This installment presents some court filings by the State Bar. First I will print and comment on, by way of update, the “State Bar’s Opposition to Respondent’s Motion for reconsideration and for Immediate Stay; Memorandum of Points and Authorities.” My motion for reconsideration and request for immediate stay is here. My original opposition, appended to the motion for consideration, is here. Then we’ll look at a State Bar filing that is, depending on your mood, particularly funny or hideous.
Begin the State Bar's Document
Memorandum of points and authorities
On December 17, 2007, the State Bar filed a Motion for Reconsideration of this Court’s denial of the State Bar’s Motion for Entry of Respondent’s Default and Order to Show Cause. In that Motion, the State Bar asserted that this Court has lost jurisdiction over this matter because all of the requirements for entry of Respondent’s default had been met, the clerk’s failure to enter his default was in error, and that because the requirements were met, the court lost jurisdiction to take any further action in this matter. So, this Court does not have jurisdiction to order Respondent to appear for an Order to Show Cause. That remains the position of the State Bar. Without Waiving that position, the State Bar submits this opposition.
I. Respondent has failed to state any grounds for the Hearing Department to issue a stay of these proceedings.
Respondent cites no rule which provides for any generalized stay of proceedings in the Hearing Department. Stays of proceedings in the Hearing Department may only be granted under certain terms where a Respondent’s physical or mental condition is at issue or when a party files a petition for interlocutory review. (Rules 184 and 300(h)(1), Rule of Procedure of the State Bar of California). Neither circumstance applies in this matter. Rather, it appears as if Respondent seeks to renew his prior request for an immediate stay filed November 28, 2007, in which he asserted he intended to file a petition for interlocutory review but never properly did so. That request was denied by this Court on December 4, 2007, for want of good cause. Now, Respondent has waged a campaign against the assigned Deputy Trial Counsel and court clerk in which he alleges a variety of misdeeds and conspiracy theories that have no basis in fact. His unfounded, libelous, and absurd allegation do not provide any legal ground for this Court to grant a stay.
II. The Motion does not state new or different facts, circumstances or law and the Court’s decision does not contain any error of fact or law.
Grounds for a motion to reconsider are new or different facts, circumstances, or law or that the Court’s order or decision contains one or more errors of law or fact. (Rule 224(b) of the Rules of Procedure of the State Bar Court.)
Respondent seems only to assert that the Court did not consider his opposition to the State Bar’s Motion for Entry of Default, as his grounds for seeking reconsideration. In fact, he attaches as Exhibit A, his Opposition to Motion for Entry of Default. But here, the Order to Show Cause was issued after the State Bar made a Motion for Terminating Sanctions. The Court ordered Respondent to file an opposition to that motion on or before 5;00 p.m. on December 11, 2007. He did not. So, Respondent has failed to allege any grounds for the Court to reconsider its Order requiring Respondent to show cause as to why terminating sanctions should not be imposed.
Respondent has failed to assert any proper grounds for relief. His motions should therefore, be denied.
END the State Bar's DOCUMENT
The prosecutrix, as she mentions above, has filed her own motion for reconsideration. The State Bar has again involved itself in an impermissible procedural incompatibility, arguing in one motion that the court is without jurisdiction to order the OSC and in a contemporaneous opposition that the court should not reconsider its order.
The prosecutrix tries to pretend that nothing new has happened, but an immediate stay, based on interlocutory review, is justified, because my filing attempt was thwarted by foul play. The prosecutrix does not mention the evidence, her inability to produce the document in question. She has never offered to prove it in her possession or control. Yet she has admitted receiving it. My simple argument is that if she didn’t provide the clerk with the copy returned to me, without proof of service, then where is her copy? If she happened to lose it, did I just happen to know, or did I supposedly take the great risk of making a claim that, if false, she should easily refute? I don’t think she will be getting away with this, but if she can, the institution in question is no longer serving as a court of law.
So what is the court doing. Nothing. Fifteen days have passed since I filed my motion for reconsideration and request for immediate stay, sending a copy by certified mail to Judge Honn, and the court has said absolutely nothing. The court, no doubt, is waiting to sort matters out at the OSC it calendared for January 2, or else, to find a way to avoid the issue at that convocation. My anti-waiver strategy dictates that I not attend, and I shall not. I harbor no doubt that under the strong evidence presented of reversible misconduct, I am entitled to hear something from the court by this time. I cannot be required to participate in hearings, when I am denied ordinary access to the court through the clerk’s office in preparation.
The court ordered the OSC to determine whether my failure to cooperate with discovery should be entered as an aggravating factor. At such a hearing, the judge could easily deny even hearing my argument for a stay. Paranoid? To get a real idea of the police state thinking of State Bar Enforcement, consider the prosecutrix’s brief for the January 2, 2008 hearing. Alternatively, you may find these documents hilarious.
