UNITED STATES SUPREME COURT
NO. 04-____________
HEIDI K. ERICKSON
PETITIONER
PETITION FOR WRIT OF CERTIORARI
WATERTOWN HEALTH DEPARTMENT ET. AL.
RESPONDENTS
ON PETITION FROM
UNITED STATES
COURT OF APPEALS, FIRST CIRCUIT:
FROM A DENIAL OF INTERLOCUTORY MOTIONS: FOR PRELIMINARY INJUNCTION AND EMERGENCY EXPARTE MOTION FOR EXPERT WITNESS EVALUATION
ISSUED BY THE DISTRICT OF MASSACHUSETTS,
ON CIVIL ACTION NO
03-10999
PETITIONER
HEIDI K. ERICKSON, PRO
SE
HARVARD SQ. POSTAL STATION
BOX 0444
CAMBRIDGE, MA 02238
TABLE OF CONTENTS
QUESTIONS ON REVIEW .. .. .. .. .. .. .. .. 2-4
Preamble to Question 1-3 and 4-6 .. .. .. .. .. .. .. .. 3
1. Is It Not A Denial Of Access to the US Courts; and .. .. .. .. .. 3
2. Is It Not A Denial Of Due Process; and .. .. .. .. .. .. 3
3. Is It Not A Denial Of Equal Protection, where total denial of standing to an injured litigant
is based on abstention in the face of bad faith on the part of the Defendants. .. .. 3
4. Is It Not A Denial Of Access To The US Courts; and .. .. .. .. .. 3
5. Is It Not A Denial Of Due Process; and .. .. .. .. .. .. 3
6. Is It Not A Denial Of Equal Protection, where total denial of standing to an injured litigant
is based on abstention when there is no state court judicial proceeding. .. .. 3
7. Is It Not A Denial Of Due Process When A Meaningful Access To Judicial Protection
As A Separate Strand Of Due Process Doctrine is Denied, where the injured litigant is
Denied a meaningful opportunity to be heard on the merits. .. .. .. .. 3
8. Is It Not A Denial Of Due Process When Abstention Is Wrongly Applied To Deny An
Injured Litigant A Meaningful Opportunity To Be Heard. .. .. .. .. 3
Preamble to Questions 9-10 .. .. .. .. .. .. .. .. .. 4
9. Is It Not Plain Error .. .. .. .. .. .. .. .. .. 4
10. Is There Plain Error and/or Abuse of Discretion .. .. .. .. .. 4
11. Is It Bad Faith and/or Lack of Good Faith .. .. .. .. .. .. 4
12. Where an Animal is Property the Owner is the Only Person
Who May Have a Right to Standing on the Animals Behalf .. .. .. 4
JURISDICTION .. .. .. .. .. .. .. .. .. .. 5
PARTIES .. .. .. .. .. .. .. .. .. .. .. 6
STATEMENT OF THE CASE .. .. .. .. .. .. .. .. 7-15
REASONS FOR GRANTING THE PETITION .. .. .. .. .. 15-21
CONSTITUTIONAL AND STATUTORY PROVISIONS .. .. .. .. 22
TABLE OF CITED AUTHORITIES .. .. .. .. .. .. .. 5
APPENDIX (INDEX & DOCKET AT TABS 1-20) .. .. .. .. .. 22-42
QUESTIONS ON
REVIEW
PREAMBLE TO QUESTIONS 1-3 and 4-6
Abstention is a judicially created doctrine under which a federal court will decline to exercise its jurisdiction so that a state court or agency will have an opportunity to decide the matters at issue. As abstention is the exception and not the rule, abstention from the exercise of federal jurisdiction is appropriate only in certain limited circumstances of which there is no indication of issues of bad faith or current state judiciary proceedings.
1). IS IT NOT A DENIAL OF ACCESS TO THE U.S. COURTS; and
2). IS IT NOT A DENIAL OF DUE PROCESS; and
3). IS IT NOT A DENIAL OF EQUAL PROTECTION, where total denial of standing to an injured litigant is based on a wrong application of the abstention doctrine in the face of bad faith on the part of the Defendants. And,
4). IS IT NOT A DENIAL OF ACCESS TO THE U.S. COURTS; and
5). IS IT NOT A DENIAL OF DUE PROCESS; and
6). IS IT NOT A DENIAL OF EQUAL PROTECTION, where total denial of standing to an injured litigant is based on the incorrect application of abstention doctrine when there is no state court judicial proceeding.
7). IS IT NOT A DENIAL OF DUE PROCESS WHEN A MEANINGFUL ACCESS TO JUDCIAL PROTECTION AS A SEPARATE STRAND OF DUE PROCESS DOCTRINE IS DENIED, where injured litigant is denied a meaningful opportunity to be heard on the merits.
8). IS IT NOT A DENIAL OF EQUAL PROTECTION WHEN ABSTENTION IS WRONGLY APPLIED TO DENY AN INJURED LITIGANT A MEANINGFUL OPPORTUNITY TO BE HEARD.
