Motive Uncovered!

We were literally stunned when we recently uncovered the fact that a representative for LA County's Board of Supervisors actually requested that local attorney bar associations submit amicus curiae ("friend of the court") letters to the California Supreme Court in support of judges in the appeal to overturn the Sturgeon decision which held that the payments the County had been making to judges for 20-some-odd years were illegal.

Suspicious and knowing there was no good reason for the County to take a position against its own interest and insist it should continue making huge bonus payments to judges, we investigated and learned that the following entities submitted amicus letters or briefs in the case: the LA District Attorney, the LA County Public Defender, and the Association of Southern California Defense Counsel (ASCDC). (See here, page 11.) (We note with interest that the LA County Bar Assn apparently rejected the request. We also note with great interest the ASCDC's surprising and naive revelation that "the California Legislature promised its continued support of local judicial benefits in return for judges' support of the 1997 Trial Court Funding Act and of the 1998 Trial Court Unification Act." There sure are a lot of people in bed together from what are supposed to be independent entities.)

If you are wondering, as we were, why on earth the LA County Board of Supervisors actually fought to continue making payments to judges after the Sturgeon decision relieved them of any possible obligation, here's what we found:

Article II, Section 4 of the county Charter:

"The County of Los Angeles shall have a Board of Supervisors consisting of five members ... They shall each receive as compensation for their services a salary, payable monthly from the County Treasury, which shall be the same as that now or hereafter prescribed by law for a judge of the Superior Court in and for the County of Los Angeles, except that retirement benefits shall be those now or hereafter provided by law for officers and employees of the County of Los Angeles."

That's right ... LA County Supervisors' salaries are dependent upon the amount that superior court judges get.

The California Constitution section which governs judges' compensation was specifically constructed to say that only the State may pay judges' salaries in order to avoid just this sort of improper situation. Yet here we are, with the guilty parties all grinning smugly like Cheshire cats after they managed to sneak through a late-night bill granting themselves retroactive immunity from criminal prosecution. (Note to Supervisors: nothing in SBX2-11 (may it soon rest in peace) grants you immunity for any monies you received as a result of your approval of the payments to judges.)

On a different subject, we note that LA County's payments to superior court judges were, all other arguments aside, illegal until February 20, 2009, when SBX2-11 was enacted. Because SBX2-11 granted retroactive immunity from prosecution, the payments cannot be recharacterized as having been legal all along.

And the 1988 Memorandum, an answer to their request for a legal opinion, proves judges and Supervisors knew all along that the payments were illegal. Yet they decided to do it anyway; it was many years before they were caught.

Richard Fine was factually, legally, morally and ethically correct and beyond reproach when he insisted the payments were illegal. As an officer of the court, he had a duty to press the issue.

Judge Yaffe was not wrong as a result of innocence about the payments' illegality. He knew full well, from several resources, that the payments were illegal at the time of Richard's disqualification demands. He also well knew:
* that the fact that he hadn't ruled in any substantial way against the County in years had the clear appearance of bias
* that he could not be both judge and adverse witness in the same trial
* that THREE Supervisors had illegally received campaign contributions from parties seeking project development votes in their favor
* that Richard had not received any notice of the secret January 8, 2008, hearing, thus the hearing could not lawfully proceed, making Judge Yaffe's order unquestionably "void"
* that his prosecution of Richard for his refusal to obey the "void" order was wholly improper, and his continuing refusal to release Richard in the face of all these facts is a crime against the tenets of justice
* that his judicial reputation is extremely unflattering, a black mark on the reputation of the superior court and judges as a whole.

One thing Judge Yaffe apparently doesn't know: taxpayers are no longer on the hook for paying damages when elected officials are found guilty of improprieties. Just ask Mike Antonovich.

Decent, moral, honest judges must be terribly ashamed of themselves by now for not having stepped up sooner. (Why didn't you?) Still, "late" is certainly better than "never," and the choice of never, even if by default, is not acceptable from one who wears a robe.

It's embarrassing enough as it is for us as citizens to watch it happen. Stop letting things get worse. Have you given any thought as to what will ultimately happen once this all plays out?

