REIT UDR (NYSE:UDR) Releases IPO Without Disclosing Risk Factors of Pending U.S. Supreme Court Case

September 22, 2012 § Leave a comment

First, see, “Questions Presented” No. 5, then scroll down to

all the relevant parts highlighted in red.

No. 12-5413

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 In the

Supreme Court of the United States

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ERIN K. BALDWIN,

PETITIONER

v.

UNITED STATES DISTRICT COURT,

CENTRAL DISTRICT COURT OF CALIFORNIA,

AND FRANZ E. MILLER, ET AL.,

RESPONDENTS

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ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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SECOND SUPPLEMENTAL BRIEF

TO PETITION FOR A WRIT OF CERTIORARI

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Erin K. Baldwin

Post Office Box 3141

Beaumont, California 92223

678-997-6893

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i.

 QUESTIONS PRESENTED

Unchanged

            1.         Whether pro se Section 1983 plaintiffs (including Petitioner) are deprived of equal protection of the laws against their immunity-protected defendants by this Court’s decision to vacate the required constitutional inquiry in Saucier v. Katz, [1] which was, in essence, the “pro se immunity” against government abuse.

            2.         Whether the Ninth Circuit erred by denying Petitioner a constitutional inquiry as to the validity of two permanent injunctions that restrain her speech prior to publication; and erred by dismissing her case for lack of jurisdiction without due process of law.

3.         Whether the District Court acted in the clear absence of jurisdiction and abused its discretion by writing prejudicial post-appeal orders without jurisdiction to cast Petitioner in a false light, taint the record on appeal, and secure an advantage for the State Bar of California and other defendants named in her Section 1983 case.

4.         Whether the June 2, 2009 Parsa Law Group injunction[2] issued, sub rosa, on behalf of the State Bar of California, inter alia, is an unconstitutional prior restraint, void for vagueness, overly-broad, fails to justify a compelling state interest and was ordered against Petitioner without jurisdiction and due process of law.

5.         Whether the December 11, 2009 UDR, Inc. injunction [3] is an unconstitutional prior restraint, void for vagueness, overly-broad, fails to justify a compelling state interest and was ordered against Petitioner without jurisdiction and due process of law.

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ii.

SUPPLEMENTAL

PARTIES TO THE PROCEEDINGS

            1.         Petitioner Erin K. Baldwin (“Baldwin”) hereby supplements the section entitled, “Parties to the Proceedings,” as filed on July 14, 2012.

2.         In accordance with Supreme Court Rule 12, “All  parties to the  proceeding  in the  court whose judgment  is  sought to  be  reviewed  are  deemed  parties  entitled  to file documents in this Court, unless the petitioner notifies the  Clerk  of this  Court  in  writing  of the  petitioner’s  belief  that one or more of the parties below have no interest in the outcome  of  the  petition.”

3.         All Respondents named in Baldwin’s August 2, 2012 “Proof of Service of Notice to Respondents,” and set forth, infra, are “parties to the proceeding  in the  court whose judgment  is  sought to  be  reviewed.”

4.         To date, Respondents have chosen not to file any documents in this Court.  However, Baldwin prays that this Court requires them to do so by granting certiorari and ordering their response.