PREAMBLE TO QUESTION 9-10
As a general rule federal courts are bound to adjudicate all cases and controversies that are properly before them, and they cannot abdicate their authority or duty in any case in favor of another jurisdiction. Abstention is inappropriate in issues where there is bad faith and irrelevant where relief of injunction would not have prevented or disrupted any state judicial proceedings.
9). IS THIS NOT PLAIN ERROR, WHERE ABSTENTION DOCTRINE IS APPLIED TO PREVENT/DENY INJUNCTIVE RELIEF IN LIGHT OF NO STATE JUDICIAL ACTION where, Plaintiff sought immediate injunctive relief to prevent the death and destruction of her beloved Persians seized unlawfully at the hands of Defendants and there had been no state judicial action commenced.
10). IS THERE PLAIN ERROR and/or ABUSE OF DISCRETION, where a properly plead case naming several Defendants is dismissed in total against all Defendants based on abstention pursuant to Younger, in the face of obvious bad faith and no state judicial action.
11). IS IT NOT BAD FAITH AND/OR THE LACK OF GOOD FAITH ON THE PART OF DEFENDANTS WHO CREATED A SEPARATE STATE ACTION NAMING INJURED LITIGANT IN AN ATTEMPT TO ARGUE ABSTENTION PURSUANT TO YOUNGER, when the Defendants argued in opposition to Plaintiff (injured litigant’s request for preliminary injunction) a claim for abstention, it had created, by initiating a state action only after Plaintiff sought relief in federal Court – wrong and is bad faith.
12) WHERE THE
ANIMAL IS PROPERTY OF THE OWNER IT IS THAT OWNER WHO IS THE ONLY PERSON WHO MAY
RIGHTLY CLAIM STANDING ON THE ANIMALS BEHALF AND/OR CLAIM PROPERTY INTERESTS.
JURISDICTION
A. The Judgment from the 1st Circuit on an interlocutory appeal, was entered February 3rd, 2004.
B. The said US Appeals Court did not entertain the Motion for Hearing filed on 8/16/03
C. This Petition is timely filed on the 90th day from the issuance of said Order under review for Writ of Certiorari pursuant to the Rules of the Supreme Court, Rule 13.
D. The jurisdiction of this Honorable Court is invoked under 28 U.S.C. Section 1254 (1)
TABLE OF CITED AUTHORITIES
Pages
L. Tribe, American Constitutional Law 155 (2nd Ed. 1988) .. .. .. .. 20-21
Anthony v. Council, 316 F.3d 412 (3d Cir. 2003) .. .. .. .. .. .. 19
Associates in Obstetrics & Gynecology v. Upper Merion Township 270 F.Supp. 2d 633;
2003 US Dist. LEXIS 17468 .. .. .. .. .. .. .. .. 19
Colorado River Water Conservation District v. United States, 424 US 800, 813,
96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976). .. .. .. .. .. .. .. 18
Connor vs. Finch, 431 US 407, 421 (1977) .. .. .. .. .. .. .. 15
Florida Power & Light Co. v. Lorion, 470 US 729, 737 (1985) .. .. .. .. 16
Gwynedd
Props. Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1200 (3d Cir. 1992) .. 18
Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743 (3d Cir. 1982),
cert. Denied, 456 US 990, 102 S. Ct. 2270, 73 L. Ed. 2d 1285 (1982). .. .. .. 18
Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 US 423, 431,
102 S. Ct. 2515, 73 L. ed. 2d 116 (1982) .. .. .. .. .. .. .. 18
Pennzoil
Co. v. Texaco Inc., 481 US 1, 107 S. Ct. 1519, 95 L. Ed. 2d 1 (1987) .. ..
18
Siber vs. United States, 370 US 717, 718 (1962) .. .. .. .. .. .. 15
United States vs. Atkinson, 297 US 157, 160 (1936) .. .. .. .. .. .. 15
Younger
v. Harris, 401 US 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), .. .. 4, 9, 10, 18, 19
LIST OF PARTIES
Petitioner: Heidi K. Erickson Represented by Heidi K. Erickson
Harvard Postal Station
Box 0444
Cambridge, MA 02238
Respondents: Watertown Health Dept. Represented by Joseph L Tehan, Jr.
Steven Ward Katharine Goree Doyle
Watertown Police Dept. Kopelman & Paige, PC
Edward Deveau 7th Floor
31 St. James Avenue
Boston, MA 02116
617-556-0007
Animal Rescue League John J. Ryan
Arthur Slade Shailini Jandial George
Officer Borgal Ryan, Coughlin & Betke
Officer Champanue 175 Federal Street
Boston, MA 0110
617-988-8050
Investments Limited Allison K. Jones
Marla Batsamian John F. Farraher, Jr.
