kanBARoo Court. 30B Installment. The State Bar Violates Richard Fine's First Amendment Rights

Litigants defending against legal oppression must contest questions of law, yet litigating the law, as opposed to the facts, requires different skills than trial lawyers possess. Lawyers understand that appellate attorneys form a distinct breed, but the fact-laden content of motions initiating trial-court summary procedures lends them the deceptive appearance of trial-attorney work. Of trial lawyers like Fine innocent of wrongdoing, the few who jurisdictionally attack the notice of disciplinary charges (NDC) sometimes overlook appellate opportunities. While Fine may not be able to undo the omission, Fine's appellate opportunity clarifies the injustice of State Bar intervention into Fine's judicial disputes, implicating Fine's U.S. Constitutional First Amendment rights.

California's Code of Civil Procedure contains an antiSLAPP provision, a special summary procedure. (See Code Civ. Proc., § 425.16.) The California Legislature declares its purpose in the body of the statute:

The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

The Anti-SLAPP statute provides a special summary procedure and an automatic right of appeal with regard to actions that include, among other legal targets:

[A]ny written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law… (Code Civ. Proc., § 425.16, subd. (e)(1).)

State Bar v. Fine is the State Bar's legal action against Fine's judicial written and oral statements, subjecting the action to an anti-SLAPP motion unless the statutory exceptions preclude application. The exceptions are not preclusive, including:

This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor

The office of the Chief Trial Counsel goes unmentioned, as the State Bar is a public corporation, neither connected with any other prosecutor's office nor representing the People.

Filing an anti-SLAPP motion brought to enforce the higher standards of initial proof applied to liberty-chilling legal actions, such as the one by the State Bar against Fine, could win: respondent's legal fees, dismissal with prejudice, and an immediate appeal to the Court of Appeal — bypassing the dubious State Bar Court Review Department — if the Hearing Department denies his anti-SLAPP motion. The Legislature passed the anti-SLAPP statute to protect First Amendment civil liberties by filtering out oppressive lawsuits seeking to deny exercise of basic democratic rights. But consider, if the Legislature worries about the chilling effect of civil suits, such as defamation or malicious prosecution, did it intend to allow draconian State Bar actions against political speech and petitions addressed to the courts? Because Fine addressed the court alone, public-protection considerations don't justify the Bar’s intervention. The Bar doesn't accuse Fine of acts of fraud or misappropriation perpetrated on the public but of vexatious speech before judicial officers holding the contempt power. That power must deter stubbornly frivolous motions — to present the worst-case characterization — since otherwise a judge confronting a contumacious non-attorney in pro per would forfeit control of the court. No emergency arose to justify State Bar intervention against Fine's acts of petition before courts of law.

While Fine arguably waived his right to file an anti-SLAPP motion under a statutory time bar, a more perspicacious account is that the State Bar through its rules denied Fine his right to file an anti-SLAPP motion because the State Bar Court Rules of Procedure makes the motion to dismiss the NDC available as Bar-Court respondents’ exclusive summary procedure. Fine might successfully contend that after relying on its coercive procedures the State Bar is estopped from excuse by Fine's omission below.

Most importantly for Fine — unheard of by the State Bar or the State Bar defense establishment — a defendant/respondent may appeal a trial court's denial of an anti-SLAPP motion, as opposed to petitioning for review. Fine might hope to assert the still substantial remnant of his right to a hearing on appeal before the California Second District.

Best to understand this blog:

* Read the 1st, 2nd, 7th, 8th, and 14th Installments, first; or
* Make liberal use of hyperlinks; and then
* Follow your interests; or
* Follow the case.

kanBARoo Court. 30A Installment. Collateral Estoppel as a Tool of Judicial Bias in the Richard Fine Matter

Although Richard I. Fine’s supposedly corrupt motive for filing motions deemed frivolous formed the crux of the State Bar's case against him, the State Bar Court also made a strained attempt to allege dishonesty, lending a comic aspect to its account. A dispute arose over an apparent Freudian slip by a Superior Court judge in his statement of refusal to disqualify one Commissioner Mitchell, when that Superior Court judge, hearing Fine's motion to disqualify, contradicted himself. The judge wrote that Fine's objections were unfounded and also wrote that Commissioner Mitchell had been "not impartial.” Later, the Superior Court judge announced he had not intended the negation. Judge Honn concluded that Fine had lied to the Court of Appeal about the contents of the Superior Court judge's opinion, when Fine insisted the opinion was actually self-contradictory.