5.         Respondents are:

The United States & United States District Court

Julie Barrera                                   Angela Bridges

Barbara Boxer                                 Cormac Carney

David Carter                                    Kimberly Carter

Cathy Catterson                             Richard Clifton

Audrey Collins                                Molly Dwyer

Monica Fernandez                          Dolly Gee

Susan Gelmis                                   Howard Hom

Alex Kozinski                                  Edward Leavy

Sheri Pym                                         Mary Schroeder

Peter Shaw                                       Allison Taylor

Josephine Tucker                           Lydia Yurtchuk

Robert Whaley

California State Court & Government

Richard Aronson                             Kyle Brodie

Edmund Brown                               Tani Cantil-Sakueye

Paul Cook                                         Michael Dest

Robert Dutton                                  Richard Fybel

Donna Garza                                    Thomas Garza

Thomas Harmon                             Derek Johnson

Carolyn Kuhl                                   Franz Miller

Kamala Harris                                 Darrell Issa

Steven Malone                                 John Martin

Gilbert Ochoa                                   Richard Pacheco

Steven Perk                                    Kathleen Rossi

Dwayne Roberts                              Karen Robinson

Craig Robison                                  Jodi Roa

William Rylaarsdam                      Janet Taylor

David Thompson                             Stacie Turner

County of Orange

Patricia Bates                                  Kelli Beltran

William Campbell                           Brian Cossairt

Joseph D’Agostino                          Steve Dunivent

Robert Franz                                   Denise Gragg

Elizabeth Henderson                     Sandra Hutchens

Deborah Kwast                                Thomas Mauk

George McFetridge                         John Moorlach

Wilfred Moreno                               Shawn Nelson

Jennifer Nicolalde                          Janet Nguyen

Frank Ospino                                   Anthony Rackauckas

Martin Schwarz                              Dana Stits

Jean Wilkinson                               T.J. Young

County of San Bernardino

Christopher Allen                           Lori Bachelor

Jay Blankenship                             Jean-Rene Basle

Errol Bechtel                                   Doreen Boxer

Michael Broadhurst                       William Campbell

Geoffrey Canty                                Dennis Christy

Alexander Collins                           Paul Cook

Neil Derry                                         Timothy Dixon

Pauline Domingue                          Lauri Ferguson

Robert Fonzi                                                William Gale

Greg Garland                                   Josie Gonzales

Craig Harris                                     Rod Hoops

Jeremy King                                                Jeffrey Lawrence

Deputy J. Long                                Matthew Marnell

Deputy J. Massey                            Michael McCracken

Brent Meelker                                 Brad Mitzelfelt

Phyllis Morris                                  Christopher Morsch

Gary Ovitt                                        Kelly Papp

Michael Ramos                                Kristie Richard

Jonathan Robbins                          Laura Robles

Janice Rutherford                           Brian Shedd

Mark Shoup                                     Doug Smith

Kawika Smith                                  Melinda Spencer

George Watson                                James Wijnhamer

David Williams                                Douglas Wolfe

City of Big Bear Lake

Elizabeth Harris                             Rick Herrick

Bill Jahn                                           Michael Karp

Darrell Mulvihill

State Bar of California

Lowell Carruth                                Joseph Chairez

Angela Davis                                   George Davis

Bonnie Dumanis                             Scott Drexel

Jeannine English                           Holly Fujie

William Gailey                                Clark Gehlbach

Teri Greenman                                Robert Hawley

William Hebert                                Rex Heinke

Patrick Kelly                                    Jayne Kim

Thomas Layton                               Micha Liberty

Wells Lyman                                    Paul O’Brien

Dennis Mangers                              Howard Miller

Victoria Molloy                                John Noonen

Jon Streeter                                     Russell Weiner

California Department of Real Estate

Wayne Bell                                       Barbara Bigby

Jeff Davi                                            Erik Duckworth

William Moran                                Traci Stevens

Dionne Young

Individuals In Joint Participation With State & Federal Officials Acting Under Color of Law 