BEGIN State Bar's DOCUMENT
Statement of non-waiver
On December 17, 2007, the State Bar filed a Motion for Reconsideration of this Court’s denial of the State Bar’s Motion for Entry of Respondent’s Default and Order to Show Cause. In that Motion, the State Bar asserted that this Court has lost jurisdiction over this matter because all of the requirements for entry of Respondent’s default had been met, the clerk’s failure to enter his default was in error, and that because the requirements were met, the court lost jurisdiction to take any further action in this matter. That remains the position of the State Bar. Without waiving that position, the State Bar submits this brief at the Court’s invitation.
Respondent’s failure to cooperate in these proceeding should be considered an aggravating factor in determining the appropriate level of discipline.
Aggravating factors are not required to be separately charged but facts that could have formed the basis for an additional charge which are not in the Notice of Disciplinary Charges cannot be relied on in aggravation where, for example, a Respondent is found in default and not fairly put on notice that such facts will be relied on (Matter of Heiner) 1 Cal. State Bar Ct. Rptr. 301 [emphasis added].) Here, by way of this Court’s Order of December 12, 2007, Regarding Motion for Entry of Default and Order to Show Cause on Motion for Order Imposing Sanctions, Respondent has been put on notice that his failure to cooperate in these proceedings may be considered an aggravating factor.
Aggravating factors include a member’s indifference toward rectification of or atonement for the consequences of his misconduct and lack of cooperation wit the State Bar during disciplinary proceedings. (Std. 1.2(b)(v), (vi).)
A respondent’s sporadic participation in disciplinary proceedings despite warnings from the judge demonstrates indifference to professional obligations and a substantial risk to the public. (Matter of Boyne (1993) 2 cal. State Bar Ct. Rptr. 389.) Also, a respondent’s use of specious and unsupported arguments in an attempt to evade culpability demonstrates a lack of appreciation for his misconduct and his obligations as an attorney, and the persistent lack of insight into the deficiencies of his professional behavior is an independent, aggravating factor (Matter of Bach (1991) 1 Cal. State Bar Ct. Rptr. 631.) So too is a respondent’s use of obstructive tactics during the disciplinary proceeding including abuse of discovery and frivolous motions and a respondent’s lack of appreciation of the necessity for timely, meaningful participation in the disciplinary process. (Matter of Varakin 91994) 3 cal. State Bar Ct. Rptr. 179; Matter of Hunter (1994) 3 cal. State Bar Ct. Rptr. 63.)
Here, Respondent has consistently failed to file a response pursuant to Rule 103, despite the rules requiring it and this Court’s orders that he do so. He has failed to participate in discovery, requiring the State Bar to file a Motion to Compel his deposition which was granted. Thereafter, he failed to appear for the deposition. He failed to file a pre-trial statement. He has filed numerous untimely and procedurally incorrect, motions in which he ha raised specious and unsupported arguments and has accused the assigned Deputy Trial Counsel and court clerk of a variety of misdeeds and conspiracies that have no basis in fact and that rise to the level of paranoia, absurdity, and libel. All of those factors can and should be considered aggravating in this Court’s recommendation of the appropriate level of discipline in this matter.
Respondent has had proper notice that uncharged misconduct may be considered by the Court in determining the appropriate level of discipline in this matter. There are a number of aggravating factors that the Court can and should find in recommending the appropriate level of discipline.
END State Bar's DOCUMENT
A few points:
1) The State Bar thinks that without having proven the predicate, it can reasonably assail me for failing to “atone” for the consequences of my alleged misconduct;
2) Although I have filed numerous papers arguing that I cannot be required to participate in discovery until exhausting my challenges to the notice of disciplinary charges, the State Bar has never responded to those arguments, except by characterizing them as “specious.” Instead it pretends that it can condemn conduct without even considering the justifications offered, the sclerosis of a bureaucracy that has never had to fight for its positions fairly;
3) The State Bar claims I have presented no evidence for the prosecutrix’s misconduct, whereas in light of her failure to claim possession of the subject document while admitting receipt, I have actually proven that misconduct;
4) The State Bar repeatedly claims that I failed to file a timely responsive pleading, although the court has repeatedly accepted my documents and termed them responsive pleadings;
5) Very oddly, the State Bar insists on applying standards applicable to a clerk's default to a motion directed to the court. Apart from this being an incredibly stupid legal construction, it also amounts to an enraged insult directed at its own court, as the Hearing Department fails to deliver the Office of the Chief Trial Counsel's presumed entitlements. "You are no more than our clerk," screams the State Bar to the Hearing Department.