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.
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. (SEE BELOW)
72nd Installment. “Legal ethics” should be about ethics: The law’s “communicative scandal” as an ethical issue
A critique of the state-bar establishment rarely undertaken inquires about the shape of an ethical-and-intelligent ethical code. The corrupt and incompetent state bars and their academic allies have distorted the subject matter of legal ethics itself so that it doesn’t recognizably concern ethics. “Legal ethics is no more related to ordinary ethics than Madison, Wisconsin is to James Madison,” wrote one blogger. An ethical code shouldn’t be written to guild interest or for solving every problem concerning service delivery; its rules should express only the core ethical content of loyalty to clients and truthfulness in dealing with them, but it should deal with these matters comprehensively.
An example of a domain the state-bar establishment ignores, chosen only because of my familiarity, concerns law firms’ brief-and-motion-writing policies, implemented despite knowledge that they produce inferior documents. The subject is worthy of being treated as ethical because it’s about loyalty to clients or truthfulness with them; which of the two core ethical values is implicated depends on the terms of the firm’s employment. When a client retains a law firm on contingency, the firm’s failure to allow legal writers enough time to produce near-best quality is usually a failure of loyalty to client; when a client retains an attorney at an hourly rate, the issue becomes the firm’s truthfulness, since producing work of mutually agreeable quality isn’t untruthful or disloyal, although, arguably, the civil codes should discourage contracts for subpar legal performance. The issue of truthfulness is whether the firm misled client about extending firm’s best efforts on client’s behalf.
The horribleness of writing in nearly all legal briefs and the weakness of analysis in most has become a standing scandal in law. Overwhelmingly, lawyers who must write say they aren’t given sufficient time to write well, and have never had a legal environment that invested in their writing skill. The culprit is another of today’s crescendos of market failures. Law firms might find it profitable to allow associates enough quality writing time for improvement if the firm anticipated employing these associate attorneys ten years hence, but long-term employment isn’t expectable. The legal profession’s communicative scandal makes “good enough” standards for administering firms’ legal-writing practices essential to the profession’s self-respect, but these reasons of public policy don’t justify treating the matter as ethical. Standards providing for the ample allocation of law-firm time to writing projects are ethical standards because inferior writing is a major way clients are willfully cheated.
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. (SEE BELOW)
comments:
Anonymous said…
Given the recent US Supreme Court decision on Massey – should not this suffice as new evidence to warrant an independent judicial review under coram nobis for Richard Fine.
Keep up the good work – America needs patriots such as this!
June 22, 2009 at 11:28 PM
Anonymous said…
Gee, I have a case against my county up here in the Bay Area that has languished in the local Court of Appeal for almost a year and they still won’t calendar our oral arguments.
Shouldn’t I wonder if the judge’s up here are also getting these county bribes? They worked SO WELL in Los Angeles County keeping that county judgment proof, what “responsible” county official wouldn’t push the envelope in every county in California if it were a proven success in LA?
Where is the FPPC in all of this, and what are they able to do since it is now declared legal? Shoudn’t every citizen of California that has a legitimate suit against his or her county be wondering right now if the judge he is in front of has taken one of these bribes? How can you know whether to challenge a judge for bias under 170.1-170.3 unless they disclose their financial conflict of interest, and we know they don’t disclose them on their Form 700? I want to KNOW whether my judge is unbiased or not. Where can someone go to investigate how far this racket has gone by now? Hss it gone only to the Superior Court judges, or does it go to the Court of Appeal judges, too? Did Chief Justice George take a payment from LA County when he was a judge there? Shouldn’t a competent investigator be looking at this statewide?
January 15, 2010 at 8:40 PM
jcolard said…
this case and the states political houses that voted and approved a bill that was pushed thru the committees should be a signal that this states judicial branch does indeed has before them the biggest case of judicial Crime.One only has to read SBX2-11 to realize that Judges in this State,that sat on the bench in LA county since the late 90 received payments undisclosed could RETROACTIVELY RELEASE ALL PARTIES CONCERNED AND TURN WHAT WAS A ACT BY JUDGES,THAT WAS THERE ACCEPTING FUNDS FROM THE COUNTY,KNOWING THAT, FELT THEY ARE ABOVE THE LAW THEY MANDATED TO UPHOLD!ALSO THE DISBARMENT AND THOSE MEMBERS THAT REVIEWED THE COMPLAINT,HAD BEEN CHALLENGED BY THIS BRAVE MAN,SHOULD BE ASKED BY ITS MEMBERSHIP ABOUT THERE CONNECTION WITH ATTORNEY FINES CLIENTS HE REPRESENTED THIS IS GOING TO BACKFIRE ON ALL INVOLVED IF THE FULL STORY- IS EVER TOLD ALSO AT ISSUE IS THE TAKE OVER BY THE JUDICIAL COUNCIL THRU SBX2-12 THIS BILL GAVE ALL THE CHECKS AND BALANCES OF FUNDING OF STATE PROJECTS OF THE COURTS TO THEM TO DESIGN LOCATE BUILD AWARD CONTRACTS PURCHASE PROPERTIES,EVEN HAD WORDING SUCH AS THE POWERS TO USE FUNDS FOR ECONOMIC OPPORTUNITY’S AND ALSO WORDING THAT WOULD RELEASE FROM RESPONSIBILITY FUTURE LOSES FOR BAD JUDGMENTS MADE! NEVER HAVE I READ SUCH BOLD ACTIONS,THAT MY LOCAL REP DARREL STIENBERG AUTHORED! HE TOO NEEDS TO ANSWER TO,WHAT WAS THE SOLE RESPONSIBILITY THE HOUSE AND SENATE HAS HELD,NOW GIVEN TO THE COUNCIL! THE CONSTRUCTION FUND AND 5BILLION DOLLARS OF STATES CREDIT,NOW IS TO BE PAID BACK BY UNWARRANTED COURT ASSESSMENT FEES,ADDED TO ALL CITIZENS THAT APPEAR BEFORE JUDGES IN CALIF THIS MEANS IF FOUND GUILTY OF ANY INFRACTIONS,LAWS,CIVIL,CRIMINAL OR OTHERWISE,YOU ARE ONE TO PAY TO REBUILD THE JUDICIAL BRANCHES WISH LIST OF NEW COURT HOUSE,PROGRAMS ECT, ECT GO TO THERE WEB SITE TO SEE THIS MASSIVE LIST THAT EVEN SANTA CLAUS COULD NOT FILL
THIS IS A ISSUE THAT MUST GO BEFORE THE SUPREME COURT! IF NOT?
