9th Circuit Appeal - Dkt 37 - Consolidated Reply Brief

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD I. FINE, Appellant and Petitioner,

Case No. 09-56073 D.C. No. 2:09-cv-01914 JFW (CW)

vs. SHERIFF OF LOS ANGELES COUNTY, et al, Appellees and Respondents

APPELLANT’S CONSOLIDATED REPLY BRIEF IN RESPONSE TO APPELLEES’ TWO ANSWERING BRIEFS AND SUPPLEMENTAL EXCERPT OF RECORD

RICHARD I. FINE Prisoner ID # 1824367 c/o Men’s Central Jail 441 Bauchet Street Los Angeles, CA 90012 Pro Se

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TABLE OF CONTENTS

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I.

Prefatory Statement – Overview of Case .......................................................................... 1

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A. “Due Process v. Corruption” .......................................................................................1

5 6

B. The Criminal LA County Payments and Their Effect ................................................5

7

C. The Corrupt Judges Will Stop At Nothing to Destroy Fine ......................................10

8

D. Action Requested ......................................................................................................14

9

II.

Neither Respondent Sheriff Nor the LA Superior Court and Judge Yaffe are Parties to this Appeal........................................................................................................................17

III.

Respondent Sheriff’s Answering Brief is Frivolous and Filed to Harass and Oppress Appellant ..........................................................................................................................19

IV.

The Answering Brief of the LA Superior Court and Judge Yaffe is Frivolous, Makes False Statements, Deliberately Misleads the Court and is Filed to Harass and Oppress Appellant ..........................................................................................................................14

V.

Fraudulent Statements in Answering Briefs ...................................................................21

VI.

Incontrovertible and Uncontested Facts .........................................................................34

10 11 12 13 14 15 16 17

VII. Argument ........................................................................................................................43 18

A. Judge Yaffe’s Criminal Activities Mandate Recusal ...............................................43

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B. The 27% of State Salary Payment by LA County Mandates Recusal ......................44

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C. Judge Yaffe Must Recuse Himself Because He Is Judging His Own Act of Charging Fine With a Crime and His Own Act of Ordering Fine to Pay Money to LA County While He was Taking Payments From LA County ...............................47

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D. Judge Yaffe Was Embroiled .....................................................................................49

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E. The LA Superior Court Brief’s Disqualification Argument Is A Sham ...................50 25 26 27

VIII. Conclusion ...................................................................................................................... 52 IX.

Certificate of Compliance............................................................................................. End

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1 2 3 4 5 6

TABLE OF AUTHORITIES Precedent Erreur ! Aucune entrée de table de références trouvée. Underlying Erreur ! Aucune entrée de table de références trouvée.Erreur !

Aucune entrée de table de références trouvée.Erreur ! Aucune entrée de table de références trouvée.Erreur ! Aucune entrée de table de références trouvée.

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Erreur ! Aucune entrée de table de références trouvée. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1

I.

Prefatory Statement – Overview of Case.

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A. “Due Process v. Corruption”. 3

This case is simple. Los Angeles County (“LA County”) Superior Court

4 5

Judge David P. Yaffe (“Judge Yaffe”) took criminal payments from LA County,

6 7 8

a party before him. He did not disclose the payments, made orders in LA County’s favor, and then judged his own actions in a later contempt case.

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There is no question that he violated due process and should have recused

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himself under controlling Supreme Court cases.

12

This appeal has now “morphed” into the writ proceeding which should

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have occurred in the District Court, but did not happen. The reason it did not happen is that the District Court, the Respondent Sheriff and the LA County

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Superior Court and Judge Yaffe deliberately violated 28 U.S.C. § 2243. If such section had been followed, the writ would have been granted on April 9, 2009, and Appellant Richard I. Fine (“Fine”) would have been released from the LA

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County Jail. Instead, Fine has now been unlawfully incarcerated since March 4, 2009.

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The Petition for Writ of Habeas Corpus (“Petition”) was filed on March 20, 2009. Under § 2243, an order to show cause (“OSC”) had to be issued to the

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Respondent Sheriff “forthwith” and “returned within three days unless for good 27 28

cause additional time, not exceeding twenty days, is allowed.”

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1

Under § 2243, the Respondent Sheriff is required “to show cause why the

2 3

writ should not be granted.” In this case, the District Court violated the time requirements and did not

4 5

issue the OSC until April 7, 2009. (See USDC Dkt. # 6.) The Respondent

6 7

Sheriff never answered.

8

The Respondent Sheriff’s counsel stated in a declaration to the court that

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he had contacted the counsel for the LA Superior Court and Judge Yaffe “who knows of the petition and intends to respond if asked to do so by this court.” (See USDC Dkt. # 12, page 10, lines 3-4.) The LA Superior Court and Judge

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Yaffe were not parties to the case under § 2243 and were not named as “real parties in interest” in Respondent Sheriff’s Notice of Interested Parties. (See

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USDC Dkt. # 11.) The admission of counsel for Respondent Sheriff shows that from the outset of this case, Respondent Sheriff and the LA Superior Court and

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Judge Yaffe intended to deceive and defraud the District Court and this Court by violating § 2243.

22

The LA Superior Court and Judge Yaffe, despite their knowledge of the

23 24 25

case, never “showed cause why the writ should not be granted” in the District Court.

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Additionally, they and Respondent Sheriff did not oppose Fine’s Emergency Motion to Grant the Writ of Habeas Corpus Based Upon the

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1

Opening Brief filed in this Court (9th Cir. Dkt. # 22 and 24).

They and

2 3 4 5

Respondent Sheriff did not oppose Fine’s two Emergency Motions to be released from “coercive incarceration pending the decision on appeal” and one Motion for Reconsideration.

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They deliberately decided to violate the law and avoid “showing cause why the writ should not be granted.” They knew that Judge Yaffe had violated

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due process. Now they have filed their “Answering Briefs”. Respondent Sheriff again refused to “show cause why the writ should not be granted.”

13 14 15

The LA Superior Court and Judge Yaffe do not contest that Judge Yaffe took criminal payments from LA County, a party before him, in the case of

16 17 18

Marina Strand Colony II Homeowners Association v. County of Los Angeles, LA Superior Court case no. BS109420, made orders in LA County’s favor and

19 20 21 22

“judged his own actions” in a subsequent contempt proceeding. On January 8, 2008, Judge Yaffe ordered Fine to pay attorney’s fees and costs to LA County and its co-applicant for an EIR, and denied a Motion against them for sanctions

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for failing to timely file the “record”. (See Supplemental Excerpt of Record (“SER”) SER0022-0026).

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Instead, as shown herein, the LA Superior Court and Judge Yaffe made false and misleading statements, produced documents for the first time (most of

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which were not part of the contempt proceeding), and attempted to destroy

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Fine’s character and reputation. One thing has become eminently clear from their attack. The LA Superior Court has been on an extended campaign to destroy Fine. The reason for such

6 7 8

campaign is Fine’s exposure of the corruption in the LA Superior Court caused by its judges receipt of the criminal LA County payments and Fine’s fight to

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remove that corruption by filing Federal civil rights lawsuits to enjoin the payments and restore due process. The LA Superior Court complained to the California State Bar, who

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“disbarred” Fine for “moral turpitude” for bringing these Federal civil rights cases and challenging judges who took these criminal payments.

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The California Supreme Court refused to review the State Bar action. Four of the justices (Chin, Corrigan, Kennard and Moreno) received immunity

19 20 21 22

from criminal prosecution for receiving county payments while they were Superior Court judges, and two justices (Chief Justice George and Justice Baxter) were on the Judicial Council of California that wrote the legislation that

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gave the judges the immunity for taking the criminal payments. The corruption of the criminal payments had so corrupted the California

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judicial system that the First Amendment and due process was emasculated to achieve the disbarment of Fine.

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The LA Superior Court’s vindictiveness against Fine has now manifested

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itself with the unlawful “coercive incarceration” of Fine in this case. The District Court has embraced the corruption and rejected due process

4 5

by not even referring to the leading Supreme Court cases in its decision.

6

Fine had specifically made the District Court aware of Caperton, et al. v.

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A.T. Massey Coal Co., Inc., et al, 566 U.S. ___ (2009) decided June 8, 2009. It

9 10 11

didn’t matter. The District Court chose to embrace crime and corruption over the Constitution and due process.

12

It further embraced Judge Yaffe’s deliberate “lies” about his own conduct.

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In his March 27, 2008 Order (SER0168-0170) (which was not an exhibit at the contempt trial), Judge Yaffe refers to a March 18, 2008 order in which he claims

16 17 18

to have stricken a February 19, 2008 Motion because Fine was not a party or an attorney for a party, and to have specifically admonished Fine, stating that the

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March 18, 2008 Strike Order could only be challenged by a writ of mandate. (Id.) A review of the docket sheet for the case of Marina Strand Colony II Homeowners Association v. County of Los Angeles, LA Superior Court case no.

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BS109420, shows that no March 18, 2008 order exists. A copy of the relevant portion of the docket sheet is attached hereto. The District Court relied on this

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false information to dismiss the writ. (See USDC Dkt. # 25-2, page 19, lines 712.)

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This case presents the “age-old choice” for this Court:

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“Choose to obey the Constitution and enforce due process or choose to endorse crime and corruption.” Obeying the Constitution and enforcing due process may engender the

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enmity of friends in the California judicial system who are earning approximately $250,000 as LA Superior Court judges and enjoy retroactive

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immunity from criminal prosecution, civil liability and disciplinary action for the criminal activity in which they have engaged by taking “judicial benefits”. Endorsing crime and corruption will further nurture the “bonds of

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fellowship” amongst the Federal and State judiciary while sounding the death knell to the abolition of crime and corruption from the California judiciary.

16 17

B.

The Criminal LA County Payments and Their Effect.

18

Judge Yaffe took criminal payments from LA County. Senate Bill SBX2-

19 20 21 22

11 provides him with retroactive immunity under California law. He does not have such under Federal law. The payments are $46,363 per year, or 27% of his state salary. They are

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paid in addition to his state salary, which today is approximately $179,000 per year plus benefits. (The payments have reportedly recently been increased to

26 27

approximately $57,000 per year, according to area newspaper articles.)

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Judge Yaffe is a state-elected judge. He does not have any employment

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contract or arrangement to provide services, judicial or otherwise, with LA County. He has concealed the LA County payments by not reporting them on his Form 700 Financial Interest Statement, required to be filed each year. He

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has not deposited the payments in his political campaign fund to be used for his re-election campaigns.

(See USDC Dkt. # 1, Reporter’s Transcript dated

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December 22, 2008.) LA County offers the payments to all sitting LA Superior Court judges “to attract and retain qualified judges to serve in this [LA] county”. The payments

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are not made to “non-judges” who are candidates for a LA Superior Court position in an election.

