No.

04-1687

IN THE
SUPREME COURT OF THE UNITED STATES

__________

ROBERT M. DAVIDSON and

VANESSA E. KOMAR,
Petitioners
v.

VIVRA INC,
MICHAEL J. MEEHAN,
QUARLES BRADY STREICH LANG LLP,
et al
Respondents

__________

On Petition For Writ Of Certiorari

As to Two Final Judgments of the Ninth Circuit
United States Court of Appeals

___________

SUPPLEMENTAL BRIEF

___________

ROBERT M. DAVIDSON
Petitioner Pro Se
1009 N. 4th Street, Ste. B
Longview, TX 75601
903-758-1900
 1

SUPPLEMENTAL BRIEF
Petitioners [referred to herein as “Davidsons”] submit this
supplemental brief pursuant to this Court’s Rule 15.8, while
petition for writ of certiorari (U.S. Supreme Court Docket Case #
04-1687) is pending, so that attention may be called to new cases
and “other intervening matter” not available at the time of initial
filing [see Issue #2 below, paragraphs 1 and 2].
[ABBREVIATED] STATEMENT OF THE CASE
Albany County Case # 2960-91, settled on January 10, 1996,
in Albany, NY provides irrefutable evidence of pattern of
misconduct and overt acts of conspiracy by the Grossmans, and
others, acting in concert. The FDA Tucson EIR (Establishment
Inspection Report) of 5/5-6/28/99, also provides irrefutable
evidence of pattern of misconduct and overt acts of conspiracy by
the Grossmans and others, acting in concert. Both Vivra Inc and
the Grossmans had “unclean hands” when they recruited
(fraudulently induced) Davidson’s employment in Tucson, AZ in
September of 1998. The conspiracy to defraud by the federal court
defendants, began in Albany, NY. It should have been stopped in
Albany, NY by state and/or federal regulators. The Davidsons
bore the consequences of the conspiracy in Tucson, AZ. Because of
his belief in the AMA Principles of Medical Ethics and Oath of
Hippocrates, Davidson “blew the whistle” on Grossman in April 14,
1999, in his letter to Dr Antoine El Hage of FDA.
The final judgments of the U.S. District Court dismissing
Davidsons’ federal causes of action [in both federal court
proceedings CV-03-00110-FRZ and CV-03-00580-FRZ] under
Younger doctrine were clearly erroneous. The federal court
dismissals should be reversed, consolidated, and remanded for
trial. This Court may vacate the dismissals on any ground
supported by the record, including the issues raised on appeal to
the Ninth Circuit (Docket 03-17342 and Docket 04-15304) and the
issues found in Davidsons’ Petition for Writ of Certiorari before
Judgment (U.S. Supreme Court Case 04-537, cert. denied) filed on
September 17, 2004.
I. Davidsons’ request for compensatory damages should
have precluded dismissal under Younger doctrine
Davidsons’ federal causes of action sought damages under
18 USC Section 1964(c) and 42 USC Section 1983. This Court has
not explicitly decided whether the Younger abstention doctrine
covers actions for damages as well as equitable relief with respect
to 42 USC Section 1983 claims and 18 USC Section 1964(c)
claims. See Gilbertson v. Albright, 381 F.3d 965, Canatella v.
 2

