October 26, 2020 
 Monday 
 
 

Forum
Topic:
CDAA Conduct

       

Page 1 | Page 2 | Page 3 | Page 4 | Page 5 | Page 6 | Page 7 ]

 By SCOOP

06/16/2004  2:49PM

MR. FILTER: Okay. Well, first let me begin on behalf of Denise, Tony and myself, this has been truly a pleasure working with you. I'm glad we came in on time. These type of cases are extremely important to you. They're extremely important to you. They're tough cases. That's one of the reasons that we're here. Tony, it's always been a pleasure. Tony and I go back many years. The one thing that I did have an opportunity to do over the last day and a half is have a glimpse as to what type of lawyer Denise is going to become. There's no doubt she's going to be a real credit to our profession, which is heartwarming.

JUROR: Is she old enough though?

MR. FILTER: She will be in a couple years. First what I want to do is I want to go over a couple legal concepts with you and sort of set up what the law is and give you some insight as to what the jury instructions are. Sixteen to One, Michael Miller and Jonathan Farrell, in the indictment, have been charged with violation of Penal Code Section 192, involuntary manslaughter. And in order for us to prove this, in order that you can reach a decision to indict, you've got to find that the killing was in the commission of an unlawful act or a killing, "or", not "and", or a killing was done without due caution and circumspection. Under Labor Code Section 6425, we're obligated to prove that three things occurred. One is that Sixteen to One, Miller and Farrell, had direction, management, control or custody of the workplace. Secondly, that Sixteen to One, Miller and Farrell, willfully violated safety standard, California Code of Regulations Title 8, Section 7010(e)(9-60). What that section is is the clearance, the warnings and the markings, the conspicuous markings. This is the only thing that applies to 6425, was there a willful violation of the warnings and markings. Nothing else should be taken into consideration for that particular charge. And that that violation caused the death of Mark Fussell. Labor Code Section 6425, what is meant by a willful violation of that particular section, and what that is, is that there's got to be a restricted overhead clearance. I'm sorry, restricted overhead clearance requires that warning devices be installed, and restricted area must be conspicuously marked. Willful. Important concept. The term "willfully" does not require any intent to violate the law or to injure another. The defendant must only have, quote, "a purpose or willingness to commit the act or make the admission". Two things that are the easiest to understand, you get pulled over, you're doing 75 in a 65 mile-an-hour zone, said officer, I didn't intend to speed, I didn't even know what the speed limit was. Still a violation because it's the act, it's not what it is that you intend to do. Or that the admission would be that if the law requires you to wear a seat belt, and you don't have your seat belt on, that constitutes an admission because you are obligated to do so. About contributory negligence. The instructions that you will hear Tony read in a little bit says that if you find the conduct of the targets of this proceeding, that is Farrell and Miller, and Sixteen to One, caused the death of Mark Fussell, quote, "then it is no defense that the conduct of some other person, even the deceased, contributed to the death". So you can't consider that. If, for example, if
there was evidence heard in this case that Fussell was inattentive, looking the wrong way and started the tram, that doesn't come into play because this isn't a law that accepts or considers contributory negligence. So there is no such
thing as contributory negligence in this particular case. General intent. "General intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he or she is
acting with general criminal intent, even though he or she may not know that his or her conduct is unlawful." So what that simply says is that we go back to the concept of speeding. That is to say did you intend to commit the act. But I didn't know it was illegal. Doesn't matter, because it was the act that you did and not what is the intent that is important. Gross negligence. "Those negligent acts which are aggravated, reckless or flagrant, in which -- flagrant –
FOREPERSON: Easy for you to say.

MR. FILTER: "Aggravated, reckless or flagrant, or were such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life, or to constitute indifference to the consequences of those acts." In other words, you do the act and you don't really think about the consequences as to what might occur, and at the same time knowing, because of the position that you're in, or just through regular knowledge of what an ordinary, reasonable person would know, that these acts in themselves, or these omissions in themselves are dangerous. It's one of my favorite movies, which probably says a great deal about me, it was The Gauntlet with Clint Eastwood. For those of you who have never seen this movie, Clint is sent to pick up a witness who is going to testify against the mob, and he goes through this gauntlet. The people who are supervisors are out to get him, everybody is trying to stop Clint from delivering this witness. And the bus has got 50,000 bullet holes in it but Clint still arrives. And that movie was called The Gauntlet. Everybody was out for a piece of Clint. Mark Fussell also had a gauntlet, and the gauntlet was as follows: Mark had to get through dangerous chutes, wrong position of locomotive. Go back to what I told you about the jury instruction, what constitutes manslaughter. And it may be a lawful act that is dangerous that constitutes the grounds for finding someone liable for manslaughter. In other words, nobody said it was a violation to have the locomotive in the wrong position, nobody said it was a violation that the chutes extended over the track; the point is, those conditions give rise, when considered with other factors, of gross negligence. So those can be considered by you to be part of the package of what the gross negligence amounted to. There were no warning devices. Now that is a violation. There was no conspicuous markings. That is a violation. And there was a defective control system. That was a violation. And when you take a look at all of these, and you start beginning to look at these pictures, and you begin to think that if that little light had been blinking we probably wouldn't be here today. If that light had been blinking on November 6th in 2000, and had been located in that relative position as Mark Fussell was when he got on that tram, we would not have been here, but for a cheap device. Dangerous chute. We go back, and you recall that -- you look at this, and you look where the hair was located. You don't have to be a miner to understand that this thing was just inherently dangerous. If you put a tram
on it then it becomes even more dangerous. You look at where the seat is located, you look where the chute is located, and you look what the position was of the tram, the seat in relationship to the chute, and the fact that it was on the wrong side of the tracks, and that it would have taken 15, 20 minutes, a half hour, 40 minutes, to reposition that tram, and it leads an ordinarily reasonable person to no other conclusion that it was inexcusable. Defective control. Two-inch clearance. And as several witnesses testified, in order to clear that chute it would require the operator to bend totally over behind the every compartment of that tram. Worse, not only do you have those five conditions, or those five conditions leading to this particular situation, on November 6th, 2000, but on 8/15, Sixteen to One, Miller and Farrell, all received notice these chutes are dangerous. And indeed, two and a half months before this incident took place. They might as well have received a red flag regarding what the danger of those chutes were. And indeed, going back to August 15th, 2000, they actually did repairs, or did put warning signs up, did put streamers up, because it indicates that they knew the inherent danger of low chutes, particularly in a confined space. No warnings. No one. Not a single person said they saw any sign of a warning at the 1700 level. No one said that they saw any kind of conspicuous markings on any of the chutes at the 1700 level. And clearly, I mean there's nothing there. There is nothing that could even, by the stretch of anyone's imagination, say that constitutes a sign or a warning, or for that matter conspicuous. And when you look at the facial hair and the blood that's on the corner of that chute, it really drives home exactly how dangerous this really was. Because given the location of the person with the facial hair, and what the position of that tram was, one didn't have to be a miner to know that this was a particularly dangerous situation. Gross negligence. Mark Fussell deserves his day in court. He deserves to have a trial regarding these violations that amount to two felonies. I'll leave you with this thought: that little device up there, according to one person who testified, probably runs 8, 10, 15, 20 dollars. A sign would have cost six dollars. Streamers, they probably could have cut up bed sheets, stuck them on with tape, white. Probably would have served as some kind of alert. Vincent Kautz said that he was being paid approximately $14 an hour. And although I'm not good at math, I'll give them the benefit of the doubt, they could have taken two men a half hour to reposition that tram, and that means it would have taken them $15 dollars worth of labor to do it. That man's life is priceless. And no matter how much gold is in that damn mine, no one will ever replace that life or buy it back. And I'm asking you, if you would, to return an indictment against Sixteen to One, Michael Miller and Jonathan Farrell, for the counts that were alleged in the indictment. Thank you very much. It's been totally a pleasure working with you.

FOREPERSON: You just mentioned the two felonies, yet in Count One it says not amounting to a felony.

MR. FILTER: The act does not -- when you look at the jury instructions, the act itself does not have to be a felony. Okay? The act itself does not have to be the basis for the felony. Okay? Tony.

