Usdc Disbarment - Dkt 6 - Motion To Set Aside

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

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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Case No. MC-09-00129 ABC

In the Disciplinary Matter of RICHARD ISAAC FINE

RULE 60 MOTION TO SET ASIDE ORDER OF DISBARMENT

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California State Bar No.: 55259

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At the outset, the Court did not file Fine’s Response to the OSC after it was given to the Clerk on June 25, 2009, and a courtesy copy was served on Judge Collins.

This failure to conform with Court rules places the entire

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disbarment procedure in question. Further, as shown by the U.S. Supreme Court docket for case no. 08-1573, in Fine v. State Bar of California, the State Bar of California has waived its opposition to the Petition for Writ of Certiorari. This shows that the State Bar has recognized that the disbarment was improper. It should be noted that the

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State Bar also did not oppose the Motion to Set Aside the Judgment in the case of Fine v. State Bar of California, et al, USDC case no. cv-08-2906 JFW (CW)

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in this Court which challenged B&P Code § 6106 and B&P Code § 6007(c)(4) each as being unconstitutional and sought to enjoin the disbarment of Fine. Additionally, on August 12, 2009, the Ninth Circuit reversed Judge Walter in the case of Fine v. Sheriff of Los Angeles County, USDC case no. cv09-1943 JFW (CW), appeal no. 09-56073, and issued a Certificate of

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Appealability on the issue of whether the judge (Los Angeles County Superior Court Judge Yaffe) should have recused himself.

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As the Court is aware, Fine was “disbarred” for filing Federal civil rights lawsuits challenging the constitutionality of LA County payments to LA Superior Court judges. The reason given for the “disbarment” was that the

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lawsuits were “frivolous” and, as such, were acts of “moral turpitude”. The payments, however, were held to violate Article VI, Section 19, of the California

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Constitution in the case of Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (2008) rev. denied 12/23/08. The payments were criminal acts under Senate Bill “SBX2 11” enacted February 20, 2009, which gave retroactive immunity from criminal prosecution, civil liability and disciplinary action to the judges and other employees of governmental entities “because of benefits provided to a

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judge under the official action of a governmental entity.” These actions, which the District Court did not consider, in addition to the

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denial of due process through lack of notice by violation of State Bar Rule of

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Procedure 305, which is a constitutional denial of due process in itself, mandate that the disbarment order be reversed.

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Local Rule 83-3.1.9 is Fulfilled.

I. A.

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The fact that the Review Department did not comply with the notice procedure in State Bar Rule of Procedure 305(b) by considering reversing the Trial Department on Counts 2, 4 and 17 when such issues were not raised by the parties was a denial of due process. The Review Department reversed the “not guilty” finding of the Hearing

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Department, without any appeal of the State Bar, with the State Bar refusing to appeal and without notice to the parties.

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B.

There was an infirmity of proof on all other counts. There was only one charge in the Notice of Disciplinary Charges –

Violation of B&P Code § 6106. The Hearing Department found Fine “not

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guilty” on all counts of dishonesty – Counts 2, 4 and 17. These counts were not appealed by the State Bar.

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The Review Department further dismissed Counts 3, 7, 10, 11, 12, 13, 15, 18 (Count 18, in addition to Counts 2, 4 and 17, was also dismissed by the Hearing Department). The remaining counts are Counts 1, 5, 6, 8, 9 (8 and 9 consolidated as one count), 14, 19, 20, and 21-22 (21-22 considered together).

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Counts 19, 20 and 21-22 related to the Federal lawsuits challenging the unconstitutional and criminal payments from LA County to the LA Superior

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Court judges. As such, no ground for disbarment exists under Sturgeon, supra, or Senate Bill “SBX 2 11”. (LR 93-3.1.9(A)(c) and (d))

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C.

Counts 1 and 5 related to Commissioner Mitchell’s actions in the case of DeFlores.

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Count 1 relates to the disqualifications of Commissioner Mitchell. As shown in Footnote 3 of the Review Department decision, the 2001 contempt order was voided and annulled on August 22, 2002. This made Fine v. Superior

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Court, 97 Cal.App.4th 651 (2002), a void decision as it was based upon a void order. The order is a void order. (Valley v. Northern Fire & Marine Co., 254

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U.S. 348 (1920); no court has lawful authority to validate a void order – U.S. v. Throckmorton, 98 U.S. 61 (1878).

