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A REPRESENTATIVE COPY OF THE FILING
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   Finney v. Nugent
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I. INTRODUCTION
Had Dr. Kenneth Clark¹ tested children paralyzed by polio in
1953, he would have asked:
      “Show me the doll that you like best… 
Show me the doll that is the nice doll… 
Show me the doll that looks bad… 
Give me the doll that looks like the [normal] child… 
Give me the doll that looks like the [poster] child… 
Give me the doll that looks like the [crippled] child… 
Give me the doll that looks like you.” 
Dr. Clark would have testified as he did in the consolidated cases
known as Brown v. Board of Education, 347 U.S. 483 (1954):
“The conclusion which I was forced to reach was that these
children…, like other human beings who are subjected to an
obviously inferior status in the society in which they live, have
been definitely harmed… [emp. supp.]  I think it is the kind of
injury which would be as enduring or lasting as the situation endured,
changing only in its form and in the way it manifests itself.”
                                       
      ¹ At trial in Brown's consolidated case Briggs v. Elliott, the National Association for the Advancement
of  Colored People (NAACP) presented compelling testimony by Dr. Kenneth Clark.  He performed
psychological tests using dolls to identify harms inflicted on the plaintiff children due to segregation.  Dr.
Clark described the tests to validate his conclusion that discrimination against African-American children
and that discrimination against any segment of society causes harm.  At trial in Davis v. Prince Edward
County, Dr. Isidor Chein testified that discrimination also caused Jews to feel inferior as to status,
supporting Dr. Clark’s conclusion.  
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The California judiciary exploited appellant’s disabilities to prevent
access to the courts which has caused great harm, and by so doing, has: 
“…endorsed the basis for some of the very discrimination subject to
congressional remedy under § 5… [L]ike other invidious
discrimination, they classified people without regard to individual
capacities, and by that lack of regard did great harm.  [emp.
supp.]  In sustaining the application of Title II today, the Court takes
a welcome step away from the judiciary’s prior endorsement of blunt
instruments imposing legal handicaps.”  Tennessee v. Lane, 124 S.
Ct. 1978 (2004), Justice Souter concurring.
II. THE UNCONSTITUTIONALITY OF STATE STATUTES
          PERMITTING DISABILITY DISCRIMINATION IS WELL          
SETTLED AND ABSTENTION CANNOT BE JUSTIFIED   
A. The California Court System Has Acted Under Color of State Law to  
Violate the U.S. Constitution and ADA Title II.                    
      Pursuant to CRC 989.3, the California court system, its judges,
administrators and jury commissioners have conspired to violate the U.S.
Constitution and ADA Title II by enacting statutes and policies
reminiscent of states’ resistance to desegregation.  
The U. S. Supreme Court’s opinion regarding racial discrimination in
1962 held:
1.
“Since the unconstitutionality of the state statutes requiring racial
segregation in publicly operated facilities is so well settled that it is
foreclosed as a litigable issue… and jurisdiction of this appeal is
vested in the Court of Appeals…
2.
There was no occasion for abstention from decision… appellant’s
jurisdictional statement is treated as a petition for certiorari prior to
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the judgment of the Court of Appeals under 28 U.S.C. 1254(1) and
2101 (e); the petition is granted; the order of the District Court is
vacated; and the case is remanded to that Court with directions to
enter a decree granting appropriate injunctive relief against the
discrimination complained of.”  Turner v. City of Memphis, 369
U.S. 350 (1962) (per curiam).
The California court system has enacted a statute that in operation
functions as an affirmative state policy fostering disability discrimination
in its programs, services and activities.  “…[O]ur decisions have
foreclosed any possible contention that such a statute or regulation may
stand consistently with the Fourteenth Amendment.  Brown v. Board of
Education, 347 U.S. 483… Turner, Id.
“We see no reason why disposition of this case should await
decision of the appeal by the Court of Appeals.  On the merits, no
issue remains to be resolved.  This is clear from our prior decisions
and the undisputed facts of the case.  Accordingly, no occasion is
presented for abstention, and the litigation should be disposed of as
expeditiously as is consistent with proper judicial administration.” 
Turner, Id.                                                                                                
The unconstitutionality of statutes such as CRC 989.3 has been well
settled in the Ninth Circuit for a decade.  Tennessee v. Lane, supra,
validated what was already the plain law of the Circuit.
B.
The California Court System’s Failure to Fund ADA Compliance Is
Discriminatory
The California court system has intentionally refused to fund ADA
Title II compliance and has used lack of funds as a pretext to justify
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disability discrimination in its programs, services and activities.  In 1964,
the U.S. Supreme Court’s opinion regarding racial discrimination held:
“6. Quick and effective injunctive relief should be granted against
the respondents, all of whom have duties relating to financing,
supervising, or operating the Prince Edward County Schools…
6(b) The District Court may require the County Supervisors to… raise
funds for the nonracial operation of the county school system…
6(c) The District Court may if necessary issue an order to carry out its
ruling…
6(d) New parties may be added if necessary to effectuate the District
Courts decree.”  Griffin v. School Board, 377 U.S. 218 (1964).  
…[T]his is not a case for abstention… we hold that the issues here
imperatively call for decision now… There has been entirely too
much deliberation and not enough speed in enforcing the
constitutional rights which we held… have been denied to Prince
Edward County negro children… that relief needs to be quick and
effective… The time for mere ‘deliberate speed’ has run out, and that
phrase can no longer justify denying these… school children their
constitutional rights…”  Id.