MR. PATCHETT: Ladies and gentlemen of the grand jury, it is my duty to instruct you on the law that applies to this case. You will have these instructions in written form in the jury room to refer to during your deliberations. You must base your decision on the facts and the law. You have two duties to perform. First, you must determine facts from the evidence received and not from any
other source. A fact is something established directly or circumstantially by the evidence. Second, you must apply the law that I state to you to the facts as you determine them and in this way arrive at your decision. You must accept and follow the law as I state it to you, whether or not you agree with the law. If anything concerning the law said by the prosecutors in their statements, or at any other time during the hearing, conflicts with these instructions on the law, you must follow the instructions. You must not be influenced by pity for the persons who are targets of this proceeding, or by prejudice against them. You must not be biased against the persons who are targets of this proceeding because they are the subject of this hearing. None of these circumstances is evidence of probable cause to indict, and you must not infer or assume from any or all of these circumstances that he or she is more likely to have committed an offense for which an indictment is sought than not. You must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the people and the persons who are the targets of this proceeding have a right to expect that you will conscientiously consider and weigh the evidence, apply the law and reach a just result regardless of the consequences. If any rule, direction or idea is repeated or stated in different ways in these instructions, no emphasis is intended and you must not draw any inference because of its repetition. Do not single out any particular sentence, or any individual point or instruction, and ignore the others. Consider the instructions as a whole and each in the light of all the others. The order in which the instructions are given has no significance as to their relative importance. Statements made or documents prepared or presented by the prosecutors during the hearing, other than those received into evidence, are not evidence. Do not assume to be true any insinuation suggested by a witness -- by a question asked a witness. A question is not evidence and may be considered only as it enables you to understand the answer. Do not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken or withdrawn. Treat it as though you had never heard of it. You must decide all questions of fact in this case from the evidence received in this proceeding and not from any other source. You must not make any independent investigation of the facts or the law, or consider or discuss facts as to which there is no evidence. This means, for example, that you must not on your own visit the scene, conduct experiments, or consult reference works or persons for additional information. You must not discuss this case with any person except a fellow juror, and then only after the case is submitted to you for your decision, and only when all jurors are present in the jury room. You have been given notebooks and pens, leave them on your seat in the jury room when you leave each day and at each recess. You will be able to take them into the jury room when you deliberate. Word of caution. You may take notes, however, you
should not permit note taking to distract you from the ongoing proceedings. Remember you are the judges of the believability of witnesses. Notes are only an aid to memory and should not take precedence over recollection. A juror who does not take notes should rely on his or her recollection of the evidence and not be influenced by the fact that other jurors do take notes. Notes are for the note-taker's own personal use in refreshing his or her recollection of the evidence. Finally, should any discrepancy exist between a juror's recollection of the evidence and a juror's notes, or between one juror's recollection and that of another, you may request that the reporter read back the relevant testimony, which must prevail. The grand jury shall receive no other evidence than such as, one, given by witnesses produced and sworn before the grand jury; two, furnished by writings, material objects, or other things presented to the senses; or three, contained in a deposition that is admissible by law. The grand jury shall not receive any evidence except that which would be admissible over the objection at the trial of a criminal action. The word "defendant" applies equally to each defendant unless you are expressly instructed otherwise. The word "willfully", when applied to the intent with which an act is done or omitted, means with the purpose or willingness to commit the act or to make the omission in question. The word "willfully" does not require any intent to violate the law or to injure another, or to acquire any advantage. The word "knowingly" means with knowledge of the existence of the facts in question. Knowledge of the untruthfulness of any act or omission is not required. A requirement of knowledge does not mean that the act must be done with any specific intent. Evidence consists of testimony of witnesses, writings, material objects, or anything presented to the senses and offered to prove the existence or nonexistence of a fact. Evidence is either direct or circumstantial. Direct evidence is evidence that directly proves a fact without the necessity of an inference. It is evidence which, by itself, if found to be true, establishes the fact. Circumstantial evidence is evidence that if found to be true proves a fact from which an inference of the existence of another fact may be drawn. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence. It is not necessary that facts be established by direct evidence, they may be proved also by circumstantial evidence, or by a combination of direct evidence and circumstantial evidence. Both direct evidence and circumstantial evidence are acceptable as a means of proof; neither is entitled to any greater weight than the other. However, you are not permitted to return an indictment based on circumstantial evidence unless the proved circumstances are not only consistent with the theory that the persons who are targets of this proceeding are responsible for the crime, but cannot be reconciled with any other rational conclusion. Further, each fact which is essential to complete a set of circumstances necessary to support an indictment of the persons who are targets of this proceeding must be established by evidence constituting reasonable or probable cause. In other words, before an inference essential to support an indictment may be found to have been established by evidence constituting reasonable or probable cause, each fact or circumstance on which the inference necessarily rests must be established by reasonable or probable cause. Also, if the circumstantial evidence as to any particular count permits two reasonable interpretations, one of which supports the indictment of the persons who are targets of this proceeding, and the other does not, you must adopt that interpretation that does not and reject that interpretation that does. If, on the other hand, one interpretation of this evidence appears to you to be reasonable, and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable. Evidence has been admitted against one or more of the targets of this proceeding, and not admitted against the other. At the time this evidence was admitted you were instructed that it could be considered by you against the other targets -- could not be considered. Do not consider this evidence against the other target. The prosecutors are not required to call as witnesses all persons would may have been present at any of the events disclosed by the evidence, or who my appear to have some knowledge of these events. The prosecutors are not required to produce all objects or documents mentioned or suggested by the evidence. Every person who testifies under oath or affirmation is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness. In determining the believability of a witness you may consider anything that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness, including, but not limited to, any of the following: The extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness has testified; the ability of the witness to remember or to communicate any matter about which the witness has testified; The character and quality of that testimony; the demeanor and manner of the witness while testifying; The existence or nonexistence of a bias, interest or other motive; evidence of the existence or nonexistence of any fact testified to by the witness; The attitude of the witness toward this action, or toward the giving of testimony; A statement previously made by the witness that is consistent or inconsistent with the testimony of the witness; An admission by the witness of untruthfulness. Discrepancies in a witness's testimony, or between his or her testimony and that of others, if there were any, do not necessarily mean that the witness should be discredited. Failure of recollection is a common experience, and innocent misrecollection is not uncommon. It is a fact also that two persons witnessing an incident or a transaction often will see or hear it differently. Whether a discrepancy pertains to a fact of importance or only to a trivial detail should be considered in weighing its significance. A witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point unless from all the evidence you believe the probability of truth favors his or her testimony in other particulars. You are not bound to decide an issue of fact in accordance with the testimony of a number of witnesses which does not convince you as against the testimony of a lesser number or other evidence which appeals to your mind with more convincing force.
You may not disregard the testimony of the greater number of witnesses merely from caprice, whim, or prejudice, or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the number of witnesses. The final test is not in the number of witnesses but in the convincing force of the evidence. Testimony concerning any particular fact which you believe given by one witness whose testimony on that fact does not require corroboration is sufficient for the proof of that fact. However, before finding any fact required to be established by the prosecution to be proved solely by the testimony of such a single witness, you should carefully review all of the testimony upon which the proof of such fact depends. Motive is not an element of the crimes being alleged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this proceeding. Presence of motive may tend to establish probable cause to return an indictment in this proceeding; absence of motive may tend to establish innocence. You will therefore give its presence or absence, as the case may be, the weight to which you find it to be entitled. A confession is a statement made by an accused other than at a hearing in which he has acknowledged his or her guilt of the crimes for which he is accused. In order to constitute a confession the statement must acknowledge participation in the crimes as well as a required criminal intent or state of mind. An admission is a statement made by an accused, other than at this hearing, which does not by itself acknowledge his guilt of the crimes for which he is accused, but which statement tends to prove his guilt when considered with the rest of the evidence. You are the exclusive judges as to whether the persons who are targets of this proceeding made a confession or an admission; and if so, whether that statement is true in whole or in part. Evidence of an oral confession or an oral admission of the persons who are targets of this proceeding, not made in court, shall be viewed with caution. Evidence has been received from which you may find that an oral statement of motive was made by a target of the indictment before the offense with which he is charged was committed. It is for you to decide whether the statement was made by a target of the proposed indictment. Evidence of an oral statement ought to be viewed with caution. No person may be indicted for a criminal offense unless there is some proof of each element of the crime independent of any confession or admission made by him outside of this proceeding. The identity of the person who is alleged to have committed a crime is not an element of the crime. Such identity may be established by a confession or admission. A person is qualified to testify as an expert if he has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony relates. A duly qualified expert may give an opinion on questions in controversy at this proceeding. To assist you in deciding such questions you may consider the opinion, with the reasons given for it, if any, by the expert would gives the opinion. You may also consider the qualifications and credibility of the expert. You are not bound to accept an expert opinion as conclusive but should give to it the weight to which you find it to be entitled. You may disregard any such opinion if you find it to be unreasonable. In determining the weight to be given to an opinion expressed by any witness who did not testify as an expert witness you should consider his or her credibility, the extent of his or her opportunity to perceive the matters upon which his or her opinion is based, and the reasons, if any, given for it. You are not required to accept such an opinion but should give it the weight, if any, to which you find it entitled.
In examining an expert witness counsel may propound to him a type of question known in the law as a hypothetical question. By such a question the witness is asked to assume to be true a set of facts and to give an opinion based on that assumption. In permitting such a question it does not necessarily mean that all the assumed facts have been proved, it only determines that those assumed facts are within the probable or possible range of the evidence. It is for you, the grand jury, to find from all the evidence whether or not the facts assumed in the hypothetical question have been proved. If you should find that any assumption in such a question has not been proved you are to determine the effect of that failure of proof on the value and weight of the expert opinion based on the assumed facts. A corporation, regardless of the number of persons or stockholders who compose it, is regarded in law as a single person. The law vests it with the identity and certain privileges of a natural person, and holds it to the same responsibilities that rest upon a natural person. The term "person" as used in these instructions include a corporation. In the crimes charged in counts One and Two of this proposed indictment there must exist a union or joint operation of act or conduct and general criminal intent. To constitute general criminal intent it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime he is acting with general criminal intent even though he may not know that his act or conduct is unlawful. In the crime charged in Count One, involuntarily manslaughter, there must exist a union or joint operation of act or conduct and criminal negligence. "Criminal negligence", "gross negligence", means conduct which is more than ordinary negligence. Ordinary negligence is the failure to exercise ordinary or reasonable care. "Criminal negligence", "gross negligence", refers to a negligent act or acts which are aggravated, reckless and gross, and which are such a departure from what would be the conduct of an ordinary, prudent, careful person under the same circumstances as to be contrary to a proper regard for human life or to constitute indifference to the consequences of those acts. The facts must be such that the consequences of the negligent acts could reasonably have been foreseen, and it must appear that the death was not the result of inattention, mistaken judgment or misadventure, but the natural and probable result of an aggravated, reckless or grossly negligent act. To constitute the crime of involuntary manslaughter there must be, in addition to the death, an unlawful act or omission which was a cause of that death. A proximate cause of the death is a cause which in natural and continuous sequence produces the death, and without which the death would not have occurred. There may be more than one proximate cause of the death. When the conduct of two or more persons contributes concurrently as a proximate cause of death the conduct of each such person is a proximate cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the death and acted with another cause to produce the death. If you find that the conduct of the persons who are targets of this proceeding was a proximate cause of the death to another person, then it is no defense that the conduct of some other person, even the deceased, contributed to the death. When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither criminal intent nor purpose, nor criminal negligence, he does not thereby commit a crime. The persons who are targets of this proceeding are accused in Count One of the proposed indictment of having committed the crime of involuntary manslaughter in violation of Section 192(b) of the Penal Code. Every person who unlawfully kills a human being without malice aforethought, and without an intent to kill, is guilty of the crime of involuntary manslaughter in violation of Penal Code Section 192(b). In order to prove such crime each of the following elements must be proved: A human being was killed; the killing was unlawful. A killing is unlawful within the meaning of this instruction if it occurred, one, during the commission of an unlawful act which is inherently dangerous to human life under the circumstances of its commission; or two, in the commission of an act ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection. An unlawful act includes: A violation of California Code of Regulations, Title 8, Section 7010(e)(9-60); A violation of the California Code of Regulations, Title 8, Section 6995(b); A violation of Code of Federal Regulations Title 30, Section 57.9306; A violation of Code of Federal Regulations Title 30, Section 57.14100. The term "without due caution and circumspection" refers to a negligent act or acts which are aggravated, reckless and gross, and which are such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life, or to constitute indifference to the consequences of such acts. The facts must be such that the consequences of the negligent acts could reasonably have been foreseen. It must also appear that the death was not the result of inattention, mistaken judgment or misadventure, but the natural and probable result of an aggravated, reckless, or grossly negligent act. California Code of Regulations Title 8, Section 6995(b)(14-26), which applies to mining equipment and practices, requires unsafe equipment or machinery, shall be removed from service immediately. Code of Federal Regulations Title 30, Section 57.9306, which relates to safety devices, prohibitions and procedures for railroads in mines, requires where restricted clearance creates a hazard to persons on mobile equipment warning devices shall be installed in advance of the restricted area, and the restricted area shall be conspicuously marked. Code of Federal Regulations Title 30, Section 57.14100, which relates to safety devices and maintenance requirements for machinery and equipment in underground mines requires: (b), defects on any equipment, machinery and tools that affect safety shall be corrected in a timely manner to
prevent the creation of a hazard to persons; (c) when defects make continued operation hazardous to persons, the defective items, including self-propelled
mobile equipment, shall be taken out of service and placed in a designated area posted for that purpose, or a tag or other effective method of marking the defective items shall be used to prohibit further use until the defects are corrected. The persons who are the targets of this proceeding are accused of having committed the crimes set forth in the proposed indictment. The prosecution has introduced evidence for the purpose of showing that there is more than one act or omission upon which an indictment on Count One may be based. The persons who are the targets of this proceeding may be indicted if the evidence establishes proof constituting reasonable or probable cause that he committed any one or more of the acts or omissions. However, in order to return an indictment as to Count One at least eight or more grand jurors must agree, as to each individual person, that said person committed the same act or omission, or acts or omissions. The persons who are targets of this proceeding are accused in Count Two of the proposed indictment of have committed the crime of causing death in violation of Section 12 6425(a) of the Labor Code. Any employer and any employee having direction, management, control or custody of any employment, place of employment, or of any employee who willfully violates any occupational safety or health standard, such as California Code of Regulations, Title 8, Section 7010(e)(9-60), and that violation causes death to any employee, is guilty of the crime of committing a violation causing death in violation of Section 6425(a) of the Labor Code. In order to prove this crime each of the following elements must be proved: One, an employer or employee had direction, management, control or custody of any employment, place of employment, or of any other employee; two, that employer or employee willfully violated any occupational safety or health standard or order; three, that violation caused the death to an employee. As used in these instructions the term "employer" means every person, including any public service corporation which has any natural person in service, and all public and quasi-public corporations. The relationship of employer and employee exists whenever the employer retains the right to control or direct how the work shall be done.
As used in these instructions the term "employee" means every person who is required or directed by any employer to engage in any employment, or to go to work, or be at any time in any place of employment. California Code of Regulations, Title 8, Section 7010(e)(9-60), which applies to loading, hauling and dumping in mining, requires where overhead clearance is restricted warning devices shall be installed and the restricted area shall be conspicuously marked. When the evidence shows that a person voluntarily did that which the law declares to be a crime, it is no defense that he did not know that the act was unlawful, or that he believed it to be lawful. Each count charges a distinct crime. You must decide each count separately. The persons who are targets of this proceeding may be indicted for any or all, or either or both of the crimes charged. Your finding as to each count must be stated in the indictment. The purpose of these instructions is to provide you with the applicable law so that you may arrive at a just and lawful indictment. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given the prosecuting attorneys or grand jury adviser are expressing an opinion as to the facts.
The prosecutor and the persons who are the targets of this proceeding are entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose of reaching a decision, if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors or any of them favor such a decision. Do not decide any issue in this case by the flip of a coin, or by any other chance determination. The attitude and conduct of jurors at all times are very important. It is rarely helpful for a juror at the beginning of deliberations to express an emphatic opinion on the case, or to announce a determination to stand for a certain decision. When one does that at the outset a sense of pride may be aroused, and one may hesitate to change a position even if it is shown that it is wrong. Remember that you are not partisans or advocates in this matter, you are impartial judges of the facts. The integrity of a grand jury hearing requires that jurors at all times during their deliberations conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate, or
expresses an intention to disregard the law, or to decide the case based on penalty or punishment, or on any other improper basis, it is the obligation of the other jurors to immediately advise the grand jury advisor of the situation.
In your deliberations do not discuss or consider the subject of penalty or punishment, that subject must not in any way affect your decision. The instructions which I am now giving to you will be made available in written form for your deliberations. They must not be defaced in any way. You will find that the instructions may be typed, printed, or handwritten. Portions may have been added or deleted. You must disregard any deleted part of an instruction and not speculate as to what it was, or as to the reason for its deletion. You are not to be concerned with the reasons for any modification. Every part of the text of an instruction, whether typed, printed or handwritten, is of equal importance. You are to be governed only by the instruction in its final wording. The law presumes that a person who is the subject of a grand jury hearing is not indictable until sufficient evidence has been presented to warrant an indictment. He or she cannot be indicted unless eight or more grand jurors agree that the evidence presented satisfies the standard of proof required by law. The standard of proof you must use to indict is the same as that before a Magistrate at a preliminary examination; that is you must find probable cause before an indictment is returned. Probable cause means that each Grand Juror voting to find an indictment is convinced of a state of facts as would lead a person of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion that a public offense has been committed, and that the accused has committed the offense. In other words, an indictment should be returned if the evidence presented, if unexplained or uncontradicted, would warrant entertaining a strong suspicion of the guilt of the accused. If the prosecutor is aware of exculpatory evidence the prosecutor shall inform the grand jury of its nature and existence. Once the prosecutor has informed the grand jury of exculpatory evidence pursuant to this Section the prosecutor shall inform the grand jury of its duties under Penal Code Section 939.7. If a failure to comply with the provisions of this Section results in substantial prejudice it shall be grounds for dismissal of the portion of the indictment related to that evidence. The grand jury is not required to hear evidence of the persons who are the targets of this proceeding, but it shall weigh all the evidence submitted to it, and when it has reason to believe that other evidence within its reach will explain away the charge, it shall order the evidence to be produced, and for that purpose may require the prosecutor to issue subpoenas for the witness. When a prosecutor is seeking an indictment is aware of evidence reasonably tending to negate guilt he or she is obligated to inform the grand jury of its nature and existence so that the jury may exercise its power to order the evidence produced. During deliberations any question or a request the grand jury may have should be addressed to the prosecuting attorneys. Please understand that it may take time to provide a response. Continue deliberating until you are called back into the courtroom. Do not disclose to anyone outside the grand jury, not even to the prosecutors or grand jury adviser, either orally or in writing, how you may be divided numerically in your balloting as to any issue. You will be permitted to separate at the noon and evening recess. You are to return following the recesses on the next succeeding court date. During periods of recess you must not discuss with anyone any subject connected with this proceeding, and you must not deliberate further upon the case until all 11 of you are together and reassembled in the Grand Jury room. At that time you shall notify the clerk or the bailiff that the grand jury has reassembled and then continue your deliberations. You shall now retire and commence your deliberations. In order to return an indictment eight or more grand jurors must agree to the decision and to any findings you have been instructed to include in any indictment you vote to return. As soon as you have agreed upon a verdict, if that be the case, have it dated and signed by your foreperson so that it may be presented to the Court. (Jury deliberated from 11:45 a.m. until 1:15 p.m.)

THE COURT: Very well, the record should show it is 1:15 p.m. and our grand jurors have been at it continually since nine o'clock this morning taking evidence and discussing their decision in the matter. And I am advised that you have reached a decision; is that correct, Ms. Kelley?

FOREPERSON: That is correct.

THE COURT: Let's see, I have a few things I'm going to read again, first to myself. It says here first you will determine by a vote of at least eight grand jurors, each of whom has been present during the presentation of all the evidence -- and it is true, just for the record, Ms. Kelley, that all jurors, all 11 grand jurors, have been present during all of the evidence?

FOREPERSON: That is correct.

THE COURT: And eight of you have agreed, at least eight of you have agreed in favor of indicting persons for crimes by their names and individual and corporation; is that correct?

FOREPERSON: That is correct.

THE COURT: And you have notified us of the fact that you have reached a conclusion, an indictment has been prepared, and you're going to bring the indictment before you as a formal matter. Do you have it in hand at this time?

FOREPERSON: Yes, I do.

THE COURT: May I have it, please? Thank you, Ms. Kelley. And I'm going to read it to you, ladies and gentlemen. The formal matter as required, and this is on the form stated Superior Court of the County of Sierra. The People of California, plaintiff, vs. Michael Meister Miller, Jonathan Todd Farrell, and Original Sixteen to One Mine, Incorporated, defendants. A grand jury indictment. The grand jury of the County of Sierra, State of California, charges in Count One on or about November 6 of the year 2000 in the above-named judicial district, the crime of involuntary manslaughter in violation of Penal Code Section 192(b), a felony, was committed by Michael Meister Miller and Jonathan Todd Farrell, and Original Sixteen to One Mine, Incorporated, who did unlawfully, and without malice, kill Mark Raymond Fussell, a human being, in the commission of an unlawful act, not amounting to a felony, and without due caution and circumspection. Count Two. On or about November 6th, the year 2000, in the above-entitled judicial district, the crime of willful violation of occupational safety or health standard causing death. In violation of California Labor Code Section 6425(a), a felony, was committed by Michael Meister Miller and Jonathan Todd Farrell, and Original Sixteen to One Mine, Incorporated, who, acting as employer, and as an employee having direction, management and control and custody of any occupational safety or health standard -- pardon me, having custody of any employment, place of employment, of another employee, willfully violated an occupational safety or health standard, to wit, Title 8, California Code of Regulations Section 7010 (e)(9-60), requirement that if overhead clearance is restricted warning devices shall be installed, and the restricted area shall be conspicuously marked, and the violation caused the death of an employee, Mark Russell Fussell. Ms. Kelley, at least eight of our grand jurors have indicated agreement?

