Wednesday, July 23, 2008

kanBARoo Court. 43rd Installment. Petition for Writ of Review

[Filed July 25, 2008]

No. S164152

IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
STEPHEN R. DIAMOND,
Petitioner,
v.
STATE BAR,
Respondent.

PETITION FOR WRIT OF REVIEW
OF DECISION OF THE STATE BAR COURT

TABLE OF CONTENTS

Issues Presented to the Court
..............................................1

Petition for Review...................................................................1

Overview.........................................................................................1
Detail................................................................................................2
Proof of Detail.................................................................................6

Basis for Supreme Court Jurisdiction
..............................7

ARGUMENT
.................................................................................8

1. The Office of the Chief Trial Counsel colluded
with a court clerk to deny petitioner a
fair hearingin the Hearing Department
and Review Department.
......................................................8

A. Sabotaging petitioner’s submissions
to prevent filing denied petitioner a fair hearing...9


B. DTC Melanie J. Lawrence admitted she
could not produce a proof of service,
possession of which she would have lost
only through foul
play..........................................................9

2. The State Bar Court fosters
hypertechnicalism in its clerk’s office,
encouraging foul play,
while offending due process.
............................................10

CONCLUSION
..........................................................................11

TABLE OF AUTHORITIES

Cases


City Council v. McKinley
(1978) 80 Cal.App.3d 204 ..............7
Estate of Neilson (1962) 57 Cal.2d 733, 746 ............................8
People v. Pearson (1952) 111 Cal.App.2d 9 .............................7
Rojas v. Cutsforth (1998) 67 Cal.App.4th 774 .........................9

Statutes


Evid. Code, § 1221 .......................................................................8
Gov. Code, § 6200 .......................................................................7
Gov. Code, § 6203 .......................................................................9

Rules


Rules of Court, rule 9.16(a)(3) ..................................................6

ISSUES PRESENTED TO THE COURT

• Gov. Code, § 6200.
The Office of the Chief Trial Counsel repeatedly colluded with a State Bar Court clerk to destroy documents this petitioner submitted for filing. Did this constructive denial of access to the court deprive petitioner of the right to a fair hearing?

• Hypertechnicalism.
The State Bar Court clerk destroys motions and petitions whose filing it refuses, even when the deficiencies are correctable. Did this practice facilitate the misdeeds of the Office of the Chief Trial Counsel and directly deprive this petitioner of a fair hearing, when the clerk required an expensive resubmission?

PETITION FOR REVIEW

1. Stephen R. Diamond, respondent below, respectfully petitions for review following the decision of the State Bar Court, per Judge Honn, filed on April 10, 2008.

Overview


2. Petitioner contends he was denied a fair hearing, when the clerk’s office of the State Bar Court colluded with Deputy Trial Counsel Melanie J. Lawrence to deflect the filing of petitioner’s Petition for Interlocutory Review to the Review Department on November 27, 2007.

3. Petitioner contends that the administration of the State Bar Court fosters clerical hypertechnicalism, creating a climate where this abuse occurs.

4. Petitioner contends this abuse of the clerk’s office produced a complete denial of due process, because petitioner reasonably believed he could no longer rely on the clerk’s office, and declined to file subsequent papers after a second deflection occurred. Petitioner contends he rightfully expected the court to restrain the fraud that created the filing obstacles, since an uncompromised clerk’s office is part of the right to be heard.

5. Intermeddling with the petition for review denied due process not only by preventing a proper hearing before the Review Department but by causing the Hearing Department to deny petitioner’s motion for a stay, as the Petition for Review was the basis for staying the action below. The intermeddling precluded petitioner’s participation in the final status conference, where the court placed petitioner in default. It ultimately precluded a hearing on the merits. The intermeddling also precludes filing for review by the Review Department, a review that is of right.

6. Petitioner can prove the intermeddling involved with the Petition for Interlocutory Review. Petitioner has substantial reason to believe the clerk’s office or DTC Lawrence intermeddled with the subsequent document, Opposition to Motion for Entry of Default, as the Hearing Department did not receive this document, even though timely and carefully mailed.

Detail


7. The Office of the Chief Trial Counsel assigned Deputy Trial Counsel Melanie J. Lawrence to litigate petitioner’s case.

8. After the Hearing Department denied this petitioner’s motion to dismiss the NDC and motion to reconsider the order denying the motion to dismiss, petitioner tried to file a petition for interlocutory review with the Review Department and in a request for a stay based on the petition for review, in the Hearing Department.

9. Fearing the outcome on review or resenting the prospect of a stay, DTC Lawrence colluded with the court clerk to misrepresent that the submission was defective, falsely claiming a) the proof of service was not signed; and b) the submission included only four, as opposed to five, copies of the petition for review. The clerk noted these alleged defects in its letter to petitioner.

10. The Hearing Department denied petitioner’s request for stay. The clerk’s fraudulent rejection of the petition for review prevented petitioner from establishing that review was pending, the basis for the stay request.

