59th Installment. Attorney suspension for disrespect of court by proxy

A federal court issued a one-year suspension to a Louisiana attorney who disrespected a magistrate's law clerk. The attorney snapped at the annoying clerk, magistrate's delegate for a post-hearing telephone inquiry about his absence. The clerk had baited him with carping rhetorical questions and condescending repetition of his name, irritating the tired attorney. Here's a taste of his curtness according to the appellate opinion, a quick 10-page read at http://tinyurl.com/cujt29:

Ms. Blancke told Mr. Moity that there was no reason to get upset, that this was a professional phone call to assess why he had not returned the court’s phone calls and why he’d failed to appear at a court-ordered conference for the purpose of the court’s assessment of sanctions. At some point, Mr. Moity cut Ms. Blancke off in mid-sentence, yelling “Stop saying ‘Mr. Moity.’ You’ve said my name about 5 times, I know my name!”

The 5th Circuit’s denial of Moity’s appeal concluded:

Moity further argues that disbarment was an inappropriately severe punishment for his “curt conversation,” as he calls it. The conversation reported by the magistrate judge’s law clerk displayed severe disrespect to the court by the anger and harsh tone shown to a representative of the magistrate judge. In re Moity, No. 08-30826 (5th Cir. April 7, 2009) (Smith, Stewart and Southwick) (per curiam; unpublished).

Other alleged ethics infractions aggravated the offenses charged against R. Michael Moity Jr. The 5th Circuit held he testified dishonestly at the contempt hearing, but the facts don't clearly and convincingly prove Moity intended deceit. Moity’s brief accused the District Court of misconduct by discussing the case ex parte with another judge who had held Moity in contempt, accusations for which the District Court charged him with impugning two judges' integrity. Even the 5th Circuit found this charge unswallowable yet neither affirmed nor reversed it.

Abuse of disciplinary authority so gross it disturbs even the State Bar Establishment (see, for example, http://tinyurl.com/cvrbaa) can reveal State Bar oppression's intensifiers. The Western District of Louisiana disciplines attorneys using unique procedures letting any judge initiate and decide attorney discipline. Instituting practices magnifying complaining-judges' influence performs an experiment relevant to other jurisdictions, where judges' complaints start many disciplinary proceedings. The California State Bar, by rule, must investigate a judge's complaint, and the State Bar, by habit, defers to the complaining judge on the ultimate question, even if the complaint apparently arose out of a personality clash or a zealous attorney's warranted resistance. The Richard I. Fine case, notably, involves complaints by judicial officers, such as Judge Yaffe and Commissioner Mitchell, both reputed vindictive and unable to admit error. The State Bar’s readiness to prosecute on a judge’s complaint expresses not only its opportunism and authoritarianism but also a strain of its core pathology: finding ethical culpability for impropriety’s appearance, as visited by a judge accusing an attorney of misconduct.

The 5th Circuit should publish a legal outcome so novel. The courts — wanting to render agreeable decisions without being held to principles — undemocratically decline to publish weak opinions that would make new law. The opinion dodges whether alleging judicial misconduct constitutes a disciplinable offense: subtracting one third of the charges should reduce the discipline's severity. The 5th Circuit, affirming the entire aggravation without deciding part of its justification, didn't resolve the presented controversy.

kanBARoo Court. 52nd Installment. The Opinionless-Decision Conspiracy

When the California Supreme Court ratified opinionless denials of review, it implemented and enlarged a tactic already tested by a conservative federal circuit court of appeals to deny disfavored and oppressed groups equal protection under a uniform set of procedures and laws. Opinionless reviews are the end of an unacknowledged procedural spectrum treating some cases as less worthy of due process.

The experiment started in the late 1950s when the Fourth Circuit began an unannounced categorization of cases, denying publication to some, while treating unpublished cases as nonprecedential. The Fourth Circuit used nonprecedential cases to resist U.S. Supreme Court initiatives under Brown v. Board of Education and to deflect numerous prisoner-rights cases under the Civil Rights Act. (Pether, Outing the Judicial Epistemology of Hart V. Massanari (2005) 62 Wash. & Lee L. Rev. 1553.) Nonprecedential opinions allowed the Fourth Circuit to treat these cases differently not only in the obviously procedural respect but in respect to the substantive rights found. The cases' nonprecedential character barred other plaintiffs from citing them to enforce their rights, hence eliminating the main motive for correctly finding law contradicting a judge's political or personal inclinations. Studies proved that courts applied different standards in nonprecedential opinions. A 1999 study of the Americans with Disabilities Act showed the plaintiff win rate in employment discrimination cases at the district court level was four times higher in published than unpublished opinions. (Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants (1999) 34 Harvard C.R.-C.L.L. Rev. 99.) If courts correctly decide unpopular cases only if the judges intend publication, a still greater degree of bias will obtain in cases where the court issues no opinion, not even an unpublished, nonprecedential one. An uncitable case may free judges from legal constraint, but the written opinion remains obtainable and a mild embarrassment to the inconsistent judge.

The California courts and the Ninth Circuit were in the forefront of the judiciary's rearguard opposition to Rules of Appellate Procedure rule 32.1, which compels the federal circuits to allow citation—but not precedential force—to unpublished cases. California state courts still enforce a rule subjecting attorneys to sanction for tacitly confronting a court with its inconsistent unpublished decrees. The procedures associated with nonprecedential cases would disturb lawyers if more of them knew. When matters stood much better for court dockets decades ago, already a California Supreme Court screening process culminated in an intense "Wednesday conference" meeting in the Chief Justice's chambers to consider petitions for extraordinary writs and other petitions, including State Bar disciplinary matters. These matters were divided into an A-list and B-list, the latter where denial of the petition seemed indicated. At the beginning of the hour, the conference would summarily reject the bulk of B-list items, 2/3 of the 100 or so considered each week. (Grodin, The Depublication Practice of the California Supreme Court (1984) 72 Cal. L. Rev. 514.)

The judiciary's attitude toward reviews of complaints by those convicted of crimes—and one must suspect, quasi-crimes—was expressed forthrightly by Justice Black, who supported a lower court's denial of a transcript to a prisoner:

I do not think he needs a transcript to know whether he was convicted erroneously or whether some new circumstances have arisen that now show a fatal constitutional error… This case is but another of the multitudinous instances in which courts are asked interminably to hash and rehash points that have already been determined after full deliberation and review. (Wade v. Wilson (1970) 396 U.S. 282 [Black, J., dissenting].)

Procedures perfected against rights-demanding prisoners are today deployed against State Bar respondents.

For a more general treatment of nonprecedential opinions, see the eponymous entry in my new blog, Juridical Coherence.