People of the State of California vs. Richard Quigley The Prosecution and Ultimate Dismissal of 9 Citations
On November 19, 2004, following over a year (over 30 court appearances) of extensive litigation a case defended by me, Richard "quig" Quigley, in the Superior Court of Santa Cruz County California the Honorable Judge Michael Barton handed down his ruling on nine helmet tickets that had been issued to me four by the Watsonville Police Department and five by the California Highway Patrol. On this day, Judge Barton ruled that I had violated the helmet law, but that the citations were for correctable equipment violations, indicating that he would dismiss them all once I had gotten the tickets signed off by the respective police agencies and presented them to the court.
November 19, 2004
No one knew it at the time, but this decision by the court would lead to a series of eye opening events for Judge Barton culminating in his final ruling on the matter finding that I was actually not guilty of violating the helmet law because the statute, as applied by the citing agencies, was unconstitutional (and ultimately unworkable).
All of the proceedings prior to the November 19th ruling were recorded on audio tape (much of it lost due to recording equipment failures). All of the rest were reported by a court reporter and available by clicking on the court dates indicated below (with at least two lost along the way as of this writing, but hopefully all available eventually).
January 24, 2005
March 11, 2005
April 6, 2005
May 18, 2005
Okay, so now we've reached the point where Judge Barton has found the helmet law violations to be correctable, ordered the CHP to sign off the five citations they had issued (Watsonville PD did obey the court's order and sign off the four they had issued), the CHP had refused to obey the court's order and we (me, through my attorney/friend Kate Wells) moved for a hearing to find the CHP in contempt of court for refusing to obey the court's order and sign off the tickets. The next few transcripts will show what the Attorney General's office did to help me and Judge Barton dispose of the tickets and get some sort of support or guidance to the contrary from the Appellate Court. In other words, here comes THE BRAKES!!
July 15, 2005
October 7, 2005
November 7, 2005
November 14, 2005
January 20, 2006
May 1, 2006
By this point, I had approached the court with the idea of allowing me to file a motion to dismiss on the grounds that the statute is unconstitutional as applied, as a final attempt to get the cases decided, closed and moved to the higher court on appeal by either myself or the Attorney General or the District Attorney. Briefs were filed by both sides and hearing on the motion was set for June 2, 2006 EIGHTEEN MONTHS AFTER JUDGE BARTON MADE HIS INITIAL RULING and one month short of three years since the fist of the nine citations was issued on July 24, 2003.
Here's my Motion to Dismiss:
Motion to Dismiss
Declaration in Support of Motion to Dismiss
(You'll need to know where the evidence referenced in the motion is located. Try here. You ain't gonna believe some of the stuff we've collected.)
Here's the District Attorney's Response:
District Attorney's Response
(Here's a little jewel I filed in an effort to correct a mistake in the original motion. I don't think it did us any harm:
They call it "Erratum" (meaning, "oops"))
This is the transcript of the hearing on the motion: June 2, 2006
In this transcript, the judge makes the tentative ruling that the statute is unconstitutional as applied to me, and we discuss how to make such a ruling effective in stopping any future citations, barring a change in enforcement practices: June 23, 2006
This is the transcript where the judge made his final ruling on the nine cases, dismissing ALL the citations on the basis that the helmet law statute was/is unconstitutional as applied to me: July 14, 2006
Here's the eight page order, signed by Judge Barton, explaining his reasoning in making the July 14th decision and ordering the nine citations dismissed:
Findings of Fact, Conclusions of Law and Order After Hearing
There were two citations one written by the CHP and one by a State Parks Ranger trailing the other nine. This transcript is of the trial and decision (same as before) relative to those two citations: August 25, 2006
NONE OF THESE RULING WERE APPEALED BY EITHER THE DISTRICT ATTORNEY OR THE ATTORNEY GENERAL they just told the media they'd appealed. Oh yeah, the District attorney did do one more thing . . . the filed a blanket motion to disqualify Judge Barton from hearing any more helmet ticket cases. (Don't it just make ya proud?)