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The payments began in the late 1980s. They consist of “Mega-Flex” benefits, a professional development allowance and contributions to a 401(k)

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retirement plan. The payments can be taken in cash instead. In fiscal year 2007, LA County paid approximately $21.5 million to the LA Superior Court judges. It is estimated that LA County has paid approximately $300 million since the

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inception of the program. Both LA County and the LA Superior Court knew that the payments were

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illegal from the outset. A November 10, 1988 letter from the LA County Counsel to the County Clerk / Executive Officer of the LA Superior Court stated

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that Article VI, Section 19, of the California Constitution requires that the

2 3 4 5

compensation of the judges must be prescribed [set] by the state legislature. The duty could not be delegated. The letter informed them that no statute authorized the payments.

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The LA County payments were held to violate Article VI, Section 19, in

8

the case of Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (October 10,

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2008) rev. denied December 23, 2008. The case also held that the legislature’s duty to prescribe compensation is not delegable and that the LA County payments are “compensation”.

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In reaction to Sturgeon, supra, the Judicial Council of California drafted Senate Bill SBX2-11. The Judicial Council of California is part of the judiciary

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under the California Constitution (Article VI, Section 6). Its chairman is the Chief Justice of the California Supreme Court.

Senate Bill SBX2-11 was

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enacted on February 20, 2009 and became effective on May 21, 2009. Senate Bill SBX2-11 affirmed the criminality of the LA County payments. It gave retroactive immunity from criminal prosecution, civil liability

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and disciplinary action to judges and other government officials and employees “because of benefits provided to a judge under official action of a governmental

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entity prior to the effective date of this act on the ground that those benefits were not authorized by law.”

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1

The criminal “judicial benefits” were so wide-spread that all but three

2 3 4 5

counties were providing such. The immunity affected judges at all levels of the California judiciary, as it immunized every person who had received criminal payments while a Superior Court judge.

As shown above, the immunity

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included four justices of the California Supreme Court. Additionally, two of the justices were on the Judicial Council of California when it wrote Senate Bill

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SBX2-11.

Thus six of the seven California Supreme Court justices were

encompassed. The immunity was necessary to protect judges and LA County from

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bribery and corruption charges. Annual Litigation Cost Reports from the LA County Counsel to the LA Board of Supervisors showed that for fiscal years

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2005-2006 and 2006-2007, not one person won a case against LA County when a LA Superior Court judge made the decision. For fiscal year 2007-2008,

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possibly two cases were won, but they could have been jury verdicts. Judge Yaffe testified at the contempt proceeding in this case that other than one (minor) decision, he could not remember any case that he decided

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against LA County in the previous three years. (See USDC Dkt. # 1, Reporter’s Transcript dated December 22, 2008.)

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1 2

C.

The Corrupt Judges Will Stop At Nothing to Destroy Fine.

Fine is the first lawyer in California history to be ”disbarred” for being

3 4 5

right in his Federal civil rights lawsuits filed against the LA Superior Court judges. The State Bar called the lawsuits which challenged the LA County

6 7 8 9

payments to the LA Superior Court judges “frivolous”. It referred to challenges of judicial officers who had received such in the same manner. This was done during the time that the Sturgeon case was being litigated, and three weeks

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before the Court of Appeal held the LA County payments to violate Article VI, Section 19, of the California Constitution. These were the exact grounds alleged

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by Fine in his “frivolous” Federal civil rights complaints. The complaints also alleged that the payments violated the First and Fourteenth Amendments.

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By the time the California Supreme Court denied Fine’s Petition for Review, the California Supreme Court had also denied review in the Sturgeon case, thereby upholding the appellate court.

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The California Supreme Court had thus disbarred Fine for “moral turpitude” for bringing the “frivolous” case with claims identical to the winning

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claims in the Sturgeon case. (A denial of review automatically makes the State Bar recommendation of disbarment the order of the California Supreme Court.) This action by the California Supreme Court was a direct violation of the First,

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Fifth and Fourteenth Amendments. This action was also diametrically opposite

2 3 4 5

to their denial of review in Sturgeon. The only plausible explanation is that the corruption engendered by the LA County and other county payments was too great, and the hatred of Fine was

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too great, for the Supreme Court to overcome. Fine was the first and only lawyer to expose the corruption. Fine exposed and challenged the payments in

9 10 11 12

court briefs as early as 2000-2001, in Federal civil rights suits in 2002, and in court in challenges in 2002 and 2004. The Sturgeon case was filed in April 2006, two months after the State Bar

13 14 15

filed its Notice of Disciplinary Charges (“NDC”) against Fine. Based upon the filing of the Sturgeon case by Judicial Watch, a well-respected public interest

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law firm, using the same Article VI, Section 19, charge as Fine had been espousing, the State Bar knew that its NDC was a sham. Further, all counts in

19 20 21 22

the NDC were solely based on documents filed in the courts. This, alone, violated the First Amendment. The “complaining party” to the State Bar was LA Superior Court

23 24 25

Commissioner Bruce E. Mitchell. He had been a defendant in one of the Federal civil rights cases to enjoin the LA County payments. He had taken the County

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payments. The State Bar did not disclose his name and filed a false declaration by Gerald E. Magnassun stating that the State Bar had instituted the

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1

investigation that led to the NDC. It was concealing its connection with the LA

2 3 4 5

Superior Court. As shown infra, the purposes of the State Bar action were to protect the judges who were receiving the criminal payments and to remove Fine from cases

6 7 8

against LA County and its co-defendant, developer Jerry B. Epstein. Their lawyers, Sheldon H. Sloan (representing Epstein) and Jeffrey Bleich of Munger,

9 10 11 12

Tolles and Olson (representing LA County) were successive presidents of the State Bar and members of its Board of Governors at the inception of and during Fine’s case. Additionally, Laura Chick, former LA City Councilperson and then

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LA City Controller, was adverse to Fine in another case and became a member of the State Bar Board of Governors.

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The corruption at the State Bar and the California Supreme Court related to the criminal county payments and, in particular, the criminal LA County

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payments, clearly related to Fine’s disbarment. Fine’s disbarment was only one of a number of vindictive acts by the LA Superior Court and others who received the criminal payments. As shown

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herein, in 2001, Commissioner Mitchell falsely held Fine in contempt. The charge was upheld in the California Court of Appeals by Justices Boren, Nott

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and Doi Todd.

However, Justice Doi Todd did not disclose that she had

received the criminal payments, and her actions were concealed by Justices

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1

Boren and Nott. They were also the judges in a case against LA County being

2 3 4 5

simultaneously heard by them where Fine was counsel. One day after they upheld the contempt, Doi Todd was exposed in a Federal civil rights suit challenging the payments. Meanwhile, the writ of habeas corpus progressed to

6 7 8

the California Supreme Court, where it was denied. Subsequently, the writ of habeas corpus was filed in the U.S. District

9 10 11 12

Court and Commissioner Mitchell voided and annulled the contempt order after an OSC was issued. Mitchell, Doi Todd, Boren and Nott were named in a second Federal civil

13 14 15

rights suit challenging the LA County payments as violating Article VI, Section 19, and the First and Fourteen Amendments.

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Justices Boren, Nott and Doi Todd refused to void their published decision affirming the now-void 2001 contempt decision.

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In 2003, Mitchell instituted another contempt proceeding. A contempt judgment was obtained before Judge Czuleger. Lawsuits occurred. In 2006, Judge Czuleger did not respond to a CCP § 170.3 objection which showed a

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continuing fraud on the court by Mitchell and Czuleger under which Mitchell falsely claimed to be a temporary judge in the “Di Flores” case to obtain the

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jurisdiction of the court for the contempt proceeding, and later approved the taking of $80,000 from the Di Flores class settlement fund to purchase all of the

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1

claims of Fine against “Bruce E. Mitchell …” and “other judicial officers,”

2 3 4 5

including Judge Czuleger. The disqualification voided the 2003 contempt. The present incarceration is the third unlawful contempt by the LA

6 7 8

Superior Court against Fine. All of these actions have been taken by recipients of criminal payments.

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In all the cases, the LA Superior Court, its judges, Bruce E. Mitchell and Justices Boren, Nott and Doi Todd have been represented by their counsel in this case, Benton, Orr, Duval and Buckingham.

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Those representing the cancer of corrupt criminal payments in the California judicial system have used every means available to them and violated

16 17 18

every law “inhibiting” them in their attempts to destroy Fine. D.

Action Requested.

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Fine requests that the writ be granted. As shown herein, Supreme Court precedents mandate that granting of the writ. Equally important, if not more so, the integrity and the respect of this Court mandates that the writ be granted.

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As no time in the history of the United States has mass retroactive immunity from criminal prosecution been granted, much less legislated and

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enacted. To have done this for judges is even more horrific.

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1

California has formally established its judiciary as a criminal class and

2 3 4 5

enterprise. A California judge is now an international laughingstock. He is a criminal wearing judicial robes. The United States has lost the moral high ground of exporting “our

6 7 8

judiciary” as an example to the world. The international response will be “we know how to have criminals sitting as judges. We don’t need to learn from the

9 10 11 12

U.S. and California.” After the enactment of the immunity, California and the U.S. became the example of how to institutionalize corruption and pass laws that give

13 14 15

retroactivity immunity from criminal prosecution. It is widely anticipated that the next law to be written by the Judicial Council, if the current county “judicial

16 17 18

benefits” allowed by Senate Bill SBX2-11 are not struck down as unconstitutional, will be “current immunity” from criminal prosecution, civil

19 20 21 22

liability and disciplinary action for current county payments to judges. This is probably the most important case to face this Court. The decision in this case determines if California, and its 38 million residents, will have a fair

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judicial system. The California judiciary, legislature and Governor have decided that they shall not.

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1

It is no wonder the judges wanted to destroy Fine. He was, and is, the

2 3 4 5

only person opposing California’s loss of an honest judicial system to judges receiving criminal county payments who won’t recuse themselves. However, supporting Fine are the millions of Californians and others

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across the world who want an honest judiciary, due process and fair trials. The time of sophistry and excuses is now over.

The California

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Government has “sold out” the People and the judicial system by giving retroactive immunity. Due process is now officially dead in California. California has lost its judicial system.

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Only this Court can resurrect due process and the judicial system by granting the writ.

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Fine has paid a heavy price to restore due process by honoring his sworn oath to protect and defend the Constitution. He has been “disbarred,” he has

19 20 21 22

been “coercively incarcerated,” he has lost his means to earn a livelihood and his “property.” All of these have been taken by criminal judges acting in violation of the First, Fifth and Fourteenth Amendments. Their purpose is, and was, to

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preserve their criminal gains by destroying Fine and demonstrate to any other lawyer the effects of challenging them.

