b241184 cooper vs weinbach petition r7g

7/29/2019 B241184 Cooper vs Weinbach Petition r7g

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COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, Division p

Daniel COOPER,an individual;

Plaintiff/Appellant

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Court of AppealB241184

Superior CourtYC064994

Lead for additionalconsolidated casesYC065018,YC065019,YC065021,YC065164, and

SC113064SC113135SC113136SC113137

v.

Elia WEINBACH,an individual ;

Defendant/Respondent.

Appeal From a Judgment of The Superior Court of California, County of Los AngelesThe Honorable Robert OBrien

APPELLANTS OPENING BRIEF

Daniel Cooper

1836 10th

Street #BSanta Monica, CA 90404310-562-7668In Pro Per

Kevin M. McCormick

Benton, Orr, Duval andBuckingham39 North California Street,Post Office Box 1178Ventura, California 93002


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!(6)! MADELEINE FLIER received payments, failed to recuse, at risk!(7) LAURENCE D. RUBIN received payments, failed to recuse, at risk

(8) VICTORIA GERRARD CHANEY received payments, failed to recuse, at risk

(9) ROBERT M. MALLANO received payments, failed to recuse, at risk


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TABLE OF CONTENTS

I. SUMMARY 8

II. INTRODUCTION 8

III. FACTUAL ALLEGATIONS 10A. COMPLAINT IS PROPERLY SUED AGAINST AN INDIVIDUAL 11

1. DEFENDANT CHANGES LAWSUIT. 122. THE COMPLAINT IS NOT DEFECTIVE 17

B. SBX2 11 IS UNCONSITITUTIONAL 171. FIRST CITIZEN CHALLENGE STURGEON I 182. HASTY RESPONSE IN SENATE BILL SBX2 11 18

3. SECOND CITIZEN CHALLENGE STURGEON II 19C. TAXPAYER CHALLENGES 22D. CJP CHALLENGES SBX2 11 24E. ATTORNEY GENERAL STALLS OPINION ON SBX2 11 25

IV. STATEMENT OF APPEALABILITY 28

V. LEGAL ARGUMENTS TO REVERSE JUDGMENT 29A. SBX2 11 VIOLATES FEDERAL EQUAL PAY ACT OF 1963 29B. JUSTICES, WEINBACH AND OBRIEN LACK JURISDICTION 31

C. WEINBACH AND OBRIEN VIOLATE JUDICIAL ETHICS 31D. FRAUD ON THE COURT BY WEINBACH AND OBRIEN 32E. EXTRINSIC FRAUD BY WEINBACH AND OBRIEN 34F. SBX2 11 AMNESTY AND RETROACTIVE IMMUNITY 37G. DENIAL OF DUE PROCESS 38H. MISPRISION OF FELONY APPLIES TO JUDGES 39I. SBX2 11 GIVES THE APPEARANCE OF A BRIBE 40J. LOS ANGELES COUNTY IS AN INTERESTED PARTY 41K. CHANGE OF VENUE NEEDED FOR RESOLUTION 43

VI. REASONS FOR GRANTING THE PETITION 44

VII. CONCLUSION 45


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TABLE OF AUTHORITIESCases

Associated Gen. Contractors of Cal., Inc. v. Coalition for Econ. Equal.

950 F.2d 1401, 1412 (9th

Cir. 1991) ................................................45

Austin v. Smith ,312 F2nd. 337,343 (1962) ...............................................................33

Caperton v. A.T. Massey Coal Company, Inc. ,566 U.S. ___ (2009) ...........................................................11, 35, 39

Carlson v. Eassa 54 CA4th 684,691, 62 CR2d 884, 888 (1997); .........................28, 34

Carr v. Kamins 151 CA4th 929, 933-934, 60 CR3d 196, 199 (2007) ................28, 34

Elliott v. Lessee of Piersol, 26 U. S. (1 Pet.) 328, 340 (1828) ....................................................33

Estate of Sanders v. Sutton40 Cal.3d 607,(1985) .......................................................................33

Guiterrez v. Municipal Ct., 838 F2d 1031, 1045 (9 th Cir. 1988), vacated as moot , 490 U.S. 1016 ..45

In Re Murchison ,349 U.S. 133, 136 (1955) ..........................................................32, 38

Offutt v. United States ,348 U.S. 11, 14 (1954) ..............................................................35, 39

Old Wayne Mut. Life Assn v. McDonough ,204 U.S. 8, 27 Sup.Ct. 236 ..............................................................33

Residents for Adequate Water v. Redwood Valley County Water Dist .34 CA4th 1801, 1805, 41 CR2d 123, 125 (1995) .....................28, 34

U.S. v. Throckmorton ,98 U.S. 61 (1878) ................................................................ 28, 33-34


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Sammartano v. First Judicial Distict Ct. ,303 F.3d 959,973 (9 th Cir. 2002) .....................................................45

Sturgeon v. County of Los Angeles (2008) . 7-8, 10-13, 16, 19, 25-26, 30-31167 Cal.App. 6, 630, 84 Cal.Rptr.3d 242 rev. denied 12/23/08

Sturgeon v. County of Los Angeles (2010)191 Cal.App. 4th 344 ............................ 7-8, 10-13, 19, 25-26, 30-31

Vallely v. Northern Fire and Marine Co .,254 U.S. 348 (1920) .................................................................. 33-34

Walczak v. EPL Prolong, Inc, 198 F.3d 825, 831 (9 th Cir. 1999) ....................................................45

Wells,Res Adjudicata, Section 499 ...........................................................33

Statutes

18 U.S.C. 4 ....................................................................................39

28 U.S.C. 2403 (b) (Determination of Constitutionality) ...........38, 44

29 U.S.C. 206 (Equal Pay Act Of 1963) .....................................29

Constitutional Provisions

U.S. Constitution, First Amendment ................................................44

U.S. Constitution, Fifth Amendment ............................................8, 44

U.S. Constitution, Fourteenth Amendment ..................................8, 44

CodesCalifornia Code of Civil Procedure ................................ 12-13, 28, 32

California Government Code .......................................... 12-16, 19, 26


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COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

Division p

Daniel COOPER ,an individual;

Plaintiff/Appellant

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Court of AppealB241184

Los Angeles CountyCase No. YC064994Lead for additional

consolidated casesYC065018,YC065019,YC065021,YC065164, and

SC113064SC113135SC113136SC113137

v.

Elia WEINBACH ,an individual;

Defendant/Respondent.

APPELLANTSOPENING BRIEF


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I. SUMMARY

Judge Elia Weinbach is a state employee. Judge Weinbach received over

$364,406 in unconstitutional payments from the County of Los Angeles. The Countyof Los Angeles is an interested party with Defendant. When Plaintiff appeared before

Judge Weinbach he failed to recuse himself and ruled in the matters at hand. Judge

Weinbach committed extrinsic fraud and denied Plaintiff his due process protections

under the 5 th and 14 th Amendments.

The payments are unconstitutional and the Fourth California Appellate Court

encouraged citizens to challenge the law. Appellant requests this court to rule SBX2

11 unconstitutional and overturn Judge OBriens ruling on the Demurrer.

Plaintiff/Appellant filed the civil suit against the individual, Elia Weinbach on

the belief that the county payments are not part of the employment contract between

Elia Weinbach and the State of California. SBX2 11 recognized the illegality of the

payments when it provided retroactive immunity. Since SBX2 11 violates several

portions of the California Constitution and the federal Equal Pay Act, SBX2 11

cannot stand and the judges, as individuals, are sueable. Acceptance of the

unconstitutional payments deprives the judges of the broad immunities normally

accorded to judges.

Judge OBrien received (in the past) and Court Counsel (directing the attorneys

for Defendant) currently receives the same unconstitutional payments and thus their

actions also protect themselves with judicial immunities. Appellant further requests

this court to overturn Judge OBriens ruling on the Demurrer since he improperly

applies the laws of judicial immunity to an individual.

II. INTRODUCTION

The following cases were consolidated under rules of the Court for

proceedings in Superior Court. The cases were brought by two individuals, Dennis


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Ettlin and Daniel Cooper, each proceeding In Pro Per. Each case questions the

constitutionality of SBX2 11 and lays out in detail the biases that flow from and

impact the due process rights of Plaintiffs in family court, traffic court and the

Appellate Court.

Ettlin v. Veasey, Case No. YC064994

Ettlin v. Slawson, Case No. YC065018

Ettlin v. Kriegler, Case No. YC065019

Ettlin v. Taylor, Case No. YC065021

Ettlin v. Kuhl, Case No. YC065164

Cooper v. Weinbach, Case No. SC113064

Cooper v. Levanas, Case No. SC113137

Cooper v. Todd, Case No. SC113135

Cooper v. Ashmann, Case No. SC113136

In the nine suits, there are six Judges of the Superior Court and three Justices

of the Second Appellate Court. The amended CERTIFICATE OF INTERESTED

ENTITIES OR PERSONS (APP-008) filed by Plaintiff Ettlin identifies more clearly

that Justices Sandy Kriegler, Judith Ashmann-Gerst, and Kathryn Doi Todd arenamed defendants. In a similar fashion, other Justices who have received county

judicial payments and have ruled on various Writs in these cases, are at risk. A change

of venue would be appropriate for all the arguments shown in Appellants Appendix

starting at AA-374.