No, it won't be easy ... which is exactly how others of us know it's the right thing to do. If you don't understand why you need to stand up, read this. Then look in the mirror and, after reminding yourself of the purpose of the oath you took, the reason it was created in the first place, ask yourself if you're honestly abiding by it. When the whole story finally has a full airing, will you be perceived as part of the problem? Or will you be a part of the solution that leads the people out of this mess of apparent corruption that's being perpetrated against us all? Until then, can you give us any reason to have even an iota of confidence in the honesty of the judicial system in Los Angeles County?

We now await a ruling from the Ninth Circuit, assuming they can only conclude that being prevented from earning an income constitutes immediate, irreparable and continuing harm worthy of an emergency hearing. If it doesn't, nothing does.

[Next investigation: Did LA County continue to make payments to LA Superior Court judges after the Sturgeon decision was issued (10/10/08) and before SBX2-11 was enacted (2/20/09)? And if so, which judges, if any, rejected them?]

See "The Best Courts (Your) Money Could Buy" for additional details.

Also see "What Are We All Waiting For, Fellas?"

"Chronology of Events Shown By Court Records Demonstrates LA Judges Targeted Richard I. Fine For Upholding California Constitution"

"In the process of winning the budget cases, in 1998, Fine won an injunction at the trial court level which stopped the salaries of the Governor, the members of the State Legislature, the judges and court commissioners and state employees during the 1998 budget crisis. This injunction effectively shut down the California government until an 'emergency legislation' bill of $19 Billion was passed to allow the government to function during a 'budget impasse' under the California Constitution. This action of 'emergency legislation' had never been taken before by the Governor and State Legislature to relieve the pressure of a 'budget crisis' upon the people of the State of California."

"The chronology of events as shown by the court records demonstrates that commencing in 1999, LA Superior Court judges and court commissioners then commenced deciding cases against Fine's clients or refused to award Fine attorney's fees in cases where he had prevailed. After these actions, Fine became aware that LA Superior Court judges and court commissioners were also receiving payments from the LA County in addition to their state salaries, and not disclosing such to the other party in any case where LA County was a party or to the public. In 1999 and 2000, Fine began challenging the judges and court commissioners for not having disclosed such and for having violated due process in the state court appeals of the cases and ultimately in two federal civil rights cases for violating the U.S. Constitution, the California Constitution, the 1997 Trial Court Funding Act and the Code of Judicial Ethics."

"The Presiding Judge of the LA Superior Court, who had received the monies from LA Country and whose salary was stopped by the injunction then filed a complaint with the State Bar. Court records show a complaint was filed by James A. Basque, the then Presiding Judge of the LA Superior Court and the witness was LA Court Commissioner Bruce E. Mitchell, whose payment of salary was stopped during a 'budget impasse'. Additionally, under the California Supreme Court decision in 2003, he would receive the salary after the crisis was over with an appropriation for such in the new budget. Bruce E. Mitchell was also a named defendant in one of the federal civil rights cases for receiving payments from LA County while he had LA County cases before him and not disclosing such."

Click here for full article.

What Are We All Waiting For, Fellas?

Stalled on all fronts? What are we all waiting for, fellas?

The US District Court remains silent, pretending it has no clue it's actually required to issue a Certificate of Appealability (with detailed reasoning provided) to the Ninth Circuit Court of Appeal, which was requested three weeks ago. Do the rules not apply to judges? (Never mind, stupid question.)

Meanwhile, Richard Fine still sits in jail.

The District Court is also playing games with documents in its PACER public access computer system. Richard Fine had two documents filed which do not appear in the dockets, both of a critical nature, and the handling of both is pointedly suspicious.

The first is a simple document listing several persons authorized to sign legal documents on Richard Fine's behalf. This was needed because, when Richard was first jailed, he was actually denied simple pencil and paper. He was eventually able to dictate his Petition for Writ of Habeas Corpus (over the telephone, via collect calls) to a volunteer, and said volunteer wrote it up, signed same on Richard's behalf and filed it with the District Court without any problem. Subsequent documents, however, were rejected by Magistrate Judge Carla M. Woehrle because she insisted that they contain Richard's signature.

Okay, fine. (sigh) No games going on here, no siree.

Meanwhile, Richard Fine still sits in jail.

So we prepared and filed a signature authorization on May 7th, providing a list of several volunteers' names that Richard authorized to sign documents on his behalf. Documents filed afterwards were accepted, but the signature issue was no longer a problem anyway as the support team had finally made some progress with the Sheriff's Dept. and were able to have documents delivered to Richard for him to sign personally. (We're talking mid- to late-May here; he was jailed on March 4th.)

