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.

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

8^th 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.

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"

74th Installment. Beware of Court Commissioners!—The Origination of the Richard I. Fine Disaster

Former Chief Justice Bird once declared in dissent that a certain case's moral was "beware of commissioners in referees' clothing!" (See In re Mark L. (1983) 34 Cal.3d 171, 181.) The Richard I. Fine case teaches a more general moral: beware of all court commissioners! Fine's ordeal, where the courts have jailed Fine for almost a year to force him to answer a judgment-creditor's financial questions [water boarding, anyone?], began when Fine entered a commissioner's courtroom, and the commissioner didn't let him leave. While I still don't sufficiently understand the immediate dispute concerning Fine's imprisonment seven years later, a document by one of Fine's class-action clients led me to the first cause of this legal catastrophe: the Court of Appeal's disingenuous review of Fine's contempt conviction by the embroiled Commissioner Bruce E. Mitchell. (See Fine v. Superior Court (2002) 97 Cal.App.4th 651.)

Fine suffered the reasonably feared consequences of stipulating to using a court commissioner, despite being entitled to a judge. Courts employ commissioners—judicial officers who are not constitutional judges—to save costs by serving in place of judges, a practice the California Constitution permits only in compliance with other constitutional requirements, including each party's stipulation to jurisdiction. (Cal. Const., Art. VI, § 21.) Since consent is a constitutional requirement, the court—never in these terms—asks for a favor; any party's refusal to stipulate means a judge must hear the matter. Although the commissioner's employment is constitutionally authorized only at the parties' sufferance, the stipulating parties don't choose the terms of their stipulation; they must take or decline the commissioner's services for all pretrial matters.

Never have I heard a lawyer wonder about what I had often expressed—and enacted—that stipulating to a commissioner unless justified by case-specific information is usually an act of disloyalty to a lawyer's client. The stipulation is irreversible, but entering it is voluntary; why would a plaintiff's attorney agree to be heard by an official who is less experienced, less qualified, more subservient to the powerful, more likely to be in defendant's pocket? The answer is that judges have great powers of reprisal. Lawyers don't always anticipate that the State Bar will be the judges' instrumentality, but they know getting on the judges' bad side is a bad idea. By routinely stipulating to the jurisdiction of commissioners, lawyers regularly sacrifice their clients' interests. This court-encouraged, unthinking violation of the central ethical tenet celebrating loyalty to client undermines attorneys' ethical sensibilities. Like writing-quality fraud, disloyal stipulation is territory the state-bar establishment won't occupy.

Events at the start of Fine's ordeal illustrate the profession's blunted ethical sensibilities about stipulations made for the court's convenience. Even an attorney dedicated to aggressive pursuit of his clients' interests succumbs to the pressure to stipulate, but that isn't to say Fine was at fault: Commissioner Mitchell committed acts of dishonesty; a disingenuous 2nd Appellate District panel ignored Commissioner Mitchell's distortion of the law and perpetrated its own distortion of fact to support the embroiled commissioner; and Commissioner Mitchell's tenacity, despite his legal-error's flagrance, smelled of corruption.

In trial court in a class-action tort case, Fine, representing the plaintiff class, signed the stipulation giving Commissioner Mitchell jurisdiction to hear all pretrial matters, the beginning of Fine's undoing. When Mitchell cited Fine for contempt for his numerous recusal motions, Fine argued that Mitchell lacked jurisdiction to try the contempt because his approval of the final settlement ended Commissioner Mitchell's authority to act as "temporary judge." Commissioner Mitchell insisted that the pretrial matters weren't completed because the members of the class retained the right to sue. The Court of Appeal rejected Commissioner Mitchell's argument, calling it "strained," a considerable understatement, since both binding authority and common sense contradict it. (Nierenberg v. Superior Court (1976) 59 Cal.App.3d 611, 616 [commissioner's jurisdiction limited to stipulated matter].) When parties settled, the "cause" before Commissioner Mitchell was completed. (Sarracino v. Superior Court (1974) 13 Cal.3d 1, 9 [definition of "cause"].) Contrary to Commissioner Mitchell, future causes derived from the present cause aren't part of the present cause. (Nierenberg v. Superior Court, supra, 59 Cal.App.3d at p. 617 [appealability test for a single "cause"].)

The Court of Appeal couldn't swallow Commissioner Mitchell's self-justification, yet the appellate court took no note of the unethical character of Commissioner Mitchell's desperately specious arguments to retain control; instead, the Court of Appeal offered a different reason to justify Mitchell's jurisdiction over Fine's alleged contempt. The Court of Appeal held that Fine had implied he consented to Mitchell's handling subsequent matter when Fine agreed to settlement terms that included continued court supervision. Wanting to find against Fine, but not by embracing Commissioner Mitchell's distortion of law, the Court of Appeal didn't recommend alternative language by which litigants could request continued court supervision without requesting it of this court. The Court of Appeal mischaracterized the case's facts to read into a general request for further judicial supervision a binding stipulation extending Commissioner Mitchell's specific jurisdiction.