Greenberg Traurig, LLP
One International Place
3rd Floor
Boston, MA 02110
617-310-6001
Michael Driscole Town of Watertown
Jean Jacques Doucette Legal Department
Sharon Mastenbrook Administrative Offices
Officer Answal 149 Main Street
Officer Grady-Duguay Watertown, MA
Officer M. McDevitt 617-972-6465
Hon. Gregory Flynn Waltham District Court
Michael Finucane Linden Street
Waltham, MA
STATEMENT OF THE CASE
1. On 6/9/03 your pro se Petitioner stood alone in the Federal Court for the District of Massachusetts at her table only stacks of papers and binders filled with affidavits, and photographs in support of her requested relief. Behind her the Defendants table stood nearly ten highly skilled attorneys lined up anxious like Plaintiff to be heard. Plaintiff painstakingly petitioned the courts to hear her on this emergency preliminary injunction while Defendants removed her action to the federal district court on the eve of a scheduled hearing and within 4 hours of being served witness subpoenas.
2. Plaintiff sought relief from the irreparable harms upon her property – the return of her beloved family of purebred Persians, a colony of nearly 50 highly valuable genetically unique Persians many of whom had been hand raised for generations by Your Petitioner, who were being unlawfully held by Defendant Animal League, the federal court had an attested statement from Defendants that at least 5 new born Persians had been euthanized and or died during the month that they had them seized on 5/7/03. Plaintiff sought their immediate return of her property unlawfully seized or alternatively a hefty bond (in relationship to the years of work involved in the colonies creation, value of their genetics and the importance of her personal relationship and emotional bond with her Persians) on their lives to encourage, ensure and safeguard their safekeeping. Immediately, as with no regard for Plaintiff’s position, standing or care to include the Plaintiff in a meaningful contribution to present the merits of the case (in light of the new pleadings just being handed to her), the judge enter the courtroom and denied her any opportunity to be heard, shocking the entire courtroom filed mainly by Defendants attorneys who were now delighted by the judges immediate declaration denying Plaintiff’s motion without hearing from her first and basically denying Plaintiff her standing, due process and fair adjudication. The judge announced as if supporting her decision to deny your Petitioner’s relief “I’m here to protect the Constitution and I would like a brief from the Defendants on abstention”. – The Defendant’s filed their additional briefs on 6/16/03 and Plaintiff Motioned for an extension of time to file her brief – it was denied.
3. On or about 6/16/03 Plaintiff filed a Motion for Emergency Access and Expert Witness Evaluation and Reconsideration to the Denial of Preliminary Injunction both were immediately denied. On 6/18/03 Plaintiff then filed her interlocutory appeal, Docket No. 03-1871 and Motioned for Expedited (Emergency) Assembly, Suspension of the Normal Rules and For Expedition of Responsive Pleadings (See page 27, Tab 5 Appendix)– both courts (District and Appeals) ignored these filings and not until 8/21/03 (over 60 days later!) did the clerk assemble the record (See page 33, Tab 11 Appendix) and coincidently the day after the District Court issued a Procedural Order of Dismissal (See page 34, Tab 12) dismissing Plaintiff’s entire case for abstention reasons.
4. This case demonstrates an important question on pivotal rights of access to the courts, due process and misinterpretation of the doctrine of abstention in the face of at least two separate acts of bad faith if not three if one considers, and it should, the original cause of injury to the litigant seeking relief from the unlawful search of her home and seizure of her beloved Persian colony.
5. The first act of bad faith being 1st defendant’s removed injured litigant’s case to the federal jurisdiction on the eve of a preliminary injunctive hearing requested by injured litigant to be heard expeditedly in a state court while she sought immediate relief from irreparable injury caused by the injuries of death to her beloved Persians by euthanasia and neglect from unskilled caretakers (Defendants Animal League) and to restrain the Defendant Animal League from destruction of her property unlawfully seized pursuant to a fraudulently procured search warrant. Time was of the essence.
6. 2ndly, the Defendants filed a clerks hearing only after the federal Plaintiff obtained an emergency hearing and Short Order (See page 23, Tab 1 Appendix) for preliminary injunction and filed an Amended Complaint hand delivering it to each of the Defendants. The fact is that after a month of litigation the defendants filed a claim for a clerk magistrates hearing filing it just a few days before the preliminary injunctive hearing scheduled in the federal court. The fact is that when the Federal Court heard the Plaintiff’s Motion for Preliminary Injunction there was no state judicial action, no arraignment had taken place, no docket number was assigned to a case that named Plaintiff and abstention inappropriate.
7. Abstention doesn’t apply here as another of the two exceptions to the abstention doctrine precludes application of this doctrine used here to deny Your Petitioner an injured litigant relief that second prong of exception is if the requested injunction would ultimately interference with a state judicial proceedings and the third exception is abstention is inappropriate in the light of bad faith. The application of the abstention doctrine a crafty but incorrect strategy for Defendants to create a state proceeding after and upon which the Defendant’s would claim gives raise to support their argument for abstention pursuant to Younger.