On June 12, Judge Woehrle filed her Report and Recommendation denying Richard release for ridiculous reasons.

On June 25, Richard filed his objections to Judge Woehrle's report, including the objection that she clearly hadn't even reviewed the entire petition he'd filed.

On June 26, Judge Woehrle had the following entry made in the docket: "NOTICE OF DISCREPANCY AND ORDER: by Magistrate Judge Carla Woehrle, ORDERING proposed supplemental petition submitted by Petitioner Richard I. Fine received on 5/26/09 is not to be filed but instead rejected. Denial based on: Not signed by attorney or pro se litigent [sic]; ... "

Meanwhile, Richard Fine still sits in jail.

The signature authorization never appeared in the case docket on PACER. The signature authorization was filed 3 weeks before the rejected document was filed and almost 2 months before Judge Woehrle rejected it.

No document filed by Richard should have been rejected. Judge Woehrle knew that Richard was being prevented from signing his documents, yet she rejected what he was able to have filed, trying to inform the court just how maliciously he had been treated in being refused any means to communicate with the court as ordered by Judge Yaffe. (Aren't we still at least pretending there's such a thing as "due process"?)

Worse, Judge Woehrle clearly did not review the entire record, just as Richard noted, because she entered her Report the day before she rejected this document.

The other document missing from the PACER docket is in a different case, USDC case no. 09-MC-00129, titled "In Re Richard I. Fine". A team volunteer stumbled across this new case number in early June; the docket listed only an OSC (Order to Show Cause) requiring that Richard show cause why he should not also be disbarred from practicing before the District Court. The OSC was executed May 27th; there was no proof of service attached and no copy was ever served on Richard.

Richard dictated a response to the OSC and it was filed June 25th. It STILL does not appear in the docket.

Meanwhile, Richard Fine still sits in jail.

As we speak, our representatives in the Legislature are meeting secretly again, wrestling with the year's second budget crisis. The last time this happened, we were saddled with the horrific surprise called Senate Bill SBX2-11, the bill which last February rewarded the good ol' boys who'd been giving and receiving millions upon millions in illegal payments (judges, county supervisors and their middlemen), with retroactive immunity from criminal prosecution.

How nice for them.

Meanwhile, Richard Fine, who has committed no crime, still sits in jail.

The guy with the guts to honor his oath as an officer of the court and blow the whistle ... LOUDLY when nothing else worked ... is being purposefully destroyed. His jailers' message is crystal clear: mess with us and our buddies will help us extract a heavy price.

If they can get away with doing this to an honorable man like Richard Fine who has as tools a law degree and a lengthy successful career as a taxpayer's advocate, what chance would you have?

Here, we have missing documents, pretend delays, nothing but excuses, excuses, and more excuses. Meanwhile, no decision yet from last Monday's hearing in Sturgeon v. County of Los Angeles, in which Judicial Watch is seeking an injunction to stop the bonus payments to LA County's judges. Judge Richman has been involved with the case for 3 years, yet he took the decision under submission in order to think about things another 30 to 60 days?

So again we ask: What are we all waiting on, fellas ... as Richard Fine still sits in jail?

Judges Fabricate Delays

http://www.ca2.uscourts.gov/docs/forms/howtohabeas.pdf

NECESSITY OF CERTIFICATE OF APPEALABILITY (COA)

An appeal from either the denial of a writ of habeas corpus under §2254 or from a §2255 motion cannot proceed in the Court of Appeals unless a district or circuit judge issues, or denies a request to issue, a certificate of appealability (COA).

A request for a certificate of appealability should first be made to the district court judge who rendered the judgment denying the writ, or who denied the §2255 motion. The district court judge will either issue a certificate of appealability or state the reasons why a certificate should not issue. Often this language is contained in the order disposing of the writ or motion. The district court should then forward the certificate or statement to the Court of Appeals together with the Notice of Appeal.

In Richard Fine's case, Judge John F. Walter's final order said simply:

IT IS ORDERED: (1) that the Report and Recommendation of the United States Magistrate Judge be accepted; (2) that judgment be entered denying the petition and dismissing this action with prejudice; and (3) that the following motions be dismissed as moot in light of this order: ...