California, 404 F.3d 1106, and Marran v Marran, 376 F.3d 143.
Davidsons requested compensatory and punitive damages in their
Original Complaint to the U.S. District Court against MJM and
QBSL. See Appellees’ SER Volume 2, Tab 21 at pages 502-505, in
Ninth Circuit Case 03-17342. Davidsons also requested
compensatory and punitive damages in their Original and First
Amended Complaint to the U.S. District Court against Vivra Inc,
et al. See Appellees’ SER Volume 1, Tab 1 at pages 331-332, in
Ninth Circuit Case 03-17342. Davidsons now have no competent
forum [see Issues #2 and #3 below], either state or federal, in
which to timely raise their federal Constitutional concerns.
Comity [the evolving concept of our Federalism] goes too far if it
gives inadequate attention to federal interests. DeSpain v.
Johnson, 731 F.2d 1171 (1984).
II. Dismissal was inappropriate because Davidsons’
allegations stated a constitutional claim against their
privately-retained attorney and his law firm
Structural Bias in the State Court Proceedings
Petitioners have recently learned that MJM was
candidate for several vacancies on the bench of the Arizona
Court of Appeals (Division II) and Arizona Supreme Court
from 2002 to 2003, during the time when Davidsons’
interlocutory appeal and petition for review was before the
Arizona appellate courts. See newspaper article from the April
15, 2002, issue of the Tucson Citizen, entitled “7 Tucsonans up for
high court seat”. See December 2002, Volume 22, Number 12, page
1, issue of the Maricopa Lawyer. See May 2002, Volume 22,
Number 5, page 1, issue of the Maricopa Lawyer. See January
2003, Volume 23, Number 1, page 1, issue of the Maricopa
Lawyer. See April 8, 2002, and April 25, 2002, press releases,
downloaded from the archives of the Arizona Supreme Court,
entitled “15 Applicants Apply for Arizona Supreme Court Position”
and “Public Input Sought on Candidates for Supreme Court”,
respectively.
Petitioners have also recently learned that MJM
served as law clerk to then Associate Justice William H.
Rehnquist of the U.S. Supreme Court (1971), MJM was
president of the American Academy of Appellate Lawyers,
and MJM was a member of the Advisory Committee on
Appellate Rules.. See September 27, 2003, issue of the Tucson
Citizen. See Minutes of Fall 1999 Meeting of Advisory Committee
on Appellate Rules on October 21 & 22, 1999, in Tucson, Arizona.
These facts are readily verifiable because copies of the
newspaper press releases from 2002-2003 can be found and
downloaded directly from the Arizona Supreme Court
internet website. Copies of the newspaper articles can be
 3

obtained from archive departments of the Maricopa Lawyer

and the Tucson Citizen. These facts provide this Court with
more than just vague conclusory allegations of structural
bias in the Arizona judicial system. The Arizona judicial
system is institutionally-biased. There exist circumstances
in the State court proceedings indicating a probability of
bias too high to be constitutionally tolerable.
“To perform its high function in the best way, justice must
satisfy the appearance of justice”. See Republic Party of Minnesota
v. White, 122 S.Ct. 2528, at page 31, quoting In re Murchison, 349
U.S., at 136, 75 S.Ct. 623, quoting Offutt v. U.S., 348 U.S. 11, 14,
75 S.Ct. 11. “The legitimacy of the Judicial Branch ultimately
rests on public faith in those who don the robe”. See Mistretta v.
U.S., 488 U.S. 361, 407, 109 S.Ct. 647.
Davidsons assert that the State Court proceedings
themselves violated Davidsons’ constitutional rights. Submission
to a fatally biased adjudicator constitutes ongoing, independent
injury that requires immediate judicial relief. This Court has
considered recusal mechanisms ineffective where, as here,
Petitioners allege structural bias that would not be addressed by
the substitution of particular adjudicators. The Arizona judicial
system does not measure up to the yardstick of what an impartial
adjudicator should be in accordance with Due Process. Davidsons
have suffered and continue to suffer ongoing irreparable injury,
which is both great and immediate, in the Arizona court system.
Younger abstention doctrine is subject to bias exception when core
constitutional values are threatened during ongoing state
proceedings, and there is showing of irreparable-harm that is both
great and immediate. The unavailability of interlocutory
review of Davidsons’ Due Process claim in State courts
represents a strong showing of irreparable harm.
Davidsons allege facts which overcome the presumption of
honesty, integrity, good faith, and impartiality in those serving as
adjudicators in the Arizona judicial system. Davidsons allege
facts which provide prima facie evidence for serial violations of 28
USC Section 455 (a) by the State Actors, acting in concert. A
Judge shall disqualify himself [herself] “in any proceeding in
which his [her] impartiality might reasonably be questioned”.
Davidsons allege facts which provide further evidence in support of
violations by the State Actors, acting in concert, of 42 USC Section
1983, Section 1985, and Section 1988. Davidsons allege facts
which provide strong support for their claim of “extraordinary
circumstances”. Davidsons allege facts which provide strong
support for the Gibson exception to Younger abstention. See Gibson
v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689. Davidsons assert that
being subjected to biased proceedings is a due process violation
independent of any fines that have already been imposed, and thus
Davidsons are suffering an ongoing irreparable harm necessitating
federal intervention. Gibson exception allows a federal court to
 4

