Interlude 19. California Supreme Court denies Philip E. Kay’s petition to review 3-year mandatory suspension

As kanBARoo court reluctantly predicted, the California Supreme Court ignored the substance of Philip E. Kay's petition for writ of review, issuing its standard boilerplate denial. Kay must now decide whether to move for rehearing. He should file a radically succinct motion for rehearing, containing no more than fifteen pages—ten is better—focusing exclusively on the most compelling and certain issues. Unquestionably, the Supreme Court will deny it, but Kay will have made the clearest possible record.

kanBARoo Court. Installment 48A. Petition for Rehearing of Petition for Writ of Review

[Filed Sept. 19, 2008]

[Denied Oct. 16, 2008]

S164152

IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA

PETITION FOR REHEARING
OF PETITION FOR WRIT OF REVIEW

STEPHEN R. DIAMOND
IN PRO PER
STATE BAR NO. 183617
6424 Mountain View St., #2
Joshua Tree, CA 92252-2385
Phone: (760)974-9279
Fax: (866) 392-4866

TABLE OF CONTENTS

1. The State Bar’s continued silence on the whereabouts of DTC Lawrence’s proof of service removes any doubt the Bar admits the malfeasance. 4
A. The State Bar evades the key factual allegations, ignoring its public responsibilities. 4
B. DTC Lawrence’s malfeasance alone justifies granting a writ of review. 5
2. Petitioner’s administrative remedies do not include the Review Department. 6
3. Adopting the Hearing Department’s conclusions begs the question of a fair hearing. 6
A. Petitioner’s reasonable cause for withdrawing from participation depends on reasonably foreseeable consequences. 6
B. Denial of a fair hearing renders the weight of the evidence meaningless. 7
C. The malfeasance was consequential. 8
(1) The Review Department considered the petition for interlocutory review behind petitioner’s back. 8
(2) DTC Lawrence deflected petitioner’s opposition to the State Bar’s motion for terminating sanctions. 10
4. Petitioner has rebutted the Evidence Code section 664 presumption. 10
5. Conclusion. 11

TABLE OF AUTHORITIES

CASES
Colangelo v. State Bar (1991) 53 Cal.3d 1255 6
In re Rose (2000) 22 Cal.4th 430 11
In re Silverton (2005) 36 Cal.4th 81 12
Morgenstern v. Dept. of Mot. Veh. (2003) 111 Cal.App.4th 366 11
RULES
Rules of Court, rule 9.16(a)(3) 7
Rules of Court, rule 9.16(a)(4) 7
State Bar Court Rules of Procedure, rule 200(d)(1)(B) 6

