`FILED
`FEB 0420
`19
`'j T
`
`~Fj
`
`SQ
`
`UF
`
`WN
`
`1095
`IN THE
`SUPREME COURT OF THE
`UNITED STATES
`
`CHARLES G. KINNEY,
`Petitioner,
`
`V.
`
`FRANCES ROTHSCHILD; et al.,
`Respondents,
`
`On Petition For Writ Of
`Certiorari To The
`Ninth Circuit Court of Appeals
`#18-15805 (11/8/18 denial of right
`to proceed with appeal) [1 of 2]
`
`U.S. District Court, Northern
`District of Calif. (San Francisco)
`#3:17-cv-07366-VC
`
`PETITION AND APPENDIX FOR
`AWTRIT OF CERTIORARI
`
`CHARLES KINNEY
`Petitioner in pro se
`5826 Presley Way
`Oakland, CA 94618
`charleskinney@hotmail.com
`Telephone: 510-654-5133
`Fax: 510-594-0883
`
`
`
`QUESTION PRESENTED
`
`It is rare for a federal statute to say it "voids" a
`court judgment, but that is exactly what 11 U.S.C.
`Sec. 524(a)(1) does. If that decision determines a
`2010 Chapter 7 "no asset" discharged-debtor still
`has some "personal liability" to a listed-unsecured
`creditor, that judgment, order or sanction is void
`regardless of the rationale used to justify it. Since
`the statute "voids" the decision, there is no need
`for a collateral attack; it is not a defacto appeal;
`and the Rooker-Feldman doctrine does not apply.
`11 U.S.C. Sec. 524(a)(2) prohibits listed unsecured
`creditors from employing any means to obtain any
`judgment, order or sanction which determines
`(e.g. presumes) a discharged Chapter 7 "no asset"
`debtor still has "personal liability" to a creditor.
`For over 8 years, listed unsecured-creditor David
`Marcus has filed attorney fee motions on behalf of
`his client, discharged Chapter 7 "no asset" debtor
`Clark, based on pre-petition contracts, with help
`from contract attorney Eric Chomsky. Their goal
`was to shift pre- and post-petition attorney's fees
`incurred by Clark onto listed-creditors Kinney and
`Kempton, co-buyers of Clark's house in 2005.
`Dockets show that state and federal courts keep
`issuing decisions that concede debtor Clark is
`still liable to creditor Marcus for legal work (and
`Marcus keeps filing attorney's fee "cost" motions
`to shift those fees onto Kinney), contrary to law.
`Bosse requires all courts to follow the law. Why is
`this court ignoring Kinney's constitutional rights?
`
`
`
`PARTIES TO THE PROCEEDINGS
`
`The parties to this proceeding are those
`appearing in the caption to this petition.
`
`
`
`TABLE OF CONTENTS
`
`QUESTIONS PRESENTED ............i
`
`PARTIES TO THE PROCEEDINGS .....ii
`
`TABLE OF CONTENTS ...............in
`
`INDEX TO APPENDICES ..............v
`
`TABLE OF AUTHORITIES .............vi
`
`PETITION FOR WRIT OF CERTIORARI. .1
`
`OPINIONS BELOW ...................26
`
`JURISDICTION ......................26
`
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED .............27
`
`STATEMENT OF THE CASE ...........27
`
`SUMMARY OF LOWER COURT
`PROCEEDINGS ......................28
`
`STATEMENT OF FACTS ..............28
`
`REASONS FOR GRANTING THE
`WRIT OF CERTIORARI ...............29
`
`Certiorari Should Be Granted Because The Courts
`are Compelling Silence About Ongoing Violations
`of Federal Law Which Violates Kinney's First
`Amendment Rights, and Other Laws as to
`Kinney; And The Method and Application of
`
`111
`
`
`
`Alleged Due Process by the Ninth Circuit Severely
`Impairs Meaningful Review of Important
`Questions of Federal Law; And Severely Impairs
`Rights Guaranteed Under the First, Fourth, Fifth
`and Fourteenth Amendments; and Is In conflict
`with the Decisions of This Court and Other
`United States Court Of Appeals ...........29
`
`CONCLUSION .......................33
`
`APPENDIX
`
`lv
`
`
`
`INDEX TO APPENDIX
`
`Appendix numbers at top of page
`
`Seciuential No.