FOREPERSON: That's correct, on both counts.

THE COURT: Yes. And we are required, number one, you should take a second vote in favor of adopting the form of the indictment. And it's customary to take a poll of our members of the grand jury just so that whoever reads our record will be satisfied that at least eight of you have concurred. And as we say, we take a vote. So I will ask now how many of our 11 grand jurors have voted in favor of this indictment as to both counts, raise your hand. Nine. Am I correct on that? And two of you folks have indicated -- you did not raise your hand, am I correct on that? Very well. Nine of our grand jury have indicated that they concur in the indictment, and it is appropriate. Our clerk, Ms. Hamilton, will take a poll of our grand jurors now, and she'll ask you in effect if you do concur in this indictment, and kindly answer yes or no as the case may be. Mrs. Hamilton.

THE CLERK: William Adasiewicz, you voted for the indictment on both counts?

MR. ADASIEWICZ: No.

THE CLERK: Darlene Burns, you voted for the indictment on both counts?

MS. BURNS: Yes.

THE CLERK: John Marcantonio, you voted for the indictment on both counts?

MR. MARCANTONIO: No.

THE CLERK: Brian Salego, you voted for the indictment on both counts?

MR. SALEGO: Yes.

THE CLERK: David Serrahn, you voted for the indictment on both counts?

MR. SERRAHN: Yes.

THE CLERK: Ernest Amersfoort, you voted for the indictment on both counts?

MR. AMERSFOORT: Yes.

THE CLERK: Sheila Miller, you voted for the indictment on both counts?

MS. MILLER: Yes.

THE CLERK: Joe Ann Buczkowske, you voted for the indictment on both counts?

MS. BUCZKOWSKE: Yes.

THE CLERK: Mary Moreau, you voted for the indictment on both counts?

MS. MOREAU: Yes.

THE CLERK: Kathryn Kelley, you voted for the indictment on both counts?

MS. KELLEY: Yes.

THE CLERK: Anita McDonald, you voted for the indictment on both counts?

MS. McDONALD: Yes.

THE CLERK: Thank you.

THE COURT: Very well. You are free, of course, right now to change your mind. Does any member of the grand jury, I just say this for the record, because we did use the past tense in polling you, did anybody wish to change their vote? There being no response the answer is no, all nine who voted for the indictment. And I have before me at this time an indictment signed as a true bill by Kathryn A. Kelley, dated October 29, 2002, and this is your signature, Ms. Kelley?

FOREPERSON: Yes, it is.

THE COURT: Very well. Anything further now, gentlemen, that should be done?

MR. FILTER: Just that if we could put for the record that what is being -- what the evidence was so we can put that over to make a record of what's gone on?

THE COURT: All right. Fine. I take it reference by the exhibit number would be appropriate.

MR. FILTER: Yes, Your Honor.

THE COURT: I think, Mr. Filter, why don't you -- it would be appropriate if you did that on the record, thank you.

MR. FILTER: We have exhibits 1 through 26 --

SECRETARY: 28.

MR. FILTER: I'm sorry, 1 through 28. They are in an exhibit book that is being produced, one copy of the exhibit book is being produced. Each of the jurors had a book that identified certain things as the exhibit list, indictment, form of indictment, and foreperson's statement and evidence list, and exhibits. And that book is also being turned over to the Court. And the physical evidence consists of a hat with a light, a set of reflectors, a flashing light, and two poster boards and insert. And we also are turning over the questions that were raised by the jurors, which are all together; correct?

MR. PATCHETT: Yes.

THE COURT: You have a question?

JUROR: When you read the name of the deceased you said Mark Russell Fussell, and his name is Mark Raymond Fussell. I don't know how important that is.

THE COURT: I appreciate you pointing that out, the correct name is Mark Raymond Fussell. If I did make that mistake kindly pardon me, and thank you. All right. Now, I think it would only be appropriate if our grand jurors have anything they wish to add at this point regarding the proceedings.

FOREPERSON: I think we had some general concerns about the inspectors maybe did not address enough of the regulatory issues, or how broad their inspection actually was, and those may be issues that need to be addressed.

JUROR: They didn't follow through.

FOREPERSON: I don't know if we have a right to say that.

THE COURT: You run this thing.

FOREPERSON: Okay.

THE COURT: The question is what do I have a right to say. I meant that seriously. And in this sense, and I tell petty jurors this all the time, this kind of observation is very important to the people who may be presenting the trial in this case, very important. I'm glad you raised that. I think it doesn't affect your decision in the case, the indictment as a true bill has been returned, but it is extremely important and helpful to the attorneys who will present the matter. Thank you. I'm sure they thank you. Yes?

JUROR: I don't know if it's true or not but I heard that, like, the defendants can get a copy of what transpired here and how the votes were and who voted for the indictment and who did not.

THE COURT: My understanding is just the opposite.

MR. FILTER: No, its sealed.

JUROR: It's sealed? All right.

THE COURT: That's very important in a smaller community.

JUROR: You betcha.

THE COURT: That's one of the reasons I like a small community so much. There are a lot of practical reasons for that. I'm sure they heard of you, and I don't have to elaborate. Its a nuts and bolts kind of a thing. Rules follow the nuts and bolts. But I do appreciate your raising that because that is important for all of our grand jurors to know that. Any other thoughts, observations?

MR. PATCHETT: No.

THE COURT: How many of you think -- this is important to me in a way, I always ask jurors and petty jurors if they had a good experience. Has this been a good experience for you?

FOREPERSON: Yes.

THE COURT: I say over and over again if you don't run the government somebody is going to run it for you, so you're doing it, and you have been a super bunch. I'm sure it's been a great experience for all of you. Not so much specifically what you had to do, but the fact that you get together with your fellow citizens and play a practical, useful, important function in the way your government runs. We should get you out here to make speeches and tell them how important it is to do, because it's the kind of people like you that run the country.

JUROR: That's scary (laughter).

THE COURT: I bet you if they had a scare meter here I would be scareder than you. I'm really scared. All right.

JUROR: We still can't talk?

THE COURT: You can talk together but with nobody else.

JUROR: If we leave here and want to say something on the way home to each other?

THE COURT: Don't let it go any further. Don't mention it in a restaurant. This is very significant for the reasons that I just mentioned.

MR. FILTER: Judge, I'd ask that bail be set at 25,000. That is the bail schedule here in Sierra County, I just went in and looked at it, for involuntary manslaughter. I don't know what is additional, I'll leave that to the discretion of the Court. I also ask that arrest warrants be issued.

THE COURT: Warrants will be issued, bail will be 25,000.

MR. FILTER: Thank you very much. Put that corporation in jail, too.

THE CLERK: How do we do that? Are you going to prepare the arrest warrants?

MR. FILTER: I don't know what they do here. I'm sure that Sherry knows how to prepare them; right? Isn't that what you guys usually do?

THE CLERK: Usually.

MR. FILTER: I'll tell her and then I'll tell her to confer with you.

THE CLERK: And then just out of curiosity, when the arrest is made are you proceeding with the cases?

MR. FILTER: Yes, I'll be. Either Denise or myself.

THE CLERK: Okay.

MR. FILTER: One of us will be, or one of my other circuit prosecutors will be up here, at least for arraignment.

(Court was concluded at 1:30 p.m. this date.)

CERTIFICATE OF CERTIFIED SHORTHAND REPORTER
I, JUDY BISHOP, hereby certify that I am a Certified Shorthand Reporter, and that I recorded verbatim in shorthand writing the following proceedings completely and correctly according to the best of my ability:

COURT: Sierra County Grand Jury

JUDGE: Hon. Charles Egan Goff

ACTION: Indictment

DATE: October 28 & 29, 2002
I further certify that my said shorthand writing has been transcribed into typewriting, and that the preceding pages constitute an accurate and complete transcript of my shorthand writing for the date specified. I further certify that I have complied with CCP 237(a)(2) in that all personal juror identifying information has been redacted if applicable.

Dated: November 11, 2002

JUDY BISHOP
Certified Court Reporter
CSR No. 2261

Index

WITNESSES FOR THE PEOPLE

VINCENT KAUTZ
Examination by MR. FILTER

JAMES WEISBECK
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER

GREGORY D. REIBER
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER
Direct Examination by MS. MEJLSZENKIER
Examination by MR. FILTER
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER

BRUCE ALLARD
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER
Examination by MS. MEJLSZENKIER

JOHN PEREZA
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER
Examination by MS. MEJLSZENKIER
Examination by MR. FILTER

EDWARD TIM HURLEY
Examination by MR. FILTER

STEPHEN CAIN
Examination by MR. FILTER

PEOPLE'S EXHIBITS:

Photograph of Mark
EVIDENCE: Miner’s hat, Drawing, Map, Sectional Map, Diagram, Death Certificate, Expert's Report, Flasher, Reflector
 By SCOOP

06/15/2004  4:04PM

8. Transcript of hearing on May 28th.
7. Miller Memorandum to Demurrer
6. Sixteen to One Response to CDAA response
5. CDAA response to Plaintiff Memorandum of Points
4. Entry of Default
3. Sixteen To One Reply to Demurrer
2. CDAA Motion Demurrer
1. Complaint for Damages
 By SCOOP

06/15/2004  3:59PM

#8 Transcript from hearing on May 28, 2004.

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SIERRA

MICHAEL MILLER,
Plaintiff,
No. 6293
Vs
GALE FILTER, et. al.
Defendants
MAY 28, 2004

DEMURRER

Before Hon. RICHARD HAUGNER

APPEARANCES:

For the Plaintiff: MICHAEL MILLER
In Propria Persona

Alleghany, CA

For the Corporation: GEORGE R. GILMOUR,
Attorney at Law
6536 Arlington
Richmond, CA 94805

For the Defendant: THOMAS S. KNOX
Attorney at Law
KNOX, LEMMON & ANAPOLSKY, LLP
One Capitol Mall, Suite 700
Sacramento, CA 95814

Judy Bishop, CSR No. 2261

May 28, 2004

THE COURT: In the Miller versus Gale Filter et.al. Everyone ready?

MR. KNOX: Good afternoon, I'm Tom Knox for the defendants and moving party. I apologize to the Court on two fronts. We had this calendared at 2:30 and put it on our moving papers. Apparently the Court had this on a 1:30 calendar. We obviously messed up and I apologize for keeping the Court waiting.

THE COURT: I think it was set for 2:30. I wondered why it was set in the middle of all the child support matters.

MR. KNOX: Apparently --

THE COURT: Your office evidently goofed in not sending the copies to the pro per plaintiff.

MR. KNOX: I'll find out what happened. We may have -- well, I don't know what happened.

THE COURT: He did sign an opposition, which was filed by Mr. Gilmour.

MR. KNOX: I've taken a look at it.

THE COURT: All right. Now, Mr. Miller, do you have the response?

Mr. MILLER: Yes.

THE COURT: Okay. And do you, Mr. Knox, have what was filed today?

MR. KNOX: I have. Both parties gave me their papers when I came in.

THE COURT: The second memorandum of points and authorities. All right. And, Mr. Gilmour, you represent the corporation?

MR. GILMOUR: The corporation.

THE COURT: All right. Mr. Knox, you're the moving party, do you have -- let me say for the record I read the Complaint itself, the demurrer and notification of demurrer, the points and authorities, the opposition filed by George Gilmour. Mr. Gilmour and Mr. Miller. And the response filed by Mr. Knox's firm. And I've also read the two memorandums of points and authorities, which were filed today; one by Mr. Miller and the other by Mr. Gilmour. You have anything to add to what I've already read?

MR. KNOX: You've had a lot of paper on this, Judge. Just to boil it down, my clients were -- it's indisputable I think my client's were advised they were deputy district attorneys. They took the oath. There apparently is some irregularity about whether an appointment got filed, but it's very clear they took an oath. They performed acts that according to the face of the Complaint itself could only have been performed by deputy district attorneys. Seems to me they are probably de jure deputy district attorneys, but they're certainly de facto district attorneys. They performed acts presenting evidence to the grand jury, filing criminal complaints openly in a way that cannot be done unless everyone believes, and you honestly believe, you're a deputy district attorney. It seems to me the immunity has to extend that far. The law just wouldn't put deputies at risk because there was a failure at some other level to file this appointment. So for all those reasons we think immunity applies and the Court can make that determination from the face of the Complaint.
THE COURT: Okay. Mr. Gilmour on behalf of the corporation.

MR. MILLER: I'll go first.

THE COURT: Mr. Miller on behalf of himself.

MR. MILLER: Yes, sir. Thank you very much. First of all on the question of whether -- on the surface my service papers to the defendants clearly states that it was in pro per. The actual language is right in big
print, in pro persona.

THE COURT: That's not really relevant to the issue before us today.

MR. MILLER: I really --

THE COURT: You have all the papers and Mr. Knox now has papers he never had before.

MR. MILLER: No, sir, I don't have all the papers.

THE COURT: Then you get copies from Mr. Knox and Mr. Gilmour.

MR. MILLER: Well, the case is perhaps are a little more complex than Mr. Knox has stated as far as prosecutorial immunity goes. The situations are such that we do not believe, I do not believe that prosecutorial immunity is absolute in this case. And the facts would bear that out. Mr. Knox's clients were not district attorneys, and their behavior was not that of the district attorney. They were not employed by Sierra County. They were not employed by the State of California. They did not work under the authority of the Attorney General. Their employer clearly is a nongovernmental corporation, which lobbied for and received a specific contract from the California Department of Industrial Relations. And that contract contains specific language that the contractors and the members of the CDAA are not privileged under the government standards, and the government is held harmless from all of their activities. Their behavior was not that of a district attorney. And the California District Attorneys Association has a web site. It's a fine organization. We're certainly not here
To -- I'm not here to challenge the broad concept of immunity. But this was willful, and it was knowing, and it was extremely detrimental to me. I was accused of killing somebody by these people. And that statement is still with
me today, and I really have no other recourse to go after this and correct this injustice that was put upon me. The interesting thing about their web site, it
says, "The Ethical Duties of a Prosecutor". So it clearly states out by their own web site that in administering justice a prosecutor must abide by a strict code of ethics. "The prosecutor must always strive to discover the truth
while carrying out all official duties. Additionally, the prosecutor must exercise the utmost professionalism as he or she is in the position of demonstrating ideal social behavior for others to follow. At any level, the primary role of the prosecutor is to investigate and prosecute impartially, in
quotations, criminal suspects on behalf of the People. Guilt shall not escape or innocence suffer. Cited Berger vs. United States, 1935, 295 U.S. 78, 88. In carrying out their duties prosecutors are required to follow statutory regulations imposed on them by California Business and Professional Code section 6068 (a)-(d). These include upholding the federal and state constitutions and laws; respecting courts of justice and judicial officers; maintaining only such actions as appear to be legal or just; and employing only such means as are consistent with the truth and never seeking to mislead a judge or a judicial
officer." In this very courtroom all of these absolute requirements were violated. And this isn't a situation of randomly seeking revenge. This case was -- we have transcripts from grand jury records. We have transcripts from the hearings themselves. They prepared the case, the CDAA people, because they needed to create cases to fulfill their contract. We weren't the first --

THE COURT: You're proceeding as though this was an evidentiary hearing and it's not.

