RIGHT TO PETITION LAWSUIT DISMISSED BY FEDERAL COURT
June 28, 2004
Don Bird is one of those Americans who isn't afraid to stand up for his rights and is willing to fight to keep them. In November 2001, Don filed a Writ of Mandamus in U.S. District Court in Sacramento against Gray Davis, former Governor of California and Bill Lockyer, current Attorney General of California. The purpose of this Writ was singular in its purpose: "To demand the respondents obey the oath (of office) and acknowledge the fact and exact true wording of the Second Amendment."
A Writ of Mandamus is an order issued by a court of superior jurisdiction commanding performance of a particular act by an inferior court or public official; a court order that directs a public official to do his or her duty.
The District Court denied Don's Writ, so he appealed to the 9th Circuit Court, who issued a "No decision." In March 2003, Don filed a 24-page Petition for Writ of Certiorari to the Supreme Court which was not heard.
Frustrated, but determined to fight, Don filed a Complaint for Damages for Civil Rights Violation on October 27, 2003. This lawsuit was filed in U.S. District Court, Eastern District of California, Case no. CIV. S-03-2227 GEB KJM-PS, Don Bird v Honorable Judge Stephen Reinhardt, Honorable Judge Pamela Ann Rymer and Honorable Judge Barry G. Silverman. These three judges sit for the 9th Circuit.
Upon hearing about Don's case at a recent dinner where I spoke, I asked Don to send me the documents for this current federal case. On page one of his complaint, it reads, "The Right of the people to petition the government for redress of grievances, the Defendants have failed to support this phrase in the First Amendment."
The Defendants moved to dismiss the case. Don filed an opposition to their motion on January 7, 2004. In that opposition motion, page 4, Don states, "By placing the First Amendment Right to Petition issue squarely before the Judiciary, this lawsuit clearly and unambiguously presents the most fundamental legal question: Is the U.S. Government a servant government, limited by a written Constitution, or is it free to ignore the Constitution and do whatever it wants to do?"
Moving on to page 5 of the same document, Don states, "This is a 'first impression' lawsuit - the courts have not ruled on the meaning of this 'forgotten' right - the Right to Petition the government for a Redress of Grievances. In short, this lawsuit does not require the court to address two hundred years of twisted, contorted legal precedent. A "new" matter before the court, the Judiciary will be called upon to interpret the original intent of the framers of the Constitution and consider the historical application, and the means of securing and exercising this Right."
On March 22, 2004, United States Magistrate Kimberly J. Mueller issued a Findings and Recommendations in this case by stating, "In this action, plaintiff complains about actions taken by the named defendants in ruling on an appeal to the Ninth Circuit. The Supreme Court has held that judges acting within the course and scope of their judicial duties are absolutely immune from liability for damages and that the plaintiff presents no cognizable claim that can overcome the bar of judicial immunity. The action therefore should be dismissed without leave to amend. The Magistrate then orders that Defendant's December 22, 2003 motion to be dismiss be granted and the action dismissed."
In May 2003, I had the opportunity to sit down with Gerry Vans, Assistant Clerk of the House of Representatives at the nation's capitol in Washington, DC. Vans was very generous with his time while I questioned him about the petition process. I explained to him that members of Congress had received many petitions on certain questions, but had refused to respond. Vans gave me a hard copy of the Rules of the House of Representatives and explained that every citizen had the absolute right to petition Congress for redress of grievance, but Congress was neither morally nor legally obligated to respond.
According to Vans, members of Congress do respond to petitions from citizens or groups and bring them forward through their system and that it's a fairly common process. My immediate thought was how highly selective members of Congress must be in determining which petitions they will accept and present to the appropriate committee. Translated this means which special interest group will bring them the most money for their re-election campaign coffers or rejecting any petition that threatens their power.
Petitioning other elected officials
In Don's case, his original legal action was against state officials: a Governor and Attorney General via a Writ of Mandamus. On page 4 of the October 27, 2003 civil rights complaint, Don asserts: "The Defendants are accused of a "Tort" which when it becomes evident is a violation of the Plaintiff's private rights. This case will be presented as a Constitutional First Amendment issue." I believe there was a problem with Don claiming a tort action in that filing because the required procedure doesn't appear to have been followed.
This October 27, 2003 lawsuit (CIV S-03-227 GFB-KJM PS), claims a violation of a civil right under the First Amendment: Because these three judges from the 9th Circuit Court issued a "No decision" regarding his Writ, Don's claim is that they violated one of his civil rights, in this case, the First Amendment right to petition for redress of grievance.
In his January 7, 2004 filing, Plaintiff's Motion to deny the Defendants Motion to dismiss the Plaintiff's Complaint or Grant a Summary Judgment, Don states, "Of the three branches of the federal government, the most important, in terms of preserving liberty, is the federal judiciary. It was designed to be the ultimate bulwark against injustice. The final resolutions of all controversies in law and government in America, no matter how small, are eventually determined by judges. Judges are duty bound to enforce the limitations on lawmaking power to make law, but can strike down unconstitutional legislation and edicts of the executive branch."