PETITION FOR REHEARING

Petitioner requests a rehearing because defective service and ensuing delivery delay of the State Bar’s answer precluded petitioner’s reply. Petitioner includes the reply matter in the present petition, to aid the court in assessing the materiality of petitioner’s exceptions to the State Bar’s answer.
1. The State Bar’s continued silence on the whereabouts of DTC Lawrence’s proof of service removes any doubt the Bar admits the malfeasance.
A. The State Bar evades the key factual allegations, ignoring its public responsibilities.
Petitioner argued Deputy Trial Counsel Melanie J. Lawrence caused a fraudulent rejection of a petition for interlocutory review, allowing the State Bar to defeat petitioner's request for a stay in the Hearing Department. The Review Department clerk claimed she destroyed all copies of the documents except the one returned, and deprived of those copies, petitioner was unable to pay for an immediate resubmission. The Hearing Department's unwillingness to make any findings about petitioner's evidence convinced petitioner that reliance on the clerk's office remained a clear and present threat to respondent's rights. Petitioner would waive any protection of those rights if he proceeded, when petitioner knew DTC Lawrence had illegally sabotaged petitioner’s defense. DTC Lawrence's failure to explain her inability to produce the service copy of the proof of service established her guilt, her failure to explain, an admission by silence.
The State Bar has repeatedly stonewalled petitioner's proof of DTC Lawrence's document destruction, and in its answer, the State Bar continues to use this dubious prosecutory tactic. If any question arose about the decisiveness of petitioner's proof of admission by DTC Lawrence's silence, glaring omission of any response to petitioner's main argument proves that the State Bar chooses to avoid drawing attention to this embarrassing evidence, hoping to blind the courts by absence. The State Bar—choosing evasion over good-faith exploration of the errant deputy trial counsel's misconduct—insults the public with contempt for transparent administration.
B. DTC Lawrence’s malfeasance alone justifies granting a writ of review.
Even if DTC Lawrence's malfeasance had no direct effects on the proceedings, this wrongdoing and the Hearing Judge's unwillingness to address the misconduct should suffice to obtain Supreme Court review. Petitioner's withdrawal from active participation in the case was justified because the clerical channel—its unobstructed function essential to due process—had been compromised. The State Bar's answer, by continuing its stonewalling regarding the evidence for malfeasance, decisively proves the admission because the present circumstance, argument before the Supreme Court, unequivocally calls for explanatory efforts.
2. Petitioner’s administrative remedies do not include the Review Department.
The State Bar first claims that petitioner, having filed no petition with the Review Department, has not exhausted the administrative remedies. State Bar law is well-settled that under State Bar Court Rules of Procedure, rule 200(d)(1)(B), entry of default puts respondent out of court in the entire State Bar Court, Review Department included. Petitioning the Supreme Court is now petitioner's only option. (See Colangelo v. State Bar (1991) 53 Cal.3d 1255, 1263 [Petition for review after default in Hearing Department timely filed in Supreme Court.].)
3. Adopting the Hearing Department’s conclusions begs questions about fair hearings.
A. Petitioner’s reasonable cause for withdrawing from participation depends on reasonably foreseeable consequences.
Respondent argues that petitioner lacked reasonable cause to withdraw from the proceedings because the incidents did not adversely affect the proceedings. While the malfeasance affected the proceedings directly, the State Bar also errs by ignoring timing. The incidents’ effects could be fully known only later, but the events portended an unfair trial, warranting petitioner's protecting, instead of waiving, his due process rights.
B. Denial of a fair hearing renders the weight of the evidence meaningless.
The State Bar maintains that the case record demonstrates culpability, and the State Bar complains that petitioner does not address the materiality of the defects in due process. The State Bar claims Rules of Court, rule 9.16(a)(4), requires such a showing. The weight of evidence, however, is only one of four bases for Supreme Court jurisdiction. Rule 9.16(a)(4), permitting review based on the weight of the evidence, is distinct from rule 9.16(a)(3), permitting review based on no fair hearing, and the two rules are disjunctive, not conjunctive, for good reason, when applied to the present case. A due process breakdown affects not only the court's appraisal of the record but more basically, petitioner's ability to create a record. Petitioner never presented his case, never had the opportunity to challenge the State Bar's facts. Petitioner cannot make a factual case before the Supreme Court that had not been put before the State Bar court, and even if an original case were allowed, petitioner should not be required to make one, as petitioner would forgo factfinding below.
C. The malfeasance was consequential.
(1) The Review Department considered the petition for interlocutory review behind petitioner’s back.
The record does not support the State Bar's arguments about the effect of the malfeasance, and the State Bar did not verify its answer, as is usually required when responding to verified documents. The State Bar adopts a correspondingly casual attitude toward these facts, despite their being of record. The State Bar states, regarding the petition for interlocutory review:
"However, although the documents were returned to him due to the lack of an original signature and not enough copies, Diamond's subsequent motion for late filing of the Petition for Review was granted. The denial of the Petition was based on the merits--not on any failure of the document to be considered by the Court."
The State Bar provides no date for this alleged subsequent motion for late filing, and the only motion for late filing petitioner submitted accompanied the only submitted copies of the petition for interlocutory review, which the clerk rejected for filing. Following the petition's rejection for filing, petitioner made no second request for review.
Petitioner did not know of the Review Department's consideration of the petition, as petitioner received no further notice until the Review Department rejected the petition. Petitioner had submitted the motion for late filing with the original petition for review, and the Review Department clerk said she destroyed all the unreturned documents. Subsequently, the Review Department granted the "destroyed" motion for late filing, and considered the "destroyed" copies of the petition for interlocutory review, without notice to petitioner.
The State Bar is also mistaken in its claim that "the documents" were returned to petitioner. The Review Department clerk returned only a single copy. When the Review Department inexplicably considered the petition for interlocutory review, it necessarily considered petitioner's initial filing, minus the copy returned. Receiving no notice, petitioner was precluded from further participation in review proceedings, such as by moving to amend the petition.
The State Bar invents facts to disguise the anomalousness of the actual happenings, where the Review Department undertook review without notice to petitioner, after petitioner had been informed his documents were rejected and destroyed. The anomalousness is further indication of wrongdoing, smacking of a desperate effort to correct a potentially fatal prosecutory transgression behind petitioner's back. The State Bar does not address petitioner's argument that a review without notice is not a fair hearing.
(2) DTC Lawrence deflected petitioner’s opposition to the State Bar’s motion for terminating sanctions.
The State Bar also challenges the claim of interference with the opposition to entry of default. The December 6, 2007 motion for terminating sanctions was essentially another motion for entry of default, default being the main sanction sought. As the State Bar admits, the court did not receive the opposition, and the Hearing Judge ordered an OSC regarding terminating sanctions. Petitioner included the opposition to the motion as an exhibit to his motion for reconsideration of the order for an OSC re terminating sanctions, leaving no question in the record about which motion was unopposed, due to DTC Lawrence's second act of intermeddling.
4. Petitioner has rebutted the Evidence Code section 664 presumption.
The State Bar claims that petitioner's strong evidence of intermeddling should be ignored because of an Evidence Code section 664 presumption. This presumption does not operate to exclude contrary evidence, but only applies to inferences absent such evidence. (Morgenstern v. Dept. of Mot. Veh. (2003) 111 Cal.App.4th 366, 373 ["Where it is applicable, the presumption shifts the burden of proof to the party against whom it operates to establish the nonexistence of the presumed fact."].) The strength of petitioner's evidence reflects not only that DTC Lawrence was unable to produce the service copy of the proof of service but also that petitioner knew in advance she would be unable to. Petitioner could not lightly risk making a charge that DTC Lawrence would easily refute by producing the proof of service. The practical certainty of petitioner's deduction depends not only on DTC Lawrence's inability to produce some proof of service but petitioner's having predicted she would be unable to produce this particular document. The combination of circumstances is clear and convincing evidence DTC Lawrence parted from her service copy in the unlawful way petitioner asserted.
5. Conclusion.
In re Rose held out the prospect that every petition will cause at least one justice to review the file seriously. (In re Rose (2000) 22 Cal.4th 430, 453.) The case held that the potential for triggering a full review satisfied the Supreme Court's duty to assure its ultimate control over discipline. (Id., at p. 442 ["our denial of review does not render the State Bar Court's decision 'final' because such a decision simply constitutes a recommendation…"].) Following the In re Rose decision, petitioner finds the Supreme Court has granted a single petition for writ of review. (See In re Silverton (2005) 36 Cal.4th 81.) As the Supreme Court has never reversed the State Bar court since In re Rose, no Article VI court exercises actual supervision of the State Bar. The present case highlights that supervisory lacuna. Petitioner has stated a prima facie case that procedural defects would have made a fair trial impossible. Without hearing the detailed evidence concerning these defects, the court cannot evaluate their materiality. The Supreme Court should agree to review this case because, otherwise, it will give the State Bar a green light for lawless bullying of accused attorneys.

