Thursday, March 27, 2008

kanBARoo court. 32nd Installment. Disbarment of a President

Attorney responses to the 29th Installment, posted to a law newsgroup last month, reveal distortion of civic discourse wherever a State Bar imposes its bureaucratized moralism. First, the merits.

Installment 29’s argument showed that disbarring Bill Clinton conflicted with the Supremacy Clause because, to prove its case, the State Bar adverted to acts in Clinton’s performance of Presidential duties. Posters bypassed this argument, as they argued that federal law never preempts the State Bar, authorized to regulate the practice of law. ["It disciplined an Arkansas lawyer for his conduct. That's what the Arkansas Bar does."—Seth.] Posters contended applying the preemption defense, like the double jeopardy defense, depends on similarity of governing clauses, not identity of regulated transactions. If state law does not control Presidential conduct qua Presidential conduct, posters believed regulating Bill Clinton during his performance of Presidential duties does not affect the office of the Presidency.

The case law on Presidential immunity refutes posters’ contentions that the Supremacy Clause only prohibits states from transparent regulation of Presidential conduct. Preemption has specific and general forms, the specific form of preemption—constituting a qualified immunity—requiring that the preempted rule contradict a federal statute; the general form—constituting an absolute immunity—that it merely regulate a field the federal government indicated its intent to occupy. Judges, prosecutors, and especially Presidents, enjoy absolute immunity for acts taken in the course of their duties, a President's broad absolute immunity from civil suit undisputed. (Nixon v. Fitzgerald (1982) 457 U.S. 731, 756 [“In view of the special nature of the President's constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the "outer perimeter" of his official responsibility.”].) Since a disbarment proceeding is civil on the one hand, but not for damages on the other, Presidential immunity is first impression. But Presidents with arguments less tenable have challenged jurisdiction wherever possible, when facing constraint by Congress or courts. (See for example, United States v. Nixon (1974) 418 U.S. 683.) If preemption/immunity failed, a still stronger case would remain for invoking federal removal jurisdiction. (28 U.S.C. § 1442, subd. (a)(3).)

The posters’ arguments help show why Clinton did not argue preemption or immunity. Many attorneys, if not the public, assume the Bar benign. Attorney Mike Jacobs explained:

"That's a pretty extreme interpretation of what disbarment is about. Being admitted to the Bar, meaning one is permitted to act as attorney representative for someone else's legal interests, is a privilege, not a right. It carries a heavy responsibility to both the client and the system of justice to act at all times in accord with ethical standards, because if clients can't trust their lawyers, the whole system can fall apart. It's not like 'the man' (the establishment) is 'out to get' the attorney who is disbarred, in most cases, even if abuses may occur from time to time because even the judges of the highest State court are human."

Even a President proves reluctant to challenge the jurisdiction of the State Bar. The electorate presumed his guilt, as attorneys still do, reflexive bureaucratic procedure plus moralistic veneer impressing more than trial. The insertion of the State Bar into U.S. Constitutional controversy deflects clarification by litigation or commentary.

State Bar involvement in punishing Presidential conduct conflicts with the Supremacy Clause. Minimally, all federal officers have general immunity for acts related to their duties, and the President's immunity is broadest. The rationale for the President's absolute immunity to civil litigation is that Presidential civil liability illegitimately places conflicting demands on Presidential conduct. (See Nixon v. Fitzgerald, supra, 457 U.S. at p. 751.) In analyzing Bill Clinton's State Bar case, lawyers disparaged functionally necessary federal constraints on state action. The opinion of a President's home State Bar supplies one of the worst bases of influence on a Presidential decision.

Thursday, March 20, 2008

kanBARoo Court. 31st Installment. Bills of Attainder Revisited

The Benninghoff Miscarriage of Justice criticized an oppressive Court of Appeal decision, where the Fourth District construed Government Code section 6126, subdivision (b), to exclusively prohibit former State Bar Members like Benninghoff from practicing administrative law. The Sixth Installment suggested that Benninghoff might have successfully attacked the judgment as enforcing an invalid bill of attainder. Even though the criteria for bills of attainder have proven unsuitable for objective application, the breadth of the imposed occupational debarment, peculiarly arbitrary, would make an exceptional bill of attainder case.

