Shodai’s Blog September 30 2009 10:05 am Playas de Tijuana, Baja California, México
Shiken haramitsu daikomyo!
It has been a while since I have written to you guys. It has not because I have not thought about you I promise. I received some bad, but I guess expected, news from the Court of Appeals – my appeal was denied. It took me a few days to refocus on my next move. The mail arrived to me on the 16th of September, I think, and the Court had filed its Disposition (decision and reasoning) on the 11th I think, I am not sure. After that I had to write a Petition for a Rehearing, in other words, why I think they are block heads and didn’t get it right. Here is my response to them – not my best pieces of literary work, but sufficient I think to keep the ball rolling:
CRITERIA FOR REHEARING:
The Disposition of the Appellate Court has been to affirm the Orders of the Superior Court. It is my opinion that the Disposition is in error and that this error reflects flaws in the Appellate Court’s analysis of my Case, my Briefs, and the arguments I present, flaws which include:
1. A misstatement of the facts of the Case and my Appeal;
2. Errors of law in both principle as well as in fact;
3. Significant omissions of the facts of the case as well as the law pertaining to the same;
4. Failure to recognize vital arguments made in support of my case; and
5. Failure to recognize the widespread abuse of judicial discretion throughout the Case and the relation that this abuse of discretion has had on the issues I present for appeal.
ARGUMENTS FOR NEED FOR REHEARING:
1. The Appellate Court’s disposition shows a failure to acknowledge citations and references to the record and case authority:
“Without citing to the record or case authority, Overton makes the general argument that he is entitled to a reversal because the trial court abused its discretion, there is no evidence to support the court’s findings, and the court discriminated against him.” (p. 1-2) (Italics and emphasis added)
With all due respect, this is a tremendous misstatement of the facts pertaining to the Opening as well as the Reply Brief. Specifically the Opening Brief contains 326 references to the Record – nearly 8 references per page. (See Exhibit 1 for the complete table of references for the Opening Brief.) As far as the Reply Brief is concerned, it contains much fewer references to the Record (approximately 8; see Exhibit 2), but makes references to 12 cases (See Exhibit 3) and 7 references to the Code (See Exhibit 4).
I am confused as to the Appellate Court’s statement that I have not cited the record or case authority and would respectfully ask for a clarification in this respect. I am not sure if the Appellate Court is referring to the same documents to which I am referring.
If the Appellate Court’s Disposition states that I failed to make references to the Record in my Briefs and if this statement is clearly inconsistent with the facts, then the following statement on page 7 of its Disposition is also inconsistent with the statement it makes previously on page 2 (cited above):
Overton violates the appellate rules by failing to “[s]tate each point” – specifically why the court abused its discretion designating him a vexatious litigant – “under a separate heading or subheading summarizing the point and support each point by argument and, if possible, by citation of authority. . . ” (p. 7)
Indeed, my Opening Brief individually documents each and every point in the Case identifying and systematically arguing when and where the Court has committed an abuse of discretion. Without revisiting arguments made in my Opening and Reply Briefs, suffice it to say that all of these items were connected directly to Motions denied by the Superior Court in the various Orders of 2008 under Judge Wolhfeil. The problem here with the Case is that, given the rampant abuse of discretion exercised by the Judges, an analysis of the Case without attention to the details becomes the proverbial nailing of jelly to the wall – which is why I painstakingly took the efforts to identify these issues which are endemic to the Case.
Additionally, my Reply Brief quite specifically, in the Table of Contents, identifies my arguments under the following headings:
n Evidence of “Bad Faith”/Justification for Imputation of Income arising from the Respondent’s use of Legal Expenditures ……………………………………………..…………….6
n Further evidence of the Court’s Bias and Discrimination against me……….……….7
n A long list of judicial improprieties, prejudice, racism, collusion with crimes of moral turpitude, and discretional bias………………………………………………..……………….8
n Judicial racism…………………………………………………………………………………………………..…12
n Judicial encouragement of crimes of moral turpitude………………………………………..20
n Wrongful designation as Vexatious Litigant…………………..……………………………………32
n Arguments re Intentional Infliction of Emotional Distress……….………………………..33
Each and every one of these headings addresses patterns of overall Judicial Abuse of Discretion culminating with the designation as a vexatious litigant. In fact, as stated, the entire point of my detailed summary of the Case in my Opening Brief has been to illustrate, document AND argue – point by point – the ongoing and practically ubiquitous Judicial Abuse of Discretion.
