California civil rights issue put on "stay" but can I do something in the meantime?

[tranquility]

So what if I just wanted to give a golf lesson for free? I am not allowed to do that either.

Of course not. It would still be commercial speech. Go to Social Science Research Network (SSRN) Home Page and look up commercial speech and educate yourself.

Again, a golf course is a "park," period. "Parks" are "traditional public fora," period. (Why are you so resistant to that simple fact?)

Dicta is not holding and snippets is not the law. Please post the holding from the case you cited stating a golf course IS a park. You are wrong again. The golf course can limit people from being on it without paying. Can a park in the way you mean? By-the-by, have you looked up the issue of time, place and manner restrictions on even protected speech yet?

Please provide the holding of the case where the court stated that no contract can prevent another from a lawful trade on their property. Heck we don't even need a contract. You can't teach golf in the court house, on school grounds or in my front yard either.

The statue of frauds is not relevant--at least to you. You would have no standing to argue anything regarding it. In any event, this would not be one which of and concerns the land, but might apply if the contract *could not* be completed in a year. But, again, the statute of frauds would be irrelevant to you.

I'm done with you here. You choose your strategy, now you have to live with the civil procedure ramifications of it.

You have not made a cognizable case here. (Although I suspect when the full brief is read there may be one.) Each posting becomes worse as you make claims which clearly are not the law. The golf course is not preventing you from making a living, they are preventing you from your particular business plan. Entirely different things. (Arguendo, even if all your other claims were true.)

You are not going to win with your arguments. I once again suggest you remember you may be ordered to pay for the defense of this lawsuit. I also suggest you get an attorney to review your briefs at the bare minimum.

 

[JGRAHAM2010]

Reply to Zigner

I got ideas about it...but they all have to do with you losing and paying out large sums of money...so I'm SURE you don't want to hear them.

I take it you are an attorney, hundreds of whom I have contacted, and all of which refuse to take my case on a contingency basis, even though if I only achieved an injunction the attorney fees would be guaranteed.

But I was told by some more straightforward attorneys that sure, my civil rights are being violated, but they don't specialize in this area, and they would have to work pretty hard on the case, and they have lots of other cases where they can win big monetary damages for sure, and so why should they waste their time with this case where all they may come away with is their attorney fees.

So I am on this forum to get an answer to the question as to whether or not the fast track rules on petitions for writs of mandate can be invoked at this point in time -- where if someone knew that would save me some research in the law library. Instead of getting a straightforward answer to that question I am getting comments about how deluded the posters think I am. The posters don't even want to read the law I have quoted to them, only telling me they don't have to read the law because what I quote is "irrelevant." Then I ask how it is "irrelevant" and I don't get an answer.

If an attorney wants to take this case, and it seems to be moving along well, just too darn slow, then here it is. Otherwise, just answer my questions on the fast track rules -- and please don't guess at things. (All I am seeing here are guesses from people who are clearly anti-civil rights.)

And like I say, if an attorney wants to take this case, your attorney fees are provided in the statutes. (Plus, and I just want to offer this as a suggestion, there might be a rather large class action issue here that would "reward" you with monetary damages as well.)

But I am not in any kind of financial position to pay any attorney any legal fees and so I am on this forum looking for some free help, not unfounded negativity.

 

[BOR]

I filed an action in the federal court, seeking an injunction and monetary damages under 42 USC §1983, and under California law, but that action was dismissed with prejudice as to the federal claims and the court declined to exercise supplemental jurisdiction over the state law claims. Thus, I appealed the federal decision as to the federal law claims, and I immediately filed my state law claims in the superior court, where the Defendant parties moved for a "stay" until my appeal of the federal action is concluded.

I am not an attorney, but the public forum/fora you speak of is not proper in it's context.

Simply because a land is public property does not make it a 1st AM stomping ground. I assume the 1st was a federal COA.

Who did you appeal the federal ruling too, the 9th Circuit?

 

[Zigner]

I take it you are an attorney, hundreds of whom I have contacted, and all of which refuse to take my case on a contingency basis, even though if I only achieved an injunction the attorney fees would be guaranteed.

But I was told by some more straightforward attorneys that sure, my civil rights are being violated, but they don't specialize in this area, and they would have to work pretty hard on the case, and they have lots of other cases where they can win big monetary damages for sure, and so why should they waste their time with this case where all they may come away with is their attorney fees.

