Friday, December 26, 2008

54th Installment. Protected Nonspeech and Unprotected Speech: Paradoxes of Nonprotection

Installments 53 and 53A assumed filings, even those the courts deemed frivolous, are protected speech. Strong arguments support that contention, but the U.S. Supreme Court disagrees. Without much analysis, the U.S. Supreme Court concluded that frivolous court filings are unprotected speech. (Bill Johnson Restaurants Inc. v. Nat. Lab. Rel. Bd. (1983) 461 U.S. 731, 743 ["(B)aseless litigation is not immunized by the First Amendment right to petition"].) (But see Be&K Constr. Co. v. NLRB (2002) 536 U.S. 516, 531.)

Thanks to R.A.V. v. City of St. Paul, MI (1992) 505 U.S. 377, unprotected speech isn’t entirely unprotected. Consider obscenity, a category of unprotected speech. The absence of Constitutional protection for obscenity means obscene speech is not only subject to limitation based on a compelling or even substantial state interests but can be suppressed to any degree the Legislature intends, without tailoring. But it doesn't mean the First Amendment gives the legislature unfettered discretion in selecting which obscene acts to censor. The Legislature, most importantly, cannot choose to censor obscenity based on the viewpoint the speech — contained in the obscene nonspeech — expresses.

If the legislature decides to allow obscene publications by the Greenback Party, it must also allow the Prohibition Party to publish matter containing obscenity. The main barrier to complete control over the publication of matter belonging to an unprotected category is that the right's exercise can't be conditioned on viewpoint. While the key formal distinction in First Amendment jurisprudence is content discrimination versus content neutrality, the real target of prohibiting content discrimination is often said to be discrimination against viewpoints. (Stone, Content-Neutral Restrictions (1987) 54 U. Chi. L. Rev. 46, 48 ["Whether applying an ‘absolute protection’ approach, a ‘clear and present danger’ test, a ‘compelling governmental interest’ standard, or some other formulation, the Court almost invariably reaches the same result-content-based restrictions of ‘high-value’ speech are unconstitutional"].)

Unlike bans on obscenity — but like bans on incitement presenting a clear and present danger of violence (Schenck v. United States (1919) 249 U.S. 47 [affirming criminal penalties for wartime military-draft-repeal agitation intended to encourage obstruction]) — bans on frivolous filings are inherently viewpoint discriminatory. The ban, however, proscribes a dimension of viewpoint the state can ignore. The First Amendment tolerates complete irrationality in discriminating among levels of frivolousness, even though this discrimination is inherently against viewpoints. Similarly, during war, the state can ban only some speech apt to cause imminent violence, even though calling for imminent violence is a content distinction and, not only that, but is a viewpoint distinction: whether one thinks immediate violence is a good thing is a difference in viewpoint, not just a difference in content.

What remains illegal under the R.A.V. standard, despite the unprotected status of frivolous filings, is apportioning the privilege of frivolous filing. The government can't let some groups file frivolously and ban others trying to exercise the same privilege. Since to the extent the filing is protected its protection deals with viewpoint discrimination, any discrimination with respect this right's complete suppression is subject to strict scrutiny.

Analogized, the government totally suppresses incitement in one jurisdiction but treats it mildly in another, despite the speech carrying the same dangers. If denizens of the City of Delitiga could stand on a street corner giving emotional speeches that risked a riot, but denizens of the City of Alitiga suffered ten years forced labor in Alaska for the same outrages, the Alitigans would be denied the equal protection of the law. Only a compelling state interest in discriminatory treatment would justify censorship in one place and not the other, given the same instigation and potential for violence. Similarly, lawyers suffer potential disbarment for filing frivolous motions or violating court orders, and nonattorneys in pro per suffer no catastrophic penalty.

The relationship between protected speech that survives strict scrutiny and unprotected speech was a thorny but unacknowledged problem in constitutional jurisprudence until R.A.V. The doctrine of unprotected speech was first propounded with the rule allowing the government to punish fighting words. (Chaplinsky v. New Hampshire (1942) 315 U.S. 568.) As the minority insisted, traditional interpretation would have held, uncritically, that "unprotected speech" is unprotected simpliciter. In R.A.V., Justice Scalia, writing for the majority, argued convincingly that the First Amendment doesn't countenance forcing one side to argue by "Marquis of Queensbury Rules" while the other side fights "freestyle." (R.A.V. v. City of St. Paul, MI, supra, 505 U.S. at p. 392.) On the R.A.V. standard, unprotected speech is unprotected only with respect to its unprotected aspect. Where St. Paul banned "hate speech" against only some groups, even though this speech consisted of "fighting words," and even though the groups were suspect classes, the City of St. Paul acted in excess of its rights under the First and Fourteenth Amendments by discriminating against contrary viewpoints.

Justice Scalia doesn't directly address the contrast between unprotected speech and the strict scrutiny test. Although many cases survive strict scrutiny in district and the court of appeals, First Amendment constraints don't survive strict scrutiny in the U.S. Supreme Court. (Winkler, Fatal in Theory and Strict in Fact (2006) 59 Vand. L. Rev. 793, 796.) [A puzzle Juridical Coherence will endeavor to solve.] Even the Supreme Court need not address what's not before it. What follows from the majority opinion is: restrictions on unprotected speech need not be tailored to legitimate state interests. The constraints can't be overinclusive, nonetheless; that, everyone agrees. R.A.V.'s law doesn't prohibit underinclusiveness, as the First Amendment requires of content-neutral constraints on protected speech. For unprotected speech, the First Amendment says the government need not be fair to its purveyors except as it bans protected aspects. One of those protected aspects is viewpoint neutrality in extending the state's allowances. Attorneys have become the surprise targets of discrimination.

Don't miss my new blog Juridical Coherence: Legal Theory on Framework Issues.

Thursday, December 25, 2008

Interlude 8B. The Ronald N. Gottschalk Matter and the Ethics of Confidentiality: A Test of Principle

The Gottschalk matter helps illuminate the ethical rules that should control professional services offered by nonattorney lawyers. Confidentiality law specifies two kinds of protection: attorney-client privilege and attorney-client confidentiality; the leading case on the distinction is Brennan's Inc. v. Brennan's Restaurants Inc. (5th Cir. 1979) 590 F.2d 168, 172 ["This broad ethical duty protects not only against disclosure of privileged communications but also against the revelation of confidential information that is not privileged."]) The broader duty contrasts with the client-attorney privilege, which must go to the consultation's substance. (X Corp. v. Doe (E.D. Va. 1992) 805 F.Supp. 1298, 1305.)

On privilege-level matter, by policy, I incorporate into my fiduciary duty guarantees stronger than any attorney can offer and broaden their scope to include my authorship of any work product. I treat express personal guarantees as binding as core privilege-level substantial confidences. Privilege-level matter is subject to an absolute privilege that I refuse to breach, even if compelled by order or prosecution or justified by litigation. No attorney can offer this guarantee without accepting disbarment for bad-faith disobedience to court orders. (Bus. & Prof. Code, § 6103.)