A third Plaintiff, Anthony Locatelli, has filed a similar suit against Judge Trent

Lewis in San Diego Superior Court. That case was removed to Los Angeles County.

Locatelli has initiated his appeal to this court (B240813, Los Angeles County No.

BC472585).


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A fourth litigant, Justin Ringgold-Lockhart is before the Ninth Circuit Court of

Appeal also arguing the denial of due process based on supplemental judicial

payments (9 th CCA case, 11-56973, District Court, 2:11-cv-01725-R-PLA).

The Constitutional issues arising from the supplemental judicial payments and

from SBX2 11 will not go away. The power of the Judicial Branch arises from the

integrity of its members. The Judiciary must likewise protect itself from laws and

regulations that undermine that hard-won integrity. The men and women of the

Judicial Branch work hard to preserve the rule of law and may well deserve

increased pay. The county payments are not the way to achieve that goal.

III. FACTUAL ALLEGATIONS

At the time the family law case, SD026673, was filed in Superior Court and

throughout the proceedings, Plaintiff was not aware that Judge Weinbach was receiving

payments from L.A. County. At no time from the commencement of the filing of the case

through the present did Judge Weinbach, a state employee, barred by California

Constitution Article VI, Sec. 19, from receiving income from any source other than the

state, disclose that he was receiving payments from L.A. County (AA-119). At no timedid he disclose the appearance of, or the actual bias due to those same L. A. County

payments to him or due to the L.A. County Child Support Services Department (CSSD)

receipt of Title IV-D funds from the federal and state governments (AA-124) based upon

a percentage of the disbursements ordered by the L.A. County judges plus an incentive

for collections above an annual floor. At no time did he disclose the partnership

(AA-123) with the CSSD.

Plaintiff seeks damages for the loss of his constitutional rights, for obstruction of

justice, for damage to his standard of living, for his ability to support his children

adequately and for emotional distress of not seeing his children.


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A. COMPLAINT IS PROPERLY SUED AGAINST AN INDIVIDUAL

Court Counsel seeks to portray the Plaintiffs seeking damages for the loss of their

constitutional rights as disgruntled litigants (AA-336). Court Counsel would also havecharacterized all African-Americans seeking their full constitutional rights in the 1950s

as disgruntled domestic help; all Chicanos in the 1960s as disgruntled field workers,

and maybe even all women seeking their full constitutional rights in the 1970s as

disgruntled housewives.

The Fourth Appellate Court refused to order the remedy (AA-362) and instead

called upon taxpayers (AA-362) and judges to agitate for the changes needed to bring the

Judiciary back to full constitutional compliance. Plaintiffs believe it would be

professional suicide for any lawyer to stand before Los Angeles County judges and

advance the same truths or to represent us. While Plaintiffs appreciate the deference and

professional courtesies from Judge OBrien and Counsel, Kevin McCormick, Appellants

must heed the direction of the Fourth Appellate Justices and continue to seek judges who

have not taken unconstitutional payments, give no perception of bias toward the interests

of Los Angeles County and are not judging the constitutionality of their own actions.

Plaintiffs identified facts and information with a direct bearing on the sueing of

these civil cases against individuals (AA-350 to -351). Plaintiffs also requested a change

of venue (AA-374).

The U.S. Supreme Court would not have wasted its precious time on Caperton v.

A.T. Massey Coal Company, Inc. , 566 U.S. ___ (2009) if judges had the absolute

immunity envisioned by Los Angeles Court Counsel (AA-337, citations AA-342).

Bench officers must abide by the CCP, the Code of Judicial Ethics and the laws of California and the United States as a precondition for any immunity.

This case bears striking similarity to a northeastern Pennsylvania judge ordered to

spend nearly three decades in prison for his role in a massive juvenile justice bribery

scandal that prompted the state's high court to toss thousands of convictions. The judge


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remained DEFIANT after the jury verdict, INSISTING the payments were legal and

denying he incarcerated youths for money.

Just as the Pennsylvania jury had no problem seeing the bias, a Congressional

petition 1 similarly shows that ordinary people across the country have no difficulty seeing

the appearance of bias of judges receiving county payments under SBX2 11. These are

the facts of the case that must be heard by jurors, not decided by a California judge.

The demurrer submitted for Elia Weinbach is based on (AA-338) four erroneous

points as follows:

1. Judicial Benefits are not a disqualifying event

2. Defendants have absolute immunity

3. Defendants have judicial immunity from any suits

4. Applicability of the Government Claims Act

Establishing the interested party status and the valid interests of Los Angeles

County (AA-118 to AA-119) and its partner the Child Support Services Department in

the presence of the county payments addresses and refutes point one (AA-122 to AA-

124). The inclusion of immunity in Section 5 of SBX2 11 (AA-140) solidly refutes points

two and three. Accepting the County Payments (or the similar payments from the LosAngeles Superior Court, as in Glenda Veaseys case) is an individual act outside the

scope of official duties and thus renders the Government Claims Act, California

Government Code Section 821.6, 821.8 and 6103, inappropriate, refuting point four.

1. DEFENDANT CHANGES LAWSUIT.

Defendants entire response is based upon asserting that Appellants claim is

erroneously sued (AA-369) and thus defective. Defendant cites Tarmann v State Farm

Mutual Insurance Company (1991) 2 Ca.App4th 153, 156 to assert (AA-337:16-21) that

1 See http://www.petition2congress.com/5524/repeal-sbx211-give-courts-back-to-people/ where over 900 people signed a petition to repeal SBX2 11.


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Plaintiff makes unwarranted contentions, deductions or conclusions of law or fact.

(Defendant also claimed that the damages were vague but Judge OBrien overruled (AA-

67) the Defendants statements that Plaintiffs material facts were vague and/or

ambiguous, or uncertain per CCP 430.10(e) and (g).)

This appeal is precisely about whether Appellants contentions, deductions or

conclusions of law or fact are warranted. Appellants conclusion is supported by the

similar conclusions of the AG and Sturgeon I . Appellants conclusion about SBX2 11 is

supported by the CJP and the absence of a constitutional certification by the AG or

Supreme Court of California. If Appellants conclusion is correct, all Defendants

references to the California Government Claims Act and other Government Codes

providing immunity are irrelevant. If Appellants conclusion that SBX2 11 is

unconstitutional, and the county

payments are unconstitutional, then

Judge OBriens judgment on the

Demurrer must be overturned. Elia

Weinbach must be properly sued as

an individual.Plaintiff filed case SC113064 against Elia Weinbach as an individual. Kevin M.

McCormick and the firm of Benton, Orr, Duval and Buckingham (BODB) claimed the

case was erroneously sued and served.

For other cases, for example,

Glenda Veasey, the statement is

omitted and instead the judicial title

is used. Plaintiff correctly filed the

civil suits against individuals outside of their official capacities. Taking payments

personally from any party other than their employer is outside the scope of all official

judicial actions.


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Court Counsel is desperate is to protect judges from the bribes they took as

individuals. Court Counsel intimidated my process server, Mr. Ettlin, and, early on,

apparently instructed court personnel to prevent the service of court documents to the

individuals at their place of work by directing process servers to his office. Mr. Ettlin felt

so intimidated he even sought a restraining order against Court Counsel (AA-403) and

this further prompted the motion for a Change of Venue (AA-374).

These cases are against individuals, tailored to the actions taken and specific

biases shown by each defendant. They are not a class action, they are not against public

officials as used in Government Code section 6103; they are against the actions, biases

and misdeeds of individuals because of the payments they took. Plaintiff demands to

know who authorized the services of BODB for the Demurrers in these cases. Any work

by or documents presented by Kevin McCormick and BODB are, at this time, a misuse of

public funds.

The civil suits are being filed against the judges for actions and omissions they

took as individuals. The individuals accepted the monies made available to them by or

through the County of Los Angeles. The damages (AA-102 to AA-112) are associated

with the favors to Los Angeles County shown by the defendants subsequent actions as bribed individuals unqualified to be bench officers who failed to disqualify themselves.

Those biases/ favors were perpetrated as individuals who attempted to not disclose such

payments to litigants and cover up their fraud on the court.

Plaintiff requested (AA-367:17) to see written evidence that Superior Court of

California supervisors of bench officers, acting in their official supervisorial capacity are

promulgating Superior Court of California command media or specifically directing the

bench officers to accept monies offered by Los Angeles County as part of their

employment contract with the State of California. No such evidence of management

direction has been provided and therefore Plaintiff must again assume that it was

individual actions to accept and cash the checks offered by L.A. County. Those


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individual actions are the basis of the civil suits against individuals. Consequently,

Plaintiff demands to see a signed private agreement between the individual Defendants

for representation by BODB. Plaintiff also demands that filing fees be paid, as they are

not exempt under Government Code section 6103.

