management from the Sixteen to One Mine prior to going to the 1700 level?
A. We spoke with Mr. Miller at that opening conference.
Q. Did you speak with a person by the name of Jonathan Farrell?
A. I don’t recall him being at the opening conference.
Q. Did you go to the 1700 level with anyone?
A. Yes.
Q. And who did you go with?
A. I went with Mr. Cain and Mr. Miller, and maybe Mr.Farrell.
Q. Did anyone explain to you, prior to going to the 1700 level, how Mr. Fussell was killed?
A. Yes.
Q. And who was that?
A. Mr. Miller at the time when he reported the accident.
Q. What did he tell you?
A. He told me his head was injured when he hit his head on an ore chute in the mine.
Q. Did you assume that that was the premise when you went to the 1700 level?
A. That’s part of the inspection.
Q. What did you do when you arrived at the 1700 level?
A. Took photographs, took measurements, took observations.
Q. Based upon your investigation and your observations did you at any point in time issue citations for the investigation that you conducted?
A. Yes.
Q. And did you — let’s focus on some of those citations that you wrote. At any point in time did you write a citation for unsafe equipment?
A. Yes.
Q. And what was the reason for writing that citation?
A. The speed controller on the locomotive was not functioning properly.
Q. And do you recall what regulation that was in violation of?
A. I have to refer to my notes.
Q. Did you bring your notes with you?
A. Yes.
Q. Could you look at them? And let me know when you’re finished looking at your notes.
A. The regulation is number 6995(b), unsafe equipment.
Q. Okay. Your understanding of that regulation, if I may, is if unsafe equipment is found then what is the responsibility of the mine operator or owner in terms of that unsafe equipment?
A. The responsibility is to repair it.
Q. If it’s not repaired is it also the responsibility to remove it from service?
A. Yes.
Q. I’m referring you to another citation. Did you issue a citation for overhead clearance?
A. Yes.
Q. And do you recall what the regulation is for that, for the citation that you issued?
A. The order number is 7010(e), overhead clearance.
Q. And what was your reason for issuing that citation?
A. That was the most direct citation or item we could find in the orders to fit the accident.
Q. Well, my question is why did you issue that citation? What caused you to issue the citation to Sixteen to One?
A. Because the fatal accident resulted — excuse me, was caused by Mr. Fussell hitting his head on a low obstruction and getting pinned against the locomotive.
Q. Doesn’t that regulation specifically apply to what is the responsibility of the operator in terms of conspicuous markings and warnings?
A. It says where there’s a low overhead that could cause a hazard it has to be marked.
Q. It also says that there’s supposed to be warnings as well, does it not?
A. I don’t recall.
Q. Can you take a look? You have the regulation in front of you?
A. No.
Q. While you’re doing that, could you do me a favor, I’ll come back to that for a second, but handing you what is marked Exhibit Number 25 — oh, you have it?
A. Yes.
Q. Could you take a look at that, please, and tell me what it says?
A. Quote, “Where overhead clearance is restricted warning devices shall be installed and the restricted area shall be conspicuously marked.
Q. Did you find either one of those things done? Was there warnings or was there markings, conspicuous marks at the chute that you looked at?
A. No.
Q. I’m now handing you what has been marked as Exhibit 25. Could you take a moment and look at that, please? Have you looked at it?
A. Yes.
Q. Did you inspect the controller on the locomotive?
A. Yes.
Q. Do you understand what that item is that I gave to you?
A. It is somebody’s report of an inspection.
Q. And having read that do you agree with what that report states?
A. I have question on some of these things.
Q. Take them from the top. What’s the first question you have?
A. I saw the controller points had burned. They normally do because every time they make and break they arc, it’s a normal process. Number two, I have no problem. Number 3, there’s no indication of when this resister coil burned through.
Q. Do you have an opinion as to when it did?
A. My experience is that when they burn through they get red hot from long hard continuous application of the electrical energy.
Q. Would the tram striking the chute cause the — that control to become inoperable?
A. Not in my opinion.
Q. Okay. I’m now handing you Exhibit Number 7. Can you take a look at that, sir?
A. Okay.
Q. And that Exhibit 7 was that the area in which the incident took place in which the tram operator, Mark Fussell, struck his head at that chute and that tram?
A. Yes.
Q. And anywhere in there do you see any indication of warnings or conspicuous markings alerting the operator to the presence of the chute?
A. No.
Q. I’m now showing you what has been marked Exhibit 8, could you take a look at that?
A. Okay.
Q. Let’s start from the top. Do you see where the seat is, sir?
A. Yes.
Q. Would it make a difference, in your opinion, if the tram had been turned around? By that I mean to say turned in such a way that the seat would have been on the opposite side of the tracks as opposed to what is depicted in that photo? Does that make sense?
A. Clarify your question, please.
Q. Yeah, I know, it doesn’t make any sense to me either. If you look at the tram, if you look directly at the tram, if the tram was repositioned so it was turned around this way, would it have made a difference in the likelihood
If the operator striking his head against the chute?A. If the tram was turned on the tracks by 180 degrees that would place the seat on the side of the track away from the chute, and therefore there would be no interference.
Q. The likelihood of the operator on that tram striking his head against the chute, would that have reduced the possibility of him striking his head against the chute?
A. It would be almost negligible at that point.
Q. Explain that to me.
A. The likelihood would be nil.
Q. Of him striking his head?
A. With the tram turned by 180 degrees.
Q. Okay. I don’t have any other questions. Just so you understand what’s happened here, the jurors have an opportunity to ask questions. They have to be reviewed by Mr. Patchett, and if they’re appropriate then I ask you what
The questions are. The date on the photo says 11/9, which took it and why is it two days later?A. I took the photo with a camera that was defective on the date indication and I was not capable of resetting it.
Q. That’s good enough.
FOREPERSON: You need a seven year old to change the date.
THE WITNESS: But I’m not seven years old (laughter).
BY MR. FILTER: Q. As you go — did you have an opportunity when you were at that level, sir, to actually go the length of the drift?
A. I went the length of the drift from the shaft back to the point of the accident.
Q. During the course of doing that did you see other chutes?
A. Yes.
Q. Were the chutes all in the same location? That is to say, are all of the chutes that you saw on the same side of the drift?
A. Yes.
Q. If you know, what is the main reason for the cart to be faced as it is in this picture? I assume who wrote this –
JUROR: Is there a main reason why the cart —
MR. FILTER: You can’t ask it.
Q. What is the main reason, if you know, for the cart to be faced as it is in this picture?
A. I don’t know of any reason for it to be faced in that direction.
Q. Let me ask you this: Would you consider that to be good mining procedure to have that cart faced that way as it is in this picture?
A. Can I quote from my notes?
Q. You cannot quote from your notes but you can look at your notes to refresh your memory.
A. Okay. A normal procedure followed by mining companies is to orient the equipment so that the person is in a less hazardous position.
Q. Is there is safety reason or concern for why the cart could not be faced in the opposite direction?
A. There is nothing to prevent it from being turned 180 degrees in the drift.
Q. I have two questions that are similar so I will try to piece them together. By what process would the tram be 26 turned around on the track so the driver is on the other side?
A. The process would involve jacking up the machine, actually derailing it, physically getting it turned and getting it mounted back on the rails in the proper direction.
Q. How long would it take?
A. Depending on the tools at hand, and the qualifications of the personnel, it could take 20 minutes up to an hour.
Q. Is it also possible, sir that you could — I’m horrible at this? Isn’t there a thing like a lift that could be installed to lift it, a winch, is that a possibility?
A. It’s a possibility.
Q. Okay. If you know, whose responsibility would it is to turn around the tram?
A. It would be all the way down through the chain of command in the sense that whoever looked at it and said that thing is not right; it should get turned around, whether it is management or labor.
Q. Okay. One other thing regarding this, you might have said it, I’m sorry, I wasn’t paying attention if you did, is how many people would it take to do that type of job? Turning it around I mean.
A. One person could do it with difficulty; it may be easier with two. Again depending upon the capability of the person.
Q. Okay. Are the chutes typically all positioned on the same side of the tunnel?
A. In this type of mine they’re always on the same side.
Q. Anything else? While we’re waiting for Ms. Kelley, I’m handing you back 7. Is that a fair and accurate depiction of how the front of the tram looked?
A. Yes.
Q. Thank you. Are there any rules or regulations or best practices regarding the minimum number of miners working in one area for safety?
A. The minimum is two.
Q. Okay. Do any of the mines in your experience use a turntable arrangement to reverse direction of equipment?
A. I’ve only seen a turntable once, and that was built into a flat car in order to turn mucking machines so they would be capable of going on a track either to the right or the left.
Q. Okay. Again, if you know, how much time does a person have to mark hazards in a drift that is reopened?
A. When a person goes into a drift that is reopened they should either be marked at that time or corrected at that time.
Q. Prior to November 6th do you have knowledge when the 1700 drift was open?
A. I know they were working in that drift at least the week previous.
Q. Mr. Hurley, in your experience do other mines have the driver on the same side as the chute?
A. Yes, but let me qualify, because I’ve worked in mines where the chutes came in on both sides of the drift. I worked in mines where the chutes came in straight overhead.
Q. Okay. Anything else?
JUROR: What’s the name of that first witness?
MR. FILTER: Kautz, I believe.
Q. If you know, in your investigation did you establish that Fussell — do you know who Fussell is?
A. Yes.
Q. Was alone prior to his being joined by Kautz?
A. It was reported that — it was reported that Fussell came in late, and I believe Kautz went with him back to the 1700 level.
Q. Let me ask you this: When, to your knowledge, if you know, was Fussell at the 1700 level before Kautz arrived?
A. I don’t know.
Q. Okay. Anything else? Is there another question?
FOREPERSON: You’re admonished not to discuss or impart at any time outside of this jury room the questions that have been asked of you in regard to this matter, or your answers, until authorized by this grand jury or the Court to
Discuss or impart such matters. You will understand that a violation of these instructions on your part may be the basis for a charge against you of contempt of court. This admonition of course does not preclude you from — does not preclude you from discussing your legal rights with any legally employed attorney should you feel that your own personal rights are in any way in jeopardy. So thank you very much.THE WITNESS: I understand.
MR. FILTER: Last witness.
STEPHEN CAIN called as a witness by the People, having been duly sworn was examined and testified under oath as follows:
EXAMINATION BY MR. FILTER:
Q. Would you state your name and spell it, please?
A. Stephen Cain. S-t-e-p-h-e-n, C-a-i-n.
Q. Mr. Cain, what’s your occupation?
A. I am the supervisory mine inspector in the Bellvue field office in Washington, State of Washington.
Q. And who is your employer?
A. U.S. Department of Labor, Mine Safety and Health Administration.
Q. What are your responsibilities as a field supervisor?
A. To oversee the inspection, investigation, and compliance follow-up inspections of the offices within my travel area.
Q. And how many offices are within your area?
A. I have 343 mines in the State of Washington and 13 inspectors.
Q. How long have you been employed with the U.S. Department of Labor, Mine Safety and Health Administration?
A. Fifteen and a half years.
Q. Prior to that?
A. I have about ten years of mining experience, and some military.
Q. Is the military experience related to your mining experience?
A. No, sir, it’s not.
Q. What training have you had for your position as inspector?
A. I received 21 weeks of initial training when I hired on with MSHA at the U.S. Department of Labor Mine Academy in Beckley, West Virginia. I have also been trained as a special investigator, which was five weeks in West Virginia, and six weeks in Glenwood, Georgia. I have also ongoing training every year. We do two weeks of follow-up training every other year. I’ve also received accident investigation training, which is about six weeks. I’m a certified mine safety professional, and I have two years of continuing education in criminology.
Q. Does your job require you to use your investigative skills regarding incidents in underground mines?
A. Yes, sir, it does.
Q. During the course of your career how many underground mine investigations have you been involved in?
A. I’ve probably inspected at least 25 or 30 mines in my 15 years.
Q. A month?
A. No mines. Those were ongoing inspections. In other words, continuing every quarter.
Q. Does your job also require you to investigate cases involving the death or serious injury of miners?
A. Yes, sir, it does.
Q. And how many investigations have you conducted related to the death or serious injury of miners?
A. I’ve been involved either as assistant investigator or as the lead investigator in 40 to 50 fatalities.
Q. Did you conduct an investigation relating to the death of Mark Fussell at the Sixteen to One Mine on November 6th, 2000?
A. Yes, sir, I did.
Q. When were you notified of Mr. Fuss ell’s death?
A. I was notified on the afternoon of November 6th by my assistant district manager, Bill Wilson.
Q. When did you begin your investigation?
A. I arrived at the Sixteen to One on November the 7th and began the investigation.
Q. Let me stop you there for a second. How is it that you’re from Washington and you end up in Sierra County doing an investigation of a miner’s death?
A. The way it works in MSHA, and this is an oversight from Congress, is that MSHA does not send investigators from the same area to do fatal investigations. We send investigators from outside the area so that there will be no appearance of impropriety.
Q. Okay. In your investigation did you make a determination as to how Mark Fussell was killed?
A. Yes, sir, I did.
Q. And how did you make that determination?
A. Through investigating the accident scene, interviews, statements, analysis, autopsy. All the information that I gathered during the investigation.
Q. Given your investigation did you determine where the incident took place?
A. Yes, sir, I did.
Q. And where was that?
A. It occurred on the 1700 level of the Sixteen to One.
Q. And you have — do you know what time the incident took place?
A. Yes, sir, the approximate time of death was around 1300 hours on November the 6th.
Q. Did you, in the course of your investigation, look at the area in which the incident occurred?
A. Yes, sir, I did.
Q. And when did you do that?
A. It began on November the 7th. I did the initial walk-through of the area to make sure that the area was secured, and to analyze the area in order to do a further investigation.
Q. Could you briefly describe the area where this incident occurred, how it appeared to you?
A. Yes. The area is down the 1700 drift level of the Sixteen to One. It’s approximately almost to the end of the working area of the drift. It was the last chute prior to a muck pile that blocked the entrance to the further part of
The 1700 level. And it was on that last chute that the 1 incident occurred.Q. What were the lighting sources for the area that you inspected?
A. Well, the typical lighting sources for the miner would have been his cap lamp and the locomotive lights. As far as when we were doing the investigation, we brought in some extra lights, which were floodlights, and our cap lamps
and flashlights to illuminate the area.Q. Did you take measurements of the drift in which the incident occurred?
A. Yes, sir, we did.
Q. What was the reason for taking measurements?
A. To ascertain the location of the locomotive in relationship to the chute, the chute location in relationship to the drift, the size of the drift, the length of the locomotive, the length of the flat car that was being pulled
by the locomotive, and the scene analysis.Q. Regarding the tram, did you take measurements of that?
A. Yes, sir.
Q. And what were the measurements?
A. The tram sits 48 inches at its highest point from the rails, and that’s the top of the battery, which is the highest point on the locomotive. The tram itself is about approximately six feet in length. The flat car with the
tongue is approximately 15 feet in length. So together they’re about 20 foot in length.(Whereupon People’s Exhibit 22 was marked for identification.)
Q. I’m handing you what has been marked now as Exhibit 22, and if you would, take a look at that exhibit, and also the display that’s behind you. Are those the same?
A. Yes, sir, they are.
Q. Do you recognize the photo that’s in front of you?
A. Yes, sir, I do.
Q. And what is that a photo of?
A. That’s a photo of the little tram that was involved in the fatal accident.
Q. Looking over your shoulder, this distance here, from here to here, what was that approximate measurement?
A. That’s approximately three feet.
Q. So you’re talking about the width of the front of the tram; would that be correct?
A. Yes, sir.
Q. And going from here to here, where it says “16 to 1”, what is that measurement?
A. That’s approximately three and a half to four feet.
Q. And this that would be the length of the tram, or the length of the battery box of the tram; is that correct?
A. That’s correct.
Q. And from this distance, you see where I’m at, sir?
A. Yes, sir.
Q. At the bottom of that — I want to get this straight. You see right here, that would be where the track is. Did you take a measurement from where I’m pointing to the top of this?
A. Yes, sir, we did.
Q. And what was that distance?
A. That was 48 inches.
Q. A couple of other questions. You’re familiar with the vehicle that’s displayed in this exhibit?
A. Yes, sir.
Q. All right. On this, what is that?
A. That’s the light illumination.
Q. For the front of the tram?
A. Well, it could be the front or the rear. There’s really not a front or rear on this tram.
Q. What the heck do they call that part of the tram?
A. It’s just one end of it.
Q. Okay. What’s that end? What’s that thing?
A. That could be the front or the rear also. And that’s a light.
Q. So if I understand, if I’m looking at this thing, depending upon what direction you’re going, when the tram is going one direction that the light, depending on which way you’re going, the light could be at the top of the top, if you’re going in another direction the light could be at the bottom of the tram; correct?
A. Correct.
Q. Would that have any impact on what was illuminated?
A. Yes, it would.
Q. How is that?
A. Well, the location of the lights, the light that you’re speaking of that sits up higher on the right side of your picture, illuminates more of the drift because it sits 3 up higher. The design on the front is just to illuminate the rail that’s in front of you, or behind you.
Q. So if this — did you know which way the tram was moving when Fussell struck the chute?
A. It was moving in a direction towards the shaft station, which would have had him moving in a forward position, with him facing the forward position moving in that direction.