`In Document
`
`Appendix A: Nov. 8, 2018 "final" decision by the
`Ninth Circuit which denied Kinney's right to
`proceed with his appeal by dismissing it .....1
`
`Appendix B: Feb. 26, 2018 order by US District
`Court Judge Vince Chhabria dismissing Kinney's
`complaint with 11 U.S.C. Sec. 524 claims .....3
`
`Appendix C: March 30, 2018 order by US District
`Court Judge Vince Chhabria denying Kinney's
`motion to vacate the dismissal order ..........5
`
`V
`
`
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Airlines Reporting Corp. V. Renda,
`177 Cal.App.4th 14 (Cal. 2009) ......33
`
`American Ry. Express Co. v. Levee,
`263 U.S. 19 (1923) ..............27
`
`Bauer v. Texas
`341 F.3d 352 (5th Cir. 2003) .....15, 30
`
`BE & K Constr. Co. v. NLRB,
`536 U.S. 516 (2002) ..............31
`
`Boddie v. Connecticut,
`401 U.S. 371 (1971) ..............20
`
`Bosse v. Oklahoma,
`580 U.S. -, 137 S.Ct. 1 (2016) .....33
`
`Bracy v. Gramley,
`520 U.S. 899, (1997) .............32
`
`Broadman v. Comm. on Jud. Perf.,
`18 Ca1.4th 1079 (Cal. 1998) ........5
`
`Bulloch v. United States,
`763 F.2d 1115 (loth Cir. 1994) .....33
`
`Canatella v. State of California
`304 F.3d 843 (9th Cir. 2001)... . 15, 30
`
`Citizens United v. Fed. Election Comm.,
`558 U.S. 310 (2010) ............4
`
`vi
`
`
`
`Cohen v. California,
`403 U.S. 15 (1971) ...............27
`
`Colorado River Water Conserv. Dist. v. US,
`424 U.S. 800 (1976) ...............33
`
`De Long v. Hennessey,
`912 F.2d 1144 (9th Cir. 1990) ........2
`
`Devereaux v. Abbey
`263 F.3d 1070 (9th Cir. 2001).. . . 15,30
`
`Dist. of Columbia Ct. of App. v. Feldman,
`460 U.S. 462 (1983) ...........7, 12
`
`Dodds v. Comm. on Judicial Perf.,
`12 Cal.4th 163 (Cal. 1994) .........4
`
`Donovan v. City of Dallas,
`377 US. 408 (1964) ..............14
`
`Evans v. Fraught,
`231 Cal.App.2d 698 (Cal. 1965). .. 22
`
`Exxon Mobil v. Saudi Basic Indust.,
`544 U.S. 280 (2005) .............6
`
`Fink v. Shemtov,
`180 Cal.App.41h 1160 (Cal. 2010) .. 17
`
`F.T.C. v. Ticor Title Ins. Co.,
`504 U.S. 621 (1992) ............26
`
`Fitzpartrick v. Bitzer,
`427 U.S. 445 (1976) ............26
`
`VII
`
`
`
`Fowler v. Guerin,
`899 F.3d 1112 (9th Cir. 2018) .......6
`
`Goncalves v. Rady Child. Hosp. San Diego,
`865 F.3d 1237 (9th Cir. 2017) ......13
`
`Grannis v. Ordean,
`234 U.S. 385 (1914) .............31
`
`Griffin v. Illinois,
`351 U.S. 12 (1956) ..............32
`
`Hafer v. Melo
`502 U.S. 21 (1991) ............15, 30
`
`Hernandez v. Sessions,
`872 F.3d 976 (9th Cir. 2017) .......30
`
`Hooten v. H Jenne III,
`786 F.2d 692 (5th Cir. 1986) ......30
`
`In re Castellino Villas AKF, LLC,
`836 F.3d 1028 (9th Cir. 2016) ......13
`
`In re Gruntz,
`202 F.3d 1074 (9th Cir. 2000) .......6
`
`In re GVF Cannery v. Wells Fargo Bank,
`202 B.R. 140 (N.D. CA. 1996) .......19
`
`In re Isaacs,
`895 F.3d 904 (6th Cir. 2018) .........33
`
`In re Justices of Supreme Crt. of Pueto Rico
`695 F.2d 17 (1st Cir. 1982) ......25, 30
`
`viii
`
`
`
`In re Kinney,
`201 Ca1.App.4th 951 (Cal. 2011). .. 4, 24
`
`In re Marino,
`577 B.R. 772 (9th Cir. 2017) .........5
`
`In re McLean,
`794 F.3d 1313 (11th Cir. 2015) ......4, 33
`
`In re Murchison,
`349 U.S. 133 (1955) ..............32
`
`In re Schwartz,
`954 F.2d 569 (9th Cir. 1992) .........6
`
`In re Thomas,
`508 F.3d 1225 (9th Cir. 2007) ........28
`
`Jameson v. Desta,
`5 Cal.5th 594 (Cal. 2018) ............12
`
`Janus v. Am. Fed. of State, Cty & Muni. Empi,
`585 U.S.
