IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM,
MARY HUDDLE, et. al.,
RONALD REAGAN, et. al.,
NOV 2 7 1992
OFFICE OF THE
PETITIONERS' APPLICATION FOR
WRIT OF CERTIORARI
Petitioners hereby submit an Errata to their
Application for Writ of Certiorari, filed on November 20, 1992.
Delete pages 5-10 and substitute pages 5-10 appended
2817 11th Street N.W. Apt. B
Washington, D.C. 20001
CERTIFICATE OF SERVICE
I, William Thomas, hereby certify that, on November 27, 1992, I served copies of Errata to Petitioners' Application for Writ of Certiorari to Kenneth W. Starr, Solicitor General, U.S. Department of Justice, Washington, D.C. 20530, and Ron Garvin, United States Court of Appeals for the District of Columbia Circuit, 3rd and Constitution Avenue, NW, Washington, D.C. 20001 by first class U.S. mail, postage prepaid.
/s/ W. Thomas
William Thomas, Petitioner pro se
2817 11th Street N.W.
Washington, D.C. 20001
11/27/92 ET delivered Errata and letter
to Ms. Tekli ("Takelly") who said "we
have a skeleton crew today, leave it and
a clerk will respond."
lerk will respond."
hearing on appellants' motions for sanctions." App. ps. 1, 2.
Petitioners now apply for a Writ of Certiorari, requiring the Circuit Court for
the District of Columbia to produce a certified copy of USDC Appel. No. 91-5304
("Record") so this Court may inspect the proceedings and determine whether the irregularities set forth in the following discussion require that the instant Complaint be remanded for discover, and trial.
The Circuit Court may only grant summary affirmance when "the positions of the
parties are so clear as to justify summary action." & Taxpayers Watchdog v. Stanley,
819 F.2d 294, 297 (D.C. Cir. 1987); Walker v. Washington, 627 F.2d 541, 545 (D.C.
Cir.), cert denied, 449 U.S. 994 (1980).
The gravamen of the complaint is respondents' suppression of petitioners' free
exercise of thought and expression. Record, Supplemental Complaint, March 21, 1991
(Docket # 96 [hereinafter "S. CMPLT"]), Count Thirty.
"The right to speak freely and to promote diversity of ideas and programs is ... one of the chief distinctions that sets us apart form totalitarian regimes." Terminiello v. Chicago, 337 U.S. 4 (1945); see also, United States v. Eichman 58 LW 4745 (1990); Texas v. Johnson, 109 S. Ct. 2533 (1989) Boos v. Barry, 485 U.S. 312 (1989); Airport Commissioners v. Jews for Jesus 482 U.S. 203 (1986); Brown v. Louisiana, 383 US 131 (1961); Hague v. C.I.O., 307 U.S. 496 (1939); Spence v. Washington, 418 U.S. at 411 (1969); Tinker v. Des Moines, 393 U.S. 503; United States v. O'Brien, 391 U.S. 368 (1969); Cox v. Louisiana, 379 U.S. 536, 551 (1965); Coates v. Cincinnati, 402 U.S. 611, 615; United States v. Grace, 461 U.S. 177; Carey v. Brown, 447 U.S. 455, (1980); Gregory v. Chicago, 394 U.S. 111, (1969);. Jamison v. Texas, 318 U.S. 413 (1943); Thornbill v. Alabama, 310 U.S. 88 (1940).
This is a serious matter. "The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury." See New York Times v. United States, 427 U.S. 763; Elrod v. Burns, 427 U.S. 347, 373.
A. THE CIRCUIT COURT ERRED IN GRANTING SUMMARY AFFIRMANCE
As indicated by the discussion which follows, respondents' position is not so clear as to merit summary action.
It is clear, as the District Court noted, that "plaintiffs and law enforcement officials have engaged in an (eleven year) ongoing conflict ' arising from plaintiffs' exercise of / their First Amendment rights." Huddle Memo, pg. 3 (parentheses added).
Unfortunately, the irreparable injury alleged in this ease goes beyond loss of First Amendment freedoms. It is undisputed that, time and again over the course of the
ongoing conflict, petitioners have repeatedly suffered arrest, assault, intirnidation, imprisonment, had signs, literature, and other expressive articles seized and/or destroyed, and had their expressive activities disrupted and suppressed.
"The factual allegations of the complaint must be presumed
liberally construed in favor of plaintiff. Ramirez de Arellano v.
Weinbergher, 745 F.2d 1500, 1506 (D.C. Cir. 1984) C. Wright & A.
Miller, Federal Practice and Procedure, Section 1357, p. 304 (1990)."