Robert Abernethy                           Warren Adelman

Trip Adler                                         Matthew Akin

Harry Alcock                                    Dixie Allison

Martin Andelman                           Sandy Benson

Jason Bentley                                  David Berstein

Paula Boggs                                     Todd Brisco

Alton Burkhalter                            Jeffrey Cancilla

Gregory Clement                            Valerie Cofsky

Jason Crow                                       Mark Culwell

Arash (Alex) Dastmalchi               Dena Davis

Jerry Davis                                       Scott Dettmer

Michael Dolan                                 Gail (Neale) Elerding

John Elerding                                  Peter Eliasberg

Ellen England                                 Richard England

Michael Estrada                              Robert Freeman

Jared Friedman                              Debi Froude

Alan Gamache                                 Richard Giannotti

James Gilliam                                  Thomas Girardi

Eric Goodman                                  Jon Grove

Rebecca Hall                                    Karissa Harmon

Kathleen Harper                             Lucy Helm

Jane Hewitt                                      Melissa Hurtado

Maurice Kane                                  Daniel Kessler

Charles Kimball                              Nicholas Kohan

Craig Laverty                                  Rosamund Lockwood

Jason Mandler                                 Michael Masotto

Amanda McLaughlin                     David Messenger

Marilyn Moberg                              Lee Morgan

Matthew Mullenweg                      Nicholas Myers

Holly Naylor                                                Jessica Neuman

Dale Oberbeck                                 Krista Osborne

Sarah Overton                                 Samuel Parker

James Parsa                                     Deborah Parsa

Robert Parsons                                Yolanda Peterson

Cynthia Poer                                   Michael Ponzillo

Dana Prophet                                  Mahsa Rohani

Roya Rohani                                                Mark Rosenbaum

Tracy Saffos                                     Lynne Sagalyn

Mark Sandler                                  Toni Schneider

Howard Schultz                               Mark Schumacher

Kristen Scotti                                   Craig Sherman

Nigel Titley                                      Thomas Toomey

Eric Traut                                         James Traut

Warren Troupe                                Hector Villagra

Thomas Villeneuve                                    Dara Weiner

Scott Wesson                                    Keith White

Patricia White                                 Anne Zimmerman

[Baldwin reserves the right to amend this list at any time.]

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iii

TABLE OF CONTENTS

UNCHANGED ISSUES PRESENTED …………………………………………………………………………           i

SUPPLEMENTAL PARTIES TO THE PROCEEDINGS ………………………………………..………….           ii

TABLE OF CONTENTS …………………………………………………………………………………………..           iii

TABLE OF CITED AUTHORITIES ……………………………………………………………………….…..          iv

SECOND SUPPLEMENTAL STATEMENT

The Ninth Circuit Has Misrepresented Material Facts to Prejudice Baldwin’s Petition Before This Court ……      1

By Failing to Issue a Mandate in the Subject Case, the Ninth Circuit Wants to Create the Appearance That Baldwin’s Petition is a “Pre-judgment Appeal” Subject to Stricter Guidelines in Supreme Court Rule ..……….     2

An Issue of Semantics or Trickery? “Closed” vs. “Open”………………………………………………………………..………     3

UDR, Inc. Fails to Disclose Risk Factors In Its September 7, 2012 Prospectus for the Sale of Common Stock to the Public ……………………………………………………………………………………………………………………………………      4

While This Court Decides Whether UDR’s State Court Judgment is Valid; UDR Tries to Enforce It by Filing Another Contempt Action Against Baldwin ………………………………………………………………………………..……   5

The Ninth Circuit Threatens Baldwin With a Pre-Filing Order & Sanctions If She “Files Any Further Appeals From Non-Appealable Orders” ………………………………………………………………..……………………………………………     5

All of Baldwin’s Appeals Were Filed in Good Faith & Based on Longstanding Ninth Circuit Jurisdiction …     6

A Failure to Rule on a Motion is Appealable …………………………………………………………………………….         9

Conclusion …………………………………………………………………………………………………………………..…………..     10

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APPENDIX

Exhibit No. 1:           Ninth Circuit Order, August 7, 2012 by Circuit Judges Schroeder, Berzon & Tashima, Case No. 12-56241

Exhibit No. 2:          District Court Order, December 2, 2011 by Judge David O. Carter, Case  No. 5:11-cv-01300-DOC

Exhibit No. 3:          Ninth Circuit Order, February 16, 2012 by Circuit Judges Schroeder, Leavy & Clifton, Case No. 11-57210

Exhibit No. 4:           District Court Order, December 21,  2011 by Judge Josephine S. Tucker, Case No. 5:11-cv-01300-DOC

Exhibit No. 5:           Ninth Circuit Order, February 17,  2012 by Circuit Judges Schroeder, Leavy & Clifton, Case No. 12-55081