Q. Moving in the direction — let’s do it this way, 12 moving in the direction of where the seat is going?
A. Yes, sir.
Q. So in that event, if I understand you correctly, the light was oriented toward the track and not towards the middle or upper reaches of the drift?
A. That’s true.
Q. In your investigation did you learn when work on the 1700 drift began?
A. Yes, sir, I did. I interviewed Jonathan Farrell, and in that interview he stated that they had began work approximately six weeks before the fatal, and they had worked in that drift off and on since that time. And I also received workplace examination records that indicated that four miners had worked in that area on the week of the 22nd through the 28th, in which they indicated that they had worked and inspected in the 1700 level, and that they had trammed in the 1700 level.
Q. During the course of your investigation did you determine what time Vincent Kautz went to the 1700 level?
A. Yes, sir. He arrived at the 1700 level approximately 1200 hours.
Q. And in your investigation did you determine what time Mark Fussell started work that day?
A. Yes, sir. He arrived late for his shift and got to the 1700 level approximately 730 hours.
Q. To your knowledge, from 730 hour, that’s military hours, that’s military time for 7:30 in the morning; correct?
A. Yes, sir.
Q. From 7:30 in the morning till 12:00 o’clock if the afternoon was they’re anyone working with Fussell?
A. No one worked with him, but Jonathan Farrell did go to the 1700 level and met him back at that raise and they had a discussion in regards to him showing up late for work.
Q. Okay. So then what you’re saying, at lea
in reply to: CDAA Conduct #2150MR. FILTER: Okay. Well, first let me begin on behalf of Denise, Tony and myself, this has been truly a pleasure working with you. I’m glad we came in on time. These type of cases are extremely important to you. They’re extremely important to you. They’re tough cases. That’s one of the reasons that we’re here. Tony, it’s always been a pleasure. Tony and I go back many years. The one thing that I did have an opportunity to do over the last day and a half is have a glimpse as to what type of lawyer Denise is going to become. There’s no doubt she’s going to be a real credit to our profession, which is heartwarming.
JUROR: Is she old enough though?
MR. FILTER: She will be in a couple years. First what I want to do is I want to go over a couple legal concepts with you and sort of set up what the law is and give you some insight as to what the jury instructions are. Sixteen to One, Michael Miller and Jonathan Farrell, in the indictment, have been charged with violation of Penal Code Section 192, involuntary manslaughter. And in order for us to prove this, in order that you can reach a decision to indict, you’ve got to find that the killing was in the commission of an unlawful act or a killing, “or”, not “and”, or a killing was done without due caution and circumspection. Under Labor Code Section 6425, we’re obligated to prove that three things occurred. One is that Sixteen to One, Miller and Farrell, had direction, management, control or custody of the workplace. Secondly, that Sixteen to One, Miller and Farrell, willfully violated safety standard, California Code of Regulations Title 8, Section 7010(e)(9-60). What that section is is the clearance, the warnings and the markings, the conspicuous markings. This is the only thing that applies to 6425, was there a willful violation of the warnings and markings. Nothing else should be taken into consideration for that particular charge. And that that violation caused the death of Mark Fussell. Labor Code Section 6425, what is meant by a willful violation of that particular section, and what that is, is that there’s got to be a restricted overhead clearance. I’m sorry, restricted overhead clearance requires that warning devices be installed, and restricted area must be conspicuously marked. Willful. Important concept. The term “willfully” does not require any intent to violate the law or to injure another. The defendant must only have, quote, “a purpose or willingness to commit the act or make the admission”. Two things that are the easiest to understand, you get pulled over, you’re doing 75 in a 65 mile-an-hour zone, said officer, I didn’t intend to speed, I didn’t even know what the speed limit was. Still a violation because it’s the act, it’s not what it is that you intend to do. Or that the admission would be that if the law requires you to wear a seat belt, and you don’t have your seat belt on, that constitutes an admission because you are obligated to do so. About contributory negligence. The instructions that you will hear Tony read in a little bit says that if you find the conduct of the targets of this proceeding, that is Farrell and Miller, and Sixteen to One, caused the death of Mark Fussell, quote, “then it is no defense that the conduct of some other person, even the deceased, contributed to the death”. So you can’t consider that. If, for example, if
there was evidence heard in this case that Fussell was inattentive, looking the wrong way and started the tram, that doesn’t come into play because this isn’t a law that accepts or considers contributory negligence. So there is no such
thing as contributory negligence in this particular case. General intent. “General intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he or she is
acting with general criminal intent, even though he or she may not know that his or her conduct is unlawful.” So what that simply says is that we go back to the concept of speeding. That is to say did you intend to commit the act. But I didn’t know it was illegal. Doesn’t matter, because it was the act that you did and not what is the intent that is important. Gross negligence. “Those negligent acts which are aggravated, reckless or flagrant, in which — flagrant –
FOREPERSON: Easy for you to say.MR. FILTER: “Aggravated, reckless or flagrant, or were such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life, or to constitute indifference to the consequences of those acts.” In other words, you do the act and you don’t really think about the consequences as to what might occur, and at the same time knowing, because of the position that you’re in, or just through regular knowledge of what an ordinary, reasonable person would know, that these acts in themselves, or these omissions in themselves are dangerous. It’s one of my favorite movies, which probably says a great deal about me, it was The Gauntlet with Clint Eastwood. For those of you who have never seen this movie, Clint is sent to pick up a witness who is going to testify against the mob, and he goes through this gauntlet. The people who are supervisors are out to get him, everybody is trying to stop Clint from delivering this witness. And the bus has got 50,000 bullet holes in it but Clint still arrives. And that movie was called The Gauntlet. Everybody was out for a piece of Clint. Mark Fussell also had a gauntlet, and the gauntlet was as follows: Mark had to get through dangerous chutes, wrong position of locomotive. Go back to what I told you about the jury instruction, what constitutes manslaughter. And it may be a lawful act that is dangerous that constitutes the grounds for finding someone liable for manslaughter. In other words, nobody said it was a violation to have the locomotive in the wrong position, nobody said it was a violation that the chutes extended over the track; the point is, those conditions give rise, when considered with other factors, of gross negligence. So those can be considered by you to be part of the package of what the gross negligence amounted to. There were no warning devices. Now that is a violation. There was no conspicuous markings. That is a violation. And there was a defective control system. That was a violation. And when you take a look at all of these, and you start beginning to look at these pictures, and you begin to think that if that little light had been blinking we probably wouldn’t be here today. If that light had been blinking on November 6th in 2000, and had been located in that relative position as Mark Fussell was when he got on that tram, we would not have been here, but for a cheap device. Dangerous chute. We go back, and you recall that — you look at this, and you look where the hair was located. You don’t have to be a miner to understand that this thing was just inherently dangerous. If you put a tram
on it then it becomes even more dangerous. You look at where the seat is located, you look where the chute is located, and you look what the position was of the tram, the seat in relationship to the chute, and the fact that it was on the wrong side of the tracks, and that it would have taken 15, 20 minutes, a half hour, 40 minutes, to reposition that tram, and it leads an ordinarily reasonable person to no other conclusion that it was inexcusable. Defective control. Two-inch clearance. And as several witnesses testified, in order to clear that chute it would require the operator to bend totally over behind the every compartment of that tram. Worse, not only do you have those five conditions, or those five conditions leading to this particular situation, on November 6th, 2000, but on 8/15, Sixteen to One, Miller and Farrell, all received notice these chutes are dangerous. And indeed, two and a half months before this incident took place. They might as well have received a red flag regarding what the danger of those chutes were. And indeed, going back to August 15th, 2000, they actually did repairs, or did put warning signs up, did put streamers up, because it indicates that they knew the inherent danger of low chutes, particularly in a confined space. No warnings. No one. Not a single person said they saw any sign of a warning at the 1700 level. No one said that they saw any kind of conspicuous markings on any of the chutes at the 1700 level. And clearly, I mean there’s nothing there. There is nothing that could even, by the stretch of anyone’s imagination, say that constitutes a sign or a warning, or for that matter conspicuous. And when you look at the facial hair and the blood that’s on the corner of that chute, it really drives home exactly how dangerous this really was. Because given the location of the person with the facial hair, and what the position of that tram was, one didn’t have to be a miner to know that this was a particularly dangerous situation. Gross negligence. Mark Fussell deserves his day in court. He deserves to have a trial regarding these violations that amount to two felonies. I’ll leave you with this thought: that little device up there, according to one person who testified, probably runs 8, 10, 15, 20 dollars. A sign would have cost six dollars. Streamers, they probably could have cut up bed sheets, stuck them on with tape, white. Probably would have served as some kind of alert. Vincent Kautz said that he was being paid approximately $14 an hour. And although I’m not good at math, I’ll give them the benefit of the doubt, they could have taken two men a half hour to reposition that tram, and that means it would have taken them $15 dollars worth of labor to do it. That man’s life is priceless. And no matter how much gold is in that damn mine, no one will ever replace that life or buy it back. And I’m asking you, if you would, to return an indictment against Sixteen to One, Michael Miller and Jonathan Farrell, for the counts that were alleged in the indictment. Thank you very much. It’s been totally a pleasure working with you.FOREPERSON: You just mentioned the two felonies, yet in Count One it says not amounting to a felony.
MR. FILTER: The act does not — when you look at the jury instructions, the act itself does not have to be a felony. Okay? The act itself does not have to be the basis for the felony. Okay? Tony.
MR. PATCHETT: Ladies and gentlemen of the grand jury, it is my duty to instruct you on the law that applies to this case. You will have these instructions in written form in the jury room to refer to during your deliberations. You must base your decision on the facts and the law. You have two duties to perform. First, you must determine facts from the evidence received and not from any
other source. A fact is something established directly or circumstantially by the evidence. Second, you must apply the law that I state to you to the facts as you determine them and in this way arrive at your decision. You must accept and follow the law as I state it to you, whether or not you agree with the law. If anything concerning the law said by the prosecutors in their statements, or at any other time during the hearing, conflicts with these instructions on the law, you must follow the instructions. You must not be influenced by pity for the persons who are targets of this proceeding, or by prejudice against them. You must not be biased against the persons who are targets of this proceeding because they are the subject of this hearing. None of these circumstances is evidence of probable cause to indict, and you must not infer or assume from any or all of these circumstances that he or she is more likely to have committed an offense for which an indictment is sought than not. You must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the people and the persons who are the targets of this proceeding have a right to expect that you will conscientiously consider and weigh the evidence, apply the law and reach a just result regardless of the consequences. If any rule, direction or idea is repeated or stated in different ways in these instructions, no emphasis is intended and you must not draw any inference because of its repetition. Do not single out any particular sentence, or any individual point or instruction, and ignore the others. Consider the instructions as a whole and each in the light of all the others. The order in which the instructions are given has no significance as to their relative importance. Statements made or documents prepared or presented by the prosecutors during the hearing, other than those received into evidence, are not evidence. Do not assume to be true any insinuation suggested by a witness — by a question asked a witness. A question is not evidence and may be considered only as it enables you to understand the answer. Do not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken or withdrawn. Treat it as though you had never heard of it. You must decide all questions of fact in this case from the evidence received in this proceeding and not from any other source. You must not make any independent investigation of the facts or the law, or consider or discuss facts as to which there is no evidence. This means, for example, that you must not on your own visit the scene, conduct experiments, or consult reference works or persons for additional information. You must not discuss this case with any person except a fellow juror, and then only after the case is submitted to you for your decision, and only when all jurors are present in the jury room. You have been given notebooks and pens, leave them on your seat in the jury room when you leave each day and at each recess. You will be able to take them into the jury room when you deliberate. Word of caution. You may take notes, however, you
should not permit note taking to distract you from the ongoing proceedings. Remember you are the judges of the believability of witnesses. Notes are only an aid to memory and should not take precedence over recollection. A juror who does not take notes should rely on his or her recollection of the evidence and not be influenced by the fact that other jurors do take notes. Notes are for the note-taker’s own personal use in refreshing his or her recollection of the evidence. Finally, should any discrepancy exist between a juror’s recollection of the evidence and a juror’s notes, or between one juror’s recollection and that of another, you may request that the reporter read back the relevant testimony, which must prevail. The grand jury shall receive no other evidence than such as, one, given by witnesses produced and sworn before the grand jury; two, furnished by writings, material objects, or other things presented to the senses; or three, contained in a deposition that is admissible by law. The grand jury shall not receive any evidence except that which would be admissible over the objection at the trial of a criminal action. The word “defendant” applies equally to each defendant unless you are expressly instructed otherwise. The word “willfully”, when applied to the intent with which an act is done or omitted, means with the purpose or willingness to commit the act or to make the omission in question. The word “willfully” does not require any intent to violate the law or to injure another, or to acquire any advantage. The word “knowingly” means with knowledge of the existence of the facts in question. Knowledge of the untruthfulness of any act or omission is not required. A requirement of knowledge does not mean that the act must be done with any specific intent. Evidence consists of testimony of witnesses, writings, material objects, or anything presented to the senses and offered to prove the existence or nonexistence of a fact. Evidence is either direct or circumstantial. Direct evidence is evidence that directly proves a fact without the necessity of an inference. It is evidence which, by itself, if found to be true, establishes the fact. Circumstantial evidence is evidence that if found to be true proves a fact from which an inference of the existence of another fact may be drawn. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence. It is not necessary that facts be established by direct evidence, they may be proved also by circumstantial evidence, or by a combination of direct evidence and circumstantial evidence. Both direct evidence and circumstantial evidence are acceptable as a means of proof; neither is entitled to any greater weight than the other. However, you are not permitted to return an indictment based on circumstantial evidence unless the proved circumstances are not only consistent with the theory that the persons who are targets of this proceeding are responsible for the crime, but cannot be reconciled with any other rational conclusion. Further, each fact which is essential to complete a set of circumstances necessary to support an indictment of the persons who are targets of this proceeding must be established by evidence constituting reasonable or probable cause. In other words, before an inference essential to support an indictment may be found to have been established by evidence constituting reasonable or probable cause, each fact or circumstance on which the inference necessarily rests must be established by reasonable or probable cause. Also, if the circumstantial evidence as to any particular count permits two reasonable interpretations, one of which supports the indictment of the persons who are targets of this proceeding, and the other does not, you must adopt that interpretation that does not and reject that interpretation that does. If, on the other hand, one interpretation of this evidence appears to you to be reasonable, and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable. Evidence has been admitted against one or more of the targets of this proceeding, and not admitted against the other. At the time this evidence was admitted you were instructed that it could be considered by you against the other targets — could not be considered. Do not consider this evidence against the other target. The prosecutors are not required to call as witnesses all persons would may have been present at any of the events disclosed by the evidence, or who my appear to have some knowledge of these events. The prosecutors are not required to produce all objects or documents mentioned or suggested by the evidence. Every person who testifies under oath or affirmation is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness. In determining the believability of a witness you may consider anything that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness, including, but not limited to, any of the following: The extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness has testified; the ability of the witness to remember or to communicate any matter about which the witness has testified; The character and quality of that testimony; the demeanor and manner of the witness while testifying; The existence or nonexistence of a bias, interest or other motive; evidence of the existence or nonexistence of any fact testified to by the witness; The attitude of the witness toward this action, or toward the giving of testimony; A statement previously made by the witness that is consistent or inconsistent with the testimony of the witness; An admission by the witness of untruthfulness. Discrepancies in a witness’s testimony, or between his or her testimony and that of others, if there were any, do not necessarily mean that the witness should be discredited. Failure of recollection is a common experience, and innocent misrecollection is not uncommon. It is a fact also that two persons witnessing an incident or a transaction often will see or hear it differently. Whether a discrepancy pertains to a fact of importance or only to a trivial detail should be considered in weighing its significance. A witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point unless from all the evidence you believe the probability of truth favors his or her testimony in other particulars. You are not bound to decide an issue of fact in accordance with the testimony of a number of witnesses which does not convince you as against the testimony of a lesser number or other evidence which appeals to your mind with more convincing force.