11. DTC Lawrence moved for entry of default. Despite the regularity of mail delivery times, the court did not receive petitioner’s timely mailed opposition. Since Lawrence’s motion was unopposed, the court entered an order to show cause why it should not impose sanctions or enter default.

12. Petitioner reasonably inferred that DTC Lawrence probably intercepted petitioner’s opposition. She knew from her service copy that these papers exposed her malfeasance.

13. Petitioner filed a motion to reconsider the order to show cause concerning entering petitioner’s default. Petitioner sent the Hearing Department’s service letter under a cover letter informing Judge Honn of Lawrence’s malfeasance. The cover letter stated:

Attn: Judge Honn
PERSONAL AND CONFIDENTIAL

Dear Judge Honn:

My case began with a conspiracy of clerks, who among numerous other deceits, filtered from my mail any inculpating correspondence . It appears that you too are victim of a conspiracy involving clerks.

I am communicating ex parte out of dire necessity. DTC Lawrence, colluding with at least one court clerk, has inter-meddled with the court records to cause the rejection or other deflection of filings. The documents enclosed have been mailed for filing and served in proper fashion. If they suffer the fate of my opposition to motion to enter default (December 12, 2007 order), I know of no other way than direct communication to bring the problem to the court's attention.

Yours truly,
Stephen R. Diamond
14. Petitioner ascertained Judge Honn’s receipt of petitioner’s motion to reconsider and the cover letter on Lawrence’s malfeasance by certified mail.

15. Despite the clerk’s office informing petitioner the clerk had rejected filing the petition for review, on December 28, 2007 the Review Department filed a summary denial of the petition for review. This was no satisfaction for petitioner’s concerns, because petitioner’s enforced ignorance of any ongoing review precluded any further participation. Petitioner would have amended his petition to include additional arguments. The misrepresentation about the state of the petition for review—the clerk said she had destroyed it—further impugns the probity of the clerk’s office.

16. The Hearing Department eventually denied petitioner’s motion to reconsider, on or about January 2, 2008, mentioning none of petitioner’s specific charges against DTC Lawrence.

17. The Hearing Department filed its Decision and Order of Involuntary Inactive Enrollment, following an April 10, 2008, hearing on the order to show cause on default and sanctions.

18. Petitioner did not appear at the hearing on the order to show cause. Petitioner contends he could not have a fair hearing after his constructive denial of access to the court through the clerk’s office. Petitioner also was denied the opportunity to bring motions to change the date or venue, changes he needed because of economic hardship. After the constructive denial of the use of the clerk’s office, through the Hearing Department’s failure to make any findings on petitioner’s allegations of malfeasance, petitioner stood on the complete breakdown of due process. Petitioner contends he was not required to risk waiver by further participation in proceedings that had become a sham.

Proof of Detail


19. Petitioner attached an unsigned proof of service to DTC Lawrence’s service copy of the petition for interlocutory review to the Review Department. All other copies were accompanied by a signed proof of service.

20. The document respondent sent Ms. Lawrence--hence, the one the clerk returned him-contained the date, handwritten in ink with no signature.

21. Since all the copies besides DTC Lawrence's were executed, it follows that the copy the clerk returned was actually Ms. Lawrence's copy.

22. The clerk’s office use of the counterfeit proof of service, only obtainable from DTC Lawrence, proves ex parte communication through the clerk's office and abuse of Lawrence's service copy to "prove" defect in the proofs of service.

23. If these accusations are false, Ms. Lawrence could have refuted them by producing her unsigned copy of the proof of service.

24. Petitioner repeatedly asserted in motion papers that DTC Lawrence committed this malfeasance and that she could not produce her service copy, as for example, in petitioner’s motion for reconsideration of the court’s order to show cause why sanctions should not be imposed.

25. DTC Lawrence repeatedly and vehemently denied malfeasance, but she never denied her inability to produce her service copy, and in motion papers, she admitted receiving an unsigned proof of service.

26. Petitioner contends that DTC Lawrence's failure to deny her inability to produce her service copy constitutes an admission and establishes her malfeasance in colluding with the clerk of court and the wrongfulness of the clerk’s rejection.

27. Petitioner has filed declarations by himself and his secretary attesting to including five copies in the packet. Since petitioner has refuted the alleged defect in proof of service, petitioner contends the bogus character of this other supposed defect is overwhelmingly probable.

BASIS FOR SUPREME COURT JURISDICTION

Petitioner petitions the Supreme Court for review under Rules of Court, rule 9.16(a)(3), based on denial of a fair hearing.

ARGUMENT

1. The Office of the Chief Trial Counsel colluded with a court clerk to deny petitioner a fair hearing in the Hearing Department and Review Department.