`(2018) ...........15, 30
`
`John v. Superior Court,
`61 Ca1.4t' 91 (Cal. 2016) ............12
`
`Johnson v. DeGrandy,
`512 U.S. 997 (1994) ..............12
`
`Johnson v. United States,
`135 S.Ct. 2551 (2015) .............12
`
`Kalb v. Feuerstein,
`308 U.S. 433 (1940) ...............7
`
`ix
`
`
`
`Keith v. Kinney,
`961 P.2d 516 (Cob. App. 1997) .....25
`
`Keith v. Kinney,
`140 P.3d 141 (Cob. App. 2006) ......25
`
`Kempton & Kinney v. City of Los Angeles,
`165 Cal.App.4th 1344 (Cal. 2008)... 19
`
`Kinney v. Clark,
`12 Ca1.App.5th 724 (Cal. 2017) . 11, 19, 24
`
`Kinney v. Keith,
`128 P.3d 297 (Cob. App. 2005) ......25
`
`Kinney v. Overton,
`153 Ca1.App.4th 482 (Cal. 2007).... 18
`
`Kougasian v. TMSL, Inc.,
`359 F.3d 1136 (9th Cir. 2004)........7
`
`Lacey v. Maricopa County,
`693 F.3d 896 (9th Cir 2012) .....17, 31
`
`Levin Metals v. Parr-Richmond Term.,
`799 F.2d 1312(9th Cir. 1986) ........21
`
`Long v. Shorebank Develop. Corp.,
`182 F.3d 548 (7th Cir. 1999) .......6, 9
`
`McCarthy v. Madigan,
`503 U.S. 140 (1992) ...............33
`
`Michigan-Wisconsin Pipe Line v. Calvert,
`347 U.S. 157 (1954) ..............27
`
`x
`
`
`
`Moitahedi v. Vargas,
`228 Cal.App.4th 974 (Cal. 2014).. 12, 13
`
`Moran v. Murtaugh Miller etc LLP,
`40 Cal.4th 780 (Cal. 2007) .........12
`
`NAACP v. Alabama ex rel. Flowers,
`377 U.S. 288 (1964) .............31
`
`Nat. Inst. of Fam. & Life Adv. v. Becerra,
`585 U.S.
`(2018) .........15, 30
`
`Ogunsalu v. Superior Court,
`12 Cal.App.5t 107 (Cal. 2017) .....18
`
`Orner v. Shalala,
`30 F.3d 1307 (10th Cir. 1994).. . . . 4,33
`
`Patrick v. Burget,
`486 U.S. 94 (1988)) . .............26
`
`Pennhurst St. S. & H. v. Halderman,
`465 U.S. 89 (1984) ...............26
`
`Pennsylvania v. Union Gas Co.,
`491 U.S. 1 (1989) ................26
`
`Peralta v. Heights Medical Center,
`485 U.S. 80 (1988) ...............31
`
`Plaza Hollister Ltd. Ptsp v. Ctv of San Benito,
`72 Cal.App.4th 1 (Cal. 1999) ........32
`
`Riley v. Nat. Fed. of the Blind of NC, Inc.,
`487 U.S. 781 (1998) ..........15, 30
`
`xi
`
`
`
`Ringgold-Lockhart v. Cty. of Los Angeles,
`761 F.3d 1057 (9th Cir. 2014)... 2, 12
`Sinochem Intl. v. Malaysia Intl. Ship Corp.,
`549 U.S. 422 (2007) .............7, 32
`
`Sloman v. Tadlock,
`21 F.3d 1462 (9th Cir. 1994).... 16,30
`Smith v. Bennett,
`365 U.S. 708 (1961) ..............32
`
`Soranno's Gasco, Inc. v. Morgan,
`874 F.2d 1310 (9th Cir. 1989)... 16,30
`State Univ. of New York v. Fox,
`492 U.S. 469 (1989) ..............2
`
`Supreme Ct. of Virginia v. Consumers Union
`446 U.S. 719 (1980) ..........15, 25
`
`United Mine Workers v. Illinois Bar Assn.,
`389 U.S. 217 (1967) .............31
`
`United States v. Burkhart,
`682 F.2d 589 (6th Cir. 1982) ........25
`United States v. Carbo,
`572 F.3d 112 (3rd Cir. 2009) ........25
`United States v. Frazier,
`560 F.2d 884 (8th Cir. 1977) ........25
`United States v. Frega,
`179 F.3d 793 (9th Cir. 1999) ........25
`
`xii
`
`
`
`United States v. Hooten,
`693 F.2d 857 (9th Cir. 1982) ........30
`United States v. Inzunza,
`638 F.3d 1006 (9th Cir. 2009) .......25
`United States v. Murphy,
`768 F.2d 1518 (7th Cir. 1985) .......30
`United States v. Stephenson,
`895 F.2d 867 (2nd Cir. 1982) ........25
`
`Verizon Maryland v. Public Serv. Comm.