The discussion of whether the individuals are acting in their official judicial

capacities or as individuals can be settled by identifying the precedents for judicial

officers to take money from parties that are frequently before the court. If defendant can

produce such case law, Plaintiff will gladly review it.

The judiciary-drafted SBX2 11 decided that the affected individuals needed and

were to be given retroactive criminal immunity for making or taking judicial payments.

While judicial officers already had broad immunity for the conduct of their normal

judicial duties, the briberous appearance and the unconstitutional nature of the county

payments necessitated the attempted special immunity described in SBX2 11. (This is

just one part of the HUGE consequences envisioned by the legislative analyst (AA-328).)

That immunity is itself unconstitutional as are the current payments illegal and that is

exactly why the Commission on Judicial Performance (CJP) has asked the Attorney

General for a determination (AA-295).Court Counsels actions as a state employee to usurp the Courts authority to

determine if these complaints are properly sued against an individual, as stated on the

summons and on the complaint, and to volunteer state legal services to these individuals

may also be illegal and possibly obstructions of justice. Information from the County

Auditors office for Brett Bianco indicates he himself gets a bonus, a 23% bonus for

2010, from these same judicial benefits (AA-402). Thus, he has a personal individual

interest and bias in preserving and protecting the status quo for judicial benefits.

Furthermore, by asserting an error on Plaintiffs part, he is using State legal resources to

protect his own unconstitutional payments and the unconstitutional payments to

individuals who just happen to be judges.


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The Court Counsel, with his personal and individual interest in protecting the

practice of county-paid judicial benefits, works in concert with the Los Angeles County

Office of the County Counsel to obscure the simple truth that unconstitutional payments

were paid to individuals who protect the interests of Los Angeles County and illegally

hide behind the veneer of organizational authority. The Litigation manager provides

quarterly risk management reports to the supervisors on the projected costs to the county

from on-going litigation and is responsible for working with the Superior Court and the

District Attorney to reduce risk and protect the countys interests. This report is

confidential, protecting planning discussions from being exposed to the public. The 2007-

2008 public report signed by the Litigation Cost Manager begins at page AA-142. The

Commission on Judicial Performance is now finally investigating the Superior Court

payments with the linkage to county payments.

Plaintiff continues to believe and must assume the POS-010 form for individual

service is the proper form and process for serving these individuals and is in compliance

with California Code of Civil procedure Section 415.10 or 415.20. For a court bench

officer, the court executive officer should be served (per page 32 [AA-413] of the Action

Guide, Handling Claims Against Government Entities, November 2010). Plaintiff is notaware that Court Counsel is simultaneously the court executive officer and therefore his

intercepting the court documents intended for individuals at their place of work has

denied proper service to those individuals.

Elia Weinbach cashed the L.A. County payment as an individual. No supervisor,

acting in an official role, directed him to accept the monies. It was not part of his state

employee compensation package. He acted as a private citizen not in a judicial capacity

when he used those monies for personal gain. Plaintiffs complaint is properly sued

against the individual Elia Weinbach.


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2. THE COMPLAINT IS NOT DEFECTIVE

The demurrer is based on Defendants changes to Plaintiffs complaint and raises

a straw man that does not represent Plaintiffs position and then provides totally

irrelevant citations and arguments that the judges were acting in an official capacity when

they accepted Los Angeles County payments. Just as the Pennsylvanian judge denied any

wrongdoing even after his conviction by a jury for bribery, Court Counsel and the Los

Angeles judges cant fathom their own law-breaking. Plaintiff demands a jury trial

because judges judging judges has not put this subject to rest. The Fourth Appellate Court

deferred to the civil cases like this and the juries of taxpayers to bring about theconstitutional changes needed to restore due process and remove bias from the courts.

B. SBX2 11 IS UNCONSITITUTIONAL

It is true that the courts have ruled SBX2 11 to be temporarily (AA-362:6) and

narrowly constitutional. The Sturgeon II decision was decided on only three very narrow

grounds. The relevant portion states:

On remand Sturgeon asserted the legislation was invalid on three grounds .He argued the legislation was outside the scope of the Governor's proclamationcalling the special session, did not adequately prescribe benefits judges are to be

provided, and in any event violated equal protection principles by continuing astatewide system of unequal judicial benefits. The trial court rejected thesecontentions and granted the county's motion for summary judgment.

The legislation Sturgeon challenges, as enacted, implemented an interim response to the constitutional issues we addressed in Sturgeon I. As we shallexplain, the legislation fell within the scope of the Governor's proclamation,adequately prescribed the benefits that must be provided to judges and did not

intrude upon any judge's right to equal protection of the laws.Accordingly, we affirm.

The Court acknowledged that the this preserved the status quo ante Sturgeon I but

then the very same court encouraged this civil challenge (AA-362:15). Plaintiff is simply

following the direction of the court, asserting his rights and defending the Constitution.


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For the sake of defending the Constitution, Plaintiff will endure being called a

disgruntled litigant (AA-336:10).

1. FIRST CITIZEN CHALLENGE STURGEON I

Sturgeon v. County of Los Angeles , 167 Cal.App.4th 630 (2008) Rev. denied

12/23/08, ( Sturgeon I ) held that the L.A. County payments to L.A. Superior Court

judges violated Article VI, Section 19 of the California Constitution because the 1997

Lockyer-Isenberg Trial Court Funding Act, while it DID authorize judicial benefits, it

did NOT set any standards for exercising the delegated authority and THUS the

authorization under Lockyer-Isenberg of judicial benefits payments by counties toSuperior Court judges was an unconstitutional delegation of power.

2. HASTY RESPONSE IN SENATE BILL SBX2 11

After the Sturgeon I decision, the State legislature, without hearings, passed

and the Governor signed Senate Bill SBX2 11, which became effective 5/21/09. The

judiciary and the legislature tried to do in two months what they failed to do in 30

years. It is no surprise that SBX2 11 is also unconstitutional.

Senate Bill SBX2 11 (AA-138) attempted to give retroactive immunity such

that no governmental entity, shall incur any liability or be subject to prosecution or

disciplinary action because of benefits provided to a judge under the official action of

a governmental entity prior to the effective date of this act on the ground that those

benefits were not authorized under law. With that one line the Judicial Council

attempted to replace all the State and Federal Authorities protecting judges.

While SBX2 11 attempted to give immunity for receiving the money which

was unconstitutional, Senate bill SBX2 11, Section 5, did not, however, give

retroactive immunity to judges or temporary judges who had received the county

payments and did not disclose such and presided over cases in which the county had


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an interest. It did not give immunity for being disqualified as a judge in the past,

present or future. The Los Angeles County interest in the Plaintiffs family law case is

the critical point avoided by Court Counsel and Kevin McCormick. Plaintiffs claims

are firmly based on, and supported by evidence on, the Title IV-D monies received by

Los Angeles County and the partnership of the Superior Court with the Title IV-D

agencies. Judge OBriens judgment acknowledged the allegations were clearly stated

and he overruled the demurrer on the ground that the complaint is vague, ambiguous

and uncertain (AA-67, line 7).

Senate bill SBX2 11 acknowledged both the criminality of the payment of

judicial benefits by the counties to the judges and also the loss of immunity

protections under current state and federal laws by attempting to give all parties to the

payments limited retroactive immunity. The immunity in SBX2 11, Section 5,

effective 5/21/09, was not made part of California government codes. Most

importantly, the attempted immunity is itself unconstitutional under the California

Constitution, ARTICLE 1, SECTION 9 which states A bill of attainder, ex post

facto law, or law impairing the obligation of contracts may not be passed.

Furthermore, the legislation conflicts with the Californias constitutionalresponsibilities of the Commission on Judicial Performance (CJP). The extensive CJP

analysis (beginning AA-292) and arguments show the legislatures attempt to usurp

constitutional powers and requests an opinion from the California Attorney General

on the constitutionality of SBX2 11. The California Judges Association attempted to

refute the CJP analysis by recycling the arguments in Memorandum 95-77 (AA-324).