III. SYSTEMIC DISABILITY DISCRIMINATION BY THE
           CALIFORNIA COURT SYSTEM HAS EVADED REVIEW
A. The District Court Ignored the Plain Law of the Ninth Circuit
The district court ignored and mischaracterized the law of the Ninth
Circuit as a pretext to wrongly dismiss appellant’s complaint.
“Our decisions, whether memorandum dispositions or opinions state the
law of the circuit and must be followed by a district court in cases
where they properly govern the issues presented… The district court
has no authority to disregard our decision and the conclusions that [the
case] is inconsistent with the weight of authority from other
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jurisdictions on the questions presented in this case is inaccurate.” 
Appling v. State Farm Mutual, (2003 WL 21920905), Fletcher, J.,
dissenting.
Appellant has fully raised all issues in the district court, giving that
court the opportunity to address them.  “In compliance with
precedent, we bend over backwards to pluck a viable claim…” from
a complaint.  Lockhart v. United States of America, No. 02-35759,
(9th Cir. July 23, 2004)  “The concept of appellate review does vest
the appellate court with a responsibility to carry out that review in a
sensible and realistic way, given the overall dimensions of the
conflict below.”  Vaughn v. United States Small Business
Administration, No. 93-5104, (6th Cir. September 21, 1995).
  A review of the decision reveals that the district court suppressed and
mischaracterized appellant’s facts and made no specific findings regarding
their application to controlling law in the Ninth Circuit. Rather, the court’s
decision was based on unsupported generalizations and conclusions in the
framework of decisions from other jurisdictions and old law. 
B.
The Supreme Court Confirmed What Was Already Law in the Ninth
Circuit
It was clear, and the Supreme Court in Tennessee v. Lane, supra,
confirmed, what was already law in the Ninth Circuit.
“The issue is not what the law was or might have been in other
circuits… It is, rather, what ‘controlling authority in [the Ninth
Circuit’s] jurisdiction was at the time of the incident.’”  Rivero v. City
and County of San Francisco, 316 F.3d 857 (9th Cir. 2002), quoting
Wilson v. Layne, 526 U.S. 603, 617 (1999).
“[W]here a panel confronts an issue germane to the eventual
resolution of the case, and resolves it after reasoned consideration in a
published opinion, that ruling becomes the law of the circuit…” 
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United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc)
(Kozinski, J., concurring)
C.
CRC 989.3 Is A Trap for the Unwary 
CRC 989.3 does not provide the opportunity both for access to
administrative and judicial reviews and for prompt administrative and
judicial decisions, as the First and Fourteenth Amendments require.
“Of course, if some undiscovered quirk of state procedure were to
prevent an applicant from receiving meaningful judicial review, a
challenge to the ordinance as applied would lie in federal court
Dream Palace v. County of Maricopa, (9th Cir. September 27, 2004)
__F.3d__, 2004 DAILY JOURNAL DAR 12034, 2004 WL 2169437. 
See City of Littleton, 124 S. Ct at 225 (citing § 1983);  Also id. at
2228 (Souter, J. concurring in part and in the judgment) (“If there is
any evidence of foot-dragging, immediate judicial intervention will be
required and judicial oversight or review at any stage of the
proceedings must be expeditious.”)
“The fact that a denial applicant can seek review other than through a
discretionary writ distinguishes this case from Déjà Vu of Nashville,
Inc. v. Metropolitan Government of Nashville and Davidson County,
Tenn., 274 F.3d 377 (6th Cir. 2001).  In Déjà Vu, the Sixth Circuit
held that a licensing ordinance that required an applicant to seek
judicial review, if at all, via discretionary writ unconstitutionally
failed to guarantee a final adjudication on the merits.  Id at 402-403.” 
Dream Palace v. County of Maricopa, supra at fn. 10.
     Moreover, the California court system has previously used the same
unconstitutional, discriminatory “specificity” trap in denying indigent
prisoners full court transcripts in order to appeal state court convictions. 
The California Attorney General argued that the state court’s denial of a
full transcript to an indigent defendant did not require reversal because of
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the doctrine of “substantial compliance.”  Kennedy v. Lockyer, No. 01-
55246 (9th Cir. August 18, 2004), quoting Britt v. North Carolina, 404
U.S. 226, 227 (1971), “The Court stated that serious doubts about a
decision denying a request for a full transcript would arise ‘if it rested on
a petitioner’s failure to specify, [emphasis supplied] how the transcript
might have been useful to him.’”  Id. at fn. 10.  
        The Presiding Justice of the California Court of Appeals, Fourth
Appellate District, Division Three stated in Quest International, Inc. v.
