United States v. Rainbow

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
Jacksonville Division
UNITED STATES OF AMERICA            

           v.              CIVIL ACTION    Case Number 96- 183

THE RAINBOW FAMILY, et al.

MEMORANDUM IN SUPPORT OF
OPPOSITION OF DEFENDANT INTERVENOR WILLIAM THOMAS'
TO PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

INTRODUCTION

On or about February 15, 1996 plaintiff filed suit, styled as a "class action," seeking "a declaratory judgment that ... regulations concerning noncommercial group uses of the national forests, are valid under the United States constitution." Complaint, pg. 8.

Having failed utterly to satisfy class action requirements, on May 14, 1996 plaintiff moved this Court to allow a two month (sixty day) extension of time, until July 16, 1996, "to move for a determination under Rule 23(c)(1) of the Federal Rules of Civil Procedure as to whether the case will be maintained as a class action." Plaintiff's Motion for Extension of Time [81], page 1. [1]

[1 Although "Plaintiff brings this suit against the Rainbow Family as a defendant class" (Complaint ¶ 6), the regulations (36 CFR 251 & 261, et. seq.) for which plaintiff seeks constitutional blessing would affect Defendant Intervenor who, "In pursuit of his religious beliefs ... has in the past, and intends in the future, to participate in gatherings of over 75 persons in National Forests." Motion to Intervene [89-1], pg. 1. In the event this honorable Court grants the default judgment sought by plaintiff, while denying Proposed Intervenor access to the judicial process which would grant plaintiff's relief -- purely as a direct and proximate result of such a ruling -- Proposed Intervenor's materially harmless, heretofore constitutionally protected, participation in such gatherings would become a criminal violation of federal regulations.]

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Factually the Complaint bemoans nothing more than that (1) between approximately February 2 - 6, 1996, U.S. Forest Ranger Keith Lawrence "met with" various individuals, "including one named Jose," (2) "provided (an unspecified number of) individual(s) with a printed notice, stating that non commercial activities involving more than 75 people require a permit, (3) a few additional notices were posted at various bathroom facilities, (4) there were more than 75 people in Osceola National Forest, "on or around February 5 to February 6, 1996," (5) "the Rainbow Family (had not) given any indication that (a permit) application w(ould) be filed, (6) "(t)he 'Rainbow Guide for 1995, summer Edition' indicates that the Forest Service group use regulations are unconstitutional under the First Amendment to the U.S. Constitution." See, generally, Complaint, ¶¶ 16 -23.

DISCUSSION

The complaint sought relief from a gathering which was purported "to (have) run through the week of February 26. 1996. Complaint, ¶ 16. [2]

Although, "(p)laintiff brings this suit against the Rainbow Family as a defendant class" (Complaint, ¶ 6), plaintiff merely hypothecates,

"On information and belief, the individual defendants are members of the Rainbow Family ... a loosely-knit organization of persons who gather together in the national forests to celebrate peace and harmony with nature and with one another." Complaint, ¶ 4.

[2 From all appearances whatever plaintiff seeks relief from ended over three months ago, and there is no indication that anything similar is likely ever to happen in Osceola again. A claim is moot when the controversy no longer touches "the legal relations of parties having adverse legal interests' in the outcome of the case. DeFunis v. Odegaard, 416 U.S. 312, 317, 94 S.Ct. 1704, 1706, 40 L.Ed.2d 164 (1974) (per curiam)." Lankford; et al. v. City of Hobart; et. al, 73 F.3D 283, 288. Therefore, this Court should not even begin to take plaintiff's claim seriously.]

2

Plaintiff's only clearly articulated grievance is that somebody didn't feel the regulations were constitutionally valid. Complaint ¶ 22. [3]

To redress this "grievance," plaintiff sought an order to enjoin the "Rainbow Family" from "intentionally and knowingly failing to apply for a special use authorization under 36 C.F.R. § 251" Complaint, ¶ 25, COUNT I, the only Count.