intervene where the state adjudicator is so biased as to be

incompetent to adjudicate the matter and where the petitioners
show that abstention has resulted in irreparable harm. State law
barred Davidsons from obtaining interlocutory review of
their Due Process claim in State courts, thus establishing
irreparable-harm criterion for Younger bias exception. The
bias exception to Younger abstention doctrine may apply even in
event that party objecting to biased state proceeding has available
to it eventual judicial review of state decision, if proceedings
themselves subject party to irreparable-harm (Due Process
violation). The federal court dismissals under the Younger doctrine
were clearly erroneous.
State Action
MJM, QBSL, Bruce Heurlin (counsel of record for the
Grossmans), State trial court Judge, Judges of the Arizona Court
of Appeals (Division II), and Justices of the Arizona Supreme
Court, were all State Actors in the case at bar before this Court.
Davidsons have asserted the state involvement necessary to
transform the private acts of MJM, QBSL, Bruce Heurlin, the
state trial court judge, the judges of the Arizona appeals court,
and the justices of the Arizona Supreme Court, into state action
covered by 42 USC Section 1983, Section 1985, and Section 1988.
Withdrawal of counsel in the State Action deprived Davidsons of
federal constitutional rights. Davidsons sustained and continue
to sustain ongoing irreparable injury in the State court system.
Actual Malice and Willful Misconduct
By information, belief, and the totality of the circumstances,
MJM and QBSL knew the content and substance of the
Prosecution Memorandum, prior to filing their Motion to
Withdraw as counsel of record. Yet, MJM and QBSL agreed [with
each other] to continue to refuse to bring Arizona fraud, Arizona
RICO, and federal RICO actions, on behalf of their then clients,
the Davidsons, despite repeated requests by the Davidsons to
bring such actions.
Both a general retainer and a special retainer prohibit the
acceptance of adverse employment or the performance of
adversary services by the attorney. After being retained, an
attorney owes the client his or her undivided allegiance.
Once an attorney has received the confidence of a client, the
attorney may not act for both the client and for another
whose interests are in the slightest way adverse or
conflicting. An attorney, without just cause, may not abandon a
case without the consent of the client.
After MJM changed law firms (he joined the law firm of
QBSL during his representation of the Davidsons in the State
 5