ICODE Corp., No. G032276, September 22, 2004 that:
“We publish this dismissal of a purported appeal in order to alert the
bench and bar to a particularly well-camouflaged trap for the
unwary.  The trap has been set by the statute which acts as the
gatekeeper to the appellate courts in California, Section 901.4 of the
Code of Civil Procedure…”
“These principles will force us, reluctantly, to dismiss this appeal
in the most convoluted of cases… We say ‘reluctantly’ dismiss,
because, as anyone who reads this opinion through to the end is
about to learn, California’s law of appellate jurisdiction is full of
fiendishly fine distinctions worthy of the most legalistic medieval
clergy…”
“Now we come to the Humpty Dumpy part of the case –
literature’s most famous egg having become a well-used judicial
metaphor for the arbitrary reclassification of things by the fiat of
definition…”
“Fundamentally, appellate jurisdiction cannot be a matter of
appellate discretion, at least as far a ‘final judgments’ are
concerned…”
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“We therefore call upon the Legislature to consider revising the
rules of access to the appellate courts so that, if nothing else, they
are simple enough even for those of us encumbered with law
degrees to understand…” 
IV. THE CALIFORNIA JUDICIAL MACHINERY CANNOT         
PERFORM ITS IMPARTIAL TASK OF ADJUDGING CASES  
A. The Court System’s Failure to Fund ADA Title II Compliance Is Direct
Evidence of Deliberate Indifference to Disability Discrimination
    By letter dated December 5, 2003, appellant was informed that
“…access as contemplated by the Americans with Disabilities Act” to court
programs, services, and activities was not possible due to the pretext that:  
“…as I am sure you know, California is facing an enormous budget
crisis…”  ER 161
ADA activities have been neither coordinated nor funded by the 
California court system subsequent to the adoption of CRC 989.3 in 1996. 
The “enormous budget crisis” is a pretext to justify disability
discrimination that has been documented by the U.S. Department of
Justice (DOJ) since 1996 in the Santa Clara Superior court.  RJN Exhibit
1, Appendix B.
In 2004, a California appellate court objected to the California court
system’s policies, practices and procedures that deprive citizens of access
to the courts, citing a 1993 California appellate court decision:
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“We need to remember that all of us are here to serve the public and
that this cannot be done when judges are inundated with fast track
statistics and cheerleader attitudes about case disposition numbers
which never seem to take into account the rights of the parties…
Efficiency cannot be favored over justice.  It follows necessarily that
we do not believe appellants should have been deprived of their day in
court.”  Oliveros v. County of Los Angeles,  No. B163333 (July 28,
2004), citing Estate of Meeker, (1993) 13 Cal. app. 4th 1099.                                   
     In 1993, a California appellate court complained that parties were
denied access to state courts.  There was no “enormous budget crisis.”  In
January 1996, CRC 989.3 was enacted.  In October-December, 1996, the
Santa Clara Superior Court settled an ADA Title II lawsuit filed by DOJ. 
RNJ Exhibit 1, Appendix B  There was no “enormous budget crisis”.  In
2004, both appellant and a California appellate court complain that
parties are denied access to state courts. 
B.
Officers of the California Court Have Obstructed Justice
The California court system has conspired to obstruct justice in order 
to evade review of its unlawful conduct by a surreptitious mutation of
generic shredding, i.e., returning original documents submitted by
appellant regarding jury service, without acknowledgement of their
receipt.  SRJN Exhibit 4.
18 U.S.C. § 1001 (a) (1) provides:
“Except as otherwise provided in this section, whoever, in any manner
within the jurisdiction of the … judicial branch of the Government of
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the United States, knowingly and willfully… covers up by any trick,
scheme, or device a material fact… shall be [punished].”
The Ninth Circuit defined fraud on the court to include “…fraud
perpetuated by officers of the court so that the judicial machinery
cannot perform in the usual manner its impartial task of adjudging
cases.”  In re Levander, 180 F.3d 1114, 1118 (9th Cir. 1999).
“The plaintiff’s allegations, if proved would be most damaging to the
ethical standing and professional reputation of any attorney—and
indeed might have severe collateral consequences such as
disbarment…”  Appling v. State Farm Mutual, supra.  “…As Judge
Schwartzer has persuasively explained:  ‘Misconduct, once tolerated
will breed more misconduct and those who might seek relief against
about will instead resort to it in self defense.’” Id.  
Appellant relies on the Sixth Circuit’s definition of access to courts
claims for civil litigants and requests that this Court expand that
definition:
“… [A] right-of-access case can be established when a person can
prove that a state’s judicial process does not provide an adequate
procedure to remedy an alleged wrong… Access to the courts… [is]
generally for civil litigants only in the context of spoliation of
evidence or interference with the filing of a lawsuit (emphasis
supplied)… A cognizable claim can be made out ‘only by showing that
the defendants’ actions foreclosed [a potential litigant] from filing suit
in state court or rendered ineffective any state court remedy [the
litigant] previously may have had.’”  Garcia v. Wyeth-Ayerst
Laboratories, No. 03-1712 (6th Cir. October 7, 2004)
V. THIS COURT MUST ERADICATE THE CALIFORNIA 
COURTS’ SYSTEMIC COERCION & RETALIATION
AGAINST THE DISABLED 
A. The District Court’s Ruling Bars As-Applied ADA Title II Retaliation
Suits                                                                                                                            
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1.  Ninth Circuit Law Permits Prisoners to Pursue Retaliation Claims
   in Federal Court
Appellant’s ADA complaints of coercion and retaliation arose from
a “purely administrative” process.  ER 112, No. 3. ¶ 1, line 1. 
Although disabled persons are not required to exhaust
administrative remedies prior to filing suit in federal court, appellant
attempted to resolve her complaints according to CRC 989.3 and the
San Diego Superior Court’s Local Policy Against Bias.  Only after
the California court system failed to provide any meaningful
opportunity for remedy in state court did she file suit in federal
court.
This Court has rejected the argument that California prison inmates
are barred from suit to vindicate their right to be free from retaliation
for filing a lawsuit.
