[Filed Sept. 19, 2008]
[Denied Oct. 16, 2008]
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
Fax: (866) 392-4866
TABLE OF CONTENTS1. 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 AUTHORITIESCASES
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 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 REHEARINGPetitioner 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.
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.