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 [http://tinyurl.com/33amqcz].)

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.

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.

Conclusion

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"