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This Court has now seen by the actions of Judge Yaffe and his “lies,” and the actions of the California Supreme Court of upholding Sturgeon while

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1

disbarring Fine on the same issue, how pernicious the effects of the criminal

2 3

payments have become. To not grant the writ will only encourage more of such conduct and

4 5

continue the march of the California’s judiciary down the road to perdition.

6

8

Neither Respondent Sheriff Nor the LA Superior Court and Judge Yaffe are Parties to this Appeal.

9

On April 7, 2009, Respondent Sheriff was ordered to file an answer or

7

10

II.

motion to dismiss to the Petition for Writ of Habeas Corpus (“Petition”). (See

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USDC Dkt. # 6.) On April 21, 2009, Respondent Sheriff filed a Motion to Dismiss or, in the Alternative, Request That This Court Direct the Real Parties

14 15 16

in Interest to Respond to the Petition. (See USDC Dkt. # 12.) Respondent Sheriff had not designated the LA Superior Court, Judge Yaffe or anyone else as

17

“real parties in interest” on his Notice of Interested Parties. (See USDC Dkt. # 18 19 20

11.) The Motion was denied as moot on June 29, 2009. (See USDC Dkt. # 30.) Respondent Sheriff never filed an answer to the Petition, thereby violating

21 22 23

the April 7, 2009 Order and violating 28 U.S.C. § 2243 – “Respondent to show cause why the writ should not be granted”. By failing to answer, Respondent

24 25 26 27

Sheriff defaulted and was not a party to the case any longer. The LA Superior Court and Judge Yaffe were not original parties to the case as allowed by 28 U.S.C. § 2243 – “the writ or order to show cause shall be

28

directed to the person having custody of the person detained” -- and 28 U.S.C. § -- 17 --

1

2254. They did not move to intervene in the case in the District Court. They

2 3 4 5

filed a limited response on May 1, 2009 (USDC Dkt. #s 15 and 16) which did not answer the Petition as required by the April 7, 2009 Order or “show cause why the writ should not be granted” as required under 28 U.S.C. § 2243. They

6 7 8

were not parties to the case. Even if they could be considered “intervenors,” they violated the April 7, 2009 Order and 28 U.S.C. § 2243 and defaulted. They

9 10 11 12

are not part of the appeal. Since they violated the April 7, 2009 Order and 28 U.S.C. § 2243 in the District Court, they cannot oppose the writ for the first time in the appellate

13 14 15

court. Further, and more telling, each of them did not oppose the Emergency

16 17 18

Motion to Immediately Grant the Writ of Habeas Corpus Based Upon the Opening Brief (9th Circuit Dkt. # 22). Such Motion was filed on September 17,

19 20 21 22

2009. The Opening Brief was served on August 27, 2009. They had 28 days from the time the Opening Brief was served until the time the opposition to the Motion was due (September 24, 2009) to determine not to oppose such and

23 24 25

thereby consent to immediately grant the writ based upon the Opening Brief. They elected to do such.

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They are not parties to the appeal by their own actions.

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1 2

III. Respondent Sheriff’s Answering Brief is Frivolous and Filed to Harass and Oppress Appellant.

3

Respondent Sheriff’s Answering Brief does not respond to the Opening

4

Brief. It is a repetition of Responding Sheriff’s “Motion to Dismiss or, in the 5 6 7

Alternative, Request That This Court Direct Real Parties in Interest to Respond to Petitioner’s Petition for Writ of Habeas Corpus” filed in the District Court.

8 9 10

(See USDC Dkt. # 12.) Such Motion was dismissed as moot. (See USDC Dkt. # 30.) Respondent Sheriff never answered the Petition or produced “pertinent

11 12 13 14

documents” as ordered by the Magistrate Judge on April 7, 2009. (See USDC Dkt. # 6.) Respondent Sheriff never “show[ed] cause why the writ should not be granted” as required under 28 U.S.C. § 2243.

15

Respondent Sheriff did not oppose the Emergency Motion to Immediately

16 17

Grant Writ of Habeas Corpus Based Upon Opening Brief, or any motion to free

18 19 20

Fine. Respondent Sheriff’s Answering Brief is a frivolous document which

21

repeats a motion which has already been denied, and has been written to harass 22 23 24

Appellant and delay the proceedings of this Court by requiring it to proceed with the remainder of the appeal and keep Appellant in coercive incarceration, when

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the case could now be over and the writ granted based upon the Opening Brief.

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1 2 3 4 5

IV.

The Answering Brief of the LA Superior Court and Judge Yaffe is Frivolous, Makes False Statements, Deliberately Misleads the Court and is Filed to Harass and Oppress Appellant. The LA Superior Court and Judge Yaffe did not move to intervene in the

District Court.

They filed a limited “Response” stating that Fine was in

6 7 8 9

“coercive” incarceration. They did not answer the Petition, nor did they “show cause why the writ should not be granted”. (See USDC Dkt. # 15.) The only documents that they submitted which were part of the contempt proceeding were

10 11 12

the Remand Order and March 4, 2009 Judgment (USDC Dkt. # 16-2) and the transcript of the March 4, 2009 sentencing hearing (USDC Dkt. # 16-5).

13 14 15

They did not oppose the Emergency Motion to Immediately Grant Writ of Habeas Corpus Based Upon Opening Brief. They did not oppose any Motion to

16 17 18 19

free Fine during the appeal. The LA Superior Court and Judge Yaffe’s Answering Brief relies on a Supplemental Excerpt of Record (“SER”) which contains documents which

20 21 22

were not exhibits in the contempt proceeding and which were not part of the District Court record.

To the extent it is doing such, it is making false

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statements as to facts and deliberately misleading the Court. The only records from the contempt proceeding were attached to the Petition. They are set forth in the Emergency Motion to Strike the Supplemental Excerpt of Record. The

27 28

only additional documents from the contempt proceeding are the Remand Order

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1

(the first page of USDC Dkt. # 16-2) and the transcript of the March 4, 2009

2 3 4

hearing (USDC Dkt. # 16-5). Both of these are included in the District Court record which Appellant designated in full as Appellant’s Appendix.

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V.

Fraudulent Statements in Answering Briefs. The Statement of Facts submitted in the Answering Briefs of Respondent

Sheriff, LA Superior Court and Judge Yaffe contain numerous false statements

9 10 11

made to deliberately mislead this Court.

Further, such are based upon

documents which were not exhibits at the contempt proceeding nor part of the

12 13 14 15

record before the District Court. The only documents in the SER which were exhibits or parts of exhibits in the contempt proceeding are Tab #s “4” and “5” (referred to in Tab “7”), “7”

16 17 18

(this “7” is the same as USDC Dkt. # 1, Trial Ex. 1A), and Tab 14 (Tab 14 is the same as USDC Dkt. # 1, Judgment.

This is the same as Tab “1” of the

19 20 21 22

Respondent Sheriff’s “ER” which also includes the Remand Order.

The

Remand Order is Tab 15 of the SER.). The Respondent Sheriff, the LA Superior Court and Judge Yaffe knew that

23 24 25

they were deliberately misleading, making false statements to this Court and presenting documents which were not part of the contempt proceeding or the

26 27

District Court record. They did it anyway.

28

-- 21 --

1

This conduct is consistent with that of Judge Yaffe in this case, who has

2 3 4 5

taken criminal payments from LA County who was a party before him, not disclosed such, not recused himself, made rulings in their favor, judged his own conduct and incarcerated their and his opponents when his illegal conduct was

6 7 8

challenged. Respondent Sheriff falsely states at Footnote 1 of his brief (“Sheriff’s

9 10 11 12

Brief”) that “Appellant did not provide a record in this matter”. Respondent Sheriff knew that Fine had designated the District Court record in its entirety as his Appendix.

13 14 15

Respondent Sheriff also falsely relies upon the Magistrate Judge’s Report and Recommendation for his statement of facts, knowing that such is taken from

16 17 18

the Judgment which was not supported by reference to many facts set forth in the Judgment.. In fact, the Addendum to Page 8 of the Petition (USDC Dkt. # 1)

19 20 21 22

showed that the facts of the Yaffe Judgment were false at most every line. The Addendum to Page 8 was not challenged in the District Court and no hearing occurred to dispute the facts set forth in the Petition.

23 24 25

Respondent Sheriff knew he could not set forth the “facts” from the Yaffe Judgment just because they were wrongfully adopted by the Magistrate Judge

26 27

and the District Court in violation of due process and 28 U.S.C. § 2243.

28

-- 22 --

1

The LA Superior Court and Judge Yaffe make the following false and

2 3 4

misleading statements of fact without any support in the record: 1.

5 6

Truth: No “repeated, concerted and frivolous tactics”, and the Judgment is void. (See infra.)

7 8

2.

9

Footnote 3: Award of attorney’s fees and costs is mandatory in the underlying matter pursuant to CCP § 473(b). Truth: Not so for excusable neglect, the permissive part of CCP § 473(b). (See USDC Dkt. # 1, Trial Ex. 1A, SER 0039-0076.)

10 11 12

Page 3, lines 13-15: “This matter concerns repeated, concerted and frivolous tactics by a now state-court disbarred attorney to avoid satisfying a valid judgment awarding attorney’s fees and costs.”

3.

13

Footnote 3: Ultimate award was in favor of Del Rey Shores, not the County of Los Angeles. Truth: Award was to both (see SER 0022-0026); they then had to submit their individual fees and costs. LA County was the party in the lawsuit. LA County and Del Rey Shores Joint Venture, and Del Rey Shores Joint Venture North (collectively “Del Rey Shores”, a business entity of developer Jerry Epstein) were co-applicants for an EIR to re-develop an apartment complex in Marina del Rey, California, on land owned by LA County and leased to Del Rey Shores. They were “one and the same”.

14 15 16 17 18 19

4. 20 21

Truth: The whole contempt case relies upon Judge Yaffe having received criminal payments from LA County and then making the January 8, 2008 Order for Fine to pay attorney’s fees and costs to LA County and its coapplicant, Del Rey Shores. But for this Order, Del Rey Shores would not have submitted fees and costs, would not have sought to enforce such and there would not have been a contempt proceeding. Nor would Judge Yaffe have judged his own actions, and Fine would not be incarcerated.

22 23 24 25 26 27 28

Page 4, Footnote 4: “The basis of the finding of the civil contempt was not related to Fine’s challenges based upon the payment of local judicial benefits …”

5.

Page 4, lines 6-9: Fine only challenges judicial officers who received benefits when they rule against Fine or his clients and does not challenge them when he prevails. -- 23 --

1

Truth: Fine challenges when he becomes aware of the benefits. In this case, the February 19, 2008 Motion to Disqualify LA County judges who received LA County money was based upon the recusal of the LA County Superior Court bench in the Sturgeon case (see SER0039-0076), and the CCP § 170.3 Objection to Judge Yaffe was based upon his March 20, 2009 admission that he received LA County payments (see SER0062, lines 1819).