Judge Honn claimed the Superior Court judge had clearly made a “typographical error.” The characterization is curiously inaccurate, and it reveals how Judge Honn wears his bias on his sleeve. This is a most strange "typographical error," a term that "includes errors due to mechanical failure or slips of the hand or finger, but excludes errors of ignorance." (Wikipedia.) If the Superior Court judge successfully maintained his mistake was clerical in nature, he is entitled to correct it sua sponte, but the source of his mistake, if it was a mistake, looks to be his confusing the meaning of "partial" and "impartial," not a clerk typing the wrong alpha-numeric. Small gestures, such as mislabeling one contender's errors, are often key to detecting judicial bias. Although respondent Fine was entitled to a clear and convincing evidence standard of proof, Judge Honn tilted the playing field in the opposite direction, when he used a euphemism for the supposed error.

The Bar Court determined that Fine misrepresented the Superior Court judge’s opinion, treating Fine's disagreement with a judge as though it were dishonesty. No doubt the disagreement was serious, as Fine challenged the judge on characterizing judicial intent. But Fine was entitled to challenge the judge’s characterization, and entitled to treat the document as meaning what it literally said. The State Bar Court's finding by clear and convincing that the judge had made a typographical error expresses genuine absurdity, besides absurd pettiness.

But wait! Did the court even have to evaluate the evidence? In evaluating the typographical error matter, the Bar Court claimed to have conducted an independent evaluation, but in supporting many of its conclusions, the court applied the doctrine of collateral estoppel to Fine's contempt conviction. A contempt conviction is essentially a criminal matter, and while the applicable standard of proof is more than adequate, other problems should have deterred using the contempt conviction to effect issue preclusion. California courts do apply collateral estoppel liberally, having abrogated the traditional requirement of mutuality, but liberality in the formal requirements must be balanced by greater exercise of judgment. When applying collateral estoppel, California law requires that the courts address whether the specific application of the doctrine serves the interest of justice. (People v. Taylor (1974) 12 Cal.3d 686, 695.) Collateral estoppel based on criminal judgments is controversial in jurisprudence and requires particular scrutiny.

Two considerations should have led the court to decline to collaterally estop Fine: incomplete finality of judgment and differential motive to defend. Collateral estoppel requires finality in the collaterally applied judgment, but criminal judgments necessarily lack a civil judgment’s degree of finality, because they are subject to collateral attack for reasons intrinsic to the case. Reasonably, if you suffer a criminal conviction, it may be reversed, if say, witnesses condemned you by committing perjury, whereas, in a civil case, you must attack the perjury in the case itself. Fine's allegations of de facto bribery of Superior Court Judges amounts to an allegation of intrinsic and extrinsic fraud, which warrants collateral attack, since Fine's conviction is only as strong as his underlying civil case against the County is weak. Since Fine was still contesting the civil action, the contempt conviction lacked the requisite finality. The other implicated criterion, equal incentive to defend, requires that Fine have the same motivation to litigate the contempt conviction as the disbarment. Unlike disbarment, contempt is not inherently ignominious. Disbarment, moreover, is a more serious penalty than spending three days in the local jail. Fine lacked the same motivation to defend the contempt action as the disbarment, and the contempt conviction, consequently, was not probative for his disbarment case.

The court offered no analysis of whether applying collateral estoppel to the contempt conviction served the interest of justice. The court would then have to consider Fine’s contentions. The State Bar Court’s disregard for respondent argument is damning in general but expressly unlawful when the court applies collateral estoppel.

kanBARoo Court. 30th Installment. The Richard Fine Matter and the Moral Turpitude Travesty

Incompetent administration of law is oppressive in itself, as bureaucratic reflex replaces legal reasoning, but usually the oppression turns corrupt. In my case, the prosecutrix resorted to fraud on the court by pilfering documents submitted for filing. Thus, a second way incompetence breeds oppression occurs because of the inability of the incompetent to defend their acts honestly. A third way is that incompetence limits the reasons for eschewing oppressive or corrupt practices. It matters little whether one acts for good or bad reasons, if the results are wrong in either instance. A fourth way, their sole means to career advancement, the incompetent curry favor.

I started this blog, subtitled "How Legal Incompetence Engenders Oppression," because my case illustrated in pure form the most generic variant of legal oppression, bureaucratic reflex. Because of the case's direction, these Installments have digressed into the second route from incompetence to oppression, the prosecutrix's inability to win cases honestly, and, somewhat the third, in the court's indifference to the prosecutrix's misconduct. I have traveled the fourth, financially self-aggrandizing corruption, only briefly here. While there are pure cases of bureaucratic reflex—mine was at its inception—there are no pure cases of juridical corruption by currying favor for material reward because such corruption requires generalized incompetence, an environment unable to rebut error.