Next Installment will further analyze the erroneous Fine v. Superior Court (2002) 97 Cal.App.4th 651.

Interlude 13. A Tale of Two (or Three) Blogs

kanBARoo court reached the million mark yesterday. No, not a million subscribers, unfortunately. You reach this mark from the far side: kanBARoo court is now among the million top blogs if what's "top" depends on three-month traffic.

Two companies estimate the popularity of blogs. Alexa bases its estimates on a large (nonrandom) sample of readers; Google on the inbound connectedness with the rest of the Internet. The two measures correlate substantially, but kanBARoo court diverges between Alexa's traffic estimate and Google's link-based estimate, on which kanBARoo court scores 2 on Google's 0 to 9 logarithmic scale. One of my other blogs Disputed Issues, whose traffic rank (about 1.4 million) is significantly weaker than kanBARoo court's and whose Google page rank substantially stronger (4), shows a typical correspondence. Disputed Issues is a half year newer than kanBARoo court and contains half as many entries. (My third blog Juridical Coherence is too new for comparison.)

kanBARoo court may be unequaled in the disparity between its traffic rank and Google page rank, which affects priority in search-result placement. Maybe someone else will examine how Google's search monopoly and its rankings press toward ideologically conforming Internet networks. My interest is monopolization of legal-ethics' discussion and state-bar law by the state-bar establishment. Like many independent dissenters, I link outside my blogs judiciously, but when I do, the links most often point to opposed positions. The state-bar establishment blahgs — the absence of controversy makes them anything but interesting — intentionally avoid pointing to opposed positions or inimical institutions; they link as political tool. One establishmentarian blogger posted as much: "I am not going to link to his post, as that would give him Google juice." (See http://tinyurl.com/loxxgx.)

Contrast the lawblahgs with bloggers opposing the state bars. Whether primarily dedicated to freeing Richard I. Fine (see, for example, http://tinyurl.com/nqjptj), exposing biased judges (http://tinyurl.com/mu6e4h), or rectifying the Ramparts' victimizations (http://tinyurl.com/l59jqd), we seldom cite to each other or feature a blogroll advertising congenial blogs. We're obviously going to show more independence than the state-bar establishment and its cheerleaders, but we also have ideological and legal differences, even literary differences, we don't ignore.

The state-bar establishment, like an ordinary commercial monopolist, trades [links] as means to continue finding advantage in collusive combination. This is their right — although maybe not Google's to furnish the incentives fostering collusion — but the rarefied Internet is only a shadow of the world outside, where to marginalize opposition the state-bar establishment will use all means, including in California redoubling the calumny against state-bar respondents through an early-publications policy.

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.

kanBARoo Court. 47A Installment. More Dirty Tricks from the State Bar

To avoid losing, how far will the California State Bar go? Recent happenings suggest that the limits haven't been plumbed. The State Bar's malign reach extends to the California Supreme Court Clerk's Office, ordinarily a model of propriety. My filing of a petition for writ of review was not perfect in every sub-technical respect, but whereas filings with the State Bar are problem-laden every step of the way, filing with the Supreme Court was fast and always is unproblematic, as the civil procedure remained until the State Bar got into the act. The Supreme Court Clerk's Office filed the State Bar's answer three days late, without obtaining permission of the court as required. Initially, I intended to ignore this improper filing, an accommodation that would have been a mistake and a deviation from my anti-waiver strategy. One grows weary of these procedural battles, and I looked forward to calmly writing a reply and, I hoped, a supplemental petitioner's brief, after the Supreme Court accepted review. This Pollyannaish perspective denied the reality that litigation against the State Bar is procedural to the end, because the State Bar refuses to play by its own rules. When I discovered the State Bar not only filed its answer late but also served the answer improperly, I came to my senses and filed a motion to strike respondent's answer. (See 47th Installment.)

How worried should the State Bar be? First, let's look at the procedures governing a petition for writ of review and what I have recently learned relevant to the petition's prospects. Formally, a petition for writ of review initiates a two-stage process. After the first round of briefs, culminating in petitioner's reply brief, the Supreme Court may grant review, after which the court invites respondent to file a more extensive supplementary brief, followed by a more extensive brief by petitioner. Which stage poses the greatest hurdle? The answer is a stage that doesn't explicitly exist, the first stage mentioned above really being the second, and the second described above, the third in practice. The Supreme Court may, and usually does, dismiss the petition before the State Bar files an answer, because the court deems that the petitioner has not established a prima facie case. I think early dismissal is the fate of the overwhelming majority of such petitions; Richard Fine's extremely detailed and extensive petition is an example. (See Justice Kennard's dissent in In re Rose (2000) 22 Cal.4th 430, discussed at the 30C Installment.) The State Bar delays filing its answer until the last moment, hoping and expecting that the Supreme Court, as usual, will reject the petition sua sponte at the end of the actual first stage. The delay avoids the labor of drafting the answer, and more importantly, allows the State Bar to avoid committing itself to new legal or factual positions. The State Bar's answer is only minimally important, normally, because the petitioner either will have established a prima facie case or have failed to establish one. In a case like mine, mostly raising questions of law, even the final phase is not apt to be telling, because the relevant facts are immediately available from the record.