2 3 4 5 6

In Fine’s State Bar disbarment case, the “Lewin” and “Silva” complaints challenging the LA County payments as a violation of Article VI, Section 19, of the California Constitution and the First and Fourteenth Amendments had documents showing the payments from LA County to the judicial officers attached to the complaint. The “Silva” complaint was a Federal civil rights class action suit with a defendant class of judicial officers who received payments from LA County and had LA County cases before them. Such suit sought injunctive relief to stop the LA County payments to these judicial officers. (The State Bar held the filing of the suit to be an act of “moral turpitude”.) The LA Superior Court and Judge Yaffe have not shown any cases where Fine has opposed the County, known that the judge has received LA County payments, and prevailed. Such cases are rare for anyone. Literally no one prevails against LA County when a LA Superior Court judge makes the decision. (See SER0096, line 4, through SER0097, line 1; SER0140-0147; SER0151.)

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

6.

Page 4, line 9, through page 5, line 1: “Fine was ultimately disbarred by the California Supreme Court for this repetitive and improper conduct”. Truth: The underlying story of the disbarment was that it was purely financial to stop Fine from interfering with the criminal LA County payments and to benefit members of the State Bar Board of Governors and their clients, including Jerry Epstein of Del Rey Shores, who currently had two cases against Fine and who would benefit if he were disbarred and removed from the cases. (See SER0097, line 2, through SER0110, line 10; SER0148-0166.) That is what happened on October 12, 2007 when the State Bar ordered Fine “involuntarily inactive,” causing him to leave the Marina Strand case and his clients to find a new lawyer. (SER0012-0019) This created an immediate benefit to Epstein and Del Rey Shores in the Marina Strand case and in another case, Coalition to Save the Marina, et al, v. County of Los Angeles and Marina Pacific Associates, et al. It also -- 24 --

1 2 3 4 5 6 7

benefited LA County in four other cases, consolidated under Coalition to Save the Marina, et al, v. County of Los Angeles, et al, and benefited the City of Los Angeles and Playa Vista in the case of Etina, et al, v. City of Los Angeles, et al. This case also involved a State Bar Board of Governors member. By making Fine inactive and disbarring him, three members of the State Bar Board of Governors (two of whom, Sheldon H. Sloan and Jeffrey Bleich, were successive presidents during Fine’s case) benefited. Sloan represented Epstein. Bleich’s firm represented LA County in negotiating its lease with Del Rey Shores. Laura Chick was personally involved in the Playa Vista (Etina) case.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

In summary, in 2004, LA Superior Court Commissioner Bruce E. Mitchell, who was a defendant in the “Silva” case, secretly filed a complaint with the State Bar. (See SER0097, lines 18-26.) This became the 2006 Notice of Disciplinary Charges, including the “Silva” case, the “Lewin” case and the “Mitchell” case, and disqualifications relating to LA County payments. The case only involved documents filed in courts. (See SER 0174-0209.) The case had only one charge – “moral turpitude”. The purpose of the case was to get Fine out of the practice of law. This would stop him from challenging LA County and objecting to the criminal judicial payments to judges who were not disclosing such to parties before him, and stop him from litigating against governments where he had been highly successful. This would stop him from challenging LA criminal payments from LA County to the judges and others, such as Commissioner Mitchell, who were receiving such, and to stop him from litigating against governments where he had been highly successful. In 2004, prior to the complaint, Fine had challenged LA Superior Court Judge Bruguera and sought to move four cases to San Francisco, where judges do not receive payments. Public records showed that from 1998-2006, Jerry B. Epstein and his related entities gave $66,050 to members of the LA Board of Supervisors, with over $500 each to Supervisors Knabe, Burke and Antonovich in 2006 (SER0105-0107), within the year before the May 17, 2007 vote on the EIR. Documents at the contempt trial showed payments to Knabe and Antonovich in April 2007 of greater than $500, which made their votes illegal, and made the vote on the EIR illegal.

28

-- 25 --

1 2 3 4 5 6 7

LA County was paying Judge Yaffe in 2007-2008 approximately $46,300 per year of criminal money. (USDC Dkt. # 1, Reporter’s Transcript dated December 22, 2008; SER0107, line 21, through SER0108, line 1; SER0095, line 17, showing payments of approximately $40,000.) The payments are criminal under Senate Bill SBX2-11 (USDC Dkt. # 1, Senate Bill SBX2-11 – granting retroactive immunity from criminal prosecution). Judge Yaffe conceals the payments (USDC Dkt. # 1, Reporter’s Transcript dated December 22, 2008) and orders Fine to pay attorney’s fees and costs to LA County and their co-applicant (SER00220026).

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

On February 6, 2006, the State Bar filed its charges against Fine. Fine was opposing developer Jerry Epstein in two cases – Marina Pacific and Marina Strand (which was before the Regional Planning Commission). Sloan was on the Board of Governors and was President-Elect. Fine was opposing LA County in six cases – Marina Pacific, Marina Strand and four others consolidated under Coalition to Save the Marina, et al, v. County of Los Angeles, et al. (This case attacked the entire method of LA County leasing in Marina del Rey and claimed that the taxpayers lost approximately $700 million due to unconstitutional County leases.) Bleich was on the Board of Governors and became President after Sloan. Fine challenged the judge in the Coalition cases. In mid-2006, Fine was retained in the Playa Vista case. Laura Chick, the Los Angeles City Controller, became a member of the State Bar Board of Governors in 2006-2007. Fine had challenged her in court papers for an illegal “behest” of $5,000 made in her name by the Playa Vista attorneys and lobbyist the day after she released a favorable report for Playa Vista and while the “comments” were still open. She was also included as a City Councilperson in the “Shinkle” case, which was one of the cases in the State Bar complaint. This occurred while she was a Los Angeles City Councilperson.

24 25 26 27 28

The secret State Bar Complaint filed by Commissioner Mitchell was part of the obstruction of justice by the LA Superior Court for Fine having filed the “Silva”, “Lewin” and “Mitchell” cases against LA County and the LA Superior Court judges, who took the criminal payments. In all of these cases, and including the case at bar, the LA Superior Court judges were represented by Benton, Orr, Duval and McCormick. (See SER0098-0101.) Commissioner Mitchell, the State Bar and the State Bar Court all had a -- 26 --

1

joint purpose to prevent Fine from filing legal challenges, on behalf of his clients, against the County and the judges, and furthered that purpose by denying Fine the protections of the First Amendment and due process as a retaliation against Fine. (See SER0101-0104.) The LA Superior Court’s retaliation against Fine extended beyond the State Bar to even refuse to overturn an admitted fraud on the court, where Judge John P. Shook of the LA Superior Court refused to overturn a settlement based upon a fraudulent taking of Fine’s home, costing Fine approx. $2.9 million. (See SER0109, lines 11-24.)

2 3 4 5 6 7 8

(See the Complaint (filed by AHRC) to the U.S. Attorney General for investigation of LA Superior Court judges, LA County officials and employees of the State Bar of California for details of due process violations of these groups against Californians and, in particular, against Fine. The document is Exhibit 8 to the March 25, 2008 CCP § 170.3 Objection to Judge Yaffe (SER0149-0157).)

9 10 11 12 13

7.

14

Truth: The same infirmities as set forth above regarding Respondent Sheriff’s use of this document.

15 16 17

Pages 5 through 15: Statement of Facts based upon Magistrate Judge’s Report.

8.

18

Page 6, lines 2 through 3: “Notwithstanding his prior knowledge of the receipt of local judicial benefits by Judge Yaffe …”. Truth: Judge Yaffe concealed his receiving LA County payments and did not admit such until March 20, 2008. (See infra.) Fine took action of filing a CCP § 170.3 objection against Judge Yaffe on March 25, 2008.

19 20 21

9. 22 23 24 25

Page 6, lines 5 through 6: Fine did not take action at time of initial assignment regarding LA County payments. Truth: Fine took action as soon as he became aware of payments to the individual judge in a case where LA County was a party. (See Coalition to Save the Marina, et al, v. County of Los Angeles, et al., LA Superior Court case no. BS089838 (SER0151-0152), and see infra for other actions.

26 27 28

10. Page 6, Footnote 6: “As a general practice, Fine would not challenge a judicial officer until that judicial officer ruled adversely to either Fine or his clients (SER0201).”

-- 27 --

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Truth: SER0201 does not make that statement. Further, the statement is untrue as shown by the Coalition to Save the Marina case, BS089838. Additionally, the State Bar Review Department makes false statements by stating “respondent deliberately and for an extended period of time misused the state’s statutory process for challenging a judicial officer’s [impartiality] to decide a proceeding” – no court of record held such to be the case. Fine v. Superior Court, 97 Cal.App.4th 651 (2002) is void as the underlying contempt order was subsequently voided and annulled on August 21, 2002 after an OSC re Granting a Writ of Habeas Corpus Without Hearing was issued on August 12, 2002 and the September 29, 2003 contempt order was voided when the judge in the contempt proceeding was disqualified for not responding to a CCP § 170.3 objection. These events removed any court decisions regarding the CCP § 170.3 objections. The commissioner involved (Mitchell) never made a valid response to any objection, thus the court did not have a basis to determine if any objection was “frivolous”, even if they were before the court. A review of the State Bar Opinion shows that the State Bar Court did not even recite or analyze any of the individual objections; nor did the “Hearing Department.” “… and then deliberately and repeatedly filed frivolous Federal court actions against any judicial officer (including Superior Court judges and Court of Appeal justices) who ruled against him, in an attempt to coerce or intimidate the judicial officer into ruling in respondent’s favor and to have those same judicial officers improperly removed from cases to which they had been duly assigned”. The first part of the quote refers to the “Lewin,” “Silva” and “Mitchell” cases, which were vindicated by the holding in Sturgeon. Such case held at page 1 of the Slip Opinion: “Section 19, Article VI of the California Constitution requires that the legislature ‘prescribe compensation for judges of courts of record.’ The duty to prescribe judicial compensation is not delegable. Thus the practice of the County of Los Angeles (the County) of providing Los Angeles County Superior Court judges with employment benefits, in addition to the compensation prescribed by the legislature, is not permissible.’” At page 28, the Court held “on this record, notwithstanding Section 1241, the benefits the County provides to judges are compensation within -- 28 --