You may not disregard the testimony of the greater number of witnesses merely from caprice, whim, or prejudice, or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the number of witnesses. The final test is not in the number of witnesses but in the convincing force of the evidence. Testimony concerning any particular fact which you believe given by one witness whose testimony on that fact does not require corroboration is sufficient for the proof of that fact. However, before finding any fact required to be established by the prosecution to be proved solely by the testimony of such a single witness, you should carefully review all of the testimony upon which the proof of such fact depends. Motive is not an element of the crimes being alleged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this proceeding. Presence of motive may tend to establish probable cause to return an indictment in this proceeding; absence of motive may tend to establish innocence. You will therefore give its presence or absence, as the case may be, the weight to which you find it to be entitled. A confession is a statement made by an accused other than at a hearing in which he has acknowledged his or her guilt of the crimes for which he is accused. In order to constitute a confession the statement must acknowledge participation in the crimes as well as a required criminal intent or state of mind. An admission is a statement made by an accused, other than at this hearing, which does not by itself acknowledge his guilt of the crimes for which he is accused, but which statement tends to prove his guilt when considered with the rest of the evidence. You are the exclusive judges as to whether the persons who are targets of this proceeding made a confession or an admission; and if so, whether that statement is true in whole or in part. Evidence of an oral confession or an oral admission of the persons who are targets of this proceeding, not made in court, shall be viewed with caution. Evidence has been received from which you may find that an oral statement of motive was made by a target of the indictment before the offense with which he is charged was committed. It is for you to decide whether the statement was made by a target of the proposed indictment. Evidence of an oral statement ought to be viewed with caution. No person may be indicted for a criminal offense unless there is some proof of each element of the crime independent of any confession or admission made by him outside of this proceeding. The identity of the person who is alleged to have committed a crime is not an element of the crime. Such identity may be established by a confession or admission. A person is qualified to testify as an expert if he has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony relates. A duly qualified expert may give an opinion on questions in controversy at this proceeding. To assist you in deciding such questions you may consider the opinion, with the reasons given for it, if any, by the expert would gives the opinion. You may also consider the qualifications and credibility of the expert. You are not bound to accept an expert opinion as conclusive but should give to it the weight to which you find it to be entitled. You may disregard any such opinion if you find it to be unreasonable. In determining the weight to be given to an opinion expressed by any witness who did not testify as an expert witness you should consider his or her credibility, the extent of his or her opportunity to perceive the matters upon which his or her opinion is based, and the reasons, if any, given for it. You are not required to accept such an opinion but should give it the weight, if any, to which you find it entitled.
In examining an expert witness counsel may propound to him a type of question known in the law as a hypothetical question. By such a question the witness is asked to assume to be true a set of facts and to give an opinion based on that assumption. In permitting such a question it does not necessarily mean that all the assumed facts have been proved, it only determines that those assumed facts are within the probable or possible range of the evidence. It is for you, the grand jury, to find from all the evidence whether or not the facts assumed in the hypothetical question have been proved. If you should find that any assumption in such a question has not been proved you are to determine the effect of that failure of proof on the value and weight of the expert opinion based on the assumed facts. A corporation, regardless of the number of persons or stockholders who compose it, is regarded in law as a single person. The law vests it with the identity and certain privileges of a natural person, and holds it to the same responsibilities that rest upon a natural person. The term “person” as used in these instructions include a corporation. In the crimes charged in counts One and Two of this proposed indictment there must exist a union or joint operation of act or conduct and general criminal intent. To constitute general criminal intent it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime he is acting with general criminal intent even though he may not know that his act or conduct is unlawful. In the crime charged in Count One, involuntarily manslaughter, there must exist a union or joint operation of act or conduct and criminal negligence. “Criminal negligence”, “gross negligence”, means conduct which is more than ordinary negligence. Ordinary negligence is the failure to exercise ordinary or reasonable care. “Criminal negligence”, “gross negligence”, refers to a negligent act or acts which are aggravated, reckless and gross, and which are such a departure from what would be the conduct of an ordinary, prudent, careful person under the same circumstances as to be contrary to a proper regard for human life or to constitute indifference to the consequences of those acts. The facts must be such that the consequences of the negligent acts could reasonably have been foreseen, and it must appear that the death was not the result of inattention, mistaken judgment or misadventure, but the natural and probable result of an aggravated, reckless or grossly negligent act. To constitute the crime of involuntary manslaughter there must be, in addition to the death, an unlawful act or omission which was a cause of that death. A proximate cause of the death is a cause which in natural and continuous sequence produces the death, and without which the death would not have occurred. There may be more than one proximate cause of the death. When the conduct of two or more persons contributes concurrently as a proximate cause of death the conduct of each such person is a proximate cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the death and acted with another cause to produce the death. If you find that the conduct of the persons who are targets of this proceeding was a proximate cause of the death to another person, then it is no defense that the conduct of some other person, even the deceased, contributed to the death. When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither criminal intent nor purpose, nor criminal negligence, he does not thereby commit a crime. The persons who are targets of this proceeding are accused in Count One of the proposed indictment of having committed the crime of involuntary manslaughter in violation of Section 192(b) of the Penal Code. Every person who unlawfully kills a human being without malice aforethought, and without an intent to kill, is guilty of the crime of involuntary manslaughter in violation of Penal Code Section 192(b). In order to prove such crime each of the following elements must be proved: A human being was killed; the killing was unlawful. A killing is unlawful within the meaning of this instruction if it occurred, one, during the commission of an unlawful act which is inherently dangerous to human life under the circumstances of its commission; or two, in the commission of an act ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection. An unlawful act includes: A violation of California Code of Regulations, Title 8, Section 7010(e)(9-60); A violation of the California Code of Regulations, Title 8, Section 6995(b); A violation of Code of Federal Regulations Title 30, Section 57.9306; A violation of Code of Federal Regulations Title 30, Section 57.14100. The term “without due caution and circumspection” refers to a negligent act or acts which are aggravated, reckless and gross, and which are such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life, or to constitute indifference to the consequences of such acts. The facts must be such that the consequences of the negligent acts could reasonably have been foreseen. It must also appear that the death was not the result of inattention, mistaken judgment or misadventure, but the natural and probable result of an aggravated, reckless, or grossly negligent act. California Code of Regulations Title 8, Section 6995(b)(14-26), which applies to mining equipment and practices, requires unsafe equipment or machinery, shall be removed from service immediately. Code of Federal Regulations Title 30, Section 57.9306, which relates to safety devices, prohibitions and procedures for railroads in mines, requires where restricted clearance creates a hazard to persons on mobile equipment warning devices shall be installed in advance of the restricted area, and the restricted area shall be conspicuously marked. Code of Federal Regulations Title 30, Section 57.14100, which relates to safety devices and maintenance requirements for machinery and equipment in underground mines requires: (b), defects on any equipment, machinery and tools that affect safety shall be corrected in a timely manner to
prevent the creation of a hazard to persons; (c) when defects make continued operation hazardous to persons, the defective items, including self-propelled
mobile equipment, shall be taken out of service and placed in a designated area posted for that purpose, or a tag or other effective method of marking the defective items shall be used to prohibit further use until the defects are corrected. The persons who are the targets of this proceeding are accused of having committed the crimes set forth in the proposed indictment. The prosecution has introduced evidence for the purpose of showing that there is more than one act or omission upon which an indictment on Count One may be based. The persons who are the targets of this proceeding may be indicted if the evidence establishes proof constituting reasonable or probable cause that he committed any one or more of the acts or omissions. However, in order to return an indictment as to Count One at least eight or more grand jurors must agree, as to each individualin reply to: CDAA Conduct #21498. Transcript of hearing on May 28th.
7. Miller Memorandum to Demurrer
6. Sixteen to One Response to CDAA response
5. CDAA response to Plaintiff Memorandum of Points
4. Entry of Default
3. Sixteen To One Reply to Demurrer
2. CDAA Motion Demurrer
1. Complaint for Damagesin reply to: CDAA Conduct #2148#8 Transcript from hearing on May 28, 2004.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SIERRA
MICHAEL MILLER,
Plaintiff,
No. 6293
Vs
GALE FILTER, et. al.
Defendants
MAY 28, 2004DEMURRER
Before Hon. RICHARD HAUGNER
APPEARANCES:
For the Plaintiff: MICHAEL MILLER
In Propria PersonaAlleghany, CA
For the Corporation: GEORGE R. GILMOUR,
Attorney at Law
6536 Arlington
Richmond, CA 94805For the Defendant: THOMAS S. KNOX
Attorney at Law
KNOX, LEMMON & ANAPOLSKY, LLP
One Capitol Mall, Suite 700
Sacramento, CA 95814Judy Bishop, CSR No. 2261
May 28, 2004
THE COURT: In the Miller versus Gale Filter et.al. Everyone ready?
MR. KNOX: Good afternoon, I’m Tom Knox for the defendants and moving party. I apologize to the Court on two fronts. We had this calendared at 2:30 and put it on our moving papers. Apparently the Court had this on a 1:30 calendar. We obviously messed up and I apologize for keeping the Court waiting.
THE COURT: I think it was set for 2:30. I wondered why it was set in the middle of all the child support matters.
MR. KNOX: Apparently —
THE COURT: Your office evidently goofed in not sending the copies to the pro per plaintiff.
MR. KNOX: I’ll find out what happened. We may have — well, I don’t know what happened.
THE COURT: He did sign an opposition, which was filed by Mr. Gilmour.
MR. KNOX: I’ve taken a look at it.
THE COURT: All right. Now, Mr. Miller, do you have the response?
Mr. MILLER: Yes.
THE COURT: Okay. And do you, Mr. Knox, have what was filed today?
MR. KNOX: I have. Both parties gave me their papers when I came in.
THE COURT: The second memorandum of points and authorities. All right. And, Mr. Gilmour, you represent the corporation?
MR. GILMOUR: The corporation.
THE COURT: All right. Mr. Knox, you’re the moving party, do you have — let me say for the record I read the Complaint itself, the demurrer and notification of demurrer, the points and authorities, the opposition filed by George Gilmour. Mr. Gilmour and Mr. Miller. And the response filed by Mr. Knox’s firm. And I’ve also read the two memorandums of points and authorities, which were filed today; one by Mr. Miller and the other by Mr. Gilmour. You have anything to add to what I’ve already read?
MR. KNOX: You’ve had a lot of paper on this, Judge. Just to boil it down, my clients were — it’s indisputable I think my client’s were advised they were deputy district attorneys. They took the oath. There apparently is some irregularity about whether an appointment got filed, but it’s very clear they took an oath. They performed acts that according to the face of the Complaint itself could only have been performed by deputy district attorneys. Seems to me they are probably de jure deputy district attorneys, but they’re certainly de facto district attorneys. They performed acts presenting evidence to the grand jury, filing criminal complaints openly in a way that cannot be done unless everyone believes, and you honestly believe, you’re a deputy district attorney. It seems to me the immunity has to extend that far. The law just wouldn’t put deputies at risk because there was a failure at some other level to file this appointment. So for all those reasons we think immunity applies and the Court can make that determination from the face of the Complaint.
THE COURT: Okay. Mr. Gilmour on behalf of the corporation.MR. MILLER: I’ll go first.
THE COURT: Mr. Miller on behalf of himself.
MR. MILLER: Yes, sir. Thank you very much. First of all on the question of whether — on the surface my service papers to the defendants clearly states that it was in pro per. The actual language is right in big
print, in pro persona.THE COURT: That’s not really relevant to the issue before us today.
MR. MILLER: I really —
THE COURT: You have all the papers and Mr. Knox now has papers he never had before.
MR. MILLER: No, sir, I don’t have all the papers.
THE COURT: Then you get copies from Mr. Knox and Mr. Gilmour.
MR. MILLER: Well, the case is perhaps are a little more complex than Mr. Knox has stated as far as prosecutorial immunity goes. The situations are such that we do not believe, I do not believe that prosecutorial immunity is absolute in this case. And the facts would bear that out. Mr. Knox’s clients were not district attorneys, and their behavior was not that of the district attorney. They were not employed by Sierra County. They were not employed by the State of California. They did not work under the authority of the Attorney General. Their employer clearly is a nongovernmental corporation, which lobbied for and received a specific contract from the California Department of Industrial Relations. And that contract contains specific language that the contractors and the members of the CDAA are not privileged under the government standards, and the government is held harmless from all of their activities. Their behavior was not that of a district attorney. And the California District Attorneys Association has a web site. It’s a fine organization. We’re certainly not here
To — I’m not here to challenge the broad concept of immunity. But this was willful, and it was knowing, and it was extremely detrimental to me. I was accused of killing somebody by these people. And that statement is still with
me today, and I really have no other recourse to go after this and correct this injustice that was put upon me. The interesting thing about their web site, it
says, “The Ethical Duties of a Prosecutor”. So it clearly states out by their own web site that in administering justice a prosecutor must abide by a strict code of ethics. “The prosecutor must always strive to discover the truth
while carrying out all official duties. Additionally, the prosecutor must exercise the utmost professionalism as he or she is in the position of demonstrating ideal social behavior for others to follow. At any level, the primary role of the prosecutor is to investigate and prosecute impartially, in
quotations, criminal suspects on behalf of the People. Guilt shall not escape or innocence suffer. Cited Berger vs. United States, 1935, 295 U.S. 78, 88. In carrying out their duties prosecutors are required to follow statutory regulations imposed on them by California Business and Professional Code section 6068 (a)-(d). These include upholding the federal and state constitutions and laws; respecting courts of justice and judicial officers; maintaining only such actions as appear to be legal or just; and employing only such means as are consistent with the truth and never seeking to mislead a judge or a judicial
officer.” In this very courtroom all of these absolute requirements were violated. And this isn’t a situation of randomly seeking revenge. This case was — we have transcripts from grand jury records. We have transcripts from the hearings themselves. They prepared the case, the CDAA people, because they needed to create cases to fulfill their contract. We weren’t the first —THE COURT: You’re proceeding as though this was an evidentiary hearing and it’s not.
MR. MILLER: Well —
THE COURT: Basically you’re stuck with your Complaint and his demurrer.
MR. MILLER: Right.
THE COURT: That’s it.
MR. MILLER: Right.
THE COURT: In the demurrer we assume everything in the Complaint is true.
MR. MILLER: Okay.
THE COURT: Your allegations, et cetera.
MR. MILLER: Well, his demurrer is not. I don’t think it’s true at all. Because there seems to be quite a few different variations of — for example, if a prosecutor stabs a defendant, would he be held criminally liable?
THE COURT: It depends on whether he is acting in the scope of his employment.
MR. MILLER: Well, I would imagine that if the prosecutor stabbed a defendant —
THE COURT: Depends on why.
MR. MILLER: So it depends on why?
THE COURT: Yeah. But the question here is one of whether or not immunity attaches to the fab four of Sierra County. Mr. Knox’s position has always been that it does because, one, they probably are district attorneys de jure
even though the appointment wasn’t filed. The second argument is if they aren’t district attorneys de jure they’re de facto district attorneys and de facto deputy district attorneys are entitled to immunity if they’re acting within
the scope of their employment.MR. MILLER: They certainly are not acting within the scope of their employment. And Mr. Knox also questions, he said how would the law — he just said this — just would not put prosecutors at risk. The law. We’re here to talk
about the law, that’s what I understand. And I think there’s such a narrow interpretation of, quote, the law for immunity, that it has most of the people in this country extremely troubled. And —THE COURT: I’m not here to worry about the rest of the country.
MR. MILLER: I’m not either.
THE COURT: I’m strictly interested in the Complaint and the demurrer.
MR. MILLER: Well, the Complaint —
THE COURT: And the grounds for the demurrer.
MR. MILLER: The Complaint is in the sense of that analogy about a prosecutor stabbing somebody. I think the facts would have something to do with that.
THE COURT: That has nothing to do with this.
MR. MILLER: Okay. And let me ask, may I ask something of Jan Hamilton that’s directly related to her direction?
THE COURT: Its not an evidentiary hearing. If there’s something you want to ask her you should have filed a counter affidavit.
MR. MILLER: I never received — Your Honor, I never received anything from the defendants.
THE COURT: I find that hard to believe because you filed — you filed a response and opposition.
MR. MILLER: Let me see if I can help you with that.
THE COURT: We’re not here for an evidentiary hearing as such.
MR. MILLER: The interests of the Original Sixteen to One and my interest in this case for damages are very different. We have a de facto Chinese wall in place with the corporation as far as what goes on with Original Sixteen to
One and what goes on with Michael Miller in pro per. Michael Miller received nothing from the defendants, not even an answer. Original Sixteen –THE COURT: They hadn’t answered the demurrer?
MR. MILLER: I received nothing from them. Nothing.
THE COURT: You must have had something because you signed the opposition.
MR. MILLER: No, sir, I received nothing from them.
THE COURT: As I say, I find that hard to believe.
MR. MILLER: I came to court —
MR. GILMOUR: Your Honor, I can speak to that? I sent Mr. Miller the last page for his signature, the last page of pleadings. He did not get a full set.
THE COURT: He signed something not knowing what he was signing?
MR. GILMOUR: That’s correct.
MR. KNOX: You talking about the Complaint or the opposition?
MR. GILMOUR: The opposition, that’s correct.
THE COURT: You had him sign a document he hadn’t read?
MR. GILMOUR: At the time, because of the time constraints that we were under, that’s right.
THE COURT: That’s not an excuse.
MR. GILMOUR: No, but it’s a fact.
THE COURT: You put him in jeopardy.
MR. GILMOUR: But it’s a fact.
THE COURT: Go on.
MR. MILLER: Well the declaration, I mean I would — I had no opportunity to send a revised declaration by Jan Hamilton. I spoke with her on the telephone and I believe she’s in a position to recant some of the statements that she’s made. I felt she was given a piece of paper again from the offices of Mr. Knox, and they are –
THE COURT: This is your allegation.
MR. MILLER: Well, see, she’s sitting right here.
THE COURT: Anything else you want to say on behalf of your opposition to the demurrer? As I say, it’s not an evidentiary hearing.
MR. MILLER: Let me think about it just for a minute. I’ll sit down if that’s okay.
THE COURT: All right. Mr. Gilmour?
MR. GILMOUR: Thank you, Your Honor. It’s undisputed that the defendants were not sworn — not appointed pursuant to the Government Code.
THE COURT: Where do you find that?
MR. GILMOUR: Where do I find?
THE COURT: Yes.