3. SECOND CITIZEN CHALLENGE STURGEON II

The Fourth Appellate Courts decision in Sturgeon v. County of Los Angeles,

__Cal App.4th___(4th Dist.,Div. 1) (2010), the so-called Sturgeon II concluded on

page 14:


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As the parties have recognized, SBX2 11 both preserved the status quo ante

Sturgeon I and commenced a process by which the Legislature looks to adoption of a

comprehensive judicial compensation scheme. As we have explained, this response

to Sturgeon I meets the requirements of the Constitution and is wholly sensible

under the circumstances. The Legislature is uniquely competent to deal with the

complex policy problem of establishing a judicial compensation scheme which both

assures recruitment and retention of fully qualified judicial officers throughout the

state while at the same time providing equity between judges in different parts of the

state. By the same token our role in ensuring that the more general requirements

of the Constitution have been met is, under our system of separate governmental

powers, quite limited . (emphasis added)

But if SBX2 11 meets the requirements of the constitution as stated by the

court, why would the Court then encourage taxpayers to challenge it? The Appellate

Court makes it clear that their statement of constitutionality only applies to the three

narrow issues raised by Sturgeon . They also feel quite limited in ensuring the

Constitution is fully met and are not willing to fully address this issue. The Sturgeon

case and SBX2 11 only address the payment of county judicial benefits. Other citizencivil actions undertaken and encouraged by Sturgeon II address the issue of bias (AA-

88), the non-disclosure of the payments, and the resulting fraud on the court (AA-94)

that Sturgeon does not address.

Since Sturgeon I and Sturgeon II both affirm that judicial payments are not a

county responsibility, since the county is allowed (with conditions under SBX2 11) to

terminate or reduce all payments and since the county is clearly an interested party in

a large number of cases; therefore the continued payments must be in the countys

interests. Those county interests are the Title-IV-D incentives and huge

reimbursements as well as the penalty assessments on traffic tickets. Those county


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interests are described further below and are the basis now for judicial recusal and

void orders in this case.

SBX2 11 deemed prior payments as criminal and in need of criminal

immunity. The bill granted immunity for monies paid and received prior to July 2009.

This attempted ex post facto immunity is unconstitutional and furthermore did not and

could not restore Plaintiffs Constitutional guarantees of due process and equal

protection lost during the proceedings of Plaintiffs family law case.

Senate bill SBX2 11 did not even attempt to give immunity for the biases

inherent in the nature of a bribe. Judge Weinbach, likewise, did not disclose the

county payments and then presided over a case in which the L.A. County Child

Support Services Department is a very interested party as it establishes financial

...support obligations for children, enforces existing spousal support orders... as

required under federal and state law and is a collaborative partner with the

Superior Court (AA-123, first para.).

But the disturbing portion of the decision is the final paragraph of the decision,

which contradicts the above opening statement by stating that SBX2 11 is not a

permanent response to the constitutional issues. How can a law be temporarilyconstitutional? It either is or is not constitutional. Again, the Fourth Appellate Court,

acknowledges the contradiction and encourages these taxpayer challenges by stating:However, on its face SBX 211 is not a permanent response to either the

constitutional issues we identified in Sturgeon I or the difficult problem of adopting acompensation scheme that deals with varying economic circumstances in an equitableand efficient manner. Thus, we would be remiss in discharging our duties if we didnot state that while the Legislature's interim response to Sturgeon I defeats the

particular challenges asserted by Sturgeon in this litigation, that interim remedy, if not supplanted by the more comprehensive response SBX2 11 plainly contemplates,most likely will give rise to further challenges by taxpayers or members of the benchthemselves. As we noted at the outset, the issue of judicial compensation is a state, nota county, responsibility. We are confident that the Legislature within a reasonable

period of time will act to adopt a uniform statewide system of judicial compensation.


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C. TAXPAYER CHALLENGES

On March 16, 2011 the California Supreme Court denied a review of Sturgeon

II. Since early 2011 several actions have been taken to void the decisions and

judgments of judges receiving unconstitutional payments. On June 16, 2011, case

number YC064994 became the first direct taxpayer civil suit challenge was filed in

Los Angeles County. On June 17, 2011, SC113377 against Elia Weinbach became the

second case. Since then, seven other civil suits have been filed in Los Angeles County

and consolidated with case YC064994. One additional case was filed in San Diego

County. Defendant succeeded in transferring that case to Los Angeles County.In June and July of 2011 all 36 judges in the Torrance and Santa Monica (AA-

154) Courthouses recused themselves from presiding over these nine cases regarding

judicial payments and sent the cases downtown to the Central District. The Central

District assigned the cases to Judge Robert OBrien.

Judge Robert OBrien refused to recuse himself (AA-230 to AA-233) and the

Second Appellate Court denied a Writ of Mandate (AA-236) and upheld his refusal

on August 25, 2011. On September 26, 2011, before any decisions on the demurrersor motions to strike, and prior to an already scheduled October 3, 2011 hearing date,

Plaintiff responded to the failure to recuse with a Motion For A Change Of Venue

(AA-373). The court and defendant complained so loudly on October 3 about the lack

of notice that Plaintiff refiled the change of venue motion on October 6, 2011 to

ensure a hearing on the real merits of a venue change. On November 15, 2011, that re-

filed motion was denied. No Extraordinary Writ was filed with the Second Appellate

Court due to cost.

The successes in the 20-month old taxpayer challenge campaign start with the

case in San Diego County and are now spreading to Los Angeles County.


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On September 29, 2011 Judge Richard E. L. Strauss in San Diego Superior

Court ordered Thomas Trent Lewis to pay court fees, in his San Diego civil rights

case, 37-2011-00093476-CU-CR-CTL. Judge Straus treated LEWIS as an

individual, without judicial immunity. Both the Plaintiff, LOCATELLI, and the

Defendant in that case, LEWIS, presented oral and written arguments at the

September 23, 2011 hearing and the court upheld the key civil rights claim of

LOCATELLI. LEWIS later requested clarification from the court but then paid the

fees before a ruling. LEWISs payment acknowledged the Courts order on his loss of

judicial immunity!

The decision denied LEWISs claim that the case was erroneously sued

against the individual Trent Lewis, denied Defendants claims of judicial immunity

and legally recognized LEWIS as an individual, subject to prosecution for bribery.

In Los Angeles County, Carolyn B. Kuhl, a supervising judge in Los Angeles

Superior Court recused herself on 11/21/2011, without explanation, from the simple

action of assigning case BC472585 to a trial judge. Carolyn Kuhl, an individual, is a

defendant in a civil case seeking civil rights damages due to the unconstitutional

payments. She, as well as her husband, received the same judicial payments at theheart of this matter.

Los Angeles case BC472585 is the San Diego case 37-2011-00093476-CU-

CR-CTL transferred to Los Angeles County on Judge Strauss order. Judge Strauss

said, Let L.A. handle it but failed to appreciate the scope of the denial of due

process when counties, themselves not sovereign and with their own interests before

the courts, make direct payments to all bench officers in their county.


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D. CJP CHALLENGES SBX2 11

The analyses of SBX2 11 by the Commission on Judicial Performance (CJP)

have determined that SBX2 11 is unconstitutional. Only the California Supreme Court

can adjudicate the CJP concerns 2. It is not known if the CJP has yet requested a

decision by the California Supreme Court. The CJP has requested an updated opinion

from the Attorney General (AA-293).

According to the CJP, the SBX2 11 Section 2 is unconstitutionally vague about

the same terms and conditions as were in effect on that date. The terms and

conditions are not defined anywhere and thus are arbitrary (and unconstitutional).Likewise, Plaintiff additionally asserts they were one-year payments and thus

terminated on June 30, 2009. Section 2 only identifies judges as recipients. No

authority is provided for the Superior Court to continue to use state court-operating

funds to pay Court Counsel or Commissioners (AA-295, last sentence).

The SBX2 11 Section 4 is unconstitutional because the Judicial Council is now

paying judicial benefits to commissioners, Court Counsel and others. (The payments

in SBX2 11 Section 2 made by L.A. County to Commissioners are called warrants by the L.A. County Auditor because they are issued by L.A. County but funded by the

Judicial Council.) The continued payments by the counties under Section 2 now

makes these Judicial Council payments a continued obligation, which is prohibited by

Section 4. The opinions of the CJP are that these payments are unconstitutional. The

CJP has requested the Attorney Generals opinion in this matter.

The SBX2 11 Section 5 immunity is unconstitutional, has not been challenged

in the Appellate Court and preserved the status quo ante Sturgeon I . The attempted

2 Cal. Constitution Article 6, Section 18 (d); in relevant part, Upon petition by the judge or former judge, the Supreme Court may, in its discretion, grant review of adetermination by the commission


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immunity is unconstitutional under California Constitution, ARTICLE 1, SECTION

9, which states A bill of attainder, ex post facto law, or law impairing the obligation

of contracts may not be passed. Furthermore, SBX2 11 Section 5 legislation conflicts

with the constitutional responsibilities of the Commission on Judicial Performance

(CJP) (AA-296:Issues Presented #1.). The extensive CJP analysis and arguments

shows the legislatures attempt to usurp constitutional powers and requests an opinion

from the California Attorney General on the constitutionality of SBX2 11.

E. CURRENT ATTORNEY GENERAL STALLS OPINION ON SBX2 11

The CJP analyses have determined SBX2 11 to be unconstitutional. Their analysis is that the SBX2 11 Section 5 retroactive immunity takes away the

constitutional authority of the CJP to oversee discipline of the judges. The CJP is also

concerned SBX2 11 Section 4 allows state employees to give compensation raises to

the judges, bypassing the legislatures Article VI section 19 responsibility to set

judicial compensation. Section 2 forces the Superior Court to match any increases by

the County.