MR. MILLER: Well --

THE COURT: Basically you're stuck with your Complaint and his demurrer.

MR. MILLER: Right.

THE COURT: That's it.

MR. MILLER: Right.

THE COURT: In the demurrer we assume everything in the Complaint is true.

MR. MILLER: Okay.

THE COURT: Your allegations, et cetera.

MR. MILLER: Well, his demurrer is not. I don't think it's true at all. Because there seems to be quite a few different variations of -- for example, if a prosecutor stabs a defendant, would he be held criminally liable?

THE COURT: It depends on whether he is acting in the scope of his employment.

MR. MILLER: Well, I would imagine that if the prosecutor stabbed a defendant --

THE COURT: Depends on why.

MR. MILLER: So it depends on why?

THE COURT: Yeah. But the question here is one of whether or not immunity attaches to the fab four of Sierra County. Mr. Knox's position has always been that it does because, one, they probably are district attorneys de jure
even though the appointment wasn't filed. The second argument is if they aren't district attorneys de jure they're de facto district attorneys and de facto deputy district attorneys are entitled to immunity if they're acting within
the scope of their employment.

MR. MILLER: They certainly are not acting within the scope of their employment. And Mr. Knox also questions, he said how would the law -- he just said this -- just would not put prosecutors at risk. The law. We're here to talk
about the law, that's what I understand. And I think there's such a narrow interpretation of, quote, the law for immunity, that it has most of the people in this country extremely troubled. And --

THE COURT: I'm not here to worry about the rest of the country.

MR. MILLER: I'm not either.

THE COURT: I'm strictly interested in the Complaint and the demurrer.

MR. MILLER: Well, the Complaint --

THE COURT: And the grounds for the demurrer.

MR. MILLER: The Complaint is in the sense of that analogy about a prosecutor stabbing somebody. I think the facts would have something to do with that.

THE COURT: That has nothing to do with this.

MR. MILLER: Okay. And let me ask, may I ask something of Jan Hamilton that's directly related to her direction?

THE COURT: Its not an evidentiary hearing. If there's something you want to ask her you should have filed a counter affidavit.

MR. MILLER: I never received -- Your Honor, I never received anything from the defendants.

THE COURT: I find that hard to believe because you filed -- you filed a response and opposition.

MR. MILLER: Let me see if I can help you with that.

THE COURT: We're not here for an evidentiary hearing as such.

MR. MILLER: The interests of the Original Sixteen to One and my interest in this case for damages are very different. We have a de facto Chinese wall in place with the corporation as far as what goes on with Original Sixteen to
One and what goes on with Michael Miller in pro per. Michael Miller received nothing from the defendants, not even an answer. Original Sixteen –

THE COURT: They hadn't answered the demurrer?

MR. MILLER: I received nothing from them. Nothing.

THE COURT: You must have had something because you signed the opposition.

MR. MILLER: No, sir, I received nothing from them.

THE COURT: As I say, I find that hard to believe.

MR. MILLER: I came to court --

MR. GILMOUR: Your Honor, I can speak to that? I sent Mr. Miller the last page for his signature, the last page of pleadings. He did not get a full set.

THE COURT: He signed something not knowing what he was signing?

MR. GILMOUR: That's correct.

MR. KNOX: You talking about the Complaint or the opposition?

MR. GILMOUR: The opposition, that's correct.

THE COURT: You had him sign a document he hadn't read?

MR. GILMOUR: At the time, because of the time constraints that we were under, that's right.

THE COURT: That's not an excuse.

MR. GILMOUR: No, but it's a fact.

THE COURT: You put him in jeopardy.

MR. GILMOUR: But it's a fact.

THE COURT: Go on.

MR. MILLER: Well the declaration, I mean I would -- I had no opportunity to send a revised declaration by Jan Hamilton. I spoke with her on the telephone and I believe she's in a position to recant some of the statements that she's made. I felt she was given a piece of paper again from the offices of Mr. Knox, and they are –

THE COURT: This is your allegation.

MR. MILLER: Well, see, she's sitting right here.

THE COURT: Anything else you want to say on behalf of your opposition to the demurrer? As I say, it's not an evidentiary hearing.

MR. MILLER: Let me think about it just for a minute. I'll sit down if that's okay.

THE COURT: All right. Mr. Gilmour?

MR. GILMOUR: Thank you, Your Honor. It's undisputed that the defendants were not sworn -- not appointed pursuant to the Government Code.

THE COURT: Where do you find that?

MR. GILMOUR: Where do I find?

THE COURT: Yes.

MR. GILMOUR: In the --

THE COURT: In the Complaint?

MR. GILMOUR: No, in the declaration of -- submitted with our opposition, of the County, I forget her -- Clerk, I guess, under penalty of perjury. The custodian of records for the County in any event, who said that no affidavit --

THE COURT: You mean the clerk, the County Clerk?

MR. GILMOUR: Yeah. Who swore that no affidavit, no appointments were ever filed. It's undisputed that they -- there was no appointments made.

THE COURT: There's an issue. I am not convinced that's true, because you have to recall that the County Clerk at one time was the ex official clerk of the superior court. And so filing a document with a deputy clerk was filing it
with the County Clerk. Somewhere along the line, and I'm not sure when, they took the administration of the courts away from the County Clerk and placed it with -- in the State, and also with local court executives.

MR. GILMOUR: I don't quite understand, Your Honor. Are you saying that

THE COURT: What I'm saying is I am not sure but that filing the oath of office with the Court Administrator as a clerk may be in compliance or substantial compliance with 24102. I don't have to find that.

MR. GILMOUR: Yes. That's one of our issues here. Because if indeed, and it's a question of fact, I don't know whether for the sake of a demurrer --

THE COURT: Tell me about why these people aren't de facto deputy district attorneys.

MR. GILMOUR: I'm saying they very well may be, but that's a factual question again. It wasn't addressed in the demurrer. I'd like to --

THE COURT: It was in the Complaint.

MR. GILMOUR: I'd like to do some discovery with regard to that question.

THE COURT: We're at the demurrer stage.

MR. GILMOUR: I understand. So how does one just demurrer by a mere allegation that I have something that I have to proof up?

THE COURT: You demurrer to the language of the Complaint. I think, as Mr. Knox's brief points out, that the Complaint itself basically sets up the fabulous four as deputy district attorneys de facto. Who can file a criminal
action? How do you start a criminal action?

MR. GILMOUR: Are you saying that a de facto district attorney --

THE COURT: I'm asking you a question. How do you start a criminal action?

MR. GILMOUR: By filing an Information I suspect. I don't do criminal law.

THE COURT: There's only two ways you can do it. One is the district attorney has to file the Complaint in the Municipal Court and proceed by way of preliminary examination, or to the grand jury with a Complaint; or the
grand jury on it's own with the help of the district attorney indicts certain people. Now, here it's alleged in the Complaint that the fab four basically filed the Complaint against Mr. Miller and the corporation.

MR. GILMOUR: I understand what they did.

THE COURT: And also, in very clever language by Mr. Miller, in effect misled the grand jury, which resulted in an indictment. Now that's a deputy district attorney's function, as is the filing of the Complaint.

MR. GILMOUR: Exculpatory evidence is part of his obligation as well.

THE COURT: I don't think you know what you're talking about.

MR. GILMOUR: Okay.

THE COURT: Because the problem is, when they do this they're acting as deputy district attorneys.

MR. GILMOUR: They're acting as if. Now, your question was whether or not they're de facto, and I said that's a question of proof. First of all --

THE COURT: You're right. And assuming, assuming the allegations of the Complaint to be true, it would appear from the Complaint itself that they are de facto.

MR. GILMOUR: The question then comes down to assume arguendo they are de facto.

THE COURT: Does the immunity apply to them?

MR. GILMOUR: Exactly.

THE COURT: Why doesn't it?

MR. GILMOUR: And the law I cited, and the only law I could find in three days, that came from old now Mr. Witkin, says no, they are not immune. The jury immunity; de facto, zip. That's the law.

THE COURT: All right.

MR. GILMOUR: Mr. Knox has not cited any authority to the contrary. I would -- I'm not a betting man, but I'd bet that the Court would not be able to find any law to the contrary in any of the 50 states. De facto, no immunity. No
immunity, no demurrer.

THE COURT: Okay. Thank you. Mr. Knox?

MR. KNOX: Your Honor, I just don't see how that can be the law. The fab four, as you call them, take the oath, perform prosecutorial functions. They are left in this proceeding apparently by -- I don't know what happened to that appointment. I agree with the Court that the oath itself is a substantial compliance with the requirement that there be an appointment, but surely they don't lose their prosecutorial immunity that would otherwise attach if they
were on the payroll of the County.

MR. GILMOUR: Your Honor, there is -- this is a very -- the latest law is about 1926 that I can find on the question of de facto status.

THE COURT: Well, there's a 1914 case.

MR. GILMOUR: Not having to do with immunity. Nothing.

THE COURT: That's the one in which where the deputy sheriff was commissioned by the sheriff and they didn't file the paper.

MR. GILMOUR: That's correct, but it has nothing to do with that deputy sheriff's immunity; nothing. That's where I got confused, too. It took me a long time to get through this stuff. I ended up reading a 1926 edition of
Southern California Law Review and the cases cited therein. It's that bad. But interestingly, Mr. Witkins relied upon it. I would hope this Court would as well.

MR. KNOX: The 1940 case was Cradlebough and that officer probably deserved what he got, which was to be prosecuted as an officer for excessive force. Certainly if the burden's attached to a de facto officer the privileges and immunities must as well.

MR. GILMOUR: Your Honor, that case had to do with an officer being charged as an officer for committing a crime in violation of a statute governing officers. It had nothing to do with immunity.

THE COURT: All right. You thought of something else you want to say, Mr. Miller?

MR. MILLER: Yes, sir.

THE COURT: Go ahead.

MR. MILLER: I'd like to add to the duties of a district attorney to a grand jury. And as a person of the public I thought it was interesting when I had a chance today to read some of Mr. Knox's assertions that this is all in the
public interest. It's clear in the California Penal Code, 939.7, that is it also incumbent upon a district attorney to reveal exculpatory evidence and to, in grand jury proceedings, to exactly explicitly point that out and to protect that innocence -- innocent people will not be damaged through the type of hearings and presentations that I, along with the Original Sixteen to One Mine, and another person, went through in this very courtroom. It was not -- these men and women, they are called Team Filter in the grand jury hearings. It is clear that they have stepped well beyond the concept of immunity, at least in the eyes of the public. For Mr. Knox to suggest that allowing the State of California to grant the specific -- grant an absolute immunity in this case
is actually against the People of the State of California's best interest. That's what would come out in a factual presentation should we be able to proceed in this hearing.

THE COURT: Anything else?

MR. MILLER: Yes, sir, one more thing. The – I hold the judicial system in the highest regard of the three branches of our government. I'm the only person in this room who went through what happened in Sierra County with Team Filter and CDAA. I'm not a lawyer, I was in pro per throughout this hearing because it was very, very complex. It was impossible to reach labor law, mining law, administrative law, civil law. I could find no attorney that knew all of these branches of the law. Judge Young, I think on special notice, and the fact that the motion to set aside, this was Mr. Knox's clients, were thrown out of court.
Professional attorneys who are now private attorneys employed by the CDAA on their payroll, now have extended this immunity and they get thrown out by a person in pro per on a motion to set aside. I think -- and we weren't the first case.

THE COURT: I don't know why the Information was set aside. I know what your argument was in the motion, but Judge Young merely said it was granted, he didn't say why. He's an old time judge, he didn't want to give a reason and
be wrong probably, so I don't know why.

MR. MILLER: Your Honor, I plead with you that this case is in the public's best interest to know go forward.

THE COURT: May be in the best interest to go forward, the problem is whether or not the defendants, the four defendants, the fab four, have immunity under 82126.

MR. MILLER: Everything I've read says employee, employee, employee.

THE COURT: They were employees.

MR. MILLER: No, sir, they were not.

THE COURT: Let's go back; okay?

MR. MILLER: They weren't employees of Sierra County.

THE COURT: No, no. The only person who can -- who can appoint deputy district attorneys is the District Attorney himself or herself. Now, they evidently were
appointed by her, or told to be appointed by her. They were given the oath by Ms. Hamilton. She holds the documents. Now, the district attorney didn't file the paper with the County Clerk. Whether that's required or not I don't know.
There's no cases on this except the Cradlebough case.

MR. GILMOUR: There's a statute.

THE COURT: There is a statute, yes, but what's it mean?

MR. GILMOUR: It means –

THE COURT: You have to remember they changed the court system.

MR. GILMOUR: That statute was from 1907, and it is current today.

THE COURT: I know it's still there.

MR. GILMOUR: The language is unequivocal.

THE COURT: But they have changed the structure of the Superior Court.

MR. GILMOUR: I understand that. But it says until an appointment. You cannot –
THE COURT: I've heard enough from you, you can sit down.

MR. GILMOUR: I'm sorry.

MR. MILLER: Can I say one more thing and then you can tell me to sit down?

MR. KNOX: I'll tell him to sit down, Your Honor.

(Laughter).

MR. MILLER: I would love to talk to you because this is a very serious matter. The fact that you just said, Your Honor, that the only person that can appoint someone to come into our county. This is my county. This is where I live. I work here, I run a company. Been here 30 years. And the district attorney, the fact is that she didn't appoint, she didn't authorize directly Jan Hamilton to
appoint these people, and I know that for a fact. And when do we get a chance to say this? Sherry the clerk is sitting over there. The current district attorney is not here. Jan Hamilton will say that what she said in statement four is not necessarily absolutely correct. And if that's in your own
words, if that's the only way they can appoint, they were not appointed that way. They blew in here, came over and said this is and that is.

THE COURT: They were appointed over a period of about six or eight months one at a time.

MR. MILLER: I'm fully aware of the time dates on there when they were appointed, and the one in particular.

THE COURT: You just tried to tell me they were appointed at the same --

MR. MILLER: No, sir, I didn't. No, no, no. Mr. Hedum was in 2001, Mr. Patchett was October 28th, 2002, the day of the grand jury. He came in from Los Angeles, Sharon O'Sullivan was not even in the courthouse, and said "Appoint
me". Jan did her job. She got a call, she didn't know. We're kind of a little relaxed here, too, which is maybe to our detriment, but there are laws. And not only did they break the law of appointment, they broke every other law you
can imagine in presenting and prosecuting this case to the grand jury. People up here are outraged.

THE COURT: That's your allegation, I don't know.

MR. MILLER: When do we get a chance to prove it? I don't think that the Constitution, in what I cited to you about the special privileges for different groups, there's no special groups for absolute immunity for anybody in the
United States. Where do we say that in the Constitution, either the State or the Federal?

THE COURT: It's not in the Constitution.