So I am on this forum to get an answer to the question as to whether or not the fast track rules on petitions for writs of mandate can be invoked at this point in time -- where if someone knew that would save me some research in the law library. Instead of getting a straightforward answer to that question I am getting comments about how deluded the posters think I am. The posters don't even want to read the law I have quoted to them, only telling me they don't have to read the law because what I quote is "irrelevant." Then I ask how it is "irrelevant" and I don't get an answer.

If an attorney wants to take this case, and it seems to be moving along well, just too darn slow, then here it is. Otherwise, just answer my questions on the fast track rules -- and please don't guess at things. (All I am seeing here are guesses from people who are clearly anti-civil rights.)

And like I say, if an attorney wants to take this case, your attorney fees are provided in the statutes. (Plus, and I just want to offer this as a suggestion, there might be a rather large class action issue here that would "reward" you with monetary damages as well.)

But I am not in any kind of financial position to pay any attorney any legal fees and so I am on this forum looking for some free help, not unfounded negativity.

You have the wrong idea about attorney's fees - you won't be receiving them from the other side, you'll be paying them to the other side.

 

[BOR]

2010, read the case I have linked here, a Cleveland case. It describes in depth what IS a public fora/forum in your context. There is also a 10th circuit case similar in nature I used to have book marked. It concerned a park of some type that was donated to the city by a private entity or such?? The Q was, was it a public fora?? I will try to find it.


https://forum.freeadvice.com/starti...yering-malls-campuses-515629.html#post2554732

I found it, but the facts are different from what I remember. You need to find a 9th Circuit case.


http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=docket&no=014111

 

[>Charlotte<]

As a very wise person who quoted a very wise person once said, you are extremely confused about your rights.

As a very wise person once said: "You are extremely confused about your rights."

You are extremely confused about your rights.

 

[JGRAHAM2010]

Of course not. It would still be commercial speech. Go to Social Science Research Network (SSRN) Home Page and look up commercial speech and educate yourself.

Dicta is not holding and snippets is not the law. Please post the holding from the case you cited stating a golf course IS a park. You are wrong again. The golf course can limit people from being on it without paying. Can a park in the way you mean? By-the-by, have you looked up the issue of time, place and manner restrictions on even protected speech yet?

Please provide the holding of the case where the court stated that no contract can prevent another from a lawful trade on their property. Heck we don't even need a contract. You can't teach golf in the court house, on school grounds or in my front yard either.

The statue of frauds is not relevant--at least to you. You would have no standing to argue anything regarding it. In any event, this would not be one which of and concerns the land, but might apply if the contract *could not* be completed in a year. But, again, the statute of frauds would be irrelevant to you.

I'm done with you here. You choose your strategy, now you have to live with the civil procedure ramifications of it.

You have not made a cognizable case here. (Although I suspect when the full brief is read there may be one.) Each posting becomes worse as you make claims which clearly are not the law. The golf course is not preventing you from making a living, they are preventing you from your particular business plan. Entirely different things. (Arguendo, even if all your other claims were true.)

You are not going to win with your arguments. I once again suggest you remember you may be ordered to pay for the defense of this lawsuit. I also suggest you get an attorney to review your briefs at the bare minimum.

You say:
"Dicta is not holding and snippets is not the law."
Actually the entire Save Mile Square Park Comm' case was about one thing, and one thing only -- is or is not a government owned golf course a "park" in California? The California appellate court said a golf course is a "park." (That's not "dicta," that was the holding.)

You mention "time place and manner" restrictions"
This came up in a federal decision I read, a case cited by the Defendants actually, where that was the issue in the case of United States v. Kokinda 497 U.S. 720 (1990), where Justice Kennedy broke a 4-4 tie in the voting saying that "solicitation" as opposed to speech that is not involving directly asking for money, may be reasonably time place and manner restricted on a post office sidewalk -- which was by a 5-4 vote deemed to otherwise be a "traditional" public forum. But notice that the post office sidewalk was treated as a "traditional" public forum in that case. Indeed, what would be a reasonable "time place and manner" restriction as to me there? Never? Because that is the kind of a restriction I am up against now - never in the city or county. But, as you know, "time place and manner" restrictions only apply to "traditional public fora," so are you coming around to the notion that the golf courses are "parks" and so must be treated as such? If so, you are now thinking correctly.

