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

[JGRAHAM2010]

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

I live in California, and I am suing a city government and a county government because they refuse to let me give my golf lessons to my students upon their golf courses, which are clearly "public fora" under California law, even under federal law. Moreover, I have a "fundamental right" to work in such a common occupation as a "golf instructor" in California (see Sail'er Inn v. Kirby 5 Cal. 3d 1 at 16-17 if you doubt me on that). 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. That motion for a "stay" was granted. The judge said that he granted the stay because the state law claims are essentially identical to the federal claims (which is not really true at all, even because the California constitution says that my California constitutional rights are not dependent upon my federal constitutional rights) and because there is a substantial risk of inconsistent rulings from the federal and state courts on the same operative facts.

My rights to give my students golf lessons at the city and county golf courses are as clear as can be here -- this is an extremely simple case. I have a FUNDAMENTAL right to work and a FUNDAMENTAL right to "speak" to my students about golf. And I am talking only about CALIFORNIA law, not federal law.

Clearly, this superior court judge doesn't really care about my fundamental rights under California law. I think that he has a duty to honor my rights under the California constitution, and to proceed on the litigation even if there is a federal appeal being undertaken as to the federal issues. Indeed, a favorable decision in the state court action would eliminate the need for me to proceed in the federal court -- isn't that what the "Colorado River doctrine" is all about? And there is no possibility of a conflict of decisions, because state law and federal law are not the same. And since the federal court "declined" to honor my fundamental rights under California law, isn't that proof enough that the federal forum is not a satisfactory forum for a California citizen to protect his fundamental rights under California law? Obviously yes.

Since this California superior court judge won't let me proceed on my state law claims, staying the action as he did, that stops me from working (in the "common occupation") and earning a living, and, moreover, it stops me from "speaking." Right?

I think I read that where my right of speech -- under California law -- is being interfered with by a government or private party Defendant, that I can file a petition for WRIT OF MANDATE and get a fast-track to a decision? THAT IS MY QUESTION.

I really want to vindicate my right to give my students golf lessons, and right now, because this is costing me a lot of money. My thought is that now the only way I can speed things up is to go to the appellate court with a petition for writ of mandate.

Any educated comments would be appreciated.What is the name of your state (only U.S. law)?

 

[ecmst12]

You are extremely confused about your rights. You do NOT know more about law and your rights then the judge.

 

[tranquility]

The "fundamental right" you're talking about regards a protected class and, as such, should be considered suspect when denied.

Golf instructors are not a protected class.

It's clear you're pro per. Be careful as civil rights suits can give attorney's fees to the defendant if the case is considered frivolous.

 

[racer72]

As a tax payer, I would be offended and generally pissed off if a public facility that tax payers paid for was used for private personal gain. If you wanted to give bus driving lessons, should the city let you use the city busses?

 

[JGRAHAM2010]

racer 72, ecmst12, tranquility

You are extremely confused about your rights. You do NOT know more about law and your rights then the judge.

Actually, I am not confused, let alone extremely confused, about my rights. Golf courses are "parks" by city and county ordinances, are "parks" by case decision in California (see Save Mile Square Park Comm' v. County of Orange (2001) 92 Cal.App.4th 1142, at p. 1145). "Parks," of course, are "traditional public fora," meaning a "compelling state interest" is needed to stop a "speaker" (such as a teacher) from speaking to the people that may freely "assemble and associate" speak to each other at such a gathering place. And we are talking about my California constitutional rights in the California action, which goes further than the federal constitution as to my liberty and freedom to speak at government properties.

So, you don't think a golf course is a public forum?

 

[JGRAHAM2010]

The "fundamental right" you're talking about regards a protected class and, as such, should be considered suspect when denied.

Golf instructors are not a protected class.

It's clear you're pro per. Be careful as civil rights suits can give attorney's fees to the defendant if the case is considered frivolous.

Actually, golf instructors are "teachers" and "speakers" and my students are those who, indeed, want to receive my "message." (Also, my golf students are consumers, but that is another issue.)

But maybe you are talking about my fundamental right to work in a "common occupation?" Indeed, the case of Sail'er Inn, Inc. v. Kirby (1971) 5 Cal 3d. 1, at p. 16-17 makes it quite clear that it is NOT just a fundamental right that applies to "suspect" classes, but it is a stand-alone fundamental right. (Check out the case I quoted, you will see the California Supreme Court held that it is a completely separate and actionable "fundamental right," and that a court must apply "strict scrutiny" in dealing with such a restriction on such a right.) I don't know about other states or federal law, but in this California jurisdiction the "right to work in a common occupation" is a "fundamental right" and the court dealing with the issue must apply "strict scrutiny," which means the defendants better have a compelling state interest to justify the restriction.

 

[JGRAHAM2010]

racer72

As a tax payer, I would be offended and generally pissed off if a public facility that tax payers paid for was used for private personal gain. If you wanted to give bus driving lessons, should the city let you use the city busses?

I am sorry to hear that you would be so offended to have freedom to use a "public park" (see my reply to ecmst12, above) as a meeting place to conduct the very "expressive activity" for which the park was designed -- golf (which is not allowed anywhere else in the city or county).

Your bus analogy is misplaced, I don't want to run a school of operating golf courses, and busses are not public parks (nor streets).

The golf course is there specifically so that people can gather, have a good time, TALK to each other. . .