8. Quiet clearly abstention pursuant to Younger is not relevant in this context as the injunction sought would not have prevented or disrupted any state judicial proceedings (as at that time there were none, and Younger Doctrine doesn’t work backward) and if in the future there were charges of animal abuse the evidence of the abuse would be the condition of the animal at the time of the allegations and their seizure now a month or so later or today a year later is inapplicable/inadmissible for grounds to hold the property against the right of the owner. Therefore there would be no interference with a state judicial action as there would be none today. Moreover, Plaintiff’s allegations challenged the constitutionality of the very judicial processes to which the ordinary Younger rules would remand them, i.e. bad faith, so that the case fell within the otherwise well-established exceptions to the Younger Doctrine. But the Federal Court refused to allow Plaintiff a meaningful opportunity to assert these claims.
9. Plaintiff cries now – that protection of the Constitution the Judge referred to hereinabove on 6/9/03, should include her interests and more so if one considers the likelihood of the risk of erroneous deprivation is great with respect to uncovered police misconduct made apparent from the affidavits used to request an application for a search warrant based on unwarranted searches and seizures of Plaintiff’s home while she was out.
10. In brief the case surrounds the issues of police misconduct, unlawful search and seizure, deprivations of constitutional protections including and pivotally the wrongful withholding of Plaintiff’s property and the deprivation of her property interests. On 5/5/03 and 5/7/03 the Defendants unlawfully entered her home and stayed inside for 45 minutes taking photographs, searching her cabinets, closets, bedrooms, office and taking away with them the impressions of the privacy of the inside of her home. In doing so upsetting her Persians and even stepping on one kitten killing it. Plaintiff submitted these facts including supportive materials, affidavits attesting to the events she just describe by those who participated in the unlawful events to the federal district court supporting her Motion for Relief see Memorandum of Law In Support of Emergency Preliminary Injunction (page 24 Tab 2 Appendix). Much of this evidence was derived from the Orders issued out of the State Superior Court when Chief Judge and Regional Administrative Justice O’Neil Ordered the Defendants to respond to the claims Plaintiff asserted about a fraudulent search warrant obtained from an unwarranted search and the claims of unlawful seizure. Judge O’Neil Ordered production of the photographs taken, the affidavits used and reports generated from these actions.
11. On 5/27/03 and within 4 hours of receiving notice of the service of10 subpoenas Defendant’s removed the original state case to the Federal District Court coincidently on the eve of a hearing for preliminary injunction in the Superior Court scheduled by the Regional Administrative Justice for Middlesex County who would hear it himself at 2pm on 5/28/03.
12. Therefore on the day of the hearing in federal court 6/9/03, the federal judge held in her hands evidence of the bad acts in the form of: affidavits used in the application for a search warrant attesting to the facts that Defendant police officers executed warrantless searches upon Plaintiff’s home in which gave raise to the affiant's probable cause requesting a search warrant, the search warrant which stated that the Persians were to be seized if they were being deprived sustenance, photos of interior of Plaintiff’s home at the time of the seizure demonstrating large bags of high quality cat/kitten food, running water and clean surroundings. The Court also held attestations of the declining health and death of some of the Plaintiff’s Persians while being in the custody of the under-skilled handlers (Defendants) who were still in possession of her beloved Persians. Affidavits Defendants knew Plaintiff to be a highly skilled, Harvard educated healthy woman who loved her Persians so much that she would suffer extremely if she were separated from them and that they [Persians] would surely suffer (Affidavit of Johansen, DVM). The Court had proof of Defendant Animal League’s refusal of access and denied the Plaintiff her rights to her property.
13. Plaintiff, a Harvard educated, third generation Persian breeder, made the federal court aware of her disability epilepsy and dyslexia and that she uses some of her Persians to accommodate her disability and prevent and/or reduce her seizures. The District Court refused to and/or failed to docket Your Petitioner’s Notice of Appeal originally filed on 6/18/03 until weeks later when it had not assembled the record Plaintiff subsequently re-requested it’s assembly in August 2003 (page 33 Tab 11 Appendix). Due to the circumstances surrounding the Complaint Plaintiff’s life has become unstable and she had repeatedly moved during the course of the last year sometimes delaying filings. Originally Plaintiff’s Notice of Appeal and Emergency Assembly included a Motion for Suspension of Rules and Request for Expedited Filing of Responsive Briefs (page 27 at Tab 5 Appendix) was followed by a Motion Requesting to Proceed In Forma Pauperis (page 29 Tab 7 Appendix) and that the fees required to secure the filing fees for the appeal and those required for a copy of the transcript of the Preliminary Injunction Hearing (about 5-7 minutes in length) in effect perfecting the appeal were to be provided to the Appeals Court at the governments costs –in July 2003 it was denied by the District Court Gertner originally (page 30 Tab 8 Appendix) then reheard months later in October, 2003 by Judge Lindsey when Judge Gertner transferred the case to him. District Judge Lindsey allowed Plaintiff’s request to proceed on appeal in forma pauperis issuing an Order 10/28/03 (page 37 Tab 15 Appendix). Plaintiff requested the Transcript at governments cost as it was imperative to the appeal and the record to demonstrate that Plaintiff was not afforded any opportunity to be heard at the preliminary hearing she painstakingly prepared for. District Court Judge Lindsey wrote an opinion entitling it Memorandum and Order On Motion For Transcripts (page 40 Tab 18 Appendix) dated 1/27/04 and a few days later the Appeals Court issued its Judgment on 2/3/04 (page 41 Tab 19).
