Case 3:13-cv-01944-CAB-BLM Document 22-1 Filed 11/14/13 Page 1 of 7

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KAMALA D. HARRIS Attorney General of California RICHARD F. WOLFE Supervising Deputy Attorney General State Bar No. 85346 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2482 Fax: (619) 645-2012 E-mail: Richard.Wolfe@doj.ca.gov Attorneys for Defendants Commission on Judicial Performance, Lawrence J. Simi, and Brad Battson IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

CALIFORNIA COALITION FOR FAMILIES AND CHILDREN., a Delaware Corporation, LEXEVIA, PC, a California Professional Corporation, and COLBERN C. STUART, an individual, v.

13-cv-1944-CAB (BLM)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS BY DEFENDANTS COMMISSION ON JUDICIAL PERFORMANCE, Plaintiffs, SIMI, AND BATTSON Date: Time: Courtroom: Judge:

December 19, 2013 3:30 p.m. 4C SAN DIEGO COUNTY BAR Hon. Cathy Ann ASSOCIATION, et al., Bencivengo Trial Date: None Defendants. Action Filed: August 20, 2013

Defendants Commission on Judicial Performance, Lawrence J. Simi, and Brad Battson (erroneously named as Batson) respectfully submit this Memorandum of Points and Authorities in Support of Motion to Dismiss. /// ///
1 Mem. P. & A. in Support of Mot. to Dismiss by Defs. Commission on Judicial Performance, Simi, and Battson (13-cv-1944-CAB-BLM)

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INTRODUCTION Plaintiffs sue judges, social workers, attorneys, and psychologists involved in family court proceedings in San Diego Superior Court. Plaintiffs also sue other persons and entities such as the moving Defendants: 1) the California Commission on Judicial Performance (Commission), 2) former Commission Chairperson Lawrence J. Simi, and 3) Commission attorney Brad Battson. Plaintiffs claims against the moving Defendants are based on the Commissions alleged response to complaints allegedly filed against several judges. Plaintiffs assert claims for damages and injunctive relief, primarily under federal civil rights and RICO statutes.1 MOTION TO DISMISS This motion is brought under FED. R. CIV. P 12(b)(6) on the ground the Commission, Simi, and Battson have sovereign immunity under Eleventh Amendment immunity. In the Ninth Circuit, Eleventh Amendment immunity is properly raised by Motion to Dismiss under Rule 12(b)(6). Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1133 (9th Cir. 2012) (our precedent dictates that we resolve an Eleventh Amendment immunity claim before reaching the merits), and Thomas v. Nakatani, 309 F.3d 1203, 1205 (9th Cir. 2002) (motion to dismiss on sovereign immunity grounds). The moving Defendants also have absolute constitutional immunity under CAL. CONST. ART. VI, 18(H) for all state law claims. DISCUSSION SOVEREIGN IMMUNITY UNDER THE ELEVENTH AMENDMENT Commission on Judicial Performance The sovereign immunity of the States includes the Eleventh Amendments immunity from suit in Federal court. It appears the Commission, Simi, and/or Battson are named in Counts 1, 2, 12, 13, 14, 15, and 21, and Racketeering Claims 3 through 13.
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The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. CONST. AMEND XI. Sovereign immunity applies even though a plaintiff is a citizen of California. Although the text of the Amendment refers only to suits against a State by citizens of another State, we have repeatedly held that an unconsenting State also is immune from suits by its own citizens. Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 446 (2004). Sovereign immunity applies even though a plaintiff seeks to invoke the Courts supplemental jurisdiction to entertain State law claims. [W]e hold that [28 U.S.C.] 1367(a)s grant of jurisdiction does not extend to claims against nonconsenting state defendants. Raynor v. Regents of the University of Minnesota, 534 U.S. 533, 542 (2002). See also Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 120 (1984) (decided before enactment of 28 U.S.C. 1367, that neither pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment), and Stanley v. Trustees of Cal. State Univ., 433 F.3d 1129, 1133-1134 (2006) (Thus, we hold that 28 U.S.C. 1367 does not abrogate state sovereign immunity for supplemental State law claims.). Sovereign immunity also bars claims for declaratory and injunctive relief. Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it, however, a State cannot be sued directly in its own name regardless of the relief sought. Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). See also Montana v. Goldin (In re Pegasus Gold Corp.), 394 F.3d 1189, 1195 (9th Cir. 2005) (claim for injunctive relief barred). /// /// ///
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Sovereign immunity applies to the Commission. [A] suit against a state agency, in this case the Commission on Judicial Performance is considered to be a suit against the state and is also barred by the Eleventh Amendment. Ricotta v. California, 4 F. Supp. 2d 961, 976 (S.D. Cal. 1998). In the absence of a waiver by the state or a valid congressional override, [t]he Eleventh Amendment bars suits which seek either damages or injunctive relief against a state, an arm of the state, its instrumentalities, or its agencies. (Citation.) The . . . Commission on Judicial Performance (a state agency created by Article VI, Section 8 of the California Constitution to investigate complaints of judicial misconduct) are arms of California and therefore entitled to Eleventh Amendment immunity. Missud v. San Francisco Superior Court, No. C 12-03117 WHA, 2012 U.S. Dist. LEXIS 137351 at *4 (N.D. Cal. Sept. 24, 2012)2 (internal quotation marks omitted). 3 See also, Junho Hyon v. Sei Shimoguchi, No. CIV 12-1235 JAM EFB PS, 2012 U.S. Dist. LEXIS 74100 at *4 (E.D. Cal. May 29, 2012) (plaintiff's claim against the Commission on Judicial Performance must be dismissed because the Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties against a state or state agency unless the state or the agency consents to such suit, and the Commission on Judicial Performance has not consented to suit); and Narayan v. Cal. Fair Empl. & Hous., No. CIV S-10-3485 JAM DAD PS, 2011 U.S. Dist. LEXIS 56535 at *4, 2011 WL 2119191 at *2 (E.D. Cal. May 26, 2011) (Eleventh Amendment bars federal court action against Commission on Judicial Performance); and Brown v. California, No. C 07-0174 PJH (PR), 2007 U.S. Dist. LEXIS 8487 at *1, 2007 WL 163103 at *1 (N.D. Cal. Jan. 18, 2007 (same). Affirmed by Missud v. S.F. Superior Court, No. 12-17622, 2013 U.S. App. LEXIS 17219, 2013 WL 4412220 (9th Cir. Aug. 19, 2013). Petition for certiorari filed at Missud v. Superior Court of California, County of San Francisco, No. 136518 (Sept. 9, 2013). Californias Commission on Judicial Performance was established by legislative constitutional amendment approved by the citizens of California. The commissions authority is set forth in CAL. CONST. ART. VI, 8, 18, 18.1, 18.5. See Compl. at 18, 261.F., 263.A., 263.B, and 363-365.
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B.

