Sunday, April 25, 2010

78th Installment. Too bad the Supreme Court will ignore Phil Kay’s excellent petition for writ of review

8th in Philip E. Kay series
State Bar respondents are often unaware that the petition for writ of review, the ultimate review vehicle in State Bar Court, has nothing but its destination in common with the petition for review, the review vehicle in the courts of record. Court rules limit only the latter's length. State Bar respondents, otherwise enjoying fewer rights of review than other professionals, can file California Supreme Court petitions containing unlimited irrelevant matter. What explains the court's indifference to the length of a petition for writ of review, when it was so concerned about reading many short ones? It's simple: no one at the Supreme Court reads petitions for writ of review, not even a clerk. So I concluded when within hours of receipt the Supreme Court denied a respondent's petition I drafted.

Phil Kay has now filed a petition for writ of review. Of course, I'd prefer to be proven wrong about the outcome, but at least the petition isn't a completely wasted effort. It performs excellently in setting out and proving Kay's case; I'd recommend it to anyone wanting to understand this important State Bar case because of the petition's legal and factual truthfulness. This characterization doesn't apply to the opinions written by "courts" in the State Bar hierarchy (see disHONNest judge); and it must be admitted, it doesn't apply to the bulk of attorney submissions: being oppressed by the State Bar takes its toll on attorneys' ethics. (See The Richard Fine Story: An Objective Analysis.)

Previous kanBARoo court Installments touch the issues Kay's petition raises except for two related arguments that may have merit but which fail as stated. The arguments are summed up in Kay's theory that the State Bar's Kay decision is tantamount to a collateral attack on established superior-court verdicts. Specifically, Kay argues that a judge may only instigate a State Bar investigation by filing a complaint for what Kay calls "reportable actions." Business and Professions Code section 6086.7 mandates that judges shall report:
  1. A final order of contempt imposed against an attorney;
  2. Modification or reversal of a judgment in a judicial proceeding based on misconduct, incompetent representation, or willful misrepresentation;
  3. Imposition of sanctions; or
  4. Imposition of a Family Code civil penalty.
Kay's related claim is that being cleared of trial misconduct necessarily clears the attorney of State Bar misconduct for the same offense. Kay's argument limiting the meaning of "attorney misconduct" and Kay's argument limiting judicial reporting to "reportable events" both treat circumstances mandating prosecutory reports as if they limit prosecution.

If only they did. The statute states that the judge shall report certain events, not he shan't report others. The State Bar hierarchy loves legal over-reaching because it invites simple rebuttal based on the statute's express language. When applied to trial misconduct, this argument presuming limitation to "reportable events" can engender particular confusion. When an attorney appeals to a jury's passions but doesn't succeed—maybe the misbehaving attorney loses—Kay's interpretation implies the judge has nothing to report, seemingly reducing Kay's argument to the absurd. The correct answer—that the conduct involved resolves into another "reportable event," namely a contempt conviction—is hard to grasp from Kay's claim that misconduct requires prejudice.

No doubt, the meaning Kay wants to find in the reported-events statute is what the statute ought to say, and I've contended it's what it must say to survive scrutiny under the U.S. Constitution's equal-protection clause, since holding lawyers to a higher standard at trial imposes a qualitative disadvantage on represented parties. Short of the constitutional argument, Kay can reasonably maintain that the charges he faces are improbable without the statutory events.

Kay intends to make the most compelling case. His forced interpretation of the mandatory-reporting statute doesn't serve his purposes. He should lay a foundation based on his Constitutional rights.

Wednesday, April 7, 2010

77th Installment. The Richard Fine Story: An Objective Analysis

The wrongly decided Fine v. Superior Court (2002) 97 Cal.App.4th 651 (continued)

Commissioner Bruce Mitchell's findings of fact need not detain us. By refusing to release his death grip on Fine's case and finding Richard Fine guilty of criminal contempt, Commissioner Mitchell deliberately acted without jurisdiction, proving his bias.

Another way Commissioner Mitchell expressed his lawless subjectivity was soliciting defense counsel to respond to Fine's appeal. (Ibid.) Mitchell's hubris led to greater openness than wisdom would have prescribed, but the Court of Appeal's bias in his favor outweighed the commissioner's foolhardiness. Although the Court of Appeal admitted this was Fine's most serious charge, the court responded with an unsupported legal conclusion:

Commissioner Mitchell, when advised that Fine had appealed from the "order" purportedly made on December 1, 2000, properly suggested that a response to the appeal would be in order and that the party responding could be entitled to attorney fees. (Ibid.)

How could the Court of Appeal miss the impropriety when a judicial officer exploits courtroom command to gain unfair advantage? How could it miss the commissioner's deliberate misstatement of law in announcing defense counsel owed a collective duty to file a respondent's brief? This false claim encroached defense-counsel authority and interfered with performance of their duty to determine their clients' interests independently .

Mitchell's contempt findings, reinforced by the published Court of Appeal case, became the basis for Commissioner Mitchell's State Bar complaint against Fine, the underpinnings unchallengeable in State Bar Court. Because the findings were incontestable res judicata, the State Bar Court and "Jailing Judge" Yaffe could ignore Fine's sound reasons for demanding Mitchell's disqualification: Commissioner Mitchell was Temporary Judge, serving by consent. The terrible Fine v. Superior Court (supra) decision, based on findings whose provenance defeats their credibility, is the main source of public confusion; but Fine, confusion's victim, contributes.

Richard Fine's misguided argument

Fine justifies his intransigence by Commissioner Mitchell and Judge Yaffe's omissions of County-provided benefits from their mandatory disclosures of contributors. Fine's argument, convincing no one outside a small group of conservative-libertarian true believers, hasn't ignited the public discussion the Fine case deserves. The relevance of these alleged failures to disclose to Fine's contempt conviction isn't immediately apparent, since neither County nor real-estate developers, alleged nongovernment beneficiaries of County's "bribes," were parties to the case.