MR. GILMOUR: In the —
THE COURT: In the Complaint?
MR. GILMOUR: No, in the declaration of — submitted with our opposition, of the County, I forget her — Clerk, I guess, under penalty of perjury. The custodian of records for the County in any event, who said that no affidavit —
THE COURT: You mean the clerk, the County Clerk?
MR. GILMOUR: Yeah. Who swore that no affidavit, no appointments were ever filed. It’s undisputed that they — there was no appointments made.
THE COURT: There’s an issue. I am not convinced that’s true, because you have to recall that the County Clerk at one time was the ex official clerk of the superior court. And so filing a document with a deputy clerk was filing it
with the County Clerk. Somewhere along the line, and I’m not sure when, they took the administration of the courts away from the County Clerk and placed it with — in the State, and also with local court executives.MR. GILMOUR: I don’t quite understand, Your Honor. Are you saying that
THE COURT: What I’m saying is I am not sure but that filing the oath of office with the Court Administrator as a clerk may be in compliance or substantial compliance with 24102. I don’t have to find that.
MR. GILMOUR: Yes. That’s one of our issues here. Because if indeed, and it’s a question of fact, I don’t know whether for the sake of a demurrer —
THE COURT: Tell me about why these people aren’t de facto deputy district attorneys.
MR. GILMOUR: I’m saying they very well may be, but that’s a factual question again. It wasn’t addressed in the demurrer. I’d like to —
THE COURT: It was in the Complaint.
MR. GILMOUR: I’d like to do some discovery with regard to that question.
THE COURT: We’re at the demurrer stage.
MR. GILMOUR: I understand. So how does one just demurrer by a mere allegation that I have something that I have to proof up?
THE COURT: You demurrer to the language of the Complaint. I think, as Mr. Knox’s brief points out, that the Complaint itself basically sets up the fabulous four as deputy district attorneys de facto. Who can file a criminal
action? How do you start a criminal action?MR. GILMOUR: Are you saying that a de facto district attorney —
THE COURT: I’m asking you a question. How do you start a criminal action?
MR. GILMOUR: By filing an Information I suspect. I don’t do criminal law.
THE COURT: There’s only two ways you can do it. One is the district attorney has to file the Complaint in the Municipal Court and proceed by way of preliminary examination, or to the grand jury with a Complaint; or the
grand jury on it’s own with the help of the district attorney indicts certain people. Now, here it’s alleged in the Complaint that the fab four basically filed the Complaint against Mr. Miller and the corporation.MR. GILMOUR: I understand what they did.
THE COURT: And also, in very clever language by Mr. Miller, in effect misled the grand jury, which resulted in an indictment. Now that’s a deputy district attorney’s function, as is the filing of the Complaint.
MR. GILMOUR: Exculpatory evidence is part of his obligation as well.
THE COURT: I don’t think you know what you’re talking about.
MR. GILMOUR: Okay.
THE COURT: Because the problem is, when they do this they’re acting as deputy district attorneys.
MR. GILMOUR: They’re acting as if. Now, your question was whether or not they’re de facto, and I said that’s a question of proof. First of all —
THE COURT: You’re right. And assuming, assuming the allegations of the Complaint to be true, it would appear from the Complaint itself that they are de facto.
MR. GILMOUR: The question then comes down to assume arguendo they are de facto.
THE COURT: Does the immunity apply to them?
MR. GILMOUR: Exactly.
THE COURT: Why doesn’t it?
MR. GILMOUR: And the law I cited, and the only law I could find in three days, that came from old now Mr. Witkin, says no, they are not immune. The jury immunity; de facto, zip. That’s the law.
THE COURT: All right.
MR. GILMOUR: Mr. Knox has not cited any authority to the contrary. I would — I’m not a betting man, but I’d bet that the Court would not be able to find any law to the contrary in any of the 50 states. De facto, no immunity. No
immunity, no demurrer.THE COURT: Okay. Thank you. Mr. Knox?
MR. KNOX: Your Honor, I just don’t see how that can be the law. The fab four, as you call them, take the oath, perform prosecutorial functions. They are left in this proceeding apparently by — I don’t know what happened to that appointment. I agree with the Court that the oath itself is a substantial compliance with the requirement that there be an appointment, but surely they don’t lose their prosecutorial immunity that would otherwise attach if they
were on the payroll of the County.MR. GILMOUR: Your Honor, there is — this is a very — the latest law is about 1926 that I can find on the question of de facto status.
THE COURT: Well, there’s a 1914 case.
MR. GILMOUR: Not having to do with immunity. Nothing.
THE COURT: That’s the one in which where the deputy sheriff was commissioned by the sheriff and they didn’t file the paper.
MR. GILMOUR: That’s correct, but it has nothing to do with that deputy sheriff’s immunity; nothing. That’s where I got confused, too. It took me a long time to get through this stuff. I ended up reading a 1926 edition of
Southern California Law Review and the cases cited therein. It’s that bad. But interestingly, Mr. Witkins relied upon it. I would hope this Court would as well.MR. KNOX: The 1940 case was Cradlebough and that officer probably deserved what he got, which was to be prosecuted as an officer for excessive force. Certainly if the burden’s attached to a de facto officer the privileges and immunities must as well.
MR. GILMOUR: Your Honor, that case had to do with an officer being charged as an officer for committing a crime in violation of a statute governing officers. It had nothing to do with immunity.
THE COURT: All right. You thought of something else you want to say, Mr. Miller?
MR. MILLER: Yes, sir.
THE COURT: Go ahead.
MR. MILLER: I’d like to add to the duties of a district attorney to a grand jury. And as a person of the public I thought it was interesting when I had a chance today to read some of Mr. Knox’s assertions that this is all in the
public interest. It’s clear in the California Penal Code, 939.7, that is it also incumbent upon a district attorney to reveal exculpatory evidence and to, in grand jury proceedings, to exactly explicitly point that out and to protect that innocence — innocent people will not be damaged through the type of hearings and presentations that I, along with the Original Sixteen to One Mine, and another person, went through in this very courtroom. It was not — these men and women, they are called Team Filter in the grand jury hearings. It is clear that they have stepped well beyond the concept of immunity, at least in the eyes of the public. For Mr. Knox to suggest that allowing the State of California to grant the specific — grant an absolute immunity in this case
is actually against the People of the State of California’s best interest. That’s what would come out in a factual presentation should we be able to proceed in this hearing.THE COURT: Anything else?
MR. MILLER: Yes, sir, one more thing. The – I hold the judicial system in the highest regard of the three branches of our government. I’m the only person in this room who went through what happened in Sierra County with Team Filter and CDAA. I’m not a lawyer, I was in pro per throughout this hearing because it was very, very complex. It was impossible to reach labor law, mining law, administrative law, civil law. I could find no attorney that knew all of these branches of the law. Judge Young, I think on special notice, and the fact that the motion to set aside, this was Mr. Knox’s clients, were thrown out of court.
Professional attorneys who are now private attorneys employed by the CDAA on their payroll, now have extended this immunity and they get thrown out by a person in pro per on a motion to set aside. I think — and we weren’t the first case.THE COURT: I don’t know why the Information was set aside. I know what your argument was in the motion, but Judge Young merely said it was granted, he didn’t say why. He’s an old time judge, he didn’t want to give a reason and
be wrong probably, so I don’t know why.MR. MILLER: Your Honor, I plead with you that this case is in the public’s best interest to know go forward.
THE COURT: May be in the best interest to go forward, the problem is whether or not the defendants, the four defendants, the fab four, have immunity under 82126.
MR. MILLER: Everything I’ve read says employee, employee, employee.
THE COURT: They were employees.
MR. MILLER: No, sir, they were not.
THE COURT: Let’s go back; okay?
MR. MILLER: They weren’t employees of Sierra County.
THE COURT: No, no. The only person who can — who can appoint deputy district attorneys is the District Attorney himself or herself. Now, they evidently were
appointed by her, or told to be appointed by her. They were given the oath by Ms. Hamilton. She holds the documents. Now, the district attorney didn’t file the paper with the County Clerk. Whether that’s required or not I don’t know.
There’s no cases on this except the Cradlebough case.MR. GILMOUR: There’s a statute.
THE COURT: There is a statute, yes, but what’s it mean?
MR. GILMOUR: It means –
THE COURT: You have to remember they changed the court system.
MR. GILMOUR: That statute was from 1907, and it is current today.
THE COURT: I know it’s still there.
MR. GILMOUR: The language is unequivocal.
THE COURT: But they have changed the structure of the Superior Court.
MR. GILMOUR: I understand that. But it says until an appointment. You cannot –
THE COURT: I’ve heard enough from you, you can sit down.MR. GILMOUR: I’m sorry.
MR. MILLER: Can I say one more thing and then you can tell me to sit down?
MR. KNOX: I’ll tell him to sit down, Your Honor.
(Laughter).
MR. MILLER: I would love to talk to you because this is a very serious matter. The fact that you just said, Your Honor, that the only person that can appoint someone to come into our county. This is my county. This is where I live. I work here, I run a company. Been here 30 years. And the district attorney, the fact is that she didn’t appoint, she didn’t authorize directly Jan Hamilton to
appoint these people, and I know that for a fact. And when do we get a chance to say this? Sherry the clerk is sitting over there. The current district attorney is not here. Jan Hamilton will say that what she said in statement four is not necessarily absolutely correct. And if that’s in your own
words, if that’s the only way they can appoint, they were not appointed that way. They blew in here, came over and said this is and that is.THE COURT: They were appointed over a period of about six or eight months one at a time.
MR. MILLER: I’m fully aware of the time dates on there when they were appointed, and the one in particular.
THE COURT: You just tried to tell me they were appointed at the same —
MR. MILLER: No, sir, I didn’t. No, no, no. Mr. Hedum was in 2001, Mr. Patchett was October 28th, 2002, the day of the grand jury. He came in from Los Angeles, Sharon O’Sullivan was not even in the courthouse, and said “Appoint
me”. Jan did her job. She got a call, she didn’t know. We’re kind of a little relaxed here, too, which is maybe to our detriment, but there are laws. And not only did they break the law of appointment, they broke every other law you
can imagine in presenting and prosecuting this case to the grand jury. People up here are outraged.THE COURT: That’s your allegation, I don’t know.
MR. MILLER: When do we get a chance to prove it? I don’t think that the Constitution, in what I cited to you about the special privileges for different groups, there’s no special groups for absolute immunity for anybody in the
United States. Where do we say that in the Constitution, either the State or the Federal?THE COURT: It’s not in the Constitution.
MR. MILLER: Where did we ever say that in –
THE COURT: The statute grants immunity to public employees performing in the scope of their employment.
MR. MILLER: Exactly. No law is going to breach the values of the Constitution. They don’t presume to override the Constitution. And both California and state are in there.
THE COURT: You are out of order on that.
MR. MILLER: I’ll stand corrected.
THE COURT: All right.
MR. MILLER: But this is not a frivolous issue.
THE COURT: I know it’s not a frivolous issue.
MR. MILLER: And the concept of people coming in and evaluating this and doing this. I think that if this is not allowed to go forward it definitely is not what anyone imagined the need for having prosecutorial immunity absolute.
I’m not here to argue that either. We’re here to discuss the specifics of this case.THE COURT: There’s no doubt there’s prosecutorial immunity providing you are performing prosecutorial work. The question, as Mr. Gilmour says, is does it apply to these people, the fab four.
MR. GILMOUR: That’s correct.
MR. MILLER: Yeah, I have a little different opinion than Mr. Gilmour. I know that they did not — that they did not carry out the laws of the land when they
presented this to the grand jury.THE COURT: It isn’t the cleanest case presented, that’s the problem.
MR. MILLER: By whom?
THE COURT: By both sides. There aren’t enough facts involved in it. The demurrer is probably good as to the third count, because you haven’t pled anything for interference with the business advantage.
MR. MILLER: If that’s the case, having never even had a copy of Mr. Knox’s client’s report –
THE COURT: That’s your complaint.
MR. MILLER: Okay. Whatever he is claiming, I would certainly, if the worst case scenario is right, like a right to amend our Complaint. I just think —
THE COURT: Is the matter submitted?
MR. KNOX: Yes, Your Honor.
THE COURT: All right. I’m going to deny the demurrer on the — as to the four defendants on the three causes of action on the grounds of immunity because I don’t think the record is full enough for that. I’ll grant the demurrer as to the third count with leave to amend. You can file an amended Complaint.
MR. GILMOUR: Thank you, Your Honor.
THE COURT: Which you would have to set forth the requisite allegations for interference with business advantage.
MR. GILMOUR: Thank you very much, Your Honor.
THE COURT: I think also that you’re going — you should clean up your Complaint because if there are differences between the corporation and the individual then I think your damages are going to be different. I think you have to allege that.
MR. GILMOUR: Yes, Your Honor.
THE COURT: I don’t think there is any difference between the way you pled it.
MR. GILMOUR: It was a last moment. I live in Alameda County.
THE COURT: I think what’s going to — what will eventually happen is this thing will come back on a judgment on the pleadings after more information.
MR. GILMOUR: Fine. At least as long as we have the opportunity to do that. Thank you very much, Your Honor.
MR. MILLER: Thank you.
MR. KNOX: Thank you, Your Honor.
THE COURT: Will you prepare the order, Mr. Knox?
MR. KNOX: Yes, Your Honor. How long to amend? He is present in court so 20 days, is that what he gets to amend — to file the amended Complaint, 20 days from today?
THE COURT: From today’s date. You want longer?
MR. MILLER: I have a shareholders meeting June 26th, and I have something in U.S. Court of Appeals on June 11th. And I apologize for this but we run — I run a public company but I’m really small.
THE COURT: By July 15th?
MR. MILLER: Yes, sir, July 15th would be excellent for me.
MR. GILMOUR: Thank you very much, Your Honor.
CERTIFICATE OF CERTIFIED SHORTHAND REPORTER
I, JUDY BISHOP, hereby certify that I am a Certified Shorthand Reporter, and that I recorded verbatim in shorthand writing the following proceedings completely and correctly according to the best of my ability:
COURT: Superior Court, Dept. 1
JUDGE: Hon. Richard Haugner
ACTION: Miller vs. Filter, et. al.
DATE: May 28, 2004
I further certify that my said shorthand writing has been transcribed into typewriting, and that the preceding pages constitute an accurate and complete transcript of my shorthand writing for the date specified.
I further certify that I have complied with CCP 237(a)(2) in that all personal juror identifying information has been redacted if applicable.Dated: June 5, 2004
JUDY BISHOP
Certified Court Reporter
CSR No. 2261in reply to: CDAA Conduct #2147#7 Miller memorandum to Demurrer
INTRODUCTION
Plaintiff Michael M. Miller was never served any papers filed by defendants. His ability to respond to the motion has been violated by the omission of defendants to serve the first and second motion before the court. Miller waives his right to service if the court rules against the motions. If the court believes it lacks sufficient documentation to strike down defendants’ motions, Miller asks the court to order defendant to serve Miller and allow him time to respond.
BACKGROUND of Defendants
The official California District Attorneys Association web site has a section entitled, “What is a prosecutor. Section V, Becoming a prosecutor says, “Individuals seeking a position as a prosecutor must know the law.” Section IV provides the “Ethical Duties of Prosecutors”. Excerpts presented orally.
Defendants entered into a contract with the California Department of Industrial Relations in the spring of 2001. Specific terms of the agreement pertinent to the motion before the court today are contained in the following pages of the contract.
“The California District Attorneys Association will employ these individuals.” Page One, section 1.
“In addition, elected District Attorneys will, as appropriate, deputize these prosecutors. The California district Attorneys Association will employ the Circuit Prosecutors and Investigator.” Page One, section 2.
“The California District Attorneys Association (hereinafter the Association or “CDAA”) is a private, non-profit association.” Page Two, section 4. (b)
“The Circuit Prosecutors and Investigator will be employed by the CDAA” Page Three section c.
DUTIES of Defendants
The individuals are members of the California State Bar and are required to follow its requirements. See Motion to Set Aside. Exhibit B. CDAA web site includes a description of duties entitled, “The Ethical Duties of Prosecutors”. It is not a stretch to believe that defendants knew the duties and requirements of a prosecutor. Also, the Sierra County Grand Jury transcript contains many statements by defendants that they were aware of the obligations they assumed as private prosecutors. Team leader and defendant Filter instructed the Sierra County Grand Jury that, “You must accept and follow the law as it is stated regardless of whether you agree with the law.” Page 37 lines 26-27. His omissions to the Grand Jury are flagrant transgressions of the law.The individuals took an obligation to “bear true faith and allegiance to the Constitution of the United States and the Constitution of California” They ignored the constitution and subsequent statutes and regulations as stated in the Motion to Set Aside and Exhibit A
CONCLUSION
Breaking the laws and claiming it is on behalf of the publics’ interest and seeking absolute protection under the doctrine of immunity is a specious argument in light of the circumstances involved in the murder prosecutions of Michael M Miller by the defendants. For these reasons and the testimony entered today, Michael M. Miller prays that defendants’ demurrer be overruled.Sincerely yours,
May 28, 2004 Michael M. Miller
in reply to: CDAA Conduct #2146# 6 Sixteen to One Response
to CDAA Response to Memorandum of pointsIntroduction
Defendants demurrer was based on the unequivocal and false assertion that the individual defendants are deputy district attorneys of Sierra County.