While I admire Don for standing up for his rights and am solidly on his side regarding the Second Amendment and our individual right to own and carry, I believe I understand why his "first impression right to petition the government for redress" lawsuit was dismissed by the court. I contacted Don and respectfully gave him my reasons why the court dismissed his right to petition lawsuit.
The first question you have to ask: Was Don Bird's First Amendment right to petition government for redress of grievance denied him? In Don's original Writ against Davis and Lockyer, he was asking the court to force the Governor and Attorney General for the State of California to "Obey the oath (of office) and acknowledge the fact and exact true wording of the Second Amendment."
Was this Writ of Mandamus a true form of a 'petition for the right to redress a grievance'? I say no, and even if one could somehow connect them, the Writ did not deny Don the opportunity to petition Davis or Lockyer, which he has never done.
After being denied the Writ, Don goes on to the 9th Circuit. In that appeal, the court wasn't being asked to challenge any law set down by the executive or legislative branch at either the state or federal level. Nor was the court being asked to strike down "...unconstitutional legislation and edicts of the executive branch." There was no petition process here in my opinion. So we're back to the original question: Was Don's First Amendment right to petition denied? In my humble opinion, the answer is no. Don's right to petition for redress of grievance has not been denied or impeded, therefore, his right is held intact and that's why the court dismissed his lawsuit.
Is there any remedy to get answers?
I believe an individual can use a relatively simple and straightforward court procedure which would probably costs less than $300 to file at both the state and federal level. Instead of waiting years to get into court, turn around time is fairly quick. This procedure is known as an Order to Show Cause and defined as: A court order requiring a person to appear in person at a time set by the court for a hearing; court order requiring to appear and show cause why the court should not take a particular course of action. If the party fails to appear or to give sufficient reasons why the court should take no action, the court will take the action.
In Don Bird's case, he could use this procedure or he could write a letter to John Ashcroft and ask him the following question: In your qualified opinion, under the Second Amendment, does an individual citizen of the 50 sovereign states of the Union have the absolute, God-given right to own and carry a firearm? I predict he would get back a similar response to the one Ashcroft provided the NRA in 2001 which reads: "[L]et me state unequivocally....the Second Amendment clearly protect(s) the right of individuals to keep and bear firearms." The 9th Circuit says the opposite, so there is a real problem here.
At some point if the State of California decides to trample on that right, Don can show law enforcement Ashcroft's qualified legal opinion as top law enforcer in this country that Don does have the right to own and bear arms. Then the legal dance would begin to determine: Can a state deny any individual a God-given right as enumerated in the Bill of Rights - specifically the right to own and carry firearms - as so affirmed by the Attorney General of these united States of America?
How about others seeking answers to questions, i.e. John Q. Public writes a letter to the Commissioner of the IRS asking him four questions and sends the same letter once a month for six months, but gets no answer. John Smith sends a letter to the head of the California Franchise Tax Board asking him four questions and sends the same letter once a month for six months, but gets no answer.
In these two cases, each can file an Order to Show Cause, Public at the federal level, Smith at the state level. They would ask the court to compel either the person the letter was written to, or a qualified representative to appear in court and tell the Judge or Magistrate why they refuse to answer the questions. You show the court your six months worth of letters and explain to the judge that you're only attempting to get clarification on some legal questions, but so and so refuses to respond and that's why you have filed an Order to Show Cause.
The magistrate or judge would then ask the IRS representative (or the FTB for California), if there is any legitimate reason why they refuse to respond to polite, serious questions? It's obvious Mr. Public has sincerely attempted for an extended period of time to solicit a response and yet, you continue to ignore him? The judge can then compel the IRS or FTB representative to answer the questions. The judge could also decide that these elected public servants don't have to answer serious legal questions and dismiss your request. By using this relatively simple and inexpensive court filing, an individual can test the "mood" of the court. One would then plan their next move depending on the outcome of the Order to Show Cause hearing.
As for Don Bird, he will not appeal his last lawsuit, but has filed another suit against Magistrate Kimberly J. Mueller for dismissing his suit against the three 9th Circuit Court judges on the grounds she denied him the right to a jury trial and violated his First Amendment right to petition the government for redress of grievance. His next court date is July 8, 2004.
© 2004 Devvy Kidd - All Rights Reserved
E-Mails are used strictly for NWVs alerts, not for sale
Devvy Kidd authored the booklets, Why A Bankrupt America and Blind Loyalty, which sold close to 2,000,000 copies. Has been a guest more than 1600 times on radio shows, ran for Congress twice and is a highly sought after public speaker. Devvy is a contributing writer for www.NewsWithViews.com Devvy's web site is: www.devvy.com; is sponsored by El Dorado Gold; e-mail is: email@example.com