An all-sided view of incompetence and oppression must take account of scenarios where greed joins ineptitude in the engenderment. The Richard Fine disbarment is such a case. (See http://tinyurl.com/38ek9h) Attorney Richard I. Fine has practiced for some 40 years, gaining a reputation for successfully litigating citizen actions against government entities. His career trajectory eventually led to collision with the judicial system itself when he demanded the disqualification of judges in citizen litigation against the County of Los Angeles, based on the judges’ accepting payment from the County. Fine contends that the gratuitous payment of a $40,000 annual cash benefit by the County violated the California Constitution, which states that judges shall be paid by the State exclusively, and he contends the payments amount to a bribe. Fine repeatedly moved to disqualify judicial officers in actions against the County and eventually sued the judges personally, a procedure permitted for personal wrongdoing. At least one of the judicial officers filed a complaint with the State Bar, and the complaint resulted in the Hearing Department recommending disbarment. Judge Honn's 72-page opinion differs from similar documents in other courts by the absence of respondent Fine's legal and factual contentions. Judge Honn presents the findings in full comprehensiveness, dwelling on the smallest details of what the court claims happened, while he provides scant indication of the issues and none of Fine's contentions. The omissions are giveaway that justice is not being done.

The State Bar Court doesn't ordinarily disbar without a showing of greed or dishonesty. Judge Honn needed allegations of moral turpitude, and such allegations the good judge did propound. Judge Honn accused Fine of making frivolous motions out of corrupt motive, the corrupt motive implying moral turpitude. Even if the court could justify discipline for good-faith motions the court considered frivolous, it remains hard to see what Fine's corrupt motive might be. Allegations of greed — the substance of true moral turpitude — are absent from the charges and Judge Honn's opinion. The moral turpitude may be invisible, but Judge Honn is not one deterred by implausibility. According to Judge Honn's opinion, the corrupt motive served by Fine's allegedly frivolous filings was to coerce the judges, and failing that, to wreak revenge!

Judge Honn does not clarify how he surmised Fine's motives. The State Bar Court recommended Fine's disbarment because he is a "legal bully," obviously the tenor of the offended judges' complaints. Some judges are so accustomed to lawyers cowering in their courtrooms that they might contrast any zeal as bullying, but, as to actual bullying, a barrage of frivolous motions is no way to bully a judge. And where is the revenge, when the judge wins, the petitioner is sanctioned, held in contempt, and serves, as did Fine, three days in jail? Corrupt motive in the Fine case is a senseless conclusion without evidence in the face of a far more plausible explanation of Fine's incessant motions. When the judges showed new biases, Fine had to file motions demanding disqualification or risk waiving the issue. Fine perceives a mass-conspiratorial fraud on the court, not an everyday legal situation. Whatever the merits of his position, this is not a State Bar matter.

In the next Installment, you can learn how the Fine Hearing Department failed even to establish the alleged facts on which it dwelled and relied.

kanBARoo Court. 29A Installment. Why didn't Bill Clinton argue federal preemption?

Clinton filed no Arkansas brief. To argue preemption, Clinton would have to appeal the decision. Here a difference between many other systems and California's comes into focus. California has created the most "advanced" State Bar establishment in the world, having set up a separate court system with its own Bar law. Other jurisdictions, such as Arkansas, have different rules for Bar cases, much like California's, but no separate State Bar system, which means primarily that they lack the equivalent of California's Review Department and a separate legal reporter for State Bar cases.

In Arkansa after a decision is rendered by a committee appointed by the state's Supreme Court, the latter court usually approves the disbarment. Thus there is no procedural room to appeal a disbarment decision, whereas in California an appeal can be taken to the Review Department and subsequently to the California Supreme Court. To raise the preemption defense, Clinton would have had to appeal to nothing less than the U. S. Supreme Court. A challenge to State Bar procedure can be initiated in federal district court, but the U.S. Supreme Court has exclusive jurisdiction over a challenge to a state's disciplinary decision concerning only an individual. (John Doe v. E.E. Pringle (10th Cir. 1976) 550 F.2d 596 ["[F]ederal courts do exercise jurisdiction over many constitutional claims which attack the state's power to license attorneys involving challenges to either the rule-making authority or the administration of the rules [citations] such is not true where review of a state court's adjudication of a particular application is sought."])

