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.

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