Thursday, November 5, 2015

Letter to the Ninth Circuit Court of Appeals

Post 6/23

In my last post on October 19, I stated that there would be a constitutional crisis if the Ninth Circuit Court of Appeals did not reverse its ruling relative to my appeal. I also stated that the court's ruling was void and I had no intention of complying with it as it currently stands. Today I am posting a letter I sent to the Ninth Circuit Court of Appeals Clerk of Court Molly Dwyer and the Panel that heard my appeal. My purpose for the letter is to make it clear to the court and the City of San Jose that I will not be bullied into relinguishing my rights.



              
Frederick Bates
Folsom, CA 95630
(408) 510-
                                                                                                           

October 15, 2015


Molly Dwyer, Clerk of Court
United States Court of Appeals for the Ninth Circuit
Post Office Box 193939
San Francisco, CA 94119-3939

Re: Frederick Bates – Appellant v. City of San Jose; et al – Appellees; No. 13-16397 and D.C. No. 5:06-cv-05302-RMW

To Clerk of Court Molly Dwyer and the Panel hearing my appeal (Canby, Bea, and Murguia, Circuit Judges):

On August 14, 2015, I filed a petition for panel rehearing. My petition argues that the ruling of this court on my appeal is a void judgment because it relies on the written order of the district court purported to be on the merits. As I argued in my petition, the district court’s written order is void because the court had already granted the City a default judgment by way of their dispositive “motion to dismiss” in the hearing on April 26, 2013, because I failed to appear. The default judgment divested the district court of jurisdiction to enter its written order. The district court made an apparent attempt to reconcile the contradiction in its judgment from the bench and its written order in a letter in October 2013, months after this court had already acquired jurisdiction. Therefore, the district court lacked jurisdiction to amend or modify its judgment. For this reason, the letter of the district court does not change the default judgment it entered during the hearing. The written order is a nullity. The judgment of this court is void as well because it affirms the written order of the district court. There can be no credible argument made in opposition to this fact.
The purpose of this letter is not to reargue my petition, but to strongly encourage this court to immediately grant my request for a rehearing and reverse the decision affirming the void judgment of the district court based on its written order. The order of this court is nothing more than an attempt to give legitimacy to the district court’s ruling that granted the City’s motion for summary judgment. Unfortunately, this draws attention away from the merits of this case and the clear and convincing evidence of fraud perpetrated by district court officials and the City relative to the hearing on my motion for relief from judgment. My fraud claims are addressed in my motion to vacate judgment dated September 23, 2014.
The judgment of the district court granting the City’s summary judgment motion will never gain legitimacy and will always be void and unenforceable under the law; because the district court failed to follow the mandate of Article IV, Section 1of the United States Constitution (Full Faith and Credit Clause). Article IV, Section 1 is implemented by 28 USC, Section 1738 (Full Faith and Credit Act). The Full Faith and Credit Act command federal courts

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to follow the preclusion law of the state from which a judgment is taken. Federal courts have no discretion at all when it comes to applying preclusion rules to state court judgments. This has been settled law from nearly the beginning of our republic. It is unarguable that the district court failed to follow the preclusion law of California and employed its own rules when it granted preclusive effect to the small claims judgment at issue. California courts will not grant preclusive effect to the small claims judgment because there was no actual litigation or a determination of the issue I raised in my complaint. Furthermore, there is no record at all of what transpired in the small claims hearing.
In affirming the written order of the district court, this court opined that the district court properly determined that I was not entitled to relief under Rule 60(b)(4) because the district court’s “prior” judgment was not void due to jurisdictional error or a violation of due process. The Supreme Court’s ruling in the Espinosa case was cited as the authority. The Espinosa case establishes that Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard. My motion for relief under Rule 60(b)(4) does not conflict with the Espinosa case. I argued in my motion that the district court’s “prior” judgment is void under Rule 60(b)(4) because it gives preclusive effect to the small claims judgment that is constitutionally infirm. The small claims judgment is constitutionally infirm because I was deprived of the opportunity to be heard during the hearing in small claims court. Therefore, the order of the district court that gives preclusive effect to the small claims judgment is void for the same reason. It is reasonable to conclude that my motion is appropriate under Rule 60(b)(4). This argument, however, is not meant to change in any way my position that the default judgment of the district court based on the motion to dismiss it granted to the City is the only judgment that this court can legitimately base its ruling. I maintain that the written order of the district court is a nullity and the judgment of this court affirming the written order is a nullity as well. Furthermore, there is no procedural bar to providing me relief from the void judgment of the district court as the ruling of this court seems to imply. As stated in my petition, my motion for relief would also have been appropriate in an independent action; or the courts could have provided me relief sua sponte.
Again, I encourage this court to grant my petition for a panel rehearing and reverse its ruling on my appeal. A failure to do so will result in a constitutional crisis because, as noted above, it is indisputable that the ruling of this court as it currently stands is in violation of Article IV, Section 1 of the United States Constitution (Full Faith and Credit Clause) which is implemented by 28 USC, Section 1738 (Full Faith and Credit Act). Therefore, the current ruling of this court that precludes my lawsuit against the City of San Jose on the basis of collateral estoppel is a void judgment. It is unenforceable just as all of the other judgments that preclude my lawsuit on the basis of collateral estoppel. It is inconceivable that the courts would apply collateral estoppel in this case when there is no record of what transpired in the small claims hearing. Both the district court and this court have simply used creativity and wishful thinking in applying collateral estoppel. Simply put, if there is no record, collateral estoppel cannot apply.
Additionally, I argued in my petition, and on appeal, that the stipulation of dismissal of Defendant Tuck Younis is also void because it was entered without my consent, I received no benefit from it, and it impaired my cause of action. The actions of my attorney and the City in

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dismissing Younis without my authorization deprived me of an absolute right. My motion for relief from the stipulation of dismissal is also proper under Rule 60(b)(4) because I was deprived of the opportunity to be heard on my cause of action as to Defendant Younis. The stipulation of dismissal was not addressed by this court.
A failure of this court to reverse itself all but ensures that litigation will not end, because the current ruling of this court is void by law and I am under no obligation to comply with it. I will not be bullied by the courts or the City into relinquishing my rights in this matter. This means that more judicial resources will be wasted; and it will also create a very uncomfortable situation. I appeal to the conscience of the court to provide me the relief I am due by law; because relief from a void judgment is not discretionary, it is mandatory.



                                                                                                Sincerely,



                                                                                                Frederick Bates