9th Circuit Appeal - Dkt 15 - Request For Immediate Review & Reconsideration

RICHARD I. FINE, In Pro Per Prisoner ID # 1824367 c/o Men’s Central Jail 441 Bauchet Street Los Angeles, CA 90012 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD I. FINE, Appellant and Petitioner, vs. U.S. DISTRICT COURT, Appellee and Respondent. SHERIFF OF LOS ANGELES COUNTY (Real Party In Interest)

Case No. 09-56073 REQUEST FOR IMMEDIATE REVIEW AND RECONSIDERATION OF SUMMARY DENIAL OF EMERGENCY MOTION TO FREE APPELLANT PENDING APPEAL WITHOUT SURETY AND/OR GRANT WRIT, AS SUCH WAS NOT ANSWERED BY THE SHERIFF AND THE GROUNDS, FACTS AND CLAIMS SET FORTH THEREIN WERE NOT OPPOSED OR CONTESTED BY THE LA SUPERIOR COURT AND JUDGE YAFFE, IN ADDITION TO ALL REASONS SET FORTH IN THE ORIGINAL MOTION INCORPORATED HEREIN BY REFERENCE, AND THAT THE ORIGINAL MOTION WAS UNOPPOSED, AND ON THE NEW GROUND THAT THE CERTIFICATE OF APPEALABILITY HAS BEEN GRANTED AND THE FEE HAS BEEN PAID. 9TH CIRCUIT RULE 27-7 AND 27-10 F.R.A.P. RULES 23(b) AND (d)

TABLE OF CONTENTS

1 2

Introduction..............................................................................................................

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I.

The Motion Should Be Granted As It Was Not Opposed .......................1

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II.

The Motion Should Be Granted As Fine Will Prevail Upon The Appeal

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2 A. The Petition for Writ of Habeas Corpus was not answered by the Sheriff............................................................................................... 2 B. The grounds, facts and claims of the Petition were not opposed or contested by the LA Superior Court or Judge Yaffe........................ 2 C. Given the failure to oppose, the trial court erred in refusing to grant

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the writ............................................................................................. 2

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D. Judge Yaffe’s admitted illegal conduct..............................................3

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E. The trial court ignored Judge Yaffe’s conduct....................................5

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F. The standard for recusal......................................................................6

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G. Recusal was mandated.......................................................................7

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III. Immediate Action Is Necessary...............................................................9

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Conclusion.............................................................................................................9

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TABLE OF AUTHORITIES

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Cases

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Aetna Life Insurance Co. v. Lavoie,

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

475 U.S. 813.......................................................................................................7 Caperton, et al, v. A.T. Massey Coal Co., Inc., et al, 566 U.S. ___ (2009).................................................................................6,7,8, 9 Fine v. Sheriff of Los Angeles County, et al, Case No. CV-09-1914 JFW (CW)..................................................................... 2 Hall v. Harker, 69 Cal.App.4th 836 (1999)................................................................................. 2 In Re Murchison, 349 U.S. 133, 136 (1955)..........................................................................7, 8, 9 Marina Strand Colony II Homeowners Association v. County of Los Angeles, LASC Case No. BS 109420.....................................................................4, 7, 8 Mayberry v. Pennsylvania, 400 U.S. 455 (1971)..................................................................................7, 8, 9 Offut v. United States, 348 U.S. 11 (1954)....................................................................................7, 8, 9 Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (2008), rev. denied 12/23/08...........................................4 Tumey v. Ohio, 273 U.S. 510 (1927)..........................................................................................7 Ward v. Village of Monroeville, 409 U.S. 57 (1972).............................................................................................7 Withrow v. Larkin, 421 U.S. 35, 47 (1975)........................................................................................7

27 28

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1

Statutes

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13 USC § 1346.......................................................................................................5

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28 USC § 2243...................................................................................................2, 3

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California Business & Professions Code § 6126...................................................7

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California Pubic Resources Code...........................................................................8

6

CCP § 170.1...........................................................................................................4

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CCP § 170.3.......................................................................................................5, 8

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CCP § 170.3(c)(4)..............................................................................................5, 8

9 10

Other Authorities

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Senate Bill “SBX2 11”...................................................................................3, 4, 5

12 13 14 15

Rules FRAP Rule 23(b) and (d)........................................................................................i Ninth Circuit Rules 27-7 and 27-10........................................................................i

