Thursday, October 30, 2008

kanBARoo Court. Interlude 7. Does Sturgeon v. County Help State Bar Respondents?

The California Court of Appeal recently decided Sturgeon v. County of Los Angeles (4th Dist. 2008) __ Cal.App.4th __, prohibiting Los Angeles County’s payment to judicial officers of almost $50,000 in annual benefits. Sturgeon would be outside kanBARoo court's scope, except that State Bar respondent Richard I. Fine argues in state and federal court that these benefits create a conflict of interest, and State Bar Court judges should have succumbed to his disqualification motions. (See Fine's statement by scrolling down here.) Fine recently moved for rehearing in the State Bar Court Review Department, based on Sturgeon, which Fine considers vindicating.

I criticize Fine's analysis, while supporting his State Bar defense effort. Fine relied on plaintiff Sturgeon's claim that the benefits were a gift, but the Court of Appeal expressly rejected that characterization. No gift, no bribe, and probably no conflict of interest. Sturgeon v. County wasn't a victory for Fine. Sturgeon really wasn't even a victory for Judicial Watch, as the funding organization claims, since the Court of Appeal refused to find County funding inherently unconstitutional. Sturgeon holds only that the Legislature must rigorously prescribe the benefits County pays. Sturgeon doesn't espouse Judicial Watch's overblown theory that the benefits were a bribe. The Sturgeon court held only that without rigorous Legislative prescription, the benefits program could threaten judicial independence. By locating the wrongdoing in the County's failure to respect the judiciary’s institutional requirements, rather than in any judicial misconduct, Sturgeon exonerated County judicial officers of disqualifying charges.

Opponents of County judicial-income supplementation claim its consequences include a disproportionately low rate of plaintiff litigation success against County. Fine offers statistics:
The statistics showed that 670 new cases were filed in fiscal year 2007 and 261 dismissals occurred based upon favorable rulings for the County. This is approximately 39%. The October 3, 2007, letter did not state the ratio of filed cases to dismissals for non LA County cases. LA County took 24 cases to trial and prevailed in 15. Five were defense [jury] verdicts. This shows that 10 defense decisions were done by the LA Superior Court judges. This is over 41%.These are more cases decided by judges against the plaintiffs, than the 9 cases the plaintiffs won at trial before a jury. It appears the plaintiffs did not win any cases before a judge. (Fine's statement, supra.)
Although Fine's initial hedge and his conclusion's ex cathedra character diminish its force, the most important claim is the last sentence: "It appears the plaintiffs did not win any cases before a judge." What appears is that winning a bench trial against Los Angeles County is impossible. Then, the County payments would cause injustice on a threat theory, instead of a bribe theory. But if Fine's statistics are accurate, one must wonder why Sturgeon the plaintiff failed to argue them.

Thursday, October 23, 2008

kanBARoo Court. 50th Installment. Federal Jurisdiction & Issue Preclusion

Two U.S. Supreme Court cases, which gutted the Civil Rights Act of 1871, 42 U.S. C. § 1983, produced today’s oppressive state bar courts. Attorney discipline is usually administered by administrative bodies acting judicially for their state's highest court, whose conflicting right of ultimate review compromises impartiality. (See Guarino v. Larsen (3rd Cir. 1993) 11 F.3d 1151, 1159 n.4 ["when a court makes a decision concerning the legality of its own actions, it may be too biased to justify abstention by the federal courts even if its actions are considered adjudicative."].) One commentator notes that the state high court may lack the ability to evaluate the administrative agencies it supervises objectively:
Yet, it is precisely because these cases more properly are understood as administrative proceedings (albeit before a judicial tribunal), rather than as true judicial proceedings, that there is legitimate concern about the ability of the states' highest courts to perform their regulatory function and provide appropriate judicial review. In many cases there are allegations of bias or challenges to the disciplinary and admission rules. Although these allegations may prove unfounded, there is sufficient basis for questioning whether a state's highest court can provide the dispassionate resolution that ought to be required when no other judicial review commonly occurs. (Friedman & Gaylord, Rooker-Feldman, From the Ground Up (1999) 74 Notre Dame L. Rev. 1129, 1132.)
Deciding my case against the State Bar, for example, would
scandalize the California Supreme Court’s administrative arm. These unequal contests stretch the definition of adjudication. (See Guarino v. Larsen, supra, 11 F.3d at p. 1159 n.4 [“Adjudication may require a controversy between two parties other than the body making the adjudicative decision.”].)