On April 3, 2009 (AA-304), the CJP requested an opinion from then-AttorneyGeneral Brown. He did not respond. On May 23, 2011 the CJP again requested an

opinion (AA-295) from the California Attorney General (AG). AG Kamala Harris is

also delaying and effectively refusing to honor the CJP request. A request for

clarification was answered by the CJP on June, 22, 2011 (AA-293). The current delay

is under the guise of not interfering with ongoing litigation, i.e. the Ringgold case

(2:11-CV-01725-R-PLA) currently before the 9 th Circuit. Kamala Harriss claim in

the Ringgold case is that the public release of the CJP analyses does not qualify as

newly discovered evidence. This claim also appears to be a self-serving and

conscious attempt by the AG to provide her own retroactive immunity to all Judges

who have taken the unconstitutional payments.


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No doubt the California AG is aware of previous AG rulings and does not wish

to alienate the California Judges.

In 1956 , the Attorney General issued an opinion 3 concluding that superior and

municipal court judges and certain personnel of the superior courts were not county

employees and were thus ineligible for county-sponsored health insurance. (27

Ops.Cal.Atty.Gen. 338 (1956).) In 1976 , the Attorney General issued another opinion,

specifically stating that the version of Government Code section 53200.3 then in effect

was unconstitutional, insofar as it ran afoul of the provision in California Constitution,

article VI, section 19, which states that "[t]he Legislature shall prescribe compensation

for judges of courts of record...." Citing the 1967 Judicial Council Report to the

Governor and the Legislature on this provision and the opinion in County of Madera v.

Superior Court, supra, 39 Cal. App.3d at page 670, the Attorney General stated:

"Because of the use of `prescribe' the Legislature cannot delegate the authority granted

to it by Article VI, section 19 of the Constitution. Any attempt to make such a

delegation would be constitutionally invalid." (59 Ops.Cal.Atty.Gen. 496, 497 ( 1976 ).)

The opinion concluded that "that section [Gov. Code, 53200.3] is an unconstitutional

attempt on the part of the Legislature to delegate a nondelegable duty." (Id., at p. 501.) [222 Cal.App.3d 1145]

Subsequently, the statute was amended by the Legislature to its present form,

in an attempt to meet the concerns of the Attorney General. (Stats. 1977, ch. 106, 1,

pp. 537-538.) In 1978 , the Attorney General issued another opinion on the statute,

stating that the Legislature had again failed to remove those deficiencies in the

3 Documented in County Of Sonoma v. Workers' Comp. Appeals Bd., 222 Cal.App.3d1133 (1990) Court of Appeals of California, First District, Division Three. August 14,1990. seehttp://www.leagle.com/xmlResult.aspx?page=5&xmldoc=19901355222CalApp3d1133_11282.xml&docbase=CSLWAR2-1986-2006&SizeDisp=7


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original section that had rendered it unconstitutional. (61 Ops.Cal.Atty.Gen. 388, 390

(1978).

In 1988 the County of Los Angeles, Office of the County Counsel, advised

Frank Zolin, County Clerk/Executive Officer of the Superior Court that it would be

permissible for the county to pay additional benefits for judges, although they

acknowledged the Attorney General did not agree (AA-318, 2nd para., 4 th line).

In about 1988-1989 Los Angeles County, the Superior Court of Los Angeles

County and the CJP all ignored 30 years of Attorney General rulings and began

making payments to Judges. Page AA-285 shows the request to the L.A. County

Auditor for all payments to Judge OBrien during the 1980s. The table following on

AA-286 shows payments began in 1989 with professional development allowances

added in 1991.

In 1995 , the California Law Revision Commission 4, reviewing a precursor to

the Lockyer-Isenberg Trial Court Funding Act, acknowledged the judicial benefits

were probably illegal and the negative consequences were HUGE (AA-328, first line)

but then suggested it was unlikely that anyone would object! i.e. a case can be made

that this will not occur (AA-327 Conclusion, last line) No one had objected to the1989 payments by Los Angeles County. Fortunately, Sturgeon did object. Other

citizens are now objecting. Just as the legislature failed in 1977 to pass constitutional

legislation, so they failed again in 1997 (Lockyer-Isenberg) and again a third time in

2010 (SBX2 11). Throughout this lengthy period, the judges continued to collect their

supplemental county benefits and deny litigants due process.

Not only is the California AG delaying any decision, but now the CJP is

misleading the citizens about CJP activities. On May 24, 2011 a letter from the CJP to

Mr. Ettlin states no further action will be taken with respect to his complaint.

4 Trial Court Unification: Delegation of Legislative Authority; California Law RevisionCommission Staff Memorandum; Memorandum 95-77, Study J-1201; November 27, 1995(AA-276)


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However, on May 18, 2011, the CJP did indeed take major action with respect to this

issue (the letter to the AG). The CJP just chose to conceal that information from Mr.

Ettlin.

In September 2011, PERSONAL AND CONFIDENTIAL documents

supplied under the Freedom of Information Act show the CJP documents were Hand

Delivered to Attorney General Edmond G. Brown, Jr. (letter starting AA-304) and to

Attorney General Kamala Harris (letter starting AA-295). In those documents the CJP

determined that SBX2 11 is unconstitutional and requested an opinion confirming that

conclusion from Attorney General Kamala Harris.

The CJP and the AG appear to be consciously providing retroactive immunity

to all Judges who have taken the unconstitutional payments. This Court must order a

review of the Constitutional issues by the California Supreme Court.

IV. STATEMENT OF APPEALABILITY

Los Angeles County Superior Court Judge OBriens order is appealable as an

order or judgment under Code of Civil Procedure 904.1(a)(1). Furthermore, Judge

OBrien received the same payments from 1989-1999 and thus had no personal jurisdiction. Judge OBriens judgment is also appealable because it is a void order. See

U.S. v. Throckmorton 98 U.S. 61 (1878). An appeal may be taken from a void judgment

because the judgment constitutes an order giving effect to a void judgment and thus is

itself void and appealable. [Carr v. Kamins (2007) 151 CA4th 929, 933-934, 60 CR3d

196, 199; Carlson v. Eassa (1997) 54 CA4th 684,691, 62 CR2d 884, 888; Residents for

Adequate Water v. Redwood Valley County Water Dist. (1995) 34 CA4th 1801, 1805, 41

CR2d 123, 125]


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V. LEGAL ARGUMENTS TO REVERSE JUDGMENT

The judgment is void and should be overturned because supplemental judicial

benefits violate Californias Constitution and are illegal under Federal law. The facts in

Section III. B. above clearly show that SBX2 11 is unconstitutional and Judges have no

immunity from taking county benefits. The judges are guilty of Misprision of Felony for

not reporting the violations of Federal Law, guilty of violating the Code of Judicial Ethics

for not reporting such offers of payment by interested parties, and guilty of denying Due

Process by not disclosing the payments to litigants in cases involving Los Angeles

County.

The Constitutional issues must be resolved before the bias damages in this case

can be resolved. The legislature and the Courts have dared citizens to object and to

challenge the constitutionality of the legislatures laws. This appeal is part of that Court-

directed challenge.

Judge Robert OBrien received payments from Los Angeles County, should have

recused himself and should have reported the unconstitutional and illegal payments to the

supervising judge of the court. His ruling on the law is invalid and his orders and judgments are void. This Court must rule on the Constitutional issues involved and then

reverse and void Judge OBriens orders.

A. SBX2 11 VIOLATES FEDERAL EQUAL PAY ACT OF 1963

The failure of the Legislature to properly prescribe judicial compensation is

a violation of the Equal Pay Act Of 1963 (29 U.S.C. 206). 206 (d) Prohibition of sex discrimination (1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in whichsuch employees are employed, between employees on the basis of sex

by paying wages to employees in such establishment at a rate lessthan the rate at which he pays wages to employees of the opposite


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sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and whichare performed under similar working conditions, .

The objective result is that the state of California allows its Judges in 23

counties who are female to make less than male Judges in Los Angeles County. The

objective result is that the California Legislature allows its 58 county Superior Courts

to make unequal payments to male and female bench officers.

The current system allows direct payments by counties or by the Superior

Courts. Both mechanisms are used in Los Angeles County to maintain local parity

between Judges and Commissioners. To provide the appearance of uniform county

payments, L.A. County issues checks to all bench officers in the county but those toSuperior Court Commissioners are called warrants by the L.A. County Auditor

because they are issued by L.A. County but funded by monies from a Superior Court

account instead of the Los Angeles County Trial Court Operations account. Thus, Los

Angeles Superior Court Commissioners receive two payments from State funds while

Humboldt County Commissioners only receive one payment.