I can tell you that I do NOT intend to solicit at all on the golf courses -- my students and I simply meet at the golf courses and go about our teacher-student business. I can tell you that even if I wanted to solicit on the properties I could do that, provided I was not "aggressive" about it -- a California Supreme Court decision (and I will cite cases later if you like, but I got to get out of here to go do some work, as a handyman, the only work I can find at the moment).

As to the semi-snide comment:
"Please provide the holding of the case where the court stated that no contract can prevent another from a lawful trade on their property. Heck we don't even need a contract. You can't teach golf in the court house, on school grounds or in my front yard either."

Of course, I don't want to teach golf in a courthouse or in your front yard, but only at the one place perfectly and expressly adapted to golf in the city and county -- a government owned golf course, which is a "park." (Note: "golf" is the very expressive activity to which the golf courses are dedicated.)

There is no case holding but clear and unambiguous statutes. You don't need a case holding to claim a statutory right.

You should also understand about the "essential facilities" doctrine of the Sherman Act, which is applicable to California's anti-trust statutes -- why don't you look that up, there are 4 elements which couldn't be more perfectly adapted to this very case (in other words I easily meet the elements of the doctrine). Thus, I do get to use the properties even if the properties are looked at as if "private" properties and not parks. But again the properties are "parks" and are not commercial operations of any kind, and, plain and simple, my students and I can gather, associate, talk about any subject, except one, of course. . .

As to the statute of frauds statement you make:
The contract between the city and county and their private partner cannot be completed in a year -- the contracts run for 5 year periods. But there is nothing in writing about giving the private partner an exclusive right to speak or teach golf on the properties (nor, lawfully, could there be). So how is the statutes of frauds "irrelevant" to me? I am the one suffering for some alleged contract restriction that affects ME, but where the restriction isn't even in writing but easily could have been put in writing.

So what about the fast track rules on petitions for writs of mandate on first amendment issues?

P.S. I looked at that website with essays on commercial speech. I am not advertising or soliciting on the properties. I am only assembling (with my students) and speaking to them about what they want to hear, and at a public park.

P.P.S. Why don't you look up the case of Wilson v. Cook (1987)197 Cal.App.3d 344, or the 9th Circuit case of Carreras v. City of Anaheim 768 F.2d 1039, 1044 (1985). You will see that solicitation might be banned, but restrictions on the mere use of a property in the intended manner by two consenting people would not be constitutional. (Indeed, I cannot even look like I am giving a lesson or I will be "removed" from the properties -- which should strike you as absurd.)

 

[Zigner]

Head, meet wall.

 

[JGRAHAM2010]

2010, read the case I have linked here, a Cleveland case. It describes in depth what IS a public fora/forum in your context. There is also a 10th circuit case similar in nature I used to have book marked. It concerned a park of some type that was donated to the city by a private entity or such?? The Q was, was it a public fora?? I will try to find it.


https://forum.freeadvice.com/starti...yering-malls-campuses-515629.html#post2554732

I found it, but the facts are different from what I remember. You need to find a 9th Circuit case.


FindLaw | Cases and Codes

Thanks BOR;
9th Circuit cases will rely on California cases and Article 1 sec 2(a) of the California constitution. The general trend today is that non-aggressive solicitation is okay, but not aggressive solicitation -- but I don't intend to solicit at all. So I don't think that there is any valid reason to restrict me from just talking about golf to my own students at the "park" that is a city or county golf course. There would not be any difference between me and my students swinging golf clubs and hitting balls and "not talking" to each other about golf technique (but only some other topic) or where we would do the same and then "talk" to each other about golf technique -- the restriction is absurd.

A California appellate court case states in dicta that it would reasonably be okay to teach sailbording lessons on a leased out park (lake) property but did not get to the merits of the constitutional rights to "speak" as did the trial court, but only addressed the fact that the state regulations did not prohibit the provision of services arranged for outside the boundaries of the park. That case is Wilson v. Cook (1987) 197 Cal.App. 3d 344. I, of course, will pre-arrange my lessons with my students.

Under federal law it is clear enough that just speaking at a "park" is a constitutionally protected activity. Indeed, it is even the "content" of my speech that is at issue here, obviously, because I can talk about any subject under the sun to my students at the golf courses, except for the topic of "golf technique." (Also, the U.S. Supreme Court has held that the rights of Assembly , Association, and Speech are "inseparable," so If I can assemble and associate, ergo, I can also "speak," I dare say.)

Anyway, nothing is directly addressing these facts in this case.

It is clear that the courts consider Article 1 sec. 2a of the California const. to go further than even the federal first amendment, as goes the protection of speech.