`535 U.S. 635 (2002) ..............12
`
`Williams v. Pennsylvania,
`_U.S._, 136 S.Ct. 1899 (2016) .....13
`Wolfe v. George,
`486 F.3d 1120 (9th Cir. 2007) ........2
`Wolfe v. Strankman,
`392 F.3d 358 (9th Cir. 2004) ......3, 12
`Zarcone v. Perry,
`572 F.2d 52 (2x Cir. 1978) .......30
`CONSTITUTIONAL PROVISIONS AND
`STATUTES
`
`U.S. Const., Amend. I... 8, 14, 17, 29
`U.S. Const., Amend. IV ..........29
`U.S. Const., Amend. V ...........29
`U.S. Const., Amend. XIV ......17, 29
`U.S. Const., Article VI, Sec. 2 ......13
`
`xlii
`
`/
`1
`
`
`
`~I
`
`11 U.S.C. Sec. 524
`. 4,15
`ii U.S. C. Sec. 524(a). 1, 6, 9, 11, 12 etc
`11 U.S.C. Sec. 524(a)(1). 1, 3, 4, 7-9 etc
`ii U.S.C. Sec. 524(a)(2). 1, 3, 4, 8 etc
`
`18 U.S.0 § 152 ............21, 27, 34
`18 U.S.0 § 152(2) ...............34
`18 U.S.0 § 152(3) .............. 34
`18 U.S.0 § 152(4) ...............34
`18 U.S.0 § 152(5) ...............34
`18 U.S.C. Sec. 157 ..............34
`18 U.S.0 § 157(3) ...............34
`18U.S.C158 ..................34
`18 U.S.0 § 1346 and 1951..........25
`28 U.S.0 § 1254 (1) and 1257(a) .....26
`28 U.S.0 § 1331 and 1343
`7,27
`28 U.S.C. Secs. 1441 and 1443 . . . . 7,27
`28 U.S.C. Sec. 1452 ............7, 27
`28 U.S.C. Sec. 1651 ................2
`28 U.S.C. Sec. 1739 ...............6
`28 U.S.0 § 2101(c) ...............26
`42 U.S.C. Sec. 1983. 16, 21, 22, 26, 27, 30
`Cal. B&P Code Sees. 6001.1 & 6031(b). 16
`Cal. Civil Code Sec. 1717 .....5, 9, 22
`Cal. Code of Civ. Proc. Sees. 391-391.8. 1
`Cal. CCP Sec. 391.7 .............3
`Cal. CCP Sec. 1033.5(a)(10) . . 5, 9, 22
`30A Amer. Juris., Judgmts, 43, 44, 45. . 7
`
`xlv
`
`
`
`PETITION FOR A WRIT OF CERTIORARI
`
`Petitioner Charles Kinney requests that a writ of
`certiorari issue to review the "final" Nov. 8, 2018
`decision which denied Kinney the right to proceed
`with his appeal as to violations of bankruptcy law
`[e.g. 11 U.S.C. Sec. 524(a)(1) and (2)]; AND as to
`violations of the vexatious litigant ("VU) in his Ninth
`Circuit appeal #18-15805 (1 of 2) [Dk #2].
`
`The çjiy reason given in the dismissal by the Ninth
`Circuit was that the appeal was "so insubstantial"
`that Kinney could not proceed with it [App. A, 1].
`
`Insubstantial vs. Substantial
`The adverse economic impacts on Kinney of ongoing
`violations of bankruptcy law exceed $500,000 due to
`13+ "void" attorney fee orders for already-discharged
`pre- and post-petition debts shifted onto Kinney by
`Chapter 7 "no asset" discharged-debtor Michele Clark
`and by her listed-unsecured-creditor attorneys David
`Marcus etc (including the contract attorney Eric
`Chomsky). That is not an "insubstantial" amount.
`
`The bankruptcy law being violated [11 U.S.C. Sec.
`524(a)] was created: (1) to enjoin the exact activity
`that has been pursued by listed-unsecured-creditor
`attorneys David Marcus etc.; and (2) to "void" any
`resulting state or federal court attorney's fee awards
`or orders, but all of the lower courts refuse to follow
`the law. Those are not "insubstantial" issues.
`
`The VL law is being used as justification for allowing
`listed-creditors Marcus etc to continue to violate
`bankruptcy law against listed-creditors Kinney and
`his co-buyer Kempton (now deceased), and to compel
`
`1
`
`
`
`silence upon them by denying their First Amendment
`rights. Those are not "insubstantial" issues.
`
`Vexatious litigant laws
`The Calif. vexatious litigant ("VL") law is found at
`Code of Civil Procedure ("CCP") Sees. 391-391.8. It
`allows a Calif. court to make a person a VL when a
`federal court has made that person a VL, but without
`safeguards to keep a VL order from being overbroad.
`State Univ. of New York v. Fox, 492 U.S. 469, 482-
`486 (1989). In contrast to the "narrow" federal VL
`orders, all Calif. VL orders are "broadly" applied.
`
`The federal VL law arises from the All Writ Act (28
`U.S.C. Sec. 1651) and under federal law all VL orders
`must be "narrowly tailored" in scope. De Long v.
`Hennessey, 912 F.2d 1144, 1146-1149 (9th Cir. 1990).
`In Kinney's situation, the federal VL orders against
`him are being "broadly" applied" to all of his cases
`(e.g. to his Clean Water Act citizen-lawsuit cases).
`
`Wolfe v. George, 486 F.3d 1120 (9th Cir. 2007) did
`consider Cal. VL law, but not via a facial challenge.
`
`In 2014, the constitutional framework of VL laws was
`extensively clarified in Ringgold-Lockhart v. County
`of LA, 761 F.3d 1057, 1060-1067 (9th Cir. 2014).
