73rd Installment. Mendacious Judge Armendariz's Kay Opinion

(6^th in Philip E. Kay series)
The California State Bar Court's Judge Armendariz rushed to assure embroiled superior-court judges she would avenge their professional humiliation. Judge Armendariz stated in the third sentence of the State Bar Court Opinion (http://tinyurl.com/ybzkn2v) regarding respondent Philip E. Kay:

[S]omewhere during [Kay's] overzealous advocacy, he lost it, not the cases, but his integrity, professional decorum, credibility, and respect of the court.

The unjudicial, even schoolyardish, swipe at Kay shows a vicariously embroiled jurist. Her gratuitous slur on Kay's integrity foreshadows her helping the Office of the Chief Trial Counsel turn Kay's exercise of professional judgment into proof of his moral turpitude. The ethical justification for Kay's harsh three-year suspension lies with the moral-turpitude allegation—the attack on Kay's integrity—an important insight because the case's procedural posture limits Kay's arguments. The ethical role of the moral-turpitude charge allows Kay to rebut Judge Armendariz's opinion by focusing on that charge's falsity as a matter of law.


Kay's procedural posture is that the Bar Court imposed a terminating sanction when Kay refused to retake the stand; to prevail, he must attack the entry of default or rebut the charges as a matter of law, as all the State Bar's alleged facts are deemed admitted. If the facts are legally sufficient to constitute the charges, the State Bar must prove only the warrant for the terminating sanction. To rebut a case of selective prosecution like the one against Kay, a defendant must ordinarily introduce evidence, but relevant evidence is typically impossible to obtain, making most selective-prosecution cases impossible to defend. Unusual for a selectively prosecuted defendant, Kay can document collusion between the Office of Chief Trial Counsel, the Bar Court, and a complaining superior court judge, but Kay was precluded from proving his case at trial when state-bar provocations drove him from the witness stand and the Bar Court illegally entered his default.


Despite the terminating sanction and entry of default, Kay retains two arguments: 1) as kanBARoo court previously discussed, entering Kay's default was illegal; and 2) finding Kay committed acts of moral turpitude is plainly ridiculous. Although defeating the moral turpitude allegation wouldn't compel dismissal of all charges, it would strike at the ethical center of the State Bar's case. If Kay's acts weren't acts of moral turpitude, the whining judges are mere sore losers; the State Bar's need to destroy Kay's reputation derives from the common-sense requirement that Kay's objectionable conduct demonstrate Kay's moral unsuitability to practice law if the judges' age-old grudges are to warrant avenging. Kay should win on the State Bar's jurisdictional incapacity to enter Kay's default for refusing to continue testifying, but the Supreme Court won't reverse the decision on that basis because the last thing the courts want these days is having to participate in State Bar cases; the Supreme Court enjoys the expedient of denying review for no stated reason. Perhaps the Supreme Court might show some sympathy for a distinguished attorney the State Bar Court was trying to brand morally depraved for reasons unrelated to Kay's doing anything immoral.


The direct route to undermining the Bar Court's moral-turpitude thesis is to defeat the moral-turpitude charge:

By repeatedly filing duplicative and frivolous motions for an improper purpose, namely to harass and manufacture bias in a court and interfere with the court's proceedings, and by falsely accusing the court of bias, of assisting the other side, of treating the parties differently, and, thus, of judicial misconduct, respondent willfully committed an act or acts involving moral turpitude, dishonesty or corruption, in willful violation of section 6106.

If "moral turpitude" sounds worse than a lawyer's doing his job by "attempting to manufacture bias" through filing too ardently, your ear's verdict agrees with moral-turpitude's legal definition:

[A]n act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. (People v. Mansfield (1988) 200 Cal.App.3d 82, 87.)

The disparity between the charge against Kay and moral-turpitude's definition is that the definition requires Kay's violating a fundamental social duty, while the State Bar charge concerns breaches of narrow, legally constructed courtroom duties. A lawyer doesn't commit an act of moral turpitude by filing too many papers; filing too many papers isn't base and vile!


A deliberately false representation to the court is another matter, as deceit is moral turpitude, both commonly and legally understood. The Bar Court mendaciously accuses Kay of deliberately misleading the court, but Judge Armendariz concludes that Kay committed acts of moral turpitude by supposedly misrepresenting "facts" that are mere characterizations of the courtroom conduct of judges, such as claims a judge showed bias ("falsely accusing the court of bias"). Not satisfied to attack Kay for his alleged disrespect of judges, Armendariz uses the same comments that she had held prove Kay disrespects the courts to prove Kay was dishonest because his negative opinions of judges were untrue. Accusing judges of misconduct, even if the charges aren't true, isn't "base and depraved" unless the accuser knows the accusation false or accuses recklessly.