court proceeding), he stated in writing in a letter of January 15,

2001, from MJM to the Davidsons, “I do not expect this [his
change in law firm] to affect or impair in any way my ability to
continue effective representation for you.” MJM and QBSL
abandoned their clients (the Davidsons) with their Motion to
Withdraw, just four months before the scheduled trial date, under
color of Arizona Rule 5.1. Both before and especially after MJM’s
change of law firm announcement [per letter of January 15, 2001,
from MJM to Davidson], Davidsons have never felt reasonably
assured that the principles of loyalty to the client or
confidentiality were not compromised by MJM or be QBSL.
In retrospect, it is a reasonable inference to postulate that
both MJM’s employment with the law firm QBSL and MJM’s
candidacy for positions on the Arizona bench, were bribes and that
these bribes (and the acceptance of these bribes) were overt acts to
conceal a racketeering conspiracy which has been ongoing for
nearly two decades, in both New York and Arizona. See Issues #2
and #3 from Davidsons’ Petition for Writ of Certiorari before
Judgment (Supreme Court Docket #04-537), cert. denied. See
Appellees’ Supplemental Excerpts of Record (SER), Volume 1, Tab
1, at pages 1-19, in Ninth Circuit Case No. 03-17342. See
Appellees’ SER, Volume 2, Tab 20, at pages 448-485. See
Appellees’ SER, Volume 2, Tab 21, at pages 486-505.
MJM’s and QBSL’s Motion to Withdraw as counsel of record
(December 17, 2001), when viewed against the backdrop of the
Prosecution Memorandum (November 20, 2000) provides prima
facie evidence of actual malice and willful misconduct by the
attorney (MJM) and his law firm (QBSL) towards his clients
(Davidsons). There was not “good cause appearing therefore” upon
which to base the Trial Judge’s Order of January 11, 2002. The
reasons given for attorney withdrawal in MJM’s and QBSL’s
Motion to Withdraw are false. MJM and QBSL have defrauded
the Trial Court by alleging that ethical considerations motivated
their Motion to Withdraw. MJM and QBSL actually slandered
their then clients (the Davidsons) in their Motion to Withdraw, by
maliciously characterizing their clients’ objectives as being
unprofessional, imprudent, unethical, and repugnant. This
intentional misrepresentation inflicted irreparable harm upon the
Davidsons once the motion was filed. By information and belief,
MJM and QBSL knew the substance and content of the
Prosecution Memorandum, prior to filing their Motion to
Withdraw as counsel of record. See Motion for Judicial Notice of
Prosecution Memorandum, on June 11, 2004, in Ninth Circuit
Case 04-15304.
Exceptions to Doctrine of Judicial Immunity
If federal courts adopt a per se rule and dismiss all Section
1983 complaints against [attorneys], the most egregious behavior
 6

by [an attorney], even if unquestionably the result of pressures by

the State, will not be cognizable under Section 1983. Under the
doctrine of absolute judicial immunity, judges are subject to suit
only for (1) non-judicial actions, i.e. actions not taken in the
judge’s judicial capacity, or (2) “actions, though judicial in nature,
taken in the complete absence of all jurisdiction”. “The judge must
have jurisdiction over the person and subject matter if he [she] is to
be immune from suit for an act performed in his [her] judicial
capacity.” “A third element is the power of the Court to render the
particular decision which was given.” “ The third element in the
concept of jurisdiction as used in the context of judicial immunity
necessitates an inquiry into whether the defendants’ action is
authorized by any set of conditions or circumstances. This inquiry
begins with an examination of the statute under which the
defendant presumed to act.” “There are actions of purported
judicial character that a judge even when exercising general
jurisdiction, is not empowered to take.” See Briley v. State of
California, 564 F.2d 849.
III. Davidsons were precluded from raising federal law
claims in the state forum
State law barred Davidsons from obtaining
interlocutory review of their Due Process claim in State
courts. Arizona court rules did not permit raising the Rule 5.1
constitutional claim in the state court proceedings. Davidsons did
not have an opportunity to raise their federal claim in state court
because they were procedurally barred from raising such claims.
The state court’s application and enforcement of the facially
unconstitutional Arizona Rule 5.1 is of such magnitude as to
justify the federal court’s intervention in state affairs and is
sufficient to overcome general abstention principles. J.P. v.
DeSanti, 653 F.2d 1080 (1981).
On December 29, 2004, the Arizona Court of Appeals
(Division Two) denied a stay of the State court proceedings. On
January 5, 2005, Division Two declined to accept jurisdiction over
Davidsons’ Petition for Special Action to Arizona Court of Appeals
(2 CA-SA 04-0105), filed on December 22, 2004). On February 16,
2005, the Arizona Supreme Court denied a stay of the State court
proceedings. On July 19, 2005, the Arizona Supreme Court denied
Davidsons’ Petition for Review of a Special Action Decision of the
Court of Appeals (CV-05-0052-PR).
Davidsons presently have a fully-briefed Appeal (2 CA-CV
2005-0011) before Arizona Court of Appeals (Division II). Where
state courts have regularly applied an unambiguous
statute, there is no need for a federal court to abstain from
determining the constitutionality of the statute until state
appellate courts have had an opportunity to construe it.
City of Houston, Tex. v. Hill, 482 U.S. 451 (1987).
 7

