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.


Richard Fine said...

From Richard I. Fine

Mr. Diamond's recapitulation of my arguments in the federal cases of LACAOEHS v. County of Los Angeles and Kurt Lewin and John Silva v. Chalfant et al.,is completely incorrect.

In each of those cases the complaints alleged that the "local judicial benefit" payments from LA County to the LA Superior Court judges violated Article VI, section 19 of the California Constitution and the Lockyer-Isenberg 1997 Trial Court Funding Act. These are the exact a points that the Court of Appeal upheld in the Sturgeon case.

Neither of my federal complaints alleged that the "local judicial benefit" payments were a "gift" of public property to private individuals as did the Judicial Watch complaint in the Sturgeon case.

The State Bar prosecuted me for bringing the LACAOEHS and Silva cases at the behest of the LA Superior Court. The "complaining party" in the State Bar case was LA Superior Court Commissioner Bruce E. Mitchell, who was a defendants class reperesentative defendant in the Silva case and who had received "local judicial benefits" and not disclosed such while acting as a "temporary judge" in eminent domain cases involving LA County.

The State Bar concealed his identity and falsely stated to the State Bar Court that the case was started by the State Bar. The truth came out during the trial when Mitchell made a surprise appearance at the trial as a visitor, and responded that he was the "complaining witness" in response to a question from the Hearing Judge to identify himself.

The State Bar Court specifically referred to the bringing of the LACAOEHS and Silva cases as the reason for its recommendation for disbarment as being "frivolous" cases brought "to retaliate against judges who had decided cases against me."

The decision in the Sturgeon case upholding the exact grounds upon which I brought the LACAOEHS and Silva cases "vindicated" me and showed that the State Bar and State Bar Court were wrong from the outset of the State Bar Case.

Prior to the rendering of the Sturgeon decision, the State Bar stated in its Responsive Brief dated April 25, 2008 that it was not prosecuting Respondent [Fine] for Respondent's "statements", Respondent's "speech" or Respondent's "rhetoric".

Subsequently, and still prior to the Sturgeon decision, the State Bar consented to the dismissal of the State Bar case by not opposing a Cal. Code of Civ. Proc. section 425.16 Anti Slapp motion brought on September 17, 2008.

This left the State Bar Court as the only entity pursuing the case.

The Sturgeon decision was the "vindication" by "court of record decision" of the theory that the "local judicial benefits" violated the California Constituion. The theory itself was well established before then by the words of Article VI, section 19 and a California Attorney General's Opinion relating to benefits for municipal court judges.

Further, on September 15, 2000 California Supreme Court Chief Justice Ronald M. George told a meeting of the California Judges Association in San Diego regarding the LA County payments to LA Superior Court Judges:

"That state of affairs is not only wrong, it may be unconstitutional."

This quote appeared in the Silva complaint.

The State Bar was aware of all of these facts other than the Sturgeon decision prior to bringing the State Bar case on February 6, 2006. The Sturgeon case was filed in April, 2006.

The State Bar Hearing Department knew everything including the filing of the Sturgeon case when it rendered its October 12, 2007 decision.

The State Bar Review Department knew everything including the filing of the Anti Slapp motion when it rendered its September 19, 2008 Opinion.

The Sturgeon decision came down before the State Bar Review Department Opinion becomes final.

The State Bar Review Department is in the position that the State Bar has consented to the dismissal of the State Bar case by its not opposing the Anti Slapp motion and the Sturgeon decision has shown my theory to be correct.

Unfortunately, Mr. Diamond did not read the LACAOEHS and Lewin "cases" and the Review Department Opinion and compare them, before he wrote his "blog".

Stephen R. Diamond said...

hank you for your comments. Debating the issues in discipline cases should help other State Bar respondents craft the best arguments.

I don't know what you said in LACAOEHS and Lewin because those weren't the cases I discussed. They were the cases whose filing the State Bar used to justify your disbarment, but Interlude 7 concerns your later cases and review petitions, brought to oppose disbarment. In the early cases I haven't read, you have reported demanding certain judges disqualification; in the later ones, you argued, among other contentions, that the early cases weren't frivolous, and the judges should have been disqualified.