The unequal pay in California creates further distortions across different

employers of judicial bench officers. Male Commissioners in Los Angeles County

Superior Court receive approximately $236,000 ($178,000 authorized by the

Legislature plus $58,000 authorized by the L.A. County Superior Court) while female

judges on the Federal bench (presumably requiring equal or greater skill, effort, and

responsibility) receive only $174,000. Male Commissioners in Los Angeles make

more than the Supreme Court Associate Justices and even more than Chief Justice

Robertss $223,000.While pay levels at the state-level are understandably difficult to increase and

the Los Angeles Judges and Commissioners may indeed deserve their compensation,

the supplemental benefits implementation by the counties is both unconstitutional

and, within California, a violation of Federal law.


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B. JUSTICES, WEINBACH AND OBRIEN LACK PERSONAL JURISDICTION

Both Fourth Appellate Court decisions in Sturgeon v. County of Los Angeles

on the issue of supplemental judicial benefits by counties are marred by lack of

personal jurisdiction. All three Justices who decided both the Sturgeon I and II cases

also lacked personal jurisdiction since they had themselves (as well as their friends

and colleagues) received the very supplemental payments in question. While the

mechanism for receiving the supplemental payments is different between San Diego

and Los Angeles, the CJP has called into question the constitutionality and even the

legality of the Superior Court payments as well as the County payments. (The threeJustices received their benefits from the Superior Court of San Diego rather than

directly from the County, as in Los Angeles.)

Judge Weinbach lacked jurisdiction to rule in the underlying family law case.

Judge OBrien received payments from 1989-1999 and thus he lacks jurisdiction in

this case. The Sturgeon Justices of the California Fourth Appellate Court all three

received past supplemental judicial payments. Thus, they also lacked jurisdiction to

rule on matters related to those payments or this case.

C. WEINBACH AND OBRIEN VIOLATED JUDICIAL ETHICS

California Code of Judicial Ethics Canon 4D(1) prohibits a judge from

engaging in any financial and business dealings that involve the judge in frequent

transactions or continuing business relations with lawyers or other persons likely to

appear before the judge or before the court in which the judge serves.

Canon 3E(2) requires the judge to disclose on the record information that is

reasonably relevant to the question of disqualification under Code of Civil Procedure

(CCP) Section 170.1, even if the judge believes there is no actual basis for

disqualification.


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Canon 3E(1) requires a judge to disqualify himself or herself in any proceeding

in which disqualification is required by law.

CCP Section 170.1(a)(6)(A)(iii) states A judge shall be disqualified if any one

or more of the following is true: .... A person aware of the facts might reasonably

entertain a doubt that the judge would be able to be impartial.

Judge Weinbach violated Canon 4D(1) by taking payments from L.A. County,

violated Canon 3E(2) by not disclosing such payments on the record, and violated

Canon 3E(1) and CCP Section 170.1(a)(6)(A)(iii) by not disqualifying herself.

Judge Weinbachs actions of taking the payments, not disclosing such and the

resulting fraud on the court have denied Plaintiff due process by denying him the

right to an impartial tribunal. In Re Murchison , 349 U.S. 133, 136 (1955).

Judge OBriens actions of taking the payments, not disclosing such and the

resulting fraud on the court have also denied Plaintiff due process by denying him

the right to an impartial tribunal. In Re Murchison , 349 U.S. 133, 136 (1955).

The Fourth Appellate Courts Justices who decided the Sturgeon cases should

have recused themselves under CCP Section 170.1(a)(6)(A)(iii). Their orders are void

in this matter.

D. FRAUD ON THE COURT BY JUDGES WEINBACH AND OBRIEN

Judge Weinbachs past acceptance of Los Angeles County judicial payments

and his sitting on a case in which the county was an interested party voids his orders.

Failure to disclose those payments constitutes fraud on the court. Senate Bill SBX2 11

gave retroactive immunity because of benefits provided to a judge under the official

action of a governmental entity. Senate bill SBX2 11 did not give present or

retroactive immunity to judges who had received the county payments, did not

disclose such and then presided over cases in which the court had an interest.


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In U.S. v. Throckmorton, 98 U.S. 61 (1878), the U.S. Supreme Court stated at

page 66:

Fraud vitiates everything, and a judgment equally with a contract (citing

Wells, Res Adjudicata, Section 499)

Extrinsic fraud is a broad concept that tends to encompass almost any set of

circumstances which deprive a party of a fair adversary hearing. Estate of Sanders v.

Sutton 40 Cal.3d 607 (1985). The U.S. Supreme Court further emphasized in Vallely

v. Northern Fire & Marine Ins. Co. , 254 U.S. 348 (1920), at 353-354 that no court

could validate a void judgment.

Courts are constituted by authority and they cannot act beyond the power

delegated to them. If they act beyond that authority, and certainly in contravention of

it, their judgments and orders are regarded as nullities. They are not voidable, but

simply void, and this even prior to reversal . (Citations omitted) (Emphasis added)

Also, see Elliott v. Lessee of Piersol, 26 U. S. (1 Pet.) 328, 340 (1828): Old Wayne

Mut. Life Assn v. McDonough, 204 U.S. 8, 27 Sup.Ct. 236

Since fraud on the court vitiates the entire case, all orders from that court or

any subsequent court are void as none of the courts had subject matter jurisdiction. Nocourt has the lawful authority to validate a void order; a void order is void at all times,

cannot be made valid by any judge, nor does it gain validity by the passage of time.

The order is void ab initio.

The 9th Circuit has stated in the case of Austin v. Smith, 312 F2nd. 337,343

(1962): If the underlying judgment is void, the judgment based

upon it is also void.

Judge Weinbach denied Plaintiff his constitutional right to due process. Since

Judge Weinbach committed fraud on the court, his orders are void. Any order giving

effect to that void judgment is itself void and appealable. [Carr v. Kamins (2007) 151

CA4th 929, 933-934, 60 CR3d 196, 199; Carlson v. Eassa (1997) 54 CA4th 684,691, 62


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CR2d 884, 888; Residents for Adequate Water v. Redwood Valley County Water Dist.

(1995) 34 CA4th 1801, 1805, 41 CR2d 123, 125].

Judge OBriens orders upholding Judge Weinbachs orders are also void.

Plaintiff no longer has confidence in the integrity of the Los Angeles Superior Court

to address this issue.

SBX2 11 provided immunity to all those governmental persons associated with

the paying or receiving of judicial payments. SBX2 11 did not address fraud on the

court because it did not address or acknowledge any of the biases bought by the

payments for the counties.

E. EXTRINSIC FRAUD BY WEINBACH AND OBRIEN

Judge Weinbachs acceptance of the L.A. County payments and his sitting on a

case in which L.A. County is an interested party voids all his orders and judgments.

Judge OBriens protection (Judge OBrien also collected the judicial payments, from

1989-1999) of Judge Weinbachs failures to disclose the county payments to Plaintiff,

also constitutes an extrinsic fraud on the court. All of Judge OBriens (cases

consolidated with YC064994) and Judge Weinbachs (case SD026673) orders are andwill be void.

Extrinsic fraud is a basis for setting aside an earlier judgment. See U.S. v.

Throckmorton 98 U.S. 61 (1878). Since fraud on the court vitiates the entire case,

all orders from that court or any subsequent court are void as none of the courts had

subject matter jurisdiction. No court has the lawful authority to validate a void order.

See Vallely v. Northern Fire and Marine Co ., 254 U.S. 348 (1920). A void order is

void at all times, cannot be made valid by any judge, nor does it gain validity by the

passage of time.


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The U.S. Supreme Court has stated in the case of Offutt v. United States , 348

U.S. 11, 14 (1954): A judge receiving a bribe from an interested party over which he

is presiding does not give the appearance of justice.

In essence, by making all L.A. Superior Court judges eligible for the L.A.

County payments, L.A. County has bought the L.A. Superior Court. The U.S.

Supreme Court stated in the case of Caperton v. A.T. Massey Coal Co., Inc., 566 U.S.

___ (2009) at Slip Opinion page 16 in relevant part:

...... just as no man is allowed to judge his own cause, similar fears of bias can

arise when, without the consent of the other parties, a man chooses a judge in his own

cause.

By making the payments available to every L.A. Superior Court judge, no

party in a divorce case received a fair trial, as the judge was biased to rule to benefit

the L.A. County Child Support Services Department over the interests of the parties

to the case.

The taking of money by a judge who does not throw the case is still corrupt.

Justice Posner of the 7th Circuit stated in his remarks relating to Sir Francis Bacon, that

the judge who does not fulfill the bargain after he has taken the money is equally ascorrupt as the judge who takes the money and fulfills the bargain.

A review of judicial payments shows a clear pattern that L.A. County has

bought the L.A. County Superior Court without the consent of the other party

opposing them. Appendix D of the Judicial Council of California report titled,

Historical Analysis of Disparities in Judicial Benefits, dated December 15, 2009

shows X in the column Benefit available to All Judges. Examples confirming Los

Angeles County Auditor-Controllers data on payments to individual judges are

shown on pages AA-119, AA-286 and AA-402. The 2010-2011 L.A. County

proposed budget Trial Court Operations section shows the aggregate payments on

page AA-134, the first line of dollar numbers.