An interlocutory appeal may be heard if the trial court’s

decision deprives the appellant of a substantial right which would
be lost absent immediate review. Davidsons’ interlocutory
appeal (2 CA-CV 2002-0051) in the State court proceeding
was properly appealable under the collateral order
exception to the final judgment rule. See Whiting v. Lacara,
187 F.3d 317 (“the collateral order doctrine permits appeal from an
order denying leave to withdraw as counsel”). See Fidelity
National Title Insurance Co. v. Intercounty National Title
Insurance Co., 310 F.3d 537 (“the Court of Appeals held that
denial of attorney’s motion to withdraw was immediately
appealable as collateral order, and court’s order denying attorney’
motion to withdraw was abuse of discretion”). Davidsons were
barred from raising federal claims in the State court proceeding.
Davidsons affirm that in the State court proceeding Arizona Court
of Appeals [2CA-CV 2002-0051], and Arizona Supreme Court [CV-
03-0138-PR], they did not have an opportunity to raise their
federal claim in state court because they were procedurally barred
from raising such claims. Younger abstention is not appropriate
when state law imposes procedural barriers to raising the
constitutional claims in state court proceedings.
Unsigned Minute Entry Orders are not appealable under
Arizona law. The Trial Judge’s unsigned Minute Entry Order of
April 29, 2004, denying the Davidsons’ Motion to Amend
Defendants’ Answer, to add Counterclaims, and add Parties,
greatly prejudiced the Davidsons, by denying Davidsons the
right to argue and prove pattern of misconduct and conspiracy in
the State court proceeding. This ruling was intended to prevent the
Davidsons from ever raising their concerns regarding the federal
Constitutionality of the PDUFA before an Arizona court.
The State court’s denial on April 29, 2004, of the Davidsons’
Motion to Amend Defendants Answer, to Add Counterclaims, and
Add Parties, represents a complete denial of a State forum in
which to raise the Davidsons’ federal Constitutional concerns as to
the PDUFA. The State court’s ruling of April 29, 2004, is why
the PDUFA is not presently at bar in the State court
proceeding. The federal constitutionality of the PDUFA
cannot now be reached on appeal to the Arizona Court of
Appeals. The Arizona trial court has proven itself to be an
incompetent forum in which to raise the Davidsons’
concerns regarding the federal Constitutionality of the
PDUFA. The third Middlesex prong is lacking in both federal
district court proceedings.
IV. Withdrawal of counsel in the State Action deprived
Davidsons of federal constitutional rights
The State trial court’s signed Minute Entry Order of January
11, 2002, denied the Davidsons’ important Constitutional rights
 8