`
`Since substantial changes have occurred to VL laws
`(e.g. in 2011) after the Wolfe decision, and since the
`Ringgold-Lockhart decision explains some issues of
`the VL law that the Wolfe decision never considered,
`the 2007 Wolfe decision is no longer controlling law.
`
`The defendants
`Calif. Court of Appeal, Second Appellate District,
`Division One ("COA2") Justices Frances Rothschild,
`
`2
`
`
`
`Victoria Cheney and Jeffrey Johnson were named as
`defendants. They have willfully and consistently
`ignored the application of 11 U.S.C. Sec. 524(a)(1)
`and (2) in all matters involving listed creditor Kinney
`with respect to 2010 Chapter 7 "no asset" discharged
`debtor Michele Clark and her listed unsecured
`creditor attorneys David Marcus etc.
`
`Those Justices decided an appeal against Kinney and
`in favor of Clark which clearly shows in the text of
`the published opinion that they and others are
`ignoring and/or violating 11 U.S.C. Sec. 524(a); see
`Kinney v. Clark, 12 Cal.App.5t 724 (Cal. 2017).
`
`Kinney's complaint
`On Dec. 29, 2017, Kinney filed a civil rights
`complaint in US District Court, Northern District of
`California, which was assigned case #3:17-cv-07366-
`VC [Dk #1]. 42 U.S.C. Sec. 1983.
`
`Kinney's complaint included ongoing violations of 11
`U.S.C. Sec. 524(a) as well both facial and as-applied
`challenges to the VL law [Dk #1]. All the courts and
`defendants continue to willfully ignore these
`violations [e.g. of 11 U.S.C. Sec. 524(a)(1) and (2)1.
`
`As for the ongoing violations of 11 U.S.C. Sec. 524, it
`is rare for a federal statute to say it "voids" a court
`judgment, but that is exactly what 11 U.S.C. Sec.
`524(a)(1) does. If that decision determines a 2010
`Chapter 7 "no asset" discharged-debtor still has some
`"personal liability" to a listed-unsecured creditor (e.g.
`Marcus), that judgment, order or sanction is "void"
`regardless of the rationale used to justify it.
`
`Sec. 524(a)(1) "voids" any decision by any court that
`decides a discharged-debtor is still "personally liable"
`
`3
`
`
`
`to a creditor. As to a "void" order, a collateral attack
`or an appeal (de facto or not) is unnecessary; and the
`Rooker-Feldman doctrine does not apply. Orner v.
`Shalala, 30 F.3d 1307, 1309-1310 (10th Cir. 1994).
`
`On the other side of the coin, 11 U.S.C. Sec. 524(a)(2)
`prohibits listed unsecured-creditors from employing
`any means to obtain any judgment, order or sanction
`that determines (e.g. implies) a discharged Chapter 7
`"no asset" debtor still has "personal liability" to any
`creditor. In re McLean, 794 F.3d 1313, 1321-1325 (11th
`Cir. 2015). Sec. 524(a)(2) is the discharge injunction
`and it has different consequences than Sec. 524(a)(1).
`
`For 8+ years, listed unsecured-creditor attorneys
`Marcus etc have filed attorney fee motions on behalf
`of a client, discharged Chapter 7 "no asset" debtor
`Clark, based on pre-petition contracts, with help from
`contract attorney Chomsky. Their goal was to shift
`both pre- and post-petition attorney's fees incurred by
`debtor Clark onto listed unsecured-creditors Kinney
`and Kempton, co-buyers of Clark's house in 2005, but
`Sec. 524(a)(2) absolutely prohibits those motions. In
`re Marino, 577 B.R. 772, 782-784 (9th Cir. 2017).
`
`The dockets from cases in state and federal courts
`show that courts keep issuing decisions that concede
`(admit) discharged-debtor Clark is still liable to
`listed-creditor Marcus for legal work. When attorney
`Marcus files an attorney's fee "cost" motion to shift
`Clark's legal bills onto Kinney, creditor Marcus
`concedes (admits) discharged-debtor Clark still has
`"personal liability" to him. Cal. Civil Code Sec. 1717;
`Cal. Code of Civil Procedure Sec. 1033.5(a)(10).
`
`As to the 13+ fee award orders, the state courts were
`engaging in willful judicial misconduct. Dodds v.
`
`4
`
`
`
`Commission on Judicial Performance, 12 Cal.4th 163,
`166-172 (Cal. 1994); Broadman v. Comm. on Judicial
`Performance, 18 Ca1.4th 1079, 1091-1113 (Cal. 1998).
`
`As for his facial challenge to Calif. VL law, Kinney
`contends that every application of that VIA law is
`unconstitutional because it is hopelessly vague (e.g.
`as to terms such as "litigation", "finally determined
`against", "merit", "reasonable expenses" for security;
`"presiding justice"); and because an "ongoing chill
`upon speech that is beyond all doubt protected makes
`it necessary in this case to invoke the earlier
`precedents that a statute which chills speech can and
`must be invalidated where its facial invalidity has
`been demonstrated". Citizens United v. Federal
`Election Commission, 558 U.S. 310, 331 (2010).