MR. MILLER: Where did we ever say that in –

THE COURT: The statute grants immunity to public employees performing in the scope of their employment.

MR. MILLER: Exactly. No law is going to breach the values of the Constitution. They don't presume to override the Constitution. And both California and state are in there.

THE COURT: You are out of order on that.

MR. MILLER: I'll stand corrected.

THE COURT: All right.

MR. MILLER: But this is not a frivolous issue.

THE COURT: I know it's not a frivolous issue.

MR. MILLER: And the concept of people coming in and evaluating this and doing this. I think that if this is not allowed to go forward it definitely is not what anyone imagined the need for having prosecutorial immunity absolute.
I'm not here to argue that either. We're here to discuss the specifics of this case.

THE COURT: There's no doubt there's prosecutorial immunity providing you are performing prosecutorial work. The question, as Mr. Gilmour says, is does it apply to these people, the fab four.

MR. GILMOUR: That's correct.

MR. MILLER: Yeah, I have a little different opinion than Mr. Gilmour. I know that they did not -- that they did not carry out the laws of the land when they
presented this to the grand jury.

THE COURT: It isn't the cleanest case presented, that's the problem.

MR. MILLER: By whom?

THE COURT: By both sides. There aren't enough facts involved in it. The demurrer is probably good as to the third count, because you haven't pled anything for interference with the business advantage.

MR. MILLER: If that's the case, having never even had a copy of Mr. Knox's client's report –

THE COURT: That's your complaint.

MR. MILLER: Okay. Whatever he is claiming, I would certainly, if the worst case scenario is right, like a right to amend our Complaint. I just think --

THE COURT: Is the matter submitted?

MR. KNOX: Yes, Your Honor.

THE COURT: All right. I'm going to deny the demurrer on the -- as to the four defendants on the three causes of action on the grounds of immunity because I don't think the record is full enough for that. I'll grant the demurrer as to the third count with leave to amend. You can file an amended Complaint.

MR. GILMOUR: Thank you, Your Honor.

THE COURT: Which you would have to set forth the requisite allegations for interference with business advantage.

MR. GILMOUR: Thank you very much, Your Honor.

THE COURT: I think also that you're going -- you should clean up your Complaint because if there are differences between the corporation and the individual then I think your damages are going to be different. I think you have to allege that.

MR. GILMOUR: Yes, Your Honor.

THE COURT: I don't think there is any difference between the way you pled it.

MR. GILMOUR: It was a last moment. I live in Alameda County.

THE COURT: I think what's going to -- what will eventually happen is this thing will come back on a judgment on the pleadings after more information.

MR. GILMOUR: Fine. At least as long as we have the opportunity to do that. Thank you very much, Your Honor.

MR. MILLER: Thank you.

MR. KNOX: Thank you, Your Honor.

THE COURT: Will you prepare the order, Mr. Knox?

MR. KNOX: Yes, Your Honor. How long to amend? He is present in court so 20 days, is that what he gets to amend -- to file the amended Complaint, 20 days from today?

THE COURT: From today's date. You want longer?

MR. MILLER: I have a shareholders meeting June 26th, and I have something in U.S. Court of Appeals on June 11th. And I apologize for this but we run -- I run a public company but I'm really small.

THE COURT: By July 15th?

MR. MILLER: Yes, sir, July 15th would be excellent for me.

MR. GILMOUR: Thank you very much, Your Honor.

CERTIFICATE OF CERTIFIED SHORTHAND REPORTER

I, JUDY BISHOP, hereby certify that I am a Certified Shorthand Reporter, and that I recorded verbatim in shorthand writing the following proceedings completely and correctly according to the best of my ability:

COURT: Superior Court, Dept. 1

JUDGE: Hon. Richard Haugner

ACTION: Miller vs. Filter, et. al.

DATE: May 28, 2004

I further certify that my said shorthand writing has been transcribed into typewriting, and that the preceding pages constitute an accurate and complete transcript of my shorthand writing for the date specified.
I further certify that I have complied with CCP 237(a)(2) in that all personal juror identifying information has been redacted if applicable.

Dated: June 5, 2004

JUDY BISHOP
Certified Court Reporter
CSR No. 2261
 By SCOOP

06/15/2004  3:58PM

#7 Miller memorandum to Demurrer
INTRODUCTION
Plaintiff Michael M. Miller was never served any papers filed by defendants. His ability to respond to the motion has been violated by the omission of defendants to serve the first and second motion before the court. Miller waives his right to service if the court rules against the motions. If the court believes it lacks sufficient documentation to strike down defendants’ motions, Miller asks the court to order defendant to serve Miller and allow him time to respond.
BACKGROUND of Defendants
The official California District Attorneys Association web site has a section entitled, “What is a prosecutor. Section V, Becoming a prosecutor says, “Individuals seeking a position as a prosecutor must know the law.” Section IV provides the “Ethical Duties of Prosecutors”. Excerpts presented orally.
Defendants entered into a contract with the California Department of Industrial Relations in the spring of 2001. Specific terms of the agreement pertinent to the motion before the court today are contained in the following pages of the contract.
“The California District Attorneys Association will employ these individuals.” Page One, section 1.
“In addition, elected District Attorneys will, as appropriate, deputize these prosecutors. The California district Attorneys Association will employ the Circuit Prosecutors and Investigator.” Page One, section 2.
“The California District Attorneys Association (hereinafter the Association or “CDAA”) is a private, non-profit association.” Page Two, section 4. (b)
“The Circuit Prosecutors and Investigator will be employed by the CDAA” Page Three section c.
DUTIES of Defendants
The individuals are members of the California State Bar and are required to follow its requirements. See Motion to Set Aside. Exhibit B. CDAA web site includes a description of duties entitled, “The Ethical Duties of Prosecutors”. It is not a stretch to believe that defendants knew the duties and requirements of a prosecutor. Also, the Sierra County Grand Jury transcript contains many statements by defendants that they were aware of the obligations they assumed as private prosecutors. Team leader and defendant Filter instructed the Sierra County Grand Jury that, “You must accept and follow the law as it is stated regardless of whether you agree with the law.” Page 37 lines 26-27. His omissions to the Grand Jury are flagrant transgressions of the law.

The individuals took an obligation to “bear true faith and allegiance to the Constitution of the United States and the Constitution of California” They ignored the constitution and subsequent statutes and regulations as stated in the Motion to Set Aside and Exhibit A

CONCLUSION
Breaking the laws and claiming it is on behalf of the publics’ interest and seeking absolute protection under the doctrine of immunity is a specious argument in light of the circumstances involved in the murder prosecutions of Michael M Miller by the defendants. For these reasons and the testimony entered today, Michael M. Miller prays that defendants’ demurrer be overruled.

Sincerely yours,

May 28, 2004 Michael M. Miller
 By SCOOP

06/15/2004  3:57PM

# 6 Sixteen to One Response
to CDAA Response to Memorandum of points

Introduction
Defendants demurrer was based on the unequivocal and false assertion that the individual defendants are deputy district attorneys of Sierra County.
Now, in their Response, they admit that that assertion is untrue, is false, that they are in fact not deputy district attorneys of this County.
But, they claim, although they have falsely presented themselves to this Court and to the people of this County as being deputy district attorneys, and because the Court and the citizens of this County came to believe this fraud, they are nonetheless entitled to immunity from liability for injuries they caused to citizens and a major business of this County.
It’s a novel argument.
Deputy District Attorneys
The individual defendants’ status as deputy district attorneys was not only repeatedly claimed as fact in their Demurrer (five times in seven pages), the claim was also sworn to under oath by one of the defendants in his Declaration in support of the Demurrer. (Declaration of Gale Filter.)
Had these assertions been true, defendants’ demurrer might well have had some merit. But they were not true. They were false, they were sworn to, and they were in the Demurrer falsely presented to this Court, as true.
The falsity of the defendants’ claims was revealed by plaintiffs’ in their Opposition to the Demurrer filed on May 10.
On May 21, less than one week from the calendared hearing on their Demurrer, defendants served their “Response.”
In that Response defendants have presented an entirely novel characterization of their status in this County. They almost, but not quite, admit that in their Demurrer they had misrepresented both fact and applicable law, but they request that the Court now take yet more “judicial notice” of, declare to be true, matters which are most certainly “reasonably subject to dispute” and hardly “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Evidence Code Section 452(h). Although the defendants repeat in their Response their untrue claim that they were appointed (p. 2, lines 22-23), it is not true and they admit it is not true.
So, what have they done? In their Response they assert now that they are “de facto officers.”
That may well be true. But it may well not be. Defendants attempt to have the assertion of de facto status established as fact, a question of complex fact not to be determined by a demurrer. For example, whether the defendants’ “acts in prosecuting plaintiffs involved the interest of the public” (Response, p. 4, line 1) is undoubtedly a factual question far beyond the allegations of the complaint, and not capable of being resolved by judicial notice at a demurrer.
But the real issue here is whether the defendants are, by virtue of purported de facto status, immune from liability for the injuries they are claimed in the Complaint to have caused.
Defendants claim that as de facto officers they are entitled to Government Code Section 821.6 immunity. They offer no authority for such a proposition. There is none.
Bernard Witkin in addressing de facto officers throughout his various treatises repeatedly refers to the article on De Facto Public Officers in 9 So.Cal.L.Rev. 189 as an “exhaustive discussion.” See, e.g., 2 Witkin Procedure, “Courts,” Section 44, p. 59.
While the acts of an officer de facto are valid insofar as the rights of the public are involved, or the rights of third persons having an interest in them are concerned, yet if a party defends or sues in his own right as a public officer for his protection or benefit, it is not sufficient that he be merely an officer de facto; he must be an officer de jure. That is, when the incumbent is sued for the commission of an act which is criminally or civilly enforceable against the “officer” as such, a defense of de facto status will not be heard, since an “officer” in in this capacity includes de facto as well as de jure officers. And when the incumbent is sued for doing an act normally excusable in a de jure officer, the de facto officer cannot put up the defense of the immunity of the office, for this defense belongs exclusively to the de jure officer. (Emphasis added.)
9 So.Cal.L.Rev., at 220, and cases cited.

Not surprisingly, defendants have misrepresented the nature and applicability of the ancient de facto doctrine. Its purpose is to protect the public and third parties from loss, and not the people inappropriately exercising the powers of an office which they have had no lawful business occupying from liability for their wrongdoing.
The two cases cited by defendants with regard to de facto status, Oakland Paving Co. v. Donovan (1912) 19 Cal.App. 488 and Nofire v. United States (1897) 164 U.S. 657, have nothing to do with the question of the immunity of de facto officers.
The Complaint
The defendants argue that their status as deputy district attorneys is implied in the Complaint. But that is not true.
In Paragraph 7, it is stated that “…the defendants, and each of them, knowingly and willfully conspired and agreed among themselves to without probable cause or other reasonable bases have felony criminal charges brought…,” hardly the actions of legitimate public servants.
In Paragraph 8 it is stated that “pursuant to and in furtherance of said conspiracy on June 132, 2002, defendants cause a complaint to be filed against plaintiff MICHAEL M. MILLER and one Jonathan Farrell…” hardly the actions of legitimate public servants.
In paragraph 9 it is stated that “…further pursuant to an in furtherance of said conspiracy, defendants, and each of them, wrongfully misled the Sierra County Grand Jury…,” hardly the actions of legitimate public servants.
Nowhere in the Complaint is there an allegation much less an inference that the defendants were legitimate, lawfully entitled, deputy district attorneys of this County.
Judicial Notice
Defendants request the Court to take judicial notice of certain matters, that is to assume certain matters to be indisputably true. Evidence Code section 452(h) provides that matters which “…are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy may be permitted to be judicially noticed.
In her declaration filed with the defendants’ Response, Jan Hamilton states that she was told by the District Attorney that the District Attorney had appointed the defendants. It is submitted that had the District Attorney in fact appointed the defendants she would herself have told this Court, that she would have sworn to such an event. Ms. Hamilton’s hearsay upon hearsay statement is odd indeed in that it amounts to a statement that the District Attorney of this County had repeatedly violated the law. It is a statement which at best is “disputable” and not “capable of immediate and accurate determination” as true.
Conclusion
For all of the foregoing reasons, plaintiffs pray that defendants’ demurrer be overruled.
May 27, 2004
Respectfully submitted,
GEORGE R. GILMOUR
 By SCOOP

06/09/2004  4:18PM

#5 CDAA Response to plaintiff’s Memorandum of Points and Authorities in Opposition to Demurrer
May 28, 2004