     “Rejecting Rhodes’ suit on the basis of his having filed
administrative grievances seeking to vindicate his rights thus would
establish a rule dictating that, by virtue of an inmate’s having
fulfilled the requirements necessary to pursue his cause of action in
federal court, he would be precluded from prosecuting the very claim
he was forced to exhaust…
      The district court’s further holding that Rhodes’ filing of this
very lawsuit somehow precludes relief on the retaliation claim he
presents goes even further afield.  Indeed, were we to adopt such a
theory, prisoner civil rights plaintiffs would be stuck in an even
more vicious Catch-22.  The only way for an inmate to obtain
relief from retaliatory conduct would be to file a federal lawsuit; 
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yet as soon as he or she does so, it would become clear that he or
she cannot adequately state a claim for relief…”  Rhodes v.
Robinson, No. 03-15335 (9th Cir. August 19, 2004).
2.
Government Retaliation Against Citizen Whistleblowers Is
Unconstitutional
    Citizens may charge that the government hurt them in retaliation
for criticism against the authorities.  Bd of County Comm’rs v.
Umbehr, 518 U.S. 668, 671-72 (1996).  In this case appellant’s
whistle-blowing speech to vindicate her rights to petition, to
access the courts, and to be free of disability discrimination are
protected activities.  The government as a sovereign may not
sanction an individual who engages in such speech as a citizen. 
Azzaro v. County of Allegheny, 110 F.3d 968, 976 n.3 (3d Cir.
1997) “[C]onstitutional review of government employment
decisions must rest on different principles that review speech
restraints imposed by the government as a sovereign.”  Waters v.
Churchill, 511 U.S. 661, at 674 (1994).
B.
The District Court’s Ruling Ignored ADA Title II’s Prohibition Against
Coercion and Retaliation
28 CFR 35.134, “Retaliation or Coercion,” states:
“(a) No private party or public entity shall discriminate against any
individual because that individual has opposed any act or practice made
unlawful by this part, or because that individual made a charge,
testified, assisted or participated in any manner in an investigation,
proceeding or hearing under the Act or this part. 
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(b) No private party or public entity shall coerce, intimidate, threaten
or interfere with any individual in the exercise or enjoyment of, or on
account of his or her having exercised or enjoyed, or on account of
his or her having aided or encouraged any other individual in the
exercise or enjoyment of any right granted or protected by the Act or
this part.”
The Ninth Circuit has defined the plain meaning of
these terms.
“…’Interference’ is ‘the act of meddling in or hampering an activity
or process…’ To coerce is to ‘compel to an act or choice by force
threat or other pressure...’  ‘Coercion’ includes ‘the application of
sanctions or force by a government [usually] accompanied by the
suppression of constitutional liberties in order to compel
dissenters to conform…’ [emphasis supplied]  Finally, a ‘threat’ is
‘an expression to inflict evil, injury, or other damage on another. 
Walker v. Fair Housing Foundation of Long Beach, 263 F.3d 1005
(9th Cir. 2001).
The California court system’s discrimination, interference,
coercion, threats and retaliation caused appellant to dismiss her state
lawsuit under duress.
C.
The California Court System’s Retaliation Reflects Its Intent to Obstruct
Justice
     Appellant was summoned for jury duty on July 23, 2004  approximately
three weeks prior to this Court’s Scheduling Order that 
required her opening brief to be submitted no later than August 16, 2004
RJN Exhibit 3. 
     Appellant’s opening brief (p. 17, ¶ 1, lines 3-14) stated that:
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“Moreover, the San Diego Superior Court has retaliated against
appellant for petitioning this Court by denying her request for excuse
from jury duty ex post facto in violation of California Civil and Penal
Codes and California Rule of Court 860.  [Addendum pp. 43-57]  Jury
commissioners have tampered with official documents supporting
appellant’s request for excuse which referenced appellees’ failure to
provide “…access as contemplated by the ADA.”  SRJN Exhibits 1-5,
ER 161.  Appellees are attempting to evade review by this Court and
to obstruct justice by spoliation of documents that they are required
by California law to maintain.”  
     “Although one might dispute in the abstract whether an intent to 
retaliate will always also include an intent to obstruct justice,”  United
States 
of America v. Smith, No. 03-30482 (9th Cir. October 15, 2004), the San
Diego Court’s acts of retaliation occurred while that court knew that the
Ninth Circuit had jurisdiction over this case and that a judicial proceeding
was pending at the time.  Given this fact, the Superior Court’s retaliatory
intent inevitably operated to obstruct justice, as spoliation of 
evidence aids appellees’ case.
     In addition, the timing of the jury summons, given the San Diego
Court’s spoliation of evidence, past history of bribery and lack of
credibility, may have been the product of significant planning to evade
review of appellees’ unlawful conduct by the Ninth Circuit.  
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    In spite of the court’s representation on its summons form that: 
“You have been selected at random from the DMV OR VOTER
REGISTRATION to serve as a prospective trial juror in the Superior
Court in the County of San Diego.”  RJN Exhibit 3, p. 2.
    
The probability of such immediate temporal proximity is statistically 
remote.  Appellant was targeted for jury service to provide appellees a
defense to this appeal.  Their defense is stated in the Superior Court’s
September 9, 2004 correspondence to appellant.  SRJN Exhibit 4, p. 1:
“…You appear to be asking to be excused from jury duty based on
your physical disabilities… The San Diego Superior Court can and
does comply with the Americans with Disabilities Act.  It has
provided access to numerous disabled jurors without exposing the
potential juror to undue risk of mental or physical harm, and
remains willing to do so for you, if you prefer an accommodation.”                     