For review of rights-infringing state cases, litigants have looked to 42 U.S.C. § 1983. A United States Supreme Court increasingly hostile to federal judicial oversight blocked the route to federal court for State Bar respondents and similar others when the court ruled that section 1983 suits are subject to the challenged state case’s common-law preclusive effects. (See Allen v. McCurry (1980) 449 U.S. 90.) Missouri had imprisoned McCurry for two years on drug possession charges, based on evidence obtained in an illegal invasion of his house. McCurry sued the officers who participated in the illegal search for conspiracy to violate his civil rights. The Allen v. McCurry court ruled that McCurry’s state conviction collaterally estopped the federal suit for damages, Justices Blackmun, Marshall, and Brennan dissenting. An important precedent had stated, “It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.” (Monroe v. Pape (1961) 365 U.S. 167, 183.) The dissenting justices recognized the decision’s break with precedent: "The Court repeatedly has recognized that § 1983 embodies a strong congressional policy in favor of federal courts' acting as the primary and final arbiters of constitutional rights." (Allen v. McCurry, supra, at p. 110.)

Yet, Allen v. McCurry isn’t prominent in interjurisdictional scholarship; the case is overshadowed by District of Columbia Court of Appeals v. Feldman (1983) 460 U.S. 462, which reproduced Allen v. McCurry’s implications and added a few more. Feldman’s salience confuses litigants challenging the State Bar, as circumventing the Rooker-Feldman doctrine—the new barrier Feldman created—would still leave intact the more fundamental Allen v. McCurry preclusion barrier. One supposed difference between the Rooker-Feldman doctrine and ordinary preclusion, as lawyers sometimes mention, is preclusion’s applicability only where the precluded party had “full and fair opportunity to litigate.” Most federal circuits, however, include this condition in construing the Rooker-Feldman doctrine. The contrast between ease of dismissal under Rooker-Feldman and the jargon, “full and fair opportunity to litigate,” creates an illusion that the Rooker-Feldman doctrine is much harsher than preclusion. But “full and fair opportunity to litigate,” whether applied to preclusion or jurisdiction, means only the chance to raise the federal issues in court. Rooker-Feldman never formally creates a broader bar than preclusion, although the jurisdictional tag subtly influences courts to favor the Rooker-Feldman defendant more than a defendant asserting preclusion as an affirmative defense.

Feldman, itself an attorney discipline case, created the emaciated prototype for the supposed review all California State Bar respondents and their counterparts in most other jurisdictions are entitled to, and Feldman permitted the prototype’s adoption. Although the Rooker-Feldman doctrine only jurisdictionally barred a subset of suits, which would be precluded anyway under Allen v. McCurry, the federal courts used the jurisdictional character of the Rooker-Feldman prohibition to justify uninformative boilerplate language, to which the courts usually confined opinions dismissing these cases. The Rooker-Feldman doctrine, more generally, became the primary docket-clearing mechanism in federal district court. Feldman, the cause of the opinionless decisions after In re Rose (2000) 22 Cal.4th 430 was also the paradigm for these opinions’ review minimalism.

Sunday, October 12, 2008

kanBARoo Court. 49th Installment. "Willfully" Made Precise

Some knowledge comes two ways: one involving knowing that and the other not; one can know some things by their name or by another: transparent knowledge, contrasted with opaque knowledge. The 42nd Installment interpreted the required knowledge for Business and Profession Code section 6103 willfulness as transparent because I’m unaware of any law using an opaque-reference standard. Here’s a better reason, with more exact conclusions.