Fine's argument that judges are derelict whenever they don't "disclose" County "contributions" borders on frivolous, since every judicial officer receives these benefits. The duties a disclosure requirement would impose on a judge who refused the benefits, a refusal that according to Fine is mandatory if judges are to avoid criminal prosecution, shows the wrongheadedness of Fine's nondisclosure argument. Whatever influence County exerts, it also potentially exerts on a refuser, who continues to enjoy the option of getting the benefits but has nothing to disclose. Disclosure simply doesn't address the bias! This shows that County-provided benefits to judges are not a "contribution" but a public entitlement.

This isn't to say Fine was mistaken in thinking Mitchell biased. If Mitchell wasn't initially, he surely became biased after Fine filed disqualification motions, bias proven by the commissioner's vindictive retention of jurisdiction over Fine's contempt. Fine was in a real bind, since Mitchell also presided over some Fine cases against County and land developers. Fine had to disqualify Mitchell in Fine's personal-injury case because he had challenged Mitchell in other cases, where Fine had better reason to suspect bias than provided by his silly nondisclosure theory.

The bias wasn't necessarily for County but clearly against Fine because he moved for Mitchell's disqualification in other cases, but bias in one case isn't legal basis for a judicial officer's disqualification in another. Fine's convoluted nondisclosure argument was a contrivance to disqualify Mitchell—who needed disqualification. Fine's mistake was making this contrivance his centerpiece argument, distracting from and replacing sound arguments based on Mitchell's and Yaffe's actual bias and the oppressiveness of long-term coercive confinement.

To the substance of Fine's argument that County-provided benefits create actual judicial bias, it's harder to say whether judges generally are biased by noncontingent benefits—at least to overshadow bias favoring the State of California, which pays judges' salaries; and it's hard to deny that the quality of judging would decline in Los Angeles County if judges' received 30% less remuneration. Los Angeles County Superior Court judges are better than judges in Joshua Tree, San Bernardino County, and maintaining this quality seems a legitimate County interest. Fine argues that County has no reason to pay judges besides buying favorable verdicts, but Fine and his supporters don't explain why the supply-and-demand truisms shouldn't apply to the selection pool for judges. If zeal for public service is supposed to replace monetary rewards, Fine is conceding that County has a legitimate interest in augmenting judicial remuneration to avoid judicial zealotry.

From Commissioner Mitchell's lies to Richard Fine's obfuscations

The public's understanding is clouded by Fine's legal and writing style, oversimplification of issues, inaccuracies, and disingenuousness concerning his motives. Fine is of the old-school legalese-style of legal writing I bemoan in Disputed Issues: he is at once dense and prolix; he raises a plethora of issues, without apparent regard for loss of credibility, due to his many bad arguments, or for loss of visibility, good arguments buried among bad. (See Legalese: Pomposity Ritualized.) If his case didn't arouse strong judicial prejudices, it would still be misunderstood because Fine is an awful writer.

Fine and almost all blogs writing about him oversimplify the issues, while Fine's inconsistent maneuvering overcomplicates them. The more unorthodox a legal theory, the more important is consistency in execution, but consistency isn't evident in Fine's strategies. Fine was inconsistent in execution when he agreed to Mitchell as Temporary Judge and didn't object until Mitchell started ruling against him. Fine's inconsistency doesn't mean Fine is wrong about the judges and the biasing effect of the County-provided benefits. From observing other jurisdictions where real estate is a major industry, I'm prepared to give credence to claims of corrupt influence lubricated by County payments to judges, but Fine and supporters resist gathering the data needed to assess bias based on verdicts.

Fine claims his opposition to County-provided benefits drove the State Bar to take his license and the judges to jail him for more than a year and counting. The record shows Fine's stance turned the judges against him; its vindictiveness is a discredit to the Los Angeles judiciary, but attorneys are disbarred for disobeying court orders, repetitively demanding disqualification, and suing judges personally. The State Bar's undemocratic policing in disregard of Constitutional rights is oppressive but no unique reprisal for Fine's campaign. Fine has shown that plaintiffs rarely win against County at bench trials, but absence of any control group makes this statistic meaningless; Fine's claim that the corrupt influence is "obvious" from the statistics is one of the more annoying parts of his defense.

Both sides obfuscate Fine's motives. Certainly his willingness to endure jail for a year demonstrates courage and sincerity, but Fine did not, as he implies, challenge Commissioner Mitchell for the direct benefit of his clients: he began his series of disqualification motions when Mitchell delayed granting him an advance on fees, court approval required in class actions. Fine's crusades weren't motivated purely by lawyerly zeal; he was on the verge of personal bankruptcy, and the financial crisis his office sustained was the ostensible reason Mitchell removed him as class counsel. Judging Fine's tactics requires perspective. Class counsel spend years on a case, and a vindictive decision by a judge can attack the class at what has become its weakest link, the attorney, but Fine's tactics created conflicting interests with his clients. Fine's trial tactics may be found defensible, even exemplary, but Fine's skirting the ethical issues they raise is disingenuous.


Fine's case has been relegated to the fringe because his supporters are too often tax rebels looking to score points against "big government." Their and Fine's outlook accounts for the outlandish emphasis on the contrived argument that judges can be disqualified for failing to "disclose" what is public knowledge—surely Fine's knowledge—about County-provided benefits. Fine has stronger arguments: the actual bias of the judges, long-term coercive confinement's unconscionability, and the State Bar's misuse of the "moral turpitude" rule to evade the First Amendment.

Related essay: "Abolish unlimited-term coercive confinement for civil contempt"