Defendants Gale Filter, Denise Mejlszenkier, Anthony Patchett, Kyle Hedum, and California District Attorney Association submit this response to Plaintiff’s Memorandum of Points and Authorities in Opposition to Demurrer.
Plaintiffs argue that no written “appointments” have been filed by the Sierra County Clerk in connection with the service of Defendants as Sierra County Deputy District Attorneys. That is true.
Plaintiffs argue that because no “appointments” were filed, Defendants did not in fact serve as Deputy District Attorneys and do not enjoy the prosecutorial immunity conferred by Government Code section 821.6. That is not true.
The Court Executive Officer of Sierra County, Jan Hamilton, administered an oath to each of the Defendants. The oaths, designating each Defendant respectively as a Deputy District Attorney, are evidenced by writings attached to Defendants’ moving papers. Defendants performed the duties of Deputy District Attorneys as the allegations in Plaintiff’s complaint show. It is in fact connection with their performance of those duties that Defendants have been named as parties to this lawsuit.
For the reasons stated below, Plaintiffs arguments are simply unavailing.
ARGUMENT
1. There exists Judicially noticeable evidence that Defendants were Sierra County Deputy District Attorneys.
Plaintiffs argue that, under Evidence Code section 452(d), the Court can only take judicial notice of the existence of the Oaths in the court file, but cannot take judicial notice of the truth of the facts asserted therein. However, Defendants have also requested judicial notice of the Oaths and administration of same by the Court’s Executive Officer pursuant to Evidence Code section 452(h).
Under section 452(h), the Court may take judicial notice of facts and propositions that are not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. That Defendants were sworn as Sierra County District Attorneys of Sierra County is not reasonably subject to dispute. Further, that defendants were appointed as Deputies is also not reasonably subject to dispute. These facts are subject to verification by Sierra County Court’s own Executive Officer, as evidenced by the accompanying affidavit. According to Court Executive Officer Jan Hamilton, she administered Oaths of Office to Defendants after then District Attorney Sharon O’Sullivan communicated the fact of Defendants’ appointment to CEO Hamilton’s office. (Affidavit of Jan Hamilton, Pg 2, lines 1-3). District Attorney O’Sullivan has the power to appoint Deputies pursuant to Government Code § 24101.
Defendants request that the Court take judicial notice of the information contained in Court Executive Officer Hamilton’s affidavit under Evidence Code section 452(h) as information capable of immediate and accurate determination by resort to sources of reasonable indisputable accuracy.
2. Defendant Gale Filter’s Declaration is offered to authenticate the documents offered for judicial notice.
Plaintiffs argue that the Declaration of Filter has been inappropriately presented to the Court as it is offered to refute the factual allegations of the complaint. However, Filter’s Declaration is not offered to refute the factual allegations made in the complaint, but rather to authenticate the documents being offered for judicial notice by the Court.
3. Defendants were de facto Deputy District Attorneys to whom statutory immunity applies, notwithstanding the absence of filed written appointments.
Plaintiffs argue that no evidence exists that the Defendants have ever been appointed as Deputy District Attorneys of Sierra County, because no written appointments were found in the files of the county clerk’s office, as required by Government Code section 24102. However, even in the absence of filed appointments, Defendants were officers de facto, to whom immunity applies.
An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as involving the interests of the public or third persons, where the duties of the officer were exercised either: (1) under color of a known and valid appointment, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath or give a bond, or; (2) without a known appointment, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry, to submit or invoke his action, supposing him to be the officer he assumed to be. Oakland Paving Co. v. Donovan (1912) 19 Cal.App. 488, 495. The same validity and the same presumptions attach to the actions of an officer de facto as to those of an officer de jure. Nofire v. United States (1897) 164 U.S. 657, 661.
a. Defendant’s acts in prosecuting Plaintiffs involved the interest of the Public
In their complaint for damages, Plaintiffs alleged the following acts by Defendants:
1.) Defendants had “felony criminal charges brought against plaintiffs in the county of Sierra, State of California.” (Complaint for Damages, Page 3, Paragraph 7).
2.) Defendants filled a criminal complaint against Plaintiffs in Sierra County charging Plaintiffs with violations of Penal Code section 192(b) (involuntary manslaughter) and Labor Code section 6425(a) (willful violation of occupational health or safety standard resulting in death). (Complaint for damages, Pages 3-4, Paragraph 8).
3.) Defendants “misled the Sierra County Grand jury by inter alia concealing exculpatory evidence, to returned a two-count felony indictment against plaintiffs… charging each of them with violations of Penal Code section 192(b) and Labor Code section 6425(a). (Complaint for Damages, Page 4, Paragraph 9).
4.) Defendants “initiate[ed] the prosecution of plaintiffs…” (Complaint for Damages, Pages 4-5, Paragraph 11).
These acts, undertaken in furtherance of a criminal prosecution against the Plaintiffs, served a vital public interest. As noted by the California Supreme Court, the efficient functioning of our system of law enforcement is dependent largely upon the investigation of crime and the accusation of offenders by trained officers. White v. Towers, (1951) 235 P.2d 209, 211. The Court warned that, “a breakdown of this system at the investigative or accusatory level would wreak untold harm.” Id.
b. Defendants exercised their duties under color of a known and valid appointment, but where the officer had failed to conform to some precedent requirement or condition.
Defendants were de facto officers under both standards discussed above. First, as evidenced by the accompanying affidavit from Court Executive Officer Jan Hamilton, each of the defendants performed their duties under color of a known and valid appointment to the office of Deputy District Attorney, even though they had no written appointment filed with the county clerk. According to the Court Executive Officer Hamilton, she administered Oaths of Office to Defendants after then District Attorney Sharon O’Sullivan Communicated the fact of Defendants’ appointment to CEO Hamilton’s office. (Affidavit of Jan Hamilton, Pg. 2, lines 1-3). Court Executive Officer Hamilton also stated that District Attorney O’Sullivan did not file a written affidavit of appointment with the county clerk’s office for any of the twelve Deputies that District Attorney O’Sullivan appointed. (Affidavit of Jan Hamilton, Pg. 2, lines 3-7).
c. Alternatively, Defendants exercised their authority without a known appointment, but under circumstances that would induce others to conclude that they were Deputy District Attorneys.
Defendants can also be found to be de facto officers applying the second standard, to wit, performing their duties without a known appointment, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry, to submit or invoke his action, supposing him to be the officer he assumed to be. Here, Defendants each took the Oath of Office for the office of Deputy District Attorney. (Defendants’ Request that Court Take Judicial Notice, Exhibit “1”, Affidavit of Jan Hamilton, Pg. 2, lines 21-26). Further, Defendants made criminal charging decisions, filed criminal complaints and presented evidence to fact finders such as the Sierra County Grand Jury. (Complaint for Damages, Paragraphs 7-9, 11). In other words, Defendants acted in such a way as would induce others to submit to their authority as Deputy District Attorneys.
The acts undertaken by Defendants served the vital public interest of upholding the law. Further, Defendants executed their duties under either under color of a known appointment, or without appointment, but under such circumstances that others would conclude that they were Deputy District Attorneys of Sierra County. Hence, Defendants were officers de facto and they are entitled to the same immunity afforded all prosecutors.
4.) Defendants status as Deputy District Attorneys can be inferred from Plaintiff’s own Pleadings.
Even if the court refused to take judicial notice of any document or fact in this case, Defendants status as Deputy District Attorneys can be inferred from the Plaintiffs’ own pleadings.
A judge deciding whether to sustain or overrule a demurer is guided by a number of general principals. Material facts alleged in a pleading are treated as true for the purpose of ruling on the demurrer. Gruenberg v. Aetna Ins. Co. (1973) 9 C3d 566, 572. The judge also takes as true facts that may be inferred from those expressly alleged. Harvey v. City of Holtville (1969) 271 CA2d 816.
In their complaint for damages, Plaintiffs allege that Defendants made criminal charging decisions, filed criminal complaints and presented evidence to fact finders such as the Sierra County Grand Jury. (Complaint for Damages, Paragraphs 7-9, 11). These are all functions of the Sierra County District Attorney and his or her deputies.
Further, Plaintiffs allege that Defendants took the actions complained of between May 2002 and February 2003, when the case was dismissed. (Complaint for Damages, Pg. 3, Line 14 through Pg. 4, Line 25.) Certainly, the Defendants could not have, over a period of nine months, taken a criminal case from its initial stages to fruition in Sierra County Superior Court unless they were Deputy District Attorneys.
Hence, there lies an extremely strong inference from the plaintiffs’ pleadings alone that Filter, Mejlszenkier, Patchett and Hedum were Sierra County Deputy District Attorneys.
Conclusion
The Oath of Office and the fact of Defendants’ having been sworn as Deputy District Attorneys are judicially noticeable under the evidence code. Further, Defendants’ status as Deputy District Attorneys can be easily inferred from the Plaintiff’s own Complaint for Damages. Defendants’ reiterate their request that their demurrer be sustained as to Plaintiffs’. First, Second and Third Causes of Action because Filter, Mejlszenkier, Patchett and Hedum enjoyed absolute immunity as prosecutors acting within their official capacity and because this immunity attaches to CDAA through the doctrine of respondeat superior.
Defendants also reiterate their request that the demurrer be sustained as to Plaintiff’s Third Cause of Action for failure to state facts sufficient to constitute a cause of action. Plaintiffs have pleaded none of the elements necessary to sustain a cause of action for interference with prospective business advantage.
 By SCOOP

06/04/2004  4:17PM

#4 Default
Filed May 10, 2004 Michael Miller enter default of defendant for non service
 By SCOOP

06/04/2004  4:16PM

#3 Original Sixteen to One Response to Demurer

I. INTRODUCTION
The Court may of course take judicial notice of certain matters. The issue here is what those matters are permissibly to be. Defendants ask the Court to take judicial notice of matters not permitted to be so or which are in fact patently false.
This lawsuit is, stripped of legal argot, about the defendants having allegedly engaged in unlawfully exploiting, abusing, making a mockery of the Office of the District Attorney, the judicial process, and causing serious damage to, among others, the plaintiffs.
In their arrogance, by this demurrer the defendants are attempting to do the same yet again.
II. THERE EXISTS NO JUDIALLY NOTICEABLE EVIDENCE
OF DEFENDANTS EVER HAVING LAWFULLY OCCUPIED THE OFFICE OF OR FUNCTIONED AS DEPUTY DISTRICT ATTORNEYS OF SIERRA COUNTY.

The defendants cite Dawson v. Martin (1957) 150 Cal.App.2 379 for the proposition that the defense of immunity provided by Gov. Code section 821.6 need not be pleaded as an affirmative defense by a government-employed prosecutor. That is true. But, as discussed below, that immunity is not available to the defendants, and that statute has no applicability to them.

1. Defendants' Purported "Oaths For the Office of Deputy District Attorney" Do Not Constitute Cognizable or Judicially Noticeable Evidence of Defendants' Having Ever Lawfully Occupied Such Offices.

Defendants request that the Court take judicial notice of documents filed with their pleadings each bearing the title "OATH," and identified as being "For the Office of DEPUTY DISTRICT ATTORNEY, SIERRA COUNTY." The affiant and signatory of each document is one of the defendants herein, and each document bears the signature and identity of the Sierra County Court Executive Officer, Jan Hamilton.
As will be discussed further infra, however. these "Oaths" are not "appointments" to any office whatsoever. Obviously, anyone could take an "Oath" to do and be anything, including a deputy district attorney or a space explorer. So what? Without a lawful appointment there is simply no position obtained. Nothing is stated, no language is contained in these "Oaths pertaining to the nature and scope of the duties and obligations, of either the affiants or the County, vis-a-vis the "Office of Deputy District Attorney." What is the meaning, the significance of these documents? What powers and what duties were acquired and imposed? What was the agreement? The documents reveal no such thing. The defendants in referring to these "Oaths" appear to be suggesting that they were thereby accorded unfettered prosecutorial powers within this entire County. But no such thing is mentioned in them. The defendants request that the Court interpret the documents and conclude that they constitute an agreement between the County and them which accords them awesome powers, including the power to place people in jail.
The controlling law has been long and well established:

A trial court may properly take judicial notice of the records of any court of record of any state of the United States. (Evid.Code, section 452, subd. (d)); Flores v. Arroyo, 56 Cal.2d 492, 496-497 [15 Cal.Rptr. 87, 364 P.2d 263].) But, as is stated in Jefferson, California Evidence Benchbook (1972) Judicial Notice, section 47.3, at page 840: "Caveat: Limitations on judicial notice of court records. What is meant by taking judicial notice of court records? There exists a mistaken notion that this means taking judicial notice of the existence of facts asserted in every document of a court file, including pleadings and affidavits. However, a court cannot take judicial note of hearsay allegations as being true, just because they are part of a court record or file. A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments."

Day v. Sharp (1975) 50 Cal.App.3d 904, 914, 123 Cal.Rptr. 918, emphasis added.

These documents, these "Oaths," are not orders, findings of fact, conclusions of law, judgments, or any other evidence of a judicial factual determination. This Court may take judicial notice of the documents' existence under Evidence Code section 452, but may not conclude that the rather strange language they contain is in fact true.
Defendants claim that they "were sworn as Deputy District Attorneys of Sierra County...by Sierra County Court Executive Officer Jan Hamilton...." (See, Defendants' Request That Court Take Judicial Notice of Defendants' Status as Deputy District Attorneys and That Government Code section 821.5 Provides Immunity From Suit to Prosecutors, p. 1, lines 27-27, emphasis added; Declaration of Gale Filter in Support of Defendants' Demurrer to Complaint, p. 1, lines 23-26.) Nothing in the "Oaths" suggests that the Court's Executive Officer Jan Hamilton conferred the rights, privileges, and obligations of the Office of Deputy District Attorney on any of the defendants, or had any right or power to do so. Defendants' claim, albeit implied, that Ms. Hamilton had such authority is simply unfounded, is odd. There is simply nothing in the documents to suggest in any fashion that the defendants were appointed deputy district attorneys of Sierra County, by Ms. Hamilton or anyone else.

Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (See Middlebrook-Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal.App.3d 1023, 1038, [96 Cal.Rptr. 338].) On a demurrer a court's function is limited to testing the legal sufficiency of the complaint. (Marina Tenants Assn. v. Deauville Marina Development Co. (1986), 181 Cal.App.3d 122, 127 [226 Cal.Rptr. 321].) "A demurrer is simply not the appropriate procedure for determining the truth of disputed facts." Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879 [138 Cal.Rptr. 426].) The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605, [176 Cal.Rrtr. 824].

Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374,228 Cal.Rptr. 878.

2. Defendant Gale Filter's Declaration Offered to Controvert the Factual Allegations of the Complaint Has Been Inappropriately Presented in Support of Defendants' Demurrer.

One of the defendants. Gale Filter, has offered his Declaration in support of the demurrer. He swears that the defendants became actual deputy district attorneys in Sierra County. But, again, there is nothing in Filter's Declaration to suggest that the Defendants were lawfully appointed, pursuant to law, to the office of deputy district attorney.
The same fundamental principles of law governing judicial notice apply to this Declaration. There is nothing about Gale Filter entitling his pronouncements to judicial notice or to be deemed beyond reasonable question by this Court. There is nothing about his pronouncements which permit a demurrer to be transmuted into an adversary proceeding because Filter has under oath claimed something to be true. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605, 176 Cal.Rptr. 824.

3. There Exists No Evidence of the Defendants Ever Having Been Appointed to Serve as Deputy District Attorneys in Sierra County.

Government Code sections 24101 and 24102 provide that a county or district officer may appoint deputies to assist in the discharge of his or her office. However, an appointee shall not act as such a deputy until, inter alia, "a written appointment by the deputy's principal is filed with the county clerk." "Shall" and "until" plainly mean what they mean.
Not surprisingly, no such written appointments of the defendants were ever filed with the Sierra County Clerk. See Declaration of Mary Jungi, Sierra County Clerk/Recorder and custodian of the Counties official records, filed herewith. The Court may take judicial notice of the contents of this County's Official Records, as reflected in Ms. Jungie's Declaration, pursuant to Evidence Code section 452(c)
Conclusion
The Defendants' demurrer, regrettably, is a legal and factual sham. It should be dealt with accordingly. Defendants are no strangers to misrepresenting fact and law to this Court.
Appropriate sanctions should be imposed.