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Constitutional Provisions

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California Constitution, Article VI, Sec. 19,..........................................................3

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1

INTRODUCTION

2

On August 12, 2009, the Court of Appeals granted the Certificate of

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Appealability on the issue of whether the trial judge should have recused

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himself, and ordered the fee for the appeal to be paid. On the same day, it

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summarily denied the unopposed Motion to free Appellant (“Fine”) without

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surety pending the appeal. Presumably, the reason for the denial was that the fee

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for the appeal had not been paid to “perfect” the appeal. On August 12, 2009,

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after being orally informed of the Court’s decisions, Fine arranged for the appeal

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fee to be paid, thereby “perfecting” the appeal. The fee has been paid. (A copy

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of the Receipt evidencing payment is attached hereto as an exhibit.)

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Fine now requests a review of the summary denial of the Emergency

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Motion filed July 9, 2009 (Dkt #2) and all documents in support thereof, and

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renews the Motion. It appears that the court did not consider the motion filed on

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July 9, 2009, as it did not refer to such in its opinion denying the emergency

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motion.

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This is a simple, clear case. Judge Yaffe committed criminal acts of

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taking payments from LA County for which he received retroactive immunity

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from prosecution, liability and disciplinary action under Senate Bill “SBX2 11”

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(attached to Petition). He then made an order in favor of LA County against

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Fine without notice to Fine. He then presided at a criminal contempt trial to

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enforce his own criminal and illegal actions.

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I.

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THE MOTION SHOULD BE GRANTED AS IT WAS NOT OPPOSED.

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As the Court may see from the docket sheet, the Motion was not opposed. As such, no reason existed for denying the motion other than the fact that the appeal fee was not yet paid to “perfect” the appeal. Now that has occurred. Without an opposition, the Motion should be granted.

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1

II.

THE MOTION SHOULD BE GRANTED AS FINE WILL PREVAIL UPON THE APPEAL.

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A. The Petition for Writ of Habeas Corpus was not answered by the Sheriff.

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The docket in the underlying case of CV-09-1914 JFW (CW) shows that the Sheriff did not answer the Petition for Writ of Habeas Corpus (“Petition”) (Dkt #1), but instead moved to dismiss Respondent (Sheriff) or in the alternative to direct real parties in interest to answer (Dkt #12). Such Motion was denied as moot. (Dkt #30) The Sheriff never filed an answer, never certified the reason for Fine’s incarceration as required by 28 USC § 2243, and never showed cause why the writ should not issue as required by 28 USC § 2243. B.

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The grounds, facts and claims of the Petition were not opposed or contested by the LA Superior Court or Judge Yaffe.

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The Sheriff did not designate the LA Superior Court of Judge Yaffe as an

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“interested party.” (Dkt #11) Nor did the LA Superior Court or Judge Yaffe file

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a motion to intervene or a notice of interested party. Their response (Dkt # 14

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and #16) was a nullity. However, even if considered, it did not respond to,

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oppose or contest the grounds, facts or claims set forth in the Petition. Further, it

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did not certify the reason for Fine’s incarceration or state why the writ should

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not be granted. It also did not answer the Petition. Finally, it did not provide

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any documents from the record other than the March 4, 2009, transcript and the

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March 4, 2009 Remand Order. The March 4, 2009, Judgment had already been

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provided with the Petition and the March 27, 2008, Order was not a trial exhibit

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and not part of the record.

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C.

Given the failure to oppose, the trial court erred in refusing to grant the writ.

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Under 28 USC § 2243, the trial court (the US District Court) upon

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receiving the Petition had to either (1) grant the writ, (2) issue an order to show

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1

cause to the Respondent (Sheriff) or (3) deny the writ “forthwith”. The trial

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court waited 19 days and then ordered the Sheriff to “answer” or move to

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dismiss on specified grounds. The Sheriff did not answer and did not move to

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dismiss on the specified grounds. (See Dkt #6 and #12 for Court Order and

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Sheriff’s Motions.) The trial court did not have jurisdiction to order the LA

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Superior Court and Judge Yaffe to respond.

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Sheriff’s Motion was denied. (Dkt #30)

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(Dkt #14)

In any event, the

This left no opposition to the Petition. The trial court had already waived the option of denying the Petition “forthwith” by ordering the Sheriff to answer.