It would be safe to say that it is easy to miss the forest for the trees in this Case, but the forest is the trees, and the trees are steeped, from tips to roots in Judicial Abuse of Discretion. That is the problem: the Case begins with the mother’s (Plaintiff and Defendant) filing of a document that was obviously illegal. The Court refused to take issue with the evidence of perjury, forgery, and fraud, take sanction against the mother, or to compensate me in any way in terms of Costs, etc. Furthermore, once I filed to Vacate the illegal document the mother took another iniquitous step to accuse me in Court, without due process, of an intention to abduct the children. Again, the Court failed to compensate me or sanction her in any way, and even went out of its way to protect her by ordering the record altered to remove its own reference to her “perjury.” The Court denied me due process in terms of having my arguments regarding her fraud heard, and failed to vacate the Order based on her illegal Marital Settlement in a timely fashion. This is turn coerced me into having to enter into a Custody Agreement I would otherwise not have accepted. These issues became the basis for the entire Case and the Case has never recovered any form of stability or equity since: all other rulings have followed suit.
2. The Appellate Court’s disposition shows a failure to recognize a) the pattern of discrimination, ) b) racial discrimination, c) failure to rule in best interest of the children, d) recognize a “change of circumstance” and e) violation of due process – all of which constitute a systemic abuse of discretion on the part of the Superior Court judges.
This flaw in the Appellate Court’s reasoning leading to its Disposition becomes evident when it fails to recognize the point and need for me to make a detailed summary of the Case and provide an extensive references to the record in support of the same:
“However, only a small part of his summary and the lengthy record on appeal are relevant to the specific orders and judgment he purports to challenge in these consolidated appeals.” (p. 2) (Italics and emphasis added).
However, if we have already established that the Appellate Court in its review failed to recognize 326 references to the Record in its review of my Opening Brief alone, then it is not surprising that it would have likewise failed to recognize the intricate detail of my Case. This constitutes a fatal flaw in the Appellate Court’s analysis of the fundamental arguments of my Case, arguments which I outlined in my Opening Brief and re-emphasized in the Reply Brief.
The designation of vexatious litigant is a legal response to an alleged pattern of behavior on my part which spanned most if not all of the Case. In portraying me as a vexatious litigant, the Plaintiff (Ms. Dolansky) had to illustrate this pattern by referring to virtually the entire Court file. Since the Superior Court’s decision to find me a vexatious litigant is based on an alleged pattern which supposedly emerges from the details of the case, in order to refute the Superior Court’s ruling I must refer to the same details of the case and show that the pattern which materializes does not support the conclusion that I am a vexatious litigant; much to the contrary, it demonstrates that the Superior Court has been both discriminatory (in the mother’s favor), and lenient with the mother’s recurrent iniquitous tactics to the point of making deception and perjury a winning strategy.
My repeated motions before the Superior Court – which have been interpreted as meriting the designation of ‘vexatious litigant’ – have simply been in response to the Superior Court’s refusal to impose sanctions against the mother for her tactics, or even to alter its own findings and orders once evidence of her deception was brought to the forefront, as well as a direct result of the Superior Court’s blatant pattern of discrimination and racial discrimination.
Again, I have also accused the Superior Court of discrimination and racial discrimination and attempted to make the Case that this discrimination is evident in Judge Wohlfeil orders under appeal. This discrimination is manifested not by a single incident, but by a pattern of behavior which can only be substantiated by referring to the details of the Case. To be sure my accusations of racial discrimination are not the result of any particular Judge at any given time explicitly stating that his rulings or finding were the result of a racial bias against me or in favor of the mother. However, the racism becomes evident only when the PATTERN is extracted from a careful analysis of the positions the Judges have sustained throughout the Case.
The Appellate Court’s disposition states “It is fair to say that the litigation became increasingly acrimonious over time.” (p. 2) (Emphasis added) What the details of the Case demonstrate is that the acrimony present throughout the Case commences with the mother’s presentation of a falsified Marital Settlement Agreement, followed by a false charge of abduction of my children (which led to a Restraining Order against me), and continued incessantly and unabated with a series of false accusations on the part of the mother in her further attempts to interfere with my custody and visitation, as well as her false declarations and testimony aimed at the unfair, and successful, imputation of my income.
What the pattern shows is that despite my recorded efforts to unmask the mother’s iniquity, the record shows not a single sanction or consequence levied against her. This would make the Superior Court discriminatory both in its refusal to apply sanctions against the mother as well as discriminatory in its decision to apply sanction against me in the form of declaring me a vexatious litigant, especially in light of the fact that the designation is based primarily on my litigating against the mother’s (unsanctioned) pattern of iniquity, and the Superior Court’s refusal to act in the best interest of the children by a) taking action to protect their ethnic and linguistic heritage, and b) demanding psychological treatment of my son Alex as a requisite for the mother’s retention of custody. The Family Court’s failure to act in protection of the children becomes also a fundamental point of law as this is its primary mandate.