Huddle Memo, pg. 7.
A primary problem with the resolution of this case is that the lower courts took
respondents' credibility uncritically and with undue prejudice. On a motion to dismiss,
respondents are not entitled to untested credibility. Infra, SANCTIONS, ps. 54-55.
First, instead of submitting the factual accuracy of petitioners' well-documented
The District Court's brief reference to the Statute of Limitations (Huddle Memo, p.22) apparently omits the fact that the alleged conspiracy is "ongoing." 6
allegations to judicial inquiry, the District Court mistakenly 1) ignored key material
circumstances surrounding petitioners' claims, and 2) awarded extremely favorable
inferences to respondents, against both the evidence and sound advice, crucial to any
"(C)ourts must be especially careful in scrutinizing (time, place, and manner) restrictions on first amendment expression that the government seeks to justify on eye-pleasing grounds.... Because of their subjective nature, aesthetic concerns are easily manipulated, and not generally susceptible of objective proof. The danger is not just ... that government might adopt an aesthetic rationale as a pretext for an impermissible motive, but rather that so many forms of robust expression are by very nature boisterous, untidy, unsightly, and downright unpleasant for unsympathetic viewers. Distaste for the vigor with which a message is asserted can too easily be cast as an aesthetic interest in compelling others to be more moderate and decorous -and, in consequence, less effective - in conveying their message." White House Vigil for the ERA v. Clark, 746 F.2d 1518, 1551; City Council v. Taxpayers for Vincent, 103 S. Ct. 2118, majority opinion, 2139, 2141, see also, Clark v C (: NV, 468 U.S. 288 ("Clark"), dissenting Opinion at 315.
Second, the District Court seems to have confused stare decisis with res judicata 2/
and, subsequently, relied on a legal theory--- posited on a interpretation of Clark; White
House Vigil; United States v. Musser, 873 F.2d 1513; Thomas I and Thomas II.
The first Thomas case (USDDC CA No. 84-3552 (identified in Huddle Memo, p. 4 as
"Thomas II," as distinguished from ['Thomas I," the later Thomas Y. News World
Communications, 681 F. Supp. 55) was filed in October, 1984. The Court's theory
2 As has been frequently pointed out, stare decisis must not be confused with res judicata, since the two concepts rest on different principles. Heisler v* Thomas, 24 ALR 1215, aff'd 260 U.S. 245. Res judicata applies to decisions of both law and fact. Stare decisis, on the other hand, is applicable only on questions of law. Neff v. George, 354 III. 306; 4 NE 195(a).
mistakenly presupposes respondents' good faith, and also erroneously requires that the
factual allegations petitioners now raise must yield to the unexamined assertions of
respondents' demonstrably inaccurate pleadings.
Petitioners documented numerous abuses involving respondents' joint
enforcement of these and other regulations.
"(C (C)onstitutional rights of free speech and the right to peaceful demonstration are involved.... (M)aterial facts are in dispute involving whether supervisory officials and officers acted in bad faith, either in a conspiracy or by combined action, to deprive plaintiff of his First Amendment rights." Memorandum, Magistrate Burnett, January 13, 1987 ("Mag. Memo,") pg. 6. Record, Plaintiffs' January 17, 1988 filings ("Docket # 45"), Appendix thereto ("Exhibit"), 3; cf. Thomas v. United States, 696 F. Supp. 702, 706 ("Thomas II"). App. p. 41.
Over the eight years of litigation the conflict continued,
consistently, but fruitlessly, sought a hearing of fact. 3 Except for the Magistrate's
inquiries, respondents' allegedly wrongful acts have completely escaped judicial review.
"There exist sufficient troublesome incidents raising genuine issues of
3 On February 5, 1987, Thomas II, consistent with the recommendations of Magistrate Burnett, that case was headed for trial. See, USDC CA. No. 84-3552, Order, February 19, 1987. App. p. 54. The status conference set for April 2, 1987 was held on April 9th. App. p. 55. The conference set for May 1, 1987 (id.) was postponed, without comment, and never happened. The decisions in Thomas I, 681 F. Supp.55, and Thomas II, 696 F. Supp. 702, represent a complete and abrupt reversal of all previous decisions in that case (e.g., App. ps. 56-60, 61-67), and the dismissal "without prejudice" left petitioners' "detailed" (id.), well-documented claims undisputed.