Exhibit No. 6:           District Court Orders, January 4, 2012 and January 9, 2012 by Judge  David O. Carter, Case No. 5:11-cv-01300-DOC

Exhibit No. 7:           Ninth Circuit Order, February 16, 2012 by Circuit Judges Schroeder, Leavy & Clifton, Case No. 12-55087

Exhibit No. 8:           District Court Orders, June 12, 2012 by Judge Dolly M. Gee, Case No. 5:11-cv-01300-DMG

Exhibit No. 9:           District Court Orders, January 18, 2012 by Judge Dolly M. Gee, Case No. 5:11-cv-01300-DMG

Exhibit No. 10:        Ninth Circuit Order, April 27, 2012 by Motions Attorney Monica Fernandez – Accompanied                                      by the  Subject Order, February 15, 2012, by Circuit Judges Schroeder, Leavy & Clifton, Both in Case No. 12-70296

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iv

TABLE OF CITED AUTHORITIES

Dees v. Billy, 394 F.3d 290 (9th. Cir. 2005) …………………..….       4

Kulas v. Flores, 255 F.3d 780, 783 (9th Cir. 2001) ……….……       7

Pearson v. Callahan,  129 S.Ct. 18 (2008) …………………………..      i

Plumeau v. Sch. Dist. #40 County of Yamhill,

130 F.3d 432, 439 n.5 (9th Cir. 1997)     ………………………….…    9

Saucier v. Katz, 533 U.S. 194 (2001) …………………………….…..     i

Scott v. Eversole Mortuary, 

522 F.2d 1110, 1112 (9th Cir. 1975) …………………………………      6 

Stein v. Wood,

127 F.3d 1187, 1189 (9th Cir. 1997) ………………………..……..        6

Tory, et al. v. Cochran,

523 U.S. 574, 588 n.10 (1998) ……………………………………….         9


[1]           Pursuant to the principles in Saucier v. Katz, 533 U.S. 194 (2001) and Pearson v. Callahan,  129 S.Ct. 18 (2008).

[2]           Parsa Law Group, APC v. Bad Biz Finder, et al.

[3]           UDR, Inc. v. Erin K. Baldwin aka Bad Biz Finder, et al.

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SECOND SUPPLEMENTAL BRIEF

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            Petitioner, Erin K. Baldwin (“Baldwin”) appears in accordance with Supreme Court Rule 10.3 to present new matter since she filed her July 14, 2012 Petition for a Writ of Certiorari (“Petition”) and September 6, 2012 Supplemental Brief (“Brief”).

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The Ninth Circuit Has Misrepresented

Material Facts to Prejudice

Baldwin’s Petition Before This Court

            1.         Baldwin respectfully submits that the Ninth Circuit Court of Appeals (“Ninth Circuit”) has covertly taken steps to prejudice Baldwin’s appeal to this Court by misrepresenting material facts relevant to:

a.         the status of the case before this Court, Case No. 12-70296 (hereinafter, “Subject Case”);

b.         the contents of the order before this Court issued on February 15, 2012 in the Subject Case (hereinafter, “Subject Order”);

c.         a statement in the Subject Order, i.e., “no further filings shall be accepted in this closed case”;

d.         the meaning of the word “closed,” and its presumed synonymy with the word “finished” in association with the requirements of a “final judgment”;

e.         the necessity of a final judgment as a catalyst to the court issuing a Mandate;

f.          the affect a Mandate has in categorizing an appeal as “pre-judgment” or “post-judgment”; and

g.         the difference in the criteria governing pre-judgment appeals (Supreme Court Rule 11) with that of post-judgment appeals (Supreme Court Rule 10).

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By Failing to Issue a Mandate in the Subject Case, [1] the Ninth Circuit Wants to Create the Appearance That Baldwin’s Petition is a “Pre-judgment Appeal” Subject to Stricter Criteria of Supreme Court Rule 11

                  2.         Baldwin asserts the Ninth Circuit is manipulating the record, intermingling procedures, and twisting word definitions to give the appearance Baldwin’s case is not final and, as such, is subject to the much stricter criteria of Rule 11:

“A pre-judgment appeal will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this  Court.”