Apparently based on little more than a theory that, given the quantity and/or quality of available defendants, "it is doubtful that these parties would fairly and adequately protect the interests of the class as required under Fed. R. Civ. P. 23(a)(4)" (Pl's Memo, page 3), plaintiff now boldly moves for a judicial declaration that some recently promulgated Forest Service regulations are constitutionally valid. [4]

With all due respect, given the Complaint's single solitary Count ( 25), and plaintiff's patent failure to establish class action requirements [81}, it can only be preposterous for plaintiff to now seek dismissal "with respect to those defendants who have submitted answers to the complaint," while seeking to extract judicial remedy from "each defendant who has been served and has failed to file a responsive

[3 A justiciable injury must be concrete and particularized, "In this case, because no legal remedies are available to plaintiffs a verdict in their favor would do little more than provide them with emotional satisfaction. Such satisfaction is not an appropriate remedy under these circumstances. See also Ashcroft v. Mattis, 431 U.S. 171, 172-73, 97 S.Ct. 1739, 1740, 52 L.Ed.2d 219 (1977) (per curiam) (holding that a claim is moot when the primary interest is the emotional satisfaction from a favorable ruling)." Lankford; et al. v. City of Hobart; et. al, 73 F.3d 283, 288 (1996).]

[4 Plaintiff's Memorandum in Support of Plaintiff's Motion to Dismiss and For Default Judgment ("Pl's Memo") contains nary a single cite to any legal authority.]

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pleading to the complaint within the prescribed time period." Pl's Memo, pg. 1. [5]

BAD ARITHMETIC

The absurdity of plaintiff's proposition is indicated by the fact that the two digit figures upon which plaintiff's motion is founded simply don't add up. Purportedly, "Plaintiff succeeded in serving only eighteen of the thirty-three named defendants ... Fifteen of the defendants who were served chose to disregard the complaint and did not submit a response within the prescribed time period." Pl's Memo, pgs 2 & 3 .[6]

"Specifically, plaintiff seeks a default judgement ... with respect to (twelve) named defendants" Pl's Memo, footnote. 2. [7]

Also, "(s)pecifically, plaintiff moves to dismiss this action ... with respect to ... 'Wakeem' ... and 'Bullwinkle'..." Id., footnote. 3.

If twelve plus two equals fourteen, and eighteen minus fifteen leaves three, assuming plaintiff's pleading is accurate, at least one served defendant seems to have vanished. More to the point, perhaps, assuming that the Docket Sheet of this case is correct, plaintiff is at least a little more than slightly incorrect. In addition to Wakeem and Bullwinkle, it appears that plaintiff has already moved -- if not summarily, at least

[5 The only indication that a "Rainbow Family" may actually exist is Plaintiff's Exhibit 1, "The 'Rainbow Guide for 1995, Summer Edition." However, there is no indication that even one named defendant has any connection to the Rainbow Guide.]

[6 For some unexplained reason plaintiff omits thirty-fourth "class action" defendant, "Rainbow Family." ]

[7 I.e., James Pirtle, William D. Adams, Eric Eastridge, James Cappiello, Cari D. James, Robert J. Fuller, Rachel L. Vaughn, Sheila L. Gilmer, David Bessel, "Jose," "8ob Jones," and "Two Bears."]

4

without explanation -- to dismiss the complaint as to three additional named defendants. [8] (12 + 2 + 3 = 17)

COMMON SENSE

Plaintiff claims this action was lodged, "in order to enforce, in the least confrontational manner possible, the recently enacted United States Department of Agriculture ("USDA") regulations concerning noncommercial group uses of the national forests ... and to obtain a nation-wide injunction against violation of the group use regulations by the defendants, the Rainbow Family of Living Light, et al... Plaintiff specifically chose to seek a civil injunction in lieu of other, more intrusive sanctions, such as criminal charges or preliminary civil relief, to avoid unnecessary confrontation or a multiplicity of cases." Cf., footnote 5, supra. [9]

Notwithstanding plaintiff's laudable intentions, if there were no question as to the constitutionality of this recently enacted regulation there would be absolutely no need for this Court to declare, as plaintiff now requests, that the "regulations concerning noncommercial group uses of the national forests, are valid under the United States constitution." Complaint, pg. 8.

DUE PROCESS?

Particularly where, as here, there is no live controversy (footnote 2, supra), either the injunctive or the declaratory relief sought, would amount to nothing more than an "advisory opinion." See, Los Angeles v. Davis, 440 U.S. 625, 59 L. Ed. 2d 642, 99 S. Ct. 1379 (1979); Reeve Aleutian Airways, Inc. v. United States, 889 F.2d 1139,1142-43 (D.C. Cir. 1989).

[8 I.e., John Koessler [53], Jennifer M. Frydrychowski [54], and Laura Mae Evans [74].]

[9 To continue taking plaintiff seriously the Court must accept that the "(t)he Rainbow Family has a long history of challenging the validity of (these RECENTLY ENACTED) group use regulations under the First Amendment to the United States Constitution." Pl's Memo, ¶ 2, (parenthesis added).]