This unexplained reversal permits almost limitless speculation. One might reasonably speculate that the District Court was intimidated by a pro se complaint alleging that the President of the United States conspired (either, in the terms of the statute, "directly or indirectly") with a plethora of administrative agents to "place administrative policy above the law" (S. CMPLT, COUNT 33), with the intent to eliminate "one of the chief distinctions that sets us apart from totalitarian regimes." Daunting as this prospect may seem, it should not preclude judicial review.
material facts in dispute in this case, which mandate proceeding to trial on plaintiff's causes of action for both injunctive and declaratory relief." Magistrate's Memo, p. 14, App. p. 49.
"Magistrate Burnett personally presided over the depositions of ten government
officials." Huddle Memo, pg. 5. The District Court saw "no reason to reject the
findings of that Magistrate" (id. 22), yet, inexplicably, disregarded the essence of the
Magistrate's informed conclusions:
"Despite repeated attempts by plaintiffs to instigate a proper judicial hearing into the particulars of this dispute the underlying facts remain unexamined. Yet the dispute continues to be played out in an allegedly uncivilized manner, on the streets, under cover of darkness.
"(T)his one-sided contest has only been 'argued' in the press (see, , e.g., Clarification of Complaint, filed January 17, 1989, pares. 80, 100, 110), a situation which does not enhance accurate understanding.
"'Connie's rendition ... is a pack of lies at the most,' said (Park) Police Lt. Hugh Irwin. 'And it's because her world is so small sitting on the sidewalk, associating with the people she does.' See,
hibit A. hereto [App. p. 68 hereto] Associated Press wire story quoting Respondent Irwin's comments about Petitioner Picciotto].
"On the Record the only real question appears to be, who is telling the truth? For various reasons (see, e.g., Plaintiffs' Opposition to Federal Defendants' Application for Protective Order and to Renew the Motion for Sanctions, filed November 20, 1989) questions of veracity have never been reached." Plaintiff's Motion to Expedite the Hearing on Application for a Temporary Restraining Order, ps. 2, 3, filed November 21, 1989, Docket #74 [brackets added]; see also, Plaintiff's Motion to Expedite the Hearing on Application for a Temporary Restraining Order, ps. 2, 3, filed November 23, 1988, Docket #14.
Apparently relying on the "without prejudice" 4 dismissal of Thomas II (696 F.
4 "'A dismissal of a suit "without prejudice" is no decision of a controversy on its merits and leaves the whole subject of litigation as much open to another suit as if no suit had ever been brought.' This statement of the law is found in Matthews v. Glenn, 41 S.E. 735, and is sustained, if it needs any authority in support of it, in Ragsdale v. R.R. Co., 82 Miss at 847 and Mobile County v. Kimball, 102 U.S. 691." Newburry v. Ruffin, 45 S.E.2d 733, 734; see also, Seamster v. Blackstock, 2 S.E. 38, citing 7 Wall
Supp.at 712), the District Court neglected to address even one of the many factual
claims alleged between 1981 and 1988. E.g., Complaint (Docket # 1), filed October 31,
1988. E.g., Complaint (Docket # 1), filed October 31, 1988, pares. 21-69.
Similarly, allegations occurring between 1988 and 1990 (e.g.,
Temporary Restraining Orders (Docket # 58), filed September, 11, 1989, and June
1990 (Docket # 90)), after Magistrate Burnett's inquiry, were dismised without an
The District Court limited its terse comments to incedents which occurred in 1991. Those comments are discussed below.
iota of comment from the District Court.
Respondents' strongest argument, predicated on Defendant's Exhibit 4, was
prejudicial as well as factually flawed. 5/
"Plaintiff William Thomas is a perennial demonstrator in the White House/Lafayette Park area who has, since June 1981, sought to maintain a continuous vigil at those areas. Over the ensuing years Mr. Thomas has been joined in his efforts by each of the other plaintiffs; first by Concepcion Picciotto, later by Ellen Thomas, and more recently by plaintiffs Huddle, Joseph, Harmony and Galindez.... '
"The confluence of plaintiffs' continuous presence in the White Howe/Lafayette Park area with federal regulations at 36 CFR Sec. 7 has resulted in numerous arrests of the plaintiffs in the years since 1981.
107. See, , publication Words and Phrases for other constructions and definitions of
5/ Almost ironically, the District Court granted petitioners' Motion to Strike "Exhibit 4." Huddle Memo, p. 4, ftn. 4. "Exhibit 4 is dlscussed in more detail infra. ps. 38, 57.
' Plaintiffs Huddle, Joseph, Harmony, Galindez, and Love have all succumbed to the unrelenting pressure of respondents' ongoing conflict, and have abandoned both their expressive activities in the Park, and further attempts to reason with the judicial system.