Applying the distinction between levels of confidentiality to my Gottschalk disclosures, I respected the attorney-client privilege absolutely but released matter prima facie confidential under the broader ethical standard: my knowledge of Gottschalk's skulduggery insofar as I was its target. Contrasted with the privilege level, my guarantees on broad confidentiality are only conditional. They won't necessarily survive court order or incontrovertible fraud.

Wednesday, December 24, 2008

Interlude 8A. Ronald N. Gottschalk Esq. —The Smoking Gun

Report: Ronald N. Gottschalk Esq. denies my accusations of fraud, less opprobrious than his anti-First Amendment threats. To quench readers' lawyerly thirst for proof, I append two e-mails: the first, confirming our agreement; the second, claiming weather conditions delayed Gottschalk's performance, which he didn't intend to deliver. My low rate expressed anti-State Bar solidarity.


fromStephen R. Diamond,
dateSat, Sep 27, 2008 at 1:36 PM

hide details Sep 27
Reply to all

Dear Ron,

You retained me today for legal research, analysis, and consultation. We agreed on a fee of $50 per hour, and an initial retainer of $750, which I will apply to the first 15 hours of work.

No fees will be charged for previous telephone consultation time. I will begin work upon receiving the relevant documents by e-mail and a business or trust account check for $750, or notification that you have actually mailed it.

Stephen R. Diamond
Legal Research & Writing Service
Supplier of Legal Theories

fromRandy Potter
to"Stephen R. Diamond" ,,
dateSun, Sep 28, 2008 at 12:29 PM
subjectRe: Mailing Address

hide details Sep 28
Reply to all

We had a massive power failure in North Mandiville canyon last night for all residents. That included theinternet, and all power. Will try to email the documents tonight. I will mail the retainer check Monday. Ron


The addressee Randy Potter is Gottschalk's employee.

Tuesday, December 16, 2008

Interlude 8. Ronald N. Gottschalk, Legal Predator — A Public Warning

Update at Interlude 16.

Some State Bar respondents deserve disbarment. In this category falls Ronald Norton Gottschalk, Esq., a parasite who fraudulently offers to buy research time, even resorts to the check-is-in the-mail subterfuge, and intends never to pay. Gottschalk faces charges and probable disbarment, but he is sufficiently unprincipled to prey on other State Bar respondents, defrauding one after failing with the other. On breach of solidarity, we State Bar opponents and respondents must police ourselves.

Gottschalk's verbose attempt to intimidate and bully reveals the kind of lawyer he is or was. Despite claiming he supports the legal war against the California State Bar in public and lawyers' interest, he plays State Bar stooge by threatening this blog's extinction. He resembles the State Bar in more than practicing with knavish ethics: he also practices idiocy. His threatening e-mail, below, accuses me of violating confidentiality by disclosing his skulduggery. When Gottschalk first telephoned, I was suspended by the State Bar, as he, kanBARoo court reader, knew. As to ethics, distinguished from legality, I instructed Gottschalk before discussing his case that no professional relationship existed until he paid a $750.00 retainer, the "check in the mail"; his intrusive phone calls immediately alerted me Gottschalk's character is amiss.




1160 South Golden West Ave., Suite 3

Arcadia, California 91007


Tel: (626) 755-1688

Fax: (877) 284-3067


December 16, 2008


Stephen R. Diamond, J.D.

6424 Mountain View, St #2
Joshua Tree, CA, 92252

Re: Gottschalk v. Diamond et al.

Notice to Cease and Desist for Violation of B&P §6068(e) and B&P §6450-6455

Notice of Intent to seek injunctive relief, OSC re contempt including the removal of your

Blog and website for your continued violation of B&P §6068(e) and B&P §6450-6455 and orders of the California Supreme Court, without limitation

Dear Mr. Diamond:

Your conduct to date reflects that you continue to violate B&P §6068(e) and B&P §6450-6455 against myself and others. Your allegations are specifically denied and constitutes bad faith and actionable conduct including for an award of actual and punitive damages.

Although you have been recently disbarred by the Supreme Court of the State of California, you are still obligated to maintain confidentiality under B&P §6068(e) and B&P §6450-6455 and cannot use your website or blog to obtain collateral advantage over myself and others.

Accordingly, if you breach confidentiality or publish any information about me on your blog and website as you have threatened or reveal confidential information to third parties, I will sue you under the RICO Act and will seek injunctive relief, an OSC re criminal contempt of the California Supreme Court Order for your disbarment and for removal of your website and blog for the unauthorized practice of law by you, without limitation. You have admitted that the blog and websites are owned and maintained by you.

Mr. Stephen Diamond, J.D.

Re: Gottschalk v. Diamond

December 16, 2008

Page 2

Nothing contained herein shall constitute a waiver of my collective rights and remedies against you and those who aid and abet you. Your conduct is actionable and you continued

violation of B&P §6068(e) and B&P §6450-6455 constitutes sufficient grounds for the relief that I will request from the Federal Court. None of your conduct is privileged and is further actionable based upon your disbarment and violation of the orders of the California Supreme Court.

Very truly yours,




Sunday, December 7, 2008

kanBARoo Court. 53A Installment. Subject the State Bar to Strict Scrutiny

No judicial determination affecting an equal-protection action is more important than level of scrutiny. Most equal-protection cases fail, entitled only to the rational-basis standard, which the state trivially satisfies. An equal-protection action is entitled to strict scrutiny when the state actor impinges a First Amendment right, such as the right to petition. To bring a winnable equal-protection action based on State Bar discipline for court filings, the First Amendment right to petition comes into play subordinate to equal protection. A respondent's strict-scrutiny equal-protection case requires determining that: 1) the subject State Bar discipline impinges the right to petition; and 2) the impingement exclusively targets lawyers. (Cf. Rattray v. City of National City (9th Cir. 1994) 36 F.3d 1480, 1483 [analogous relationship of equal protection to privacy, instead of petition].) Notice that determination "1" suffices for strict scrutiny on the First Amendment issue itself, a potentially confusing observation because the 53rd Installment brought in the Fifth Amendment to supplement the untenable First Amendment approach. To solve the conundrum: A compelling state interest in regulating the court’s receipt of documents, consuming court time, justifies the restraint on speech.

To succeed with the present equal-protection and free-speech argument, you must allege impingement of protected speech. Don’t expect sustaining this allegation to be easy, as the court will try to categorize frivolous motions as unprotected, alongside obscenity and intentional lies. In a near-future Installment, I'll sketch a variant argument that can prevail without the court's determining that frivolous filings are protected speech, but proving that penalties for frivolous motions restrain protected speech isn't inherently hard apart from judicial bias, despite the absence of decisions addressing the categorization. Since “frivolous” describes the aim of a motion or action, a ban on frivolous proceedings prohibits a range of objectives. Since the ban takes sides against petitioning for objectives deemed frivolous, the speech restraint is viewpoint discriminatory, not content-neutral. Frivolous filings can be regulated only to satisfy a compelling state interest in procedural orderliness. But no compelling state interest requires prohibiting attorney disobedience to orders and rules when nonlawyers in propria persona have the right to test petitionability’s limits, subject only to milder contempt penalties.