And, actually, the taxpayers have been making a profit from the golf courses, so much so "price gouging" is actually a glaring issue. (The public golf courses in this state, the city and county courses in question, are becoming playgrounds for the rich, and are moving away from being public parks, but only privatized business enterprises.)

Do you work for G.S. or American Golf?

 

[HomeGuru]

Good responses. fore**************......

 

[JGRAHAM2010]

Just a reminder from the original poster. . .

Just as a reminder, I am asking someone about the first amendment fast track rules on petitions for writs of mandate, or if I can do that at all at this stage of the proceedings.

Again, I hate to have to surrender my California-given fundamental rights for another 6 months just to wait for federal judges to rule on my federal claims, which may be moot anyway given my rights under California law.

 

[Zigner]

Just as a reminder, I am asking someone about the first amendment fast track rules on petitions for writs of mandate, or if I can do that at all at this stage of the proceedings.

Again, I hate to have to surrender my rights for another 6 months just to wait for federal judges to rule on my California-given fundamental rights.

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

 

[tranquility]

A golf course is not a public forum in the way you mean. Commercial speech is not as protected as "talk". They don't need a compelling reason, but only a rational one. They can protect the course to be used in the manner they desire. They can prevent you from going on the course if you don't follow their rules, including the contracting with the governmental agency which oversees the location to do your business on their property. They can decide to not contract with you for any legitimate reason. They can't favor another without putting out the contract for instruction (which is why I assume they are not allowing you to instruct) per the entities rules. But, I bet you would lose in that due process as well.

I'm not going to look up the other cases you cite as the first was so laughably irrelevant to your issue(s) you lost credibility.

I say again, if the court finds your arguments frivolous, you may be ordered to pay for the defendant's attorneys.

Info edit:
See also; time, place and manner restrictions.

 

[JGRAHAM2010]

A golf course is not a public forum in the way you mean. Commercial speech is not as protected as "talk". They don't need a compelling reason, but only a rational one. They can protect the course to be used in the manner they desire. They can prevent you from going on the course if you don't follow their rules, including the contracting with the governmental agency which oversees the location to do your business on their property. They can decide to not contract with you for any legitimate reason. They can't favor another without putting out the contract for instruction (which is why I assume they are not allowing you to instruct) per the entities rules. But, I bet you would lose in that due process as well.

I'm not going to look up the other cases you cite as the first was so laughably irrelevant to your issue(s) you lost credibility.

I say again, if the court finds your arguments frivolous, you may be ordered to pay for the defendant's attorneys.

Info edit:
See also; time, place and manner restrictions.

"A golf course is not a public forum in the way you mean. Commercial speech is not protected as 'talk.'" So what if I just wanted to give a golf lesson for free? I am not allowed to do that either.

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

And as to the Sail'er Inn, Inc. case, you say that is irrelevant?

The Sail'er Inn, Inc. case seems to reflect the legislative intent behind Cal. Bus. and Prof. Code §16600, which says, as I interpret it, that any contract that causes a person to be excluded from a lawful trade is void to that extent -- and the city and county contracts are keeping me and many other golf instructors from participating in the trade of golf instruction, while creating an unlawful monopoly for just one party in the local area. And that brings up California's Unfair Practices Law Act, as at Cal. Bus. and Prof. Code §17000 et seq., which prohibits monopolies in lawful trades, and even allows one to name a local government as a defendant.

Then I might point out that this restriction on my "speech" is not written into the so called "contracts" between the defendants, and it is a long term contract involving rights in real estate. . . statutes of frauds in California says that that should be in writing. (Yes?) So I am being excluded from the facilities on a wink and a nod between the government and their private partner.

. . . and "laughably irrelevant"? How so?

But what about the fast track on a petition for writ of mandate. . . any ideas there?

 

[Zigner]

"A golf course is not a public forum in the way you mean. Commercial speech is not protected as 'talk.'" So what if I just wanted to give a golf lesson for free? I am not allowed to do that either.

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

And as to the Sail'er Inn, Inc. case, you say that is irrelevant?

The Sail'er Inn, Inc. case seems to reflect the legislative intent behind Cal. Bus. and Prof. Code §16600, which says, as I interpret it, that any contract that causes a person to be excluded from a lawful trade is void to that extent -- and the city and county contracts are keeping me and many other golf instructors from participating in the trade of golf instruction, while creating an unlawful monopoly for just one party in the local area. And that brings up California's Unfair Practices Law Act, as at Cal. Bus. and Prof. Code §17000 et seq., which prohibits monopolies in lawful trades, and even allows one to name a local government as a defendant.

Then I might point out that this restriction on my "speech" is not written into the so called "contracts" between the defendants, and it is a long term contract involving rights in real estate. . . statutes of frauds in California says that that should be in writing. (Yes?) So I am being excluded from the facilities on a wink and a nod between the government and their private partner.

. . . and "laughably irrelevant"? How so?

But what about the fast track on a petition for writ of mandate. . . any ideas there?

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.

 

[JGRAHAM2010]

Are there any "pro" civil rights people out there?

I can't help but notice that I am getting a lot of "anti" civil rights comments. This is, after all, a "civil rights" forum or string -- yes?

Let's have some "pro" civil-rights comments!

 

[Zigner]

I can't help but notice that I am getting a lot of "anti" civil rights comments. This is, after all, a "civil rights" forum or string -- yes?

Let's have some "pro" civil-rights comments!

Oh, I gotcha - you only want information that SUPPORTS your (nonsensical) position...