The moral-turpitude charge encapsulates the calumny against Philip E. Kay. The charge's outrageousness invites its demolition.

On Judge Armendariz's obfuscatory writing style, see Disputed Issues, "And/or and the (un)lawyerly practice of weaseling."

kanBARoo Court. 18C Installment. My currently pending motion.

This is my currently pending motion to reconsider the order to show cause, issued when the Hearing Department denied the State Bar's Motion for Entry of Default. My original opposition, appended to this document, is here.
__________________________________________

Stephen R. Diamond (State Bar No: 183617)
Legal Research and Writing Service
Supplier of Legal Theories
61967A Begonia Place
Joshua Tree, California 92252
Telephone: (760) 366-7920Facsimile: (866) 392-4866
In Pro Per

The State Bar Court
Hearing Department - Los Angeles

In the Matter of
Stephen R. Diamond,
No. 183617
A Member of the State Bar
Case Nos. 05-0-04605 et al.

Motion to Reconsider Order to Show Cause; Request for Immediate Stay; Respondent’s Supporting Declaration; Ex. ‘A.’

(Date Order Filed: December 12, 2007
(Rules of Procedure, rule 224)

Grounds
Among the well-known grounds for a motion to reconsider is an offer of new facts, where failure to have previously introduced them is excusable. The court could not consider the facts contained in respondent's opposition, because they were officially unfiled when the court ruled. The facts below, corroborated in respondent's declaration, will show that respondent made a reasonable effort to file the opposition on time. The failure to bring the new facts to the court’s attention was unintentional and improbable, even when the court considers the mail-delivery mechanics alone and disregards DPT Lawrence’s instrumental role.

Respondent attaches his opposition to the State Bar’s motion for entry for default, officially unfiled when the court denied the State Bar’s motion but imposed other conditions. The opposition was mailed on December 8, 2007, was picked up by the post office on that same date, was due for filing on December 11, 2007, and was not filed by that date.

The fraudulent conduct of opposing counsel, documented in the attached opposition, makes probable that DTC Lawrence and at least one clerk deflected the opposition, declining to confine their intermeddling to destroying copies and substituting copies of the proof of service, as with the attached opposition documents. This documented recent intermeddling makes her likely to have repeated the unlawful conduct. The court should not allow this wrongdoer the benefit of her wrongdoing.

1. Respondent used reasonable care to effect timely mailing.
In every previous instance, the post office has delivered respondent’s mail to the State Bar the day immediately following pickup. Mailing the motion on Saturday, it would ordinarily arrive the following Monday, December 10, a day before the deadline on a very short-notice opposition. Leaving the matter at that, respondent should reasonably be allowed to have the court consider the evidence contained in the declarations.

2. DPC Lawrence’s previous conduct suggests she again intermeddled with court files to abort the court’s reception of respondent’s opposition to the motion for entry of default.
When the court takes into account the contents of those declarations, it should conclude that the risk that DPC Lawrence once again intermeddled with court documents is too great for respondent to be required to bear. The declarations create this risk in two ways. The obvious one is that Ms. Lawrence, having committed gross misconduct once, will do so again. The more psychologically astute perception of the risks to due process would emphasize that Ms. Lawrence has motive to prevent the dissemination of the opposition. One must assume that its contents will destroy her career.

Argument
1. The State Bar should not gain unfair advantage from Ms. Lawrence’s unlawful thwarting of respondent’s petition for review, a thwarting that obviously violated respondent’s due process rights.
If the court reconsiders the motion and receives the accompanying oppositions into evidence, no grounds are present for the order to show cause, because DTC Lawrence thwarted respondent's efforts. Without the intermeddling that is the subject of the attached opposition, respondent’s petition for review would be before the Review Department, providing him with a substantial opportunity to obtain a stay. The court should not order respondent to show cause for failing to attend a deposition that the court ratified only because Ms. Lawrence’s foul play deprived it of the facts.

The effect of a pending application for a stay depends on circumstances that sometimes can only be evaluated retroactively, given the Hearing Department’s short time limits. Had it granted the stay, the court would likely not expect respondent to attend a deposition that would moot his petition for review. Whether the stay pertains to the period of time the request was pending before the Hearing Department would inevitably be decided after the fact, on determination of the Hearing Department or the Review Department. Ms. Lawrence’s foul play deprived respondent of this opportunity to have the case stayed and to have the Hearing Department or Review Department ratify his position favoring a stay of deposition proceedings. To let the State Bar capitalize on DTC Lawrence’s foul play would only compound the due process violation she inflicted.