We were stuck. We had the decision we had been working for for over a decade and a half, and the impact beyond those eleven citations was NONE!
Here's the litigation currently pending . . . all of which required by the failure of the prosecution to help us and the court find a solution to the problems uncovered throughout this case, and what we hope/expect to happen next:
California Highway Patrol
(The "Fix-It Tickets" Case)
"THE BRAKES" referred to earlier, following Judge Barton's ruling that helmet tickets are correctable equipment (just like the law states), led to the filing of an action in the 6th Appellate court by the California Attorney General's office an action that both requested a stay on the contempt proceedings regarding the CHP's refusal to sign off the five tickets they had issued, and requesting Declaratory Relief, in the form of a finding by the Appellate Court that helmet tickets are NOT correctable equipment violations.
This case is entitled CHP v. Superior Court the docket of which can be accessed by clicking here. You can check the progress of the case at any time by reading the updates on the docket.
When the Attorney General started this action, and obtained a stay on the pending contempt proceedings against the CHP, I needed help. I contacted Mike Osborn and asked if he knew of any way I could get the help to deal with the AG on this matter since my health issues had pretty much taken away my ability to do these things on my own. Osborn approaced Wendy Lascher one of California's best appellate court attorneys and a long-timefriend to bikers involved in fighting the helmet law. Lascher, as the attorney who was heavily involved in the first major decision on the helmet law, the Buhl v. Hannigan case, was more than willing to help.
As you read through this, take a look at how long it is taking to get in front of the court. As it worked out, plenty of time for me to convince Judge Barton to take another angle at clearing his calendar of the tickets in front of him. Probably NOT what the AG had in mind.
This is a chronological list of the pleadings filed (so far) in the matter of the CHP v. Superior Court :
AG's Opening Brief filed October 8, 2005; Exhibit 1 (a copy of an Order, signed by Judge Barton, ordering the CHP to do their job and sign off the helmet tickets they wrote me); Exhibit 2 (a Motion for Reconsideration filed by the District Attorney, titled "Statement of the Case," in which the DA explains their understanding of the case as false and otherwise deluded a brief as has ever been filed in this matter by the DA . . . the AG eventually tops them on both levels); Exhibit 3 (a transcript of the January 24, 2005. hearing on the DA's Motion for Reconsideration, where Judge Barton, after discussing their arguments, denies the DA's request to change his ruling where he found the citations issued to me correctable, "fix-it" tickets); Exhibit 4 (a copy of the transcript of the July 15, 2005, contempt hearing against the CHP where the AG asks for and is granted time to file a "Petition for Writ," not an appeal, regarding Judge Barton's finding that for refusing to sign off my tickets, the CHP should be held in contempt).
I wrote a letter to the court letting them know I was looking for a lawyer:
On October 10, 2005, the Appellate Court issued this Stay Order preventing Judge Barton from proceeding with his comtempt charges against the California Highway Patrol.
On November 28, 2005, Wendy Lascher filed our Preliminary Opposition to the writ petition filed by the AG the issue of whether or not helmet tickets are, as the law states, correctable equipment violations was squarely in front of a California Appellate Court. Yeah!
On December 6, 2005, the Attorney General filed their Reply to our Opposition to their Petition.
|Wasting Everybody's Time|
On August 7, 2006, the Attorney General wrote a letter to the 6th Appellate Court complaining that Judge Barton has dismissed the citations pending against me and alleging that in so doing, Judge Barton had somehow violated the Stay Order issued by the court on October 10, 2005 which, of course, he didn't.
On August 11, 2006, Wendy Lasher sent a response to the AG's August 7th letter in which she points out the defects in the AG's reasoning. (In situations like this, there's no substitute for a GREAT lawyer!)
|Wasting Everybody's Time II|
On August 18, 2006, the Attorney General wrote yet another letter to the 6th Appellate Court, this time complaining about Judge Barton's written Order after Hearing and asking the court to overturn his decision to dismiss all the charges against me on the grounds that the helmet law is unconstitutional as applied. Apparently the AG doesn't understand that appeals from decisions are a bit more complicated than that. Incidentally, the AG's media relations people used the fact of this letter to explain to the media that they had actually appealed Barton's decision (an outright lie) and otherwise did NOTHING by way of filing a proper appeal.