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Under 28 USC § 2243, the trial court was bound to have a hearing if the

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“response” had facts different from the Petition. Since that was not the case, the

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trial court was bound to rule on the facts in the Petition which mandated the

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granting of the writ.

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D.

Judge Yaffe’s admitted illegal conduct.

At the contempt trial, Judge Yaffe testified on December 22, 2008 (Trial Transcript, 12/22/08, attached to Petition) that he received payments from LA County in the amount of approximately $46,300 per year in addition to his state salary of $178,800. He did not disclose such on his Form 700 Financial Interest Statement. He did not have a service or employment agreement or arrangement with LA County. He did not remember any case in the last five years that he decided against LA County. The payments were 28% of his salary. The case of Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (2008) rev. denied 12/23/08, held that the LA County payments to LA Superior Court judges violated Article VI, § 19 of the California Constitution. Senate Bill “SBX2 11”, enacted on February 20, 2009, in reaction to Sturgeon, gave retroactive immunity from criminal prosecution, civil liability and disciplinary action to judges and other government employees for actions related to “judicial

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1

benefits”.

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“criminal acts” by establishing retroactive immunity from criminal prosecution.

3 4

Senate Bill “SBX2 11” recognized the LA County payments as

Pursuant to Senate Bill “SBX2 11” (attached to the Petition), Judge Yaffe committed criminal acts by taking the LA County payments.

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Canon 2 of the California Code of Judicial Ethics states that a judge “shall

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avoid impropriety and the appearance of impropriety in all of the judge’s

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activities”. The commentary to this Canon provides an objective test for the

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appearance of impropriety: the question is not whether the judge is actually

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biased, but “whether a person aware of the facts might reasonably entertain a

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doubt that the judge would be able to act with integrity, impartiality and

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competence.” (See, e.g., Hall v. Harker, 69 Cal.App.4th 836 (1999).

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When Judge Yaffe testified in the contempt case, he was testifying on the

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issue of whether he could act as a judge in the contempt case and judge of his

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own illegal and criminal actions in the underlying case of Marina Strand Colony

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II Homeowners Association v. County of Los Angeles, LASC Case No. BS

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109420.

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In such case, he had taken payments from LA County and ordered Fine to

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pay compensatory legal fees and costs to LA County and its co-applicant (Del

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Rey Shores Joint Venture and Del Rey Shores Joint Venture North) without

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notice or Fine being present at the hearing on January 8, 2008, and in violation

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of the California Public Resources Code (see Trial Exhibits 1 and 9, attached to

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the Petition). He did this while he was receiving illegal payments from LA

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County and not recusing himself from the case, as required by Canon 2 of the

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Code of Judicial Ethics, CCP § 170.1 which states that a judge must be

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disqualified if he “has a financial interest in the subject matter of a proceeding or

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a party to the proceeding”, and due process.

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Additionally, the January 8, 2008, Order was void as Fine was neither a

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party nor an attorney for a party on January 8, 2008, having left the case in

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1

October 2007, and a new attorney was representing Marina Strand Colony II

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Homeowners Association thereafter. (See January 8, 2008, Order and Service on

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Fine, Trial Exhibits 1 and 9 attached to Petition.)

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Judge Yaffe was also disqualified from presiding over any actions relating

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to Fine in Case No. BS 109420 due to his failure to respond to a CCP § 170.3

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objection. Such disqualification became effective on April 8, 2008, under CCP §

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170.3(c)4. (See Trial Exhibit 21 attached to Petition.) Any actions both as of

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January 8, 2008, and April 8, 2008, by Judge Yaffe were void, due to lack of

9

jurisdiction.

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In the argument at sentencing, Fine again reiterated that Judge Yaffe did

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not have the right to hear the contempt case as he had taken illegal monies from

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LA County, received immunity, not recused himself, was acting illegally in the

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contempt case by presiding as the judge and was violating the intangible right to

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honest services. 13 USC § 1346. (See March 4, 2009, Transcript, Dkt # 16-5, at

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page 16, line 18, to page 25, line 3.)

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E.

The trial court ignored Judge Yaffe’s conduct.