Saturday, November 29, 2008

kanBARoo Court. 53rd Installment. State Bar v. Equal Protection of the Law

When the State Bar disciplines an attorney for violating court rules and orders restricting filings and in-court statements, the State Bar regulates speech, and restraints on speech must not exceed First and Fourteenth Amendment limits. Alleging violation of attorney free-speech rights is the reflexive reaction to State Bar interference in speech regulation, an approach that hasn't won and won't, but to the State Bar's delight, the same facts elicit the same self-defeating reflex from respondents.

The First Amendment-based Canatella line of cases confuses some California State Bar Court respondents, as the minor victory in
Canatella v. State of California (9th Cir. 2002) 304 F.3d 843 ("Canatella 1") obscures the egregiousness of Canatella v. Stovitz (N.D. Cal. 2005) 365 F.Supp.2d 1064 ("Canatella 2"). Canatella 1 seduces attorneys to repeat instead of learn from the Canatella 2 mistakes. Canatella 1 found that the Younger abstention doctrine, which protects ongoing state proceedings from federal court interference, did not compel case dismissal, since Canatella filed before the State Bar served him a case-initiating Notice of Disciplinary Charges. Canatella 1 also held the case, seeking prospective relief, wasn't subject to the Rooker-Feldman doctrine, which applies to cases seeking review of state-court decisions. Canatella's case ripened before the State Bar acted, when a new violation put the previously disciplined but unrepentant Canatella on a collision course with the State Bar. Canatella skillfully maneuvered around the restrictions of Younger abstention, the Rooker-Feldman doctrine, ripeness, and mootness, to find a way to federal court. But his narrow procedural victory allowed a hearing due only to special circumstances, and the holding is usable by few respondents. Having decided these procedural preliminaries, the Ninth Circuit ordered the Northern California District Court to try the case. The district court rejected Canatella's petition on the merits.

Canatella 1 established a narrow procedural point significantly increasing the State Bar respondents' degrees of freedom, but Canatella 1, contrary to the impression of some, is far from the most important prorespondent disciplinary result obtained in federal court. That honor belongs to Standing Committee on Discipline of U.S. Dist. Court for Cent. Dist. of CA v. Yagman (9th Cir. 1995) 55 F.3d 1430. Yagman had publicly stated that a district court judicial officer, Judge Keller, was dishonest, had a "penchant for sanctioning Jews," and was "drunk on the bench." The Ninth Circuit dismissed the disciplinary action against respondent Yagman, holding "lawyers' statements unrelated to a matter pending before the court may be sanctioned only if they pose a clear and present danger to the administration of justice." (Yagman, supra, at p. 1443.) Yagman not only set a strong affirmative precedent but helped limit a U.S. Supreme Court case that significantly impaired attorneys' free-speech rights. Gentile v. State Bar of Nevada (1991) 501 U.S. 1030 held that in ongoing or pending litigation, the standard of "substantial likelihood of material prejudice" can impose a standard weaker than clear and present danger for restraining attorney speech. Yagman clarifies that "when lawyers speak out on matters unconnected to a pending case, there is no direct and immediate impact on the fair trial rights of litigants." (Yagman, supra.)

Two mistakes, two First Amendment reflexes, confuse respondents who duplicate Canatella 2's mistakes. The first is the concept that an attorney has personal free-speech rights in court representing litigants. This mistaken reasoning has confused attorneys so they argued the First Amendment protects filing frivolous motions. The leading cases' rhetoric fosters the view that attorneys have some personal free-speech rights in the courtroom, but it leads naught. The standing aphorism is that "attorneys and other trial participants do not lose their constitutional rights at the courthouse door.” (Levine v. U.S. District Ct. for the C. Dist. of Cal. (9th Cir. 1985) 764 F.2d 590, 595.) The Canatella 2 court puts the Levine holding in perspective: "The United States Supreme Court has held that 'in the courtroom itself, during a judicial proceeding, whatever right to "free speech" an attorney has is extremely circumscribed.'" (Canatella 2, supra, at p. 1071, citing Gentile.) Gentile remained a problem for Canatella and remains problematic for other State Bar respondents who assert free speech rights during pending procedures. Exuberance about attorney free-speech rights typically ignores distinctions between the attorneys' personal rights and their clients' rights. When courts announce that rights don't stop at the courthouse door, they impliedly speak of the represented parties' rights, not their attorney's personal rights. But the distinction is unstated, the Gentile court appearing to have in mind the attorney's personal rights when the court described their slenderness in an ongoing case. Systematic confusion between the two rights bearers diminishes litigants' First Amendment right to petition for redress. The concurring opinion in another Ninth Circuit case captures the real state of the law on attorney free speech rights:

I believe [Sacher v. United States (1952) 343 U.S. 1] and Gentile are potentially misleading: although they discuss the in court First Amendment rights of lawyers, in fact those rights do not have any independent substance. In the courtroom, during a judicial proceeding, an attorney's "First Amendment" rights depend exclusively on his client's trial rights. The attorney may speak only to the extent that his client's rights allow him to speak.” [Citation.] (Zal v. Steppe (9th Cir. 1992) 968 F.2d 924, 931 (conc. opn. of Trott, J.).)

Gentile's practical import is that in 1991 it had already foreclosed opposing disbarment for frivolous filings because they are believed expressive. Even though the specific speech involved in Gentile was highly public speech, the holding enveloped filings too, since it dealt generally with attorney speech relating to a pending case.

More important than the distracting confusions about an attorney's personal free-speech rights in court is the second type of mistake in opposing the State Bar's speech restraints: the persistent failure to distinguish State Bar discipline from contempt actions in California courts of record. Repeating Canatella's mistakes means, foremost, failing to distinguish State Bar discipline for violations of orders and rules from their imposition by the courts. Just as no one questions the legality of sanctions imposed for frivolous motions, more severe sanctions imposed for contempt are ordinarily valid, but the penalties should be invalidated when authorized under State Bar law rather than the court's contempt powers, the State Bar's threat qualitatively more onerous than a contempt. When attorneys test an order's validity by refusing to obey, they assume the risk they will pay a fine or even spend days in jail, whereas no attorney would test a contempt order risking State Bar discipline; the highly subjective exception for reasonable good-faith justification only dents the risk. State Bar intervention in court affairs by disciplining disobedient attorneys, consequently, impugns California's public policy allowing parties to challenge orders by conduct.

American Civil Liberties Union v. The Florida Bar (11th Cir. 1993) 999 F.2d 1486 shows how the intervention of State Bar disciplinary machinery chills advocacy much more than the threat of a contempt citation. Florida attorney Schack was running for judge, but the language of the Bar rules, which the State Bar had previously applied to limit judicial candidates' speech, cast doubt on whether exposing an opponent's corrupt practices violated rules about maintaining the dignity of office even before its attainment. Yet the State Bar refused Schack's request for an advisory opinion. Complains the Eleventh Circuit, "Thus, with two weeks remaining until the election, Schack was faced with the choice of risking possible disciplinary action by the Bar [and a related agency], or self-censoring his proposed campaign speech, despite his belief that this speech was protected under the First Amendment." (Id., at p. 1489.) Civil penalties as might apply to non-lawyers are not so paralyzing.