kanBARoo Court. 48th Installment. The Results Are in- The State Bar Court Is No Court at All

My case tests the Supreme Court's response in a State Bar disbarment matter when following the law conflicts with the Supreme Court's political interests. More than a test, the case has been an experiment, unethical except for the self-represented and, for those, universally deemed unwise by legally educated opinion. Pushing the procedural limits to guarantee an informative outcome, I compelled the Supreme Court to choose between approving a felony under color of law and, despite the State Bar Court's function as as the Supreme Court's administrative arm, becoming the vehicle for a State Bar scandal.

I conjectured the Supreme Court wouldn't accept the case's gross improprieties, but the disbarment order of September 10, 2008, refuted my conjecture. The outcome, nontheless, allows assessing Supreme Court review of State Bar matters. The State Bar Court does not, in any sense, function as a court because its overseer, the California Supreme Court, decides petitions for writs of review politically.

Here, the State Bar failed to serve its answer to my petition for writ of review. I moved to strike the unserved answer. The State Bar, while opposing my motion to strike, conceded improper service by not mentioning it and not explaining why the Bar twice failed to serve me properly. The State Bar didn't serve me even after my motion informed the Bar its service had miscarried. The State Bar, seemingly, preferred I not reply to its opposition. The Bar got wishes fulfilled when the Supreme Court denied the motion to strike and denied the petition for writ of review.

Blunders by the State Bar have consistently helped me establish key points, although once established, arguing from them has proven futile. When the case was before the Hearing Department, the prosecutrix's theft of documents allowed me to attack the State Bar's unjudicial practices, taking forms needing no proof for their classification. Yet, the Hearing Judge refused to make any findings. In the case before the Supreme Court, the State Bar demonstrated reckless disregard for a respondent's proper service. Yet the Supreme Court not only refrained from striking the motion, it did not even direct proper service, to allow for a reply. If the court could argue that I did not ask for alternative remedies, it cannot justify basing rulings on documents opposing counsel prevented me from seeing. The repeated occurrence of State Bar blunders and their lack of practical significance are related. The State Bar, having learned its mistakes are inconsequential, has lost even its ability to recognize them.

I will explore, in a subsequent Installment, why the State Bar Court appeared to function in a minimally judicial fashion, even though it really is no court at all. Deserving early mention and requiring revision are some of my suggestions for State Bar defense. I do not now think it possible to win by showing the Supreme Court that the State Bar Court lacks basic procedural integrity. When the State Bar's foundational practices are attacked with allegations that would impugn the State Bar Court's legitimacy, the Supreme Court will deny the petition for writ of review.