While practical politics might explain Clinton's failure to appeal, to my knowledge, no legal commentator raised the federal preemption issue. One consequence of the dearth of significant controversies in State Bar court is that commentators have little interest in the decisions. Considering the critical role the State Bar or Bar-equivalents play in regulating the practice of law, the commentators are misguided in their apathy.

Best to understand this blog:

* Read the 1st, 2nd, 7th, 8th, and 14th Installments, first; or
* Make liberal use of hyperlinks; and then
* Follow your interests; or
* Follow the case.

kanBARoo Court. 29th Installment. Why was the Arkansas Disbarment of Bill Clinton Unethical and Unlawful?

One event demolished the State Bar establishment’s effective reliance on disbarment as a mark of Cain, to anchor coercive power: the 5-year disbarment of a sitting U.S. President, when the Arkansas Supreme Court disciplined then-President Bill Clinton, after a majority of the U.S. Senate failed to convict, and not a single Democratic Senator voted for conviction. The outcomes implied that one may be ethically qualified for the United States Presidency, yet lack the morals to practice law in Arkansas, a conclusion that the cynical and the idealistic both must reject. Either the U.S. Senate or the State of Arkansas’s State Bar Court equivalent was out of touch with American morals, and it wasn’t the Senate. Clinton's approval rating soon rose to an unprecedented 73%.

Clinton was disbarred based on a federal district court's order citing Clinton for contempt in the Jennifer Flowers proceeding. The allegedly contumacious conduct consisted of false statements Clinton provided in deposition, violating the court's discovery order. The court focused on two false statements: that Clinton had never been alone with Monica Lewinsky and that he had never had sexual relations with her. The Arkansas Supreme Court, through its Bar-apparatus, invoked Arkansas professional practice rules 8.4(c) and 8.4(d), which make it professional misconduct for a lawyer to:

(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) Engage in conduct that is prejudicial to the administration of justice

For one living and litigating under the California Constitution, which declares privacy on par with life and liberty in its inalienability, requiring under the Federal Rules that a litigant inform on his sexual partners seems barbaric. Without a direct showing of relevance to the present lawsuit, a federal plaintiff can force exposure of the most personal information. While a court should assign some culpability for the generalized offense of lying in court, it should also consider the altered ethical context, depending on the personal decision the respondent actually faced. Bar Rules typically distinguish different grades of unethical conduct, and the Arkansas rules offer this discussion of moral turpitude:

Comment [2] (Moral turpitude)
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

There are other relevant measures of ethical magnitude, however, such as between breach of basic moral rule (malum in se) and breach of administrative regulation (malum prohibitum). Both malum in se and malum prohibitum infractions have some ethical relevance, but only malum in se violations are usually taken to indicate turpitude, because malum prohibitum infractions reflect only the single trait of law abidingness. While the rule against lying in sworn proceedings is malum in se in form, the underlying obligation to allow routine discovery of one’s sexual partners is malum prohibitum. There is no moral inevitability today for judicial access to all information potentially relevant to civil litigation; no moral inevitability today to afford civil litigants easy intrusion into an opponent’s sexual relationships; no moral inevitability today about holding the threat of future judicial inquest over every unconventional private act a person performs. California privacy law proves the absence of such moral inevitability. Lying to protect personal information from an ethically dubious intrusion is malum in se, insofar as it involves lying, and malum prohibitum, insofar as it involves a failure to comply with the discovery order requiring disclosure. The Arkansas Supreme Court Bar arm didn't consider the ethical dimension in sufficient depth, because it responded with the bureaucratic reflex and moralistic rigidity typical of the State Bar establishment, using the single amorphous concept of moral turpitude to erase distinctions.

The ethical crudeness of the Clinton disbarment decision, however, was not its main failing. The Arkansas Supreme Court should have been subject to federal preemption. It exceeded its jurisdiction in disciplining a President for his conduct as a Federal office-holder. The states have no jurisdiction to control the exercise of Presidential power or of the President's performance of his duties.