Twenty days after I served the petition, when it became apparent the Supreme Court, not having dismissed my petition, believed I established a prima facie case, the State Bar had good reason for worry. The process really contains three hurdles, the first and most important one now surmounted. The State Bar was on course to lose in the Supreme Court, a fate not exactly but almost unprecedented, as I have found two ancient State Bar cases where the Supreme Court granted a complete dismissal in the interest of justice. The State Bar cannot afford to lose a single case today. Its tacit doctrines of strict ethical liability and mere appearance of impropriety--with guilt assumed in practice upon the State Bar's bringing charges--depends on the State Bar's infallibility, not as to all the charges, not as to the appropriate level of discipline, but definitely as to existence of culpability.

I don't know what the State Bar argued in its answer, but the State Bar desperately wanted to avoid having this petitioner file a reply, a reply due on very short notice, 10 days after the State Bar deposits its answer in the U.S. mail. The State Bar first tried to misdirect the answer to another attorney's address. When the Supreme Court clerks caught the mistake and informed the State Bar, it served its answer to my previous address, against its own Rules of Procedure, rule 61(b), and the California Rules of Court, rule 9.13(f). The Supreme Court's Clerk's Office did not, as customary, record its initial rejection on its docket, an omission I consider mildly collusive, and I suspect the State Bar omitted any actual mailing on its second try, because mailed to the previous address, only ten miles away, the answer would still have arrived long ago. With luck, the State Bar might have enjoyed my ignorance of its submission and filing until the court actually rendered a Bar-favorable decision. At that point, I could challenge the service, but I would have to attack a decision already made. Not only would the momentum favor the State Bar, but it could reasonably hope I would be so fed up I wouldn't bother.

kanBARoo Court. 44th Installment. Richard I. Fine Revisited and the State Bar's Usurpation of the Contempt Power

Richard I. Fine, fighting on several fronts, continues to resist State Bar oppression. Fine recently presented oral argument before the State Bar Court Review Department, submitted disqualification motions against judges involved in his disbarment, and filed a civil rights suit in federal court for declaratory and injunctive relief. In the federal action, Fine seeks to have Business and Professions Code section 6007, subdivision (c)(4), declared unconstitutional. Fine contends this provision violates due-process notice requirements by allowing the State Bar Court to enroll Members involuntarily inactive, as corollary to a disbarment recommendation, without holding a special hearing evaluating the factors subdivision (c)(2) requires. Fine also challenges the "moral turpitude statute," Business and Professions Code section 6006, as unconstitutionally overbroad.

The Metropolitan News-Enterprise (June 25, 2008) covered Fine's oral argument. The reported remarks show both the Office of the Chief Trial Counsel's abysmal legal backwardness and the State Bar Court's unconstitutional over-reaching. The State Bar's counsel maintained that the Fine case did not pose First Amendment issues, because the case concerns acts done, not utterances stated. The comment of Review Judge Judith Epstein proves the wrongheadedness of the OCTC's perspective. Judge Epstein saw Fine's judicial communication of allegedly known falsehoods as the gravamen of the State Bar's charges. The relevant distinction drawn by Epstein has nothing to do with that between speech and action, as Bar counsel conceives, but whether the constitution protects the given speech.

Bar Trial Counsel also stated that the problem is that Fine sees no wrong in his actions, and, if allowed to practice law, he would repeat them. Even if sound, this argument fails to embrace the State Bar's ameliorative theory of discipline, as trial counsel does not consider the likelihood that imposing lesser discipline would change Fine's attitudes. (See Maltaman v. State Bar (1987) 43 Cal.3d 924, 958 ["Because petitioner has no prior record of discipline, we have no evidence that a sanction short of disbarment is inadequate to deter future misconduct and protect the public."].) Exposing the State Bar's self-serving disregard of the prospects for "reforming" respondent Fine is not to admit that Fine's attitudes need reform. The State Bar's grandiose belief in its own capacity to determine independently whether Fine performed his lawyerly duty of candor to the court does need reform. Fine reports that findings of contempt in two courts were invalidated. The State Bar didn't predicate its charges on contempt findings because judicial officers—unable to sustain contempt charges in courts of record —obtained a de facto contempt conviction by collaterally attacking Fine in the State Bar Court.