I'll continue discussing the implications of the nonjudicial character of the State Bar Court next Installment. Other than this series of final case-relevant Installments, kanBARoo Court's coverage of my case is complete, but kanBARoo Court — the only web site or blog dedicated to State Bar-law analysis (not reportage and journalistic commentary) — will continue its treatment of State Bar oppression.

Interlude 5: The State Bar's Opposition to My Motion to Strike

Here is the State Bar's opposition to "Petitioner's Motion to Strike Respondent State Bar's Answer to Petition for Writ of Review." (See the Motion to Strike itself, here.) Comments follow the text.

_______________

Begin quoted material

RESPONDENT'S OPPOSITION TO MOTION TO STRIKE

I. INTRODUCTION

Respondent, the State Bar of California, opposes Stephen Diamond's motion to strike the State Bar's Respondent's Brief in Opposition to his Petition for Review.

II. ARGUMENT

The State Bar's Brief Was Timely Filed on the Twentieth Day After Diamond Filed His Petition.

Diamond filed his Petition with this Court on July 25, 2008. The State Barn filed its response --twenty days later--on August 14, 2008.

Rules of Court, rule 9.13, subd. (d), provide [sic] that the State Bar may serve and file its answer and brief within fifteen days. Code of Civil Procedure, section 1013, provides that if service is by mail, the other party has an additional five calendar days to respond -- for a total of twenty days to respond.

Diamond's motion states that he served his (unfiled) Petition by mail on July 22, 2008. however, as he admits, that Petition was not filed until July 25, 2008.

Diamond claims that he served the State Bar before he filed his petition with this Court -- on July 22, 2008. However, since the purpose of service is to provide notice of pending proceedings (See, e.g., Mullane v. Central Hanover Bank & Trust Co (1950) 339 U.S. 306, 314), to the extent no proceeding are yet pending, Diamond's mailing provides no information.

It is not until the matter is actually filed that there can be any notice that a matter is pending. (See, e.g., Baker v. Anderson (1981) 119 Cal. App. 3d 1000, 1002 [Footnote 1: "We discount the possible argument that a delayed filing of an amended complaint where service thereof had preceded the filing would have the 30-day period commence running from the date of service rather than filing. We conclude that the delayed filing would delay the effective date of "service" within the meaning ofthe statute."]

Diamond's position is untenable as evidenced by taking it to its logical extreme, since any Respondent could prospectively serve the State Bar with a petition and never file it. Yet, under Diamond's reasoning, the State Bar could be required to file a response to a Petition that was never filed with the Court.

IV. CONCLUSION

The State Bar's Respondent's Brief was filed twenty days from the date the initial Petition was filed. The time to file a response to a Petition for Review can begin to run only from the date of service of a properly filed Petition, the response time runs from the date of filing. As a result, the State Bar's brief was properly filed within the alotted time.
For the reasons stated herein, the motion to strike should be denied.

Dated: August 28, 2008 Respectfully submitted,

  MARIE MOFFAT
  RICHARD J. ZANASSI
  TRACEY l. MCCORMICK

By:________________________________________
 Tracey L. McCormick

Attorneys for Respondent 
Office of the Chief Trial Counsel
of the State Bar of California

End quoted matter.

---------------------------------------------

Comment

One first observes the substantially higher quality of pleadings produced by the "Office of General Counsel to the State Bar of California," which defends the State Bar before the Supreme Court, when the General Counsel's work product is compared to that of its client, the Office of the Chief Trial Counsel. (Cf. Prosecutrix Melanie J. Lawrence's "State Bar’s Opposition to Respondent’s Motion for Reconsideration and for Immediate Stay" - 21st Installment: "The State Bar Demands Atonement.") The State Bar's rebuttal of my first contention is persuasive, although pointing primarily to the ambiguity inherent in Rules of Court, rule 9.13, which governs petitions for writs of review from the State Bar Court to the Supreme Court . Since serving a pleading before filing is impossible — the proof of service that accompanies the filing attests to past service — the rule says "service" when it means "filing."

Most striking about the State Bar's opposition, however, is what it omits: any mention of the improper service issue my motion to strike raised. The State Bar showed at best a reckless disregard for its duty to effect service, when it first served another attorney and then tried to serve me at my previous address, when Rules of Court, rule 9.13(a), requires service at my last registered address. Having no tenable argument on the service issue, what could the State Bar say? The State Bar needed to file a declaration explaining the improper service. If it can show that reasonable neglect or inadvertance caused improper service, the State Bar no doubt should be allowed to correct its reasonable mistake, but the courts do not presume reasonableness when a party violates court rules. The Supreme Court should certainly not assume reasonableness here, where the State Bar's service attempts twice failed, once serving a different party and then violating the State Bar Court's well-known service rule.

Either the State Bar is too arrogant to submit a declaration excusing its mistakes, or improper service wasn't a mistake. We shall soon see how the Supreme Court handles this motion.
 