14. Judge Lindsey Ordered his Memorandum to be sent to the Appeals Court. It inaccurately makes factual allegations of the course of this case in particular to see Memorandum Supra (page 40 Tab 18) at page 2 “[I] noted that she had not included a statement of her claim of entitlement to redress or a statement of the issues she intended to present on appeal in contravention of Federal Rule of Appellate Procedure 24 (a)(1). Docket No. 55.” Your Petitioner points to the page 38 herein and at Tab 16 of the Appendix states that on 8/18/03 when she re-requested the District Court and simultaneously re-requested the Appeals Court to process her appeal (Appeal Notice originally filed on 6/18/03 (60 days before- at page 27 Tab 5 Appendix) now docketed as Appeal No.03-1871. Your Petitioner filed a Verified Motion Request For Emergency Hearing Pending Appeal (See page 31 at Tab 9 Appendix) and Memorandum of Law In Support (See page 32 at Tab 10 Appendix) that outlined and declared her claims and statement of issues under appeal, in addition Your Petitioner filed a Verified Opposition to Appellee’s Motion to Dismiss Appeal docketed in this Appeal No. 03-1871 (See page 38 at Tab 16 Appendix) filed on 10/08/03 nearly 3 months before Judge Lindsey wrote the abovementioned Memorandum.
15. Petitioner has repeatedly claimed that the contents of the District Court Judge Gertner’s statements on the record at the time of the hearing for preliminary injunction (6/9/03) and the apparent refusal to process the appeal, allow necessary motions for funds is of significant importance to the proceeding on Appeal now under review for Writ of Certiorari and is still of importance for this review mainly because District Court Judge Lindsey’s opinion a second hand account of details that he had no privilege to hear first hand as his appearance was not in the court room during the preliminary injunction hearing on 6/9/03 where his opinion should be given only partial weight keeping in mind the corrections as noted hereinabove.
16. The Defendant Police executed said warrant with the aid of the additional Defendants Animal League who insisted on taking (seizing the Persians despite nearly 100 lbs of high quality cat/kitten food and water being ample and available and that fact that there was a veterinarian across the street whom had a relationship with Plaintiff for her animals and was willing to come over right then and there to make an evaluation of their condition). The Defendant Animal League denied this vet’s participation and even threatened him if he visited during the search and seizure. The fact remained that by moving an active breeding colony an extremely dangerous endeavor to the health and safety of the Persians who numbered in the 50’s especially the newborns and kittens under 6 weeks of age due to their immune systems dependency on mother’s milk (mothers immunity) and the fact that a disruption in the living conditions could send a nursing mother into stress causing her to stop lactating). Plaintiff claims (her Persians seizure by the Defendant Animal League malicious and beyond the scope of the warrant and motivated by retaliation due her reporting their inappropriate actions well over a year before) she has not been afforded the opportunity to argue this fact or the fact that abstention inappropriate and not applicable in this situation due to the bad faith actions of the Defendants and that the Defendant Animal League if enjoined by the Court the Order would not interfere with any state judicial proceeding.
17. That the unlawful ruse to seize her Persians violated and deprived her of her constitutional rights and that her award winning, genetically unique and extremely personally valuable and irreplaceable Persians were wrongly seized and were being irreparably harmed by the negligent and wrongful actions of Defendant Animal League. And that any state court could not and would not afford her the review of their safety, safe return or bond for same because the case was in federal court and it has the responsibility to protect the Constitution.
18. Since the Defendant’s seized Plaintiff’s Persians (a breeding colony) it separated mothers from newborn’s, separated other kittens from surrogate mothers, exposed the colony of highly bred purebred and extremely valued pedigreed Persians to diseases present in the shelter that the Defendant Animal League had transported the colony to and that these new diseases challenged the colonies acquired immunity and created sickness throughout the colony due both from exposure to new diseases present in the animal shelter that the Persians had never been exposed to taxing the Persians doubly by the new stresses of shelter living, losing their caregiver, changes in routine, and the constant barking of dogs created stresses in the colony that reduced the vigor of the colonies immunity defenses. Other colony members were pregnant, and other nursing mothers from undue stresses stopped lactating and their babies died of starvation and other immunity challenges that the kitten(s) would normally have not been effect as they depended on mother’s milk to supply them with immune defenses. By 5/14/03 5 kittens had died, pregnant mothers had aborted and the whole colony had gotten sick and was under unusual stresses. Three kittens who were preparing to be show at Madison Square Garden started to loose their conditioning. The day the colony was seized each Persians allegedly underwent a physical completed by Defendant Animal League the results did not demonstrate abuse, unusual illnesses or starvation. Two weeks later all the newborns had died, kittens were not thriving and the colony was sick as would be expected from traumatic displacement via unskilled and negligent handlers uprooting of a colony of Persians.