The argument that State Bar intervention in speech regulation singles out attorneys for harsher treatment is an equal-protection argument, rather than a free-speech argument. Lawyers and their clients are deprived of the equal protection of the law when litigants are permitted to invalidate orders by contesting a contempt citation, or violate rules and risk only monetary sanction, while the State Bar's much harsher penalties effectively compel automatic attorney compliance with all court orders. This argument's chances are better than the failed free speech arguments; Gentile's four-justice dissent shows that judges can scorn unfair and unnecessary laws exclusively targeting attorneys:

At the very least, our cases recognize that disciplinary rules governing the legal profession cannot punish activity protected by the First Amendment, and that First Amendment protection survives even when the attorney violates a disciplinary rule he swore to obey when admitted to the practice of law. [Citations.] We have not in recent years accepted our colleagues' apparent theory that the practice of law brings with it comprehensive restrictions, or that we will defer to professional bodies when those restrictions impinge upon first Amendment freedoms. And none of the justifications put forward by respondent suffice to sanction abandonment of our normal First Amendment principles in the case of speech by an attorney regarding pending cases. (Gentile, supra, at p. 1054 (lead & dis. opn. of Kennedy, J.).)
State Bar-imposed speech restraints, even when unobjectionable in themselves, should be invalidated, since superimposed on the laws governing nonattorney litigants, they amount to a comprehensively restrictive regime impinging the fundamental right to the law's equal protection.

Wednesday, November 19, 2008

kanBARoo Court. 52nd Installment. The Opinionless-Decision Conspiracy

When the California Supreme Court ratified opinionless denials of review, it implemented and enlarged a tactic already tested by a conservative federal circuit court of appeals to deny disfavored and oppressed groups equal protection under a uniform set of procedures and laws. Opinionless reviews are the end of an unacknowledged procedural spectrum treating some cases as less worthy of due process.

The experiment started in the late 1950s when the Fourth Circuit began an unannounced categorization of cases, denying publication to some, while treating unpublished cases as nonprecedential. The Fourth Circuit used nonprecedential cases to resist U.S. Supreme Court initiatives under Brown v. Board of Education and to deflect numerous prisoner-rights cases under the Civil Rights Act. (Pether, Outing the Judicial Epistemology of Hart V. Massanari (2005) 62 Wash. & Lee L. Rev. 1553.) Nonprecedential opinions allowed the Fourth Circuit to treat these cases differently not only in the obviously procedural respect but in respect to the substantive rights found. The cases' nonprecedential character barred other plaintiffs from citing them to enforce their rights, hence eliminating the main motive for correctly finding law contradicting a judge's political or personal inclinations. Studies proved that courts applied different standards in nonprecedential opinions. A 1999 study of the Americans with Disabilities Act showed the plaintiff win rate in employment discrimination cases at the district court level was four times higher in published than unpublished opinions. (Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants (1999) 34 Harvard C.R.-C.L.L. Rev. 99.) If courts correctly decide unpopular cases only if the judges intend publication, a still greater degree of bias will obtain in cases where the court issues no opinion, not even an unpublished, nonprecedential one. An uncitable case may free judges from legal constraint, but the written opinion remains obtainable and a mild embarrassment to the inconsistent judge.

The California courts and the Ninth Circuit were in the forefront of the judiciary's rearguard opposition to Rules of Appellate Procedure rule 32.1, which compels the federal circuits to allow citation—but not precedential force—to unpublished cases. California state courts still enforce a rule subjecting attorneys to sanction for tacitly confronting a court with its inconsistent unpublished decrees. The procedures associated with nonprecedential cases would disturb lawyers if more of them knew. When matters stood much better for court dockets decades ago, already a California Supreme Court screening process culminated in an intense "Wednesday conference" meeting in the Chief Justice's chambers to consider petitions for extraordinary writs and other petitions, including State Bar disciplinary matters. These matters were divided into an A-list and B-list, the latter where denial of the petition seemed indicated. At the beginning of the hour, the conference would summarily reject the bulk of B-list items, 2/3 of the 100 or so considered each week. (Grodin, The Depublication Practice of the California Supreme Court (1984) 72 Cal. L. Rev. 514.)

The judiciary's attitude toward reviews of complaints by those convicted of crimes—and one must suspect, quasi-crimes—was expressed forthrightly by Justice Black, who supported a lower court's denial of a transcript to a prisoner:
I do not think he needs a transcript to know whether he was convicted erroneously or whether some new circumstances have arisen that now show a fatal constitutional error… This case is but another of the multitudinous instances in which courts are asked interminably to hash and rehash points that have already been determined after full deliberation and review. (Wade v. Wilson (1970) 396 U.S. 282 [Black, J., dissenting].)
Procedures perfected against rights-demanding prisoners are today deployed against State Bar respondents.

For a more general treatment of nonprecedential opinions, see the eponymous entry in my new blog, Juridical Coherence.

Saturday, November 1, 2008

kanBARoo Court. 51st Installment. Online Charges: The State Bar's Latest Power Grab

In the State Bar establishment's summer power play, the Board of Governors authorized Internet posting of the State Bar's mere allegations against a Member. For once, even the county state bar organizations protest, by opposing the Board of Governors' 18-4 decision. Dissenters focus on the threat to the reputations of innocent attorneys, who the State Bar says constitute 9% of its respondents, but the State Bar argues from the wrong statistic, grounded in tacitly assuming false charges' reputational harmlessness unless the accused is completely exonerated. Critics mostly accept the focus on the 9% statistic, despite its invalidity as a measure of wrongful harm to reputation.

The State Bar places the policy's critics in the unfavorable position of opposing transparent public administration and the public's right to access public information conveniently. Assuming a stance that seems to oppose the public welfare, the critics can succeed only by asserting that the web disclosures violate some basic right: according to legal ethicist Diane Karpman, the presumption of innocence. (Karpman, Online charges catch the good and the bad (August 2008) California Bar Journal.) She's right, but the argument is impossible to win. To prove that the posting violates the presumption of innocence, a respondent must show that the public disclosure is intended as punishment. (See Bell v. Wolfish (1979) 441 U.S. 520, 585 [dis. opn. Stevens, J.].) Inherently, the State Bar's punitive intent isn't hard to prove, shaming being a traditional means of punishment, but under Bell v. Wolfish, a reviewing court must find that the measure has no rational justification except as punishment, to conclude punishment without proof violated the presumption of innocence. (Id.)

The State Bar's hypocrisy in playing the public-protection card is shown by the contours of its new posting policy, the policy's anti-public interest direct effects, its internal contradictions. One of the most important public interests regarding legal practice is attorney-client confidentiality. As Karpman argues, the State Bar's new posting policy conflicts with the public interest by undermining confidentiality in matters where the accused attorney's clients haven't agreed to disclosure. (Karpman, supra.) The State Bar's expungement allowance for administrative suspensions, amended this summer for greater leniency, contradicts the State Bar's claim that the public's right to know is paramount. Most tellingly under the new posting policy, when the Member is completely exonerated, the rule requires removal of the NDC and the opinion dismissing it within 60 days. With the last rule, the State Bar disregards both attorney reputational interests and public informational interests, to favor the State Bar's self-protective instinct.

