Saturday, September 25, 2010

83rd Installment. Fine Finally Free: What's the Real Lesson about California Judges?

The Los Angeles Men’s Central Jail has released Richard Fine, held in coercive confinement for 18 months for disobeying a court order to disclose his financial records. Fine’s intransigence was a victory only in a personal sense. Although speculation about Judge Yaffe’s motives in ordering the release is rife in the Fine camp, Yaffe ordered Fine’s release because he's retiring; he isn’t retiring because of the Fine situation.

Judge Yaffe’s stage-managed retirement illustrates why you don’t have to invent judicial conspiracies to apprehend judges’ ethical hypocrisy, despite their being frequent impugners of lawyers’ ethical integrity. Yaffe is mounting a runaround of the California constitutional provisions that democratically check the governor’s power to appoint judges by subjecting them to retention elections. (Cal. Const., Article VI, section (c).) He will exploit the loophole exempting interim appointments from this requirement. Had Yaffe resigned a month later at the end of his term, a retention election would check the governor in filling the vacancy.

Judge Yaffe is an egregious judicial officer, but we would unjustly condemn him for gratuitously resigning a public trust (remember, he's a superior-court judge, not Sarah Palin). We would treat him unfairly by singling him out even for circumventing a constitutionally authorized legislative check on executive power. He isn’t exceptional in staging this travesty, for it’s the norm; nor is this flaunting of partisanship likely to change any appointment—making the judges’ crass sell-out to petty partisanship more degrading.

Since Yaffe wants to retire because he's old, and opportunistic early resignation is customary among our half-civilized judges, lawyers will immediately understand why Yaffe released Fine. Yaffe definitely became aware of the portending scrutiny by a new judge, since Fine had just moved for re-assignment based on Yaffe's impending retirement. Informal norms press judges to wrap up business before retiring, to avoid making work for other judges. Fine’s motions and appeals could harm Yaffe’s reputation, under a judge who’s irritated with the chore. Enjoying less personal influence after he retires, Yaffe should even fear reversal.

Some of Fine’s supporters, including the always truth-disrespecting Leslie Dutton, base their conspiracy theory on a claim found in Fine's briefs, asserting a U.S. Constitutional limit of five-days confinement for contempt. Dutton even invented an acronym for the hearing that supposedly should have enforced this nonexistent limitation: “FARR hearing”: her complete confusion about a case where the petitioner bore a similar surname. (See Farr v. Pitchess (1973) 409 U.S. 1243.) This falsehood disserved Fine by implying that coercive confinement is an illegal, aberrant practice victimizing Fine alone, whereas it's really an ensconced threat to lawyers and the public. As far as any pressures promoting Fine’s release, the contents of Judge Yaffe’s order support the import of the length of Fine's confinement, the only issue where Yaffe's order revealed vulnerability.

Fine and his supporters, wrapped up in these confusions or prevarications, led with their untenable fraud-by-the-courts theory. This Fine–Judicial Watch theory doesn’t itself scare members of the state-bar establishment, but the course of events does nonplus them. The California Supreme Court’s motion to dismiss Fine's civil lawsuit denigrates Fine's legal theory, through the office of that court’s attorneys, Benton, Orr, Duval & Buckingham:
Although Fine trumpets the various actions that he has filed against judicial officers as evidence of his successful prosecution of alleged judicial corruption, he has never prevailed in any attempt to disqualify a judicial officer (state or federal) based solely on the receipt of “local judicial benefits.” [Citations.] Moreover, Fine’s reliance on his strained interpretation of Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (2008) is without legal or factual support. The Sturgeon decision specifically found that the payment of local judicial benefits was neither a waste of taxpayer money nor a basis to seek recusal of a judicial officer receiving such benefits. [Citation.] (“Defendant, The Supreme Court of California's Notice of Motion and Motion to Dismiss Complaint,” p. 3, fn.2 [].)
This language shows both the courts' distance from Fine’s interpretation of Sturgeon v. Los Angeles County and, despite the legal unformidability of Fine’s “strained” theory, their wish to forgo stock taking. As Savannah S. Winslow points out in the pro-Fine blog Right Trumps Might, Sturgeon made no specific findings on recusal! The Legislature’s failed attempt to immunize Councilmen and judges retroactively for providing and accepting the unlawful benefits points to the same avoidance. While grant of immunity doesn't prove grantees' criminal guilt or civil liability (contrary to Fine and supporters), it demonstrates an appearance of impropriety. The Legislature immunized the parties to avoid litigation, not necessarily liability, but the Legislators expected citizens to litigate only because the benefits appeared improper.