Throughout the Case, the Superior Court’s refusal to take action within its power against the mother – such as a finding of contempt of Court – only added to the degree of acrimony by providing her with a mantle of immunity and advantage: at best, when pressed, the Judges would vacate an order based on her deception, at worst they would refuse to acknowledge the issue altogether and allowed her to accumulate her ill-gotten gains – such as in the case of her false testimony before the Court leading to the imputation of my income on December 18, 2006.
Thus, the designation as a vexatious litigant in the atmosphere that I have amply described in the Superior Court is of itself evidence of discrimination: on the one hand my need to repeatedly bring the mother’s deception to the Family Court’s attention arises because of its refusal to take punitive and corrective action against her, on the other hand I am sanctioned for attempting to bring these same matters before the Court which have caused a significant material loss to my Case and situation.
3. The Appellate Court has not recognized the fundamental issue of the Superior Court’s violation of due process:
The Appellate Court makes the following statement in its disposition:
“Notice and the opportunity to be heard are key components of due process.” (p. 5. Emphasis added).
This is a key issue which Judge Wolhfeil violated. In fact, the issues of discrimination and even iniquity brought against the Superior Court become further apparent in the manner in which it not only refused to apply critical item 17 of the Final Orders of June 2006 against the mother’s custodial status, but then, without motion, hearing, or argument, removed that item altogether. This is a clear violation of due process and has been amply recorded, documented, and argued throughout the Court record as well as in my Opening and Reply Briefs.
As argued, Item 17 of the Final Orders, was introduced by Minors’ Counsel precisely because the mother’s demonstrated iniquity in her quest to curtail my access to the children. Judge Wolhfeil in one of the very orders I am appealing, removed item 17 altogether thus altering the Final Orders pertaining to Custody at his whim. If this does not constitute an abuse of discretion – if not of power – then the ruling by the present Court of Appeals establishes a clear and evident precedent that affirms that Superior Court judges – or at least Family Court Judges of the Superior Court – can, by their own impetus and fancy, alter Final Orders without due process, hearing, argument, or even a motion. – a violation of due process which the Appellate Court itself (above) has made clear to be a critical component of the law.
With all due respect, judges are people, and people are corruptible, which is why we have a system of checks and balances: senators, congressman, governors, and even judges have been prosecuted for corruption: Why bother appealing a judgment if you can otherwise ‘induce’ a Superior Court judge to simply alter the Final Orders in ANY CASE?
This disposition on the part of the Appellate Court would circumvent the entire concept of due process and even of the Court of Appeals itself; it would make Judges of the Superior Court vulnerable to all sorts of coercion or bribes and would undermine the entire judicial process.
4. The Appellate Court fails to recognize the Superior Court’s refusal (or professed inability) to consider a parent’s denial of psychological treatment to a 5 year old victim of rape, sexual abuse, and assault, as a valid “change of circumstances” as an abuse of a Judge’s discretion.
While we are on the issue of “best interest of the children,” it is noteworthy to make the following point: what “reasonable person,” parent, or judge – Appellate, Superior Court, Supreme Court, Family Court, or otherwise – would deny psychological treat to a five year old victim of rape, sexual abuse and assault?
Moreover, which of these individuals would agree to go on public record and stand by a decision to comply with the denial of psychological treatment to a child under these circumstances?
This is a clear point of this Case in which legal arbitrators must take a step back from the details of intricacies of their profession and simply take a good ole’ American commonsensical look at the FACTS, the PATTERN of the Superior Court’s ruling on the same: the Superior Court accepted the mother’s statement that she could not afford a forensic evaluation, priced at approximately $8,000, yet she was able to spend over $100,000 in legal costs – all from ‘subsidies’ from her parents, funding which preceded, as the printout of her bank account statements demonstrate, the litigation itself. The Superior Court was simply so intent on refusing to apply the LAW in terms of calculating the mother’s income FROM ALL SOURCES to my detriment in terms of calculating child support, that it also refused to recognize the mother’s true economic resources to the detriment of my son.
By affirming Judge Wolhfeil’s orders the Appellate Court as an institution is making the statement that it is legally and morally acceptable for a Family Court judge to accept the denial of psychological treatment to a child or children under conditions that in the State of California would constitute child abuse under the code.
While it is a fact that I am not an attorney, I would imagine that this would have farfetched legal ramifications in terms of precedents as well as in terms of the credibility of both the Family Court and the Appellate Court.