Once again, on August 18, 2006, Wendy Lascher sent another letter to the 6th Appellate Court again explaining that Judge Barton had done nothing wrong. Apparently the court agreed because they took no action on the AG's letters either one of them.
We can only speculate as to their timing, but suddenly, on January 11, 2007, after 15 months of dead air since they put a stop to Judge Barton's contempt action against the California Highway Patrol, the 6th Appellate court moved issuing an Order to Show Cause why they should not issue a Writ permanently stopping Judge Barton from holding the CHP in contempt for refusing to sign off my helmet tickets as he had ordered them to. The court also offered both sides the file additional briefs and request oral arguments. We can't help but wonder if perhaps, after all this time doing nothing, the fact that a lawsuit (to be discussed shortly) was filed against the CHP in the civil department of the Santa Cruz County Superior Court might have motivated them to move.
The civil suit sure got the Attorney General to move.
|Wasting Everybody's Time III|
Nobody I know has ever seen anything like this before, but on February 2, 2007, the Attorney General's office filed what they called a Notice of Impending Writ Petition and Request for Consolidation and Request for Deferral of Ruling, saying essentially that had lost their first attempt at having the civil action against the CHP thrown out in the Superior Court and that they wanted the Appellate Court to do what the Superior Court would not, or join that civil action with the criminal action currently before the appellate court (which cannot be done, incidentally), and otherwise prevent us from dealing with the helmet law enforcement problems created by the CHP.
The very same day, Wendy filed a Response to the AG's Notice of a Pending Writ etc. explaining to the court how ridiculous the request was on it's face.
On February 20, 2007, the Appellate Court issued an Order denying basically everything the AG has requested in this one-of-a-kind Notice of Pending Writ. We're fairly sure they're not going to appeal that decision to the Supreme Court (toungue sqarely in cheek).
While that crap was being dealt with, on February 13, 2007, Wendy filed her official Opposition to the Petition for Writ of Mandate, line by line pointing out the defects in the AG's Petition for Writ that brought about all this activity.
On April 16, 2007, notice was sent out by the Appellate Court that Oral Arguments would take place on May 8, 2007.
|Wasting Everybody's Time IV|
Then started the AG's most obnoxious rendition of the Last Desperate Act of a Primate to shit and start throwing it at the enemy. If you thought that "Notice of Impending Writ" thing was ridiculous, wait 'til you see this.
On April 26, 2007, the AG submitted a "Notice of Recent Helmet Law Ruling Involving the Plaintiff," clearly designed to deamonize me but absolutely irrelevant to the issue of their Petition whether or not a helmet law violation is a correctable equipment violation. (Just in case you're interested, here's the opinion to which they refer. It's typical of what we usually get from the state courts. Judge Whyte, the guy who wrote it, is an unmitigated idiot, an anti-biker bigot. You'd a thought the Federal Court could find better.) Then on May 7, 2007, (the day before oral arguments) they filed a "Notice of Related Matter" another Petition for Writ, this time challenging the ruling of Judge Atack relative to the Quigley v. CHP case, in which the Atack overruled their demur to that action. (On May 9th, the day after oral arguments, both these notices were thrown out by the court (as irrelevant).)
Finally, on May 8th, at 9:30 a.m., Wendy Lascher had the opportunity to argue our position (relative to correctability of helmet law violations) in front of a three judge panel at the 6th Appellate Court, and she kicked ass! (An audio recording of that hearing is available by clicking here.)
On June 17, 2007, the 6th Appellate Court made its decision, finding that helmet tickets are in fact correctable violations. However, following 10 pages of well reasoned findings explaining why Judge Barton was correct in finding helmet tickets correctable, they took off an a strange page-and-a-half of opinion explaining why, at least in the cases involving me, they are not.