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the meaning of Section 19, Article VI.” The Court stated at page 2: “Although the record is not clear, it appears that at some point in the late 1980s, the County began providing its superior and municipal court judges with employment benefits in addition to the salary prescribed by the legislature.” At page 3, the Court stated: “In sum, in addition to the salary, benefits and retirement prescribed by the legislature, in fiscal year 2007 each superior court judge in Los Angeles was eligible to receive $46,436 in benefits from the County. This amount represented 27 percent of their prescribed salary [$172,000 as of January 1, 2007] and cost the County approximately $21 million in fiscal 2007”. The County argued at page 4 “… in light of the high cost of living in the Los Angeles area and the high salaries paid to lawyers in the region, the benefits were needed to attract and retain skilled and experienced judges.” A November 10, 1988 Memorandum from Roger W. Whitby, Senior Assistant LA County Counsel, to Frank S. Zolin, County Clerk/Executive Officer of the Superior Court stated the reason as follows at page 6: “The Board of Supervisors has evidently found that in order to attract and retain qualified judges to serve in this [LA] county, it is necessary and appropriate to provide them with benefits …”. Such letter is attached to a Request for Judicial Notice in Support of Emergency Motion dated July 20, 2009 (9th Cir. Dkt. # 3). The final part of the quote, “any judicial officer who ruled against him, in an attempt to coerce or intimidate the judicial officer into ruling in respondent’s favor …”, is so “off the wall” that it might be a line from Saturday Night Live. It implies that Fine has filed lawsuits against every judge who ruled against him in 45 years of practice, and by doing such, the judge would change his mind. Only in a comedy show would that happen. The State Bar Court’s removal from “reality” occurred at SER02010202, where it again refers to the CCP § 170.3 challenges by calling them “meritless” without basis, and refers to three unsuccessful appeals without discussion. The State Bar Court then links these to the two voided contempts and a removal as class counsel (which was unlawful as it occurred when there was no counsel for the class as each member had individual counsel as the case was over, the judgment was entered, the money was in the bank and it was being distributed), and the removal as counsel for class members (which was also unlawful as the person who did the “removal” was not a judge or “temporary judge” in the case). That -- 29 --

1 2 3 4 5 6 7 8 9 10 11 12 13

person was Commissioner Bruce Mitchell, and it was done after he voided and annulled his contempt order in which he claimed to be a temporary judge in the case. He did not have jurisdiction. This lack of jurisdiction was a cause of the second contempt to fail, in addition to his other misconduct (see infra), which resulted in the judge not responding to the CCP § 170.3 objection. The Review Department also found this conduct harmed Fine’s clients. Here, they flatly violated the law. That charge had been brought in a previous State Bar action instituted by the LA Superior Court in 2003 and dismissed in 2004. It could not be brought again. Additionally, the State Bar Court, at SER0202, considered it “aggravation” that Fine moved to disqualify the Hearing Department judge when Fine found out that he had concealed that he was on the Board of Governors of the “Special Olympics – Southern California” and, during the time of the case LA County gave $30,000 to the “Special Olympics – Southern California,” a LA County representative was on the Board with him, and a partner of Latham and Watkins, who gave the “behest” in the name of Laura Chick, was on the Board of Directors.

14 15 16 17 18

This is in addition to another State Bar judge being on the Board of another group with Jeffrey Bleich, and all of the judges being joint defendants with the State Bar Chief Trial Counsel and the Board of Governors in a Federal lawsuit to declare the moral turpitude law unconstitutional. This was the same issue being raised by Fine. All the State Bar judges had pre-decided the issue against Fine’s position.

19 20 21 22 23 24 25 26 27

At the end, the State Bar result was that Fine was guilty of “moral turpitude” for (1) filing CCP § 170.3 objections, (2) filing an appeal, (3) filing a writ of mandate, (4) filing a motion to amend a complaint, and (5) filing the “Silva” case to enjoin the LA County payments as a violation of Article VI, Section 19, of the California Constitution and the First and Fourteenth Amendments, and filing the “Mitchell“ case as “having the same claim for relief as the “Lewin” and “Silva” matters. The Court also improperly reversed two counts which had been dismissed and not appealed by the State Bar. This violated State Bar Rule of Procedure No. 305 and due process. 11. Page 7, lines 3-5: Fine’s motion was based upon an “affidavit of fault”.

28

-- 30 --

1 2

Truth: The motion was based upon “excusable neglect,” which is the “permissive section” of CCP § 473(b). (See SER0001-0011.)

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

12. Page 7, Footnote 8: “A significant portion of the basis was the filing of repeated notices of disqualification on the issue of compensation of judges”. Truth: Disqualifications were only two Counts, 1 and 14. The major issue was the lawsuits related to the LA County payments. (See infra.) 13. Page 8, line 8-9, Footnote 10: CCP § 473(b) mandates attorney’s fees. Truth: CCP § 473(b) has two parts: mandatory and permissive. Mandatory (attorney fault) cannot be used in Public Resources Code cases. (See SER0001-0011.) The permissive section can be used. (See SER0023-0024.) Attorney’s fees and costs are not mandatory under the permissive (excusable neglect) section of CCP § 473(b). (See USDC Dkt. # 1, Trial Ex. 1A; SER0040, line 21 through SER0058, line 9.) 14. Page 9, lines 4-8, Footnote 11: Fine moves to disqualify Yaffe. Fine did not question Yaffe’s objectivity because he ruled in his favor. Truth: The February 19, 2008 motion is only against LA County judges who were receiving the payments and was based upon the same action in the Sturgeon case where the LA Superior Court recused itself. (See USDC Dkt. # 1, Trial Ex. 1A; SER0062, lines 20-24.) The Motion specifically states that “the court [Judge Yaffe] has not disclosed if it is presently receiving money from LA County or has received monies during the time of this case.”’ (Id., lines 18-19.) Fine was concerned that since LA Superior Court Commissioner Mitchell had secretly complained to the Bar and he was a defendant in the “Silva” case, that all LA Superior Court judges may be prejudiced against him. (See SER0061, line 25, through SER0062, line 6.) 15. Page 9, line 14, through page 10, line 7: A judge has four options. Truth: A judge has five options. The fifth option is to do nothing and be disqualified under CCP § 170.3(c)(4). 16. Page 10, lines 8 – 11: Grounds for striking the motion to disqualify the LA superior court judges. (See SER0077-0082.)

-- 31 --

1 2 3

Truth: The grounds in the brief do not match the grounds in the document. The motion was not a CCP § 170.3 motion as shown by the fact that such was not mentioned in the motion. There was not any motion for reconsideration. (See SER0077-0082, 0039-0076.)

4 5 6 7 8 9 10 11 12 13 14 15 16

17. Page 10, line 19, through page 11, line 5; Footnote 12: Giving notice of need to file writ. (See SER0169-0170.) Truth: There is not such notice. SER0169-0170 are the second and third pages of a March 27, 2008 Order striking Fine’s March 25, 2008 “Notice of Disqualification”. The March 27, 2008 Order does not show any certificate of service on Fine. Further, such Order refers to a non-existent March 18, 2008 order. Such alleged March 18, 2008 order has never been produced and would have occurred two days before the March 20, 2008 hearing. The Minute Order of the March 20, 2008 hearing (see SER00770078) claims to strike the same motion, but does not reflect any warnings about filing a writ or that being an exclusive remedy. A notice of ruling without the March 20, 2008 Minute Order was filed and served on March 25, 2008. (See SER0079-0082.) Such mistakenly claims the Motion to be a CCP § 170.3 objection, but does not allege failure of personal service, or any other reason. The notice states at SER0080, lines 13-14, that “the court struck the challenge pursuant to CCP § 170.3 by Richard I. Fine to the judges of the superior court of the county of Los Angeles.”

17 18 19 20 21

Based upon such “Notice of Ruling”, Fine filed the March 25, 2008 Notice of Disqualification attaching the Notice of Ruling referring to the CCP § 170.3 objection. On March 27, 2008, Judge Yaffe struck the March.25, 2008 Notice of Ruling as shown by the clerk’s notation on the document. (See SER0083-0089.) The March 27, 2008 Strike Order does not show that it was served. (See SER0168-0170.)

22 23 24 25 26

18. Page 12, lines 3-4: A copy of the Notice of Disqualification was not properly served on Judge Yaffe. Truth: CCP § 170.3(c)(4) does not require a Notice of Disqualification to be served upon a judge who has failed to timely respond to a CCP § 170.3 objection. A copy was given to Judge Yaffe when Fine told him that he was disqualified and could not preside over the case.

27 28

19. Page 12, line 3, through page 15, line 19: All statements are supported by the Magistrate Judge’s Report.

-- 32 --

1

Truth: Such statements are false for the reasons set forth above.

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

20. Page 21, line 17: Citation to Fine v. Superior Court, 97 Cal.App.4th 651 (2002). Truth: Fine v. Superior Court is void. The underlying contempt order was voided by the LA Superior Court – Bruce E. Mitchell – represented by Benton, Orr, Duval and Buckingham – on August 21, 2002 after US District Court Judge Gary L. Taylor issued a stay of execution; Order to Show Cause Re Granting Writ Without Hearing in the Case of Fine v. Superior Court, CV-02-04647 GLT (SGL). Minutes – Respondent Superior Court has ruled its September 24, 2001 order and judgment of contempt, which is the subject of this case, to be void and annulled. The court finds the matter asserted in this case as now moot. This action is hereby dismissed. 21. Page 22, Footnote 18: SER0170.

Reference to March 18, 2008 strike order in

Truth: There is not any March 18, 2008 strike order. (See above.) Further, the Superior Court and Judge Yaffe have never produced such in the contempt proceedings, the underlying case, the District Court or this Court. The docket sheet for the Marina Strand case shows that a March.18, 2008 order does not exist (see attached) The March 27, 2008 Order was not an exhibit in the contempt proceeding. Paragraph 9a of the March 4, 2008 Judgment does not show the March 27, 2008 Order as an exhibit in the contempt proceeding (SER0215, handwriting at top of page). As stated above, the February 19, 2008 Motion was not a CCP § 170.3 objection to Yaffe personally. It was following the action in Sturgeon where every member of the court was not served and the LA Superior Court was not even named. The LA Superior Court “intervened in 2009” to prevent an injunction, after a Remittitur issued. 22. The LA Superior Court and Judge Yaffe specifically defrauded this Court in its SER by combining the March 25, 2008 Notice of Disqualification (SER0083-0089) with the March 25, 2008 CCP § 170.3 objection (SER0090-0167). These were separate documents. The Notice of Disqualification was stricken by Judge Yaffe on March 20, 2008. Judge Yaffe never responded to the March 25, 2008 CCP § 170.3 objection and

-- 33 --

1 2 3 4 5 6 7

was disqualified pursuant to CCP § 170.3(c)(4). The LA Superior Court and Judge Yaffe, by combining these two documents in the SER, attempted to give the impression that Judge Yaffe had stricken both documents when in fact he only struck the Notice of Disqualification. The striking of only the NOD is shown by the handwritten notation on such document, showing that that was the only document to be stricken. Paragraph 9a of the Judgment (SER0215) also refers to that being the only document that was stricken. There is no notation on the § 170.3 objection showing that that document was stricken.