Now, in their Response, they admit that that assertion is untrue, is false, that they are in fact not deputy district attorneys of this County.
But, they claim, although they have falsely presented themselves to this Court and to the people of this County as being deputy district attorneys, and because the Court and the citizens of this County came to believe this fraud, they are nonetheless entitled to immunity from liability for injuries they caused to citizens and a major business of this County.
It’s a novel argument.
Deputy District Attorneys
The individual defendants’ status as deputy district attorneys was not only repeatedly claimed as fact in their Demurrer (five times in seven pages), the claim was also sworn to under oath by one of the defendants in his Declaration in support of the Demurrer. (Declaration of Gale Filter.)
Had these assertions been true, defendants’ demurrer might well have had some merit. But they were not true. They were false, they were sworn to, and they were in the Demurrer falsely presented to this Court, as true.
The falsity of the defendants’ claims was revealed by plaintiffs’ in their Opposition to the Demurrer filed on May 10.
On May 21, less than one week from the calendared hearing on their Demurrer, defendants served their “Response.”
In that Response defendants have presented an entirely novel characterization of their status in this County. They almost, but not quite, admit that in their Demurrer they had misrepresented both fact and applicable law, but they request that the Court now take yet more “judicial notice” of, declare to be true, matters which are most certainly “reasonably subject to dispute” and hardly “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Evidence Code Section 452(h). Although the defendants repeat in their Response their untrue claim that they were appointed (p. 2, lines 22-23), it is not true and they admit it is not true.
So, what have they done? In their Response they assert now that they are “de facto officers.”
That may well be true. But it may well not be. Defendants attempt to have the assertion of de facto status established as fact, a question of complex fact not to be determined by a demurrer. For example, whether the defendants’ “acts in prosecuting plaintiffs involved the interest of the public” (Response, p. 4, line 1) is undoubtedly a factual question far beyond the allegations of the complaint, and not capable of being resolved by judicial notice at a demurrer.
But the real issue here is whether the defendants are, by virtue of purported de facto status, immune from liability for the injuries they are claimed in the Complaint to have caused.
Defendants claim that as de facto officers they are entitled to Government Code Section 821.6 immunity. They offer no authority for such a proposition. There is none.
Bernard Witkin in addressing de facto officers throughout his various treatises repeatedly refers to the article on De Facto Public Officers in 9 So.Cal.L.Rev. 189 as an “exhaustive discussion.” See, e.g., 2 Witkin Procedure, “Courts,” Section 44, p. 59.
While the acts of an officer de facto are valid insofar as the rights of the public are involved, or the rights of third persons having an interest in them are concerned, yet if a party defends or sues in his own right as a public officer for his protection or benefit, it is not sufficient that he be merely an officer de facto; he must be an officer de jure. That is, when the incumbent is sued for the commission of an act which is criminally or civilly enforceable against the “officer” as such, a defense of de facto status will not be heard, since an “officer” in in this capacity includes de facto as well as de jure officers. And when the incumbent is sued for doing an act normally excusable in a de jure officer, the de facto officer cannot put up the defense of the immunity of the office, for this defense belongs exclusively to the de jure officer. (Emphasis added.)
9 So.Cal.L.Rev., at 220, and cases cited.Not surprisingly, defendants have misrepresented the nature and applicability of the ancient de facto doctrine. Its purpose is to protect the public and third parties from loss, and not the people inappropriately exercising the powers of an office which they have had no lawful business occupying from liability for their wrongdoing.
The two cases cited by defendants with regard to de facto status, Oakland Paving Co. v. Donovan (1912) 19 Cal.App. 488 and Nofire v. United States (1897) 164 U.S. 657, have nothing to do with the question of the immunity of de facto officers.
The Complaint
The defendants argue that their status as deputy district attorneys is implied in the Complaint. But that is not true.
In Paragraph 7, it is stated that “…the defendants, and each of them, knowingly and willfully conspired and agreed among themselves to without probable cause or other reasonable bases have felony criminal charges brought…,” hardly the actions of legitimate public servants.
In Paragraph 8 it is stated that “pursuant to and in furtherance of said conspiracy on June 132, 2002, defendants cause a complaint to be filed against plaintiff MICHAEL M. MILLER and one Jonathan Farrell…” hardly the actions of legitimate public servants.
In paragraph 9 it is stated that “…further pursuant to an in furtherance of said conspiracy, defendants, and each of them, wrongfully misled the Sierra County Grand Jury…,” hardly the actions of legitimate public servants.
Nowhere in the Complaint is there an allegation much less an inference that the defendants were legitimate, lawfully entitled, deputy district attorneys of this County.
Judicial Notice
Defendants request the Court to take judicial notice of certain matters, that is to assume certain matters to be indisputably true. Evidence Code section 452(h) provides that matters which “…are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy may be permitted to be judicially noticed.
In her declaration filed with the defendants’ Response, Jan Hamilton states that she was told by the District Attorney that the District Attorney had appointed the defendants. It is submitted that had the District Attorney in fact appointed the defendants she would herself have told this Court, that she would have sworn to such an event. Ms. Hamilton’s hearsay upon hearsay statement is odd indeed in that it amounts to a statement that the District Attorney of this County had repeatedly violated the law. It is a statement which at best is “disputable” and not “capable of immediate and accurate determination” as true.
Conclusion
For all of the foregoing reasons, plaintiffs pray that defendants’ demurrer be overruled.
May 27, 2004
Respectfully submitted,
GEORGE R. GILMOURin reply to: Miscellaneous #2145Many of us are reading and watching the ongoing litigation procedures, that ongoing battle currently engaging most of our Mine’s above-ground time. Let’s not forget the positive battle engaging miner vs. gold-in-quartz-rock underground that has been waged daily throughout the ongoing political battles.
I recall a fantastic Shareholder’s Day turnout last year, and heard many of us speak up during discussion time. I myself sat silent for most of the procedings, only to eventually introduce myself to some of the assembled crowd on an individual basis, mostly to meet those of us with whom we share this passion, and to some who’ve participated within the lively Forum discussions that have peppered this time. I met some people with passions close to mine, some others obtuse, mostly ending up wondering how many of us who attended shied away from speaking up, maybe because it seemed inappropriate or we were simply too shy.
I can almost foresee the future on two fronts: 1) Success within the current mining plan; success within the company’s long-term goals to expand exploration into the un-tapped lava-capped Tertiary-channeled shaft into the belly of the vain; but also 2) Success with the ongoing proactive lawsuit on behalf of us as shareholders, by exposing the fraud imposed by the CDAA, and subsequent damages pursued on our behalf. Long overdue, and as a result something that has under-valued our company’s stock.
I recall vigorous debate during past shareholder’s meetings, all focused on the viability of such an endeavor. Most of us who stood up spoke to the contrary, to worries about frivolity, to sour grapes, to lack of substantiation. Yet within the absolute, the ongoing and current adjudication of the lawsuit brought on our behalf, I believe this is a vital and ongoing positive reality.
We as shareholders were damaged by the illegal action of the CDAA, and we all have suffered directly throught the artificial depression of the stock value of our asset.
The value of our asset, our voice as shareholders of the Original Sixteen to One Mine, is what we will be meeting about.
Those of us privy to the ongoing battles with the CDAA know this; to those of us who aren’t up to speed on the issue, please read all the stuff Mike’s been submitting, as well as all other Forum topics. It’s esential.
See, I figure that when we’re all up there under the tent, under the open sky and within the powers of nature, as we marvel about our prize….we might forget our adversaries.
We need to have our voices heard.
in reply to: Clips from Alleghany #2144The past week of mining was 80% maintenance, up from about 20% for the past month. Gold production remained spotty from the “kitchen” area. The slusher cable is creatively rigged to drag the broken rock down the raise. In the process a great deal of tension is placed on the cable, causing it to break. Mike was in Oroville selling slab yesterday and bought 500 feet of 3/8” airplane cable to replace the smaller diameter. The strength increases from about 7000 pounds to about 14,000 pounds. Should eliminate the problem.
The CAT 910 wheel loader has been tagged out for emergency brakes. New pads were installed yesterday. Looks like the old machine needs new U joints, which will arrive tomorrow. The Company is looking for a Cat 966 C loader. It does not have to be pretty, just pass all safety standards.
With all the action in the office Rae and Amber took turns with a 24-hour sickness. A lot of work got done with the annual report, shareholder data, Superior Court hearing, and preparation for the appeal to the US Court of Appeals, Ninth Circuit. The two office cats continue to do their job without complaints. No mice have been spotted in the building for some time.
Had off and on rain this week. This is typical springtime in Alleghany. Rain this time of year is our friend even though it feeds the underbrush. The community is abuzz with fire prevention activities all over town. Last year’s fire is a reminder of the towns vulnerability. All in all it was a good week and next week looks even brighter.
in reply to: CDAA Conduct #2143#5 CDAA Response to plaintiff’s Memorandum of Points and Authorities in Opposition to Demurrer
May 28, 2004Defendants Gale Filter, Denise Mejlszenkier, Anthony Patchett, Kyle Hedum, and California District Attorney Association submit this response to Plaintiff’s Memorandum of Points and Authorities in Opposition to Demurrer.
Plaintiffs argue that no written “appointments” have been filed by the Sierra County Clerk in connection with the service of Defendants as Sierra County Deputy District Attorneys. That is true.
Plaintiffs argue that because no “appointments” were filed, Defendants did not in fact serve as Deputy District Attorneys and do not enjoy the prosecutorial immunity conferred by Government Code section 821.6. That is not true.
The Court Executive Officer of Sierra County, Jan Hamilton, administered an oath to each of the Defendants. The oaths, designating each Defendant respectively as a Deputy District Attorney, are evidenced by writings attached to Defendants’ moving papers. Defendants performed the duties of Deputy District Attorneys as the allegations in Plaintiff’s complaint show. It is in fact connection with their performance of those duties that Defendants have been named as parties to this lawsuit.
For the reasons stated below, Plaintiffs arguments are simply unavailing.
ARGUMENT
1. There exists Judicially noticeable evidence that Defendants were Sierra County Deputy District Attorneys.
Plaintiffs argue that, under Evidence Code section 452(d), the Court can only take judicial notice of the existence of the Oaths in the court file, but cannot take judicial notice of the truth of the facts asserted therein. However, Defendants have also requested judicial notice of the Oaths and administration of same by the Court’s Executive Officer pursuant to Evidence Code section 452(h).
Under section 452(h), the Court may take judicial notice of facts and propositions that are not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. That Defendants were sworn as Sierra County District Attorneys of Sierra County is not reasonably subject to dispute. Further, that defendants were appointed as Deputies is also not reasonably subject to dispute. These facts are subject to verification by Sierra County Court’s own Executive Officer, as evidenced by the accompanying affidavit. According to Court Executive Officer Jan Hamilton, she administered Oaths of Office to Defendants after then District Attorney Sharon O’Sullivan communicated the fact of Defendants’ appointment to CEO Hamilton’s office. (Affidavit of Jan Hamilton, Pg 2, lines 1-3). District Attorney O’Sullivan has the power to appoint Deputies pursuant to Government Code § 24101.
Defendants request that the Court take judicial notice of the information contained in Court Executive Officer Hamilton’s affidavit under Evidence Code section 452(h) as information capable of immediate and accurate determination by resort to sources of reasonable indisputable accuracy.
2. Defendant Gale Filter’s Declaration is offered to authenticate the documents offered for judicial notice.
Plaintiffs argue that the Declaration of Filter has been inappropriately presented to the Court as it is offered to refute the factual allegations of the complaint. However, Filter’s Declaration is not offered to refute the factual allegations made in the complaint, but rather to authenticate the documents being offered for judicial notice by the Court.
3. Defendants were de facto Deputy District Attorneys to whom statutory immunity applies, notwithstanding the absence of filed written appointments.
Plaintiffs argue that no evidence exists that the Defendants have ever been appointed as Deputy District Attorneys of Sierra County, because no written appointments were found in the files of the county clerk’s office, as required by Government Code section 24102. However, even in the absence of filed appointments, Defendants were officers de facto, to whom immunity applies.
An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as involving the interests of the public or third persons, where the duties of the officer were exercised either: (1) under color of a known and valid appointment, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath or give a bond, or; (2) without a known appointment, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry, to submit or invoke his action, supposing him to be the officer he assumed to be. Oakland Paving Co. v. Donovan (1912) 19 Cal.App. 488, 495. The same validity and the same presumptions attach to the actions of an officer de facto as to those of an officer de jure. Nofire v. United States (1897) 164 U.S. 657, 661.
a. Defendant’s acts in prosecuting Plaintiffs involved the interest of the Public
In their complaint for damages, Plaintiffs alleged the following acts by Defendants:
1.) Defendants had “felony criminal charges brought against plaintiffs in the county of Sierra, State of California.” (Complaint for Damages, Page 3, Paragraph 7).
2.) Defendants filled a criminal complaint against Plaintiffs in Sierra County charging Plaintiffs with violations of Penal Code section 192(b) (involuntary manslaughter) and Labor Code section 6425(a) (willful violation of occupational health or safety standard resulting in death). (Complaint for damages, Pages 3-4, Paragraph 8).
3.) Defendants “misled the Sierra County Grand jury by inter alia concealing exculpatory evidence, to returned a two-count felony indictment against plaintiffs… charging each of them with violations of Penal Code section 192(b) and Labor Code section 6425(a). (Complaint for Damages, Page 4, Paragraph 9).
4.) Defendants “initiate[ed] the prosecution of plaintiffs…” (Complaint for Damages, Pages 4-5, Paragraph 11).
These acts, undertaken in furtherance of a criminal prosecution against the Plaintiffs, served a vital public interest. As noted by the California Supreme Court, the efficient functioning of our system of law enforcement is dependent largely upon the investigation of crime and the accusation of offenders by trained officers. White v. Towers, (1951) 235 P.2d 209, 211. The Court warned that, “a breakdown of this system at the investigative or accusatory level would wreak untold harm.” Id.
b. Defendants exercised their duties under color of a known and valid appointment, but where the officer had failed to conform to some precedent requirement or condition.
Defendants were de facto officers under both standards discussed above. First, as evidenced by the accompanying affidavit from Court Executive Officer Jan Hamilton, each of the defendants performed their duties under color of a known and valid appointment to the office of Deputy District Attorney, even though they had no written appointment filed with the county clerk. According to the Court Executive Officer Hamilton, she administered Oaths of Office to Defendants after then District Attorney Sharon O’Sullivan Communicated the fact of Defendants’ appointment to CEO Hamilton’s office. (Affidavit of Jan Hamilton, Pg. 2, lines 1-3). Court Executive Officer Hamilton also stated that District Attorney O’Sullivan did not file a written affidavit of appointment with the county clerk’s office for any of the twelve Deputies that District Attorney O’Sullivan appointed. (Affidavit of Jan Hamilton, Pg. 2, lines 3-7).
c. Alternatively, Defendants exercised their authority without a known appointment, but under circumstances that would induce others to conclude that they were Deputy District Attorneys.
Defendants can also be found to be de facto officers applying the second standard, to wit, performing their duties without a known appointment, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry, to submit or invoke his action, supposing him to be the officer he assumed to be. Here, Defendants each took the Oath of Office for the office of Deputy District Attorney. (Defendants’ Request that Court Take Judicial Notice, Exhibit “1”, Affidavit of Jan Hamilton, Pg. 2, lines 21-26). Further, Defendants made criminal charging decisions, filed criminal complaints and presented evidence to fact finders such as the Sierra County Grand Jury. (Complaint for Damages, Paragraphs 7-9, 11). In other words, Defendants acted in such a way as would induce others to submit to their authority as Deputy District Attorneys.
The acts undertaken by Defendants served the vital public interest of upholding the law. Further, Defendants executed their duties under either under color of a known appointment, or without appointment, but under such circumstances that others would conclude that they were Deputy District Attorneys of Sierra County. Hence, Defendants were officers de facto and they are entitled to the same immunity afforded all prosecutors.
4.) Defendants status as Deputy District Attorneys can be inferred from Plaintiff’s own Pleadings.
Even if the court refused to take judicial notice of any document or fact in this case, Defendants status as Deputy District Attorneys can be inferred from the Plaintiffs’ own pleadings.
A judge deciding whether to sustain or overrule a demurer is guided by a number of general principals. Material facts alleged in a pleading are treated as true for the purpose of ruling on the demurrer. Gruenberg v. Aetna Ins. Co. (1973) 9 C3d 566, 572. The judge also takes as true facts that may be inferred from those expressly alleged. Harvey v. City of Holtville (1969) 271 CA2d 816.
In their complaint for damages, Plaintiffs allege that Defendants made criminal charging decisions, filed criminal complaints and presented evidence to fact finders such as the Sierra County Grand Jury. (Complaint for Damages, Paragraphs 7-9, 11). These are all functions of the Sierra County District Attorney and his or her deputies.
Further, Plaintiffs allege that Defendants took the actions complained of between May 2002 and February 2003, when the case was dismissed. (Complaint for Damages, Pg. 3, Line 14 through Pg. 4, Line 25.) Certainly, the Defendants could not have, over a period of nine months, taken a criminal case from its initial stages to fruition in Sierra County Superior Court unless they were Deputy District Attorneys.