The Attorney General claimed a complete victory, even in the face of the fact that their clients, the CHP, had, for over 15 years, steadfastly insisted that helmet citations are NOT correctable, and the court had now found that they are.
We, on the other hand, realized that we won the major issue of correctability, although the court made some strange findings toward the end that we decided to challenge.
On June 1, 2007, our attorney, Wendy Lascher filed a Petition for Rehearing, addressing what the 6th Appellate court had to say.
While this petition was being considered, Ray Henke sent an amicus ("friend of the court") letter to the 6th Appellate Court pointing out what he perceived as several errors in their rulings.
The court's initial reaction to Lascher's Petition was to request help from the Attorney General in the form of an Opposition to our Petitionon on June 7, 2007. The Attorney General, responding to the request from the court, filed their opposition on June 14, 2007, which did nothing to help bolster the opinion of the court. In fact, if you read it real close, it doesn't take long to see that the Attorney General found more wrong with the appellate court's opinion than we did.
So, on June 15, 2007, the 6th appellate court granted our Petition for Rehearing (reconsideration), vacated its previous decision and opinion and took the case back under consideration. We expect they will reach a final conclusion somewhere around the first week in July 2007.
Ultimately victory in this case will result in helmet tickets being treated as correctable equipment violations, thereby creating MAJOR problems for the CHP in figuring out how to decide what a person must present to an officer to get them signed off. It is a major, major hit on the ability of the CHP to keep enforcing the helmet law as they have been (if at all). With the plain language of the statutes totally supporting our position, and in spite of the 6th Appellate court's very creative opinion, we've got every reason to be optimistic about the final outcome.
Now let's talk about the case most California bikers actually know about, and are helping support.
Richard Quigley, Steve Bianco, Don Blanscet, Steve Barron and Pat Holmes vs. California Highway Patrol, et. al.
This is the case most California motorcyclists are most interested in. The is the case we were forced to file as a device to get the CHP to stop enforcing the helmet law in a manner that violates our constitutional rights, if at all.
As you read through this and future updates, keep in mind that it is the Attorney General that is supposed to see that "justice" is served by their department, the Justice Department. So far all they have done is work against every attempt by motorcyclists to have the law applied justly to this helmet law.
This action was necessitated by the refusal of either the District Attorney or Attorney General to appeal Judge Barton's decision finding the helmet law unconstitutional as applied, which was why he followed the decision with a written order an order specifically designed to elicit an appeal so that these matters could be settled for all time in California (what judges are actually paid to do).
Because Judge Barton was acting under the limited jurisdiction given to a court when dealing with a traffic infraction, his ruling could not go beyond the cases in front of him. Otherwise, no doubt, he would have issued the injunction we were required to file a separate action to obtain.
After considerable discussion, it was decided that the plaintiffs in the case seeking Declaratory and Injunctive Relief against the CHP, forcing them to follow the law as written and interpreted by the California and Federal Courts, it was decided that five plaintiffs would be named (mostly because I am slated to die before the case will be finished, and to preserve the case after my passing). The other plaintiffs were chosen for very good reasons.
Steve Bianco, because it was his perspective of the law that I have applied to the citations that have been issued. Bianco (to my knowledge) was the guy who figured out the vagueness arguments against helmet law statutes the father of the "No List? No Law!" argument(s).
Don Blanscet, because Don has received scores of helmet tickets, beat them all, and who is still faced with further prosecutions over his choice of helmet styles by the various police agencies including the CHP.
Steve "Red" Barron for much the same reason as Blanscet. Red has been cited close to a hundred times, and has held in his hand several court decisions finding the enforcement practices applied to him to violate not only the law, but his constitutional rights, yet the threat continues.
And last, but FAR from least, Pat Holmes who had taken the fight to the streets in the Fresno area for years, with much the same results as the rest of us.
Between us, hundreds of citations, dismissed on the basis that the statute was not being correctly applied, yet the threat of future citations continues. Any one of these plaintiffs has as much standing as I to pursue the case, assuring that with my passing, the case will not die.