Again, a golf course is a park.

But, again, what about the fast track rules on petitions for writs of mandate? Or is it too late to do that now? And so must I patiently wait for the 9th Circuit to get to my case sometime in the fall? (I have already filed my "informal opening brief.)

 

[Zigner]

Which brings us back to: You are not "speaking", you are running a business. Much different. And, quite frankly, I have a feeling the fork is about to be stuck in this one.

 

[JGRAHAM2010]

Which brings us back to: You are not "speaking", you are running a business. Much different. And, quite frankly, I have a feeling the fork is about to be stuck in this one.

Ah! So if a union leader, who is paid as a union leader, gets up and speaks at a park he can be stopped from doing that?

 

[BOR]

Thanks BOR;

But, again, what about the fast track rules on petitions for writs of mandate? Or is it too late to do that now? And so must I patiently wait for the 9th Circuit to get to my case sometime in the fall? (I have already filed my "informal opening brief.)

You seem to be very sure of your case law, yet the Federal District Court dismissed you.

Your subject matter jurisdiction was not properly plead then, at least according to the Court.

 

[Zigner]

Ah! So if a union leader, who is paid as a union leader, gets up and speaks at a park he can be stopped from doing that?

Absolutely irrelevant on many levels.

 

[ecmst12]

You are not making arguments which have any kind of basis in law. You are taking the conclusion you want the court to reach and twisting the law in a desperate attempt to make it fit what you want. That is not how court works. A golf course is not a park nor a traditional public forum just because you WANT it to be. Your golf lessons are not "free speech" rather then conducting a business just because you want them to be. And the golf course, government owned or not, does not have to let you conduct your business on their property. Golf courses (and parks, for that matter) are allowed to have rules and those rules are allowed to restrict who is and is not allowed to teach classes on that property.

I repeat, you do NOT know more about the law then the judge who tossed out your case.

You should not be looking for a lawyer who will take your case on contingency since you have no hope for any sort of monetary award here. You should be looking for a lawyer that you can pay a large retainer to, and hourly fees after that is used up, to represent you in court and perhaps devise some intelligent and supportable arguments for you. You will NOT make money off of this. If you are very lucky, you MIGHT, after several years and many thousands in legal fees, be able to engage in your business at this golf course. But I expect it would take you at least 20 more years of giving lessons to make back what you pay the lawyer. And it's still a lot more likely that you'll lose even WITH professional help.

 

[JGRAHAM2010]

You seem to be very sure of your case law, yet the Federal District Court dismissed you.

Your subject matter jurisdiction was not properly plead then, at least according to the Court.

No. Actually, the federal court judge said that he needed to perform a forum analysis. He did so and decided (A) because the golf courses are not parks in his opinion, and in spite of mere ordinances and state court precedent (but then he cites to ACLU of Nevada v. City of Las Vegas which case the City of L.V. downgraded a street to a plaza after they shut it down to automobile traffic, but the 9th Circuit said in that case a city cannot reclassify a street just to stop people from "speaking" and exercising their first amendment rights), and he decided (B) that because in his opinion the golf courses are not parks that he would do a "designated forum" assessment, and decided that the golf courses are not designated as places where just anyone can speak about golf technique (so don't offer anyone any advice about their swing on a golf course, wait until you are someplace else). Then (C) he analyzed the restriction as either "viewpoint neutral" or "reasonable" and said he thought that the restriction had nothing to do with my "viewpoint" and it is reasonable that they should stop anyone other than their private contractor partner from giving golf advice at the golf courses. He also avoided the California case of "Sail'er Inn, Inc." and used the case of "Madarang v. Bermudes" (a 9th circuit court case from the Marianas Islands territorial government's jurisdiction) to tell me that the right to work in a common occupation is not a fundamental right in the context of my federal rights.

The point the judge was making is that he DECLINED to exercise jurisdiction over the state law issues. I don't think he could even do that properly. I think he let me down big-time. I think he wanted me to take the case back to the state court, drop my federal claims. . . I am not doing that.

I think it is sad the way the legal system is working presently. It seems judges just make it up as they go along, unless the press is watching and they would be held accountable for their decisions.

Anyway, is there anything I can do to get on a fast track on a petition for writ of mandate as to my right to "speak" to my students this summer about golf? This will be the third summer in a row that I will not have been able to pursue my occupation! Indeed, what good are fundamental rights if we citizens cannot exercise them for years at a time?