3.         Federal Rules of Appellate Procedure (“FRAP”), Rule 41(b) states:

“The court’s Mandate must issue (a) 7 days after the time to file a petition for rehearing expires;  or (b) 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate.”

4.         Baldwin timely filed petitions for rehearing so the expiration element is not applicable.  She also made numerous attempts to obtain an order denying her petitions for rehearing so she would be in compliance with Supreme Court Rule 13.   To this day, all requests remain unanswered.

a.         On March 7, 2012, Baldwin sent a certified letter to the Clerks of Circuit Judges Schroeder, Leavy and Clifton. [2]

b.         On April 11, 2012, Baldwin filed, “Request for Statement of Decision on Final Judgments & Rulings on Petition for Rehearing Re U.S.  Supreme Court Rule 13.”

c.         On April 19, 2012, Baldwin sent a letter to this Court to inform it of obstacles preventing her from properly complying with Supreme Court Rule 13.  [3]

d.         On April 27, 2012, [4] in what originally appeared to be a response to Baldwin’s April 19 letter, supra, a Ninth Circuit Staff Attorney issued an Order that simply restated the obstacles present in the Subject Order.

e.         On May 7, 2012, Baldwin filed, “Second Request for Documents in Compliance with United States Supreme Court Rule 13 Including Final Judgment & Ruling on, or Denial of, Petitions for Rehearing.”

5.         Baldwin will gladly provide copies of all these documents if this Court requests same. However, at this time she is struggling financially and hopes her inability to provide all documents does not adversely prejudice her appeal.

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An Issue of Semantics or Trickery? 

“Closed” vs. “Open” 

              6.         The Subject Order contains the statement: “No further filings shall be accepted in this closed case.”  Baldwin asserts that most people reading “closed case” would believe it is equivalent to “finished case.”

7.         And if asked whether this appears to be a final ruling, most folks would agree that a court’s use of the word “closed” would mean it’s over, done, final, at the end.  It’s hard to imagine anyone thinking “you know, maybe closed means it’s not closed … maybe “closed case” means it’s really “open pending another decision.”

8.         On September 7, 2012, Baldwin learned why the Ninth Circuit had not issue a Mandate in the Subject Case (and the three related appeals).  The docket clerk informed her that the Subject Case (and related cases) were not closed at all.  Rather, they were open pending a decision on the petitions for rehearing.  However, six months earlier Baldwin was told her petitions for rehearing had been rejected without consideration due to the aforementioned statement in the Subject Order.

9.         However, the Ninth Circuit knew it could rely on Dees v. Billy, [5] to debunk any accusation of impropriety by its use of the word “closed.” Dees states: “An order administratively closing a case is a docket management tool that has no jurisdictional effect.”

10.       But if the word “closed” has “no jurisdictional effect” and is simply “a docket management tool,” why is it being used in an Order in the Ninth Circuit Court of Appeals?

11.       If there is a question whether Baldwin’s case is a pre- or post-judgment appeal, Baldwin requests consideration of the aforementioned matters prior to denying certiorari.

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UDR, Inc. Fails to Disclose Risk Factors

In Its September 7, 2012 Prospectus for

the Sale of Common Stock to the Public

              12.       On September 7, 2012, Respondent UDR issued a prospectus for the sale of common stock to the public, the first time in the company’s 32-year history. Baldwin discovered this fact on September 14, 2012, read the Prospectus, and learned UDR failed to disclose inherent risk factors in connection with the Subject Case before this Court.

13.       UDR entered the California marketplace in 2004, and since that time maintained and enforced a residential lease agreement it knew fails to comply with California law.  This intentional fraud unjustly enriches UDR, financially harms its tenants, and explains why thirty-two percent (32%) of UDR’s $700 million annual revenue comes from California.