The argument that a guilt finding for contempt must undergird a constitutionally proper penalty for violating a court order applies to Fine's situation, because the logic applies not only to violating court orders but also to breaching any rule or statute tested by constitutional-court contempt proceedings. The 41st Installment argued that interpreting Business and Professions Code section 6103 to allow State-Bar attorney discipline for violating a court order, absent contempt, was incompatible with California's public policy, which lets litigants challenge court orders by violating them. The inconsistency between public policy and State Bar practice deprives attorneys and indirectly their clients of the law's equal protection. Proving contempt by judicial fact finding—not necessarily involving a court order—implicates the same principle, since non-attorney parties, unequally, have the right to a contempt trial, with its higher standard of proof than a State Bar proceeding.

kanBARoo Court. 34th Installment. disHONNest Judge

Judge Honn's awaited disbarment recommendation arrived Monday, relieving me of the chore of compelling the State Bar Court’s issuing this precondition to California Supreme Court review. The 24-page recommendation was a cut-and-paste job from fragments our prosecutrix composed. In response, I extend a warm invitation to both the prosecutrix and the Good Judge to consult my other blog, Disputed Issues, where they can extract advice about finding a much needed legal ghostwriter.

Judges are less intellectually honest than most of us might prefer to believe. Judicial tactics in a close case, for example, include omitting important facts supporting the other side. (See for example, Odom v. South Carolina Department of Corrections (4th Cir. Dissent 2003) 349 F.3d 756 ["Finally, in addition to its selective recitation of facts and mischaracterization, the majority omits entirely to recite perhaps the most critical facts from Odom's allegations that ultimately prove the reasonableness of the actions taken by all of the defendants, and Taylor in particular."])That judges are not possessed of greater intellectual honesty disappoints, but while omitting discordant facts in court opinions isn't exceptional, intentionally misstating a party's position is. A court may misunderstand a legal theory, and as I discuss in my other blog, incomprehension is a frequent unwanted result of common litigation tactics. (See for example, "Emotionalization.") The magnitude and direction of the misrepresentation, when compared to the information available and the depth of review claimed, proves intentional deception outside judicial norms. Judge Honn's comparable performance in the Richard Fine case also supports this criticism of the court's integrity. There, the court failed to present Fine's contentions, despite Fine's unmistakeable clarity. In the Richard Fine series (see 30th Installment to 30C Installment), I summarized:

Judge Honn's 72-page opinion differs from similar documents in other courts by the absence of respondent Fine's legal and factual contentions. Judge Honn presents the findings in full comprehensiveness, dwelling on the smallest details of what the court claims transpired, while he provides scant indication of the issues and none of Fine's contentions. The omissions are giveaway that justice is not being done. (30th Installment. The Richard Fine Matter and the Moral Turpitude Travesty.)

In Judge Honn's Fine recommendation, the court held it had no duty to respond to Fine's contentions, an evasion that still doesn't explain the distortions in the court's opinions. The court misleads about my position by misstating explanations I provided to defrauded persons and the court, as when Judge Honn states:

Instead, in his response to attorney Kim, he [respondent] disavowed any knowledge of Yoo's case, claimed that he was not her attorney, never had been her attorney and owed her no duty, and blamed his office staff for the misconduct. Respondent claimed, further, that he had recently fired Kim and staff upon discovery they had signed medical liens without his permission." (Judge Honn, Decision, p. 5.)

By out-of-context paraphrase, Judge Honn dissembles my disavowal of duty to supervise staff. Rather, I contended consistently to defrauded persons and to the court, a small subset of the public served at my office comprised defrauded persons distinct from clients, with whom I had an attorney-client relationship. Staff handled defrauded persons' cases conspiratorially, including communicating about those cases only in Korean. As I wrote on penalty of perjury in my original motion to dismiss the Notice of Disciplinary Charges:

Kim, Shin, and colleagues plotted undetected by respondent by using their native language for office communication. Respondent—relying on his clients to report any complaints, problems, or anomalies—thought the absence of client complaints verified the operation’s correctitude and did not entertain the possibility that each and every employee would cooperate in keeping Kim’s operation secret. Kim had only recently hired most of the staff, whom Kim and respondent instructed on respondent’s ultimate authority. When respondent finally received a complaint from Scott Meyers, Esq., despite the fraudulent and extortionate character of Meyers’s demands, respondent immediately investigated. Finding he could not rely on his staff, respondent promptly closed his office. (17th Installment, Original Motion to Dismiss.)

kanBARoo Court. 30C Installment. Why the Supreme Court wants to avoid discipline cases and what to do about it

A level of balance between attorney property rights and public protection constitutionally determines the due process accorded State Bar respondents, but the State Bar suffers from an inefficient mix of measures fostering reliability of judgment and favoring speedy case resolution. One example is Business and Professions Code section 6007, which insists on immediate implementation of the State Bar's recommended judgment. Although a mere recommendation, the Hearing Department's disbarment sentence automatically enrolls respondent inactive, a draconian measure, which would make resistance impossible for most attorneys who would mount an appellate challenge. Section 6007 thus deters challenges to the State Bar, accelerating its bureaucratic ossification. State Bar establishment doctrine justifies the provision both by the public's right to protection and the respondent’s to speedy resolution, but a Fine case timeline shows the alleged judicial incidents began in 1999, and the Bar brought charges in February 2006. The public has an interest in preventing practice by psychopaths, but if Fine were an attorney bereft of scruples, he has practiced while harboring this deficit some 9 years after the event, and Judge Honn’s opinion does not disclose how long the Bar has imposed investigatory annoyances on Fine. How much would it matter for public protection if Fine were allowed to practice until his appeal is resolved? The expediency the State Bar Court rules promote provides little added public protection, while undermining salutary appellate strategies.