April 3, 2010 at 1:38 PM
kanBARoo Court. 19th Installment. Precedent, Waiver, and Legal Strategy: The Office of the Chief Trial Counsel Goes Berserk
California State Bar Court respondents must be especially careful of the intra-case precedents they set, especially waivers, as a respondent can reserve fewer rights against waiver than a criminal or even civil defendant. A criminal defendant’s protections are well known, including the exclusion of probative evidence unlawfully obtained. The criminal defendant doesn’t waive evidentiary objections by proceeding. None of these rights is afforded the State Bar respondent. Even the civil defendant comes out ahead of the Bar respondent with respect to one crucial difference, which magnifies the likelihood of inadvertent waiver. Although a civil plaintiff can modify a complaint by amendment, 1) the lateness must be excused; and 2) the amendment must not change the cause of action’s basic nature. Neither of these protections is available in the State Bar Court. The notice can be changed at any time, even if the reasonably available evidence would have allowed earlier pleading; and no limitation applies to fundamentally changing the charges. If respondent proceeds based on a defective notice of disciplinary charges, any inculpating information gathered under that defective document’s banner retains its full force, regardless of the notice’s fate.
The strategic implication, invariably missed by the State Bar establishment defense attorneys, is that failing to assert crucial procedural rights whenever tested loses them. By corollary, I will not answer the notice of disciplinary conduct unless I have exhausted my options to challenge it. Since the Bar Court rules are vague, incomplete, unrefined, and untested, my points and authorities argue rule construction, sometimes reaching public policy. Last Friday provided another opportunity to implement this anti-waiver strategy when the prosecutrix filed a new (third) motion to enter default for failing to answer the notice of disciplinary charges, to which I will eschew filing an opposition. Any application or counterapplication to the court now risks mooting my request for an immediate stay and waiving my objections that the clerk’s office has become unreliable. Since the clerk’s office is unreliable, any filing introduces an uncertainty for me, a litigation burden that no duty requires carrying. Refusal to accelerate the proceedings artificially by prematurely answering the notice of disciplinary charges also pressures the court to rule for a stay, to avoid its own befuddlement while it investigates the clerk’s office.
The factors allowing me to prevail are 1) the fundamental strength of the pleading theory, forcing the Bar Court to treat it seriously; 2) the severe misconduct of the Office of the Chief Trial Counsel; and 3) taking advantage of the prosecutrx’s misconduct, by consistent refusal to waive procedural flaws. The State Bar of late has followed the opposite course. More descriptively, the Bar has gone berserk. So far from consistency, it has now filed two incompatible motions: a motion to reconsider the denial of its motion for default and, before that, a new refiling of the original motion. An improper motion for reconsideration is ordinarily sanctionable, as is remaking a denied motion. While the law grants an over-used right to plead contradictory legal theories, it does not grant the right to proceed on a procedural contradiction. It is one or the other, a motion for reconsideration or a motion proper. The Office of the Chief Trial Counsel improperly burdens the court and opposing party with contradictory procedural forms. In my 11 years of practicing law and supplying legal theories to litigators, I have never before seen the procedural presumptuousness as involved in filing for reconsideration when the underlying motion is pending.
My novel strategy frightens the State Bar. The Bar’s power to move for entry of default and involuntarily enroll Bar Members as inactive goes to the heart of its unfair advantage. Without it, the State Bar’s trial counsel would have to practice law, a prospect most alarming.
kanBARoo Court. 18B Installment. The prosecutrix fails to deny specific evidence of her fraud.