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. 47th Installment. Motion to Strike State Bar's Answer to My Review Petition

[Filed August 25, 2008; State Bar's Opposition Filed August 29, 2008]

S164152

IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA

Petitioner’s Motion to Strike Respondent State Bar’s Answer to Petition for Writ of Review

(Notice of Motion, Points and Authorities, Verification, and Proposed Order)

Stephen R. Diamond

In Pro Per

State Bar No. 183617

6424 Mountain View St., #2

Joshua Tree, CA 92252-2385

Phone: (760)974-9279

Fax: (866)392-4866

Motion to Strike Respondent’s Answer; Points and Authorities; Verification; Order

To the Honorable Chief Justice and Associate Justices of the Supreme Court:

Petitioner moves to strike the answer to the petition for writ of review filed by respondent State Bar on August 14, 2008. The grounds are 1) the answer was filed late without permission of the court; and 2) the answer was improperly served to a previous address. Petitioner has not received the answer and remains entirely ignorant of its argument.

This motion is based on this notice, the attached memorandum of points and authorities, and the complete case file.

Date: August 21, 2008 _________________________
Stephen R. Diamond

Points and Authorities Supporting Motion to Strike Respondent’s Answer

Petitioner filed a timely petition for writ of review on July 25, 2008. Service by mail was made on all required parties on July 22, 2008. Respondent State Bar filed its answer three days late, on August 14, 2008, without obtaining permission of the court. The filing was improper and must be struck.

1. Respondent's answer was untimely.

Rules of Court, rule 9.13, states that respondent can file an answer to a petition for review, allowing for service by mail, within 20 days of service of the petition. The clerk’s office starts the answer’s filing period from the filing of the petition, rather than from its service. This practice violates Rules of Court, rule 9.13 (a) [The State Bar may serve and file an answer to the petition within 15 days of service of the petition. (Emphasis added. )].)

Petitioner contends that the clerk's office lacks jurisdiction to revise its own rules. Petitioner further contends that tacit rule change is prejudicial, creating an unfair inequality in knowledge between petitioner and respondent regarding the actual rules followed. Unlike respondent, petitioner cannot be expected to know the informal rule revisions adopted by the clerk's office. On short notice, when plans for responding must be carefully laid, the effect of these seemingly small advantages becomes material. The clerk's office must follow the written rules, not its own creative interpretation.

2. Respondent's service of its answer was improper.

The State Bar Rules of Procedure, rule 61(b), provides that service of pleadings is to be made at the last address filed with the State Bar, provided the party receiving service is a State Bar Member. Inquiry with the clerk's office revealed that the State Bar had first mailed its answer to the wrong attorney. The State Bar tried again and mailed its answer to respondent’s old address, although petitioner had made a timely change to his State Bar records. The Supreme Court handling clerk, “Jennifer,” said she had supplied the State Bar with the second incorrect service address, after the State Bar had served the wrong attorney. Petitioner contends incorrect and improper legal advice from the clerk's office did not relieve the State Bar of its duty to interpret the Rules of Court and its own Rules of Procedure correctly.

Petitioner only recently noticed that Rules of Procedure, rule 61(c), seems to contradict rule 61(b). The appearance of contradiction is avoided by noting that only rule 61(b) pertains to where service shall be made. Rule 61(c) directs Members of the State Bar to change their address with the court during pending matters, but the rule does not provide that place of service depends on that change. Dispositively, the California Rules of Court provide for service, where possible, at the address specified with the State Bar. (Rules of Court, rule 9.13 (f) [The State Bar must serve the member at his or her address under Business and Professions Code section 6002.1, and his or her counsel of record, if any.]) Petitioner contends that, despite his mistake in not recording the address change with the court, the fault for improper service lies with the State Bar.

3. Conclusion

The gravamen of the subject petition for writ of review is malfeasance by the State Bar Clerk's Office, causing denial of petitioner’s right to a fair hearing. A review of petitioner's file would show that prejudicial improprieties in clerical procedures infected petitioner's case from the start, beginning with the State Bar's first attempt to take a default, based on the State Bar's claim that the court clerk's file stamp "received" does not connote "filed," an imaginary distinction appearing in no cases, statutes, or rules. Petitioner contends communication between personnel in the Supreme Court clerk's office and the State Bar office must be strictly proper, at risk of the clerical standard of care falling to the least common denominator. The State Bar knows where it can serve petitioner, who carefully updates the information over the Internet, a method that produces timelier changes than land carriers do. The court should not allow the State Bar to exploit its manipulative discussions with the Supreme Court Clerk's Office, or its special relationship with the Supreme Court itself, to gain an unfair advantage.

Verification

This verification is made on August 21, 2008 in Joshua Tree, San Bernardino County, State of California. I declare on penalty of perjury under the laws of the State of California that the facts stated in this document are true, except those stated as contentions, which are true on information and belief.