A fact little appreciated because of that court’s draconian powers, the State Bar Court is not a real court of law. The State Bar Court's jurisdiction derives entirely from the Supreme Court, the State Bar being both a semi-private corporation and an administrative arm of the Supreme Court, a compound status whose incoherence we ignore, as we ignore exceptions to Supreme Court jurisdiction for some lesser disciplinary penalties. The convoluted characterizations of the State Bar’s court’s legal status show that the Bar assumes powers constitutionally uncontemplated, as in In re Rose (2000) 22 Cal.4th 430, which relates to another bad trade-off in State Bar procedure, a subject of Richard Fine's current writ petition to the California Supreme Court, Richard Isaac Fine v. State Bar, Case No. S161247 (http://tinyurl.com/2xcgl4) The case added yet another epicycle to truncate respondents’ right to invoke a real court's jurisdiction, critical because permitting attack from outside the ingrown, collusive State Bar system. In re Rose unfortunately holds that when an attorney petitions the Supreme Court for review of a final decision, the court need not hear oral argument or provide a written opinion. The Supreme Court concluded anomalously it exercised final jurisdiction over all acts of disbarment yet denied that final judgments were subject to the conditions and protections the California Constitution afforded causes in constitutional courts. The court's arguments are so contrived that were they raised by a petitioner before that court, petitioner would risk sanction. The Supreme Court maintained:

Nothing in the debates regarding the written-decision requirement in article VI, section 2, of the Constitution of 1879 suggests that the term "cause" was intended to extend to attorney admission and disciplinary proceedings. [Citation.] The generally understood legal meaning of that term also supports the conclusion that such matters are not causes. The word "cause" is a synonym for “‘a proceeding in court, a suit, or action.' "[Citations.]

A petition for review of a State Bar Court recommendation regarding admission or discipline does not fall within any of these definitions. Like the proceeding in the State Bar Court, it is sui generis—the procedures governing ordinary civil and criminal proceedings do not necessarily apply. [Citations.] (In re Rose, supra, 22 Cal.4th at pp. 452-453.)

Absence of evidence that the Legislature included Bar proceedings is not evidence of the absence of its intent. Since Legislature showed its intent precisely, by using the term “cause,” its legal meaning is wholly dispositive. Even if the State Bar proceeding itself is not a "proceeding in court," the law requires that the Supreme Court’s disbarment procedure is such a proceeding.

As Justice Kennard stated in dissent:

The majority's decision here produces a startling anomaly: Attorneys are the only persons whose state occupational licenses can be revoked or suspended without a judicial hearing. When the right to continue practicing a trade or profession is at stake, only attorneys are denied their day in court. I would avoid this anomaly by recognizing that the state Constitution's guarantees of oral argument and a written opinion apply in attorney suspension and disbarment proceedings. (In re Rose, supra, 22 Cal.4th at p. 461 [dissent, Kennard, J.].)

The State Bar Court was not a usurper but passive recipient from its Supreme Court benefactor. Superficially, practical necessity—the growing weight of attorney numbers—compelled bureaucratization. Justice Kennard's excellent dissent in this revealing case refutes the rationalization by counter-example: the Supreme Court could have divided the cases within the Court of Appeal. Of the Supreme Court's motives for deviating from legislative intent, I speculate, and In re Rose attests to the burden of attorney discipline:

By 1990, before we adopted a policy of discretionary review pursuant to rule 954, we were issuing more than 40 opinions annually in State Bar disciplinary proceedings, and the number was increasing. (In re Rose, supra, 22 Cal.4th at p. 457.)

The Supreme Court doesn't like State Bar cases, as is apprehended from its growing annoyance, before it gave up in the Lipson line of cases. (See Lipson v. State Bar (1991) 53 Cal.3d 1010, 1016; Sugarman v. State Bar (1990) 51 Cal.3d 609; Baker v. State Bar (1989) 49 Cal.3d 804 ; Maltaman v. State Bar (1987) 43 Cal.3d 924, 931; and (1987) 43 Cal.3d 962, 968.). Nobody enjoys dealing with State Bar counsel, arrogant and incompetent, their work product unintelligible. Rational beings, Supreme Court justices prefer to place disciplinary cases in an isolation container, somehow to find a way to ensure due process yet avoid, as in Rose, signing tendentious opinions.