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Sturgeon I made county judicial benefit payments illegal. On December 23,

2008, over 1,400 California judges lost all judicial immunity for any case in which a

county was remotely an interested party. Two months later, on February 20, 2009, the

legislature hastily passed SBX2 11, and convicted all those 1400 judges by attempting

to give them all an unconstitutional 5 retroactive immunity (AA-140, last para. sec. 5).

Sturgeon II declared the situation after SBX2 11 to be the same as before Sturgeon I

(AA-362:4). Furthermore, the Court refused to prescribe a fix for the problem,

proffered its trust in the legislature (AA-362:7) but encouraged real change through

legal action by taxpayers and judges (AA-362:15). Thus, the Fourth Appellate District

acknowledged, on December 28, 2010, the likelihood and even encouraged taxpayer

actions, such as this one challenging the constitutionality of SBX2 11.

The key to understanding the judicial branchs unwillingness to fully address

their responsibility is found in the Fourth Appellate Courts acknowledgment during

oral arguments on October 13, 2010 of the great turmoil 6 among the judges over

Sturgeon I .

Following those oral arguments, and only one week before a decision on

Sturgeon II , Chief Justice Ron George, a strong and long-time proponent of increased judicial salaries, reasserted his interest and assigned the Sturgeon II Presiding Judge

Tricia Benke, on December 22, 2011 (AA-431, 3 rd para.), as Acting Chief Justice of a

new appointed California Supreme Court, on another high-profile case (AA-430).

This collegial plum of an appointment had no purpose other than to influence the

Sturgeon II decision-making process. On December 28, 2010 the Sturgeon II decision

5 California Constitution, Article 1, Section 9 states A bill of attainder, ex post facto law,or law impairing the obligation of contracts may not be passed.6 Media coverage by Full Disclosure The News Behind The News, Are Judicial

Double Benefits Constitutional? Judges To Rule on Judges Benefits Round II, InternetExclusive Video News Blog, http://fulldisclosure.net/Blogs/92.php; Release Date:

November 21, 2010


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claimed the Justices had limited authority to enforce the California Constitution,

refused to declare SBX2 11 unconstitutional, and dared the people of California to

stand up for their due process rights. Now both the legislature in 1995 (AA-327, last

line) and the judiciary in 2010 have dared (AA-362:15) the people to fight for their

due process rights!

F. SBX2 11 AMNESTY AND RETROACTIVE IMMUNITY

In 1965, unlike current state and local leaders in California, the very idea of

"retroactive immunity" was so radical, so repugnant to the most basic principles of the

"rule of law," and so profoundly offensive that Sen. Robert Kennedy (who had beenthe Attorney General when the banks broke the law with their mergers), as well as

then-Attorney General Nicholas Katzenbach, together engaged in extraordinary

efforts to try to put a stop to the Congressional travesty, where Congress, in 1965,

attempted to enact a law retroactively legalizing the mergers by six large banks, which

clearly -- as a federal court found -- were illegal under our nation's antitrust laws.

The banks knew at the time they were violating anti-trust laws, did it anyway;

and when courts began ruling that their behavior was illegal, they ran to Congress for a law granting them amnesty, claiming that the consequences would be ruinous if they

were held accountable under the law.

Likewise, the California Fourth Appellate Court, in Sturgeon I , held the

judicial payments were unconstitutional; the Administrative Office of the Courts

knew the consequences were huge (AA-328:1) if they were held accountable under

the law and they scared the legislature into passing, under the cover of darkness, the

hasty and flawed SBX2 11 with retroactive immunity for all sitting judges. The

California Fourth Appellate Court, in Sturgeon II , again held that judicial

compensation was a state responsibility, that SBX2 11 was a temporary fix, refused to

stop the county payments and instead deferred to, and encouraged, citizen actions to


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hasten legislative action. The Fourth Appellate Court was surely aware of the

magnitude of the consequences of their decision and allowed the retroactive immunity

to continue under SBX2 11.

The CJP actions have spotlighted the California Attorney Generals complicity

in the retroactive immunity and the amnesty to Judges and the 35 County Superior

Courts. Pursuant to Rule 14.1 (e)(v) and pursuant to 28 U.S.C. 2403 (b), the

California Attorney General has not certified the Constitutionality of SBX2 11.

G. DENIAL OF DUE PROCESS

Defendants action of taking the illegal payments in the past and failure torecuse herself, constitutes fraud on the court. This denied Petitioner due process by

denying him the right to an impartial tribunal. In Re Murchison, 349 U.S. 133, 136

(1955).

The L.A. County payments to L.A. Superior Court judges were held to violate

Article VI, Section 19 of the California Constitution in the case of Sturgeon I and II .

SBX2 11 did not change the California Constitution, did not make the judicial

benefits a state obligation, and therefore continuing payments also violate theConstitution. The Sturgeon II decision acknowledged that SBX2 11 preserved the

status quo ante Sturgeon I

AA-134 to AA-137 show a copy of the L.A. County Fiscal Year 2010-2011

Proposed Budget Trial Court Operations pages 60.1 to 60.4. Such section shows that

the judicial benefits are required to be paid under the 1997 Lockyer-Isenberg Trial

Court Funding Act (AA-134). This is a false statement.

Senate Bill SBX2 11 gave retroactive immunity because of benefits provided

to a judge under the official action of a governmental entity. Senate bill SBX2 11 did

not give immunity to a judge who did not disclose the county payments and then

presided over a case in which the county had an interest or was a party. Neither Judge


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Weinbach nor Judge OBrien disclosed their receipt of County benefits and both

presided over cases in which the County had a substantial financial interest.

The U.S. Supreme Court has stated in the case of Offutt v. United States, 348

U.S. 11, 14 (1954): A judge receiving a bribe from an interested party over which he

is presiding does not give the appearance of justice. In essence, by making all L.A.

Superior Court judges eligible for the L.A. County payments, L.A. County has

bought the L.A. Superior Court.

This type of action has been held to be a denial of due process by the U.S.

Supreme Court, which stated in the case of Caperton v. A.T. Massey Coal Co., Inc.,

566 U.S. ___ (2009) at Slip Opinion page 16 in relevant part:

........just as no man is allowed to judge his own cause, similar fears of bias

can arise when, without the consent of the other parties, a man chooses a judge in his

own cause.

H. MISPRISION OF FELONY ARISING FROM SBX2 11 APPLIES TO JUDGES,

THE SUPERIOR COURT, THE ATTORNEY GENERAL AND THE

DISTRICT ATTORNEY

A jury could likely find that the failure to report and also the attempt to conceal

the unconstitutionality of L.A. County payments are crimes under federal law which

judges are sworn to uphold. Misprision of felony is still an offense under United States

federal law after being codified in 1909 under 18 U.S.C. 4:Whoever, having knowledge of the actual commission of a felony cognizable by

a court of the United States, conceals and does not as soon as possible make known the

same to some judge or other person in civil or military authority under the United States,shall be fined under this title or imprisoned not more than three years, or both.


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I. SBX2 11 GIVES THE APPEARANCE OF A BRIBE BECAUSE LOS

ANGELES COUNTY IS NOT A SOVEREIGN ENTITY

Los Angeles County is not a sovereign entity; only the Federal Government and

each of the 50 states are sovereign within the United States of America. (Plaintiff intends

to use sovereign in its traditional sense.)

It appears that the basic civic lesson on sovereignty is lost on not only the Los

Angeles Superior court but also on the Los Angeles Federal District Court. Note the

similarity of the reductio ad absurdum arguments by United States Magistrate Judge,

Central District of California, Carla Woehrle, (case 2:09-cv-01914-JFW-CW Document25-2 Filed 06/12/2009 Page 19 of 25),

On Petitioners logic, one might as well argue that all state judges should be precluded from hearing cases involving the states, and that all federal judgesshould be precluded from hearing cases involving the federal government.

and Respondents Reply to Opposition to Demurrer (AA-217, line 27)

It bears repeating that by Coopers reasoning, in any California state courtmatter where the State of California itself is a party, any state court judicial

officer would be automatically disqualified and must recuse themselves as thestate legislature is responsible for setting and paying the judicial officerscompensation. This would be an absurd result.

Plaintiff acknowledges that judicial compensation by sovereign entities is an

accepted compromise by the sovereign when the sovereign entity is itself involved in a

matter before the judiciary. This is a deeply considered compromise, not an absurdum.

Payments by the sovereign are clearly preferable for judicial matters (the vast majority)

applicable to non-sovereign lower-level organizational entities, such as county

government.

For this reason the integrity of the Courts and the strict adherence to the rule of

law are all the more important when the interests of the People or the Sovereign are

before the courts. For the District and Superior Courts to treat this sovereign compromise


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like a mere exercise in rhetorical reductio ad absurdum from Aristotle's Prior Analytics

is to demean the law.