14.       Baldwin respectfully submits that UDR’s decision to offer stock to the public at this time is further evidence of the national importance of Baldwin’s Petition, UDR’s egregiously unlawful business practices, and the need for this Court to exercise its supervisory power to intervene.

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While This Court Decides Whether UDR’s State

Court Judgment is Valid; UDR Attempts to Enforce

It By Filing Another Contempt Action Against Baldwin

            15.       As further evidence of its unthinking (or perhaps arrogant) capacity to retaliate against Baldwin, on August 30, 2012, Respondent UDR filed a second post-judgment civil contempt action against Baldwin.

16.       It is set for hearing before Judge Franz E. Miller on October 16, 2012.  This new action is based on the same state court judgment under review by this Court.

17.       Orange County Public Defenders (“OCPD”) were appointed by Judge Franz E. Miller to “represent” Baldwin in the first set of civil contempt actions against Baldwin including one filed by UDR.

18.       Even though OCPD attorneys are named defendants in Baldwin’s Section 1983 Complaint and Respondents in the Petition before this Court, they still claim to be counsel of record for Baldwin and, as such, are not required to provide Baldwin copies of her files.

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The Ninth Circuit Threatens Baldwin With a

Pre-Filing Order & Sanctions If She “Files Any

Further Appeals From Non-Appealable Orders”

            19.       As a further act of retaliation and intimidation, the Ninth Circuit entered an Order threatening Baldwin with a pre-filing order and sanctions should she “file any more appeals from nonappealable orders.”  [6]

20.       First, the Ninth Circuit does not have jurisdiction to threaten Baldwin with a pre-filing order or sanctions as it is not a trial court and Baldwin would have no reason to bring a new case there.

21.       Second and notwithstanding the appealability issue, every order issued by the District Court post-December 19, 2011 was issued in the clear absence of jurisdiction thereby violating the Divestiture Rule of the Ninth Circuit.  Said rule is represented in Stein v. Wood, [7] and states:

“As a general rule, the filing of a notice of appeal divests a district court of jurisdiction over those aspects of the case involved in the appeal.”

22.       The Ninth Circuit acknowledged the cases are related; has failed to issue Mandates in all of them; and as such, they necessarily encompass, “aspects of the case involved in the appeal.”

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All of Baldwin’s Appeals Were Filed in Good Faith

& Based on Longstanding Ninth Circuit Jurisdiction

First Appeal, Ninth Circuit Case No. 11-57210

Filed December 19, 2011

                 23.       Baldwin’s first appeal was based on the December 2, 2011 Order of District Court Judge David O. Carter (“Judge Carter”) denying Baldwin’s request for leave to amend her Section 1983 Complaint. [8]

24.       In Scott v. Eversole Mortuary, [9]   the Ninth Circuit held: “It is well-established Ninth Circuit law that where the district court expressly denies leave to amend, the order is final and appealable.”

25.       However, for reasons unclear, the Ninth Circuit dismissed Baldwin’s appeal for lack of jurisdiction.  [10]  Within this dismissal order, the Ninth Circuit also violated Baldwin’s First and Fourteenth Amendment rights to petition and access the court by stating:

“No motions for reconsideration, rehearing, clarification, stay of the mandate, or any other submissions shall be filed or entertained in this closed docket.”

26.       Then, the Ninth Circuit threatened Baldwin with the imposition of a pre-filing order and monetary sanctions claiming she was abusively filing appeals from nonappealable orders.

Second Appeal, Ninth Circuit Case No. 12-55081

Filed December 28, 2011

              27.       Baldwin’s second appeal was based on the December 21, 2011 Order of District Court Judge Josephine S. Tucker (“Judge Tucker”) denying Baldwin’s request to disqualify Judge Carter. [11]

28.       Notwithstanding the meritorious arguments contained in Baldwin’s motion (demonstrated by Judge Carter’s recusal after the fact), Judge Tucker acted in the clear absence of jurisdiction in entering this order three days post-divestiture with knowledge her order encompassed “an aspect of the case involved in the appeal.”