The court might have agreed, as it created the impression of imposing the sanction for conduct it observed during the Flowers proceeding, involving personal rather than Presidential conduct. Clinton’s grand jury testimony during the Special Prosecutor’s investigation of his Presidential conduct impeached his Flowers testimony, said the court, but the same logic allows that the Flowers testimony impeached Clinton’s statements to the Starr grand jury. While the district court judge wrote that she directly observed the contumacious conduct, she was mistaken in her evidentiary characterization. She actually observed only a conflict between two testimonial acts. The judge observed or was entitled to take judicial notice of a conflict between Clinton's testimony in his Flowers deposition and his testimony before the Kenneth Starr grand jury, indicating that in one of the two instances of testimony, Clinton was lying, leaving the question a mixed State and federal law question, pre-empted by federal law. The Arkansas court was not entitled to disbar Clinton.

kanBARoo Court. 28th Installment. The Ethics and Pragmatics of Provoking the Prosecutrix

After I learned that the State Bar is an irascible entity, I adopted the tactic of deliberately provoking the Office of the Chief Trial Counsel, through Deputy Trial Counsel Melanie J. Lawrence. Did I entrap the prosecutrix, when I deliberately provoked her with public criticism, causing her to perform extraordinary criminal acts? No one has questioned the ethics of my tactics, but I predict the prosecutrix will incorporate their condemnation in a motion to add "contempt for the proceedings" as an aggravating factor. Most lawyers, on the other hand, will be unsurprised by my litigation tactics, apart from their application to State Bar proceedings.

The entrapment defense provides by analogy the appropriate legal standard in assessing the ethics of provocation, despite the surface absurdity of the police-agency/accused role reversal. If my provocation of the prosecutrix were unethical, it would be for the same reasons that entrapping police conduct is improper: gaining advantage from my opponent’s improper conduct that I caused. No case law in any jurisdiction considers provocative litigation tactics as such, an omission ordinarily implying only that no lawyer would consider zealous but lawful conduct designed to unhinge an opponent anything but proper. The unprecedented nature of such an allegation would ordinarily suffice to rebut it, except in a State Bar case where an aggravation is assigned. Aggravations include numerous supposed ethical infractions never discussed in those terms.

The U.S. Supreme Court continues to be divided on procedural aspects of the entrapment defense, with the California courts carrying over aspects of both the majority and minority opinions, but on the matter of entrapment's definition, the majority, minority, and California positions do not substantially differ. Under federal law, the "controlling question [is] whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials." (Sorrells v. United States (1932) 287 U.S. 435, 451.) The Supreme Court minority defined entrapment similarly as “the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.” (Id. at p. 454 (dis. opn.)) From these definitions follows the test: "the likelihood that [police conduct] would entrap only those ready and willing to commit crime." (Sherman v. United States (1958) 356 U.S. 369, 384 (dis. opn.))

Three facts, their relevance grounded in the definitions and test, speak dispositively against my committing any wrongdoing when I deliberately and successfully provoked the prosecutrix into a state of vicious but self-defeating respondent-directed hatred:

1. My conduct involved no inherent wrongdoing;
2. The concept governing prosecutrix’s misconduct did not originate in my imagination; and
3. The provocation would not have elicited the wrongful conduct from the prosecutrix, were she not predisposed to obstructing justice.

Fact 1. Publishing a blog is an exercise of First Amendment rights. If I libeled the prosecutrix, she has a civil remedy, which she will not pursue, because my accusations are true, and truth is a complete defense to defamation. Employing innuendo biographically likely to enrage the prosecutrix, such as the consonance of ‘prosecutrix’ and ‘dominatrix,’ is recognized as an inviolate part of speech.

Fact 2. Had I suggested the wrongdoing, or tried to convince the prosecutrix she could get away with it, my acts would be ethically tainted, even though violating no Rule of Professional Conduct. How can I complain of the prosecutrix's violation of due process, if her plot originated with me? Entrapment involves planting an idea in someone’s mind, not instigating an emotional reaction. Knowing that the prosecutrix would commit some rash act of oppression, I still had no idea of its nature, which indeed surprised me, because it required the clerk’s collusion.

Fact 3. Inquiry into whether the allegedly entrapping conduct would cause a reasonable person to commit the misdeed reaches the heart of the matter. When the prosecutrix tampered with the court's records, did my provocation make conduct latent within the prosecutrix's soul more probable, or did it place her in state unlike any she might otherwise suffer? Situations that anger persons with prosecutory power are legion, giving prosecutors' faces their perpetual Giuliani-like angry snarl and demonstrating that a deputy trial counsel who rushes to crime in rage will be often enraged and commonly rushed.

Provoking the prosecutrix was a sound litigation tactic, designed to elicit conduct that raises valid questions about the objectivity and legality of State Bar investigations.

Best to understand this blog:

• Read the 1st, 2nd, 7th, 8th, and 14th Installments, first; or
• Make liberal use of hyperlinks; and then
• Follow your interests; or
• Follow the case.