I find no authorities making the connection, but the Penal Code defines the key word “willfully,” and the Penal Code definition decides whether transparent or opaque reference applies, the statute and the cases construing it being the only legal authorities addressing the knowledge that Bus. & Prof. Code, § 6103, willfullness requires. Penal Code section 7, subdivision 1, defines willfulness, when not otherwise defined by statute, as follows:
The word “willfully,” when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.
The first case People v. Honig (1996) 48 Cal.App.4th 289 examined Penal Code section 7-willfullness knowledge requirements, in a criminal conflict of interest case. The Honig court considered three alternative standards for knowledge of a contract held to expose a public official to a conflict of interest. The court rejected that willfully creating a conflict of interest required that defendant know that the acts were illegal. It is well-settled that knowledge of the existence of a law prohibiting the conduct isn’t ordinarily an element of a willful offense, this irrelevance being the substance of the popular rule, “Ignorance of the law is no excuse.” The Honig court also rejected the standard at the other, most inclusive, end of the spectrum. The defendant does not become culpable for willfully creating a conflict of interest merely because he knew the terms that created the conflict. The inclusive definition would make conflict of interest a kind of strict liability offense. The court accepted the third, intermediate, candidate: willfully creating a conflict of interest involved knowing that the contractual terms created a conflict of interest. The standard for willfully creating a conflict of interest requires knowing more than an objective description of the act and less than the illegality or even the harmfulness of the conduct. It requires transparent knowledge of the prohibited conduct in exactly the terms used by the violated statute. (Honig, supra, 48 Cal.App.4th 289 [including only the first two sentences of quote below; quoted In re Stonewall F. (1989) 208 Cal.App. 3d 1054.].) Stonewall F.’s explanation, fully quoted:
The section 7 definition is entirely dependent upon the act to which "wilfull" is appended. The required intent is an intent to do just that to which the term wilfull is applied. Its significance therefore is wholly dependent upon the grammar of the specific offense in which the term is employed. (See also Hall, General Principles of Criminal Law, supra, p. 142 ["It is evident that there must be as many mentes reae as there are crimes. And whatever else may be said about an intention, an essential characteristic of it is that it is directed towards a definite end."]) (In re Stonewall F., supra, 208 Cal.App. 3d at p. 1066.)
The Business and Profession Code section 6103 language awaiting parsing with Penal Code- section 7-concepts reads:
A willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.
The intent required to violate section 6103 is knowing that the order exists and that it requires doing or forbearing a particular act. Respondent's knowledge that the order required him to forbear is tantamount to knowing the order’s finality. Directly applying section 7 subdivision 1 to section 6103 violations corroborates the holding of In the Matter of Maloney (2005) 4 Cal. State Bar Ct. Rptr. 774, 787 that willfulness in violating an order requires respondent’s actually knowing it's final.

The other major case construing Penal Code section 7 willfulness People v. Garcia (2001) 25 Cal.4th 744 examined whether a sex offender’s violation of the mandatory registration laws was willful if the sex offender should have known the requirement, having received instruction and given acknowledgement. Garcia noted that the courts construe willfully, in appropriate statutory contexts, to include negligent or at least criminally negligent conduct. Garcia held that even criminally negligent conduct would not have satisfied the willfulness requirement. After reviewing cases involving willfulness without actual knowledge of the command disobeyed, the Garcia court concluded exceptions to the actual-knowledge requirement could apply only where the statutory violation consists of an affirmative act, as contrasts with an omission. (People v. Garcia, supra, 25 Cal.4th at p. 752 ["These cases generally involved affirmative acts, not a mere failure to act."].)

Section 6103 commands acts of obedience to court orders, and violating section 6103 involves failure to perform these acts of obedience. This comment on the statute’s grammar holds true, even if the order object of disobedience prohibits rather than commands action. The State Bar commits sleight of hand, typically skipping the grammar of the statute and analyzing the order’s grammar instead of the statute’s. Under Garcia, willfulness in failing to perform specific acts, such as obeying specific court orders, requires knowledge of what is commanded and that it is commanded. (Garcia, supra, at p. 752.)