    Appellees’ jurisdictional authority over persons summoned for jury
duty is absolute.  Unless excused, appellant would be subjected to a
repetition of the discriminatory accommodation process pursuant to CRC
989.3, in addition to fines, sanctions and incarceration.  Appellees had
motive, opportunity and a jury summons weapon to produce self-serving
documents and other evidence to undermine appellant’s federal claims. 
Documents that contain only subjective notations “are particularly
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susceptible of abuse and more likely to mask pretext.”  Liu v. Amway
Corp., 347 F.3d 1125, 1136-37 (9th Cir. 2003) (citations omitted).
   Moreover, appellees acted without jurisdiction both to deny and accept
appellant’s request for excuse from jury service, as their jurisdiction had
terminated on August 24, 2004 according to the Summons.  “The failure to
adhere to standard procedures may be evidence of pretext.”  Lyons v.
England, 307 F.3d 1092, 1101-02, 1115-16 (9th Cir. 2002).
    The Ninth Circuit has recognized the U.S. Supreme Court’s operational
definition of the circumstances in which an agency’s delays are evidence of
bad faith, citing In re Monroe Communications Corp., 840 F.2d 942, 946-
47 (D.C. Cir. 1988), cert. denied, 502 U.S. 906, 112 S. Ct. 297, 116 L. Ed.
2d 241 (1991):
       “[I]f the court determines that the agency [has] delay[ed] in bad faith,
it should conclude that the delay is unreasonable… [w]here [an] agency
has manifested bad faith, as by singling someone out for bad treatment or
asserting utter indifference to a …deadline, the agency will have a hard
time claiming legitimacy for its priorities.”  Independence Mining
Company, Inc. v. Babbit, 105. F2d 705 (9th Cir. 1997).
“We question whether the Secretary is free to make otherwise
allowable administrative changes with the intent to defeat the
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mandate of the law by making the process so slow and/or
cumbersome as to ensure no patents would issue.”  Id.
VI. THIS COURT MUST RESOLVE THE INHERENT
TENSION AMONG ADA TITLE II, THE DOCTRINES OF 
JUDICIAL/QUASI-JUDICIAL IMMUNITY AND THE
ROOKER-FELDMAN DOCTRINE
A. The Rooker-Feldman Doctrine Disfavors Civil Rights 
1. The Rooker-Feldman Doctrine penalizes plaintiffs who use available
state administrative remedies 
    Although the panel’s opinion in Ahmed v State of Washington,            
No. 00-35660 (9th Cir. December 27, 2001) was vacated on June
18, 2002, appellant refers to this case, as the arguments regarding
the inherent tension between ADA Title II and the Rooker-
Feldman Doctrine, are well stated by the panel’s opinion, the
panel’s dissent, and by the decision to review the case en banc
Moreover, the facts of the case concern disability discrimination
whistleblowing that was initiated pursuant to a state’s
administrative process. 
The Supreme Court in Tennessee v. Lane, supra, did not intend
to create “race to judgment” tension between federal jurisdiction
under ADA Title II and Rooker-Feldman abstention.  Appellant and
all disabled persons are lured into the California court system’s
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“purely administrative” process.  CRC 989.3 permits ex parte
communication with judges.  CRC 989.3 plainly states “[Policy]
…Nothing in this rule shall be construed to impose limitations or to
invalidate the remedies, rights, and procedures accorded to any
qualified individuals under state or federal law.”  ER 108, ¶ 1, lines
2-5.  
However, appellees’ moved to dismiss this case with prejudice,
which voids appellant’s right to be free of disability discrimination,
deliberate indifference, discriminatory animus, and retaliation by
the California court system.  The district court’s Order has left
appellant without any remedy “under state and federal law.”  CRC
989.3 is a trap for all unwary disabled persons which is capable of
repetition, yet has evaded review.  
2. As Applied by the California Court System, Rooker-Feldman
Doctrine is a Tactic to Wrongly Dismiss Constitutional Challenges
to California Rules of Court
a. Both the California court system and the California State Bar
use the Rooker-Feldman Doctrine as a tactic to dismiss
constitutional challenges to California Rules of Court. 
Appellant is a pro se attorney who seeks relief similar to the
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relief sought by the attorney plaintiff in Cantanella v. State of
California, No. 0016782, (9th Cir. September 9, 2002).
The district judge dismissed Cantanella’s § 1983 claims under
the Rooker-Feldman Doctrine.  The Ninth Circuit noted that
even if he were still under the State Bar’s probationary period:
“Rooker-Feldman would likely not bar Cantanella’s
claims.  We also do not read Cantanella’s complaint to be
a ‘skillful attempt to mask the true purpose of the action,
which essentially is to reverse the decision of the
Supreme Court of [California]…’”  Cantanella, supra, fn
6.   