In the Report and Recommendation (the “Report”) of the U.S. District Court Magistrate Judge (Dkt #25), adopted by the trial court (Dkt #30), at Section III, “State Court Contempt Proceedings”, page 5, line 15, to page 10, line 12, the trial court ignored Judge Yaffe’s conduct. Further, it did not cite to any trial exhibit or trial transcript. The March 27, 2008, Order Striking Notice of Disqualification signed by Judge Yaffe and not served on Fine was not a trial exhibit, nor was the State Bar website, nor the website “richardfinelaw.com”, nor the March 4, 2009, Judgment which itself did not cite to any trial exhibit or transcript. At page 17, line 4 to page 18, line 5, the Report set forth the immunity of Senate Bill “SBX2 11” (at page 17, lines 8 to 11) and conceded that the LA

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1

County payments were unconstitutional (at page 17, lines 17-19 and 22-23).

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The Report then attempted to argue that these acts did not constitute bias,

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without any citation to any code of judicial ethics or case.

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At page 18, line 6, to page 20, line 2, the Report addresses “Judge Yaffe’s

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failure to recuse himself”, but again does not cite to any trial exhibit or trial

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transcript. It further only cites to the March 4, 2009, Judgment which mis-cites

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the January 8, 2008, Order as legally requiring Fine to pay fees when such action

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violated the Public Resources Code. (See Trial Exhibit 1) At page 19, line 21,

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the Report made the disingenuous conclusion that Fine did not have the standing

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to disqualify Judge Yaffe as Fine was not a party to the action or an attorney for

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a party, but Judge Yaffe had the ability to order Fine to pay fees as the attorney

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for the party when he no longer was such (page 19, line 46).

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The section did not address or cite any case law or due process

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requirements related to Judge Yaffe’s obligation to recuse himself from the

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contempt proceeding.

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At page 20, line 3, to page 22, line 28, the Report addresses “Judge Yaffe’s

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personal embroilment”. Again, it does not cite to any trial exhibit or transcript to

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show Judge Yaffe was not “embroiled”. Here, the Magistrate Judge even made

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false statements at page 21, line 24-26 (“the record shows that Judge Yaffe gave

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Petitioner ample warnings about possible contempt sanctions for his actions” –

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no citation to any record) and page 22, lines 23-25 (“… that Judge Yaffe was

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patient and professional while dealing with Petitioner while carrying out his

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judicial duties and vindicating the proper authority of his court.” – no citation to

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any record). Such statements do not exist.

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(The full Objections to the Report are found at Dkt #26.)

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F.

The standard for recusal.

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1

The standard for recusal was recently set forth again in Caperton v. A.T.

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Massey Coal Co., 566 U.S. __ (2009) decided 6/8/09, Slip Opinion, page 6: “… the probability of actual bias on behalf of the judge or decisionmaker is too high to be constitutionally tolerable”, citing Withrow v. Larkin, 421 U.S. 35, 47 (1975).

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In Caperton, supra, Blankenship gave $3 million to the campaign committee of Benjamin, who was a candidate for the West Virginia Supreme Court, before whom Blankenship’s company had a case. Benjamin won the election. He then decided in favor of Blankenship on a 3-2 vote. The U.S. Supreme Court held that Benjamin should have recused himself. It stated at page 16: “… the failure to consider objective standards requiring recusal is not consistent with the imperatives of due process. We find that Blankenship’s significant and disproportionate influence – coupled with the terminal relationship between the election and the pending case – ” “offer a possible temptation to the average … judge to … lead him not to hold the balance nice, clear and true.” “Lavoie, 475 U.S. at 825 (quoting Monroeville, 409 U.S. at 60, in turn quoting Tumey, 273 U.S. at 532).”

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Additionally, there is the principle set forth in In Re Murchison, 349 U.S. 133, 136 (1955) that “no man can be a judge in his own case” and “no man is permitted to judge cases where he has an interest in the outcome”. In Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971) the court held that “… a defendant in criminal contempt proceedings should be given a public trial before a judge other than the one reviled by the contemnor.” The court also stated at 466: “The vital point is that sitting in judgment on such misbehaving lawyer the judge should not himself vent to personal spleen or respond to personal grievance” (quoting from Offut v. United States, 348 U.S. 11, 14 (1954).

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G.

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This was a 16-count contempt case with one criminal count under B&P

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Recusal was mandated.

Code § 6126. (See Order to Show Cause attached to Petition.)

