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.

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 Court—not 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.

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

[Filed Sept. 19, 2008]

[Denied Oct. 16, 2008]

S164152

IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA

PETITION FOR REHEARING
OF PETITION FOR WRIT OF REVIEW

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

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES

CASES
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
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

PETITION FOR REHEARING

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.

kanBARoo Court. 48th Installment. The Results Are in- The State Bar Court Is No Court at All

My case tests the Supreme Court's response in a State Bar disbarment matter when following the law conflicts with the Supreme Court's political interests. More than a test, the case has been an experiment, unethical except for the self-represented and, for those, universally deemed unwise by legally educated opinion. Pushing the procedural limits to guarantee an informative outcome, I compelled the Supreme Court to choose between approving a felony under color of law and, despite the State Bar Court's function as as the Supreme Court's administrative arm, becoming the vehicle for a State Bar scandal.

I conjectured the Supreme Court wouldn't accept the case's gross improprieties, but the disbarment order of September 10, 2008, refuted my conjecture. The outcome, nontheless, allows assessing Supreme Court review of State Bar matters. The State Bar Court does not, in any sense, function as a court because its overseer, the California Supreme Court, decides petitions for writs of review politically.

Here, the State Bar failed to serve its answer to my petition for writ of review. I moved to strike the unserved answer. The State Bar, while opposing my motion to strike, conceded improper service by not mentioning it and not explaining why the Bar twice failed to serve me properly. The State Bar didn't serve me even after my motion informed the Bar its service had miscarried. The State Bar, seemingly, preferred I not reply to its opposition. The Bar got wishes fulfilled when the Supreme Court denied the motion to strike and denied the petition for writ of review.

Blunders by the State Bar have consistently helped me establish key points, although once established, arguing from them has proven futile. When the case was before the Hearing Department, the prosecutrix's theft of documents allowed me to attack the State Bar's unjudicial practices, taking forms needing no proof for their classification. Yet, the Hearing Judge refused to make any findings. In the case before the Supreme Court, the State Bar demonstrated reckless disregard for a respondent's proper service. Yet the Supreme Court not only refrained from striking the motion, it did not even direct proper service, to allow for a reply. If the court could argue that I did not ask for alternative remedies, it cannot justify basing rulings on documents opposing counsel prevented me from seeing. The repeated occurrence of State Bar blunders and their lack of practical significance are related. The State Bar, having learned its mistakes are inconsequential, has lost even its ability to recognize them.

I will explore, in a subsequent Installment, why the State Bar Court appeared to function in a minimally judicial fashion, even though it really is no court at all. Deserving early mention and requiring revision are some of my suggestions for State Bar defense. I do not now think it possible to win by showing the Supreme Court that the State Bar Court lacks basic procedural integrity. When the State Bar's foundational practices are attacked with allegations that would impugn the State Bar Court's legitimacy, the Supreme Court will deny the petition for writ of review.

I'll continue discussing the implications of the nonjudicial character of the State Bar Court next Installment. Other than this series of final case-relevant Installments, kanBARoo Court's coverage of my case is complete, but kanBARoo Court — the only web site or blog dedicated to State Bar-law analysis (not reportage and journalistic commentary) — will continue its treatment of State Bar oppression.

Interlude 5: The State Bar's Opposition to My Motion to Strike

Here is the State Bar's opposition to "Petitioner's Motion to Strike Respondent State Bar's Answer to Petition for Writ of Review." (See the Motion to Strike itself, here.) Comments follow the text.

_______________

Begin quoted material

RESPONDENT'S OPPOSITION TO MOTION TO STRIKE

I. INTRODUCTION

Respondent, the State Bar of California, opposes Stephen Diamond's motion to strike the State Bar's Respondent's Brief in Opposition to his Petition for Review.

II. ARGUMENT

The State Bar's Brief Was Timely Filed on the Twentieth Day After Diamond Filed His Petition.