Hence, there lies an extremely strong inference from the plaintiffs’ pleadings alone that Filter, Mejlszenkier, Patchett and Hedum were Sierra County Deputy District Attorneys.
Conclusion
The Oath of Office and the fact of Defendants’ having been sworn as Deputy District Attorneys are judicially noticeable under the evidence code. Further, Defendants’ status as Deputy District Attorneys can be easily inferred from the Plaintiff’s own Complaint for Damages. Defendants’ reiterate their request that their demurrer be sustained as to Plaintiffs’. First, Second and Third Causes of Action because Filter, Mejlszenkier, Patchett and Hedum enjoyed absolute immunity as prosecutors acting within their official capacity and because this immunity attaches to CDAA through the doctrine of respondeat superior.
Defendants also reiterate their request that the demurrer be sustained as to Plaintiff’s Third Cause of Action for failure to state facts sufficient to constitute a cause of action. Plaintiffs have pleaded none of the elements necessary to sustain a cause of action for interference with prospective business advantage.in reply to: CDAA Conduct #2142#4 Default
Filed May 10, 2004 Michael Miller enter default of defendant for non servicein reply to: CDAA Conduct #2141#3 Original Sixteen to One Response to Demurer
I. INTRODUCTION
The Court may of course take judicial notice of certain matters. The issue here is what those matters are permissibly to be. Defendants ask the Court to take judicial notice of matters not permitted to be so or which are in fact patently false.
This lawsuit is, stripped of legal argot, about the defendants having allegedly engaged in unlawfully exploiting, abusing, making a mockery of the Office of the District Attorney, the judicial process, and causing serious damage to, among others, the plaintiffs.
In their arrogance, by this demurrer the defendants are attempting to do the same yet again.
II. THERE EXISTS NO JUDIALLY NOTICEABLE EVIDENCE
OF DEFENDANTS EVER HAVING LAWFULLY OCCUPIED THE OFFICE OF OR FUNCTIONED AS DEPUTY DISTRICT ATTORNEYS OF SIERRA COUNTY.The defendants cite Dawson v. Martin (1957) 150 Cal.App.2 379 for the proposition that the defense of immunity provided by Gov. Code section 821.6 need not be pleaded as an affirmative defense by a government-employed prosecutor. That is true. But, as discussed below, that immunity is not available to the defendants, and that statute has no applicability to them.
1. Defendants’ Purported “Oaths For the Office of Deputy District Attorney” Do Not Constitute Cognizable or Judicially Noticeable Evidence of Defendants’ Having Ever Lawfully Occupied Such Offices.
Defendants request that the Court take judicial notice of documents filed with their pleadings each bearing the title “OATH,” and identified as being “For the Office of DEPUTY DISTRICT ATTORNEY, SIERRA COUNTY.” The affiant and signatory of each document is one of the defendants herein, and each document bears the signature and identity of the Sierra County Court Executive Officer, Jan Hamilton.
As will be discussed further infra, however. these “Oaths” are not “appointments” to any office whatsoever. Obviously, anyone could take an “Oath” to do and be anything, including a deputy district attorney or a space explorer. So what? Without a lawful appointment there is simply no position obtained. Nothing is stated, no language is contained in these “Oaths pertaining to the nature and scope of the duties and obligations, of either the affiants or the County, vis-a-vis the “Office of Deputy District Attorney.” What is the meaning, the significance of these documents? What powers and what duties were acquired and imposed? What was the agreement? The documents reveal no such thing. The defendants in referring to these “Oaths” appear to be suggesting that they were thereby accorded unfettered prosecutorial powers within this entire County. But no such thing is mentioned in them. The defendants request that the Court interpret the documents and conclude that they constitute an agreement between the County and them which accords them awesome powers, including the power to place people in jail.
The controlling law has been long and well established:A trial court may properly take judicial notice of the records of any court of record of any state of the United States. (Evid.Code, section 452, subd. (d)); Flores v. Arroyo, 56 Cal.2d 492, 496-497 [15 Cal.Rptr. 87, 364 P.2d 263].) But, as is stated in Jefferson, California Evidence Benchbook (1972) Judicial Notice, section 47.3, at page 840: “Caveat: Limitations on judicial notice of court records. What is meant by taking judicial notice of court records? There exists a mistaken notion that this means taking judicial notice of the existence of facts asserted in every document of a court file, including pleadings and affidavits. However, a court cannot take judicial note of hearsay allegations as being true, just because they are part of a court record or file. A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.”
Day v. Sharp (1975) 50 Cal.App.3d 904, 914, 123 Cal.Rptr. 918, emphasis added.
These documents, these “Oaths,” are not orders, findings of fact, conclusions of law, judgments, or any other evidence of a judicial factual determination. This Court may take judicial notice of the documents’ existence under Evidence Code section 452, but may not conclude that the rather strange language they contain is in fact true.
Defendants claim that they “were sworn as Deputy District Attorneys of Sierra County…by Sierra County Court Executive Officer Jan Hamilton….” (See, Defendants’ Request That Court Take Judicial Notice of Defendants’ Status as Deputy District Attorneys and That Government Code section 821.5 Provides Immunity From Suit to Prosecutors, p. 1, lines 27-27, emphasis added; Declaration of Gale Filter in Support of Defendants’ Demurrer to Complaint, p. 1, lines 23-26.) Nothing in the “Oaths” suggests that the Court’s Executive Officer Jan Hamilton conferred the rights, privileges, and obligations of the Office of Deputy District Attorney on any of the defendants, or had any right or power to do so. Defendants’ claim, albeit implied, that Ms. Hamilton had such authority is simply unfounded, is odd. There is simply nothing in the documents to suggest in any fashion that the defendants were appointed deputy district attorneys of Sierra County, by Ms. Hamilton or anyone else.Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (See Middlebrook-Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal.App.3d 1023, 1038, [96 Cal.Rptr. 338].) On a demurrer a court’s function is limited to testing the legal sufficiency of the complaint. (Marina Tenants Assn. v. Deauville Marina Development Co. (1986), 181 Cal.App.3d 122, 127 [226 Cal.Rptr. 321].) “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879 [138 Cal.Rptr. 426].) The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605, [176 Cal.Rrtr. 824].
Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374,228 Cal.Rptr. 878.
2. Defendant Gale Filter’s Declaration Offered to Controvert the Factual Allegations of the Complaint Has Been Inappropriately Presented in Support of Defendants’ Demurrer.
One of the defendants. Gale Filter, has offered his Declaration in support of the demurrer. He swears that the defendants became actual deputy district attorneys in Sierra County. But, again, there is nothing in Filter’s Declaration to suggest that the Defendants were lawfully appointed, pursuant to law, to the office of deputy district attorney.
The same fundamental principles of law governing judicial notice apply to this Declaration. There is nothing about Gale Filter entitling his pronouncements to judicial notice or to be deemed beyond reasonable question by this Court. There is nothing about his pronouncements which permit a demurrer to be transmuted into an adversary proceeding because Filter has under oath claimed something to be true. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605, 176 Cal.Rptr. 824.3. There Exists No Evidence of the Defendants Ever Having Been Appointed to Serve as Deputy District Attorneys in Sierra County.
Government Code sections 24101 and 24102 provide that a county or district officer may appoint deputies to assist in the discharge of his or her office. However, an appointee shall not act as such a deputy until, inter alia, “a written appointment by the deputy’s principal is filed with the county clerk.” “Shall” and “until” plainly mean what they mean.
Not surprisingly, no such written appointments of the defendants were ever filed with the Sierra County Clerk. See Declaration of Mary Jungi, Sierra County Clerk/Recorder and custodian of the Counties official records, filed herewith. The Court may take judicial notice of the contents of this County’s Official Records, as reflected in Ms. Jungie’s Declaration, pursuant to Evidence Code section 452(c)
Conclusion
The Defendants’ demurrer, regrettably, is a legal and factual sham. It should be dealt with accordingly. Defendants are no strangers to misrepresenting fact and law to this Court.
Appropriate sanctions should be imposed.Dated: May ______, 2004
Respectfully submitted,
__________________________
GEORGE R. GILMOUR
Attorney for Plaintiff
SIXTEEN-TO-ONE MINE, INC.
________________________
MICHAEL MILLER
Plaintiff in Propria Personain reply to: CDAA Conduct #2140#2 CDAA Demurrer
CDAA Motion Demurrer
Superior Court of the State of California
County of Sierra
May 28, 2004
Case No. 6293Memorandum of Points and Authorities in support of demurrer of Gale Filter, Denise Mejlszenkier, Anthony Patchett, Kyle Hedum and California District Attorneys Association to Complaint of Michael M. Miller and Original Sixteen to One Mine, Inc.
Introduction
Defendants Gale Filter (“Filter”), Denise Mejszenkier (“Mejlszenkier”), Anthony Patchett (“Patchett”), Kyle Hedum “(Hedum”), and California District Attorney Association (“CDAA”) each demurrer individually, and not jointly with any other party, to the Complaint of Michael M. Miller (“Miller”) and Original Sixteen-to-One Miner Inc. (“Sixteen-to-One”). Filter, Mejszenkier, Patchett and Hedum are and were Deputy District Attorney of Sierra County and entitled to immunity from suit for malicious prosecution and related causes of action pursuant to California government Code § 821.6. That immunity attaches to CDAA by virtue of the doctrine of respondent superior. Also, plaintiff’s Third Cause of Action does not state facts sufficient to constitute a cause of action for interference with prospective business advantage.
Background
On February 13, 2004, Plaintiffs filed a complaint against Defendants, alleging malicious prosecution, intentional infliction of emotional distress and interference with prospective business advantage.
Plaintiffs allege each cause of action on the same underlying course of conduct. Specifically, Plaintiffs allege that Defendants conspired to have felony criminal charges brought against plaintiffs with malice and in the absence of probable cause. Plaintiffs further claim that plaintiffs filed a criminal complaint against Defendants and concealed evidence from the Sierra County Grand Jury resulting in the return of a two-count felony indictment against plaintiffs.
Defendants are Deputy District Attorneys of Sierra County. They are, therefore, entitled to absolute immunity against suit for actions taken within the scope of their employment. California Government Code § 821.6; Falls v. Superior Court (1996) 42 Cal. App. 4th 1031, 1042-1043. Standard
When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, of from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading. Cal. CCP § 430.30(a).
Judicial notice shall be taken of the decisional, constitutional and public statutory law of [California] and of the United states. Cal. Evid. Code § 451(a).
Judicial notice may be taken of the records of any court of this state, to the extent that they are not embraced within Section 451. Cal. Evid. Code § 452(d)(1).
Judicial notice may be taken of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy, to the extent that they are not embraced within Section 451. Cal. Evid. Code § 452(h).
The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter. Cal. Evid. Code § 453.
Argument
1. Defendants have absolute immunity from claims for malicious prosecution and related causes of action.
California statutory law provides immunity for prosecutors, stating: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” Cal. Gov. Code 821.6. The defense of immunity need not be pleaded by an answer, but may be taken advantage of by demurrer. Dawson v. Martin (1957) 150 Cal.App.2d 379, 381-382.
When a quasi-judicial officer, such as a prosecutor, acts within his official capacity he, like a judicial officer, enjoys absolute immunity. This is true even if the acts committed by the prosecutor are alleged to have been done maliciously and corruptly. Falls v superior Court (1996) 42 Cal. App.4th 1031, 1042-1043. An absolute immunity defeats a suit at the outset, so long as the official’s actions were within the scope of the immunity. Id. At 1037. A prosecutor acts within his official capacity, for purposes of absolute immunity, when his conduct is an integral part of the judicial process or intimately associated with judicial phase of criminal process. Id. At 1044.
A. Defendants were public employees
Plaintiffs’ complaint alleges that Filter, Mejlszenkier, Patchett and Hedum filed a criminal complaint against Plaintiffs in the Sierra County Superior Court and presented evidence to the Sierra County Grand Jury. Implicit then, in the Complaint, is the fact that Filter, Mejlszenkier, Patchett and Hedum were Deputy District Attorneys of Sierra County. This fact is evidenced further by the Oaths for the Office of Deputy District Attorney, attached tot eh accompanying Request of Judicial Notice, indicating that Filter, Mejlszenkier, Patchett and Hedum were sworn by the Sierra County Court Executive Officer Jan Hamilton as Sierra County Deputy District Attorneys on August 23, 2002, June 11, 2002, October 28, 2002, and November 27, 2001, respectively. Defendants request that the Court take judicial notice of the Oaths For the Office of Deputy District Attorney pursuant to California Evidence Code §§ 452(d)(1) and 452(h) as the documents comprise records of the Sierra County Court. Defendants’ status as Sierra County Deputy District Attorneys is not reasonably indisputable accuracy. Defendants further request that judicial notice be taken under California Evidence Code § 453 as each party has been given sufficient notice of the request through these pleadings and the Court has been furnished with sufficient information to take judicial notice of the matter.
B. By prosecuting Plaintiffs, Defendants acted within the scope of their employment.
A Prosecutor acts within his official capacity, for purposes of absolute immunity, then his conduct is an integral part of the judicial process or intimately associated with judicial phase of criminal process, Hall at 1044.
Plaintiffs allege each cause of action – malicious prosecution, intentional infliction of emotional distress and interference with prospective business advantage – on the following underlying course of conduct:
1. Defendants “conspired and agreed upon themselves to without probable cause or other reasonable bases have felony criminal charges brought against plaintiffs”. (Complaint for Damages, Page 3, Paragraph 7).
2. Defendants filed a criminal complaint against Plaintiffs in Sierra County (Case No.CR 00632) charging Plaintiffs with violations of Penal Code § 192(b) (involuntary manslaughter) and Labor Code § 6425(a) (willful violation of occupational health or safety standard resulting in death) “in furtherance of said conspiracy.” (Complaint for Damages, Pages 3-4, Paragraph 8)
3. Defendants misled the Sierra County Grand Jury by concealing exculpatory evidence. (Complaint for Damages, Page 4, Paragraph 9).
4. The grand jury returned a two-count felony indictment against plaintiffs, charging them with violations of Penal Code § 192(b) and Labor Code § 6425)(a). (Complaint for Damages, Page 4, Paragraph 9).
5. Defendants acted without probable cause “in initiating the prosecution of plaintiffs in that they did not honestly, reasonably, or in good faith believe plaintiffs to be guilty of the crime (six) charged…” (Complaint for Damages, Pages 4-5, Paragraph 11).
Clearly, making charging decisions, filing complaints and presenting evidence to fact finders are integral parts of the judicial process or intimately associated with the judicial phase of the criminal process. Defendants’ actions, therefore, fall within the immunity created by Evidence Code § 821.6. This is true even in the face of Plaintiffs’ claims of concealment of exculpatory evidence by the defendants, as the alleged acts fall within the scope of employment.
In Randle v. City and Country of San Francisco (1986) 186 Cal.App.3d 446, the plaintiff, whose felony conviction was reversed because of newly discovered exculpatory evidence, brought an action against a prosecutor, a police officer and a municipality based on their suppression of the exculpatory evidence in the criminal trial. In sustaining the trial court’s demurrers without leave to amend as to all causes of action, save for one against the municipality, the appellate court stated that even the alleged act of suppressing evidence, either by the prosecutor or by the police officer, was clearly within the scope of employment of the individual respondents. Id. at 457. The district attorney and the investigating officer were both necessarily involved in handling the evidence in the case, the court stated. Id. That the complaint alleged improper conduct regarding the evidence did not alter the fact that the acts alleged fall within the scope of employment, the court held. Ld.
Turning to the case at bar, the act that forms the basis of Plaintiffs’ case is the alleged suppression of evidence. Handling evidence was clearly within the scope of the employment of Filter, Mejlszenkier, Patchett and Hedum and any alleged mishandling of the evidence also fell within the scope of that employment.
Finally, plaintiffs’ allegations that defendants “conspired and agreed upon themselves to without probable cause or other reasonable bases have felony criminal charges brought against plaintiffs,” also do nothing to overcome Defendants’ immunity.
A malicious prosecution is one begun in malice without probable cause to believe the charge can be sustained, White v. Brinkman (1937) 23 Call.App.2d 307, 313. A complaint for such prosecution is properly confined to a statement of those substantive elements. Id. Averments of conspiracy contribute no substantial increment to the cause pleaded. Id. Pleading such evidentiary averments add nothing material to the statement of the case, and are to be treated as surplusage. Id.
C. CDAA is Also Immune From Prosecution
CDAA is immune from prosecution fro the same reasons defendant prosecutors are.
Under the doctrine of respondent superior, the employer’s liability is wholly derived from the liability of the employee, and the employer cannot be held vicariously liable unless the employee is found responsible. Lathrop v. Healthcare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1423. Because the vicarious liability of the employer is wholly dependent upon or derivative from the liability of the employee, any substantive defense that is available to the employee inures to the benefit of the employer. Id.
Hence, the immunity that shields Filter, Mejlszenkier, Patchett and Hedum similarly shields CDAA.
