Metropolitan News-Enterprise


Monday, February 26, 2018


Page 1


Ninth Circuit:

No Jurisdiction to Dismiss Case for Lack of Jurisdiction

Says Magistrate Judge Powerless to Axe Case of Attorney Convicted on Animal Cruelty Because the Unserved Defendants Had Not Consented to Art. I Jurist


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals—acting in the case of an attorney placed on interim suspension by the State Bar of California following a felony animal cruelty conviction based on housing nearly 100 cats in her home—has held that the District Court for the Northern District of California lacked jurisdiction to dismiss the case for lack of jurisdiction.

Magistrate Judge Laurel D. Beeler, in pre-screening the case, which was required because attorney Jan Van Dusen had filed the appeal in forma pauperis, dismissed it for lack of subject matter jurisdiction under the Rooker-Feldman doctrine because it was an impermissible de facto appeal from a state court judgment. However, a three-judge Ninth Circuit panel said, the defendants—who had not yet been served—had not consented to the matter being heard by a magistrate judge.

Under Thursday’s decision, which came in a memorandum opinion, Beeler is at liberty to reinstate the dismissal, but only after Catherine D. Purcell, presiding judge of the State Bar Court, and other defendants connected with the State Bar, have been served with the complaint and given the opportunity to decline to allow an Article I judge to handle the matter.

Memorandum Opinion

The unlikelihood of defendants in an action that had been dismissed by a magistrate judge objecting to further proceedings before that magistrate judge was not discussed by the opinion. It says:

“Van Dusen consented to proceed before the magistrate judge….The magistrate judge then screened and dismissed Van Dusen’s action before the named defendants had been served….Because all parties, including unserved defendants, must consent to proceed before the magistrate judge for jurisdiction to vest..., we vacate the magistrate judge’s order and remand for further proceedings.”

The opinion cites the Ninth Circuit’s Nov. 9, 2017 opinion in Williams v. King in which, rejecting a contrary view of the Fifth Circuit, the appeals court agrees with a defendant that “the absence of consent from the unserved defendants deprived the magistrate judge of jurisdiction to dismiss his complaint.”

Purcell’s order pre-dated Williams. It came on Oct. 27, 2016.

Thursday’s opinion came in Van Dusen v. Purcell, 16-16983. The three-judge panel considering the matter was comprised of Senior Judge Ferdinand Francis Fernandez and Judges Edward Leavy and Mary Helen Murguia.

 2011 Raid

Van Dusen’s home was raided on Oct. 27, 2011 by Oakland authorities and 93 cats and two dogs were seized, with 18 of the cats soon being euthanized. Eleven dead cats were found in a freezer..

The lawyer attributed unsanitary conditions to a diarrhea epidemic. She told the San Francisco Chronicle:

“I was so angry when they took the cats. I couldn’t believe it. Most of the cats were in good shape, and a lot of them were my personal pets. They had no right to take them.

“Things were mostly under control. They killed some of my favorites, which they had no right to do.”

Van Dusen was charged with animal cruelty and was convicted after a court trial. Alameda Superior Court Judge Gloria Rhynes on July 25, 2014 suspended imposition of sentence and placed Van Dusen on five years of probation, a condition of which was that she be barred from keeping or caring for animals for a period of 10 years.

Rhynes said Van Dusen is “in real denial about her culpability and what conditions she allowed to be created” and “needs to be away from animals.”

The conviction was affirmed by the Court of Appeal on Sept. 15, 2016, in an unpublished opinion. Justice Kathleen M. Banke of the First District’s Div. One wrote:

“Defendant contends there is insufficient evidence she was consciously indifferent about the cats’ well-being. Defendant’s subjective belief she was not harming, but even helping the cats, however, is not germane if there is evidence she should have been aware her conduct was a severe departure from a standard of reasonable care and created a high risk of harm.

“There is substantial evidence defendant should have been so aware.”

State Bar Charges

The Office of Chief Trial Counsel on July 11, 2014, brought a charge in the State Bar Court based on Van Dusen’s felony conviction, indicating that the crime “may or may not involve moral turpitude” or implicate “other misconduct warranting discipline.”

The State Bar Court Review Department on Aug. 5, 2014 placed her on interim suspension effective Aug. 20; she filed a petition to vacate the interim suspension; the order was stayed so that the full Review Department could consider her petition; on Aug. 28, the petition was denied, the temporary stay was lifted, and the suspension was put into effect as of Sept. 12.

Van Dusen’s case remains pending in State Bar Court. A settlement conference is scheduled for March 2, a pre-trial conference for March 5, and a four-day formal hearing starting March 13.

Alleges Conspiracy

In other litigation, the U.S. District Court for the Northern District of California on April 20, 2015, dismissed Van Dusen’s claims against the City of Oakland and others based on the contention that a conspiracy among Oakland officials resulted in an unlawful raid on her home and seizure of her cats.

District Judge Haywood S. Gilliam Jr. said that under the U.S. Supreme Court’s 1994 decision in Heck v. Humphrey, a federal civil rights action may not be brought based on a state court conviction unless “the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determinations, or called into question by a federal court’s issuance of a writ of habeas corpus.”

The district court declared that Van Dusen’s allegations “constitute impermissible collateral attacks on Plaintiff’s conviction for animal cruelty,” adding:

“It is telling that much of the substance of Plaintiff’s Opposition is devoted to arguing that the October 2011 seizure of her animals, and the investigation leading up to it, were illegal—exactly what Heck dictates may not be relitigated in federal court.”

The Ninth Circuit on Feb. 27, 2017, affirmed, holding that the district court was correct that the action was “Heck-barred because success on these claims would necessarily imply the invalidity of her conviction, and Van Dusen failed to allege that her conviction has been invalidated.”

The District Court on Sept. 2, 2016, found it had no jurisdiction over Van Dusen’s protest to a condition of probation that she obtain mental counseling because such services were not being provided at no cost.

In 2011, the U.S. Tax Court held that Van Dusen could take a deduction for her expenses in caring for 70 stray cats. A column in Forbes the following year said the “Cat Lady” was “nationally famous—in the tax world anyhow.”


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