No. _________
In The Supreme Court Of The United States
Carl Russell Howard and Steven J. Cicero,
v.
California Fair Political Practices Committee
APPLICATION FOR EXTENSION OF TIME
TO FILE PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
To the Honorable Supreme Court Justice Sandra Day O’Connor of the
United States Court of Appeals for the Ninth Circuit,
Under Supreme Court Rule 30, Petitioners Carl Russell Howard and
Stephen J. Cicero request a 60-day extension to file our Petition for Writ of
Certiorari. Denial of petition for
California Supreme Court review was entered September 10, 2003. This application is filed 10 days prior to
December 9, 2003, the due date on which the Petition for Writ of Certiorari
expires.
Attached are copies of the unanimous opinion of the California Court of
Appeal, Third District. This
jurisdiction of this Court is invoked under the statute 28 USC Section
1257. There are important questions
that were determined adversely by the court below.
In 1995, California’s Fair Political
Practices Commission imposed an $808,000 fine on our defunct grassroots group and us for
minor reporting violations, the largest such fine ever imposed by a state. Nearly the entire fine was imposed for
reluctantly, temporarily and partially withholding donor identities to shield
them from harassment in the exercise of their First Amendment rights, while
continuing to disclose campaign finance figures in good faith compliance,
followed later by full cooperation and disclosure. We did not participate in the proceedings because we could not
afford an attorney and were not properly served. We were unaware of various Court decisions that sanction such
non-disclosure. Vindictive over our
non-participation, over newspaper reports of Petitioner Howard’s opinion that
mandatory donor disclosure can infringe 1st Amendment rights, and over a
misquote that sounded contemptuous of FPPC rules, the FPPC ignored all
mitigating evidence and imposed the fine without considering our inability to
pay.
The act was void because FPPC officers used
improperly delegated authority and the Commission was improperly constituted.
The fine is punitive, not compensatory, is
disproportionate to other FPPC fines for far more egregious violations, and
contorts what was effectively a single late filing into hundreds of redundant
individual violations. Because we
cannot pay a significant fraction of even the interest on this judgment,
which is renewable and not dischargeable in bankruptcy, it is a sentence of
lifetime impoverishment. As such, it is
excessive and unreasonable and violates the Due Process, Excessive Fine, and
Cruel and Unusual Punishment Clauses of the federal and state constitutions,
and the Judicial Powers Clause of the California constitution.
Before we could obtain legal representation,
the FPPC sued under Government Code Section 91013.5 to convert the fine to
civil judgment. That code required the
FPPC to show that the fine was “imposed following the procedures set forth in
this title and implementing regulations”; it also requires the courts to
exercise oversight and determine proper imposition. Shortly thereafter, an attorney filed a Petition for Writ of Mandamus
for us. Later, a succeeding attorney
informed us that the FPPC had missed several hearings and that the court and
the FPPC had forgotten about the case, which languished for several years on
his assurance that it was incumbent on the FPPC to move. Then the Superior court exercised improper
discretion to dismiss our Petition for Writ of Mandamus for lack of
prosecution, even though we were still within the automatic dismissal statute. Later, the Superior Court granted Summary
Judgment, again exercising improper discretion, and holding that we had waived
and lost our right to assert our defenses on the merits, including our 8th
Amendment rights. The Court of Appeals
agreed, also exercising discretion. The
California Supreme Court refused to review, again exercising discretion. We never had a trial of any kind.
We did not waive our 8th Amendment
rights or any other rights. They
were waived for us by the Courts in error and with improper use of
discretion. Is it due process when a
massive prima facie excessive fine, constituting cruel and unusual punishment
for political activity, is upheld without trial, with massive errors, on a
discretionary basis, on questionable state law procedural grounds, and in clear
violation of the state code requiring the courts to exercise oversight? This is not some infraction for which we
faced a $1,000 fine. We face nothing
less than a sentence of lifetime impoverishment. Should there not be a higher standard of due process when the
result of “waiving our rights” is so extreme?
And even if we had affirmatively
waived our rights, would that waive FPPC officers, and judges of the Superior
Court, Appeals Court and California Supreme Court from their duty to
honor their sworn oath not to violate our 8th Amendment rights? If we could be barred from asserting our
right not to be tortured, does that give FPPC officers and judges the right to
torture us? Are they not still bound by
their own affirmative oaths to obey and defend the 8th
Amendment?
Ours is a penalty fit for a true crime; its
severity far exceeds punishments imposed for most criminal acts, even many
crimes that involve victims. Describing
it as a non-criminal penalty and giving it a name that hides its true essence
enabled this atrocity to be imposed in circumvention of such safeguards and rights
that are honored in even the most minor of criminal proceedings that result in
relatively tiny penalties.
Should the FPPC be able to circumvent the
rights of those facing a severe, crime-sized penalty, simply by calling it
something else? Should an “independent
commission” that serves as law enforcement officer, prosecutor, judge, jury and
executioner be able to unleash unlimited financial ruin without granting the
safeguards intended to ensure such ruin was properly visited? With defendants facing such powers under one
roof, should not the courts take extra care and oversight to ensure due
process? Should not the courts employ a
significantly more generous standard of due process for a government
commission’s defendants than for defendants in private suits, in order to make
up for the increased danger of abuse and error? Should not defendants facing crime-sized penalties issued by
commissions with relatively unlimited resources be afforded the rights that were
intended to be commensurate with such severe penalties and extensive
resources? Should such defendants not
have the right to a jury trial under the 6th (or at least the 7th)
Amendment, the right to an attorney if you cannot afford one (or at least the right
to a competent and ethical attorney if you do have to pay for one), and the
right to a presumption of innocence?
And if such rights are not afforded,
then how can such a dangerously low standard of due process also be
tolerated, a standard that turns rights into privileges, an unreasonable
standard that two grassroots political activists facing a vindictive sentence
of lifetime impoverishment are deemed equal in resources to multimillionaire
politicians, corporations and political parties, and the same level of legal
diligence should be mercilessly demanded?
The California courts violated our First, Eighth and Fourteenth
Amendment rights and denied due process of law by: A) applying a novel version
of the de facto officer doctrine to preclude us from arguing that our fine,
then over $1.2 million with interest, violated our right to be free from
excessive fines, and B) improperly applying the exhaustion of judicial remedies
doctrine to preclude us from arguing that the fine violated our right to be free
from excessive fines.
Our trial court attorneys misplaced some records we will need. Also, based on prior conversations, we
thought our appellate attorney would, if necessary, Petition this Court, but
were surprised to find he is no longer willing or able to, citing other
commitments. We are seeking
representation and funding, but almost certainly will not have it by the
deadline, so we must act on the assumption that we must represent ourselves. Finally, while we must continue to try to
make a living, neither of us have any legal training or resources, so it will
take us longer to prepare a worthwhile Petition than if we had an attorney
representing us. Meanwhile, the extra
time may enable us to retain an attorney.
For these reasons we need and respectfully request an extension until
February 7, 2004.
Respectfully
submitted,
Carl Russell
Howard Stephen
J. Cicero
1500
Voorhees Ave 2530
Vista Way #F188
Manhattan
Beach, CA 90266 Oceanside,
CA 92054
310-372-0296 760-583-2809
November 27,
2003
Attached: Certificate of Service, copies of California
Appellate Court opinions, copy of California Supreme Court order denying
rehearing.