The “State Bar’s Reply to Respondent’s Opposition to Motion for Entry of Default,” served on December 12 by Deputy Trial Counsel Lawrence, has a couple of problems. First, the document is unfileable, as the State Bar Court does not have reply papers, and the prosecutrix, sanctionably, never moved the court to permit additional filing. Second, the last day for filing was December 11; the court denied Lawrence’s motion on the same day she filed or tried to file her reply.
This reply warrants my taking a few minutes to type all of it, which you will find below, with my good faith effort to preserve even Lawrence’s formatting. You may want to compare the prosecutrix’s document to my opposition to the motion for entry of default, to which it replies, and take away an otherwise unavailable sense of this case. Her reply begins in a logical circle, continues to the relitigation of issues already adjudicated, and ends in a deeply inculpating declaration. She admits the evidence of her fraud where she is silent by failing to state that she can produce the unsigned proof of service. The prosecutrix’s superiors apparently ordered her to write this reply, belated and ill-advised.
——————————————
STATE BAR’S REPLY TO RESPONDENT”S OPPOSITION TO MOTION FOR ENTRY OF DEFAULT
COMES now the State Bar of California (“State Bar’), by and through Deputy Trial Counsel Melanie J. Lawrence, in Reply to Respondent’s Opposition to the State Bar’s Motion for Entry of Default for respondent’s failure to file a Response to the Notice of Disciplinary Charges as required by Rule 103 of the Rules of Procedure of the State Bar Court. This Reply is based upon Rules 103 and 200 of the rule of Procedure of the State Bar court, Business and Professions Code section 6088, the attached declaration of Melanie J. lawrenceand all pleadings and documents on file with the Court in this matter.Respectfully submitted,THE STATE BAR OF CALIFORNIA OFFICE OF THE CHIEF TRIAL COUNSEL
MELANIE J. LAWRENCEDeputy Trial Counsel2/12/07
MEMORANDUM OF POINTS AND AUTHORITIES
Unless the time is extended by Court order, or by written stipulation of the parties, a written response to the notice of disciplinary charges shall be filed and served by the respondent within twenty days after service of the notice of disciplinary charges. (Rule 103(a) of the Rules of Procedure of the State Bar Court.) A “response” is the answer referred to in Business and Professions Code section 6088. (Rule 2, 3.00.) The board may provide by rule that alleged facts in a proceeding are admitted upon failure to answer. (B&PC section 6088 [emphasis added].) Factual allegations in the NDC shall be deemed admitted upon entry of default. (Rule 200(d)(1).)
Respondent has failed to file an answer to the Notice of Disciplinary Charges
Respondent admits he has not filed an answer to the Notice of Disciplinary Charges (“NDC”). Also, a response to the NDC requires either a specific admission or specific denial of the allegations set forth in the NDC. (Rule 103(c)(2)(i).) So, the “logical next pleadings” Respondent has filed throughout this process have not been the answer contemplated and required by Rule 103 and Business and Professions Code section 6088. Rather, he has filed an untimely motion to dismiss the NDC and an untimely motion to reconsider and attempted to file a petition for review. This Court order Respondent on November 9, 2007, to file a responsive pleading, pursuant to Rule 103, within twenty days, and on December 4, 2007, denied Respondent’s Request for an Immediate Stay of these proceedings. But, he still did not file a response, as required by Rule 103. By rule, and by this Court’s order, Respondent is required to file an answer to the NDC in which he admits or denies the allegations. To date, he has not. His default must be entered. (Rule 200(c).)
Respondent’s accusation of misconduct by the Deputy Trial Counsel and the Corut Clerk is unfounded, untruthful and outrageous.
On December 3, 2007, Respondent’s petition for review was rejected for filing because it was not accompanied by a proof of service that bears an original signature and did not include four exact duplicates with the original. By way of explanation, Respondent accuses the Deputy Trial Counsel and the court clerk of conspiring to prevent him from filing a petition in the Review Department and destroying documents. In fact, the State Bar did receive a copy of Respondent’s petition, with an unsigned proof of service. But, the Deputy Trial Counsel has not had any contact with the Court, and most certainly, has not conspired and schemed with anyone, as Respondent has accused, to prevent his filing of the petition.
Conclusion
Respondent’s baseless accusations, unsupported by any credible evidence, demonstrate his contempt for these proceedings. The Court cannot allow Respondent to continue to flagrantly defy the rules and this Court’s orders. He has failed to answer the NDC. His default must therefore, be entered.
I MELANIE J. LAWRENCE, declare:
All statement made herein are based on my personal knowledge, except for those stated to be under information and belief.
I am an attorney admitted to all courts of the State of California.
I have been employed as a Deputy Trial Counsel in the Office of the Chief Trial Counsel since December 2005.
This matter was assigned to me on or about July 9, 2007.
The State Bar did receive a copy of Respondent’s petition, with an unsigned proof of service.
I have not had any contact with the court clerk regarding Respondent’s petition, have not seen the copy of the petition that was filed with the Court, and most certainly, have not conspired and schemed with anyone, as Respondent has accused, to prevent his filing of the petition.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 12, 2007, at Los Angeles, California.
MELANIE J. LAWRENCE
Deputy Trial Counsel