Supporting barriers to public information access yields the high ground to the State Bar. The new posting policy threatens innocent reputations only because the State Bar self-servingly proposes postable and unpostable categories that increase the weight of adverse information and strengthen the State Bar’s bargaining posture in disciplinary negotiations. The policy undemocratically hides private complaints filed with the State Bar, information that would show what investigations the State Bar omits, a matter publicly interesting. And the State Bar adds only minimal caveats when it posts the Notice of Disciplinary Charges, without warning, for example, that no court reviewed the allegations.

All public information should be available on the State Bar's web site, and all information related to disciplinary matters should be public. If the State Bar claims such posting is impractical, then it must admit that a selection process biases the posted information. Unless the State Bar will allow the public web access to all records related to discipline, offering up the Notice of Disciplinary charges before any court has seen it is not to inform the public but rather to attempt its influence. The Notice of Disciplinary Charges often fails to state disciplinable charges. Yet even exoneration of specific charges will fail to remove them, which endure in perpetuity, while within sixty days, the State Bar would excise proof exonerating a respondent of all charges.

Thursday, October 30, 2008

kanBARoo Court. Interlude 7. Does Sturgeon v. County Help State Bar Respondents?

The California Court of Appeal recently decided Sturgeon v. County of Los Angeles (4th Dist. 2008) __ Cal.App.4th __, prohibiting Los Angeles County’s payment to judicial officers of almost $50,000 in annual benefits. Sturgeon would be outside kanBARoo court's scope, except that State Bar respondent Richard I. Fine argues in state and federal court that these benefits create a conflict of interest, and State Bar Court judges should have succumbed to his disqualification motions. (See Fine's statement by scrolling down here.) Fine recently moved for rehearing in the State Bar Court Review Department, based on Sturgeon, which Fine considers vindicating.

I criticize Fine's analysis, while supporting his State Bar defense effort. Fine relied on plaintiff Sturgeon's claim that the benefits were a gift, but the Court of Appeal expressly rejected that characterization. No gift, no bribe, and probably no conflict of interest. Sturgeon v. County wasn't a victory for Fine. Sturgeon really wasn't even a victory for Judicial Watch, as the funding organization claims, since the Court of Appeal refused to find County funding inherently unconstitutional. Sturgeon holds only that the Legislature must rigorously prescribe the benefits County pays. Sturgeon doesn't espouse Judicial Watch's overblown theory that the benefits were a bribe. The Sturgeon court held only that without rigorous Legislative prescription, the benefits program could threaten judicial independence. By locating the wrongdoing in the County's failure to respect the judiciary’s institutional requirements, rather than in any judicial misconduct, Sturgeon exonerated County judicial officers of disqualifying charges.

Opponents of County judicial-income supplementation claim its consequences include a disproportionately low rate of plaintiff litigation success against County. Fine offers statistics:
The statistics showed that 670 new cases were filed in fiscal year 2007 and 261 dismissals occurred based upon favorable rulings for the County. This is approximately 39%. The October 3, 2007, letter did not state the ratio of filed cases to dismissals for non LA County cases. LA County took 24 cases to trial and prevailed in 15. Five were defense [jury] verdicts. This shows that 10 defense decisions were done by the LA Superior Court judges. This is over 41%.These are more cases decided by judges against the plaintiffs, than the 9 cases the plaintiffs won at trial before a jury. It appears the plaintiffs did not win any cases before a judge. (Fine's statement, supra.)
Although Fine's initial hedge and his conclusion's ex cathedra character diminish its force, the most important claim is the last sentence: "It appears the plaintiffs did not win any cases before a judge." What appears is that winning a bench trial against Los Angeles County is impossible. Then, the County payments would cause injustice on a threat theory, instead of a bribe theory. But if Fine's statistics are accurate, one must wonder why Sturgeon the plaintiff failed to argue them.

Thursday, October 23, 2008

kanBARoo Court. 50th Installment. Federal Jurisdiction & Issue Preclusion

Two U.S. Supreme Court cases, which gutted the Civil Rights Act of 1871, 42 U.S. C. § 1983, produced today’s oppressive state bar courts. Attorney discipline is usually administered by administrative bodies acting judicially for their state's highest court, whose conflicting right of ultimate review compromises impartiality. (See Guarino v. Larsen (3rd Cir. 1993) 11 F.3d 1151, 1159 n.4 ["when a court makes a decision concerning the legality of its own actions, it may be too biased to justify abstention by the federal courts even if its actions are considered adjudicative."].) One commentator notes that the state high court may lack the ability to evaluate the administrative agencies it supervises objectively:
Yet, it is precisely because these cases more properly are understood as administrative proceedings (albeit before a judicial tribunal), rather than as true judicial proceedings, that there is legitimate concern about the ability of the states' highest courts to perform their regulatory function and provide appropriate judicial review. In many cases there are allegations of bias or challenges to the disciplinary and admission rules. Although these allegations may prove unfounded, there is sufficient basis for questioning whether a state's highest court can provide the dispassionate resolution that ought to be required when no other judicial review commonly occurs. (Friedman & Gaylord, Rooker-Feldman, From the Ground Up (1999) 74 Notre Dame L. Rev. 1129, 1132.)
Deciding my case against the State Bar, for example, would
scandalize the California Supreme Court’s administrative arm. These unequal contests stretch the definition of adjudication. (See Guarino v. Larsen, supra, 11 F.3d at p. 1159 n.4 [“Adjudication may require a controversy between two parties other than the body making the adjudicative decision.”].)

For review of rights-infringing state cases, litigants have looked to 42 U.S.C. § 1983. A United States Supreme Court increasingly hostile to federal judicial oversight blocked the route to federal court for State Bar respondents and similar others when the court ruled that section 1983 suits are subject to the challenged state case’s common-law preclusive effects. (See Allen v. McCurry (1980) 449 U.S. 90.) Missouri had imprisoned McCurry for two years on drug possession charges, based on evidence obtained in an illegal invasion of his house. McCurry sued the officers who participated in the illegal search for conspiracy to violate his civil rights. The Allen v. McCurry court ruled that McCurry’s state conviction collaterally estopped the federal suit for damages, Justices Blackmun, Marshall, and Brennan dissenting. An important precedent had stated, “It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.” (Monroe v. Pape (1961) 365 U.S. 167, 183.) The dissenting justices recognized the decision’s break with precedent: "The Court repeatedly has recognized that § 1983 embodies a strong congressional policy in favor of federal courts' acting as the primary and final arbiters of constitutional rights." (Allen v. McCurry, supra, at p. 110.)

Yet, Allen v. McCurry isn’t prominent in interjurisdictional scholarship; the case is overshadowed by District of Columbia Court of Appeals v. Feldman (1983) 460 U.S. 462, which reproduced Allen v. McCurry’s implications and added a few more. Feldman’s salience confuses litigants challenging the State Bar, as circumventing the Rooker-Feldman doctrine—the new barrier Feldman created—would still leave intact the more fundamental Allen v. McCurry preclusion barrier. One supposed difference between the Rooker-Feldman doctrine and ordinary preclusion, as lawyers sometimes mention, is preclusion’s applicability only where the precluded party had “full and fair opportunity to litigate.” Most federal circuits, however, include this condition in construing the Rooker-Feldman doctrine. The contrast between ease of dismissal under Rooker-Feldman and the jargon, “full and fair opportunity to litigate,” creates an illusion that the Rooker-Feldman doctrine is much harsher than preclusion. But “full and fair opportunity to litigate,” whether applied to preclusion or jurisdiction, means only the chance to raise the federal issues in court. Rooker-Feldman never formally creates a broader bar than preclusion, although the jurisdictional tag subtly influences courts to favor the Rooker-Feldman defendant more than a defendant asserting preclusion as an affirmative defense.