Michael Osborn is basically coordinating communications between the various plaintiffs and our Attorney Wendy Lascher (who he initially recruited to take these cases) and otherwise adding his perspective to our overall strategies, not to mention coordinating the fund raising to pay for all this. Although not a named plaintiff in the lawsuit, Mike is an invaluable member of the team.
Quigley, et. al. v. CHP
On November 8, 2006, the Opening Brief was filed in the Superior Court of California in Santa Cruz County. A read of the brief will show you the basis of our arguments against continued enforcement of the statute, and otherwise support my promise to Judge Barton that if he were to make the right decision on my helmet tickets, that we would defend his ruling all the way to the US Supreme Court if necessary. Wendy is an incredible attorney with a complete understanding of the issues involved. She is uniquely qualified to win this case against any and everything the Attorney General can throw at us.
In my opinion, the best evidence of the effect of having a first rate attorney on the case is evident in the response we got from the AG to the complaint. Rather than answer (because they have no adequate answer), on January 12, 2007, they filed an objection to the complaint commonly known as a Demurrer a challenge of the face of the complaint, stating that we have failed to show just cause to sue the CHP. This tactic is a very transparent attempt to drag their feet and otherwise stall this action much like they have the issue of helmet tickets being a correctable violation, which they have dragged out almost a year and a half in the 6th Appellate Court. It's a way to avoid having to take their punishment for allowing the CHP to enforce the statute in an unconstitutional manner and otherwise in complete disregard of the law.
So on January 31, 2007, Wendy filed her Opposition to the Demurrer in preparation for a court hearing scheduled for February 13, 2007. At that hearing, the court overruled the Demurrer (demurrers can only be sustained or overruled, not granted or denied). Click here to read the transcript.
On March 27, 2007, Judge Atack signed and filed an Order Overruling Demurrer, ordering the Attorney General to file their response to the complaint within 10 days.
On April 30, 2007, the AG has filed their responses to the complaint on behalf of the CHP, Commissioner Brown and Captain Manriquez. If you actually download and read these responses, you'll notice that they are still in the box. They have done nothing to show that we do not have a valid complaint about their conduct, and therefore no was to show why we should not get an injunction against continued enforcement of the helmet law.
|Wasting Everybody's Time Here As Well|
Another Deputy Attorney General, Same Act
On May 4, 2007, the AG filed a Petition for Writ of Mandate challenging the reasoning of Judge Atack in overruling their demurrer. A reading of the petition will clearly show that they are not serious, just buying time. To keep track of the activity in this second case in the 6th Appellate court, you can click on the docket here.
On May 16, 2007, Wendy Lascher filed an Informal Opposition to the AG's Petition for Writ of Mandate with the 6th Appellate court, laying out the reasons why their petition should be dismissed and otherewise disregarded so that the court trial below could continue.
On May 18, 2007, the 6th Appellate court issued an order which DENIED the Attorney General's Petition for Writ of Mandate (the stall tactic discussed above) as Lascher has requested, opening the door for the Superior Court to proceed with our case. We're now back on track, and the AG has one more loss in the win-loss column.
On Wednesday, May 9, 2007, because of my ailing health (which pretty much guarantees that I will not be around to testify at the trial), in order to obtain and preserve my personal testimony, a deposition was taken in my home in Aptos, CA. A video recording was made of that deposition. A rough draft, unofficial copy, of the 1 hour and 41 minute audio of that deposition is available by clicking here.)
While we continue to gather discovery, the next hearing on the case is a Case Management Conference scheduled to take place in Judge Atack's court on June 12, 2007.
Soon, someone other than I will be doing the next major update to this ongoing story. Until the time comes that such an update is necessary, you are welcome to visit the BOLT Forum and inquire there. The plaintiffs in this litigation will monitor the forum and provide accurate answers to your questions. Use of the forum will also provide you with a way to get to know these guys and better understand what makes us Bikers of Lesser Tolerance.