`
`As for his as-applied (factual) challenge to the VL
`law, Kinney contends the law was and is misapplied
`to him, contrary to specific language and criteria of
`the statute (e.g. because in 2008 Kinney was not a
`party and, as an in pro se plaintiff, did not have 5 out
`of 7 losses in the last 7 years; and because Kinney
`was not a party in Dec. 2011 when In re Kinney was
`issued by a "presiding justice" who did not have
`subject matter jurisdiction to do so at that time).
`
`This Court's Bosse decision requires all courts to
`follow the law, but no court has done that over the
`last 8+ years with respect to Kinney. The defendants
`were timely served, but they never made any
`appearance in the USDC case.
`
`USDC dismissal order
`On Feb. 26, 2018, USDC Judge Vince Chhabria
`entered a suci sponte dismissal order for Kinney's
`complaint [Dk #6; App. B, 3] and a judgment [Dk #7].
`
`5
`
`
`
`In his dismissal order [App. B, 3], Judge Chhabria
`justified his order by saying: (1) Kinney's complaint is
`a "de facto appeal" of state court decisions; (2) any
`additional issues are "inextricably intertwined" with
`state court decisions; (3) the district court is "without
`subject matter jurisdiction"; and (4) no amendment
`"could cure" the defects.
`
`Kinney is challenging "void" orders that were issued
`contrary to 11 U.S.C. Sec. 524(a) [and that have
`resulted in a "taking" of Kinney's property], so the
`civil rights complaint filed by Kinney cannot be a
`defacto appeal because no appeal is necessary from a
`"void" order and because full faith and credit cannot
`be given to a "void" order. 28 U.S.C. Sec. 1739.
`
`This is a "federal claim alleging a prior injury
`that a state court failed to remedy" [e.g. based on
`ii U.S.C. Sec. 524(a); and the "taking" of Kinney's
`property without due process]. Fowler v. Guerin, 899
`F.3d 1112, 1118-1119 (9th Cir. 2018); Exxon Mobil
`Corp. v. Saudi Basic Industries corp., 544 U.S. 280,
`284 (2005); Long v. Shorebank Development Corp.,
`182 F.3d 548, 554-561 (7th Cir. 1999); In re Schwartz,
`954 F.2d 569, 572 (9th Cir. 1992).
`
`Kinney's complaint is not an appeal of a legal wrong
`committed by a state court because the state court
`never considered the 11 U.S.C. Sec. 524(a) restraints;
`and because bankruptcy law completely overrides
`and preempts state law. In re Gruntz, 202 F.3d 1074,
`1078-1084 (9th Cir. 2000). A state court can issue a
`"final" fee award order, but that order is still "void".
`
`Likewise, any "void" orders cannot be "inextricably
`intertwined" with any valid state decisions because a
`void order is not accorded any dignity in the judicial
`
`
`
`system, and can be attacked without violating the
`Rooker-Feldman doctrine. Sinochem Intern. Co. v.
`Malaysia Intern. Shipping Corp., 549 U.S. 422, 430-
`431 (2007); Kalb v. Feuerstein, 308 U.S. 433, 428, 60
`S.Ct. 343, 345-46, 84 L.Ed. 370 (1940); Kougasian v.
`TMSL, Inc., 359 F.3d 1136, 1141 (91h Cir. 2004); 30A
`Amer. Jurisprud., Judgments, Secs. 43, 44, 45 (1958).
`
`As an aside, the Rooker-Feldman doctrine and other
`preclusionary rules do not apply to a facial challenge
`of the Calif. \TL law which was part of Kinney's civil
`rights complaint. District of Columbia Court of
`Appeals v. Feldman, 460 U.S. 462, 482-488 (1983).
`
`As for subject matter jurisdiction, this district court
`is the proper and only place to challenge state court
`orders which are "void" per 11 U.S.C. Sec. 524(a)(1).
`28 U.S.C. Secs. 1331, 1343, 1441, 1443, and/or 1452.
`
`USDC denial order
`On March 30, 2018, USDC Judge Chhabria denied
`Kinney's motion to vacate [Dk 413; App. C, 5].
`
`In his denial order [App. C], Judge Chhabria justified
`his order by saying that "the issues raised remain
`inextricably intertwined with state court decisions"
`[App. C, 5].
`
`Since all state court fee awards in favor of Clark were
`"void" after July 2010 (e.g. because those decisions
`had to presume that discharged-debtor Clark was
`still "personally liable" to her listed unsecured-
`creditor attorneys Marcus), there is nothing that
`could be "inextricably intertwined" with a valid order.
`
`On April 25, 2018, Kinney filed an appeal to the
`Ninth Circuit [USDC Dk #17].
`
`7
`
`
`
`Ninth Circuit dismissal
`On May 3, 2018, the Ninth Circuit filed an order
`based on its overbroad pre-filing \L order in Ninth
`Circuit #17-80256 to consider whether it would allow
`Kinney's appeal to proceed [Ninth Cir. Dk #1]. This
`is an example of overbroad VL pre-filing order being
`used to prejudice Kinney's First Amendment rights.