___________________________
Stephen R. Diamond,
Petitioner

[Proposed] Order

Based on the application of appellant, and good cause appearing,

It is ordered that the respondent’s answer, filed on August 14, 2008, is struck from the file.

Date:_______________________ ____________________________________
Chief Justice

kanBARoo Court. 43rd Installment. Petition for Writ of Review

[Filed July 25, 2008]

No. S164152

IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
STEPHEN R. DIAMOND,
Petitioner,
v.
STATE BAR,
Respondent.

PETITION FOR WRIT OF REVIEW

OF DECISION OF THE STATE BAR COURT

TABLE OF CONTENTS

Issues Presented to the Court..............................................1

Petition for Review...................................................................1

Overview.........................................................................................1
Detail................................................................................................2
Proof of Detail.................................................................................6

Basis for Supreme Court Jurisdiction..............................7

ARGUMENT.................................................................................8

1. The Office of the Chief Trial Counsel colluded
with a court clerk to deny petitioner a
fair hearingin the Hearing Department
and Review Department.......................................................8

A. Sabotaging petitioner’s submissions
to prevent filing denied petitioner a fair hearing...9

B. DTC Melanie J. Lawrence admitted she
could not produce a proof of service,
possession of which she would have lost
only through foulplay..........................................................9

2. The State Bar Court fosters
hypertechnicalism in its clerk’s office,
encouraging foul play,
while offending due process.............................................10

CONCLUSION..........................................................................11

TABLE OF AUTHORITIES

Cases

City Council v. McKinley (1978) 80 Cal.App.3d 204 ..............7
Estate of Neilson (1962) 57 Cal.2d 733, 746 ............................8
People v. Pearson (1952) 111 Cal.App.2d 9 .............................7
Rojas v. Cutsforth (1998) 67 Cal.App.4th 774 .........................9

Statutes

Evid. Code, § 1221 .......................................................................8
Gov. Code, § 6200 .......................................................................7
Gov. Code, § 6203 .......................................................................9

Rules

Rules of Court, rule 9.16(a)(3) ..................................................6

ISSUES PRESENTED TO THE COURT

• Gov. Code, § 6200. The Office of the Chief Trial Counsel repeatedly colluded with a State Bar Court clerk to destroy documents this petitioner submitted for filing. Did this constructive denial of access to the court deprive petitioner of the right to a fair hearing?

• Hypertechnicalism. The State Bar Court clerk destroys motions and petitions whose filing it refuses, even when the deficiencies are correctable. Did this practice facilitate the misdeeds of the Office of the Chief Trial Counsel and directly deprive this petitioner of a fair hearing, when the clerk required an expensive resubmission?

PETITION FOR REVIEW

1. Stephen R. Diamond, respondent below, respectfully petitions for review following the decision of the State Bar Court, per Judge Honn, filed on April 10, 2008.

Overview

2. Petitioner contends he was denied a fair hearing, when the clerk’s office of the State Bar Court colluded with Deputy Trial Counsel Melanie J. Lawrence to deflect the filing of petitioner’s Petition for Interlocutory Review to the Review Department on November 27, 2007.

3. Petitioner contends that the administration of the State Bar Court fosters clerical hypertechnicalism, creating a climate where this abuse occurs.

4. Petitioner contends this abuse of the clerk’s office produced a complete denial of due process, because petitioner reasonably believed he could no longer rely on the clerk’s office, and declined to file subsequent papers after a second deflection occurred. Petitioner contends he rightfully expected the court to restrain the fraud that created the filing obstacles, since an uncompromised clerk’s office is part of the right to be heard.

5. Intermeddling with the petition for review denied due process not only by preventing a proper hearing before the Review Department but by causing the Hearing Department to deny petitioner’s motion for a stay, as the Petition for Review was the basis for staying the action below. The intermeddling precluded petitioner’s participation in the final status conference, where the court placed petitioner in default. It ultimately precluded a hearing on the merits. The intermeddling also precludes filing for review by the Review Department, a review that is of right.

6. Petitioner can prove the intermeddling involved with the Petition for Interlocutory Review. Petitioner has substantial reason to believe the clerk’s office or DTC Lawrence intermeddled with the subsequent document, Opposition to Motion for Entry of Default, as the Hearing Department did not receive this document, even though timely and carefully mailed.

Detail

7. The Office of the Chief Trial Counsel assigned Deputy Trial Counsel Melanie J. Lawrence to litigate petitioner’s case.

8. After the Hearing Department denied this petitioner’s motion to dismiss the NDC and motion to reconsider the order denying the motion to dismiss, petitioner tried to file a petition for interlocutory review with the Review Department and in a request for a stay based on the petition for review, in the Hearing Department.

