At that time, I promised to go through the mountain of pleadings and to publish my analysis of it on this blog.
I am starting to do it.
This blog is just the analysis of 3 pleadings:
(1) the complaint of the City of San Francisco and Santa Clara County;
(2) S-F's motion for a preliminary injunction against the Executive order; and
(3) President Trump's opposition to that motion.
We already know that the S-F motion for a preliminary injunction was granted by Judge William Orrick III.
There were a lot of celebratory comments about that decision.
Yet, reading the pleadings of the City of San-Francisco - just the pleadings, without the opposition or Judge Orrick's order on that motion - even a 2nd year law student (that's when Evidence is usually taught in law schools) must inevitable come to a conclusion that the injunction could not possibly be granted, because the pleadings were not only woefully legally insufficient, but give an impression of amateurish drafting, and drafting pitched at emotions, feelings and political affiliations and leanings of the judge, and not at any kind of legal standards.
First of all, the lawsuit by San-Francisco is a so-called "pre-enforcement" lawsuit - no monies were yet yanked from San-Francisco because it is a self-proclaimed sanctuary city, and has been so since 1987, according to its own pleadings.
Pre-enforcement actions are usually dismissed left and right because of a failure to establish the "plausible risk" of constitutional violation in the future.
Here, the Executive Order of the President has a 1-year horizon during which the U.S. Justice Department and the U.S. Attorney General must first promulgate some regulations and then undertake some steps based on those regulations before any threat to S-F's budget will even surface.
So, it is obvious that S-F was safe as to this year's budget, and the only reason for the lawsuit was to "challenge Trump at every opportunity" - lawful or unlawful, meritorious or baseless.
Since S-F was safe as to this year's budget, there was no basis for a pre-enforcement action, and it should have been dismissed, with sanctions and attorney fees against S-F, paid out of the pockets of its taxpayers.
Since a motion for a preliminary injunction turned on the "likelihood to prevail on the merits", and the lawsuit is frivolous from the pre-enforcement point of view alone, no preliminary injunction could be granted either.
But, there is more.
S-F claimed as its only "constitutional injury" a threat of economic harm, specifically, the alleged risk of yanking of the federal funds - 1.2 BILLION dollars annually we all are paying out of the federal budget to S-F for supporting the illegal alien population.
According to established precedents - that was pointed out in President Trump's opposition to the motion for a preliminary injunction - a threat of only economic harm is not enough to establish a constitutional violation.
Moreover, all precedents cited by the City of S-F in its favor on the issue of constitutional injury, were cited incorrectly (and, obviously, knowingly incorrectly, since the City of S-F is represented by professional attorneys who should know what they are doing), because those precedents were asserting harm to individuals of personal nature (excessive force etc.), not harm to cities of financial nature.
Additionally, any 2nd year law student knows that pleadings of a lawyer have no evidentiary value, only the testimony, or written sworn affidavits of witnesses do.
Not only that, but supporting affidavits of witnesses must answer to a certain standard, too.
There is what is called "the best evidence rule", applied in both state and federal courts equally. The "best evidence rule" dictates that whenever a witness is talking about a document, the witness's statements about the document are inadmissible without, first, admitting an original or certified copy of the document the witness is testifying about.
Even though the federal "best evidence rule", FRCP 1002, is restricted by FRCP 703 (expert evidence), where the basis of expert testimony do not have to be excluded, and even though all declarants who filed sworn declarations in support of S-F motion for injunctive relief would qualify as experts by their training and experience, there was one major disqualification that made FRCP 703 inapplicable - lack of expert neutrality. All declarants were part of the Plaintiff, on salary from the Plaintiff, dependent for their continued employment with the Plaintiff, and had a stake in the outcome of proceedings, as the city of S-F was claiming that salaries of its personnel were to be cut if the President's EO was not to be stopped.
Moreover, to skip the best evidence rule requirement of FRCP 1002, expert statement must satisfy not only FRCP 703 and the due process requirement of expert neutrality, but also should satisfy FRCP 702:
S-F in its motion did not even care to establish that it satisfied FRCP 1002, 703 or 702, it just added declarations from interested witnesses (salaried City employees and officers) who pointed out at contents of documents without providing A SINGLE DOCUMENT that they were referring to.