The bill of attainder clause has become impossible to apply because of its unsystematic attenuation. To see how weak has become the U. S. Constitution’s bill of attainder clause (Article I, sections 9 and 10), consider that the leading case is Nixon v. Administrator of General Services (1977) 433 U.S. 425, the case deciding that a law taking possession of ex-President Nixon’s papers was not a bill of attainder. The subject legislation referred to Nixon—and only to Nixon—by name, in the aftermath of his being forced out of office in disgrace, bearing a despised pardon for his high crimes.

A bill of attainder legislatively punishes specified or clearly classified persons, thereby impugning principles of both due process and separation of powers. “Attainder” derives from “taint,” and political victors have often passed laws of attainder to further humiliate a defeated political rival; usually the laws convey the sense of moral obloquy. An extraordinary measure directed against a defeated chief of state, personally named, might seem a textbook bill of attainder, notwithstanding Congress’s wisdom, fulsomely praised.

So it would have seemed, at the post-Civil War renaissance of the bill-of-attainder clause. The contemporary law governing the constitutional ban on bills of attainder, universally recognized as an odious tool of oppression, began with two post-Civil War cases involving the occupational debarment of professionals—one an attorney—who refused to swear oaths of non-participation in the vanquished Confederate government. The U.S. Supreme Court held that debarment from the occupations of teaching and the law punishments per se. (See Cummings v. Missouri (1867) 71 U.S. 277 and Ex parte Garland (1867) 71 U.S. 333.)

The next political struggles sufficiently vehement to turn High Court attention toward the instinct to taint occurred in the post-war period, under McCarthyism and its aftermath, when the Government tried to fire Communists from their jobs, deport them, and bar them from labor-union office. These oscillating five-to-four-case outcomes, exquisitely sensitive to the court’s political composition, show indifference to stare decisis. Opinions authored by Justices Black and Douglas expanding the clause’s protection were opposed in dissents by Justice Frankfurter. Then a period of Frankfurter’s dominance, where the court without exception ruled against applying the bill of attainder clause, followed by the return to dominance of Justice Black and Douglas’s faction, joined by Chief Justice Warren, the court throughout these ideological swings never expressly over-ruling its earlier holdings.

Justice Frankfurter's untiring application of his regulatory versus punitive dichotomy harmed legal doctrine, the repair still in process. Frankfurter’s scheme required asking, regarding a measure inflicting an adverse outcome on specified citizens, whether its focus was outward, on conditions in civil society, or inward, on the mind or behavior of the target citizens. Frankfurter’s analysis could have deemed regulatory the Civil War cases’ occupational debarments, passing muster under the bill of attainder clause, because Legislators believed that these professional applicants were unreliable teachers of youth or officers of justice, as the Frankfurter-dominated Supreme Court held for laws barring Communists from municipal employment.

The punitive/regulatory distinction has proven impossible to draw objectively, a deficiency usually received as good reason to drop or reform the analysis, but it has burrowed deeply into the law, and many measures that the courts would once regard as bills of attainder or ex post facto laws have become accepted practice, including the legislation on Nixon’s papers, mandatory registration for sex offenders, prohibition of gun ownership by ex-felons, and civil property forfeitures for drug-law enforcement.

The Supreme Court developed the modern test for punitiveness in the bill of attainder clause context in Nixon v. Administrator General Services, supra, where the court required analysis of three factors: 1) is the punishment historically the kind imposed by bills of attainder; 2) does any non-punitive purpose actually achieved by the measure justify it; and 3) does the legislative history clearly show an intent to punish. Factor 3 requires so high a standard of proof as generally impossible to meet. Factor 2 restates the punitive/regulatory dichotomy, without disturbing its subjectivity The post-Civil War cases, however, leave their residue in the first factor. Those cases stated unequivocally that certain measures are inherently punitive: death, imprisonment, property forfeiture, and permanent occupational debarment.

Although variously expressing their holdings, most federal appellate circuits treat the first factor, historical attainder punishments, as creating a presumption of punitiveness, rebuttable only by clear and convincing evidence. (See for example,
Bellsouth Corp. v. FCC (D.C. Cir. 1998) 144 F.3d 58.) This is why the California disbarment law itself would survive bill of attainder challenge, although the procedure imposes penalties without a hearing before the judicial courts. Clear and convincing evidence might be marshaled justifying the non-judicial disbarment proceeding as designed to regulate the practice of law. But Benninghoff was subjected to an occupational debarment that could not have been deemed necessary for the regulation of law because practice in the administrative law courts is unregulated.