2. Plaintiffs’ Third Cause of Action Fails to Allege the Elements of Interference with a Prospective Business
The Third Cause of does not state facts sufficient to constitute a cause of action for interference with prospective business advantage. The elements of the tort include (1) the existence of a prospective business relationship containing the probability of future economic rewards for plaintiff; (2) knowledge by defendant of the existence of the relationship; (3) intentional acts by defendant designed to disrupt the relationship; (4) actual causation; and (5) damages to plaintiff proximately caused by defendant’ conduct. (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 122, Cal.Rptr. 745, 537 P.2d 865.) The general wrong inherent in this tort is the unlawful interference with a business opportunity through methods that are not within the privilege of fair competition. (See 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 652, p. 740.)
None of the above listed elements have been plead by Plaintiffs.
Conclusion
Defendants’ demurrer should be sustained as to Plaintiffs’ First, Second and Third Causes of Action because Filter, Mejlszenkier, Patchett and Hedum enjoyed absolute immunity as prosecutors acting within their official capacity and because this immunity attaches to CDAA through the doctrine of respondent superior. Because handling and presenting evidence were within the scope of employment, allegations of concealing exculpatory evidence do not vitiate the privilege.
Further, the demurrer should be sustained on behalf of each defendant as to Plaintiff’s Third Cause of Action for failure to state facts sufficient to constitute a cause of action because Plaintiffs have plead none of the elements necessary to sustain a cause of action for interference with prospective business advantage.
WHEREFORE, Defendants pray for judgment as follows;
1. This demurrer be sustained and plaintiffs take nothing by their complain;
2. For costs of suit incurred herein;
3. For reasonable attorney’s fees: and
4. For such other and further relief as the Court may deem just and proper.Defendants Gale Filter, Denise Mejlszenkier, Anthony Patchett, Kyle Hedum and California District Attorneys Association, in support of their Demurrer to Plaintiffs’ Complaint for Damages, request the Court to take judicial notice of the following:
1. Defendants request that the Court take judicial notice that FILTER MEJLSZENKIER, PATCHETT and HEDUM were sworn as Deputy District Attorneys of Sierra County on August 22, 2002, June 11, 2002, October 28, 2002 and November 27, 2001, respectively, by Sierra County Court Executive Officer Jan Hamilton, under California Evidence Code § 452(h) . The fact of Defendants’ status as Sierra County Deputy District Attorneys is not reasonably subject to dispute and is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Defendants further request that judicial notice be taken under California Evidence Code § 453 as each party has been given sufficient notice of the request and the Court has been furnished with sufficient information to take judicial notice of the matter.
2. Defendants request that judicial notice be taken of the attached signed Oaths For the Office of Deputy District Attorney, administered and maintained by Sierra County Court Executive Officer Jan Hamilton, pursuant to California Evidence Code §§ 452(d)(1) and 452(h). The documents comprise records of the Sierra County Court and the fact of Defendants’ status, as Sierra County Deputy District Attorneys is not reasonably indisputable accuracy. Defendants further request that judicial notice be taken under California Evidence Code § 453 as each party has been given sufficient notice of the request and the Court has been furnished with sufficient information to take judicial notice of the matter.
3. Defendant request that judicial notice be taken of California Government Code § 821.6, which states: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” This request is made under Evidence Code § 451, which provides that judicial notice shall be taken of the decisional, constitutional and public statutory law of [California] and of the United States.in reply to: CDAA Conduct #2139#1 Complaint Filed February 13, 2004.
MICHAEL M. MILLER
Post Office Box 941
Alleghany, California 95910
(530) 287-3223Plaintiff in Propria Persona
GEORGE R. GILMOUR (SBN 62169)
6536 Arlington Boulevard
Richmond, California 94805
(510) 237-2800Attorney for Plaintiff Original Sixteen-
to-One Mine Inc., a California corporationIN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SIERRA
UNLIMITED JURISDICTIONCase No.6293
COMPLAINT FOR DAMAGES
AUTHORITIES IN OPPOSITION
TO DEMURRER OF GALE
FILTER, DENISE MEJLSZENKIER,
ANTHONY PATCHETT, KYLE
HEDUM, and CALIFORNIA
DISTRICT ATTORNEYS
ASSOCIATIONHEARING DATE: 5/28/04
TIME: 2:30 p.m.
DEPT: 1MICHAEL M. MILLER and
ORIGINAL SIXTEEN-TO-ONE
MINE, INC., a California
corporation,
Plaintiffs,vs.
GALE FILTER, DENISE
MEJLSZENKIER, ANTHONY
PATCHETT, KYLE HEDUM,
CALIFORNIA DISTRICT
ATTORNEYS ASSOCIATION,
and DOES 1 through 1621,
inclusive,
Defendants.
__________________________
Plaintiffs allege:
PRELIMINARY ALLEGATIONS
1. Plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC. is, and at all times herein mentioned was, a corporation duly organized and existing within the State of California with its principle place of business located in Sierra County, State of California.
2. Plaintiffs are informed and believe and thereon allege that each of the personally-named defendants are, and at all times mentioned herein were, attorneys at law, licensed to practice in the State of California, employees of defendant CALLIFORNIA DISTRICT ATTORNEYS ASSOCIATION, and residents of Sacramento County, State of California.
3. Plaintiffs are informed and believe and thereon allege that defendant CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION is, and at all times herein mentioned was, a non-profit corporation organized and existing within the State of California with its principle place of business located in Sacramento County, State of California.
4. Plaintiffs are ignorant of the true names and capacities of defendants sued herein as Does 1 through 1621, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities when ascertained. Plaintiffs are informed and believe and thereon allege that each of the fictitiously named defendants is responsible in some manner for the occurrences herein alleged, and that plaintiffs’ damages as herein alleged were proximately caused by such defendants.
5. Plaintiffs are informed and believe and thereon allege that during all times herein mentioned each of the defendants was the agent and representative of each of the remaining defendants, in doing the things herein alleged, was acting within the scope of said agency, and that each of the defendants is thus jointly and severally liable for the damages suffered by plaintiffs.
FIRST CAUSE OF ACTION
6. Plaintiffs refer to and incorporate herein as though fully set forth Paragraphs 1 through 5, inclusive.
7. Plaintiffs are informed and believe and thereon allege that on or about May, 2002, defendants, and each of them, knowingly and willfully conspired and agreed among themselves to without probable cause or other reasonable bases have felony criminal charges brought against plaintiffs in the County of Sierra, State of California.
8. Plaintiffs are informed and believe and thereon allege that pursuant to and in furtherance of said conspiracy on June 12, 2002, defendants caused a complaint to be filed in the County of Sierra, State of California, against plaintiff MICHAEL M. MILLER and one Jonathan Farrell alleging that on November 6, 2000, at and within the County of Sierra, State of California, plaintiffs and said Farrell violated Section 6425(a) of the California Labor Code, to wit: violation of occupational safety or health standard, order, or special order causing death or permanent or prolonged impairment, when acting as an employer and as an employee having direction, management, control or custody of any employment, place of employment, or of any other employee.
9. Plaintiffs are informed and believe and thereon allege that on October 29, 2002, further pursuant to and in furtherance of said conspiracy, defendants, and each of them, wrongfully misled the Sierra County Grand Jury by inter alia concealing exculpatory evidence, to return a two count felony indictment against plaintiffs and said Jonathan Farrell, charging each of them with involuntary manslaughter in violation of Penal Code Section 192(b) and Labor Code Section 6425(a), to wit: that plaintiffs and said Farrell, while acting as the employer and as an employee having direction, management, control and custody of any employment, place of employment, and of another employee, willfully violated an occupational safety or health standard, viz., Title 8, California Code of Regulations Section 7010(e)(9-60), and that that violation caused the death of one Mark Fussell, an employee of plaintiffs.
10. On February 13, 2003, the Superior Court, County of Sierra, dismissed the charges against plaintiffs.
11. Plaintiffs are informed and believe and thereon allege that defendants, and each of them, acted without probable cause in initiating the prosecution of plaintiffs in that they did not honestly, reasonably, or in good faith believe plaintiffs to be guilty of the crime charged because there existed no substantial evidence of plaintiffs’ negligence, inadvertence or other wrongdoing.
12. Plaintiffs are informed and believe and thereon alleged that defendants, and each of them, acted maliciously in instigating the criminal prosecution in that they knew throughout that they lacked any probable cause for doing so.
13. As a proximate result of the criminal prosecution initiated by defendants, plaintiff have been severely damaged.
14. Plaintiff are informed and believe and thereon allege that defendants’ acts were willful, wanton, malicious, and oppressive in that they were undertaken and pursued without any reasonable grounds whatever. These acts therefore justify the awarding of punitive damages.
WHEREFORE, plaintiffs pray judgment against defendants, and each of them, as hereinafter set forth.
SECOND CAUSE OF ACTION
(Intentional Infliction of Emotional Distress)
15. Plaintiffs refer to and incorporate herein by reference Paragraphs 1 through 14, inclusive, as though fully set forth.
16. Plaintiffs are informed and believe and thereon allege that defendants’ conduct was intentional and malicious and done for the purpose of causing plaintiff MICHAEL M. MILLER to suffer humiliation, mental anguish, and emotional and physical distress, and was conducted with a wanton and reckless disregard of the consequences to said plaintiff.
17. As a proximate result of the acts alleged above, plaintiff MICHAEL M. MILLER suffered humiliation, mental anguish, and emotional and physical distress, and has been injured in mind and body as follows: said plaintiff suffered, and continues to suffer, the consequences of the very real threat of having the remainder of his life physically, economically, socially and psychologically destroyed.
18. By reason of the acts alleged above, said plaintiff’s ability to pursue his usual occupation as the chief executive officer of plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC.has been undermined, and he has lost significant income as a consequence.
19. The acts of defendants alleged herein were willful, wanton, malicious, and oppressive, and justify the awarding of punitive damages.
WHEREFORE, plaintiffs pray judgment as hereinafter set forth.THIRD CAUSE OF ACTION
(Intentional Interference with Prospective Advantage)
20. Plaintiffs refer to and incorporate herein by reference Paragraphs 1 through 19, inclusive, as though
fully set forth.
21. Defendants’ actions as herein alleged resulted in a severe undermining of the previously-sterling business reputation of plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC. and rendered said plaintiff’s ability to continue in business nearly non-existent.
22. The aforementioned acts of defendants, and each of them, were willful, oppressive and malicious. Plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC. is therefore entitled to punitive damages.
WHEREFORE, plaintiffs pray judgment as follows:
On the First Cause of Action, to both plaintiffs MICHAEL MILLER and ORIGINAL SIXTEEN-TO-ONE MINE, INC.:
1. For general damages according to proof:
2. For exemplary and punitive damages;
On the Second Cause of Action, to plaintiff MICHAEL MILLER:
1. For general damages according to proof:
2. For exemplary and punitive damages;
On the Third Cause of Action to plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC.:
1. For general damages according to proof:
2. For exemplary and punitive damages;
On all causes of action, to both plaintiffs MICHAEL MILLER and ORIGINAL SIXTEEN-TO-ONE MINE, INC.:
1. For costs of suit herein incurred; and
2. For such other and further relief as the court may deem proper.
February 12, 2004.
__________________________
GEORGE R. GILMOUR
Attorney for Plaintiff
SIXTEEN-TO-ONE MINE, INC.
_________________________
MICHAEL MILLER
Plaintiff in Propria
Personain reply to: Clips from Alleghany #2138Expecting ninety-degree weather today. MSHA inspectors (2) arrived yesterday for the quarterly examination of the mine. Should finish today. An untested fire extinguisher was picked up inadvertently and placed in service, so the mine can expect a citation. The crew is doing maintenance that occurs each year when winter turns into spring. MSHA comes unannounced (the element of surprise) and gets to see a mine operation at work. There will always be some project or some situation that will appear to violate a regulation; however MSHA management has placed a zero tolerance approach to safety on its field inspectors. They have been intimated to make sound judgment decisions for fear of criticism even though four findings must exist in order to write a ticket. Oh, well, it likely will not improve until their insanity is day-lighted.
The print shop left out two pages of the annual report and may not have it ready for mailing until tomorrow. The office crew has the proxy forms ready to go and the envelopes are all addressed.
Air compressor moved up the hill away from the lower shop and near the fuel tank. A great improvement. The 800 level maintenance on the trail to the ballroom should be finished this week.
in reply to: Gold Enters Major Bull Market #2136The overall selling pressure on gold has ended. The month of May will be marked as a reversal month that set up higher prices for the time period leading into May of 2006 where gold prices are expected to then hit 524.
in reply to: Clips from Alleghany #2134Yesterday’s broad signal in the face of the raise remains a mystery. Gold mining mysteries occur more often in a high-grade gold mine than in the large open pit disseminated gold deposits. Maybe the reflective signal bounced off a Tommy knocker. The Sixteen has always been a roller coaster ride for everyone…owners and miners especially. Reminds Scoop of a song, “Dark as a dungeon
Damp as the dew.
Danger is plentiful.
Pleasures are few.
Where the rain never falls…and the sun never shines….it’s dark as a Dungeon way down in the mine.”Scoop unlatched the lock at the portal after the crew left and personally examined the heading. Every indicator identified by geologists Ferguson, Gannett, Cooke and Wittkopp as favorable for gold are visible in the vein, muck and wall rock. Reid and Jay will put in another round today and tomorrow and after that until the mining phrase ‘deep enough’ is invoked and they move on the greener pastures. So it goes in the pursuit of Mister Pocket at the Sixteen to One mine.
The annual report is off to the printers today. Mailing was set back because of a delay in getting the NOBO (non objecting beneficial owner) list from the proxy company in New York. NOBO’s receive a report, as do those shareholders who hold title in their own name. Another type of shareholder is the OBO (objecting beneficial owner). These shareholders remain anonymous and do not receive a report from the company. The proxy company votes their shares. SOR’s (shareholders of record) have the most direct link to the Company.
in reply to: Clips from Alleghany #2133YES!!!!!!!!!!!! Go for it guys—-Could be one hell of a celebratory annual meeting! Everyone keep your fingers crossed and say your prayers!
in reply to: Clips from Alleghany #2132The kitchen crew identified a two-foot wide signal at the face with no visible gold showing yesterday. These are very positive indicators of a significant concentration of gold. Whether this is an isolated cluster or the beginning of an encounter with Mr. Pocket remains to be seen. This signal excites the crew and is one reason everyone shows up for work. You followers of the mine deserve to share the anticipation with the crew in Alleghany. We will know the answer late today or tomorrow. Maybe , just maybe ……
in reply to: CDAA Conduct #2131First of all congratulations to Mike for trusting his instincts/feelings for smelling the rat in the first place – because now it looks as if the rats are scurrying for their holes. I am looking forward to the annual meeting and an update on the latest and greatest news concerning yet another battle of the little putting one over on the big guy.
in reply to: CDAA Conduct #2130The recent article that appeared in the Mountain Messenger, also on this web-site where I first read it, addressed the current statis of the civil suit brought against the CDAA by the Original 16 to 1 Mine, for damages incurred while the CDAA fraud tried to persist.
While most recent discussions on this forum have centered around Fed-monetary-policy, (extremely valid discussion, one I’m intrigued by and learn from all related site-citations), there is an absence of perspective from the regulars here….so I implore you all to chime in, after me, since I’m the first to bite it off, and get the juices flowing.
I think the CDAA bit off more than they thought they could chew, knowing they were immune; which turned out to be thinking they were immune from civil action. This has never been tested in court, and will be, since never before has a vigilante “legal” force maskerading as an appointed-body-representing-jurisdiction been taken to task, challenging a stated body of law and court records with lies and deceit, which the CDAA has been exposed for doing.
And now, there needs to be accountability.
Lawyers are valuable when the cause is just. In this case the cause was fraud, politically motivated fraud, a vigilante wild-cat attempt to dismantle and re-define a shut-case. Now we must have accountability, or there’s no stopping the lynch-mob.
I hope you all chime in.
in reply to: Miscellaneous #2129I wonder if we’re getting too far off-topic, though the role of gold in the world is important to mining companies!
Yes, it is assumed the Fed is anti-gold. If there was a gold standard, the Fed would not be able to tinker with the money supply at-will. This tinkering includes creating the oxymoron of “desirable inflation” (which picks the pockets of people with savings in the bank and rewards borrowers, including the government, by cheapening the value of what they owe) and causing a housing bubble due to unntural interest rates.
in reply to: Clips from Alleghany #2128Reid’s heading continues to kick out pieces of quartz with gold. He will break through his second raise in one more round into the 1100-foot level. He plans to fall back and wing to the left below the pay shoot next week. Mark Loving, the former mine foreman when Ian Haley was superintendent, returned. He has installed some steel sets on the 800- foot level near the Ballroom trail. Mark set a Company record for footage , when he advanced a raise 22 feet during one shift. He is March in the 1992 photo essay, if any of you have one.
Ian and Joe are in the middle of relocating the air compressor and fuel tanks near the portal. Trucking diesel everyday got to be a chore. Andy and Charlie are doing maintenance but got a couple of slab rounds in on MD signals. These guys really could use a pocket about now. They deserve it. Are you helping with the miners prayer?
The office crew seems to be especially busy. It is always demanding during the days before the annual shareholder meeting (June 26 in Alleghany). Mike went to the Brown Bear the beginning of the week. He relieved the caretaker for “indiscretions” and authorized Jack to assume caretaker duties. Real estate prices have sharply risen from two years ago.