Rose's gravamen is not identical to Fine's; it serves to indicate why, in the course of the law’s development, Fine arrived at the present procedural posture. The governing procedural law was not always as today, and Fine v. State Bar independently pinpoints the inconsistency between judicial procedures and legislative intent. The issue Fine v. State Bar brings to the Supreme Court via petition for writ of mandate is: must the Supreme Court provide a written order after denying an interlocutory petition for review? Rose does not foreclose Fine's issue, because Fine contends statutory law expressly requires written orders following summary denial of a petition for review, a requirement the law does not expressly apply to disbarment, distinguishing Rose’s unfortunate holding. The statute governing these interlocutory summary denials states:

In any case in which a petition to review or to reverse or modify is filed by either party within the time allowed therefor, the Supreme Court shall make such order as it may deem proper in the circumstances. Nothing in this subdivision abrogates the Supreme Court's authority, on its own motion, to review de novo the decision or order of the State Bar Court. (Bus. & Prof. Code, section 6084, subd. (a).)

The dispositive issue of statutory construction concerns the scope of the permissive term "may”: must the court issue some order? Is the Legislature saying that the Supreme Court must issue any order only if it deems orders proper or that it must issue some order, selecting the one it deems proper? The rule’s language supports Fine’s construal, under the canon against surplusage, the rule of statutory construction that requires giving effect to every part of the statute. In the second quoted sentence above, the statute reiterates it does not abrogate the Supreme Court's universal authority to review any time on its own motion. A permissive rule as to orders, already in place, is surplusage in Business and Professions code section 6084.

Rose also contains implications for how to contest the State Bar in the real courts, in the comments of Justice Brown, separately dissenting:

Unless, by dint of skill or luck, the issues are framed so they are deemed to fall within the ambit of rule 954, an attorney facing suspension or disbarment from the right to practice her profession gets no hearing, no opportunity for oral argument, and no written statement of reasons—from this or any other article VI court. … (In re Rose, supra, 22 Cal.4th at pp. 466-467 [dissent, Brown, J.].)

Justice Brown states with judicial precision that a respondent's prospects for obtaining actual review depend on neither where the issues actually fall relative to rule 954’s ambit nor how the Supreme Court arbitrarily characterizes them. Respondents must frame the issues so they clearly fall within the rule and must state their case so clearly that a busy and avoidant court grasps the issues and ratifies the arguments.

In combination, written clarity, relevance, and concision are uncommon among trial attorneys, whose expertise is oral and who instinctively seek completeness and correctness. Put it out there, encompassing every bit of evidence, every significant logical connection, and a properly functioning court will absorb it. In truth, language must be crafted to persuade, undaunting in mass, ultra-clear in exposition.

The Supreme Court should grant Fine's mandamus petition and allow Fine to state his arguments, orally as well as in writing.

_______________________

Because of its length, I will count this installment as two. Next installment due in one week.

kanBARoo Court. 30B Installment. The State Bar Violates Richard Fine's First Amendment Rights

Litigants defending against legal oppression must contest questions of law, yet litigating the law, as opposed to the facts, requires different skills than trial lawyers possess. Lawyers understand that appellate attorneys form a distinct breed, but the fact-laden content of motions initiating trial-court summary procedures lends them the deceptive appearance of trial-attorney work. Of trial lawyers like Fine innocent of wrongdoing, the few who jurisdictionally attack the notice of disciplinary charges (NDC) sometimes overlook appellate opportunities. While Fine may not be able to undo the omission, Fine's appellate opportunity clarifies the injustice of State Bar intervention into Fine's judicial disputes, implicating Fine's U.S. Constitutional First Amendment rights.

California's Code of Civil Procedure contains an antiSLAPP provision, a special summary procedure. (See Code Civ. Proc., § 425.16.) The California Legislature declares its purpose in the body of the statute:

The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

The Anti-SLAPP statute provides a special summary procedure and an automatic right of appeal with regard to actions that include, among other legal targets:

[A]ny written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law… (Code Civ. Proc., § 425.16, subd. (e)(1).)

State Bar v. Fine is the State Bar's legal action against Fine's judicial written and oral statements, subjecting the action to an anti-SLAPP motion unless the statutory exceptions preclude application. The exceptions are not preclusive, including:

This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor

The office of the Chief Trial Counsel goes unmentioned, as the State Bar is a public corporation, neither connected with any other prosecutor's office nor representing the People.

Filing an anti-SLAPP motion brought to enforce the higher standards of initial proof applied to liberty-chilling legal actions, such as the one by the State Bar against Fine, could win: respondent's legal fees, dismissal with prejudice, and an immediate appeal to the Court of Appeal — bypassing the dubious State Bar Court Review Department — if the Hearing Department denies his anti-SLAPP motion. The Legislature passed the anti-SLAPP statute to protect First Amendment civil liberties by filtering out oppressive lawsuits seeking to deny exercise of basic democratic rights. But consider, if the Legislature worries about the chilling effect of civil suits, such as defamation or malicious prosecution, did it intend to allow draconian State Bar actions against political speech and petitions addressed to the courts? Because Fine addressed the court alone, public-protection considerations don't justify the Bar’s intervention. The Bar doesn't accuse Fine of acts of fraud or misappropriation perpetrated on the public but of vexatious speech before judicial officers holding the contempt power. That power must deter stubbornly frivolous motions — to present the worst-case characterization — since otherwise a judge confronting a contumacious non-attorney in pro per would forfeit control of the court. No emergency arose to justify State Bar intervention against Fine's acts of petition before courts of law.