Feldman, itself an attorney discipline case, created the emaciated prototype for the supposed review all California State Bar respondents and their counterparts in most other jurisdictions are entitled to, and Feldman permitted the prototype’s adoption. Although the Rooker-Feldman doctrine only jurisdictionally barred a subset of suits, which would be precluded anyway under Allen v. McCurry, the federal courts used the jurisdictional character of the Rooker-Feldman prohibition to justify uninformative boilerplate language, to which the courts usually confined opinions dismissing these cases. The Rooker-Feldman doctrine, more generally, became the primary docket-clearing mechanism in federal district court. Feldman, the cause of the opinionless decisions after In re Rose (2000) 22 Cal.4th 430 was also the paradigm for these opinions’ review minimalism.

Sunday, October 12, 2008

kanBARoo Court. 49th Installment. "Willfully" Made Precise

Some knowledge comes two ways: one involving knowing that and the other not; one can know some things by their name or by another: transparent knowledge, contrasted with opaque knowledge. The 42nd Installment interpreted the required knowledge for Business and Profession Code section 6103 willfulness as transparent because I’m unaware of any law using an opaque-reference standard. Here’s a better reason, with more exact conclusions.

I find no authorities making the connection, but the Penal Code defines the key word “willfully,” and the Penal Code definition decides whether transparent or opaque reference applies, the statute and the cases construing it being the only legal authorities addressing the knowledge that Bus. & Prof. Code, § 6103, willfullness requires. Penal Code section 7, subdivision 1, defines willfulness, when not otherwise defined by statute, as follows:
The word “willfully,” when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.
The first case People v. Honig (1996) 48 Cal.App.4th 289 examined Penal Code section 7-willfullness knowledge requirements, in a criminal conflict of interest case. The Honig court considered three alternative standards for knowledge of a contract held to expose a public official to a conflict of interest. The court rejected that willfully creating a conflict of interest required that defendant know that the acts were illegal. It is well-settled that knowledge of the existence of a law prohibiting the conduct isn’t ordinarily an element of a willful offense, this irrelevance being the substance of the popular rule, “Ignorance of the law is no excuse.” The Honig court also rejected the standard at the other, most inclusive, end of the spectrum. The defendant does not become culpable for willfully creating a conflict of interest merely because he knew the terms that created the conflict. The inclusive definition would make conflict of interest a kind of strict liability offense. The court accepted the third, intermediate, candidate: willfully creating a conflict of interest involved knowing that the contractual terms created a conflict of interest. The standard for willfully creating a conflict of interest requires knowing more than an objective description of the act and less than the illegality or even the harmfulness of the conduct. It requires transparent knowledge of the prohibited conduct in exactly the terms used by the violated statute. (Honig, supra, 48 Cal.App.4th 289 [including only the first two sentences of quote below; quoted In re Stonewall F. (1989) 208 Cal.App. 3d 1054.].) Stonewall F.’s explanation, fully quoted:
The section 7 definition is entirely dependent upon the act to which "wilfull" is appended. The required intent is an intent to do just that to which the term wilfull is applied. Its significance therefore is wholly dependent upon the grammar of the specific offense in which the term is employed. (See also Hall, General Principles of Criminal Law, supra, p. 142 ["It is evident that there must be as many mentes reae as there are crimes. And whatever else may be said about an intention, an essential characteristic of it is that it is directed towards a definite end."]) (In re Stonewall F., supra, 208 Cal.App. 3d at p. 1066.)
The Business and Profession Code section 6103 language awaiting parsing with Penal Code- section 7-concepts reads:
A willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.
The intent required to violate section 6103 is knowing that the order exists and that it requires doing or forbearing a particular act. Respondent's knowledge that the order required him to forbear is tantamount to knowing the order’s finality. Directly applying section 7 subdivision 1 to section 6103 violations corroborates the holding of In the Matter of Maloney (2005) 4 Cal. State Bar Ct. Rptr. 774, 787 that willfulness in violating an order requires respondent’s actually knowing it's final.

The other major case construing Penal Code section 7 willfulness People v. Garcia (2001) 25 Cal.4th 744 examined whether a sex offender’s violation of the mandatory registration laws was willful if the sex offender should have known the requirement, having received instruction and given acknowledgement. Garcia noted that the courts construe willfully, in appropriate statutory contexts, to include negligent or at least criminally negligent conduct. Garcia held that even criminally negligent conduct would not have satisfied the willfulness requirement. After reviewing cases involving willfulness without actual knowledge of the command disobeyed, the Garcia court concluded exceptions to the actual-knowledge requirement could apply only where the statutory violation consists of an affirmative act, as contrasts with an omission. (People v. Garcia, supra, 25 Cal.4th at p. 752 ["These cases generally involved affirmative acts, not a mere failure to act."].)

Section 6103 commands acts of obedience to court orders, and violating section 6103 involves failure to perform these acts of obedience. This comment on the statute’s grammar holds true, even if the order object of disobedience prohibits rather than commands action. The State Bar commits sleight of hand, typically skipping the grammar of the statute and analyzing the order’s grammar instead of the statute’s. Under Garcia, willfulness in failing to perform specific acts, such as obeying specific court orders, requires knowledge of what is commanded and that it is commanded. (Garcia, supra, at p. 752.)

Sunday, September 28, 2008

kanBARoo Court. Interlude 6. Making a federal case of it

My case, based on indisputable allegations of prosecutorial misconduct, proves due-process challenge strategies in disbarment cases shouldn't culminate in the California Supreme Court or below. My case tested and refuted the only theory on offer, alternative to bias, to explain the Supreme Court's post-1991 State Bar abstention. My theory said fundamental legal challenges seldom occurred in State Bar cases because the respondent's cost, incurred to avoid waiver — "involuntary enrollment inactive" — is too high.

I learn, as I get customers often owning greater working knowledge of the system than I, the causal picture is more complex. The determiner of State Bar Court decisions, when it wants to be, is the Board of Governors, the partly politically appointed, partly elected body that controls the State Bar. The incompetence of State Bar defense counsel also has an extra-legal complication, in a shadow organization of former State Bar trial counsel, an organization bestowed with a monopoly over striking deals, each sold at the going rate of a $50 thousand to $100 thousand in attorney's fee. These shadow-group State Bar defense attorneys, my sources tell me, compensate "referring" State Bar counsel with expensive gifts.