REASONS FOR GRANTING THE PETITION
1. The Questions raised herein upon this Honorable Supreme Court gives rise to the fundamental fabric of the judiciary and important functions in today’s society. The importance of this Petition express a substantive issue of grave public concern – access to the courts and fair adjudication of disputes in light of not only a judicially created doctrine, created outside the realms of Congressional intent but relied upon by the courts in this case, and more then likely many others, to summarily deprive the basic rights of opportunity, due process, and access to the courts plainly erroneous. At its option, however, this Honorable Court may consider a plain error not among the questions presented but evident from the record and otherwise within its jurisdiction to decide, Rules of the Supreme Court, Rule 24.1; R. Stern & E. Gressman, Supreme Court Practice 423 (8th Ed. 2002).
2. The decision below calls for an exercise of the Supreme Court’s supervisory powers and their power to notice plain error and decide a case on grounds not previously raised has been said, in the review of federal court proceedings to be limited to exceptional circumstances where errors “seriously affect the fairness, integrity or public reputation of public proceedings” United States vs. Atkinson, 297 US 157, 160 (1936); Quoted in Siber vs. United States, 370 US 717, 718 (1962) and Connor vs. Finch, 431 US 407, 421 (1977). Petitioner challenges that the plain meaning of her denial of opportunity wrong, plainly an error and that because of this there maybe facts not obvious to her below but in the eyes of the beholder plainly erroneous, quoting Justice Brennan “plain meaning, like beauty, is sometimes in the eye of the beholder” Florida Power & Light Co. v. Lorion, 470 US 729, 737 (1985). Petitioner states it is clear that she was denied the opportunity argue the merits which give rise to these important questions presented in this Petition for Writ of Certiorari and therefore maybe absent from the record below and that because of the serious nature, loss of life, irreparable harms that the court could have prevented if it had acted interlocutorily gives rise to the very importance of this Petition and the proper appreciation of the due process clause of the 14th Amendment.
3. Petitioner is not claiming that this Petition exceptional, albeit exceptionally important for society as a whole and integral part of life. Below Petitioner claimed an independent right to her property (purebred pedigreed Persian colony having great intrinsic value of personal and emotional attachment to her but that this generational colony 10’s of years of work involved contained irreplaceable, exceptional genetic lines that are extremely valuable) being held against Petitioner’s right by Defendants Animal League (animal rights group whose philosophy is to spay and neuter directly in conflict with Petitioner’s a well educated third generation breeder). The colony and her life’s work being irreparably harmed and taken as a result of the other Defendant’s (Watertown Police and Health Department) deprivation of Petitioner’s 4th and 14th Amendment rights) even if it is argued that abstention applied to the Watertown Police which it could not as there were no state judicial proceedings to interfere with (a requirement of abstention doctrine) one could not apply the same rational to the Animal League who is acting under the color and pretenses of state law to hold against the rights of Petitioner her beloved Persians while doing so refuses to provide adequate medical attention and appropriate husbandry management. Even if one argued that eventually there could be criminal charges brought against Petitioner and that the Persians were evidence of the charge then when it occurred the evidence could only be the condition of the Persians on the day they were unlawfully seized. The Persians are living breathing creatures to be provided love and attention and humane care. Their very nature is ever changing they themselves express emotion, feel stress and depression that only their caregiver could truly recognize and that demands and appreciation not in the same why as a bloody glove would be considered but they must be considered in a different compassionate way to ensure their quality of life and Petitioner’s interest.
4. The fact that at the time of the federal court’s decision to deny Petitioner an opportunity to be heard, deny her motion for preliminary injunctive relief apparently on the doctrine of abstention there was no state judicial proceeding and not until after and at the hands of the Defendant Watertown Police not the Defendant Animal League. Yet to speculate abstention applies because, well the defendants could choose to raise a state judicial proceeding denial of equal protection and the defendants should have been enjoined. Speculation should not deny a injured litigant an opportunity to be heard, depriving her of due process and equal protection.
5. To date 1/3 of Petitioner’s Persians have died at the incompetent hands of the Animal League, the Petitioner’s favorite and most valuable Persian Fractured Star died on 6/21/03 autopsy reports indicate that she was drowned, suffering acute asphyxiation pneumonia and dehydration. Autopsy reports on several others indicate the newborns died of starvation that they require feeding every two hours; Cuddles died 7/29/03 of a stress induced heart attack, Beamer died 10/6/03 of sanguination due to a perforated ulcer dying a horribly painful death over several days while the incompetent staff did not know how to recognize an animal in pain and/or in shock. 2 others were euthanized in October 2003 and three in June 2003 and one in January 2004. As the Animal League refuses to provide adequate medical attention and/or even love to these gentle Persians and left unrestrained to do as they please with Petitioner’s property, life work and her beloved friends justice is not served and the innocent are irreparably harmed.