9. Fearing the outcome on review or resenting the prospect of a stay, DTC Lawrence colluded with the court clerk to misrepresent that the submission was defective, falsely claiming a) the proof of service was not signed; and b) the submission included only four, as opposed to five, copies of the petition for review. The clerk noted these alleged defects in its letter to petitioner.

10. The Hearing Department denied petitioner’s request for stay. The clerk’s fraudulent rejection of the petition for review prevented petitioner from establishing that review was pending, the basis for the stay request.

11. DTC Lawrence moved for entry of default. Despite the regularity of mail delivery times, the court did not receive petitioner’s timely mailed opposition. Since Lawrence’s motion was unopposed, the court entered an order to show cause why it should not impose sanctions or enter default.

12. Petitioner reasonably inferred that DTC Lawrence probably intercepted petitioner’s opposition. She knew from her service copy that these papers exposed her malfeasance.

13. Petitioner filed a motion to reconsider the order to show cause concerning entering petitioner’s default. Petitioner sent the Hearing Department’s service letter under a cover letter informing Judge Honn of Lawrence’s malfeasance. The cover letter stated:

Attn: Judge Honn
PERSONAL AND CONFIDENTIAL

Dear Judge Honn:

My case began with a conspiracy of clerks, who among numerous other deceits, filtered from my mail any inculpating correspondence . It appears that you too are victim of a conspiracy involving clerks.

I am communicating ex parte out of dire necessity. DTC Lawrence, colluding with at least one court clerk, has inter-meddled with the court records to cause the rejection or other deflection of filings. The documents enclosed have been mailed for filing and served in proper fashion. If they suffer the fate of my opposition to motion to enter default (December 12, 2007 order), I know of no other way than direct communication to bring the problem to the court's attention.

Yours truly,
Stephen R. Diamond

14. Petitioner ascertained Judge Honn’s receipt of petitioner’s motion to reconsider and the cover letter on Lawrence’s malfeasance by certified mail.

15. Despite the clerk’s office informing petitioner the clerk had rejected filing the petition for review, on December 28, 2007 the Review Department filed a summary denial of the petition for review. This was no satisfaction for petitioner’s concerns, because petitioner’s enforced ignorance of any ongoing review precluded any further participation. Petitioner would have amended his petition to include additional arguments. The misrepresentation about the state of the petition for review—the clerk said she had destroyed it—further impugns the probity of the clerk’s office.

16. The Hearing Department eventually denied petitioner’s motion to reconsider, on or about January 2, 2008, mentioning none of petitioner’s specific charges against DTC Lawrence.

17. The Hearing Department filed its Decision and Order of Involuntary Inactive Enrollment, following an April 10, 2008, hearing on the order to show cause on default and sanctions.

18. Petitioner did not appear at the hearing on the order to show cause. Petitioner contends he could not have a fair hearing after his constructive denial of access to the court through the clerk’s office. Petitioner also was denied the opportunity to bring motions to change the date or venue, changes he needed because of economic hardship. After the constructive denial of the use of the clerk’s office, through the Hearing Department’s failure to make any findings on petitioner’s allegations of malfeasance, petitioner stood on the complete breakdown of due process. Petitioner contends he was not required to risk waiver by further participation in proceedings that had become a sham.

Proof of Detail

19. Petitioner attached an unsigned proof of service to DTC Lawrence’s service copy of the petition for interlocutory review to the Review Department. All other copies were accompanied by a signed proof of service.

20. The document respondent sent Ms. Lawrence--hence, the one the clerk returned him-contained the date, handwritten in ink with no signature.

21. Since all the copies besides DTC Lawrence's were executed, it follows that the copy the clerk returned was actually Ms. Lawrence's copy.

22. The clerk’s office use of the counterfeit proof of service, only obtainable from DTC Lawrence, proves ex parte communication through the clerk's office and abuse of Lawrence's service copy to "prove" defect in the proofs of service.

23. If these accusations are false, Ms. Lawrence could have refuted them by producing her unsigned copy of the proof of service.

24. Petitioner repeatedly asserted in motion papers that DTC Lawrence committed this malfeasance and that she could not produce her service copy, as for example, in petitioner’s motion for reconsideration of the court’s order to show cause why sanctions should not be imposed.

25. DTC Lawrence repeatedly and vehemently denied malfeasance, but she never denied her inability to produce her service copy, and in motion papers, she admitted receiving an unsigned proof of service.

26. Petitioner contends that DTC Lawrence's failure to deny her inability to produce her service copy constitutes an admission and establishes her malfeasance in colluding with the clerk of court and the wrongfulness of the clerk’s rejection.

27. Petitioner has filed declarations by himself and his secretary attesting to including five copies in the packet. Since petitioner has refuted the alleged defect in proof of service, petitioner contends the bogus character of this other supposed defect is overwhelmingly probable.