29.       In fact, Judge Tucker’s actions could be considered abuse of discretion and the Ninth Circuit in  Kulas v. Flores, [12] held: “We review a district court’s denial of a disqualification motion for an abuse of discretion,” thereby granting jurisdiction.

30.       However, for reasons unclear, the Ninth Circuit dismissed Baldwin’s second appeal for lack of jurisdiction, [13]  and once again violated constitutional rights by including the same statement, i.e., “No motions for reconsideration, rehearing, clarification, stay of the mandate, or any other submissions shall be filed or entertained in this closed docket.”

31.       Then, the Ninth Circuit threatened Baldwin with the imposition of a pre-filing order and monetary sanctions claiming she was abusively filing appeals from nonappealable orders.

Third Appeal, Ninth Circuit Case No. 12-55087

Filed January 6, 2012

                 32.       Baldwin’s third appeal was based on the January 4, 2012 Order of Judge Carter “voluntarily recusing himself” from Baldwin’s case.  [14]

33.       This is the most egregious example of acting in the clear absence of jurisdiction, in violation of the Ninth Circuit’s Divestiture Rule, and doing so after irreparably damaging Baldwin’s constitutional claims.

34.       Judge Carter decided to step aside:

a.         After he refused to self-recuse when he had personal knowledge of disputed issues of fact and bias toward a party in the action;

b.         After he denied Baldwin’s request for leave to amend her Section 1983 Complaint in an effort to protect the parties with whom he had the aforementioned bias, and based on his personal knowledge;

c.         After Baldwin filed a motion to disqualify him and he still failed to recuse;

d.         After Tucker denied Baldwin’s request to disqualify Judge Carter by claiming she was “a harassing litigant,” with the propensity “to sue every judge that has ever ruled against her”; and

e.         After he equally maligned Baldwin with the same false statements initiated by Judge Tucker, supra, in his recusal orders.

35.       Judge Carter was actively involved in the production of the 2011 Federal Justice Center’s publication, “Judicial Disqualification.” He is quite versed in the unlawful nature of his actions because he described them as such in this publication.

36.       However, for reasons unclear, the Ninth Circuit dismissed Baldwin’s third appeal for lack of jurisdiction, [15] and like the other appeals before it, violated Baldwin’s constitutional right by stating: “No motions for reconsideration, rehearing, clarification, stay of the mandate, or any other submissions shall be filed or entertained in this closed docket.”

37.       Then, the Ninth Circuit threatened Baldwin with the imposition of a pre-filing order and monetary sanctions claiming she was abusively filing appeals from nonappealable orders.

Emergency Petition for

First Amendment Writ of Mandate

Ninth Circuit Case No. 12-70296

Filed January 26, 2012

                 38.       The final case included in the Ninth Circuit threat of the imposition of a pre-filing order and monetary sanctions is the Subject Case and Order presently before this Court.

39.       Baldwin based this appeal on this Court’s ruling in Tory, et al. v. Cochran, [16] that states:  “In California law, a person cannot definitively know whether an injunction is legally void until a court has ruled that it is.”

40.       However, for reasons unclear, the Ninth Circuit dismissed (in part) and denied (in part) Baldwin’s Petition and included the statement, “No further filings shall be accepted in this closed case.” (See, fn. 4, supra.)

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A Failure to Rule on a Motion is Appealable

                 41.       On June 12, 2012, District Court Judge Dolly Gee issued an order [17] that Baldwin had been waiting for since Judge Gee issued her January 18, 2012 Order [18] staying Baldwin’s Amended Request for Leave to Amend her Section 1983 Complaint until her appeals were completed, i.e., February 17, 2012.

42.       The only issue outstanding was whether Baldwin could amend her Complaint.  Judge Gee failed to address the only issued requiring her attention and for which Baldwin had been waiting for months.