                           
b. Like Cantanella, appellant’s complaints and requests for
accommodation and investigation did not commence judicial
proceedings.
c. Like Cantanella, appellant’s claims are ripe for review.   She has
shown “…an injury in fact traceable to the challenged action and
reducible by a favorable decision… ‘[O]ne does not have to
await the consummation of threatened injury’ before challenging
a statute…”
d. Appellant “…personally faced discipline under the challenged
provisions,” id. i.e., a sanction of $1119.00 for requesting a
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protective order requiring Department of Managed Health Care
(DMHC) attorneys to accommodate her disability.
e. Appellant “…cannot presently and in the future exercise her
U.S./California Constitutional right to petition in a state court
system that intentionally refuses to act ‘as contemplated’ to
enforce her Constitutional and civil rights in compliance with
ADA Title II.”  ER 161 lines 6-10.
f. “It is enough that [appellant] shows that [s]he and others in
[her] position face a credible threat of discipline under the
challenged statutes, and may consequently forego their
expressive rights under the First Amendment…” Id.
g.   “… it cannot be said that [appellant’s] fear of facing future
disciplinary proceedings is ‘imaginative and wholly
speculative… [Appellant] alleges harm not only in the form of
disciplinary measures under the challenged statutes, but the
ongoing harm to the expressive rights of California attorneys to
the extent they refrain from what [s]he believes to be
constitutionally protected activity…”  Id.
h. “Were we to conclude that Cantanella’s claims are ripe only
when based on concluded, disciplinary proceedings,
Cantanella would arguably be barred on a theory of mootness,
or on the basis of Rooker-Feldman…”Id
i. “Further, the alleged danger of this statute is, in large
measure, one of  self-censorship…”  Id at fn 15.
Of critical importance are appellant’s jury service disability
discrimination claims, which are not precluded by Rooker-Feldman.
B.
CRC 989.3 is a Non-Adversarial, Purely Administrative Process
that As-Applied Undercuts ADA Title II
1. California court entities, judges, and executives are not immune from
liability for violations of ADA, Title II.  Tennesse v. Lane, supra.
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2. California judges and court executives are not immune from liability
for their purely administrative acts.  Duvall v. County of Kitsap, 206
F.3d 1124, 1133 (9th Cir. 2001).  Miller v. Gammie, 335 F.3d 889
(9th Cir. 2003) (en banc).
3.California judges and court executives are not immune for their
investigative acts.  Miller v. Gammie, Id.
4.
California judges and court executives not immune from acts of
bribery and obstruction of justice.  USA v. Frega, No. 97-50100 (9th
Cir., June 8, 1999)
5.
“As a matter of law. the [California court’s] system of administrative
processing [of requests for disability accommodation] cannot be
immune from allegations that, in practice, it amounts to a policy of
deliberate indifference…”  Berry v. Baca, No. 03-56004 (9th Cir.
August 13, 2004.
6.
California court entities, executives and judges are not immune  
from the enactment and administration of a nominally even-
handed policy that undercuts ADA Title II.  Kuba v. 1-A
Agricultural Ass’n., No. 02-16989 (9th Cir. October 19, 2004).
Although CRC 989.3 expressly states that is does not limit other
state and federal rights, it does not state a clear warning that its
remedies will trigger Rooker-Feldman and immunity defenses
barring federal jurisdiction.
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           VII. THE CALIFORNIA COURT SYSTEM’S HISTORIC
                      PATTERN OF PERVASIVE DISABILITY
                  DISCRIMINATION IN COURT PROGRAMS,
            SERVICES & ACTIVITIES HAS EVADED REVIEW
A. The District Court Ignored the Plain Law of the Ninth Circuit
1. The district court ignored appellant’s claims regarding the facial
unconstitutionality of CRC 989.3.  ER 2 lines 9-15, 3 lines 8-9, 13
lines 24-30, 30 lines 7-12, 33 lines 10-19, 35 lines 18-25, 40 lines 9-
12, 96 lines 21-28, 99 lines 10-27.
2. The district court purportedly lacked subject matter jurisdiction
under Rooker-Feldman Doctrine and, accordingly, the claims should
have been dismissed without prejudice.  Kelly v. Fleetwood
Enterprises, Inc., No. 03-35050 (June 24, 2004).
3. District courts may scrutinize a state court’s application of various
rules and procedures pertaining to disability discrimination
pursuant to ADA, Title II.  Tennessee v. Lane, supra., Lovell v.
Chandler, 303 F.3d 1039, 1050 (9th Cir. 2002), cert. denied, 123 §
Ct. 871 (2003).
4. Appellees’ failure to exercise oversight of Judge Nugent’s
discriminatory acts constitute deliberate indifference and
discriminatory animus under ADA Title II and the Rehabilitation
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Act.  Duvall v. County of Kitsap, supra, Settlegoode v. Portland
Public Schools, 362 F.3d 1118 (9th Cir. 2004).
5.
Appellant’s claims of deliberate indifference against Justice
McConnell are ripe for review.  Cantanella v. State of California,
supra.
6. Appellant’s claims are not moot.  Cantanella v. State of California,
supra.
7. ADA, Title II will be void in the Ninth Circuit, if federal courts do
not have jurisdiction to review the specific facts of state court
denials of reasonable accommodation.  Tennessee v. Lane, supra,
Duvall v. County of Kitsap, supra.
8. The Rooker-Feldman Doctrine does not apply to appellant, as state
defendants submitted false declarations which constituted extrinsic
fraud on the court, and her jury service discrimination claim has
never been litigated in state court.  Kougasian v. TMSL, 359 F.3d
1136, 1140 (9th Cir. 2004)
9.