Despite the failure of a California Supreme Court strategy for fundamental legal attack, I remain convinced that only a fundamental attack can force dismissal in a disbarment case. The remaining realistic possibility for fundamental disbarment cases is attacking the U.S. Constitutional invalidity of parts of the State Bar Act in federal district court. A federal district court perspective depends on attributing statutory origin to one of the State Bar Court's systemic abuses. Informed customers say these abuses include, in addition to the State Bar's asserting monopoly power over defense counsel: pursuing charges the State Bar Investigator admits the State Bar knows are groundless; willfully withholding exculpatory evidence from in pro per respondents; and applying unlawful conditions, such as restricting potential counsel, to releasing exculpatory evidence. My case and experience adds others, such as deflecting or destroying court documents, proof of service fraud, and extortionate resignation demands.

My petition for rehearing offers no hope of resuscitating a California strategy. One reason, the petition's chances are slender at best. Why even slender? Because only the petition for rehearing contains a reply to a State Bar opposition. The State Bar troubled itself to avoid reply to its opposition to my petition for writ of review. Neither could I reply to the State Bar's opposition to my motion to strike, Rules of Court not permitting. When a court pays attention according to its preferences and acts according to its habits, a reply, as contained in my petition for rehearing, is the most important document. But if the Supreme Court were to grant my petition for rehearing, the court still had acted with such a degree of negligence that reliance on that court cannot ground a sound perspective. Reckless rubber-stamping seems the only explanation for apparent Supreme Court abstention, other than explaining it as invoking a surreptitious non-rebuttable presumption favoring the State Bar. My petition for rehearing in the California Supreme Court, consequently, doesn't even potentially rehabilitate the California high court as the target legal arbiter.

I am soliciting reports of State Bar prosecutorial misconduct, to help understand the State Bar's systemic due process violations. This information will help some of my customers and potentially an unknown number of California attorneys. Correspondents should feel free to e-mail reports anonymously.

Saturday, September 20, 2008

kanBARoo Court. 48B Installment. The Mechanism of Review

The State Bar Court is not a court, since institutions function judicially only when subject to review. The formal review procedure falls short of actual judicial supervision, as the results show. Since the In re Rose (2000) 22 Cal.4th 430 opinionless-decision case, the Supreme Court has granted only a single petition of review (see In re Silverton (2005) 36 Cal.4th 81) and has reversed no State Bar recommendations, even partially. Absence of written opinions would ordinarily determine that the State Bar Court is subject to no supervision by an Article VI court. But the State Bar has a special relationship to the Supreme Court, its assigned supervisory role over the State Bar Courtnot its general judicial supremacy in California—authorizing its review. To exercise its supervisory function the court would be compelled to grant petitions for review — or so I thought — when the State Bar's practices were potentially embarrassing or spiraling out of control. While the law provides for no method of supervision at the case level besides review, the review process's rubber-stamp character means the Supreme Court must have other supervisory channels, other means of expressing displeasure with the State Bar, even when the petition's denial is the court's only public act.

The other major factor that causes a practical absence of granted petitions is the unreasonably high standard for reversing the State Bar Court. Often, to reverse the State Bar Court — where the clear-and-convincing-evidence standard had favored respondent — requires that the State Bar respondent prove the State Bar Court's decision was wrong by clear-and-convincing evidence. In the usual case it is under the clear-and-convincing-evidence standard that the Supreme Court must determine the State Bar respondent is more likely than not to prevail
for the Supreme Court to grant a full review. The clear-and-convincing-evidence standard for prevailing raises the bar on preliminary review so inordinately as to extinguish the review process.

Combining the clear-and-convincing-evidence standard with opinionless reviews means that the State Bar respondent must not only meet this extraordinary standard of disproof but also receive no information on the petition's insufficiencies relative to this least intuitive of standards. Petitions for rehearing become almost impossible to write.

Wednesday, September 17, 2008

kanBARoo Court. Installment 48A. Petition for Rehearing of Petition for Writ of Review

[Filed Sept. 19, 2008]

[Denied Oct. 16, 2008]




STATE BAR NO. 183617
6424 Mountain View St., #2
Joshua Tree, CA 92252-2385
Phone: (760)974-9279
Fax: (866) 392-4866

1. The State Bar’s continued silence on the whereabouts of DTC Lawrence’s proof of service removes any doubt the Bar admits the malfeasance. 4
A. The State Bar evades the key factual allegations, ignoring its public responsibilities. 4
B. DTC Lawrence’s malfeasance alone justifies granting a writ of review. 5
2. Petitioner’s administrative remedies do not include the Review Department. 6
3. Adopting the Hearing Department’s conclusions begs the question of a fair hearing. 6
A. Petitioner’s reasonable cause for withdrawing from participation depends on reasonably foreseeable consequences. 6
B. Denial of a fair hearing renders the weight of the evidence meaningless. 7
C. The malfeasance was consequential. 8
(1) The Review Department considered the petition for interlocutory review behind petitioner’s back. 8
(2) DTC Lawrence deflected petitioner’s opposition to the State Bar’s motion for terminating sanctions. 10
4. Petitioner has rebutted the Evidence Code section 664 presumption. 10
5. Conclusion. 11

Colangelo v. State Bar (1991) 53 Cal.3d 1255 6
In re Rose (2000) 22 Cal.4th 430 11
In re Silverton (2005) 36 Cal.4th 81 12
Morgenstern v. Dept. of Mot. Veh. (2003) 111 Cal.App.4th 366 11
Rules of Court, rule 9.16(a)(3) 7
Rules of Court, rule 9.16(a)(4) 7
State Bar Court Rules of Procedure, rule 200(d)(1)(B) 6