Further, the State Bar Court could not

consider the conduct as it was not in a criminal proceeding. Finally, since the conduct was truthful, it was protected under the First Amendment, especially as it was criticizing the judge. See Garrison v. Louisiana, 379 U.S. 64 (1964).

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Additionally, Commissioner Mitchell did not deny or strike the disqualifications as he had to do one or the other within 10 days. PBA, LLC v. KPOD, Ltd., 112 Cal.App.4th 965 (2003). He “struck” or in the alternative “answered”, which was neither a striking nor an answer. The same infirmities exist for Count 14, which relates to disqualifications

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of Commissioner Mitchell in other cases.

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In Count 5, the record showed that Fine had appealed an “actual order” and that further there was no “class counsel” for the settlement class from which Fine could be removed as no such counsel was set forth in the Settlement Agreement and none had been appointed. The previous “liability class” had been dissolved and replaced by a settlement class and each person in the

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settlement class selected a “personal attorney” to represent them in the claims administration proceeding, which was a post-judgment proceeding. As shown in

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the Review Department decision, a previous appeal was dismissed for lack of standing and did not address the substantive issue of class counsel. The Court of Appeal was wrong when it concluded that it had decided the class counsel issue,

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as it never did. Finally, the State Bar does not have jurisdiction to decide if a pleading is

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“frivolous” or without merit. It can only decide issues under the B&P Code, which do not include such. Further, moral turpitude does not include such. D.

Counts 6 and 8-9 (consolidated as one count).

The record showed that, as to Count 6, Commissioner Mitchell, in his Response, was of the opinion that he was still a temporary judge in the case. At

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the time of the disqualification, the matter before Judge Honn and the Writ of Mandate was not settled and the issue of the class certification in the Court of Appeal was not settled. As it turned out, the case of Linder v. Thrifty Oil, 23

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Cal.App.4th 429 (2000), was decided in June 2000, which showed that Commissioner Mitchell’s decision in the Shinkle case on class certification was wrong, thereby reversing such under stare decisis and putting the class part of the case back before Commissioner Mitchell. Thus the decision of the Review Department that Mitchell was not the temporary judge was wrong under this

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substantive law and Fine was correct.

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As to the consolidated Count 8-9, the record showed that, under CCP §

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473d, a judge cannot change the substance of his decision, which is what Judge Honn did. Further, he made such change after the Petition for Writ of Mandate was filed in the Court of Appeal. The Writ of Mandate was correct when it was

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filed and Judge Honn violated the law when he made his post-filing change. After the Writ has been filed, the trial court loses its jurisdiction to make any

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decisions.

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The Court Does Not Need The Entire Record.

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The entire record is 18 volumes in the State Bar court. This includes 180 trial exhibits and 7 volumes of trial transcript. Additionally, there are volumes in the California Supreme Court. The cost to produce such is prohibitive. Further, since the entire case is encompassed by the First Amendment, the

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Fourteenth Amendment as to Counts 2, 4 and 17, and Sturgeon, supra, and

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Senate Bill “SBX 2 11” as to Counts 19, 20 and 21-22, producing the entire record would be a waste of time and money.

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III.

The State Bar has not opposed the Petition for Writ of Certiorari, nor did it oppose the Motion to Set Aside the Judgment and Declare the Statutes Unconstitutional and Enjoin the State Bar From Disbarring Fine. The Ninth Circuit will decide if a judge must recuse himself for taking the

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unconstitutional and criminal LA County money. This has all come about because of Fine. The question is, who should be removed from the courtroom? Fine, who has challenged the conduct? Or the judges who have taken the criminal payments and remained on the cases? In the State Bar case, the criminal payments were rampant. Additionally,

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Hearing Department Judge Honn was on the Board of Governors of the Special Olympics of Southern California while he sat on the disbarment case. During

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such time, LA County gave the charity $30,000. Commissioner Mitchell, Judge Horowitz, Judge Czuleger and Judge Dukes all received criminal payments from LA County.

Justice Doi Todd

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received criminal payments from LA County when she was a LA Superior Court judge, and Justices Boren and Nott concealed such in the cases of Fine v.