Dated: May ______, 2004

Respectfully submitted,
__________________________
GEORGE R. GILMOUR
Attorney for Plaintiff
SIXTEEN-TO-ONE MINE, INC.
________________________
MICHAEL MILLER
Plaintiff in Propria Persona
 By SCOOP

06/04/2004  3:57PM

#2 CDAA Demurrer

CDAA Motion Demurrer
Superior Court of the State of California
County of Sierra
May 28, 2004
Case No. 6293

Memorandum of Points and Authorities in support of demurrer of Gale Filter, Denise Mejlszenkier, Anthony Patchett, Kyle Hedum and California District Attorneys Association to Complaint of Michael M. Miller and Original Sixteen to One Mine, Inc.
Introduction
Defendants Gale Filter (“Filter”), Denise Mejszenkier (“Mejlszenkier”), Anthony Patchett (“Patchett”), Kyle Hedum “(Hedum”), and California District Attorney Association (“CDAA”) each demurrer individually, and not jointly with any other party, to the Complaint of Michael M. Miller (“Miller”) and Original Sixteen-to-One Miner Inc. (“Sixteen-to-One”). Filter, Mejszenkier, Patchett and Hedum are and were Deputy District Attorney of Sierra County and entitled to immunity from suit for malicious prosecution and related causes of action pursuant to California government Code § 821.6. That immunity attaches to CDAA by virtue of the doctrine of respondent superior. Also, plaintiff’s Third Cause of Action does not state facts sufficient to constitute a cause of action for interference with prospective business advantage.
Background
On February 13, 2004, Plaintiffs filed a complaint against Defendants, alleging malicious prosecution, intentional infliction of emotional distress and interference with prospective business advantage.
Plaintiffs allege each cause of action on the same underlying course of conduct. Specifically, Plaintiffs allege that Defendants conspired to have felony criminal charges brought against plaintiffs with malice and in the absence of probable cause. Plaintiffs further claim that plaintiffs filed a criminal complaint against Defendants and concealed evidence from the Sierra County Grand Jury resulting in the return of a two-count felony indictment against plaintiffs.
Defendants are Deputy District Attorneys of Sierra County. They are, therefore, entitled to absolute immunity against suit for actions taken within the scope of their employment. California Government Code § 821.6; Falls v. Superior Court (1996) 42 Cal. App. 4th 1031, 1042-1043. Standard
When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, of from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading. Cal. CCP § 430.30(a).
Judicial notice shall be taken of the decisional, constitutional and public statutory law of [California] and of the United states. Cal. Evid. Code § 451(a).
Judicial notice may be taken of the records of any court of this state, to the extent that they are not embraced within Section 451. Cal. Evid. Code § 452(d)(1).
Judicial notice may be taken of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy, to the extent that they are not embraced within Section 451. Cal. Evid. Code § 452(h).
The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter. Cal. Evid. Code § 453.
Argument
1. Defendants have absolute immunity from claims for malicious prosecution and related causes of action.
California statutory law provides immunity for prosecutors, stating: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” Cal. Gov. Code 821.6. The defense of immunity need not be pleaded by an answer, but may be taken advantage of by demurrer. Dawson v. Martin (1957) 150 Cal.App.2d 379, 381-382.
When a quasi-judicial officer, such as a prosecutor, acts within his official capacity he, like a judicial officer, enjoys absolute immunity. This is true even if the acts committed by the prosecutor are alleged to have been done maliciously and corruptly. Falls v superior Court (1996) 42 Cal. App.4th 1031, 1042-1043. An absolute immunity defeats a suit at the outset, so long as the official’s actions were within the scope of the immunity. Id. At 1037. A prosecutor acts within his official capacity, for purposes of absolute immunity, when his conduct is an integral part of the judicial process or intimately associated with judicial phase of criminal process. Id. At 1044.
A. Defendants were public employees
Plaintiffs’ complaint alleges that Filter, Mejlszenkier, Patchett and Hedum filed a criminal complaint against Plaintiffs in the Sierra County Superior Court and presented evidence to the Sierra County Grand Jury. Implicit then, in the Complaint, is the fact that Filter, Mejlszenkier, Patchett and Hedum were Deputy District Attorneys of Sierra County. This fact is evidenced further by the Oaths for the Office of Deputy District Attorney, attached tot eh accompanying Request of Judicial Notice, indicating that Filter, Mejlszenkier, Patchett and Hedum were sworn by the Sierra County Court Executive Officer Jan Hamilton as Sierra County Deputy District Attorneys on August 23, 2002, June 11, 2002, October 28, 2002, and November 27, 2001, respectively. Defendants request that the Court take judicial notice of the Oaths For the Office of Deputy District Attorney pursuant to California Evidence Code §§ 452(d)(1) and 452(h) as the documents comprise records of the Sierra County Court. Defendants’ status as Sierra County Deputy District Attorneys is not reasonably indisputable accuracy. Defendants further request that judicial notice be taken under California Evidence Code § 453 as each party has been given sufficient notice of the request through these pleadings and the Court has been furnished with sufficient information to take judicial notice of the matter.
B. By prosecuting Plaintiffs, Defendants acted within the scope of their employment.
A Prosecutor acts within his official capacity, for purposes of absolute immunity, then his conduct is an integral part of the judicial process or intimately associated with judicial phase of criminal process, Hall at 1044.
Plaintiffs allege each cause of action – malicious prosecution, intentional infliction of emotional distress and interference with prospective business advantage – on the following underlying course of conduct:
1. Defendants “conspired and agreed upon themselves to without probable cause or other reasonable bases have felony criminal charges brought against plaintiffs”. (Complaint for Damages, Page 3, Paragraph 7).
2. Defendants filed a criminal complaint against Plaintiffs in Sierra County (Case No.CR 00632) charging Plaintiffs with violations of Penal Code § 192(b) (involuntary manslaughter) and Labor Code § 6425(a) (willful violation of occupational health or safety standard resulting in death) “in furtherance of said conspiracy.” (Complaint for Damages, Pages 3-4, Paragraph 8)
3. Defendants misled the Sierra County Grand Jury by concealing exculpatory evidence. (Complaint for Damages, Page 4, Paragraph 9).
4. The grand jury returned a two-count felony indictment against plaintiffs, charging them with violations of Penal Code § 192(b) and Labor Code § 6425)(a). (Complaint for Damages, Page 4, Paragraph 9).
5. Defendants acted without probable cause “in initiating the prosecution of plaintiffs in that they did not honestly, reasonably, or in good faith believe plaintiffs to be guilty of the crime (six) charged…” (Complaint for Damages, Pages 4-5, Paragraph 11).
Clearly, making charging decisions, filing complaints and presenting evidence to fact finders are integral parts of the judicial process or intimately associated with the judicial phase of the criminal process. Defendants’ actions, therefore, fall within the immunity created by Evidence Code § 821.6. This is true even in the face of Plaintiffs’ claims of concealment of exculpatory evidence by the defendants, as the alleged acts fall within the scope of employment.
In Randle v. City and Country of San Francisco (1986) 186 Cal.App.3d 446, the plaintiff, whose felony conviction was reversed because of newly discovered exculpatory evidence, brought an action against a prosecutor, a police officer and a municipality based on their suppression of the exculpatory evidence in the criminal trial. In sustaining the trial court’s demurrers without leave to amend as to all causes of action, save for one against the municipality, the appellate court stated that even the alleged act of suppressing evidence, either by the prosecutor or by the police officer, was clearly within the scope of employment of the individual respondents. Id. at 457. The district attorney and the investigating officer were both necessarily involved in handling the evidence in the case, the court stated. Id. That the complaint alleged improper conduct regarding the evidence did not alter the fact that the acts alleged fall within the scope of employment, the court held. Ld.
Turning to the case at bar, the act that forms the basis of Plaintiffs’ case is the alleged suppression of evidence. Handling evidence was clearly within the scope of the employment of Filter, Mejlszenkier, Patchett and Hedum and any alleged mishandling of the evidence also fell within the scope of that employment.
Finally, plaintiffs’ allegations that defendants “conspired and agreed upon themselves to without probable cause or other reasonable bases have felony criminal charges brought against plaintiffs,” also do nothing to overcome Defendants’ immunity.
A malicious prosecution is one begun in malice without probable cause to believe the charge can be sustained, White v. Brinkman (1937) 23 Call.App.2d 307, 313. A complaint for such prosecution is properly confined to a statement of those substantive elements. Id. Averments of conspiracy contribute no substantial increment to the cause pleaded. Id. Pleading such evidentiary averments add nothing material to the statement of the case, and are to be treated as surplusage. Id.
C. CDAA is Also Immune From Prosecution
CDAA is immune from prosecution fro the same reasons defendant prosecutors are.
Under the doctrine of respondent superior, the employer’s liability is wholly derived from the liability of the employee, and the employer cannot be held vicariously liable unless the employee is found responsible. Lathrop v. Healthcare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1423. Because the vicarious liability of the employer is wholly dependent upon or derivative from the liability of the employee, any substantive defense that is available to the employee inures to the benefit of the employer. Id.
Hence, the immunity that shields Filter, Mejlszenkier, Patchett and Hedum similarly shields CDAA.
2. Plaintiffs’ Third Cause of Action Fails to Allege the Elements of Interference with a Prospective Business
The Third Cause of does not state facts sufficient to constitute a cause of action for interference with prospective business advantage. The elements of the tort include (1) the existence of a prospective business relationship containing the probability of future economic rewards for plaintiff; (2) knowledge by defendant of the existence of the relationship; (3) intentional acts by defendant designed to disrupt the relationship; (4) actual causation; and (5) damages to plaintiff proximately caused by defendant’ conduct. (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 122, Cal.Rptr. 745, 537 P.2d 865.) The general wrong inherent in this tort is the unlawful interference with a business opportunity through methods that are not within the privilege of fair competition. (See 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 652, p. 740.)
None of the above listed elements have been plead by Plaintiffs.
Conclusion
Defendants’ demurrer should be sustained as to Plaintiffs’ First, Second and Third Causes of Action because Filter, Mejlszenkier, Patchett and Hedum enjoyed absolute immunity as prosecutors acting within their official capacity and because this immunity attaches to CDAA through the doctrine of respondent superior. Because handling and presenting evidence were within the scope of employment, allegations of concealing exculpatory evidence do not vitiate the privilege.
Further, the demurrer should be sustained on behalf of each defendant as to Plaintiff’s Third Cause of Action for failure to state facts sufficient to constitute a cause of action because Plaintiffs have plead none of the elements necessary to sustain a cause of action for interference with prospective business advantage.
WHEREFORE, Defendants pray for judgment as follows;
1. This demurrer be sustained and plaintiffs take nothing by their complain;
2. For costs of suit incurred herein;
3. For reasonable attorney’s fees: and
4. For such other and further relief as the Court may deem just and proper.

Defendants Gale Filter, Denise Mejlszenkier, Anthony Patchett, Kyle Hedum and California District Attorneys Association, in support of their Demurrer to Plaintiffs’ Complaint for Damages, request the Court to take judicial notice of the following:
1. Defendants request that the Court take judicial notice that FILTER MEJLSZENKIER, PATCHETT and HEDUM were sworn as Deputy District Attorneys of Sierra County on August 22, 2002, June 11, 2002, October 28, 2002 and November 27, 2001, respectively, by Sierra County Court Executive Officer Jan Hamilton, under California Evidence Code § 452(h) . The fact of Defendants’ status as Sierra County Deputy District Attorneys is not reasonably subject to dispute and is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Defendants further request that judicial notice be taken under California Evidence Code § 453 as each party has been given sufficient notice of the request and the Court has been furnished with sufficient information to take judicial notice of the matter.
2. Defendants request that judicial notice be taken of the attached signed Oaths For the Office of Deputy District Attorney, administered and maintained by Sierra County Court Executive Officer Jan Hamilton, pursuant to California Evidence Code §§ 452(d)(1) and 452(h). The documents comprise records of the Sierra County Court and the fact of Defendants’ status, as Sierra County Deputy District Attorneys is not reasonably indisputable accuracy. Defendants further request that judicial notice be taken under California Evidence Code § 453 as each party has been given sufficient notice of the request and the Court has been furnished with sufficient information to take judicial notice of the matter.
3. Defendant request that judicial notice be taken of California Government Code § 821.6, which states: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” This request is made under Evidence Code § 451, which provides that judicial notice shall be taken of the decisional, constitutional and public statutory law of [California] and of the United States.
 By SCOOP

06/04/2004  3:53PM

#1 Complaint Filed February 13, 2004.

MICHAEL M. MILLER
Post Office Box 941
Alleghany, California 95910
(530) 287-3223

Plaintiff in Propria Persona

GEORGE R. GILMOUR (SBN 62169)
6536 Arlington Boulevard
Richmond, California 94805
(510) 237-2800

Attorney for Plaintiff Original Sixteen-
to-One Mine Inc., a California corporation

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SIERRA
UNLIMITED JURISDICTION

Case No.6293
COMPLAINT FOR DAMAGES
AUTHORITIES IN OPPOSITION
TO DEMURRER OF GALE
FILTER, DENISE MEJLSZENKIER,
ANTHONY PATCHETT, KYLE
HEDUM, and CALIFORNIA
DISTRICT ATTORNEYS
ASSOCIATION

HEARING DATE: 5/28/04
TIME: 2:30 p.m.
DEPT: 1

MICHAEL M. MILLER and
ORIGINAL SIXTEEN-TO-ONE
MINE, INC., a California
corporation,
Plaintiffs,

vs.

GALE FILTER, DENISE
MEJLSZENKIER, ANTHONY
PATCHETT, KYLE HEDUM,
CALIFORNIA DISTRICT
ATTORNEYS ASSOCIATION,
and DOES 1 through 1621,
inclusive,
Defendants.
__________________________
Plaintiffs allege:
PRELIMINARY ALLEGATIONS
1. Plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC. is, and at all times herein mentioned was, a corporation duly organized and existing within the State of California with its principle place of business located in Sierra County, State of California.
2. Plaintiffs are informed and believe and thereon allege that each of the personally-named defendants are, and at all times mentioned herein were, attorneys at law, licensed to practice in the State of California, employees of defendant CALLIFORNIA DISTRICT ATTORNEYS ASSOCIATION, and residents of Sacramento County, State of California.
3. Plaintiffs are informed and believe and thereon allege that defendant CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION is, and at all times herein mentioned was, a non-profit corporation organized and existing within the State of California with its principle place of business located in Sacramento County, State of California.
4. Plaintiffs are ignorant of the true names and capacities of defendants sued herein as Does 1 through 1621, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities when ascertained. Plaintiffs are informed and believe and thereon allege that each of the fictitiously named defendants is responsible in some manner for the occurrences herein alleged, and that plaintiffs' damages as herein alleged were proximately caused by such defendants.
5. Plaintiffs are informed and believe and thereon allege that during all times herein mentioned each of the defendants was the agent and representative of each of the remaining defendants, in doing the things herein alleged, was acting within the scope of said agency, and that each of the defendants is thus jointly and severally liable for the damages suffered by plaintiffs.
FIRST CAUSE OF ACTION
6. Plaintiffs refer to and incorporate herein as though fully set forth Paragraphs 1 through 5, inclusive.
7. Plaintiffs are informed and believe and thereon allege that on or about May, 2002, defendants, and each of them, knowingly and willfully conspired and agreed among themselves to without probable cause or other reasonable bases have felony criminal charges brought against plaintiffs in the County of Sierra, State of California.
8. Plaintiffs are informed and believe and thereon allege that pursuant to and in furtherance of said conspiracy on June 12, 2002, defendants caused a complaint to be filed in the County of Sierra, State of California, against plaintiff MICHAEL M. MILLER and one Jonathan Farrell alleging that on November 6, 2000, at and within the County of Sierra, State of California, plaintiffs and said Farrell violated Section 6425(a) of the California Labor Code, to wit: violation of occupational safety or health standard, order, or special order causing death or permanent or prolonged impairment, when acting as an employer and as an employee having direction, management, control or custody of any employment, place of employment, or of any other employee.
9. Plaintiffs are informed and believe and thereon allege that on October 29, 2002, further pursuant to and in furtherance of said conspiracy, defendants, and each of them, wrongfully misled the Sierra County Grand Jury by inter alia concealing exculpatory evidence, to return a two count felony indictment against plaintiffs and said Jonathan Farrell, charging each of them with involuntary manslaughter in violation of Penal Code Section 192(b) and Labor Code Section 6425(a), to wit: that plaintiffs and said Farrell, while acting as the employer and as an employee having direction, management, control and custody of any employment, place of employment, and of another employee, willfully violated an occupational safety or health standard, viz., Title 8, California Code of Regulations Section 7010(e)(9-60), and that that violation caused the death of one Mark Fussell, an employee of plaintiffs.
10. On February 13, 2003, the Superior Court, County of Sierra, dismissed the charges against plaintiffs.
11. Plaintiffs are informed and believe and thereon allege that defendants, and each of them, acted without probable cause in initiating the prosecution of plaintiffs in that they did not honestly, reasonably, or in good faith believe plaintiffs to be guilty of the crime charged because there existed no substantial evidence of plaintiffs' negligence, inadvertence or other wrongdoing.
12. Plaintiffs are informed and believe and thereon alleged that defendants, and each of them, acted maliciously in instigating the criminal prosecution in that they knew throughout that they lacked any probable cause for doing so.
13. As a proximate result of the criminal prosecution initiated by defendants, plaintiff have been severely damaged.
14. Plaintiff are informed and believe and thereon allege that defendants' acts were willful, wanton, malicious, and oppressive in that they were undertaken and pursued without any reasonable grounds whatever. These acts therefore justify the awarding of punitive damages.
WHEREFORE, plaintiffs pray judgment against defendants, and each of them, as hereinafter set forth.
SECOND CAUSE OF ACTION
(Intentional Infliction of Emotional Distress)
15. Plaintiffs refer to and incorporate herein by reference Paragraphs 1 through 14, inclusive, as though fully set forth.
16. Plaintiffs are informed and believe and thereon allege that defendants' conduct was intentional and malicious and done for the purpose of causing plaintiff MICHAEL M. MILLER to suffer humiliation, mental anguish, and emotional and physical distress, and was conducted with a wanton and reckless disregard of the consequences to said plaintiff.
17. As a proximate result of the acts alleged above, plaintiff MICHAEL M. MILLER suffered humiliation, mental anguish, and emotional and physical distress, and has been injured in mind and body as follows: said plaintiff suffered, and continues to suffer, the consequences of the very real threat of having the remainder of his life physically, economically, socially and psychologically destroyed.
18. By reason of the acts alleged above, said plaintiff's ability to pursue his usual occupation as the chief executive officer of plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC.has been undermined, and he has lost significant income as a consequence.
19. The acts of defendants alleged herein were willful, wanton, malicious, and oppressive, and justify the awarding of punitive damages.
WHEREFORE, plaintiffs pray judgment as hereinafter set forth.