The Superior Court, the Court of Appeal, the Administrative
Office of the Courts, and the Judicial Council do not enjoy the
full protection of the Eleventh Amendment for establishing a
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state-wide policy of deliberate indifference that undercuts ADA
Title II.  Tennessee v. Lane, Supra.
10.  The California Courts’ compliance as required by ADA Title II does
not offend the traditional principles of federalism, as ADA does not
require state courts and judicial officers to make specific rulings. 
Tennessee v. Lane, Id.
11.  ADA Title II protects fundamental First and Fourteenth Amendment
rights, subjecting states to suit under U.S.C. §§ 1983 and 1985. 
Tennessee v. Lane, Id.
12.  The U.S. Department of Justice has recognized that adequate
implementation of ADA Title II depends heavily on private attorneys
general and may not be disregarded by federal courts.  Newman v.
Piggy Park Enters, Inc., 390 U.S. 400, 401-402 (1968).
13.  Court entities, judges, and court executives are not immune from
suit for disability discrimination.  Tennessee v. Lane, supra., Duvall
v. County of Kitsap, supra.
14.  Appellees’ cited old law in that the First Circuit reversed the district
court regarding immunity in Badillo-Santiago v. Naveira-Merly,
__F.3d__, 2004 WL 1687881 (1st Cir. July 29, 2004).
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15.  Appellees’ authorities regarding individual liability under ADA
and the Rehabilitation Act have never been the law of the Ninth
Circuit.  Douglas v. California Department of Youth Authority,
271 F.3d 872 (9th Cir. 2001).
16.
Appellant’s jury service claim is a “relation-back claim,”
which “arises from the same ‘conduct, transaction, or
occurrence’ as the original claim… [T]he claim will… be
proved by the ‘same kind of evidence’ offered in support of the
original pleadings…”  In re Markus, 268 BR 556, 564 (BAP 9th
Cir. 2001).
“It would be a waste of both judicial and the parties’ resources
for us to remand this case to the district for the ministerial task
of allowing [appellant] to amend [her] …petition to add the [jury
services claim.]  Smith v. State of Idaho, No. 02-36043 (9th Cir.
September 7, 2004).
Moreover, if appellant’s jury services claim cannot be
considered now, she will be forced to file another ADA Title II
complaint in the district court to obtain relief from disability
discrimination. 
17. Appellant is permitted to amend her complaint, because no answer
was filed.  Public Utility District No 1v. IDA Corp, No. 03-35207
(9th Cir. August 10, 2004)  See Fed. R. Civ. P. 15(a) (‘[L]eave to
amend] shall be freely given when justice so requires.’) 
Eminence Capital, 316 F.3d at 1052 (‘Dismissal with prejudice
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and without leave to amend is not appropriate unless it is clear on
de novo review that the complaint could not have been saved by
amendment.’)” 
18. Appellees have obstructed justice by tampering with evidence to   
evade review of disability discrimination in their jury services
program.  Appellant’s Request and Supplemental Request for
Judicial Notice cannot be disputed by any reasonable person.  The
rule of judicial notice “…contemplates there is no evidence before
the jury in disproof.”  Federal R. Evid. 201 Adv. Comm. Note g
(1975).
Evidence tampering is willful misconduct.  “The usual
meaning assigned to ‘willful,’ ‘wanton,’ or ‘reckless’ …is that the
actor has intentionally done an act of an unreasonable character in
disregard of a risk known to him or so obvious that he must be
taken to have been aware of it, and so great as to make it highly
probable that harm would follow.”  Prescod v. AMR, Inc., No. 02-
55097 (9th Cir. August 19, 2004), citing New v. Consol. Rock
Prods. Co., 171 Cal. App. 3d 681, 689 (1985).
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Professor Chris Sanchirico has written a comprehensive treatise
on ubiquitous evidence tampering that applies to this case.  Duke
Law Journal, February, 2004, Volume 53, No. 4.  (Addendum.)
Obstruction of Justice.  The twenty statutes in Title 18’s
Chapter 73 – which reaches activities as diverse as destroying,
altering and fabricating evidence; …and violently retaliating
against judge, jury, or witness – are scattered like leaves over
the landscape of evidentiary foul play…”  p. 1249
“The court that hears the underlying case may impose
sanctions for evidence tampering under either the Federal Rules
of Civil Procedure or its ‘inherent power’ to regulate process…
For the most part, procedural and evidentiary sanctions reach
only evidence tampering perpetrated after the complaint has
been filed.  Moreover, even along the limited reaches where such
sanctions apply, the farther downstream the tampering, the
greater the sanction and the more summarily it is imposed.”  p.
1261
B.
The California Court System’s Historic Pattern of Pervasive Disability
Discrimination is Apparent from the Facts
1.
Appellees’ statement of the facts is a post hoc rationalization.  It
is the “[C]ourt’s duty ‘…to set aside a final agency decision if
based on a post hoc rationalization.  Independence Mining v.
Babbit, 105 F.2d 705 (9th Cir. 1997).  Consideration of post hoc
agency rationalizations operates…’  Where an agency has
provided a particular justification for a determination at the time
a determination is made but provides a different justification for
that same determination, when it is later reviewed by another
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body.”  id, citing SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.
Ct. 454, 462, 87 L. Ed. 626 (1943).
