09th Circuit Appeal - Dkt 47 - Letter To 9th Circuit Panel Re Recusal

RICHARD I. FINE

ID # 1824367 c/o Men’s Central Jail 441 Bauchet Street, Los Angeles, CA 90012 [email protected]

November ___, 2009 ATTN: Panel Justices Assigned to Case # 09-56073 U.S. Court of Appeals for the Ninth Circuit 95 Seventh Street San Francisco, CA 94103 RE:

Pre-Decision on the Issue of “Whether the Trial Judge [Judge Yaffe] Should Have Recused Himself” Against Appellant Fine by the Ninth Circuit in the Pending Writ of Habeas Corpus Appeal in Fine v. Sheriff of Los Angeles County; Ninth Circuit Case No. 09-56073, District Court Case No. CV-09-1914 JFW (CW)

Dear Panel: Attached hereto is a copy of a November 2, 2009 article from Law.com which refers to a hearing by the House Judiciary Committee on the subject of “Federal recusal guidelines amid controversies that have swept through State Court systems in recent years, culminating in a U.S. Supreme Court decision five months ago that tightened the recusal requirements for elected state judges”. The relevance of this article to the instant case is that the article refers to the scheduled testimony of Ninth Circuit Justice M. Margaret McKeown, the Chairwoman of the Judicial Conference’s Committee on Codes of Conduct. Although she declined to be interviewed for the article, the article stated: “In a statement, she noted that the Committee on Codes of Conduct ‘provides ethics advice and training that includes issuance of more than 100 advisory opinions annually and response to nearly 1,000 informal requests for ethics advice.’” In this case, LA Superior Court Judge David P. Yaffe received $46,346.00 per year from LA County. Judge Yaffe is an elected state judge, not a County employee. LA County’s payments amount to 27% of his state salary. He did not disclose the payments on his form 700 Statement of Economic Interests. He did not have any contact or agreement or arrangement to perform services for LA County. LA County was a party before him in the underlying case and he made an order in its favor, ordering Fine to pay LA County and its co-applicant for an Environmental Impact Report attorneys’ fees and costs. He then held Fine in contempt and ordered Fine into “coercive incarceration” without limit to enforce the order and its progeny.

Ninth Circuit Panel November ____, 2009 Page 2

Fine has been in “coercive incarceration” for approximately nine months, since March 4, 2009, in the LA County Jail. LA County’s payments to LA Superior Court judges have been held to violate Article VI, Section 19, of the California Constitution in the case of Sturgeon v. County of Los Angeles, 167 Cal. App. 4th 630 (2008) rev. denied 12/23/08. The payments were also acknowledged to be criminal by Senate Bill SBX211, enacted February 20, 2009, effective May 21, 2009. Such Bill gave retroactive immunity from its effective date from criminal prosecution, civil liability and disciplinary action to the judges and other government officials related to county payments to judges. The spectre of pre-decision by the Ninth Circuit against Fine in this case arises from Justice McKeown’s “statement” that the panel of which she is Chairwoman issues “more than 100 advisory opinions annually and responds to nearly 1,000 informal requests for ethics advice”, which shows a predisposition on the issue on appeal of “whether the trial judge should have recused himself” and her scheduled appearance before the House Judiciary Committee to defend the actions of the judges of self-recusal. In particular, a bias against recusal is indicated to exist in this case for the following reasons: 1) The Ninth Circuit has denied Fine’s unopposed motion to grant the writ based upon Fine’s Opening Brief; 2) The Ninth Circuit has denied Fine’s unopposed motions to strike Appellees’ Answering Briefs; 3) The Ninth Circuit has denied Fine’s two unopposed motions to be released from incarceration and one unopposed motion for reconsideration of motion to be released from incarceration; and 4) The Ninth Circuit has ordered that no further motions to be released from incarceration be filed. In summary, the Ninth Circuit has denied five unopposed motions. This conduct is highly irregular for a court, particularly when one of the unopposed motions would have disposed of the appeal by granting the writ. This conduct, combined with the statement of Justice McKeown to Law.com and her scheduled appearance before the House Judiciary Committee to defend judges holding the power to recuse themselves as distinguished from

being bound to do such, demonstrates a pre-disposition by the Ninth Circuit against Fine in this case.

Ninth Circuit Panel November ____, 2009 Page 3

Sincerely,

RICHARD I. FINE RIF/mlm cc: Aaron Mitchell Fontana, Esq. Paul B. Beach, Esq. Kevin M. McCormick, Esq.