While I haven't seen the earlier cases, I know that you did argue bribery in the California State Bar Review Department and Central California District Court this year. For instance, your complaint in the federal case stated at paragraph 4:

"This difference of reaction between the LA County Counsel as the lawyer for the County of Los Angeles, who gave the money to the LA Superior Court judges and commissioners and which party may be indicted by a federal grand jury (if impaneled) along with the judges who accepted the money for 'bribery' and 'obstruction of justice' amongst other things, and the State Bar 'enforcing' a 'moral turpitude' statute against the Plaintiff who brought federal civil rights suits against the LA Superior Court judges and commissioners and the County of Los Angeles for the same conduct, demonstrates the unconstitutionality of the California “moral turpitude” and automatic “involuntary inactive enrollment” statutes and the usurping of powers by the State Bar reserved to federal and state courts of record."

Formally, the bribery claim, it's true, doesn't play an essential role in these actions. But what's important isn't how much you mention the bribery allegation. The question is whether your legal argument depends on it. Unfortunately, it does; a chasm separates the unconstitutionality of the County's payments to judicial officers and the disqualifiability of judges because of the County's payment policies. If your arguments are understood to omit the bribery allegation, then you haven't bridged the chasm. The alleged duty of judges to disclose the County-derived income also depends on the income being a gift, a conclusion the Sturgeon court rejected.

One other inaccuracy--immaterial but topical--you are mistaken that the Court of Appeal found the payments illegal partly because they violated the Lockyer-Isenberg Trial Court Finding Act of 1997 (Gov. Code, § 77200 et seq.). To the contrary, the Court of Appeal stated: "We also agree with the trial court that nothing in Lockyer-Isenberg prevents the county from providing its judges with the disputed benefits, and in fact Lockyer-Isenberg appears to contemplate payment of such benefits by the county."

Fortunately the disqualification argument isn't your only one, but you need the bribery argument, if you intend to argue your disqualification efforts were justified. I'm disappointed that you haven't developed further or even commented on the statistical breakdown apparently showing that plaintiffs cannot win at bench trial against the County of Los Angeles. If true, it is a key argument that would "vindicate" you. If not, you should repudiate the argument, so it doesn't confuse.

Steve Lamb said...

You know, one can characterize a payment in excess of what is allowed under State Law from one branch of government to another as almost anything, but morally it remains exactly what it would be were it a payment outside the State Constitution from any other party to litigation, a conflict of interest. This fact is obvious to a six year old, but somehow is difficult for men allegedly learned in the law, such as Cal. Chief Justice Ronald George, to understand.

Richard I. Fine has acted properly as a American Citizen in endlessly papering these obviously corrupt judges for their corruption. What is outrageous here, is that the Judges who are failing to uphold even a minimum standard of judicial impartiality are not in jail, that teh Bar Court Judge who seems to have willfully deprived Richard I. Fine of due process by LIEING about who the complaintant in his case was and witholding that information until the middle of the hearing, thus while deceiding to deprive Fine of his ability to earn a living,depriving him of the ability to know and cross examine his accuser, while allowing the cowardly accuser to sit in and enjoy, actually revel in,Fine's unjust punishment.

These unjustly enriched and conflicted judges and the Bar Court judge belong in Jail, not Richard I. Fine

Stephen R. Diamond said...

I missed this response, but it happens I've touched on the issues Steve Lamb mention in another blog, Juridical Coherence. The relevant entry is "4.1. Gratuitously paying judges biases them: Caperton, Sturgeon, Fine" ( I conclude that the judges' taking the money isn't a crime per se, but only by allowing citizens the right to sue judges personally can judicial bias often be detected. As for Richard I. Fine, he was subjected to injustices far worse. [He's apparently still in jail. Why is so little heard? Where's Judicial Watch?]

Stephen R. Diamond said...


Another thought on this. I've been wondering why our intuitions differ on the per se wrongfulness of the judges' taking County money. I think it hinges on our differing views of the judicial cannon on avoiding the appearance of impropriety. I reject the per-se wrongfulness of _appearing_ improper.

Since official legal ethics agrees with you, the fact that not a single judge saw the ethical quandary is remarkable. Indirectly, this proven propensity of these judges to group-think supports the verdict that they are influenceable as a group.

Still, I don't see a crime. Whether the conflict-of-interest concept remains entirely intact after a searching but surgical removal of appearance-of-impropriety considerations--haven't thought about it yet--but to *criminalize* the mere appearance of impropriety would be retrograde. .

Capt.- Kirk S. said...

I noticed nobody mentioned SBX211.The plot thickens.