5. The Appellate Court fails to regard as an abuse of discretion a Superior Court’s refusal to consider the denial children’s ethnic and linguistic heritage as a “change of circumstances.” It also fails to regard as an abuse of discretion a Superior Court’s refusal to acknowledge a parents failure to comply with explicit Move Away criteria a valid “change of circumstances” for altering child custody or visitation.
Linked with the issue of what constitutes “the best interest of the children” is the issue of racial discrimination. I have made the argument that the Superior Court’s orders have refused to act in defense of the children’s ethic and linguistic heritage, items that were identified as critical to their wellbeing in Minor Counsels’ Statement to the Court. Once again, Judge Wohlfeil’s refusal to take sanction against the mother for her failure to provide the children with an environment identified as critical to their needs, and an explicit condition of the Move Away itself, is in violation of the children’s best interest and derogatory of the role that their multiethnic and bilingual heritage play in the healthy formation of their identity.
The Appellate Court’s disposition to affirm Judge Wolhfeil’s rulings would also affirm that a) the children’s ethnic and linguistic heritage is of no regard to the State of California, and b) that the conditions of a Move Away, explicitly stated by Minors’ Counsel and by Final Orders, are of no legal and binding consequence in Family Court. They are but a mere convenience to justify the Move Away and undermine the rule of law pertaining to the detrimental effects of the same to the children.
6. The Appellate Court has failed to recognize the intrinsic abuse of discretion in the Superior Court’s failure to act upon, or even adequately address, evidence of crimes of moral turpitude – perjury, fraud, forgery – on the part of the mother.
This issue is as central to the entire Case as it is to the legitimacy of the Superior Court, Family Court Division, and now by extension to the Appellate Court. These questions become points of law:
n Is a Court not obliged to take action against a litigant who has demonstrably taken measures to deceive it for the purposes of material gain against opposing party? Or alternative, does a Court not have the obligation to rectify its findings and orders when these are the result of a litigant’s deliberate acts of deception? The following are brief references to items amply documented in the Superior Court record and referred to, supported, and argued in the Opening and Reply Briefs:
o The Case begins with a Marital Settlement Agreement which by any standard of reasonable and objective analysis was fraudulent, and yet the Superior Court went to great lengths to avoid acknowledging or even HEARING evidence of foul play on the part of the mother or her attorney.
o The Case continues with false accusation of imminent abduction with include deliberately misleading testimony before the Court (March 2006) and result in my losing visitation and access to my children. The Court even referred to the incident – on the record – in terms of “perjury,” yet no sanction was provided against the mother nor compensation to me in terms of recovering lost time with my children. In fact, the Court upon request by the mother’s counsel – went as far as attempting to remove the reference to “perjury” from the record.
o The mother commits perjury before the Court in order to have my income imputed (December 18, 2006) – a violation of the criminal and Family Code – which I documented and motioned to the Court’s attention, yet denied due process.
The mother has continuously benefited from these tactics and the Court has as equally consistently refused to take action or in most cases even acknowledge my efforts to bring these acts to its attention.
The backdrop of this refusal to act against the mother’s profitable iniquity can only be considered in terms of abuse of discretion for lack of a more suitable category:
o The Superior Court’s tolerance towards, if not complicity with the mother placed undue influence on me to accept a Move Away terms (May 2006); a situation which I brought before the Court on October 13, 2006 and which was denied without a hearing.
o The Case continues with the rape of my 5 year old son, (October 2006) which the Court refers to as “kids play doctor, that happens” and for which I was not notified in a timely fashion – a clear violation of my custodial rights.
o The Court imputes my income based on my student loans (October 13, 2006) – illegal and repeatedly reported in the Record, but never acknowledged nor was corrected. Denied due process.
o The mother continues to make repeated efforts (December 4, 2006) to deny my visitation making false accusations without merit, again, with full immunity – despite the presence of a stipulation in the Final Order that such conduct would merit a change of circumstances.
o My five year old son goes over TWO YEARS without psychological treatment after being raped, while judges repeatedly refuse to recognize the mother refusal as a change of circumstances to alter custody.
o July 2007, I am diagnosed as having cancer, recognized in open court as being “hooked up” to my chemotherapy device, provide ample evidence of my condition even color photos of my tumor, etc., yet denied a reduction of my child support costs – which were illegally obtained to begin with by the mother’s perjury on December 18, 2006. Further, I am denied counsel paid by her under the Family Code.
o The mother has failed to provide the children with Spanish language training, a condition stipulated in Minors’ Counsel’s Statement, yet this failure has not been recognized as a change of circumstances affecting her custody. Likewise with respect with the multiethnic environment.