6. If one could point to a Circuit Court that is in conflict with the decision rendered by this First Circuit it probably would be each and all but to impugn the First Circuit’s lackluster review of denied opportunity and incorrect application of the abstention doctrine, I found in the Third Circuit several cases who rely on this Honorable Supreme Court “As abstention is the exception and not the rule, abstention from the exercise of federal jurisdiction is appropriate only in certain limited circumstances. Colorado River Water Conservation District v. United States, 424 US 800, 813, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976). Abstention is a judicially-created doctrine under which a federal court will decline to exercise its jurisdiction so that a state court or state agency will have an opportunity to decide the matters at issue. Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743 (3d Cir. 1982), cert. Denied, 456 US 990, 102 S. Ct. 2270, 73 L. Ed. 2d 1285 (1982).
7. Under Younger v. Harris, 401 US 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), abstention is appropriate when federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings, state nuisance proceedings antecedent to criminal proceedings, or collection of state taxes. Colorado River, supra. The Younger doctrine has been expanded to apply to cases involving private parties. Grimm v. Borough of Norristown, 226 F. Supp. 2d 606, 626 (E.D. Pa. 2002) (citing Pennzoil Co. v. Texaco Inc., 481 US 1, 107 S. Ct. 1519, 95 L. Ed. 2d 1 (1987)). Younger abstention arose primarily from the notion of comity and reflects “a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances.” Gwynedd Props. Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1200 (3d Cir. 1992) (quoting Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 US 423, 431, 102 S. Ct. 2515, 73 L. ed. 2d 116 (1982)).
8. The Third Circuit recently argued substances of similar argument reviewing the three prongs that must be meet in order for a federal court to abstain under the Younger doctrine: (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise federal claims. Middlesex, Supra. at 432. Even if the necessary three predicates exist, , however, Younger abstention is not appropriate if the federal plaintiff can establish that the state proceedings are being undertaken in bad faith, or if there are other extraordinary circumstances, such as where the state proceedings are based on a flagrantly unconstitutional statute id. at 435 or unconstitutional actions. See generally, for recent repetition of these requirements, Anthony v. Council, 316 F.3d 412 (3d Cir. 2003) and in Associates in Obstetrics & Gynecology v. Upper Merion Township 270 F.Supp. 2d 633; 2003 US Dist. LEXIS 17468.
9. Whether the Federal District and the US Appeals Court refusal to hear from pro se Plaintiff seeking injunctive relief from obvious irreparable injury, its denial of access amounts to a denial of Plaintiff’s protected rights under the substantive due process clause of the 14th Amendment placing equal protection to fair adjudication in a grave position simultaneously granting abstention doctrine a new strategy tool for state defendants seeking avoidance of legitimate claims.
10. It is unjust and unfair to summarily deny injured Plaintiff, who seeks relief from irreparable injury, the opportunity to argue the merits at a hearing where initially Federal District Judge O’Toole reviewed the pleadings and scheduled an expedited hearing (See page 23, Tab 1 Appendix) that was basically cancelled sua sponte by another District Judge Gertner (See page 24, Tab 2 Appendix) Endorsing Motion for Preliminary Injunction without hearing from Plaintiff, the denial based on the abstention doctrine.
11. Federal District Judge Gertner, endorses Your Petitioner’s Motion for Preliminary Injunction: “Denied, based on the factual questions reflected in defendants’ submission” where the court knew that Plaintiff had been just handed the defendants’ opposition written by crafty lawyers should have prompted some questions for Plaintiff and at least the court should have allowed Plaintiff an opportunity to present the merits of her claims for relief and show that abstention not applicable.
12. Professor Lawrence Tribe believes there is a fundamental right of access, grounded in the Constitutional guarantees of equal protection and due process. And like his teachings these are grounded in the brightest minds of this century it would be a travesty if these ideas confronted nothing less then opportunity to be heard and understood. L. Tribe, American Constitutional Law 1462-63 (2nd. Ed. 1988) these teachings have not waivered from this basic premise.
13. Federal District Judge O’Toole established your Petitioner’s standing on 5/30/03 (See page 23, Tab 1 Appendix) by issuing a Short Order and scheduling a date for preliminary hearing, to be heard in front of Judge Gertner. “After it has been ascertained that the litigant has adequately alleged an injury in fact caused by the act against which judicial relief is sought, it must be ascertained whether that act constituted a breach of a duty arguably owed to the litigant, by analogy to the law of torts. Such a duty brings the litigant to the point of standing at the lower right vertex. In this regard, the trend in the past several decades has been to identify an expanded set of interests which officials are bound to take into account, and a correspondingly expanded class of litigants who are entitled to complain that actions taken have violated duties owed to them.” Supra at page 155.