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Superior Court, LACAOEHS and Amjadi v. County of Los Angeles, et al, and Silva v. Garcetti. Judge Honn received criminal payments from Orange County

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while he was deciding the disqualifications of Mitchell. Justices Chin, Corrigan, Kennard and Moreno received criminal payments from Alameda and LA Counties when they were Superior Court judges. Chief Justice George and Justice Baxter are on the Judicial Council of California that authored Senate Bill “SBX 2 11”. Depending upon the year that the LA County payments began,

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Chief Justice George may have received such or have been involved in the creation of such when he was the presiding judge of the LA Superior Court in

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1985. From 1988 to the present, approximately $300 million in criminal

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payments have been made from LA County to LA Superior Court judges.

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Annual Litigation Reports from the LA County Counsel to the LA Board of Supervisors, found at http://counsel.lacounty.gov/ar.asp, show that for fiscal

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years 2005-2006 and 2006-2007, LA Superior Court judges did not decide any case against LA County. In fiscal year 2007-2008, they may have decided two cases against LA County, or these may have been jury verdicts. IV.

Disbarment Should Not Occur.

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The aforementioned shows that Fine has not received due process (LR 833.1.9(a); there was such an infirmity of proof establishing the misconduct as to

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give rise to a clear conviction that the Court should not accept as final the other jurisdiction’s conclusion(s) on the subject (LR 83-3.1.9(d); imposition of like

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discipline would result in a grave injustice (LR 83-3.1.9(c); and other substantial reasons exist to justify not accepting the other jurisdiction’s conclusion(s) (LR 83-3.1.9(a)). Fine was the first lawyer to expose the corruption in the LA Superior Court. The LA Superior Court retaliated with a sham disbarment proceeding.

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During such proceeding, the Sturgeon decision was rendered. Fine and others filed complaints with the U.S. Department of Justice seeking a Grand Jury

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investigation of the illegal payments and indictments under the “intangible right to honest services,” 18 U.S.C. § 1346. The Judicial Council of California drafted Senate Bill “SBX 2 11”

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(enacted on February 20, 2009) giving retroactive immunity under state law from criminal prosecution, civil liability and disciplinary action.

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The State Bar has not opposed the Petition for Writ of Certiorari and did not oppose the Motion to Set Aside the Judgment in case no. cv-08-2906 JFW (CW). But for the unexplainable action of Judge Walter in not granting an unopposed motion, the State Bar would be presently preliminarily enjoined from disbarring Fine.

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In case no. cv-09-1914 JFW (CW), Judge Walter denied an unopposed Petition for Writ of Habeas Corpus where LA Superior Court Judge Yaffe

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received criminal payments from LA County, and denied a Certificate of

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Appealibility. On August 12, 2009, the Ninth Circuit granted the Certificate of Appealibility on the issue of whether the judge should have recused himself. (Appeal 09-56073) All of the criteria of LA 83-3.1.9 have been fulfilled. Fine respectfully submits that this Court should not make the same error as Judge Walter of acting

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in favor of “corrupt judges” when there is not any opposition to either a Motion to Set Aside a Judgment or a Petition for Writ of Habeas Corpus. Under

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Caperton v. A.T. Massey Coal Co., et al, 566 U.S. ___ (2009) decided June 8, 2009, and cases cited therein, the actions of the LA Superior Court judges and the California Supreme Court justices, all of whom received “criminal

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payments,” and the Hearing Department judge whose charity received a payment from LA County while he decided the disbarment case, all would be

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held to be denials of due process. Each of these judges would be required to recuse themselves. Each of the California Supreme Court justices would be required to recuse themselves. After the corruption is removed, after due process is restored, after substantive law is followed, and after the First Amendment is obeyed, there is

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not any fact left upon which to base any charge against Fine. The disbarment should not occur.

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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am ___________. My mailing address is _________________________. On August ____, 2009, I served the foregoing document described as RULE 60 MOTION TO SET ASIDE ORDER OF DISBARMENT 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: None: No other parties identified within Order to Show Cause. No other parties identified in court docket on PACER. I certify and declare, under penalty of perjury under the laws of the United States of America and the State of California, that the foregoing is true and correct. Executed on this ____ day of August, 2009, in the city of _____________, California. ____________________________________ Signature

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____________________________________ Print Name

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