Contrary to the tenor of the California Supreme Court’s attorneys’ comment, Fine struck effectively, if blindly, against the California judiciary's
moral authority and, for some correct reasons, damaged the Los Angeles judiciary’s reputation. While the judges broke no criminal law and committed no tort, they created an appearance of impropriety by accepting a contribution they knew was probably illegal (what with their being judges). Out of some 400 judges in Los Angeles County, none refused the benefits or protested to bring the remuneration scheme within the state’s administrative-law provisions. During some twenty years of receiving these legally dubious benefits, the judges allowed the practice to continue.

No judge, not one, brought analytic acumen or ethical sensitivity to bear on this irregular practice, where the judges personally benefited. Even as applied to judges, a principled ethical code would sanction only actual impropriety, not its mere appearance, but most jurisdictions’ codes of legal ethics and all codes of judicial conduct impose a duty to avoid the appearance of impropriety, a norm most judges accept. kanBARoo court alone pinpoints the moral contradiction of hundreds of judges who lived comfortably with impropriety’s appearance, while they endorsed the no-appearance-of-impropriety standard; the judges know the public recognizes their hypocrisy.


Savannah Winslow said...

Geez Louise! Yaffe's order from the very day before Fine's release showed his commitment to continue the jailing for another six months. Yet a mere 24 hours later, he had a major change of heart in order to clean up last-minute business, you say? I say it was public pressure, compounded by the personal visit of three orthodox Jewish Rabbis the morning of Fine's release. I could go on and rebut practically every sentence in the above article, but what's the point? There is no desire to discuss the truth here, much less stem the corruption in any way. So don't complain when the situation continues to deteriorate ... and don't be surprised when Antonovich and Ronald George are indicted (events on the near horizon, I'm told by certain Feds). Whatever.

Stephen R. Diamond said...

I don't know what in his previous order supposedly demonstrated a commitment to hold Fine for another six months, but even if this unsupported conclusion is true, what in the world do you imagine it refutes, as I recognize the significance of public and moral pressure? Where we disagree is you think the pressure stemmed from the judicial benefits program, whereas I say it concerned the length of his detention. At most you're "rebutting" a trivial difference of evidence about a point with no practical significance, while you omit any evidence for your ulterior claim (that Yaffe's scared because what he did was a crime, and he really might and should be sent to prison for it.)

This is the method of the Fine supporters. I think "Right Makes Might" is intentionally ambiguous, and right also means "rightwing." You have some outrageous rightist conspiracy theories. But instead of defending them openly, given an opportunity, you argue trivia and pretend you've made your case for the outrageous contentions.

Do you test your theories? If George were indicted, I'd seriously consider your position; I would admit I had misjudged the actual situation. Will you reconsider your position when nothing materializes concerning such indictments? There's the distinction between us, and an operational definition of what it means to try to "discuss the truth." Tell me (truthfully!) did anyone make an attempt to "discuss the truth" concerning the Farr amendment contention? I think you have some esoteric definition of "truth," to match your ambiguity about "right," because I can't comprehend even a crazed rightwinger could think the Fine sites demonstrate a desire to "discuss the truth" or that I don't try to.

Stephen R. Diamond said...


Reviewing the previous order, I see where you've misled yourself. Here's the relevant language from Judge Yaffe's September 16, 2010:

"The court has no jurisdiction to hear said motion because the judgment in both the underlying action and the contempt proceeding in case BS109420 are final.

"The only continuing jurisdiction that this court retains in case BS109420 is the discretion to release Fine from confinement in the county jail on the ground that his continued confinement will not induce him to answer questions put to him in a joint debtors examination. Fine's demand for a release on that ground was ruled on by this court on August 23, 2010, and is calendered for further consideration six months from that date."

I see why you didn't provide a reference for this quote; it could be embarrassing. (The order is downloadable at

Your interpretation of Yaffe's holding is disingenuous. What would you expect Yaffe to say: "We have a hearing scheduled in six months, where you're entitled to have your confinement reassessed. However, I will have a pleasant surprise for you tomorrow."

This hearing is what probably reminded Yaffe that he wouldn't be around for the next one, and that understanding led to Fine's release. I'm not sure why you all are so ready to equip Yaffe with a conscience, when he has never shown any. You seem to want to say that Yaffe treated Fine so badly that even a sociopath would suffer guilty conscience. By creating this myth, by spreading a known falsehood that the Supreme Court ever limited coercive confinement to five days (the "FARR hearing" nonsense), you undermined any broad solidarity with Fine. People have to understand that it could happen to them, to have a sense of solidarity with Fine. You would rather believe Fine was subjected to torments that the state would never use on anyone else; that his case is completely extraordinary. You want to build a hero cult.

Anonymous said...

To Stephen R Diamond: I do appreciate your intelligent well researched responses/articles. From what I can see regarding the Farr case, you are correct. The amount of incarcerated time was left hanging. And who really knows what Yaffe was up to when he finally decided to release Fine. I mean his minute order to release Dr. Fine was bizarre and unprofessional and it appears Yom Kipper could have had a bearing.