including the right to Due Process, right to Equal Protection, right

to Contract, right to freedom from arbitrary Takings, and the
presently-enjoyed right to retained legal counsel in a civil
proceeding.
The State trial judge’s dismissal of Davidsons’ retained counsel
of record violates due process and amounts to structural error,
and this cannot be harmless error regardless. This constitutional
“error” had a profound prejudicial impact on the outcome of
Davidsons’ case. Both the denial of counsel and judicial bias were
structural errors which affected the composition of the record in
the State court proceeding. See Sullivan v. Louisiana, 113 S.Ct.
2078.
The appearance of bias and partiality was created by actual
knowledge of MJM’s candidacy for the Arizona bench by the State
Actors, prior to rulings on Davidsons’ interlocutory appeal by the
Arizona Court of Appeals and Petition for Review to Arizona
Supreme Court, and prior to final Judgment in the State court
proceeding. See Waller v. U.S., 112 S.Ct. 2321. Violations of 28
USC Section 455(a) which require judges to disqualify themselves
in any proceeding in which their impartiality might reasonably be
questioned does not require scienter. Davidsons move this Court
for relief from the final Judgment in the state court proceeding
under Fed. R. Civ. P. 60 (b)(6). 28 USC Section 455 (a) required
the State court trial to recuse herself, and this statute can be
applied retroactively. The risk of injustice to Davidsons, risk of
injustice in other cases if relief is denied, and risk of undermining
the public’s confidence, are all far too great to deny vacatur of the
final Judgment of the State trial court under Rule 60 (b) (6). The
final Judgment in the State court proceeding should be vacated
based on an appearance of impropriety that permeates the entire
proceeding. The reasonable person standard applies. “The
guiding consideration is that the administration of justice should
reasonably appear to be disinterested as well as be so in fact”.
MJM’s candidacy for the Arizona bench while Davidsons’
interlocutory appeal was pending gives rise to estoppel as a
matter of law. See Liljeberg v. Health Services Acquisition Corp,
108 S.Ct. 2194.
If Davidsons had counsel and if Davidsons were tried by
impartial adjudicators, there is a strong presumption that any
“errors” that may have been made are subject to harmless error
analysis. Davidsons had neither counsel nor an impartial
adjudicator in the State court proceedings. The “erroneous”
dismissal of Davidsons’ counsel does compare with the kinds of
errors that automatically require reversal. The error (attorney
dismissal) was “so basic to a fair trial” that it could never be
harmless. Malice by MJM and the Trial Judge towards the
Davidsons may be presumed from predicate facts. Denial of
counsel can never be harmless error because it either aborts the
basic trial process or denies it altogether. Intentional
 9

discrimination in the dismissal of Davidsons’ retained

counsel is a grave constitutional trespass, possible only
under color of state authority, and wholly within the power
of the state to prevent. The coerced dismissal of Davidsons’
counsel vitiates the judgment because it violates the Due Process
Clause of the Fourteenth Amendment (this is constitutional error
that may not be deemed harmless).
It is particularly striking in the State judicial proceedings to
compare the Courts’ apparent willingness to forgive constitutional
errors that rebound to the trial judge’s benefit with the Courts’
determination to give preclusive effect to trivial errors that
obstructed Davidsons’ ability to raise meritorious constitutional
arguments.
There exist a class of constitutional errors that “necessarily
render a trial fundamentally unfair” and these are not amenable
to harmless error analysis. Harmless error analysis “presupposes
a trial, at which the defendant, represented by counsel, may
present evidence and argument before an impartial judge and
jury”. Davidsons were denied representation by counsel, denied
an impartial judge, and denied a jury, in the State court
proceedings. Davidsons were denied “the basic trial process” in
the State court proceedings. Archetypal examples of
constitutional errors are denial of the right to counsel and trial
before a biased judge. Effective defense counsel and an impartial
judge play central roles in the basic trial process. A jury is an
equally central entity.under the 6th and 14th Amendments. See
Rose v. Clark, 106 S.Ct. 3101. Davidsons have overcome the
presumption of impartiality of the State court adjudicators
by demonstrating the existence of circumstances indicating
a probability of bias too high to be constitutionally
tolerable. See McIlwain v. U.S., 104 S.Ct. 409.
V. The “extraordinary circumstances” exception to
Younger abstention applies
The Younger doctrine is inapplicable if the state tribunal to
which the federal claims would be presented is found by the
federal court to be incompetent by reason of bias to adjudicate the
issue pending before it. Gibson v. Berryhill, 411 U.S. 564 (1973).
The Gibson exception allows a federal court to intervene where
the state adjudicator is so biased as to be incompetent to
adjudicate the matter and where the petitioner shows that
abstention has resulted in irreparable harm. (See Issue #2
above). The due process clause entitles a person to an impartial
and disinterested tribunal in both civil and criminal cases.