43.       The Ninth Circuit in Plumeau v. Sch. Dist. #40 County of Yamhill,[19] held: “A failure to rule on a motion is appealable.”  Instead of ruling on the motion before the court, Judge Gee fabricated matters to rule on to avoid dealing with the issues on the table.  Baldwin appealed and of course, her appeal was denied for lack of jurisdiction. [20]  In fact, it was the same order that we started with, the one threatening Baldwin with a pre-filing order and sanctions if she “files any further appeals from non-appealable orders.”

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Conclusion

                 44.       Baldwin hopes to impress upon this Court the level of abuse her case has been subjected to since she filed her Section 1983 Complaint.  However, the most important fact is that Baldwin is not alone; this sort of abuse is rampant.  Baldwin seeks to change this current state of affairs with this Court’s help beginning with the issue of certiorari in her Petition.

45.       Baldwin asserts the wheels of change are already in motion with the departure of Chief Judge Audrey Collins on September 17, 2012.  But that is only a beginning.  The Respondents in Baldwin’s Petition must be held accountable.  To date, they have not been required to answer to Baldwin’s claims.  But Baldwin prays this Court requires them to do so by granting certiorari and ordering their response.

Dated:            September 19, 2012

Respectfully submitted,

/ s /

____________________________________

Erin K. Baldwin, Petitioner


[1]           And Related Cases, Case Nos. 11-57210, 12-55081, and 12-55087.

[2]           The letter stated, inter alia: “I bring these matters to your attention in the hope that my appeals will be reinstated and allowed the same opportunity for briefing and consideration as appeals brought by non-indigent, represented appellants. If I could afford an attorney, believe me I would hire one, but the absence of same should not adversely prejudice my appeals nor should my lack of income disallow me the same right to appeal as those with a  healthy balance sheet.”

[3]           Via a letter to the Clerk of Chief Justice John Roberts that stated, inter alia: “I am writing to express my sincere desire to file a Petition for a Writ of Certiorari to the United States Ninth Circuit Court of Appeals pertaining to decisions it rendered in the above-referenced cases that directly conflict with its own decisions, decisions of other U.S. Circuit Courts of Appeal, and decisions of the California Supreme Court. However, my ability to timely file said Petition has been obstructed by the Ninth Circuit’s unwillingness to provide me the documents necessary to comply with United States Supreme Court Rule 13, a copy of the final judgments in my appeals or a copy of the orders denying my petitions for rehearing in each case.  To this end, I herein request your assistance.”

[4]           “The court instructed that no further filings would be accepted in this closed case. Accordingly, the court declines to entertain petitioner’s motions for reconsideration, received on February 22, 2012; March 27, 2012; and April 11, 2012.  This case remains closed.”   [See, both the Subject Order and the April 27, 2012 Order at Appendix to the Second Supplemental Brief, Exhibit No. 10.]

[5]           394 F.3d 1290 (9th. Cir. 2005).

[6]           See, Appendix to the Second Supplemental Brief, Exhibit No. 1. [Specifically, page 2.]

[7]           127 F.3d 1187, 1189 (9th Cir. 1997).

[8]           See, Appendix to the Second Supplemental Brief, Exhibit No. 2.

[9]           522 F.2d 1110, 1112 (9th Cir. 1975).

[10]          See, Appendix to the Second Supplemental Brief, Exhibit No. 3.

[11]          See, Appendix to the Second Supplemental Brief, Exhibit No. 4.

[12]          255 F.3d 780, 783 (9th Cir. 2001).

[13]          See, Appendix to the Second Supplemental Brief, Exhibit No. 5.

[14]          See, Appendix to the Second Supplemental Brief, Exhibit No. 6.

[15]          See, Appendix to the Second Supplemental Brief, Exhibit No. 7.

[16]          544 U.S. 734 (2005).

[17]          See, Appendix to the Second Supplemental Brief, Exhibit No. 8.

[18]          See, Appendix to the Second Supplemental Brief, Exhibit No. 9.

[19]          130 F.3d 432, 439 n.5 (9th Cir. 1997)

[20]          See, Appendix to the Second Supplemental Brief, Exhibit No. 10.

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