Diamond filed his Petition with this Court on July 25, 2008. The State Barn filed its response --twenty days later--on August 14, 2008.

Rules of Court, rule 9.13, subd. (d), provide [sic] that the State Bar may serve and file its answer and brief within fifteen days. Code of Civil Procedure, section 1013, provides that if service is by mail, the other party has an additional five calendar days to respond -- for a total of twenty days to respond.

Diamond's motion states that he served his (unfiled) Petition by mail on July 22, 2008. however, as he admits, that Petition was not filed until July 25, 2008.

Diamond claims that he served the State Bar before he filed his petition with this Court -- on July 22, 2008. However, since the purpose of service is to provide notice of pending proceedings (See, e.g., Mullane v. Central Hanover Bank & Trust Co (1950) 339 U.S. 306, 314), to the extent no proceeding are yet pending, Diamond's mailing provides no information.

It is not until the matter is actually filed that there can be any notice that a matter is pending. (See, e.g., Baker v. Anderson (1981) 119 Cal. App. 3d 1000, 1002 [Footnote 1: "We discount the possible argument that a delayed filing of an amended complaint where service thereof had preceded the filing would have the 30-day period commence running from the date of service rather than filing. We conclude that the delayed filing would delay the effective date of "service" within the meaning ofthe statute."]

Diamond's position is untenable as evidenced by taking it to its logical extreme, since any Respondent could prospectively serve the State Bar with a petition and never file it. Yet, under Diamond's reasoning, the State Bar could be required to file a response to a Petition that was never filed with the Court.

IV. CONCLUSION

The State Bar's Respondent's Brief was filed twenty days from the date the initial Petition was filed. The time to file a response to a Petition for Review can begin to run only from the date of service of a properly filed Petition, the response time runs from the date of filing. As a result, the State Bar's brief was properly filed within the alotted time.
For the reasons stated herein, the motion to strike should be denied.

Dated: August 28, 2008 Respectfully submitted,

  MARIE MOFFAT
  RICHARD J. ZANASSI
  TRACEY l. MCCORMICK

By:________________________________________
 Tracey L. McCormick

Attorneys for Respondent 
Office of the Chief Trial Counsel
of the State Bar of California

End quoted matter.

---------------------------------------------

Comment

One first observes the substantially higher quality of pleadings produced by the "Office of General Counsel to the State Bar of California," which defends the State Bar before the Supreme Court, when the General Counsel's work product is compared to that of its client, the Office of the Chief Trial Counsel. (Cf. Prosecutrix Melanie J. Lawrence's "State Bar’s Opposition to Respondent’s Motion for Reconsideration and for Immediate Stay" - 21st Installment: "The State Bar Demands Atonement.") The State Bar's rebuttal of my first contention is persuasive, although pointing primarily to the ambiguity inherent in Rules of Court, rule 9.13, which governs petitions for writs of review from the State Bar Court to the Supreme Court . Since serving a pleading before filing is impossible — the proof of service that accompanies the filing attests to past service — the rule says "service" when it means "filing."

Most striking about the State Bar's opposition, however, is what it omits: any mention of the improper service issue my motion to strike raised. The State Bar showed at best a reckless disregard for its duty to effect service, when it first served another attorney and then tried to serve me at my previous address, when Rules of Court, rule 9.13(a), requires service at my last registered address. Having no tenable argument on the service issue, what could the State Bar say? The State Bar needed to file a declaration explaining the improper service. If it can show that reasonable neglect or inadvertance caused improper service, the State Bar no doubt should be allowed to correct its reasonable mistake, but the courts do not presume reasonableness when a party violates court rules. The Supreme Court should certainly not assume reasonableness here, where the State Bar's service attempts twice failed, once serving a different party and then violating the State Bar Court's well-known service rule.

Either the State Bar is too arrogant to submit a declaration excusing its mistakes, or improper service wasn't a mistake. We shall soon see how the Supreme Court handles this motion.