The clerk's office is a litigant's primary conduit to the court, and this holds true even more in the State Bar Court. DTC Melanie J. Lawrence colluded with an employee of the State Bar Court clerk's office to close this conduit, rendering futile this petitioner's attempts to litigate the State Bar's Notice of Disciplinary Charges. (Petition, ¶ 5 and ¶ 19 – ¶ 27.) Both DTC Lawrence and the clerk violated Government Code section 6200, which makes an officer's destruction of public records a felony. Answering any doubt that motion papers mailed for filing are public documents in the sense the law requires, public record is construed broadly to include documents whose preservation is expeditious. (See People v. Pearson (1952) 111 Cal.App.2d 9, 18.) The Government Code’s term “officer” applies, as a person charged with a necessary public function is an officer in the sense the statute requires. (See City Council v. McKinley (1978) 80 Cal.App.3d 204, 210.)

Petitioner finds no precedents from any jurisdiction speaking to the effect on due process of an orchestrated clerical breakdown. The issue does not come before the courts, as one cannot ordinarily prove or often even know that the clerk sabotaged the record. Here, intermeddling is provable because of an unusual circumstance: DTC Lawrence gave her service copy to the court clerk, who mailed petitioner that copy. (Petition, ¶ 19 – ¶ 23.) Despite the absence of relevant precedent, it is hard to conceive a more extreme denial of the right to be heard than closing the court’s clerical conduit.

A. Sabotaging petitioner’s submissions to prevent filing denied petitioner a fair hearing.


When DTC Lawrence repeated her intermeddling with papers submitted for filing, petitioner determined he could not rely on the integrity of the clerk’s office. After entreating the Hearing Department proved no avail, petitioner chose not to cooperate further with the sham proceedings. (Petition, ¶ 18.) The described malfeasance prevented petitioner from staying the action in the Hearing Department, prevented interlocutory review in the Review Department, prevented petitioner from challenging DTC Lawrence's discovery order, and constructively deprived petitioner of his right to a hearing on the merits. (Petition, ¶ 4.)

B. DTC Melanie J. Lawrence admitted she could not produce a proof of service, possession of which she would have lost only through foul play.


Petitioner repeatedly challenged DTC Lawrence to produce her service copy. (Petition, ¶ 24.) While vigorously denying the wrongdoing, she pointedly failed to produce the proof of service she admits accompanied the document served on her or explain why she could not produce it. (Petition, ¶ 25.) Ignoring this evidence is an admission by silence, as DTC Lawrence did not deny her inability to produce her proof of service, when confronted with a clear accusation that an innocent person in her position would usually deny. (See Evid. Code, § 1221; Estate of Neilson (1962) 57 Cal.2d 733, 746 .) DTC Lawrence admitted receiving an unsigned copy (Petition, ¶ 25), and her providing her copy to the clerk in an ex parte contact is the only explanation for her inability to produce it or to explain why she cannot produce it. The clerk's use of DTC Lawrence's service copy as a counterfeit proof of service establishes Lawrence colluded with the clerk to reject the document on bogus grounds.

2. The State Bar Court fosters hypertechnicalism in its clerk’s office, encouraging foul play, while offending due process.


The hypertechnicalism of the State Bar Court clerk's office encourages conduct such as that of DTC Lawrence, because of the ease in engineering a small deficiency. When it puts a litigant out of court, the effort may become worth a deputy trial counsel's risk. The hypertechnicalism flouts prohibiting case law, so that the rules governing the clerk's office do not conform to judicial standards and are a trap for the unwary. A procedural defect should not be fatal to a filing, and the fair practice would hold the documents for a limited time and allow the litigant to supplement the file. (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774 [“To deny Rojas her cause of action for lack of a signature makes a mockery of judicial administration.”].)) The clerk had not destroyed all the documents as she claimed (Petition, ¶ 15)—her false claim violating Government Code section 6203--showing how allowing the clerk to destroy documents mailed for filing encourages malfeasance.

CONCLUSION

Constructive denial of petitioner’s access to the State Bar Court includes petitioning the Review Department. (Petition, ¶ 5.) Review by the California Supreme Court has become petitioner’s exclusive redress. Petitioner requests that the court overrule the Hearing Department’s disbarment order, entry of default, and enrollment as an involuntarily Inactive Member and, in the interest of justice, dismiss the case with prejudice or on other terms the court finds just.

Date:____________________

Respectfully submitted,

Legal Research and Writing Service
Supplier of Legal Theories

________________________________
Stephen R. Diamond

3 comments:

Anonymous said...

Issue Presented: Is it wise to sign a brief "supplier of legal theories" when the chief argument of that brief is that the clerk of court conspired against you and the judge?

Overview: No.

Detail: Such a signature makes the author seem insincere.

Anonymous said...

Issue Presented: Is it wise for a professional provider of legal theories to make publicly available filings that make specific reference to that professional's debarment?

Overview: No.

Detail: Res ipsa loquiter.

Stephen R. Diamond said...

The signature was risky, but I found more compelling the advantage of focusing the court on my arguments and evidence, since a State Bar respondent has little credibility to lose.

I'm not sure if you mean res ipse legally or metaphorically. I always advised defrauded persons of a potential negligence action. Ordinary negligence is not subject to State Bar discipline.