`
`On Nov. 8, 2018, the Ninth Circuit denied Kinney the
`right to proceed with his appeal [Ninth Cir. Dk #2] by
`arguing that the appeal was "so insubstantial" that
`Kinney was not going to be allowed to proceed. As
`noted herein, there was nothing "insubstantial" about
`Kinney's appeal as to willful judicial misconduct.
`
`This ruling was done to "silence" Kinney without due
`process and in violation of Kinney's First Amendment
`rights, so Kinney could not complain about ongoing
`violations of bankruptcy law and about the ongoing
`misapplication of \TL laws against him. [App. A, 1]
`
`Based on these and similar decisions occurring from
`2012 onward (for which this Court has yet to take
`action), Kinney is filing this petition because federal
`courts continue to ignore the ongoing violations of
`bankruptcy law by listed-creditor attorneys Marcus
`etc that are enjoined under 11 U.S.C. Sec. 524(a)(2);
`and continue to ignore the automatic voiding of any
`state or federal court attorney's fee award orders in
`favor of Clark under 11 U.S.C. Sec. 524 (a)(1).
`
`Kinney's complaint is not a de facto appeal of a state
`judgment or order because no "valid" judgment or
`order exists as to any post-petition attorney's fee
`award for legal work done by attorney Marcus for
`debtor Clark due to 11 U.S.C. Sec. 524(a)(1).
`
`['I
`
`
`
`Kinney's complaint is a "federal claim [via 11 U.S.C.
`Sec. 524(a)] alleging a prior injury that a state court
`failed to remedy". Long v. Shorebank Development
`Corp., 182 F.3d 548, 554.555 (7th cir. 1999).
`
`Each time listed-creditor attorneys Marcus etc file a
`motion for attorney's fees on behalf of discharged
`debtor Clark, they admit (e.g. concede) that 11 U.S.C.
`Sec. 524(a)(2) is being violated because they have to
`affirm or declare, as part of their motion, that
`Clark still has "personal liability" to them under a
`2007 hourly-fee retainer and has obligations under a
`2005 real estate purchase contract with Kinney. Cal.
`Civil code Sec. 1717; CCP Sec. 1033.5(a)(10).
`
`Of course, Michele Clark has no such obligations to
`any creditor as a discharged chapter 7 "no asset"
`debtor, so 11 U.S.C. Sec. 524(a)(2) applies.
`
`Each time a state or federal court awards attorneys
`fees to Clark and her listed creditor attorneys Marcus
`etc, they admit (e.g. concede) that 11 U.S.C. Sec.
`524(a)(2) is being violated by listed creditor attorneys
`Marcus etc, so those courts knew or should have
`known that all of their attorney fee award orders
`were "void" under 11 U.S.C. Sec. 524(a)(1).
`
`The judges and justices who have issued, affirmed or
`ignored the orders, judgments or sanctions against
`Kinney or co-buyer Kempton that were known to be
`"void", or to be based on prior "void" orders, under
`Sec. 524(a)(1) or (2) include but are not limited to:
`(a) Los Angeles County Superior Court Judge
`Barbara Scheper in #BC354136 (Clark's lack of title
`vs. her unrecorded easement to neighbor cooper) and
`Judge Steven Kleifield in #BC374938 (Clark's fraud);
`
`
`
`Cal. Court of Appeal, Second Appellate
`District, Justices Roger Boren, Frances Rothschild,
`Victoria Cheney, and Jeffrey Johnson;
`Alameda County Superior Court Judge Delbert
`Gee in Kimberly Kempton's estate #RP13686482;
`US Bankruptcy Court, Central Dist. of Cal.,
`Judges Richard Neiter and Barry Russell;
`US District Court Judges Philip S. Gutierrez,
`Edward Chen, and Vince Chhabria (and others);
`Ninth Circuit Judges Bea, Bybee, Gould, Levy,
`Owens, Paez, Silverman, Thomas, and Wallace (and
`others); and
`the Justices of this Court (e.g. due to inaction).
`
`COA Justice Jeffrey Johnson is the same Justice who
`was named in a 1/4/19 Calif. Commission on Judicial
`Performance's Notice of Formal Proceedings, but his
`harassment has occurred for 1+ decades and is well
`documented for 1+ decades, but only now is it being
`made public. The Justice's Answer was filed 1/22/19.
`
`That shows a "code of silence" exists in the Cal. COA.
`Due to 9+ years of inaction by the Calif. Comm. on
`Jud. Performance, there were numerous clerks, staff
`and others who were harassed by Justice Johnson
`when that should have been stopped long ago.
`
`Likewise, Ninth Circuit Judge Alex Kozinski had
`been harassing staff and others for 3+ decades, and it
`was well documented for 3+ decades (and ignored by
`the Third and Ninth Circuits), but only recently was
`it made public. Judge Kozinski retired in Dec. 2018.