Did you see the newspaper article about the CDAA lawyer looking for an out? It’s on the web site. Scoop thinks that CDAA lawyers will pay the price for breaking the law. Scoop will be at the hearing on May 28, 2004, in Downieville. Maybe the LA Times will cover the lawsuit since they gave front-page space to the criminal proceedings.
It is raining in Alleghany. That is good news, so let’s end on that note.
in reply to: Miscellaneous #2127Is it a commonly shared belief that the Fed Reserve is anti gold? The Feds could not compete with the forward selling gold producers. Who can compete with any one who sells what he doesn’t make? Control the spread. The federalists gave up a lot of gold before decriminalizing its ownership by U.S. citizens. That act of Congress began the last rush in 1975 and continues into the 21st century. Oil producers collected gold for the first time. The Persian Empire understands its place in civilizational terms. The world’s civilizations have understood as well. Gold ‘s influences are physical and anti physical.
Greenspan as an anti gold is a well played libel. Equally important evidence says he’s a hard currency operator. OR the results of the interest rates he influences are not understood by anti gold advocates. Maybe the feds want to be buyers not sellers. Maybe the feds want you and me to become owners of gold. If it is defined that to be anti gold means you want to depress the price,does it mean that to be pro gold you want the price to go up? What ever you decide it is a conversion of paper currency and one ounce of gold.
in reply to: Miscellaneous #2125If you like Kitco.com, I can also highly recommend http://www.321gold.com. http://www.gold-eagle.com is worth a look too, if you don’t get dizzy from all the banner ads.
Neither site is “pump and dump”, but they’re definitely pro-gold and anti-Greenspan. They make their money through selling metals (Kitco) and voluntary contributions (321gold).
When you read or listen to anybody, think about what their perspective on the world is and whose pocket they’re trying to get their hand into. (soapbox advice)
in reply to: Miscellaneous #2124A GOLD investment or gold positions are not the same. One reflects an insurance policy against an unwanted disaster. The other is an opportunity to make money. Gold reflects many economic scenarios, including inflation that Grandich points out in his article. I disagree with him regarding the “sole-most potent impact to currency” (inflation). It is supply and demand not inflation. Inflation is a symptom not the primary core.
Grandich writes, “Mining and exploration shares are all about the price of the underlying metals”. He is partially correct but wrong in saying they are all about the price of the metals. Mining and exploration shares are all about the present and realistic future value of the corporation.
Thanks for introducing me to Kitco. Is it a worthwhile forum, like this one, or just another pump-and-dump amusement campground?
in reply to: Miscellaneous #2123I knew you would click on this “Topic” on the “Forum” with the subject being “Special Alert.” It is also the title of an article by Peter Grandich, a contributing writer for Kitco.com . The article is worth the read. Copy and paste this into your “address bar” to read the article http://www.kitco.com/ind/Grandich/may072004.html or go to http://www.kitco.com and click on “Special Alert” under “Kitco Contributed Commentaries.”
in reply to: Clips from Alleghany #2122There is some really strong glue that holds the Sixteen To One together. It must have also been true years ago, say after WWII, when political decisions destroyed the gold mining industry in the United States, maybe even in the world. Why? Anyone who has seen felt and pondered about the gold veins running through this rich high-grade district are affected in some way. It could be the excitement of day lighting the gold, displaying it to humanity or it could be from knowing how important an asset it is during extreme periods. The glue can be ones recognition of just how great these groups of owners past and present reflect the American virtues. There are many and today this band perseveres, for reasons as personal as in the past. They are also growing in number.
As a reporter, Scoop is expected to dig into the subject and report what is found no matter with out opinions. Beliefs belong in reporting but place an extra intellectual demand upon those listening. Scoop likes this simple arrangement but occasionally editorializes. The strong glue of OAU includes those of you who stick with this venue of communication, the Internet. But you are on the edge, unless you mine or own share of OAU.
The shareholder meeting this year will again place the future before the owners (June 26). Scoop only offers a chronology of events in Alleghany not futuristic predictions or directions. So much goes on every shift with the company that a forward analysis is best presented to the owners before they appear on the Internet.
The gold of the Sixteen to One qualifies as one of the glues. The mineral deposit will not likely change. Gold binds this company like no other. The gold alone may not be adequate to hold the corporation together. Another glue is all the people who associate with the company. Without the ones I see and interview regularly and you other guys and gals, this California gold epic would come to a close, again.
In 1965, Original Sixteen To One Mine, Inc was the last underground operator in the West. The Sixteen to One mine, which it owned was left to flood. It was the end of 100 years of hard rock mining. These owners held out for politics to leave gold to free itself from uneconomical control. It was the glue of the owners to protect their asset. It worked and rewards again flowed into their hands.
Today water continues to threaten the mine. It always will and then becomes no longer a threat but a necessity to address. Today the political climate also threatens the mine. It ebbs and flows. It always has and always will. Physically the Alleghany Mining District mines are set. People are the greatest current influence in just what the area will look like in the future.
Rick and Jeremy attacked the ore piles on the landing today. They recovered 35 pieces of gold and quartz and 65 blasting caps. They work again tomorrow. Ian spread the piles. It is a two-day operation whose objective is to get quality slab material for the jewelry manufactures. Reid holed through the “kitchen raise’ yesterday and dropped down to follow the gold signals. Charlie explored with the company’s new gold detector, which arrived yesterday. Joe has been covering the surface demands as well as donating his time along with Jay and Mike to remove iron from the streets of Alleghany. They plan a car auction with the proceeds going to a summer feast and musical program. David has sawed up some remarkable stones and completed a record April gold sales. Rae opened the museum with a May 5 visit from a Grass Valley high school class. She and some volunteers performed wonders the past ten days with the museum and the drill collection.
The unexpected sight today was Dan O’Neill on top of the ore pile with a pick and metal detector in his hands. He scored two pieces of high-grade on his first effort.
in reply to: Clips from Alleghany #2121Rehabilitation of the 49 winze continued this week. Production was minimal, but the targets still look promising.
Mike is busy getting things lined up for the Empire Mine Adit Project.
Rae is still trying to make time to get the museum presentable for the season.
Cool nights and warm days in Alleghany. A burn pile near Downieville got out of control on Monday, if we don’t get more rain it could be an early fire season.in reply to: Clips from Alleghany #2120The Board of Directors met on Friday. After an underground inspection of the mine, the members moved to the Rainbow mine to conclude the meeting. The shareholders list will be closed on May 1, 2004, for qualification to vote at the upcoming shareholder meeting on June 26.
Both headings produced gold towards the end of the week. The signal above the Ballroom production was about $10,000. Unfortunately it is not the type of gold suitable for slabbing and will be crushed and poured into bars. The “Kitchen” heading is another story. After just two rounds the lead miner, Reid Miller, found high-grade in the muck. The crew became very excited because this is a large area within a favorable history of gold concentration. Who knows, that is the Sixteen To One! Who knows?
The office is compiling a master list of companies, which should have an interest in the doings of the California’s last hard rock mining operation. The consensus is that not enough people are aware of the opportunity for making money via the corporation, its assets and its associates. Too few people and even fewer understand how to interpret the solid facts surrounding the Alleghany Mining District and the die-hards who continue to believe in its future.
Life looks pretty good around the Company. Everyone is more upbeat than Scoop can remember. Round in…round out. The gold is not gone. You just have to find it and you will not find it by wishing.
in reply to: Clips from Alleghany #2119Dead work or maintenance, whatever you call it, there comes a time when it preempts looking for gold. The ‘49’ winze is the main artery of the mine. It was an old raise that was extended and improved in 1984-85-86 by our lessee, Kanaka Creek Joint Venture. It provides the miners with a primary exit, hoisting capabilities to the lower levels and utility services for air, electricity and water. While it is regularly checked and repaired, it became necessary to hit it harder with some new timber, rock bolts and steel sets. Part of the crew will dedicate two weeks towards this effort.
The kitchen raise crew is drilling six-foot rounds. If rock does not break, do not expect to find gold. The other production crew is slushing what they thought was a drift above the fishpond. It turns out to be an old timer’s raise. Confidence remains high that both crews are working in an area with great prospects.
in reply to: Clips from Alleghany #2118Much needed rain fell last night. No snow on the ground. Temperature is about 42 degrees. One more day of preparation in the “kitchen raise”. Utilities are completed and a powerful slusher is installed. Crew will drill first round today or tomorrow. The “no-dog-raise” is set to go. Its crew moved to and drilled a signal above the fish pond on the trail to the ballroom yesterday. They will drill again today but not on Friday (we do not leave shot rock with gold over a week end). We do not expect much here but the jewelers need slab, and we aim to please them.
Mike is working out a new agreement with PG&E. March bill was over $7,000, mostly from pumping. It is costing us to keep the lower levels from flooding; however the rational supports the decision. Besides the equipment that would be damaged, there are some very good areas of known ore. It is too costly to go after them now.
Rae has taken time this week to whip the museum into shape for its opening in May.
in reply to: Miscellaneous #2117Thank you for the answer Michael. I watch the entire metals and mining industry and the long-term bull market is back! Now when the Dow goes down a few thousand more and gold goes up a few hundred more, Origsix will be getting alot of attention!
in reply to: Miscellaneous #2116Try going to a chat room where entries are kept chronologically. If the Forum grew to 100 or more topics, the task of reading them or participating in a topic is like having a library without an index file. A decision was made to keep about 20 topics active, which is what we are doing. If no one adds to a topic, like the miners prayers, it may go into the misc. file. That great entry went into Discovery not misc., which will be renamed Reflections and Directions. Maybe the new combination will trigger someone to add ideas related to the subject matter of that file. I believe in the powers of positive thinking and was reluctant to move that entry. We do our best to keep a sense of balance within the entries. Actually the misc. is an interesting file to reread. The Forum had 30 topics. It looked like more would be coming in. Something had to be done. I had some time between 11am and 2pm today, so jumped in to rearrange the entries. Maybe there is a better way to subdivide. You will find very few Forums where a new reader can easily access old entries. We are always open to constructive criticism. Please remember the stated intent of the Forum. Glad you care enough to write.
in reply to: Miscellaneous #2115Why do multiple topics, each with their own name, keep ending-up under “Miscellaneous”? The topics are then less easy to see and even harder to follow. I don’t agree with someone else deciding what is important and what’s not…
in reply to: Water and Arsenic: which came first? #2114As usual, Lynwood’s words make important impact. (I could pontificate over theories of marketing strategies that sell someone’s water to someone else, and visa versa, based on health issues and other parameteres, most likely BS angles to make people buy stuff, but in this case I won’t.)
I told the CaRWQCB in my prescibed one-minute chance to “Dip one of your own mugs into the river in Sacramento, at the former Curtis Rail Yard, and drink, before you challenge the 1621 to comply within the very constraints your own political body doesn’t dare adhere to” (I paraphrase, but the actual transcript of my testimony is available though access of the hearing, commented on below in a previous Forum entry.) Of course, it did nothing but make them tired.
Lynwood, I agree. In a true free/law-abiding society, there would be no pressure to change the natural ambiant levels of any indiginous mineral concentration in a water-course and therefore a water supply, unless its been mandated by the CRWQB, which in this case is the reason.
(I know you know this, but I repeat it here for new readers.)
But actually, there may be a positive, a heretofore unforeseen potential: the Original Sixteen to One Mine may become a model for new technological advances in altering nature’s course, (the new installation a result of the court ruling mandating compliance of arsenic levels leaving the mine to be under natural levels)… (of course with absolutely no detectable trace impact downstream, but politics didn’t care about that…)
Next thing you know, everyone’s teeth’ll be falling out, because we’re more powerful than our creator.
Isn’t that what they told us?
in reply to: Miscellaneous #2113I just wanted to let you know that my grampa was a miner at the 16 to 1. My Dad was born in Forest, and grew up in Alleghany.
Pardon my idiocy, I’m just amazed, with all the time I’ve spent on the net, this is the first time I’ve been here.
Kudos, to whomever runs the site. Is it you Bud? Can you even get internet in Alleghany?
in reply to: Water and Arsenic: which came first? #2112The following article was published in an obscure magazine, World Wide Drilling Resource in April, 2004.
Hard Water ‘Stops Heart Attacks’
Story from BBC NewsDrinking hard water may protect against heart disease, researchers have claimed.
Researchers from the Geographical Survey of Finland looked at 19,000 men who had suffered heart attacks.
They found for every unit increase in water hardness, there was a 1% decrease in the risk of having a further attack.
Writing in the journal of Epidemiology and Community Health, the researchers said the findings explained regional variations in heart attack rates.
They said the differences of up to 40% between areas could not be explained solely by lifestyle or genetic factors.
Mineral levels
The team looked at men aged between 35 and 74, who had had an initial heart attack in the years 1983, 1988, and 1993. They also examined national geological survey data on water hardness and trace elements, divided up into 10 by 10 kilometer grids.
Professor Jeremy Pearson, British Heart Foundation said, “It is not implausible that water hardness might affect disease rates.”
Hard water is any water, which contains an appreciable quantity of dissolved minerals. The researchers looked at measurement levels of calcium, magnesium, fluoride, iron, copper, zinc, nitrate and aluminum from almost 12500 groundwater samples.
They suggest higher fluoride levels were protective, with every one milligram of fluoride per liter of household drinking water was associated with a 3% decrease in the risk of a heart attack.
But for every microgram of iron per liter, risk increased by an average of 4%, and for every microgram of copper per liter of water, it increased by 10%.
Writing in the Journal of epidemiology and Community Health, the researchers, led by Dr. Anne Kousa, said, “The large geographical variations and changes in the incidence of heart attacks in Finland cannot be explained by individual lifestyle or genetic factors alone. Environmental exposures must also contribute to the development of the disease.”
Small effect
Professor Jeremy Pearson, Associate Medical Director at the British Heart Foundation, told BBC News Online: “There have been several studies going back more than 35 years examining the relationship between incidence of coronary heart disease and hardness of local water supplies, with inconsistent results.
“It is not implausible that water hardness might affect disease rates, since it relates to the levels of trace elements that may be important for nutrition. However, the contribution of drinking water to the total intake of these elements is usually low.”
He added: “This study concludes that the incidence of acute myocardial infarction is significantly lower in areas of the country where water is harder.
“However, it is clear that any effect that there might be is small by comparison with the well-known major risk factors, such as poor diet, physical inactivity, smoking and high alcohol intake.” END OF ARTICLEI wonder if the sellers of bottle water are behind the misinformation about drinking water that puts fear in the minds of the mindless. Scoop reports that the mine will eliminate the low levels of dissolved arsenic (an important naturally occurring element on earth) from Kanaka Creek? The fish, plants, and insects in that drainage are as healthy as any in the California mountains. I bet the Rockies too. I say…don’t do it. Leave it alone. How can this BS be stopped? About the miners’ prayers for the old miners and their women, I like it.
in reply to: Clips from Alleghany #2111The week ended on a positive note for all the Sixteen to One crew. Andy and Charlie slushed recently shot- rock and some rock probably mined fifty years ago as they set up their heading for next week: raising. Andy found a soft ball size chunk of quartz and gold that weighed 38 ounces (15 oz fine au. Estimate). The rest of the crew installed two slushers. Joe and Reid will also begin a raise next week. Two raises running in a hot large block of quartz makes everyone‘s outlook positive.
The Paradise Gem and Mineral Society is having its 50th annual event this weekend at the Veterans Memorial Hall. David and Rae are taking some of the company’s specimens to display. They also will have a booth, selling jewelry, slab and small specimens. Oh, they also have T-shirts and hats. David hopes to net enough to buy a new four-wheel polisher (about $2,000). Stop by. Paradise is east of Chico. There are many enthusiasts living in the area, so the show should have a wide selection of minerals.
Director Emeritus Dick Sorlien stopped by for a visit. Dick lives in Philadelphia and has the Alaska Mine a few miles down the ridge from Alleghany. He will be 82 in June, still plays tennis and recently had eye treatment to eliminate the need for glasses, which he has worn since childhood. Dick played a key role in the growth of the company while he served as a director and was awarded a gold plated hard hat when he retired. In Australia a gold plated hard hat represents a very high honor of service in the mining industry.
Bill Walker (water guru) and Rae installed a new facet to the unit that cuts the arsenic out of the drainage water. It is another “secret” process the company has perfected over the years to handle its water discharge for 2005.
Mike and Rae reviewed the cash flow and bills. They wrote over $5,000for property taxes due April 12, $8,750 to PG&E as well as maintained the beginning of the month regular payments. The money is mostly from slab sales, but David has been busy filling requests for specimens and cabochons. Still mining after 108 years!
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in reply to: Stock exchange listing #2108I’m considering buying some stock, but wanted your views on some investment-related questions. What is the current market capitalization of the Company, based on recent trades (say, 80 cents/share)? Do you have per-share earnings forecasts, and what are they? If you don’t have specific forecasts, what kind of gold production would be needed to produce, say, 50 cents/share earnings for a year, and when were the last two or three years in which such production occurred?
Thank you.
in reply to: Miscellaneous #2107I mentioned Origsix to another goldbug friend. He showed me that there’s an Australian Mine that is also selling gold-in-quartz specimens. They claim to have extensive distribution in the US jewelry market. I wonder if we can learn from them?
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