Petitioner requests a rehearing because defective service and ensuing delivery delay of the State Bar’s answer precluded petitioner’s reply. Petitioner includes the reply matter in the present petition, to aid the court in assessing the materiality of petitioner’s exceptions to the State Bar’s answer.
1. The State Bar’s continued silence on the whereabouts of DTC Lawrence’s proof of service removes any doubt the Bar admits the malfeasance.
A. The State Bar evades the key factual allegations, ignoring its public responsibilities.
Petitioner argued Deputy Trial Counsel Melanie J. Lawrence caused a fraudulent rejection of a petition for interlocutory review, allowing the State Bar to defeat petitioner's request for a stay in the Hearing Department. The Review Department clerk claimed she destroyed all copies of the documents except the one returned, and deprived of those copies, petitioner was unable to pay for an immediate resubmission. The Hearing Department's unwillingness to make any findings about petitioner's evidence convinced petitioner that reliance on the clerk's office remained a clear and present threat to respondent's rights. Petitioner would waive any protection of those rights if he proceeded, when petitioner knew DTC Lawrence had illegally sabotaged petitioner’s defense. DTC Lawrence's failure to explain her inability to produce the service copy of the proof of service established her guilt, her failure to explain, an admission by silence.
The State Bar has repeatedly stonewalled petitioner's proof of DTC Lawrence's document destruction, and in its answer, the State Bar continues to use this dubious prosecutory tactic. If any question arose about the decisiveness of petitioner's proof of admission by DTC Lawrence's silence, glaring omission of any response to petitioner's main argument proves that the State Bar chooses to avoid drawing attention to this embarrassing evidence, hoping to blind the courts by absence. The State Bar—choosing evasion over good-faith exploration of the errant deputy trial counsel's misconduct—insults the public with contempt for transparent administration.
B. DTC Lawrence’s malfeasance alone justifies granting a writ of review.
Even if DTC Lawrence's malfeasance had no direct effects on the proceedings, this wrongdoing and the Hearing Judge's unwillingness to address the misconduct should suffice to obtain Supreme Court review. Petitioner's withdrawal from active participation in the case was justified because the clerical channel—its unobstructed function essential to due process—had been compromised. The State Bar's answer, by continuing its stonewalling regarding the evidence for malfeasance, decisively proves the admission because the present circumstance, argument before the Supreme Court, unequivocally calls for explanatory efforts.
2. Petitioner’s administrative remedies do not include the Review Department.
The State Bar first claims that petitioner, having filed no petition with the Review Department, has not exhausted the administrative remedies. State Bar law is well-settled that under State Bar Court Rules of Procedure, rule 200(d)(1)(B), entry of default puts respondent out of court in the entire State Bar Court, Review Department included. Petitioning the Supreme Court is now petitioner's only option. (See Colangelo v. State Bar (1991) 53 Cal.3d 1255, 1263 [Petition for review after default in Hearing Department timely filed in Supreme Court.].)
3. Adopting the Hearing Department’s conclusions begs questions about fair hearings.
A. Petitioner’s reasonable cause for withdrawing from participation depends on reasonably foreseeable consequences.
Respondent argues that petitioner lacked reasonable cause to withdraw from the proceedings because the incidents did not adversely affect the proceedings. While the malfeasance affected the proceedings directly, the State Bar also errs by ignoring timing. The incidents’ effects could be fully known only later, but the events portended an unfair trial, warranting petitioner's protecting, instead of waiving, his due process rights.
B. Denial of a fair hearing renders the weight of the evidence meaningless.
The State Bar maintains that the case record demonstrates culpability, and the State Bar complains that petitioner does not address the materiality of the defects in due process. The State Bar claims Rules of Court, rule 9.16(a)(4), requires such a showing. The weight of evidence, however, is only one of four bases for Supreme Court jurisdiction. Rule 9.16(a)(4), permitting review based on the weight of the evidence, is distinct from rule 9.16(a)(3), permitting review based on no fair hearing, and the two rules are disjunctive, not conjunctive, for good reason, when applied to the present case. A due process breakdown affects not only the court's appraisal of the record but more basically, petitioner's ability to create a record. Petitioner never presented his case, never had the opportunity to challenge the State Bar's facts. Petitioner cannot make a factual case before the Supreme Court that had not been put before the State Bar court, and even if an original case were allowed, petitioner should not be required to make one, as petitioner would forgo factfinding below.
C. The malfeasance was consequential.
(1) The Review Department considered the petition for interlocutory review behind petitioner’s back.
The record does not support the State Bar's arguments about the effect of the malfeasance, and the State Bar did not verify its answer, as is usually required when responding to verified documents. The State Bar adopts a correspondingly casual attitude toward these facts, despite their being of record. The State Bar states, regarding the petition for interlocutory review:
"However, although the documents were returned to him due to the lack of an original signature and not enough copies, Diamond's subsequent motion for late filing of the Petition for Review was granted. The denial of the Petition was based on the merits--not on any failure of the document to be considered by the Court."
The State Bar provides no date for this alleged subsequent motion for late filing, and the only motion for late filing petitioner submitted accompanied the only submitted copies of the petition for interlocutory review, which the clerk rejected for filing. Following the petition's rejection for filing, petitioner made no second request for review.
Petitioner did not know of the Review Department's consideration of the petition, as petitioner received no further notice until the Review Department rejected the petition. Petitioner had submitted the motion for late filing with the original petition for review, and the Review Department clerk said she destroyed all the unreturned documents. Subsequently, the Review Department granted the "destroyed" motion for late filing, and considered the "destroyed" copies of the petition for interlocutory review, without notice to petitioner.
The State Bar is also mistaken in its claim that "the documents" were returned to petitioner. The Review Department clerk returned only a single copy. When the Review Department inexplicably considered the petition for interlocutory review, it necessarily considered petitioner's initial filing, minus the copy returned. Receiving no notice, petitioner was precluded from further participation in review proceedings, such as by moving to amend the petition.
The State Bar invents facts to disguise the anomalousness of the actual happenings, where the Review Department undertook review without notice to petitioner, after petitioner had been informed his documents were rejected and destroyed. The anomalousness is further indication of wrongdoing, smacking of a desperate effort to correct a potentially fatal prosecutory transgression behind petitioner's back. The State Bar does not address petitioner's argument that a review without notice is not a fair hearing.
(2) DTC Lawrence deflected petitioner’s opposition to the State Bar’s motion for terminating sanctions.
The State Bar also challenges the claim of interference with the opposition to entry of default. The December 6, 2007 motion for terminating sanctions was essentially another motion for entry of default, default being the main sanction sought. As the State Bar admits, the court did not receive the opposition, and the Hearing Judge ordered an OSC regarding terminating sanctions. Petitioner included the opposition to the motion as an exhibit to his motion for reconsideration of the order for an OSC re terminating sanctions, leaving no question in the record about which motion was unopposed, due to DTC Lawrence's second act of intermeddling.
4. Petitioner has rebutted the Evidence Code section 664 presumption.
The State Bar claims that petitioner's strong evidence of intermeddling should be ignored because of an Evidence Code section 664 presumption. This presumption does not operate to exclude contrary evidence, but only applies to inferences absent such evidence. (Morgenstern v. Dept. of Mot. Veh. (2003) 111 Cal.App.4th 366, 373 ["Where it is applicable, the presumption shifts the burden of proof to the party against whom it operates to establish the nonexistence of the presumed fact."].) The strength of petitioner's evidence reflects not only that DTC Lawrence was unable to produce the service copy of the proof of service but also that petitioner knew in advance she would be unable to. Petitioner could not lightly risk making a charge that DTC Lawrence would easily refute by producing the proof of service. The practical certainty of petitioner's deduction depends not only on DTC Lawrence's inability to produce some proof of service but petitioner's having predicted she would be unable to produce this particular document. The combination of circumstances is clear and convincing evidence DTC Lawrence parted from her service copy in the unlawful way petitioner asserted.
5. Conclusion.
In re Rose held out the prospect that every petition will cause at least one justice to review the file seriously. (In re Rose (2000) 22 Cal.4th 430, 453.) The case held that the potential for triggering a full review satisfied the Supreme Court's duty to assure its ultimate control over discipline. (Id., at p. 442 ["our denial of review does not render the State Bar Court's decision 'final' because such a decision simply constitutes a recommendation…"].) Following the In re Rose decision, petitioner finds the Supreme Court has granted a single petition for writ of review. (See In re Silverton (2005) 36 Cal.4th 81.) As the Supreme Court has never reversed the State Bar court since In re Rose, no Article VI court exercises actual supervision of the State Bar. The present case highlights that supervisory lacuna. Petitioner has stated a prima facie case that procedural defects would have made a fair trial impossible. Without hearing the detailed evidence concerning these defects, the court cannot evaluate their materiality. The Supreme Court should agree to review this case because, otherwise, it will give the State Bar a green light for lawless bullying of accused attorneys.