`
`That shows a "code of silence" exists in the Ninth
`Circuit. This is probably why the investigation by
`Supreme Court Justice John Roberts turned up no
`"official" complaints (even though 480 former judicial
`
`10
`
`
`
`clerks and 83 current clerks had complained in a
`letter about how misbehavior complaints against
`judges were being processed and handled).
`
`As noted in Kinney's other petitions to this Court,
`Calif. Court of Appeal, Second Appellate District,
`Division One ("COA2") Justices Frances Rothschild,
`Victoria Cheney and Jeffrey Johnson have willfully
`and consistently ignored the application of 11 U.S.C.
`Sec. 524(a)(1) and (2) in all matters involving listed
`creditor Charles Kinney with respect to 2010 Chapter
`7 "no asset" discharged debtor Michele Clark and her
`listed unsecured creditor attorneys David Marcus etc.
`
`For example, these COA2 Justices decided an appeal
`in 2017 against Kinney and in favor of Clark which
`clearly shows in the text of the published opinion that
`they and others were and still are ignoring the
`ongoing violations of 11 U.S.C. Sec. 524(a); see
`Kinney v. Clark, 12 Cal.App.5th 724 (Cal. 2017).
`
`As mentioned in Kinney's prior petitions filed with
`this Court (e.g. SCOTUS #18-906 and 18-908):
`
`Kinney was listed as an unsecured creditor in
`Clark's 2010 Chapter 7 bankruptcy along with
`creditors David Marcus [Clark's attorney] and Kim
`Kempton [Kinney's business partner and co-buyer of
`Clark's Los Angeles property in 2005 in which Clark
`willfully concealed adverse development restrictions
`on a house and garage during contract negotiations];
`
`by filing attorney's fee motions in state court
`after 2010, listed-unsecured-creditor David Marcus
`etc has admitted that discharged-debtor Clark still
`has "personal liability" to them, so the injunction in
`11 U.S.C. Sec. 524(a)(2) clearly applies; and
`
`11
`
`
`
`(C) attorneys David Marcus etc have never
`proven the validity of the 2007 hourly-fee retainer
`with client Michele Clark in state courts which
`contained an attorney's or charging lien and thus an
`automatic conflict-of-interest between attorney
`Marcus and client Clark. Moitahedi v. Vargas, 228
`Cal.App.4th 974 (Cal. 2014).
`
`Kinney's complaint included facial and as-applied
`challenges to the \TL laws; and challenges to motions
`for attorneys fees and awards that violate 11 U.S.C.
`Sec. 524(a). Rooker-Feldman does not apply to a
`"facial" challenge by a "non-party", or to a judge or
`justice taking an executive or evaluative action
`rather than adjudicating in a judicial capacity. Wolfe
`v. Strankman, 392 F.3d 358, 362-366 (91h Cir. 2004);
`Verizon Maryland Inc. v. Public Service Commission,
`535 U.S. 635, 644 n. 3 (2002); Johnson v. DeGrandy,
`512 U.S. 997, 1006 (1994); District of Columbia Court
`of Appeals v. Feldman, 460 U.S. 462, 482-488 (1983);
`Ringgold-Lockhart v. County of Los Angeles, 761
`F.3d 1057, 1061-1067 (9th Cir. 2014).
`
`Cal. VL laws were changed as of Jan. 1, 2012 to allow
`a "presiding justice" like COA Admin. Pres. Justice
`Roger Boren to perform an "evaluative function" to
`determine the "merits" of an appeal without taking
`evidence, and to set only what is a "reasonable"
`amount as "security" for fees to defend that specific
`appeal. Moran v. Murtaugh Miller Meyer & Nelson,
`LLP, 40 Cal.4th 780, 785-786 (Cal. 2007); Jameson v.
`Desta, 5 Cal.5th 594, 599 (Cal. 2018); John v. Superior
`Court, 61 Cal.4th 91, 93-95 (Cal. 2016).
`
`No federal case has addressed the unconstitutional
`vagueness of the current Calif. \TL law. Johnson v.
`United States, 135 S.Ct. 2551, 2557-2563 (2015).
`
`12
`
`
`
`Kinney's complaint included ongoing violations of
`bankruptcy law by listed-creditor attorneys Marcus
`etc since all post-petition legal work for debtor Clark
`is deemed to be fully-discharged pre-petition
`debt in Clark's Chapter 7 "no asset" case. Here, 11
`U.S.C. Sec. 524(a) clearly applies to motions for more
`attorney's fees and the resulting fee awards in favor
`of debtor Clark. In re Casteffino Villas, A.K.F. LLC,
`836 F.3d 1028, 1033-1037 (9th Cir. 2016).
`
`Kinney's complaint included ongoing violations of
`state law by attorneys Marcus who had a 2007
`hourly-fee retainer with client Clark containing an
`attorney's or charging lien clause since Marcus had
`never filed the required declaratory relief action
`against Clark to prove the validity and enforceability
`of the 2007 hourly-fee retainer and the charging lien
`which created an the automatic conflict-of-interest
`between a client and her counsel. Gon
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