Simi and Battson

Plaintiffs state they sue Defendants Simi and Battson in their individual and official capacities. Compl. at 19 and 20. However, the Complaint alleges only conduct pursuant to officials duties. For example, Battson at all times herein mentioned was the representative, agent, and employee of the [Commission] in addressing the DDIJO COMPLAINTS I and II and performing the duties of this office[.] Compl. at 20.4 See also Compl. at 363.A.-D. Eleventh Amendment sovereign immunity bars suits for money damages against State officials in their official capacities. Edelman v. Jordan, 415 U.S. 651, 666-667 (1974); Flint v. Dennison, 488 F.3d 816-824-825 (9th Cir. 2007); Doe v. Lawrence Livermore Natl Lab., 131 F.3d 838, 839 (9th Cir. 1997); Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir.); Vierria v. Cal. Highway Patrol, 644 F. Supp. 2d 1219, 1232 (E.D. 2009) (RICO claim barred). This rule has been applied to members and attorneys of the Commission. In Ricotta v. California, the court denied leave to amend to name the chairperson of Commission because all claims against the chairperson would be barred by the Eleventh Amendment. Ricotta, 4 F. Supp. 2d at 976. In Hyon, the plaintiff attempted to sue one of the Commissions attorneys. The court held the action was barred by the Eleventh Amendment. The claim against [Commission attorney] Shimoguchi is also barred by the Eleventh Amendment since plaintiff's claims against Shimoguchi are based entirely on Shimoguhi's conduct in carrying out his/her official duties, and Shimoguchi has not consented to suit. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 121 . . . ([A] claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment.); Aholelei v. Dept of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (The Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and state officials acting in their official capacities.). DDIJO refers to Domestic Dispute Industry Judicial Officers. Complaint at 20. DDIJO COMPLAINT I is described in the Complaint at 83-88. DDIJO COMPLAINT II is described in the Complaint at 89-90.
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Junho Hyon v. Sei Shimoguchi, No. CIV 12-1235 JAM EFB PS, 2012 U.S. Dist. LEXIS 74100 at *5 (E.D. Cal. May 29, 2012). See also, Borchardt v. Reid, No. CV 08-3086 DOC, 2008 U.S. Dist. LEXIS 91363 at *8-9, 2998 WL 4810791 *3 (C.D. Cal. Oct. 31, 2008) (Eleventh Amendment bars federal court action against director-chief counsel of Commission). Thus, the Eleventh Amendment also bars this action as against former Commission Chairperson Simi and Commission Attorney Battson. II. ABSOLUTE IMMUNITY UNDER CALIFORNIA CONSTITUTION Although the Eleventh Amendment bars this entire action against them, Defendants Simi and Battson have a separate, absolute constitutional immunity from claims brought under California law. CAL. CONST. ART. VI, 18(H) provides as follows: Members of the commission, the commission staff, and the examiners and investigators employed by the commission shall be absolutely immune from suit for all conduct at any time in the court of their official duties. Section 18(h) was enacted by the California voters in 1994 as part of Proposition 190. Recorder v. Comm'n on Judicial Performance, 72 Cal. App. 4th 258, 263 (1999). Among other things, section 18(h) makes clear that commission staff and employees cannot be sued for any act undertaken in the course of their official duties. Recorder, 72 Cal. App. 4th at 267. It appears that only Counts 1 and 2 name Defendants Simi and Battson and include supplemental state claims. Compl. at 69 and 71. Although the precise nature of the state law claims is unclear, no state law claims can be brought against Defendants Simi and Battson and must be dismissed. 5 That Plaintiffs combine federal civil rights and supplemental state law claims in the same count is of no moment. Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Baker v. McCollan, 443 U.S. 137, 146 (1979).
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SD2013705982 70783298.doc

CONCLUSION The Eleventh Amendment bars this action as against Defendants Commission on Judicial Performance, Lawrence J. Simi, and Brad Battson. Moreover, all state law claims against Defendants Simi and Battson are barred by absolute constitutional immunity under California law. The moving Defendants Motion to Dismiss should be granted without leave to amend, and judgment entered accordingly. Dated: November 14, 2013 Respectfully submitted, KAMALA D. HARRIS Attorney General of California s/Richard F. Wolfe RICHARD F. WOLFE Supervising Deputy Attorney General Attorneys for Defendants Commission on Judicial Performance, Lawrence J. Simi, and Brad Battson

7 Mem. P. & A. in Support of Mot. to Dismiss by Defs. Commission on Judicial Performance, Simi, and Battson (13-cv-1944-CAB-BLM)