All of these issues, and more, were represented in the 2008 Orders I am appealing; all of these issues were referred to, detailed, and argued, in great detail throughout the Briefs. Many of these issues show the Family Court’s selective leniency for the sake of the mother’s convenience which underlines the abuse of discretion – and discrimination – in designating me a vexatious litigant.
By affirming the Superior Court’s orders, the Appellate Court is also affirming – a well established fact amongst attorneys, judges, and the public at large – that perjury, fraud, forgery, etc., so called crimes of moral turpitude, are acceptable tactics in Family Court – as long as you have the favor of the Judge – and that references to “signed under penalty of perjury” are simply in matter of fact ‘suggestions’ and not actionable items at all. The line should really read, “Preferably signed absent of perjury” or something to that effect.
The Appellate Court would also be affirming that it is acceptable for Superior Court judges to be biased in their dispensation of sanctions for they are not subject to any form of scrutiny in the manner in which they make said dispensations. It would furthermore make the point that regardless of the status of one’s health, Judges can simply make arbitrary rulings such as denying basic legal recourses such reduction of one’s child support while undergoing treatment and the effects of life-threatening illness. All of these are questionable precedents at best.
7. Finally, the Appellate Court has stated that the format of my Briefs is not per standard in terms of heading, references, etc.
This is a difficult issue for me to address, given such other criticisms such as my failure to make references to the record, failure to cite case authority, failure to document on the one hand then excessive (yet presumably irrelevant) documentation on the other.
While I take full responsibility for any and all shortcomings in terms of format in my Briefs, I respectfully submit that should the Appellate Court have detected fatal flaws in the format of my Opening Brief, it was within its authority and prerogative to have rejected the Brief and required corrections at that point in time, rather than allow the proceedings to continue, in time and expense, only to take issue with the fatal flaws at the end of the process.
Respectfully I submit that there is no way the Appellate Court can perform its functions and responsibilities with due diligence in this Case without rolling up its pants and sleeves and getting into the muck and mire of the details of this Case. Again, with all due respect, it appears, by statements in the Disposition referring to the lack of references to the Record, that I made unnecessarily detailed references to the Court Case and not to the specific issues under Appeal, or that I failed to argue where the Superior Court is guilty of abuse of discretion, that the intention here is expediency rather than due assiduousness.
The realities of the Case are quite simple and they are evident in the results of the Superior Court’s rulings: my son Alex did not receive therapy in the two years following his rape; my children’s Spanish language heritage has been neglected and their right to their multiethnic heritage has been denied; I have not seen my children now in over a year, nor have I had ANY form of contact with them in the last 8 months and 6 days; I have been completely erased from their existence – as well as all items of their multiethnic heritage – although their right to have frequent and continuous contact with me was presumably guaranteed before the law and their rights to their heritage were supposedly protected by the Final Orders virtually dictated by Minors’ Counsel. And for all my efforts in my disadvantaged fight to repeatedly stand up for the best interest of the children all I have managed from the Family Court is the designation as a Vexatious Litigant.
While it has been well noted that neither the Family Court system, nor the Courts of Appeals, nor the Supreme Court take much concern in social or psychological arguments regarding the importance of a father in children’s lives, the endemic abuse of discretion evidence in the DETAILS of this Case should be at least of sufficient legal concern for the Appellate Court to take notice and to apply the extent of its powers to address these issues.
I believe that the issues in this Case are significant and numerous, so much so that it has been a challenge to summarize them, and argue and represent them, even more so in the space limitations required by the law. I believe that the issues are so many, so profound that it is easy to lose oneself in the details of the law and miss the big picture of the “spirit” or “principle” of the law.
Furthermore, I believe that the purpose of the Appellate Court is not simply to “right the wrongs” for the purpose of a single appellant, but rather to serve in the process of rectifying the system which is the Superior Court, and thereby providing a public service with its dispositions.
Should the Appellate Court affirm the Superior Court’s rulings it would miss a fundamental opportunity to take a stance on critical issues before the Family Court such as perjury, children’s rights to their ethnic heritage, intentional infliction of emotional distress, etc., issues which are, in my opinion, well documented in the seemingly irrelevant detail of the Case. At the very least the Appellate Court might postpone its ruling pending a rehearing of the Case or even, should it have the authority and disposition, a resubmission of the Briefs – all in the interest of the public and the proper dispensation of the Law.
CONCLUSION
Petitioner requests that rehearing be granted and that the Court alter it disposition to overturn (deny) the judgments of the Superior Court under appeal.
DATED: September 24, 2009
______________________
James A. G. Overton
I love you guys and miss you very much,
Daddy
Shiken haramitsu daikomyo!