8 9

VI. Incontrovertible and Uncontested Facts. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

This is a straight-forward case of “payoffs,” “bribery,” “misappropriation of funds,” “obstruction of justice” and other corruption mandating recusal under the due process clause. Judge Yaffe knowingly engaged in the criminal activity of taking payments from a party before him in the case of Marina Strand v. County of Los Angeles and not disclosing such. (See USDC Dkt. # 1, Reporter’s Transcript dated December 22, 2008, testimony of David P. Yaffe, for admission to receiving LA County payments, not disclosing such on his Form 700 Statement of Economic Interest, no employment agreement or arrangement to provide services to LA County, no deposit of LA County payments into his judicial campaign fund, and no memory of deciding any case against LA County in the last three years, except the minor issue of “dirt” in the Marina Strand case (which required only that part of the final Environmental Impact Report (“EIR”) be recirculated.) Judge Yaffe received retroactive immunity from state criminal prosecution, civil liability and disciplinary action under Senate Bill SBX2-11 enacted February 20, 2009, effective May 21, 2009. (See USDC Dkt. # 1, Senate Bill SBX2-11.) But he did not receive immunity from his obligation under Article VI, Cl.2, of the U.S. Constitution to be “bound” by the “constitution, and the laws of the

-- 34 --

1

United States which shall be made in pursuance thereof … any … laws of any

2

state to the contrary, notwithstanding.”

3

Judge Yaffe engaged in criminal activity, (1) which included bribery - he

4

received payments from a party which influenced his decision, and such

5

payments were made in order to influence his decision; (2) which included

6

misappropriation of funds -- he was not an employee of LA County and was not

7

providing services for LA County; (3) which included obstruction of justice –

8

the payments interfered with the administration of justice as the LA Board of

9

Supervisors vote for the EIR was unlawful since two of the four Supervisors

10

voting for the EIR voted unlawfully); and (4) which included a violation of the

11

“intangible right to honest services,” 18 USC §§ 1341, 1343 and 1346 –

12

committing a crime and not disclosing such.

13

Judge Yaffe was obligated to recuse himself under the due process clause

14

at the outset of the case. (See Offutt v. United States, 348 U.S. 11, 14 (1954) –

15

“A judge receiving a bribe from an interested party over which he is presiding

16

does not give the appearance of justice”. The standard of the appearance of

17

justice has been most recently affirmed in Caperton, supra, Slip Opinion pages

18

7-9.

19

And in U.S. v. Scuito, 531 F.2d 842, 845 (1976), the Court stated – “the

20

right to a tribunal free from bias or prejudice is based, not on [28 USC ] Section

21

144, but on the due process clause”, holding that should a judge not disqualify

22

himself, he is violating the due process clause.

23

Judge Yaffe violated and defied the due process clause. He not only did

24

not recuse himself, but on January 8, 2008, three months after Fine had left the

25

case as counsel for Marina Strand Colony II Homeowners Association, he

26

ordered Fine to pay attorney’s fees and costs to LA County and its co-applicant

27

for the EIR, Del Rey Shores, and denied a Motion for Sanctions against LA

28

County for not timely filing the record. Such January 8, 2008 Order further

-- 35 --

1

violated due process as it was made without notice to Fine and without Fine

2

being present at the hearing. (See USDC Dkt. # 1, Trial Ex. 1A; SER0021-

3

0025.) Such Order also violated the California Public Resources Code as a

4

“mandatory order for attorney’s fees” was not allowed under such Code. (Id.)

5

Such Order gave Fine thirty days to respond after service. Fine was served by

6

mail on January 23, 2008, by Rose Zoia, new counsel for Marina Strand Colony

7

II Homeowners Association and who appeared at the January 8, 2008 hearing on

8

behalf of the Association and argued the motions for the Association. (See SER

9

0027-0034.)

10

As of February, 2008, Judge Yaffe was still violating the due process

11

clause by not recusing himself and by not disclosing his criminal activity of

12

taking LA County payments and making illegal orders (the January 8, 2008

13

Order) in their favor; i.e., bribery and obstruction of justice.

14

On February 19, 2008, Fine made a special appearance in the Marina

15

Strand case. He filed two motions: (1) a motion to disqualify LA Superior Court

16

judges receiving money from LA County, and (2) a motion to dismiss the Order

17

to pay sanctions and attorney’s fees and costs for lack of jurisdiction over former

18

counsel of the Association, lack of notice of imposition of sanctions, legal fees

19

and costs, and that the discretionary provision of CCP § 473(b) does not allow or

20

mandate the imposition of sanctions, legal fees and costs. The motions also

21

showed that such were also prohibited by the Public Resources Code. (See

22

USDC Dkt. # 1, Trial Ex. 1A; SER0039-0076.) The motions were set for

23

March.20, 2008, in Judge Yaffe’s courtroom (Id.) The Motion and Fine

24

declaration specifically stated that Judge Yaffe had not disclosed if he was

25

receiving LA County payments (SER0062, lines 18-19). The motions were not

26

opposed. On March 12, 2008, Fine filed a Notice of No Opposition (SER0092,

27

lines 9-18).

28

-- 36 --

1

Now, Appellees LA Superior Court and Judge Yaffe are falsely arguing

2

that the motion to disqualify the LA judges was a personal verified CCP § 170.3

3

objection to Judge Yaffe only (“upon receipt of a verified statement of

4

disqualification pursuant to Section 170.3(c)(1), the judge against whom it is

5

filed has four options …”.

6

Answering Brief, page 9, lines 14-15.) Even if this were true, their argument

7

would still lose as Judge Yaffe would have been required to answer or strike the

8

CCP § 170.3 objection within ten days. They did not inform this Court that,

9

under CCP § 170.3(c)(4), if a judge does not respond to the objection within ten

10

days of service upon him, he is deemed to have consented to the disqualification

11

and the clerk must transfer the file to the presiding judge for reassignment.

(See LA Superior Court and Judge Yaffe’s

12

Judge Yaffe did nothing until March 20, 2008, at which time he struck the

13

Motion at the hearing. (See SER0077-0082.) This striking was a violation of

14

the due process clause as any judge who had received the LA County payments

15

was bound to recuse himself. As to Judge Yaffe personally, if he regarded the

16

Motion as a CCP § 170.3 objection to him and considered himself served, he

17

was personally disqualified under CCP § 170(c)(4) for not having acted within

18

ten days of February 19, 2008, and the clerk should have transferred the file. If

19

he claims to not have been served, then he did not have any grounds to strike the

20

motion as he was not “personally involved”. Here, he is caught in his fraud of

21

concealing the criminal payments, which mandated his self-recusal.

22

On March 20, 2008, Judge Yaffe admitted in open court for the first time

23

to taking the LA County payments. (See SER0062, lines 18-19.) On March 25,

24

2008, Fine filed a CCP § 170.3 objection against Judge Yaffe, based upon his

25

open-court admission, and served such on him. (See SER0090-0167.)

26 27

Judge Yaffe did not respond to such CCP § 170.3 objection and was automatically disqualified pursuant to CCP § 170.3(c)(4) for failure to respond.

28

-- 37 --

1

Also, on March 25, 2008, Fine filed a Notice of Disqualification in

2

response to Judge Yaffe’s March 20, 2008 belated striking of the February 18,

3

2008 Motion to Disqualify LA Superior Court judges if Judge Yaffe had

4

mistakenly assumed such to have been a CCP § 170.3 objection directed to him.

5

(See SER0083-0089.)

6

On March 27, 2008, Judge Yaffe filed an order striking only the March 25,

7

2008 Notice of Disqualification. (See SER0168-0170.) The clerk’s notation on

8

the March 25, 2008 Notice of Disqualification showed that was the only order

9

stricken. (Id.) No such notation existed on the March 25, 2008 CCP § 170.3

10

objection, nor was such mentioned in the March 27, 2008 order. The argument

11

that the March 27, 2008 Order struck the March 25, 2008 CCP § 170.3 objection

12

in the LA Superior Court brief (page 11, lines 10-12, using a wrong date of

13

March 28, 2008) is both false and misleading. Such March 27, 2008 Order

14

further shows on its face that it was not served on Fine. (A copy of such order is

15

attached to USDC Dkt. # 1, Trial Ex. 211. (The copy of such order submitted to

16

the District Court as Exhibit B to the Declaration of Kevin McCormick

17

deliberately misled the District Court by omitting to attach the certificate of

18

service, as does SER0168-0170. Kevin McCormick also deliberately did not tell

19

the District Court that such March 27, 2008 order was not an exhibit at the

20

contempt trial.) SER0171-0173 is a copy of the March 27, 2008 Order, also

21

without a certificate of service. The March 4, 2009 Judgment does not list this

22

Order as a trial exhibit. (See SER0215, paragraph 9a, handwriting at top of

23

page.)

24

Judge Yaffe’s actions regarding the February 19, 2008 Motion to

25

Disqualify the LA Superior Court judges were void as he had already violated

26

the due process clause by not recusing himself at the outset of the case.

27

However, by April 6, 2008, after the ten days had passed from the time he was

28

served with the March 25, 2008 CCP § 170.3 objection, he was disqualified by

-- 38 --

1

operation of law under CCP § 170.3(c)(4). Contrary to the LA Superior Court’s

2

brief at page 12, lines 3-4, no copy of a notice of disqualification is required to

3

be served on a judge.

4

Fine fax-filed a Notice of Disqualification on April 7, 2008, and personally

5

handed a copy of such to Judge Yaffe at an April 10, 2008 court hearing when

6

Fine told Judge Yaffe that he was disqualified and could not preside at such

7

hearing. The clerk file-stamped the Notice of Disqualification as of April 11,

8

2008. (See USDC Dkt. # 1, Trial Ex. 21.)

9

The February 19, 2008 motions and a March 10, 2008 Motion to Tax Costs

10

set for April 10, 2008 were not heard. After April 20, 2008, Judge Yaffe, on

11

April 15, 2008, signed a judgment for attorney’s fees and costs submitted by Del

12

Rey Shores as a supplemental document to the January 8, 2008 Order when the

13

Motion to Tax Costs was not heard. Fine objected. Such April 15, 2008

14

judgment was not an exhibit at the contempt trial. (See SER0215, lines 4-6,

15

showing such Order not listed as an exhibit, and SER0220a, showing no

16

disobedience of such order).

17

Del Rey Shores falsely obtained a Writ of Execution on the void April 15,

18

2008 Judgment and set about enforcing such with a judgment debtor’s hearing

19

on June 18, 2008. Fine objected to the production of documents, objected to the

20

jurisdiction of Commissioner Gross as not being either a “temporary judge” or a

21

“referee” who is, under law, the only person empowered to conduct the hearing,

22

gave his name, objected to answering questions, and Fine moved to quash the

23

Writ of Execution. (The Motion to Quash was Trial Ex. 13 at the contempt

24

trial.)