While Fine arguably waived his right to file an anti-SLAPP motion under a statutory time bar, a more perspicacious account is that the State Bar through its rules denied Fine his right to file an anti-SLAPP motion because the State Bar Court Rules of Procedure makes the motion to dismiss the NDC available as Bar-Court respondents’ exclusive summary procedure. Fine might successfully contend that after relying on its coercive procedures the State Bar is estopped from excuse by Fine's omission below.

Most importantly for Fine — unheard of by the State Bar or the State Bar defense establishment — a defendant/respondent may appeal a trial court's denial of an anti-SLAPP motion, as opposed to petitioning for review. Fine might hope to assert the still substantial remnant of his right to a hearing on appeal before the California Second District.

Best to understand this blog:

* Read the 1st, 2nd, 7th, 8th, and 14th Installments, first; or
* Make liberal use of hyperlinks; and then
* Follow your interests; or
* Follow the case.

kanBARoo Court. 30A Installment. Collateral Estoppel as a Tool of Judicial Bias in the Richard Fine Matter

Although Richard I. Fine’s supposedly corrupt motive for filing motions deemed frivolous formed the crux of the State Bar's case against him, the State Bar Court also made a strained attempt to allege dishonesty, lending a comic aspect to its account. A dispute arose over an apparent Freudian slip by a Superior Court judge in his statement of refusal to disqualify one Commissioner Mitchell, when that Superior Court judge, hearing Fine's motion to disqualify, contradicted himself. The judge wrote that Fine's objections were unfounded and also wrote that Commissioner Mitchell had been "not impartial.” Later, the Superior Court judge announced he had not intended the negation. Judge Honn concluded that Fine had lied to the Court of Appeal about the contents of the Superior Court judge's opinion, when Fine insisted the opinion was actually self-contradictory.

Judge Honn claimed the Superior Court judge had clearly made a “typographical error.” The characterization is curiously inaccurate, and it reveals how Judge Honn wears his bias on his sleeve. This is a most strange "typographical error," a term that "includes errors due to mechanical failure or slips of the hand or finger, but excludes errors of ignorance." (Wikipedia.) If the Superior Court judge successfully maintained his mistake was clerical in nature, he is entitled to correct it sua sponte, but the source of his mistake, if it was a mistake, looks to be his confusing the meaning of "partial" and "impartial," not a clerk typing the wrong alpha-numeric. Small gestures, such as mislabeling one contender's errors, are often key to detecting judicial bias. Although respondent Fine was entitled to a clear and convincing evidence standard of proof, Judge Honn tilted the playing field in the opposite direction, when he used a euphemism for the supposed error.

The Bar Court determined that Fine misrepresented the Superior Court judge’s opinion, treating Fine's disagreement with a judge as though it were dishonesty. No doubt the disagreement was serious, as Fine challenged the judge on characterizing judicial intent. But Fine was entitled to challenge the judge’s characterization, and entitled to treat the document as meaning what it literally said. The State Bar Court's finding by clear and convincing that the judge had made a typographical error expresses genuine absurdity, besides absurd pettiness.

But wait! Did the court even have to evaluate the evidence? In evaluating the typographical error matter, the Bar Court claimed to have conducted an independent evaluation, but in supporting many of its conclusions, the court applied the doctrine of collateral estoppel to Fine's contempt conviction. A contempt conviction is essentially a criminal matter, and while the applicable standard of proof is more than adequate, other problems should have deterred using the contempt conviction to effect issue preclusion. California courts do apply collateral estoppel liberally, having abrogated the traditional requirement of mutuality, but liberality in the formal requirements must be balanced by greater exercise of judgment. When applying collateral estoppel, California law requires that the courts address whether the specific application of the doctrine serves the interest of justice. (People v. Taylor (1974) 12 Cal.3d 686, 695.) Collateral estoppel based on criminal judgments is controversial in jurisprudence and requires particular scrutiny.

Two considerations should have led the court to decline to collaterally estop Fine: incomplete finality of judgment and differential motive to defend. Collateral estoppel requires finality in the collaterally applied judgment, but criminal judgments necessarily lack a civil judgment’s degree of finality, because they are subject to collateral attack for reasons intrinsic to the case. Reasonably, if you suffer a criminal conviction, it may be reversed, if say, witnesses condemned you by committing perjury, whereas, in a civil case, you must attack the perjury in the case itself. Fine's allegations of de facto bribery of Superior Court Judges amounts to an allegation of intrinsic and extrinsic fraud, which warrants collateral attack, since Fine's conviction is only as strong as his underlying civil case against the County is weak. Since Fine was still contesting the civil action, the contempt conviction lacked the requisite finality. The other implicated criterion, equal incentive to defend, requires that Fine have the same motivation to litigate the contempt conviction as the disbarment. Unlike disbarment, contempt is not inherently ignominious. Disbarment, moreover, is a more serious penalty than spending three days in the local jail. Fine lacked the same motivation to defend the contempt action as the disbarment, and the contempt conviction, consequently, was not probative for his disbarment case.