THIRD CAUSE OF ACTION
(Intentional Interference with Prospective Advantage)
20. Plaintiffs refer to and incorporate herein by reference Paragraphs 1 through 19, inclusive, as though
fully set forth.
21. Defendants' actions as herein alleged resulted in a severe undermining of the previously-sterling business reputation of plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC. and rendered said plaintiff's ability to continue in business nearly non-existent.
22. The aforementioned acts of defendants, and each of them, were willful, oppressive and malicious. Plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC. is therefore entitled to punitive damages.
WHEREFORE, plaintiffs pray judgment as follows:
On the First Cause of Action, to both plaintiffs MICHAEL MILLER and ORIGINAL SIXTEEN-TO-ONE MINE, INC.:
1. For general damages according to proof:
2. For exemplary and punitive damages;
On the Second Cause of Action, to plaintiff MICHAEL MILLER:
1. For general damages according to proof:
2. For exemplary and punitive damages;
On the Third Cause of Action to plaintiff ORIGINAL SIXTEEN-TO-ONE MINE, INC.:
1. For general damages according to proof:
2. For exemplary and punitive damages;
On all causes of action, to both plaintiffs MICHAEL MILLER and ORIGINAL SIXTEEN-TO-ONE MINE, INC.:
1. For costs of suit herein incurred; and
2. For such other and further relief as the court may deem proper.
February 12, 2004.
__________________________
GEORGE R. GILMOUR
Attorney for Plaintiff
SIXTEEN-TO-ONE MINE, INC.
_________________________
MICHAEL MILLER
Plaintiff in Propria
Persona
 By Oak

05/24/2004  10:51AM

First of all congratulations to Mike for trusting his instincts/feelings for smelling the rat in the first place - because now it looks as if the rats are scurrying for their holes. I am looking forward to the annual meeting and an update on the latest and greatest news concerning yet another battle of the little putting one over on the big guy.
 By Rick

05/23/2004  11:07PM

The recent article that appeared in the Mountain Messenger, also on this web-site where I first read it, addressed the current statis of the civil suit brought against the CDAA by the Original 16 to 1 Mine, for damages incurred while the CDAA fraud tried to persist.

While most recent discussions on this forum have centered around Fed-monetary-policy, (extremely valid discussion, one I'm intrigued by and learn from all related site-citations), there is an absence of perspective from the regulars here....so I implore you all to chime in, after me, since I'm the first to bite it off, and get the juices flowing.

I think the CDAA bit off more than they thought they could chew, knowing they were immune; which turned out to be thinking they were immune from civil action. This has never been tested in court, and will be, since never before has a vigilante "legal" force maskerading as an appointed-body-representing-jurisdiction been taken to task, challenging a stated body of law and court records with lies and deceit, which the CDAA has been exposed for doing.

And now, there needs to be accountability.

Lawyers are valuable when the cause is just. In this case the cause was fraud, politically motivated fraud, a vigilante wild-cat attempt to dismantle and re-define a shut-case. Now we must have accountability, or there's no stopping the lynch-mob.

I hope you all chime in.
 By gfxgold

05/09/2003  12:33AM

In response to the two forum entries by Gold Master. The first being on 05/07/03. I figured that these were the suggestions and observations of a well meaning individual who had no first hand knowledge of the Alleghany mining district. The mining plan that was suggested might be fine in Canada or "Down Under" or even Arizona. In Alleghany, it would be the equivalent of putting a core drill on the roof of your house, drill every five feet and try to find grapefruit!!! As for management organazation and protection, there could be some merit in those suggestions but, that's up to the "Sixteens" officers. As for the entry of 05/08/03 (which follows this one) well... It flat ticked me off! Are you sure that you don't work for the CDAA? If you can't run your business and apply a little shoe leather to somebody's tail feathers who tried to ruin your business and everything around you, then you don't belong in business! I think that Gold Master's take on the whole CDAA situation is just a little too goody-goody for me. There were some people who attacked this country a short time ago who thought that there wouldn't be anything that we could do about it. That's not the American way. I think Gold Master should change their name to Gandhi. As for the rest of Gold Masters "Armchair Quarterbacking," I'm sure Mike Miller would probably say (not trying to put words in your mouth Mike) "Been there, done that!" As a finishing statement I would like to submit the mining plan that has been used for over one hundred years In Alleghany, and it still works today. "Less talk. Break more rock!"
 By bluejay

04/30/2003  5:34PM

Return? The website is reflecting an 80 cent bid. Not too long ago the stock traded at 20 cents. I call that progress. This is a significant increase in the value of our shares. For the past years the high end of the share's trading range was just above 50 cents. Obviously, the new buyers have confidence in management.

The recent attack by the CDAA has cost the Company its reputation to do any current refinancing. This has impacted the president's plan to open up the Red Star property for development.

Michael Miller saved the Company thousands of dollars in legal expense through his innovative approach to cost cutting while not degrading the quality of its defense. Has anyone thanked him?

I can assure shareholders that there are competent people in the Company, and along with certain other shareholders, that are giving their experience and time that should make the difference in moving us ahead.

For people who think they hold a stock with little return, I can only direct your attention to the fate of millions of people who invested in the NASDAQ stocks in the late 90's.

Our Company, aside from the distractions from the the CDAA and governmental agencies and the lack of operating cash, may have been one of the best performers compared to all of the other stocks that people were buying as the old century came to its close.

People should be aware of the fact that Michael Miller saved this Company and your investments in it by tenanciously beating back the CDAA with the aid from two sympathetic and brilliant attorneys.
 By bluejay

01/11/2003  6:51PM

Rick
I thought your last piece was excellent. Your contributions along with your inspiring insight bring creditability to the Forum and they are most educational. Thanks
 By Rick

01/08/2003  7:58PM

Hey there.

Now that we've endured the 2003 Diversion.....Today's G. Davis State-of-the-State-Show, during which he's 'warned' us (the private-sector-producer side of the equation) of the severity of the issue, I've got a SCOOP.

Let's state publicly, whether through a press conference, an editorial, perhaps even an embarassing public open letter to the Lord Gov Himself how it works:

Stifle chance, stifle success; And while you're at it forget whatever revenue is gained through any tax levied against the successful endeavor.

Here's a great illustration: Let's have G. Davis and the Original Sixteen to One Mine square off on a game-board, both sides standing there with bare hands. Next, allow each side equal access to an undeveloped garden plot, say 30 feet by 30 feet, each without gophers or moles or other undefined pests, yet, both plots must pay a tax based upon whatever production results from the endeavor. (G. Davis would try to say the more flowers come up, the more you owe.)

Allow that each side has a green light to plant anything: plant flowers, or veggies, or weeds for that matter, and in ten weeks present flowers or veggies or weeds (anything that's been undertaken) at the next State-of-the-State-Show.

G. Davis: Tax the results.

Now, if nothing's planted, there's no tax. But if some flowers come up, or God forbid some marketable comodity, why, there's a tax.

And some new rules about planting flowers. And more rules about which flowers to plant (some people might not like the flowers you decided to grow.) And then a Flower Regulation Commission to regulate the unfair way you didn't plant flowers, like the guy who let his chance to plant flowers peter out so that the Commission could regulate the unfair way you planted flowers.

Oau: "Actually, we discovered something, not planting flowers, they just came up on their own. All we were doing was checking out our opportunity, decided instead to dig a little deeper, and look what we found: gold."

"Not, fair. You cheated."

"We did...how?"

"We didn't look for gold in our garden. Maybe if we had a gopher, and a gopher hole, maybe we did, but hey, gophers are protected. So, we aren't looking down gopher holes for your exploitation crap, so it's unfair: You're now under suspicion for not only breaking the rules of gardening, also taking advantage of gopher holes and whatever's inside them, especially if a quartz deposit has gold in it, that's what rules have been broken. Now we're going to quit this experiment, not only that but regulate garden development: (....throw the game-pieces around the room, turn over the Monopoly Board) and make you clean it up."

"But, our garden has flowers, and there's gold underneath, which generates revenue to the treasury, those taxes we were talking about. How much revenue are you sending to the treasury, your garden still sitting there undeveloped?"

"Unfair: ours doesn't have flowers, or gold."

"You haven't even looked! You haven't even turned the ground! You didn't plant any seeds, being all busy watching us plant ours; we have flowers, wish you did too. In fact, if you'd try and can't produce any flowers, come over: we've got some you can buy. Even give them to you if you can't afford it. BUT...."

"But what?"

"You have to try."

"Unfair!! Unfair again. To make sure we all have flowers, next time you try to take advantage of us, (planting seeds both had), we'll make sure this never happens again. Flowers are just for rich people, on their tables."

And so this is where we are.

Given the G. Davis Administation's dependence on revenue, ask this question:

Where would success be, if no one planted any seeds?
 By Glorian

01/01/2003  1:11PM

Although the Stella Awards may exist, the awards given as noted are for fictional events and are being emailed I believe for fun. Who's laughing? You can check this out yourself by researching the town's press or court system; or checking website's such as truthorfiction.com or about.com, etc. Don't believe everything you read!
 By Michael Miller

12/27/2002  7:27PM

I received the following letter from a thirteen year old shareholder. If a 13 year old can figure out America's single biggest problem affecting the quality of our lives, what is wrong with our politicians, our judicial system, our leaders and ourselves?

"In my opinion there are far too many Lawyers in our country. As a result, people are being sued for th most ridiculous things.
There is now a yearly award given for the outrageous lawsuit named after 81-year- old Stella Liebeck. It all started when Stella spilled coffee on herself and successfully sued McDonalds. This case inspired the Stella Awards for the most successful lawsuits in the United States.
Kathleen Robertson of Austin, Texas, was awarded $780,000 by a jury of her peers after breaking her ankle tripping over a toddler who was running inside a furniture store. The owners of the store wewe surprised at the verdict, considering the misbehaving little toddler was Mrs. Robertson's son!
Terrence Dickerson of Bristol, Pennsylvania, was leaving a house he had just finished robbing by way of garage. He was not able to get the garage door to go up since the automatic door opener was not working. He couldn't reenter the house because the door connecting the house and garage locked when he pulled it shut. The family was on vacation, and Mr. Dickson found himself locked in the garage for eight days. He lived off a case of Pepsi he found and a large bag of dry dog food. He sued the homeowner's insurance claiming the situation caused him "mental Anguish". The jury agreed to give him $500,000.
A Philadelphia restaurant was ordered to pay Amber Carson of Lancaster, Pennsylvania, $113,500 after she slipped on a soft drink and broke her tailbone. The beverage was on the floor because Ms. Carson had thrown it at her boyfriend 30 seconds earlier during an argument.
This year's favorite could easily be Mr.Merv Grazinski of Oklahoma City, Oklahoma. Mr. Grazinski bought a brand new 32-foot Winnebago motor home. On his first trip home, driving onto the freeway, he set the cruise control at 70 mph and calmly left the drivers seat to go back and make himself a cup of coffee. Not surprisingly, the R.V. left the freeway, crashed and overturned. Mr. Grazinski sued Winnebago for not advising him in the owners manuel that he couldn't actually do this. The jury awarded him $1,750,000 plus a new motor home. The company actually changed their manuals, just in case ther were any other complete morons buying their recreation vehicles.
And people wonder why lawyers are so rich and insurance rates are so high."
 By Rick

12/20/2002  8:55PM

For years now, through clever diversion tactics, imposing shut-downs, questionable citations, politically appointed bodies of law, eventually the CDDA and now inconvieniently (for him) back to the G. Davis administration's need to finally address the obvious, without another bill to defer responibility: The Original Sixteen to One has real logistical and stable ground upon which to stand, than what the G. Davis politically appointed quicksand can support.

Whether or not the imbedded Bench feels the bottom of the pit remains to be seen. So . . .we keep an eye open to truth (always the truth,) and watch for the next move.

However, given the fiscal predicament now facing the G. Davis administration's limited longevity (temporarily preventable should it entertain progressive economic policy, i.e. private sector autonomy,) we wonder if no-one will show up for the show-down.

Dismissal would be sweet; defeat will be even better.
 By bluejay

12/03/2002  1:37PM

"No man's life, liberty, or property is safe while the legislature is in session."

Mark Twain

Page 1 | Page 2 | Page 3 | Page 4 | Page 5 | Page 6 | Page 7 ]

 

  
 
© 2020 Original Sixteen to One Mine, Inc.
PO Box 909
Alleghany, California 95910
 

Phone:   
Fax:
E-mail:
 
(530) 287-3223      
(530) 287-3455
corp@origsix.com
 

      Gold Sales:  


(530) 287-3540

goldsales@origsix.com
 



Design & development by
L. Kenez