25

The

Motion

was

calendared

before

the

Post

Judgment

Dept.

26

(Commissioner Gross). It was sent to Judge Yaffe, who refused to send it to the

27

presiding judge.

28

June.18, 2008 transcript is USDC Dkt. # 1, Trial Ex. 9.) The LA Superior

The Motion was never heard and is still pending.

-- 39 --

(The

1

Court’s brief unlawfully referred to later hearings before Commissioner Gross

2

which were not even in evidence in the contempt trial, much less at the District

3

Court. (Page 13, line 14, through page 13, line 6.)

4

The LA Superior Court’s brief also misrepresented the sole document upon

5

which it relied to prove the criminal and civil count of practicing law without a

6

license or holding out to practice law, Business & Professions Code §§ 6126 and

7

6127(b). The document was a Memorandum of Costs filed by Fine as “former

8

counsel for Marina Strand Colony II Homeowners Association”. The document

9

was not filed as current counsel. The LA Superior Court’s brief made the

10 11 12 13

following deliberate false misrepresentation to this Court at page 12, lines 4-6: “On June 16, 2008, Fine filed a Memorandum of Costs on behalf of Marina Strand HOA, notwithstanding his having been placed in involuntary inactive status by the State Bar of California.”

14

They did not provide a copy of the Memorandum to the District Court.

15

The Memorandum of Costs was not a trial exhibit at the contempt proceeding.

16

Neither an order of the California Supreme Court stating that Fine was

17

“inactive” nor upholding the State Bar order making Fine inactive, nor a State

18

Bar order making Fine inactive was in evidence at the contempt trial. Such were

19

not presented to the District Court.

20

Further, Judge Yaffe stated at the March 4, 2009 sentencing hearing that

21

there was no order that Fine violated in his response to questions about the lack

22

of an order making Fine inactive. (See USDC Dkt. # 16-5, page 10, line 13, to

23

page 11, line 2.)

24

On November 3, 2008, Judge Yaffe signed an Order to Show Cause re

25

Contempt with sixteen charges. (See USDC Dkt. # 1, Order to Show Cause; the

26

LA Superior Court’s brief falsely does not refer to the actual Order to Show

27

Cause.) The LA Superior Court’s brief refers to the Magistrate Judge’s Report

28

and Recommendation, which refers to Judge Yaffe’s Judgment which does not fully reflect the trial exhibits and refers to documents which were not in the trial -- 40 --

1

as shown by USDC Dkt. # 1, Addendum to paragraph 8 of the Petition for Writ

2

of Habeas Corpus.

3

Such Addendum stated the true facts for the District Court in the writ

4

proceeding. These facts were not contested and the District Court was bound by

5

them as no other facts were presented. If other facts were presented, the District

6

Court was bound to have Fine reply at a hearing pursuant to 28 U.S.C. § 2243.

7

Neither the Respondent Sheriff nor the Superior Court or Judge Yaffe presented

8

any facts to dispute those in the Petition and the Addenda to pages 7 and 8, nor

9

any fact set forth in USDC Dkt. # 1, Trial Exhibits 1A, 9, 14 and 21, the

10

Reporter’s Transcripts of December 22, 2008 and January 22, 2009, the Minute

11

Orders of December 22, 2008 and January 22, 2009, and the Petitions for writs

12

of habeas corpus to the California Appellate and Supreme Courts.

13

Fine was charged with sixteen counts of contempt. They were not made

14

into five groups as the LA Superior Court’s brief and the Magistrate Judge’s

15

Report and Judge Yaffe’s Judgment contend. Fine was found “not guilty” on

16

fourteen counts. (See USDC Dkt. # 1, Reporter’s Transcript and Minute Order,

17

each dated January 22, 2009.) Fine was found “guilty” on Count 1 – not

18

answering questions at the June 18, 2008 debtor’s examination, and Count 16 –

19

violating Business & Professions Code §§ 6126 and 6127(b), which are

20

practicing law without a license or holding himself out to practice law without a

21

license. (Id.) Section 6126 is criminal; Section 6127(b) is civil.

22 23 24 25 26

As to Count 16, as shown above Judge Yaffe stated that no court order was violated. (See USDC Dkt. # 16-5, page 10, lines 25-26.) Further, Fine was not afforded a jury trial, which is a violation of the Sixth Amendment. The LA Superior Court brief admitted that the contempt proceeding was both civil and criminal at page 3, line 15, through page 4, line 1, as follows:

27 28

“The proceeding culminated in a finding of both civil and criminal contempt.”

-- 41 --

1 2

At all times during the trial, Fine maintained that he could practice law as no Supreme Court order existed prohibiting him.

3

Judge Yaffe found Fine “not guilty” on Count 7 – “lying about his status

4

with the State Bar in pleadings filed in this Court and in oral arguments made

5

before this Court.” (See USDC Dkt. # 1, Reporter’s Transcript and Minute

6

Order each dated January 22, 2009.)

7

Judge Yaffe’s “guilty” decision on Count 16 is void on its face based upon

8

the LA Superior Court and Judge Yaffe’s admission in the LA Superior Court

9

Answering Brief that the conviction was criminal, Judge Yaffe’s admission on

10

March.4, 2009 that no order was violated, and the fact that no jury trial occurred.

11

Judge Yaffe sentenced Fine to pay a $1,000 fine or serve five days in jail

12

consecutive to (after) serving the “coercive confinement” on Count 1. Fine was

13

incarcerated on March 4, 2009 in the LA County Jail.

14 15 16 17

At all times, Fine challenged Judge Yaffe’s right to preside at the contempt proceeding, in both a writ proceeding and later habeas corpus proceedings in the California courts (see USDC Dkt. # 1, Petitions for writs of habeas corpus in California Court of Appeals and Supreme Court), the U.S. District Court (see

18

record) and this Court. As shown herein, Fine filed a CCP § 170.3 objection on 19 20 21 22

March 25, 2008 against Judge Yaffe (SER0090-0167). Judge Yaffe did not respond and was disqualified (Dkt. # 1, Trial Ex. 21); he admitted that the only “disqualification” that he struck was a different document, “Notice of

23

Disqualification” (SER0083-0089) also filed March 25, 2008, which shows

24

being stricken on its face. The admission is shown at paragraph 9a of the

25

March.4, 2008 Judgment (SER0215).

26 27 28

-- 42 --

1 2

VII. Argument. A. Judge Yaffe’s Criminal Activities Mandate Recusal.

3 4 5 6

As shown herein, under Offutt, supra, and Sciuto, supra, Judge Yaffe was bound to recuse himself at the outset of the Marina Strand case. He didn’t, and concealed the payments until March 20, 2008.

7 8 9

The LA Superior Court brief cites to the retroactive immunity portion of Senate Bill SBX2-11 at page 25. Most interestingly, such section has not been

10 11 12

codified and, although law, remains hidden from the public. (See USDC Dkt. # 34, Government Code §§ 68220-68222.)

13

The immunity does not extend to payments received after May 21, 2009, 14 15 16

the effective date of Senate Bill SBX2-11. Contrary to the claims of the LA Superior Court and Judge Yaffe, the

17 18 19

extension of the payments under Senate Bill SBX2-11 is presently being litigated in the Sturgeon case in the Court of Appeals. (See USDC Dkt. # 34,

20 21 22 23

Notice of Appeal.) The issue of whether Lockyer-Isenberg ratified the payments is irrelevant. This is a Federal due process case involving criminal conduct. In 2007-2008 to

24 25 26

May 21, 2009, Lockyer-Isenberg had not made the payments constitutional under Article VI, Section 19.

At all times prior thereto, they were not

27 28

constitutional. Further, Lockyer-Isenberg affirmed that the payments were not

-- 43 --

1

state obligations by not charging the counties for such payments under their

2 3 4 5

required state contributions to trial court funding known as Maintenance of Effort (MOE). From the commencement of the payments in the late 1980s through the

6 7 8

present, the payments were and are criminal.

The immunity ceased as of

May.21, 2009. However, the misappropriation of funds, bribery, obstruction of

9 10 11 12

justice and violation of the intangible right to honest services, as well as other Federal crimes, continue. Appellees have not only not contested the criminal actions of Judge Yaffe,

13 14 15

they have embraced such by relying on the retroactive immunity section of Senate Bill SBX2-11.

16 17 18

Thus the question now becomes “whether a trial judge who received criminal payments from a party before him should have recused himself?” The

19 20 21 22 23

answer is a resounding “yes.” B.

The 27% of State Salary Payment by LA County Mandates Recusal.

Appellees rely on the Sturgeon case. As shown herein, the Sturgeon case

24 25 26

held that the LA County payments violated Article VI, Section 19, of the California Constitution, and that the duty to ”prescribe” is not delegable.

27 28

-- 44 --

1

The Sturgeon case also stated, as shown herein, that the LA County

2 3 4 5

payments in fiscal year 2007 were $46,386, or 27% of Judge Yaffe’s 2007 state salary of $172,000. Even if these payments were not criminal, under the standard set forth in

6 7 8

Tumey v. Ohio, 275 U.S. 510 (1927); Ward v. Monroeville, 409 U.S. 57 (1972); Gibson v. Berryhill, 411 U.S. 564 (1973); Aetna Life Ins. Co. v. Lavoie, 475 U.S.

9 10 11 12

813 (1986); and Caperton, supra, the LA County payments to Judge Yaffe “offer a possible temptation to the average … judge to … lead him not to hold the balance nice, clear and true”. Caperton, supra, Slip Opinion page 15.

13 14 15

Judge Yaffe’s conduct fits well within the criterion. The payments are a major percentage of his state salary. He makes orders which effectively pay for

16 17 18

his “compensation”. He has admitted that, in the last three years, other than the “dirt” decision in the Marina Strand case, he cannot remember any case which

19 20 21 22

he decided against LA County. (See USDC Dkt. # 1, Reporter’s Transcript dated December 22, 2008.) The dirt decision was meaningless. It only required the County to re-

23 24 25

circulate part of the EIR. He did not reject the EIR because of the illegal County vote. This failure to reject the EIR on a clear injustice establishes the “bias”, if

26 27

not the criminal activity.

28

-- 45 --

1

Further, he issued an illegal and unconstitutional order against Fine in

2 3 4 5

favor of the County and its co-applicant lessee.