Thursday, March 6, 2008

kanBARoo Court. 30C Installment. Why the Supreme Court wants to avoid discipline cases and what to do about it

A level of balance between attorney property rights and public protection constitutionally determines the due process accorded State Bar respondents, but the State Bar suffers from an inefficient mix of measures fostering reliability of judgment and favoring speedy case resolution. One example is Business and Professions Code section 6007, which insists on immediate implementation of the State Bar's recommended judgment. Although a mere recommendation, the Hearing Department's disbarment sentence automatically enrolls respondent inactive, a draconian measure, which would make resistance impossible for most attorneys who would mount an appellate challenge. Section 6007 thus deters challenges to the State Bar, accelerating its bureaucratic ossification. State Bar establishment doctrine justifies the provision both by the public's right to protection and the respondent’s to speedy resolution, but a Fine case timeline shows the alleged judicial incidents began in 1999, and the Bar brought charges in February 2006. The public has an interest in preventing practice by psychopaths, but if Fine were an attorney bereft of scruples, he has practiced while harboring this deficit some 9 years after the event, and Judge Honn’s opinion does not disclose how long the Bar has imposed investigatory annoyances on Fine. How much would it matter for public protection if Fine were allowed to practice until his appeal is resolved? The expediency the State Bar Court rules promote provides little added public protection, while undermining salutary appellate strategies.

A fact little appreciated because of that court’s draconian powers, the State Bar Court is not a real court of law. The State Bar Court's jurisdiction derives entirely from the Supreme Court, the State Bar being both a semi-private corporation and an administrative arm of the Supreme Court, a compound status whose incoherence we ignore, as we ignore exceptions to Supreme Court jurisdiction for some lesser disciplinary penalties. The convoluted characterizations of the State Bar’s court’s legal status show that the Bar assumes powers constitutionally uncontemplated, as in In re Rose (2000) 22 Cal.4th 430, which relates to another bad trade-off in State Bar procedure, a subject of Richard Fine's current writ petition to the California Supreme Court, Richard Isaac Fine v. State Bar, Case No. S161247 ( The case added yet another epicycle to truncate respondents’ right to invoke a real court's jurisdiction, critical because permitting attack from outside the ingrown, collusive State Bar system. In re Rose unfortunately holds that when an attorney petitions the Supreme Court for review of a final decision, the court need not hear oral argument or provide a written opinion. The Supreme Court concluded anomalously it exercised final jurisdiction over all acts of disbarment yet denied that final judgments were subject to the conditions and protections the California Constitution afforded causes in constitutional courts. The court's arguments are so contrived that were they raised by a petitioner before that court, petitioner would risk sanction. The Supreme Court maintained:
Nothing in the debates regarding the written-decision requirement in article VI, section 2, of the Constitution of 1879 suggests that the term "cause" was intended to extend to attorney admission and disciplinary proceedings. [Citation.] The generally understood legal meaning of that term also supports the conclusion that such matters are not causes. The word "cause" is a synonym for “‘a proceeding in court, a suit, or action.' "[Citations.]
A petition for review of a State Bar Court recommendation regarding admission or discipline does not fall within any of these definitions. Like the proceeding in the State Bar Court, it is sui generis—the procedures governing ordinary civil and criminal proceedings do not necessarily apply. [Citations.] (In re Rose, supra, 22 Cal.4th at pp. 452-453.)
Absence of evidence that the Legislature included Bar proceedings is not evidence of the absence of its intent. Since Legislature showed its intent precisely, by using the term “cause,” its legal meaning is wholly dispositive. Even if the State Bar proceeding itself is not a "proceeding in court," the law requires that the Supreme Court’s disbarment procedure is such a proceeding.