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1

The charges were all based upon statements allegedly made in documents

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filed in the Marina Strand case or before Commissioner Murray Gross. The

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specific charges included attacking the integrity of the court (Judge Yaffe), the

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LA Superior Court, and the State Bar; failing to answer questions at a judgment

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debtor’s examination to enforce Judge Yaffe’s void order, etc.

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It is undisputed that Judge Yaffe received unconstitutional and illegal

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criminal payments from LA County while he presided over the Marina Strand

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case and the contempt case. Such payments were approximately $46,300 per

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annum, or approximately 28% of his $178,800 annual state salary.

It is

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undisputed that he did not disclose such payments on his Form 700 Statement of

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Economic Interests, that he did not have an employment contract or service

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agreement with LA County, and that he could not remember any case he decided

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against LA County in the last five years.

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It is undisputed that he ordered Fine to pay attorney’s fees and costs to LA

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County and its co-applicant, Del Rey Shores, without notice to Fine and without

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Fine being present at the January 8, 2008, hearing, in violation of the Public

17

Resources Code, and without jurisdiction over Fine. It is undisputed that such

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order was void.

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It is undisputed that Judge Yaffe was disqualified from any actions over

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Fine in the Marina Strand case after he failed to respond to a CCP § 170.3

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objection filed and served upon him on March 28, 2008. Pursuant to CCP §

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170.3(c)4, he was disqualified on April 8, 2008, and any action thereafter was

23

void.

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It is undisputed that Commissioner Gross was neither a “temporary judge” nor a “referee” in the Marina Strand case. It is undisputed that Judge Yaffe refused to recuse himself in the contempt trial despite demand that he do such by Fine.

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-8-

Based upon the undisputed facts and the holdings of Caperton, Murchison,

1 2

Mayberry and Offut, Judge Yaffe must recuse himself.

3

The illegal and criminal LA County payments to Judge Yaffe of 28% of his

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state salary while he is deciding a contempt proceeding to enforce a void order

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to pay money to LA County and its co-applicant made while he received such

6

payments mandate his recusal under Caperton. The same payments and his action of judging his own illegal and criminal

7 8

acts mandates his recusal under Murchison.

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Fine’s attacking his integrity regarding such payments, the criminal charge

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in the case and his “embroilment” mandate his recusal under Mayberry and

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Offut.

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Finally, the ambiguity of his acting as a judge, witness and “prosecutor”, as

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to those charges that the attorneys for Del Rey Shores could not prosecute; i.e.,

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their own cause where they were the witnesses and testified as to information

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pertinent to his “decision” of not holding LA County liable for an unlawful vote

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on the EIR and no financial benefit to LA County under the proposed project,

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mandated recusal under Murchison.

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III.

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IMMEDIATE ACTION IS NECESSARY Fine has been unlawfully incarcerated for almost 6 months, since March 4,

2009. He is suffering from a staph infection, back pain, and swollen feet, ankles and legs. He is also suffering financial hardship and the loss of his home due to the inability to earn a living.

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CONCLUSION As shown in the Motion, Supplement to Motion, documents judicially noticed and this Request, Fine will prevail on the appeal.

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1 2

Fine respectfully requests that the Request be granted forthwith and since there was not any opposition, the writ be granted forthwith.

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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am _________________. My mailing address is _____________________________. On August ____, 2009, I served the foregoing document described as REQUEST FOR IMMEDIATE REVIEW AND RECONSIDERATION OF SUMMARY DENIAL OF EMERGENCY MOTION TO FREE APPELLANT PENDING APPEAL WITHOUT SURETY … on interested parties in this action by depositing a true copy thereof, which was enclosed in a sealed envelope, with postage fully prepaid, in the United States Mail, addressed as follows: Aaron Mitchell Fontana Paul B. Beach LAWRENCE BEACH ALLEN & CHOI, PC 100 West Broadway, Ste. 1200 Glendale, CA 91210-1219

Kevin M. McCormick BENTON, ORR, DUVAL & BUCKINGHAM 39 N. California Street P.O. Box 1178 Ventura, CA 93002

Clerk, U.S. District Court 312 N. Spring St., Rm G-8 Los Angeles, CA 90012 I certify and declare, under penalty of perjury under the laws of the United States of America and the State of California, that the foregoing is true and correct. Executed on this _____ day of August, 2009, in the city of _______________, California. ____________________________________ Signature ____________________________________ Print Name