He did all of this while

concealing the payments. Against this background, the risk that the LA County payments engendered

6 7 8

actual bias is sufficiently substantial that it “must be forbidden if the guarantee of due process is to be adequately implemented.” Caperton, supra, page 15,

9 10 11 12

citing to Withrow v. Larkin, 421 U.S. 35, 47 (1975). The payments to all of the LA Superior Court judges by LA County (who has a stake in the outcome of foster care cases, family law cases, criminal cases,

13 14 15

eminent domain cases, tort cases, environmental cases, etc.) raises serious questions. “Just as no man is allowed to be a judge in his own cause, similarly,

16 17 18

fears of bias can arise when – without the consent of other parties – a man chooses the judge in his own cause.” Caperton, supra, at 16. Applying this

19 20 21 22

principle to LA County “buying” the LA Superior Court for $21 million per year as stated in Sturgeon, much like “Tony Soprano” or an infamous drug cartel, “there is here a serious, objective risk of actual bias that requires” Judge Yaffe’s

23 24 25

“recusal”. (Id.) The LA Superior Court and Judge Yaffe tried to avoid the compelling

26 27 28

mandate of the Supreme Court cases by invoking the sophistry of the Magistrate Judge who “played hooky” the day they taught basic civics in second grade. At

-- 46 --

1

page 30 of their brief, they try to equate a county payment to a state judge with a

2 3 4 5

state payment to a state judge, or a Federal payment to a Federal judge. Obviously, this equation does not work. The cases are clear. A direct payment from a party to a judge is banned.

6 7 8

It’s a bribe. A judge who gets paid from the fines he orders must recuse himself (Tumey, supra). A judge who does not get paid, but the money goes to an

9 10 11 12

organization where he can control it (mayor of a town) must recuse himself (Monroeville, supra). A judge who has an interest in the outcome of the case, even indirectly, must recuse himself (Lavoie, supra). A judge who does not get

13 14 15

a direct payment from a person, but the payment goes to a fund which can help him must recuse himself (Caperton, supra).

16 17 18

Here, Judge Yaffe got a direct payment of 27% of his annual income from a party before him. He must recuse himself.

19 20 21 22 23

C. Judge Yaffe Must Recuse Himself Because He Is Judging His Own Act of Charging Fine With a Crime and His Own Act of Ordering Fine to Pay Money to LA County While He Was Taking Payments From LA County. The LA Superior Court brief has agreed that the contempt case was

24 25 26 27

criminal. (See page 3, line 15, through page 4, line 1.) In Re Murchison, 349 U.S. 133, 136 (1955) – “No man can be a judge in his own case” and “no man is permitted to try cases where he has an interest in the outcome”.

28

-- 47 --

1

Here, Judge Yaffe charged Fine with violating Business & Professions

2 3 4 5

Code § 6126, a criminal violation. (See USDC Dkt. # 1, Order to Show Cause.) Further, the civil thrust of the contempt case was Fine’s defense that the January 8, 2008 Order (which was the initial order from which all subsequent

6 7 8

issues and conflicts arose) was void because Judge Yaffe had taken LA County payments, not disclosed such and made an order in favor of LA County. Fine

9 10 11 12

was also showing that Judge Yaffe had a history of doing such and that he made this Order in violation of the law and the U.S. Constitution. Judge Yaffe was the first witness in the contempt trial. He was judging his

13 14 15

own illegal acts inasmuch as Senate Bill SBX2-11 was passed prior to the March.4, 2009 hearing and it was a subject at the March 4, 2009 argument. (See

16 17 18

USDC Dkt. # 16-5.) Judge Yaffe was also presiding over his acts subsequent to January 8,

19 20 21 22

2008, including his refusal to leave after he did not respond to the March 25, 2008 CCP § 170.3 objection, his signing the April 15, 2008 Order, his presiding at all other hearings, etc. He was also presiding over the issue of whether

23 24 25

Commissioner Gross was a “temporary judge” or a “referee”, which was a direct result of his own actions.

26 27 28

-- 48 --

1

Finally, he was presiding over the attacks on his integrity and the integrity

2 3 4 5

of the LA Superior Court and why those charges were even allowed as they violated the statute (CCP § 1211(a)(11)). The LA Superior Court brief raises the issue of the January 8, 2008 Order

6 7 8

mandating “mandatory fees”.

However, as shown above, this is a false

statement, but it is part of Judge Yaffe’s actions over which he had to preside.

9 10 11

He violated due process by presiding over his own acts. D. Judge Yaffe Was Embroiled.

12 13 14 15

Judge Yaffe’s embroilment was set forth in the Opening Brief. The fact that he signed an Order to Show Cause with blatant illegal charges and the other specific examples of embroilment demonstrate that Judge Yaffe should have

16 17 18

recused himself. No judge with any modicum of knowledge of the parameters of the

19 20 21 22

contempt statute would have signed the November 3, 2008 Order to Show Cause. Many of the charges had nothing to do with the supervision of the Court

23 24 25

and some could not even be brought. The fact that Judge Yaffe allowed the contempt proceeding to go forward with such an Order to Show Cause shows

26 27

that he “failed to impose his moral authority on the proceedings”. Offutt, supra,

28

-- 49 --

1

at 17.

He became part of the out-of-control process.

He was generating

2 3 4 5

problems by forcing Fine to face illegal charges. There can be no better description of embroilment than a judge who abuses his power.

6

8

E. The LA Superior Court Brief’s Disqualification Argument Is A Sham.

9

As shown herein, the February 19, 2008 Motion stated that Judge Yaffe

7

10

had not disclosed if he was receiving LA County payments. (See SER0062,

11 12 13

lines 18-19.) With that statement in the Motion, there is no way that Judge Yaffe could

14 15 16

consider himself within the group of LA Superior Court judges who would be prejudiced against Fine over that issue.

17

Judge Yaffe was bound to disclose if he was receiving such payments and 18 19 20

to recuse himself under Code of Judicial Ethics Canons 2, 3E and 4D1. (See SER0111-0113.)

21 22 23

Judge Yaffe neither disclosed nor recused himself.

He violated the

Canons. He also violated CCP § 170.1(a)(3), which prohibits a judge from

24 25 26 27

hearing a case in which he has a financial interest in a party. The February 19, 2008 Motion did not state CCP § 170.3. Thus there was no reason for Judge Yaffe to consider it as such. It did refer to the LA Superior

28

Court judges transferring the Sturgeon case. (See SER0062, lines 20-25). The -- 50 --

1

reference to the Sturgeon case was stated “the case was transferred out of the

2 3 4 5

jurisdiction.” Nothing in the document would lead any person to believe that the document was a CCP § 170.3 objection.

6 7 8

Judge Yaffe apparently did not believe it either, as he did nothing for over thirty days, until March 20, 2008, at which time he struck the Motion at the

9 10 11 12

March 20, 2008 hearing. He claimed he was striking a CCP § 170.3 objection which was not served. If this were true, the striking was a futile act. If he was striking a served CCP § 170.3 objection, he was too late as he had to respond

13 14 15

within ten days. Fine did serve a CCP § 170.3 objection on March 25, 2008.

(See

16 17 18

SER0090.)

Judge Yaffe never responded.

As of April 8, 2008, he was

disqualified under operation of law, CCP § 170.3(c)(4).

A Notice of

19 20 21 22

Disqualification was filed on April 11, 2008. It was personally given to him at the April 10, 2008 hearing. There is not any requirement that he be served. (See USDC Dkt. # 1, Ex. 21.)

23 24 25

Fine has fulfilled all of the requirements. Yaffe did not respond to the March 25, 2008 CCP § 170.3 objection. He was disqualified.

26 27 28

-- 51 --

1

He did strike a March 25, 2008 separate Notice of Disqualification filed by

2 3 4 5

Fine in response to his March 20, 2008 sham striking of the February 19, 2008 Motion. The March 25, 2008 Notice of Disqualification has a clerk’s notation

6 7 8

stating “notice ordered stricken per order 3/27/08”. (See SER0083.) The March 27, 2008 Order (SER0168-0170) does not contain a certificate

9 10 11 12

of service. Judge Yaffe was disqualified. No appellate review was necessary. The argument is a sham.

13 14 15

VIII. Conclusion. Fine has been unlawfully incarcerated for nearly eight months by a

16 17 18

criminal judge who persists in retaliating against Fine for having exposed and prosecuted the illegal payment scheme between LA County and the judges of the

19 20 21 22

LA Superior Court. This scheme has cost the LA taxpayers approximately $300 million over the last twenty years. It has corrupted and decimated the California judicial

23 24 25

system. California now has criminals enjoying immunity sitting as judges and

26 27 28

principled people who seek to uphold the law disbarred and incarcerated. But for the fact that it’s true, one might think this is a sick comedy.

-- 52 --

1

The writ must be granted and sanity and some form of integrity restored to

2 3 4 5

the judicial system. At present, the California judicial system is considered at the same level as the California legislature. California Chief Justice George called the California government

6 7 8

dysfunctional in a recent speech to the Academy of Arts and Sciences. He should know. The California Judicial Council, of which he is the Chairman,

9 10 11 12

wrote Senate Bill SBX2-11 and guided it through the legislature. This resulted in retroactivity immunity from criminal prosecution for judges who took criminal county payments, and justices who took such while they were Superior

13 14 15

Court judges. One can only conclude that he was engaging in self-reflection on behalf of

16 17 18

the California judiciary over which he presides, which is part of the “dysfunctional” California government.

19 20 21 22

The duty to restore due process has fallen upon this Court. On behalf of 38 million Californians, and all Americans, Fine urges this Court to accept the responsibility, follow the Constitution, enforce due process and grant the writ.

23 24 25 26 27 28

-- 53 --

1

Dated this _____ day of October, 2009

Respectfully submitted,

2 3

BY: _________________________ RICHARD I. FINE, In Pro Per

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-- 54 --

1

CERTIFICATE OF COMPLIANCE

2 3 4 5

I certify under F.R.A.P. Rule 32(a)(7)(c) and Circuit Rule 32-1 that this APPELLANT’S CONSOLIDATED REPLY BRIEF IN RESPONSE TO APPELLEES’ TWO ANSWERING BRIEFS AND SUPPLEMENTAL

6 7 8

EXCERPTS OF RECORD is proportionately spaced, has a type face of 14 points, and contains 14,491 words and 1,327 lines of text according to the word

9 10 11

processing system on which it was prepared. The words counted are those in the APPELLANT’S CONSOLIDATED REPLY, pages 1-53.

12 13

Dated this 21st day of October, 2009

BY: _________________________ FRED SOTTILE

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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am Fred Sottile. My address is 2601 E. Victoria Street, # 108, Rancho Dominguez, CA 90220. On October 21, 2009, I served the foregoing document described as APPELLANT’S CONSOLIDATED REPLY BRIEF IN RESPONSE TO APPELLEES’ TWO ANSWERING BRIEFS AND SUPPLEMENTAL EXCERPTS OF RECORD 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

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 21st day of October, 2009, at Rancho Dominguez, California. ____________________________________ FRED SOTTILE