  “Judicial review of an agency’s actions under [CRC 989.3]
for alleged delay has been deemed an exception to the ‘final
agency decision’ requirement… Under this exception, the court
is examining an agency’s actions prior to a final agency
decision for purposes of measuring agency delay.  Accordingly,
there is no date certain by which to evaluate an agency’s
justifications of its actions.  Moreover, without a ‘final agency
decision,” there is no official statement of the agency’s actions
and relevant justifications…”  Independence Mining Co v.
Babbit, supra.
  
Appellees are desperate to convince this Court that Justice
McConnell’s deliberate indifference to appellant’s two
requests for accommodation do not comport with the Ninth
Circuit’s definition of deliberate indifference as stated in
Duvall v. County of Kitsap, supra.  Judge McConnell’s actions
are not precluded by the Rooker-Feldman Doctrine, are not
immune under the Doctrine of Judicial Immunity and Eleventh
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Amendment immunity and are ripe for adjudication and are not
moot, if they are not barred.  (Reply Brief p. 22, fn 11).
  Justice McConnell’s deliberate indifference insured that she
never received an appeal to “manage,” for which she now claims
judicial immunity.  (Reply Brief, p. 22, lines 10-11)  
    The temporal proximity of the circumstantial evidence
shows that the very day that appellant had made a second
request for accommodation to Justice McConnell’s clerk,
Justice McConnell and/or persons acting at her direction
contacted Judge Nugent at the Superior Court and/or other
judges and court executives.  On that same day, Judge Nugent
then acted to rescind the relief that he had granted to appellant
by rescheduling the initial case management conference by
scheduling a “status conference” at an earlier date.  Appellant
was then forced to make another request for accommodation
to reschedule the status conference to conform to the time and
date of the previously rescheduled initial case management
conference.  ER 19 lines 21-28, 20-21, 23-27.
Appellees now argue that Justice McConnell’s deliberate
indifference to appellant’s two requests for accommodation to
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allow her meaningful access to the appellate court at $655.00
per writ appeal, as required by CRC 989.3, renders the issues
unripe and moot, if Rooker-Feldman does not bar jurisdiction. 
(Reply, p. 22, fn 11.)  
 
Justice McConnell’s deliberate indifference does not render
the issues unripe or moot.  Appellees conspired to insure that
appellant would not be able to obtain a final decision from a
state appellate court that had fully considered all issues.  All
actions were undertaken pursuant to CRC 989.3, which is
facially and as-applied unconstitutional and discriminatory.  
2.
The totality of the judges and court executives actions show a
pattern of pervasive disability discrimination, deliberate
indifference, discriminatory animus and retaliation in
violation of ADA Title II under the statutory aegis of CRC
989.3
a.
Judge Nugent’s discrimination has been documented.
b.
Pursuant to the San Diego Superior Court Local Policy
on Bias, Supervising Judge Weber, who had the
authority to investigate Judge Nugent, produced a bias
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investigation report in spite of appellees’ contention that
she had “no power to review another Judge’s order.” 
(Appellee Reply p. 21.)
c.
Judge Strauss had the same authority and power to
investigate Judge Nugent, but stated that California
Rules of Court did not include such duties.  
d.
Assistant Executive Officer, David Yamasaki confirmed
that Judge Strauss’ duties did not include the
investigation of disability bias.
e.
Justice McConnell’s discrimination has been documented.
f.
Mr. Vickrey’s deliberate indifference is admitted in
Appellees’ Reply in that he “…had done no more than
receive copies of plaintiff’s letter and Mr. Yamasaki’s
response.”  (p. 9 fn 5.)
g.
The jury services discrimination and obstruction of justice
claims have been documented.
h.
If appellees did not have the authority to review Judge
Nugent’s acts and omissions, they demonstrated
deliberate indifference by their failure to refer
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appellant’s complaints to the California Commission on
Judicial Performance. That Commission does have the
authority and did publicly admonish Judge Guy-Schall
for violating a litigant’s Fourteenth Amendment rights
by unlawful incarceration.    
3.
Appellant’s state lawsuit refiling is contingent upon obtaining
meaningful relief from pervasive disability discrimination.  On
February 19, 2004, appellees conspired to force the involuntary
dismissal of appellant’s state lawsuit.  On October 18, 2004, they
contend that appellant has “abandoned” the lawsuit, which moots
“any appeal to the Court of Appeal of her purported denial of
accommodation.” ( p. 40, lines 15-18.)
To refile the state lawsuit, given this further insight into the
state court’s discriminatory mindset is futile, posing undue risk
of additional physical, mental and financial harm.  
Appellant has been denied medical care for over two years,
because of her extraordinary firmness in exercising her
constitutional rights. Kaiser HMO and the California
Department of Managed Health Care “…may not regulate [the
doctor-patient] relationship to advance [state] policy” of
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draconian health care cost containment to unjustly enrich
themselves by harming patients.  Conant v. Walters, 309 F. 3d
629 (9th Cir. 2002).  “We do note the argument by the plaintiff
patients that the [HMO] Directive, if followed, will achieve the
en terrorem effect intended.”  State of Oregon v. Ashcroft, No.
02-35587 (9th Cir. May 26, 2004).
VIII. CONCLUSION
       For all the foregoing reasons, appellant respectfully requests that the
district court’s order be reversed in its entirety, that this case be remanded
to a different judge at a different district court, that leave to amend be
granted, that oral argument be expedited and that all possible relief be
granted.
  Dated: October 28, 2004
Jacquelyn Finney 
         ________________________
    (Typed)           
         Jacquelyn Finney
         Appellant, Pro Se