5

Given the lack of merit in this case, it might well seem (1) plaintiff initiated a "class action," against the "Rainbow Family" -- an alleged entity which plaintiff has implored the Court to forget about until after July 16th (2) also named thirty-three individual defendants -- who, plaintiff would have the Court assume, are somehow associated with the Rainbow Family "class," (3) moved for dismissal as to every individual who responded to the complaint, and, consequently (4) with no "basis to pursue the goals of this litigation" (Pl's Memo, pg. 3), and finally (5) seek relief against certain defendants because, plaintiff only seems to argue, other defendants presented "practical difficulties associated with identifying and serving" them." Id., footnote 1.

In essence, plaintiff collected the names of various individuals in Osceola National Forest, incorporated those names in the caption of a complaint against some ill-defined "Rainbow Family," and tacked on a lament that some people felt certain recently promulgated Forest Service regulations were inconsistent with the provisions of the First Amendment. Then, for some not clearly specified reasons, plaintiff decides that anyone who replied to the complaint either should not have been named as a defendant in the first place (Docket [53], [54], and [74]), and/or was not competent to be a defendant after all. I.e., "Wakeem," and "Bullwinkle."

Finally, plaintiff insists, this Court should not trouble itself with pesky procedural issues such as whether this class action lacks a class, or whether the regulations which plaintiff wants the Court to declare "constitutionally valid," are actually constitutionally

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valid. [10] Instead, plaintiff asks the Court to pretend "due process" can permit plaintiff's wish for a declaration of constitutional validity, without bothering to go through the process of determining whether or not there is a class, or whether the regulations are constitutional, just because "(t)he refusal of those defendants who have been served to obey this Court's summons should not be tolerated under any circumstances." Pl's Memo, pg. 3. [11]

To maintain some pretense of "due process," plaintiff must explain the process whereby it brings a "class action" complaint, pleads for an extraordinary extension of time to perfect its "class action," dismisses the complaint against at least three of the named defendants, declares, "it is doubtful that (other defendants) would fairly and adequately protect the interests of the class," and, having thus avoided any judicia "process," claim entitlement to a default judgement. Cf., footnote 4, supra.

[10 These distinctions are particularly significant in a case like this, where plaintiff is seeking a declaration that "regulations concerning noncommercial group uses of the national forests, are valid under the United States Constitution." Complaint, ¶ 1.

Consistently over the years, the Supreme Court has adhered to a strict rule regarding decisions on constitutional issues. "(C)onstitutional issues affecting legislation will not be determined ... in broader terms than are required by the precise facts to which the ruling is to be applied. Rescue Army v. Municipal Court, 331 U.S. 549, 569 (1947). the Court will not pass upon the constitutionality of legislation ... it is necessary to do so to preserve the rights of the parties" Coffman v. Breeze, 323 U.S. 316, 324-25 (1945). Courts are "bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is applied." New York and Philadelphis S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885).]

[11 In sum, plaintiff relies on the idea that those who responded to the complaint are to be rewarded, and those who failed to respond should be punished. Under this tortious logic we could also take a $1,000,000 check to our local bank, discover we are already overdrawn, yet insist the check be cashed because armed robbery should not be tolerated under any circumstances. ]

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CONCLUSION

To the extent plaintiff moves for dismissal of this action, Proposed Intervenor agrees that this Court should grant that motion. However, because plaintiff's representations just don't add up, and/or are clearly inconsistent with established legal precedent, dismissal should be to the Complaint in its entirety, and with prejudice.

Respectfully submitted this 6th day of June, 1996,

_____________________________
William Thomas, pro se
P.O. Box 27217
Washington, D.C. 20038
202-462-0757

CERTIFICATE OF SERVICE

I hereby state that, on June 6, 1996, I served copies of the foregoing Memorandum of Points and Authorities in Support of Intervenor William Thomas' Opposition to Plaintiff's Motion for Default Judgment, by first class U.S. mail, postage prepaid, upon:

Reginald Luster
Assistant United States Attorney
200 West Forsyth Street, Suite 700
Jacksonville, Florida 32201

Glen Baxter
9938 Keswick St.
Burbank, CA 91504

THOMAS W. MILLET
ANJALI A. ASHLEY
U.S. Department of Agriculture
14th & Independence Ave., S.W
Washington, D.C.

Leslie Lagomarcino
U.S. Department of Justice Civil Division
901 E Street, N.W., Room 101
Washington, D.C. 20250-1400

_____________________________
William Thomas, pro se
P.O. Box 27217
Washington, D.C. 20038
202-462-0757

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