The court offered no analysis of whether applying collateral estoppel to the contempt conviction served the interest of justice. The court would then have to consider Fine’s contentions. The State Bar Court’s disregard for respondent argument is damning in general but expressly unlawful when the court applies collateral estoppel.

kanBARoo Court. 30th Installment. The Richard Fine Matter and the Moral Turpitude Travesty

Incompetent administration of law is oppressive in itself, as bureaucratic reflex replaces legal reasoning, but usually the oppression turns corrupt. In my case, the prosecutrix resorted to fraud on the court by pilfering documents submitted for filing. Thus, a second way incompetence breeds oppression occurs because of the inability of the incompetent to defend their acts honestly. A third way is that incompetence limits the reasons for eschewing oppressive or corrupt practices. It matters little whether one acts for good or bad reasons, if the results are wrong in either instance. A fourth way, their sole means to career advancement, the incompetent curry favor.

I started this blog, subtitled "How Legal Incompetence Engenders Oppression," because my case illustrated in pure form the most generic variant of legal oppression, bureaucratic reflex. Because of the case's direction, these Installments have digressed into the second route from incompetence to oppression, the prosecutrix's inability to win cases honestly, and, somewhat the third, in the court's indifference to the prosecutrix's misconduct. I have traveled the fourth, financially self-aggrandizing corruption, only briefly here. While there are pure cases of bureaucratic reflex—mine was at its inception—there are no pure cases of juridical corruption by currying favor for material reward because such corruption requires generalized incompetence, an environment unable to rebut error.

An all-sided view of incompetence and oppression must take account of scenarios where greed joins ineptitude in the engenderment. The Richard Fine disbarment is such a case. (See http://tinyurl.com/38ek9h) Attorney Richard I. Fine has practiced for some 40 years, gaining a reputation for successfully litigating citizen actions against government entities. His career trajectory eventually led to collision with the judicial system itself when he demanded the disqualification of judges in citizen litigation against the County of Los Angeles, based on the judges’ accepting payment from the County. Fine contends that the gratuitous payment of a $40,000 annual cash benefit by the County violated the California Constitution, which states that judges shall be paid by the State exclusively, and he contends the payments amount to a bribe. Fine repeatedly moved to disqualify judicial officers in actions against the County and eventually sued the judges personally, a procedure permitted for personal wrongdoing. At least one of the judicial officers filed a complaint with the State Bar, and the complaint resulted in the Hearing Department recommending disbarment. Judge Honn's 72-page opinion differs from similar documents in other courts by the absence of respondent Fine's legal and factual contentions. Judge Honn presents the findings in full comprehensiveness, dwelling on the smallest details of what the court claims happened, while he provides scant indication of the issues and none of Fine's contentions. The omissions are giveaway that justice is not being done.

The State Bar Court doesn't ordinarily disbar without a showing of greed or dishonesty. Judge Honn needed allegations of moral turpitude, and such allegations the good judge did propound. Judge Honn accused Fine of making frivolous motions out of corrupt motive, the corrupt motive implying moral turpitude. Even if the court could justify discipline for good-faith motions the court considered frivolous, it remains hard to see what Fine's corrupt motive might be. Allegations of greed — the substance of true moral turpitude — are absent from the charges and Judge Honn's opinion. The moral turpitude may be invisible, but Judge Honn is not one deterred by implausibility. According to Judge Honn's opinion, the corrupt motive served by Fine's allegedly frivolous filings was to coerce the judges, and failing that, to wreak revenge!

Judge Honn does not clarify how he surmised Fine's motives. The State Bar Court recommended Fine's disbarment because he is a "legal bully," obviously the tenor of the offended judges' complaints. Some judges are so accustomed to lawyers cowering in their courtrooms that they might contrast any zeal as bullying, but, as to actual bullying, a barrage of frivolous motions is no way to bully a judge. And where is the revenge, when the judge wins, the petitioner is sanctioned, held in contempt, and serves, as did Fine, three days in jail? Corrupt motive in the Fine case is a senseless conclusion without evidence in the face of a far more plausible explanation of Fine's incessant motions. When the judges showed new biases, Fine had to file motions demanding disqualification or risk waiving the issue. Fine perceives a mass-conspiratorial fraud on the court, not an everyday legal situation. Whatever the merits of his position, this is not a State Bar matter.

In the next Installment, you can learn how the Fine Hearing Department failed even to establish the alleged facts on which it dwelled and relied.