BASIS FOR SUPREME COURT JURISDICTION

Petitioner petitions the Supreme Court for review under Rules of Court, rule 9.16(a)(3), based on denial of a fair hearing.

ARGUMENT

1. The Office of the Chief Trial Counsel colluded with a court clerk to deny petitioner a fair hearing in the Hearing Department and Review Department.

The clerk's office is a litigant's primary conduit to the court, and this holds true even more in the State Bar Court. DTC Melanie J. Lawrence colluded with an employee of the State Bar Court clerk's office to close this conduit, rendering futile this petitioner's attempts to litigate the State Bar's Notice of Disciplinary Charges. (Petition, ¶ 5 and ¶ 19 – ¶ 27.) Both DTC Lawrence and the clerk violated Government Code section 6200, which makes an officer's destruction of public records a felony. Answering any doubt that motion papers mailed for filing are public documents in the sense the law requires, public record is construed broadly to include documents whose preservation is expeditious. (See People v. Pearson (1952) 111 Cal.App.2d 9, 18.) The Government Code’s term “officer” applies, as a person charged with a necessary public function is an officer in the sense the statute requires. (See City Council v. McKinley (1978) 80 Cal.App.3d 204, 210.)

Petitioner finds no precedents from any jurisdiction speaking to the effect on due process of an orchestrated clerical breakdown. The issue does not come before the courts, as one cannot ordinarily prove or often even know that the clerk sabotaged the record. Here, intermeddling is provable because of an unusual circumstance: DTC Lawrence gave her service copy to the court clerk, who mailed petitioner that copy. (Petition, ¶ 19 – ¶ 23.) Despite the absence of relevant precedent, it is hard to conceive a more extreme denial of the right to be heard than closing the court’s clerical conduit.

A. Sabotaging petitioner’s submissions to prevent filing denied petitioner a fair hearing.

When DTC Lawrence repeated her intermeddling with papers submitted for filing, petitioner determined he could not rely on the integrity of the clerk’s office. After entreating the Hearing Department proved no avail, petitioner chose not to cooperate further with the sham proceedings. (Petition, ¶ 18.) The described malfeasance prevented petitioner from staying the action in the Hearing Department, prevented interlocutory review in the Review Department, prevented petitioner from challenging DTC Lawrence's discovery order, and constructively deprived petitioner of his right to a hearing on the merits. (Petition, ¶ 4.)

B. DTC Melanie J. Lawrence admitted she could not produce a proof of service, possession of which she would have lost only through foul play.

Petitioner repeatedly challenged DTC Lawrence to produce her service copy. (Petition, ¶ 24.) While vigorously denying the wrongdoing, she pointedly failed to produce the proof of service she admits accompanied the document served on her or explain why she could not produce it. (Petition, ¶ 25.) Ignoring this evidence is an admission by silence, as DTC Lawrence did not deny her inability to produce her proof of service, when confronted with a clear accusation that an innocent person in her position would usually deny. (See Evid. Code, § 1221; Estate of Neilson (1962) 57 Cal.2d 733, 746 .) DTC Lawrence admitted receiving an unsigned copy (Petition, ¶ 25), and her providing her copy to the clerk in an ex parte contact is the only explanation for her inability to produce it or to explain why she cannot produce it. The clerk's use of DTC Lawrence's service copy as a counterfeit proof of service establishes Lawrence colluded with the clerk to reject the document on bogus grounds.

2. The State Bar Court fosters hypertechnicalism in its clerk’s office, encouraging foul play, while offending due process.

The hypertechnicalism of the State Bar Court clerk's office encourages conduct such as that of DTC Lawrence, because of the ease in engineering a small deficiency. When it puts a litigant out of court, the effort may become worth a deputy trial counsel's risk. The hypertechnicalism flouts prohibiting case law, so that the rules governing the clerk's office do not conform to judicial standards and are a trap for the unwary. A procedural defect should not be fatal to a filing, and the fair practice would hold the documents for a limited time and allow the litigant to supplement the file. (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774 [“To deny Rojas her cause of action for lack of a signature makes a mockery of judicial administration.”].)) The clerk had not destroyed all the documents as she claimed (Petition, ¶ 15)—her false claim violating Government Code section 6203--showing how allowing the clerk to destroy documents mailed for filing encourages malfeasance.

CONCLUSION

Constructive denial of petitioner’s access to the State Bar Court includes petitioning the Review Department. (Petition, ¶ 5.) Review by the California Supreme Court has become petitioner’s exclusive redress. Petitioner requests that the court overrule the Hearing Department’s disbarment order, entry of default, and enrollment as an involuntarily Inactive Member and, in the interest of justice, dismiss the case with prejudice or on other terms the court finds just.

Date:____________________

Respectfully submitted,

Legal Research and Writing Service
Supplier of Legal Theories

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Stephen R. Diamond