As Justice Kennard stated in dissent:
The majority's decision here produces a startling anomaly: Attorneys are the only persons whose state occupational licenses can be revoked or suspended without a judicial hearing. When the right to continue practicing a trade or profession is at stake, only attorneys are denied their day in court. I would avoid this anomaly by recognizing that the state Constitution's guarantees of oral argument and a written opinion apply in attorney suspension and disbarment proceedings. (In re Rose, supra, 22 Cal.4th at p. 461 [dissent, Kennard, J.].)
The State Bar Court was not a usurper but passive recipient from its Supreme Court benefactor. Superficially, practical necessitythe growing weight of attorney numbers—compelled bureaucratization. Justice Kennard's excellent dissent in this revealing case refutes the rationalization by counter-example: the Supreme Court could have divided the cases within the Court of Appeal. Of the Supreme Court's motives for deviating from legislative intent, I speculate, and In re Rose attests to the burden of attorney discipline:
By 1990, before we adopted a policy of discretionary review pursuant to rule 954, we were issuing more than 40 opinions annually in State Bar disciplinary proceedings, and the number was increasing. (In re Rose, supra, 22 Cal.4th at p. 457.)
The Supreme Court doesn't like State Bar cases, as is apprehended from its growing annoyance, before it gave up in the Lipson line of cases. (See Lipson v. State Bar (1991) 53 Cal.3d 1010, 1016; Sugarman v. State Bar (1990) 51 Cal.3d 609; Baker v. State Bar (1989) 49 Cal.3d 804 ; Maltaman v. State Bar (1987) 43 Cal.3d 924, 931; and (1987) 43 Cal.3d 962, 968.). Nobody enjoys dealing with State Bar counsel, arrogant and incompetent, their work product unintelligible. Rational beings, Supreme Court justices prefer to place disciplinary cases in an isolation container, somehow to find a way to ensure due process yet avoid, as in Rose, signing tendentious opinions.

Rose's gravamen is not identical to Fine's; it serves to indicate why, in the course of the law’s development, Fine arrived at the present procedural posture. The governing procedural law was not always as today, and Fine v. State Bar independently pinpoints the inconsistency between judicial procedures and legislative intent. The issue Fine v. State Bar brings to the Supreme Court via petition for writ of mandate is: must the Supreme Court provide a written order after denying an interlocutory petition for review? Rose does not foreclose Fine's issue, because Fine contends statutory law expressly requires written orders following summary denial of a petition for review, a requirement the law does not expressly apply to disbarment, distinguishing Rose’s unfortunate holding. The statute governing these interlocutory summary denials states:
In any case in which a petition to review or to reverse or modify is filed by either party within the time allowed therefor, the Supreme Court shall make such order as it may deem proper in the circumstances. Nothing in this subdivision abrogates the Supreme Court's authority, on its own motion, to review de novo the decision or order of the State Bar Court. (Bus. & Prof. Code, section 6084, subd. (a).)
The dispositive issue of statutory construction concerns the scope of the permissive term "may”: must the court issue some order? Is the Legislature saying that the Supreme Court must issue any order only if it deems orders proper or that it must issue some order, selecting the one it deems proper? The rule’s language supports Fine’s construal, under the canon against surplusage, the rule of statutory construction that requires giving effect to every part of the statute. In the second quoted sentence above, the statute reiterates it does not abrogate the Supreme Court's universal authority to review any time on its own motion. A permissive rule as to orders, already in place, is surplusage in Business and Professions code section 6084.

Rose also contains implications for how to contest the State Bar in the real courts, in the comments of Justice Brown, separately dissenting:
Unless, by dint of skill or luck, the issues are framed so they are deemed to fall within the ambit of rule 954, an attorney facing suspension or disbarment from the right to practice her profession gets no hearing, no opportunity for oral argument, and no written statement of reasons—from this or any other article VI court. … (In re Rose, supra, 22 Cal.4th at pp. 466-467 [dissent, Brown, J.].)
Justice Brown states with judicial precision that a respondent's prospects for obtaining actual review depend on neither where the issues actually fall relative to rule 954’s ambit nor how the Supreme Court arbitrarily characterizes them. Respondents must frame the issues so they clearly fall within the rule and must state their case so clearly that a busy and avoidant court grasps the issues and ratifies the arguments.

In combination, written clarity, relevance, and concision are uncommon among trial attorneys, whose expertise is oral and who instinctively seek completeness and correctness. Put it out there, encompassing every bit of evidence, every significant logical connection, and a properly functioning court will absorb it. In truth, language must be crafted to persuade, undaunting in mass, ultra-clear in exposition.

The Supreme Court should grant Fine's mandamus petition and allow Fine to state his arguments, orally as well as in writing.


Because of its length, I will count this installment as two. Next installment due in one week.