14. Petitioner has, had and will always have the ultimate standing over her property interests that these inherent rights and interest may not be summarily denied to afford another party more or greater interests in her rightful standing of her property. Petitioner’s Persians themselves have no standing and their standing cannot be implied upon another custodian especially in light of that custodian’s bad faith actions, and deprivations of constitutional protections to obtain the unlawful custody. If it is argued and should not be herein, Your Petitioner (the injured litigant who has standing for her Persians and about her property interests) who was injured by another’s action (Defendant Animal League) may presumptively lack standing to represent her own interests because the action has violated no duty, as a matter either of constitutional or of statutory law, to the litigant. In those cases, however, Your Petitioner (the litigant) may be given the status of a surrogate – a “private attorney general” – to represent the interests of persons [children] [and/or her property] before the court, under any of several classes of exceptions to the rule against third-party standing. These exceptions take the litigant to the top of the triangle. It should be clear, however, that determining who owes what duty to whom, especially with nebulous constitutional commands, antiquated statutes, and frequent legislative buck-passing to administrators, is a slippery business as best. But regardless there is no question herein as to the duty owed to Petitioner and her property, that she has ultimate standing which cannot be substituted by the mere claim that custodians unlawful possession can create their own interests in Petitioners property a tactics derived from an act of bad faith and another act to create a future situation claiming abstention to totally bar Petitioner from her property lone enough to destroy it.
15. Thus, when total denial of standing to an injured litigant rests on fine calculations of duty or its absence, the prudential purposes of standing doctrine should probably be deemed satisfied by resolving threshold doubts in favor of hearing the litigant on the merits (assuming all other elements of justiciability are present), particularly if government’s overriding duty to act lawfully is accorded serious weight. L. Tribe, American Constitutional Law 155 (2nd. Ed. 1988)
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
DUE PROCESS & EQUAL PROTECTION UNDER THE 14th AMENDMENT
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5. The
Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.
ABSTENTION
DOCTRINE
Not
a constitutional or statutory provision
APPENDIX
TAB Page
3. Memorandum in Support of Preliminary Injunction .. .. .. .. 25
4. Endorsed Order Denying Motion For Expert Witness Evaluation ..Filed 6/18/03 26
5. Notice of Appeal & Emergency Motion for Assembly of
Record For Suspension
of
Rules and Request For Expedited Filing of Responsive Briefs Filed 6/18/03 27
6. Motion to
Expedite Responsive Pleadings & Correct Docket Entry, Denied 28
7. Motion to
Proceed In Forma Pauperis On Appeal 03-1871 .. Filed 6/18/03 29
8. Order
Application to Proceed Without Prepayment of Fees Issued 7/21/03 Denying 30
9. Verified
Mot. For Emergency Hearing Pending Appeal 03-1871 Filed 8/18/03 31
10. Memorandum
of Law In Support of Hearing Pending Appeal 03-1871 32
11. Clerk’s
Cert. of Assembly: Appeal 03-1871 Issued
8/21/03 33
12. Procedural
Order Of Dismissal Issued
8/20/03 34
13. Not. Appeal
& Emerg. Assembly of Record on Appeal 03-2207 Filed 8/27/03 35
14. Motion to
Proceed In Forma Pauperis Filed
8/27/03 36
15. Order On
Application to Proceed Without Prepayment of Fees Issued 10/28/03 37
16. Notice of
Docketing Statement/V. Mot. Opposition to Dismiss Appeal 03-1871 38
17. Verified Mot…For
Leave to File Transcript/File Signed Report on Appeal 03-1871 39
18. Memorandum
and Order On Motion For Transcripts on
Appeal 03-1871 .. .. 40
19. Judgment of
the U.S. Court of Appeals, First Circuit Appeal
03-1871 .. 41
20. Docket .. .. .. .. .. .. .. .. .. .. ..
42
TAB 1
Order Scheduling Preliminary Injunction Hearing for
6/9/03
Issued 5/30/03
TAB 2
Memorandum in Support of Preliminary Injunction
Motion For Expert Witness Evaluation
Notice of Appeal & Emergency Motion for Assembly of Record
&
For Suspension of Rules and Request For Expedited Filing
of Responsive Briefs
TAB 6
Motion to Expedite Responsive Pleading
& Correct Docket Entry & Request For Hearing
Motion to Proceed In Forma Pauperis On Appeal 03-1871
Filed 6/18/03
Order Application to Proceed Without Prepayment of Fees
Denied
Issued 7/21/03
Verified Mot. For Emergency Hearing Pending Appeal
03-1871
Filed 8/18/03
Memorandum of Law In Support of Hearing Pending Appeal
03-1871
Clerk’s Cert. of Assembly: Appeal 03-1871
Issued 8/21/03
Procedural Order Of Dismissal
Issued 8/20/03
Notice of Appeal & Emergency Assembly of Record on
Appeal 03-2207
Filed 8/27/03
TAB 14
Motion to Proceed In Forma Pauperis
Filed 8/27/03
Order On Application to Proceed Without Prepayment of
Fees
Issued 10/28/03
Verified Opposition to Appellant’s Motion Dismiss Appeal
03-1871
(Notice of
Docketing Statement)
Verified Motion On 1st Appeal From Denial of
Preliminary Injunction
For Leave to File Transcript and to File Signed Report
on Appeal 03-1871
Filed 8/24/03
Memorandum and Order On Motion For Transcripts on Appeal 03-1871
Issued 1/27/04
Judgment of the
U.S. Court of Appeals, First Circuit Appeal
03-1871
Issued 2/3/04
DOCKET