Judge Orrick, in finding that the Plaintiffs (City of S-F and Santa Clara County), satisfied their "burden" of demonstrating, BY CLEAR AND CONVINCING EVIDENCE (that's the standard for preliminary injunction) that the stay - nationwide stay - should be imposed, apparently threw away the Rule book of Federal Procedure, because there was not only no "clear and convincing" evidence presented by Plaintiffs in support of their motion, but no ADMISSIBLE evidence whatsoever.
Instead, Judge Orrick accepted as "clear and convincing evidence" the "slightly hysterical" (not my characterization, but one by another legal commentator of those same pleadings) lamentations of the City employees that had nothing to do with satisfying the elementary pleadings standards and rules of federal civil procedure.
Since Judge Orrick did not follow the elementary rules of Federal Procedure and disregarded pre-enforcement standing requiring ripeness (which was not there, there was no threat of imminent denial of funds for this year's budget) and an imminent threat of constitutional injury (and purely economic harm could not constitute that injury), and accepted as "clear and convincing evidence" lamentations of interested witnesses of the City of San Francisco that were not even admissible evidence under the federal best evidence rule FRCP 1002, and failed to qualify under expert evidence rules, FRCP 702 and 703 - Judge Orrick obviously had reasons other than furthering his oath of office when he, nevertheless, not only granted a preliminary injunction to S-F, but made it nationwide.
As a result, all of us, American taxpayers, are made hostages of the extremely rich - and spoiled - public officials of the City of SF, a city where the cost of living is exorbitant, to pay for that cost of living of illegal aliens, because all of American taxpayers have to contribute, as captives, to federal coffers under the threat of criminal FELONY prosecution.
So, we have to pay in, otherwise we will be charged with a federal felony.
Yet, those who harbor illegal aliens (a federal felony) and knowingly not report such harboring (another federal felony, 18 USC 4) - get to receive the funds forcibly extracted out of all of us in order to fund their illegal activities.
And, a federal judge, supposedly furthering his oath to support and faithfully apply federal laws, blocks enforcement of federal laws, and blocks discretionary disbursement of funds by the federal government - on 10th Amendment grounds no less.
You know what the 10th Amendment is about?
The State's right to take care of safety and health of their citizens without interference from the federal government.
But, the City of S-F and the County of Santa Clara, and those cities and counties that supplied the amicus briefs in support of the injunction against the President, do not claim that they are blocked from discharging their duties.
They are claiming that somehow the federal government owe them a duty to FINANCE the states' "independent" 10th Amendment duties.
Well, that is simply not so.
If states have independent 10th Amendment right and duty to protect safety and health of their citizens, the states have to be able to provide their own financing of those duties, independently of any outside source.
And, since the imposed injunction is nationwide, one more glaring question also comes to mind - how did a nationwide injunction happen in an action which is not a class action?
Judge Orrick claimed that a nationwide injunction is appropriate when a law is facially unconstitutional.
Yet, facial constitutionality is extremely difficult, nearly impossible to establish, and requires to establish that under NO CIRCUMSTANCES the challenged law and statute can be lawful.
S-F claimed in its own pleadings that it is not clear for them, which funds are going to be targeted for prohibition, and the Executive Order itself directs federal agencies to promulgate additional rules that will further state which funds are going to be prohibited to sanctuary cities, if at all. Moreover, the Executive Order clearly states that the funds will be withheld "in accordance with federal law".
Under such wording, the Executive Order is not "facially" unconstitutional, and the nationwide injunction is, thus not appropriate and not legal.
As to a class action, S-F did not designate the lawsuit as a class action in the caption and did not apply for class certification. Throwing a heap of amicus briefs from other jurisdiction at the court does not substitute for lack of designation as a class action.
So, is it a political action by Judge Orrick under the guise of a court order?
There is no doubt about it.
Will Judge Orrick be impeached for that?
We'll see, but he should be.
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