2. The court should stay this action immediately in accordance with the Prayer of Respondent’s Opposition to the Motion to Enter Default.
The case cannot be allowed to continue without judicial intervention to protect respondent’s due process rights and to discipline errant counsel.

Dated:______

By:
Legal Research & Writing Service
Stephen R. Diamond

Respondent’s Declaration in Support of Motion to Reconsider Order to Show Cause and Request for Immediate Stay
I, Stephen R. Diamond, declare
1. I am the respondent in this action and a Member of the California State Bar.
2. I caused an opposition to the State Bar’s motion for entry of default to be mailed for pickup on December 8, 2007 for pickup that same day.
3. A true and correct copy of that opposition is attached as Exhibit ‘A’ to this declaration.
4. Only a single day is normally required for mailing from my residence to the State Bar.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in Joshua Tree, San Bernardino County, California on December 12, 2007.
_________________________________________________ Stephen R. Diamond, declarant

END OF DOCUMENT

kanBARoo Court. 16th Installment. What happened?

Nobody ventured a prediction as to how the court would rule, and I can't say I blame you. The court was in a nice predicament, and who could say what it would do? If it entered my default, I'm out of court and the Hearing Department avoids the Review Department's interlocutory review. The cost, however, is setting me up to win on an appeal based — not on my theory that the Bar hasn't pled its case with specificity (which may or may not be mooted) — but on the concrete and specific facts of court's failure to protect my due process rights from the prosecutrix's incursions.

What was the alternative? If the court denied the motion to dismiss, it would be countenancing my accusations of deputy trial counsel's intermeddling. This would then require that it investigate and disbar her, to the shame of the State Bar and with uncalculated implications for my case and other cases she has handled. As close and as subordinating as the relations are between the office of the prosecutrix's boss and the judge, this was unlikely.

I'm now going to get the anticlimactic ending out of the way, to proceed without that pall to the completely unexpected and truly fascinating details. Then to the apperception that the case has matured sufficiently that I can see how I can win it. This case has moved beyond the point where one sets the stage so that favorable events can transpire. The anticlimactic ending is that the judge managed to deny the prosecutrix's motion to enter default based on an apparently technical fault in the prosecutrix's motion.

Boring in appearance; fascinating in essence. First, the court could avoid considering my charges of gross prosecutorial misconduct only because it never saw them. The court never received my opposition papers. The prosecutrix must have had the file copy intercepted or deflected, after receiving her service copy and finding herself inculpated. I find it hard to believe, but in assessing likelihoods, you have to follow the logic of the evidence.

What's fascinating about the way the judge justified denying the motion to enter default was that he was dead wrong about the technicality he invoked. The judge had before him an unopposed motion to enter default that he so strongly needed to deny that he concocted a transparently unsound reason to deny the home team's motion. The judge ruled that the motion was untimely, because it failed to allow the five days for service added to the time ordered by the court. In truth, not only the prosecutrix but I as well believed, and believed correctly, that since the court said 20 days from the order's filing, it meant exactly that, not 20 days from the order's service. Every paralegal knows the distinction.

There are so many things fishy about this that it would be tedious to list more than a couple. Why did the court grant the motion to shorten time, if the motion failed on its face because of untimeliness? Why did the court fail to condition the denial as “without prejudice to remaking the motion," if the court's real reason was mere untimeliness?

What the court did do was vacate the trial date, vacate the pretrial conference date, and set an OSC to consider sanctions for my failing to participate in discovery. I responded the next day (today) with a motion to reconsider the order for an OSC, in light of the "new facts" contained in my deflected opposition to the default. I attached a copy of the deflected opposition as an exhibit and mailed a copy with cover letter to the judge by certified mail, labeled "PERSONAL AND CONFIDENTIAL."

In the installment after the next, I'll discuss how this level of prosecutorial misconduct creates a straight tactical path to prevailing in this matter. The potential contrasts with the anemic pseudostrategies of Bar Establishment defense lawyers, who generally have spent years as deputy trial counsel for the State Bar, where they were thoroughly brainwashed. In the next installment, posted concurrently, I publish my "Motion to Dismiss the Notice of Disciplinary Charges for Failing to State Disciplinable Charges." It sets out the basic procedural legal theory that has gotten this case to this point, although my later papers include some more compelling authorities.

To best understand this blog:

* Consider reading installments 1-7, successively; then,

* Follow your interests.