Under Lockyer-Isenberg and even under SBX2 11, Los Angeles Countys actual

payments to a judge are no different than payments (hypothetically) by Plaintiff. Both

might be considered or appear as bribes. The test is what the court would do if Plaintiff

offered a $58,000 payment to Judge Weinbach or to Judge OBrien or even to members

of this Court. Would Cooper have the same immunity asserted by and for Los Angeles

County?

J. LOS ANGELES COUNTY IS AN INTERESTED PARTY IN PLAINTIFFS

DIVORCE. PAYMENTS TO A JUDGE SHOULD BE ALLOWED BY BOTH

PARTIES OR BY NEITHER PARTY.

On AA-337 line 26 Respondent simply asserts that L.A. County is not a party

but then totally ignores the material facts presented by Plaintiff (AA-123

Collaborative Partners, and AA-102 to AA-115))

The stated purpose of Los Angeles County payments is to retain judges in

Los Angeles County. The favorable disposition related to job location choicereasonably and easily carries over to a general pre-disposition in favor of Los Angeles

County, its supervisors and its law enforcement officials in matters where the county

has an interest.

The favorable disposition purchased by the Los Angeles County judicial

payments to Judge OBrien certainly extends to protecting a judicial colleague (Judge

Weinbach) in this civil case as well as protecting the underlying stream of Title IV-D

monies. Protecting Title IV-D also protects funding for other similar programs such as

the very troubled Title IV-E Foster Care Program.

The partnership of L.A. County with the Los Angeles Superior Court is clearly

documented (in lead case YC064994) for all Family Law and Traffic Court cases. The


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L.A. County Payments, like any made (hypothetically) by Plaintiff could be

considered bribes as they influence Judges. In family law cases, the incentive is

to award unequal custody and thus by L.A. County Child Support Services

Department (CSSD) guidelines establish the higher custody payments from

noncustodial parents. The L.A. County Child Support Services Department

establishes financial .... support obligations for children... as required under federal

and state law and works as a collaborative Partner with the Superior Court. The

payment of money by L.A. County to the judge who rules on the amount of child

support (which taken in the aggregate) directly determines the expenses of the L.A.

County Child Support Services Department. Those expenses then directly determine

the amount of money that the L.A. County Child Support Services Department

receives in Title IV-D federal and state funds. ($176 million received from Title IV-D

compared to the small $3 million cost to L.A. County [see AA-125].) The annual $30

million cost of judicial benefits was cost effective for L.A. County at a ratio of 6:1 for

just that one single program.

The higher the number and monetary amount of support orders against non-

custodial parents, the higher the enforcement expenses of the L.A. County ChildSupport Services Department, and thus the higher the amount of Title IV-D federal

and state funding to the county. L.A. County has a direct interest in the judge setting

the greatest number and the highest monetary awards for child support orders. L.A.

County is a real party in interest in every divorce case as it reaps a huge financial

benefit.

The payments by L.A. County to the judge in a divorce case have no purpose

other than to influence the judges decision to create a non-custodial parent and a

subsequent high child support order, which frequently require enforcement resources

which are also federally funded.


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Respondents seem incapable of seeing the linkage between the county

revenues (interests) generated in Traffic Court and Family Court. Respondents have

never addressed the revenue issues of Traffic Court and Family Court. In fact,

footnote 6 on page AA-338 demonstrates that Court Counsel as well as many judicial

officers think that the Couny of Los Angeles is a sovereign entity. It is Respondents

own understanding of our government that is absurd and unworkable.

While Respondents are incapable of seeing the revenue biases and county

interests in Plaintiffs suits, Court Counsel is itself actively engaged in seeking to

disqualify one of its own, a different Los Angeles County Judge. Plaintiff understands

that Court Counsel portrays Judge Amy Pellman as biased against the County Foster

Care program and thus causes a loss of Title IV-F Foster Care revenues. Judge Amy

Pellman receives the Los Angeles County payments but is not perceived to be keeping

the bargain.

Justice Posner of the 7th Circuit stated in his remarks relating to Sir Francis

Bacon, that the judge who does not fulfill the bargain after he has taken the money

is equally as corrupt as the judge who takes the money and fulfills the bargain.

K. CHANGE OF VENUE NEEDED FOR RESOLUTION OF CONSTITUTIONAL

ISSUES

The constitutionality of SBX2 11 (text shown at AA-139) is critical to each

decision in this case. The Commission on Judicial Performance (CJP) request for the

Attorney General to determine the constitutionality of SBX2 11 as well as the CJPs

own analyses showing SBX2 11 to be unconstitutional are shown starting at page AA-

292. The Attorney General rulings against trying to use county payments to increase

judicial compensation span over 50 years. There is no AG ruling, post-SBX2 11, on

the constitutionality of judicial benefits.


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The Zolin memo (AA-317) shows the County trying to justify payments by the

Superior Court to Judges, Commissioners and other Court employees. The CJA also

provided a short defense of the judicial benefits.

Only if the judiciary has the courage to uphold and protect the California

Constitution in all matters pertaining to the judiciary itself, can it retain its authority to

rule upon or impose a solution on this or any other major issue confronting the voters

and their legislators.

If this case remains before Judges who have previously taken the county

payments, it will immediately deny Petitioner his 1st, 5th and 14th Amendment rights,

resulting in a travesty of justice and a waste of judicial resources.

These underlying cases against judges bear striking similarity to a northeastern

Pennsylvania judge ordered to spend nearly three decades in prison for his role in a

massive juvenile justice bribery scandal that prompted the state's high court to toss

thousands of convictions. The judge remained DEFIANT after the jury verdict,

INSISTING the payments were legal and denying he incarcerated youths for money.

VI. REASONS FOR GRANTING THE PETITION

Plaintiff requests this Court to strongly defend the California Constitution. Due

to the unconstitutional nature of the county judicial payments, the unconstitutional

retroactive immunity of SBX2 11 and the unconstitutional denial of due process

rights, the people of California need their rights affirmed.

The legislative fix, SBX2 11, fails to remedy the situation, violates the federal

Equal Pay Act, and violates additional provisions of the California Constitution because

it grants retroactive immunity and thus usurps the authority of the independent

Commission on Judicial Performance. The California Attorney General has never

certified the constitutionality of SBX2 11 pursuant to United States Supreme Court Rule

14.1 (e)(v) and pursuant to 28 U.S.C. 2403 (b).


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VII. CONCLUSION

This Petition shows that good cause exists. The unconstitutional payments to

the judges deny due process. An unbiased Court will find the balance of hardships tips

sharply in Petitioners favor. Petitioner has a strong likelihood of prevailing on the

merits and will suffer irreparable injury if the requested relief is not granted. Walczak

v. EPL Prolong, Inc, 198 F.3d 825, 831 (9 th Cir. 1999). The loss of a constitutional

right, particularly a First Amendment right, is, in itself, sufficient injury to justify the

requested relief. Associated Gen. Contractors of Cal., Inc. v. Coalition for Econ.

Equal., 950 F.2d 1401, 1412 (9 th Cir. 1991); Guiterrez v. Municipal Ct., 838 F2d

1031, 1045 (9 th Cir. 1988), vacated as moot , 490 U.S. 1016. A review by this Court is

in the public interest, as well, as (t)he public has a fundamental interest in the

protection of all peoples constitutional rights. See Sammartano v. First Judicial

Distict Ct. , 303 F.3d 959,973 (9 th Cir. 2002).

For all of the above stated reasons, Petitioner respectfully urges the Court to

grant appropriate relief as may be just and proper.

PRAYER

Appellant requests a detailed opinion by this Court on each of the

constitutional questions identified below : Affirm that Los Angeles County judicial payments to judges are made to

individuals who are making personal and individual choices to live and work inLos Angeles County. Affirm that Superior Court of California, Los Angeles County judicial

payments to Commissioners are made to individuals who are making personal and

individual choices to live and work in Los Angeles County.


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Affirm that acceptance of the payments is an individual act, not covered under

the wage and salary agreements between the employee and the Superior Court as

covered by State and Federal labor laws. Affirm that the immunity of SBX2 11, Section 5 is unconstitutional due to

Article 1, Section 9 of the California Constitution. Affirm that the immunity of SBX2 11, Section 5 is unconstitutional due to the

lack of equal protection for ordinary citizens to make similar judicial payments to

judges. Affirm that SBX2 11, Section 2 does not authorize Los Angeles County

Superior Court (not a county) to make judicial benefits payments to

Commissioners, Court Counsel or other non-Judges. Affirm that SBX2 11, Section 2 allows a reduction in county judicial benefits

for all judges equally within a county or court. Affirm that judicial benefits from a county or court, received in the past, but

not currently, will continue to influence or bias the judicial officer and thus still

constitute a disqualifying event.

Dated: March 29, 2013

Respectfully submitted, __________________________________ Daniel Cooper

"I declare, under penalty of perjury under the laws of the United States and under thelaws of the State of California, that the fo

b241184 cooper vs weinbach petition r7g

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