Judge Walter's Judgment simply said:

IT IS ADJUDGED that the petition for writ of habeas corpus is denied and the action dismissed with prejudice.

The USDC docket shows:

#34 - 7/1/2009 - PETITION for Certificate of Appealability to USDC by petitioner Richard I. Fine; filed as Notice of Appeal to 9th [Circuit] from district court judgment, [docket # 31 filed 06/29/2009]. cc: Richard I. Fine; Attorney General. Modified on 7/6/2009. (Entered: 07/06/2009)

As of today, the document posted online as Richard's request for a Certificate of Appealability on PACER is identical to the one we filed; there are no modifications to it. The only other "modification" would be USDC's conversion to a "Notice of Appeal", but there is no such document in the docket.

NOWHERE in the 9th Circuit's docket do we see the 9th Circuit's receipt of the USDC's "Notice of Appeal" or issuance of its July 10th notification letter back to USDC informing it that it must rule on the request for Certificate of Appealability. And NOWHERE in the USDC docket do we see any order about converting the Certificate to a "Notice of Appeal".

As the USDC has been aware since Monday, July 13th, the 9th Circuit is refusing to set a briefing schedule and the appeal is stayed, absent an emergency, "until the district court and, if necessary, this court determine whether a certificate of appealability should issue."

Richard's request for a Certificate of Appealability was filed on June 29th. Now, almost three weeks later, the USDC has yet to rule. Strangely, a copy of the Request was forwarded by the USDC to the Attorney General, which was the first we learned there was any interest by the AG other than its intent to review of SBX2-11 at the behest of the Commission on Judicial Performance (which was later "withdrawn"). Why is the USDC court purposefully delaying? Are they waiting for some other development? Is "Son of SBX2-11" being drawn up during this week's emergency secret legislative sessions? Are you waiting to see how the superior court rules in response to the Sturgeon hearing held on Monday? (Having worked for 3 years on the case, one wouldn't think the judge could have any legitimate reason to take under advisement the motion for temporary injunction to stop the payments to judges.)

The USDC may someday claim their delay is due to the requests for recusals filed against Judge Walter and Magistrate Judge Woehrle, but the requests weren't submitted until July 9th. (The docket reveals that the requests were converted to motions for disqualification, and assigned on July 13th to Judge George H. King for determination.)

28 U.S.C. § 2253, the controlling statute, is no help in that it contains no deadline for making such a ruling. http://www.law.cornell.edu/uscode/28/usc_sec_28_00002253----000-.html

The bottom line seems to be this: USDC is deliberately delaying its obligation to timely set forth with particularity why Richard Fine's case is appealable. The court has admitted its agreement that the case is appealable by sending up the Notice of Appeal and the entire court record to the 9th Circuit. (See docket.) And they do these things regularly, there's no legitimate reason for three weeks to have passed.

A decent man is sitting in jail ... unjustly ... day in and day out for FOUR AND A HALF MONTHS now ... while each week, it seems, a new judge takes a crack at embarrassing the judiciary in increasingly novel ways. There may well be no decent judges involved, for a moral one would long ago have put a stop to the campaign to cover up the uncoverable and deal with the mistakes made and criminal acts committed. Unless faith in the honesty of the judiciary can somehow be restored ... quickly ... the long-term consequences of such chicanery right in our faces is a collective insult that will be remembered with disgust every time the subject of judicial integrity is raised.
_______________

116 F.3d 1268

Upon the filing of a notice of appeal and a request for a certificate of appealability, the district court shall indicate which specific issue or issues satisfy the standard for issuing a certificate, or state its reasons why a certificate should not be granted. 28 U.S.C. § 2253(c)(3). If no express request is made for a certificate of appealability, the notice of appeal shall be deemed to constitute a request for a certificate. Finally, if the district court declines to issue a certificate, the Clerk of the district court shall forward to this court the case file with the notice of appeal, the district court's final order, and the order denying the certificate. Id. Accordingly, we remand this case to the district court for the limited purpose of granting or denying a certificate of appealability within 42 days of this order.

________________

CERTIFICATE OF APPEALABILITY DENIED

If the district court judge has denied the certificate of appealability, the appellant may request the issuance of a certificate of appealability by the Ninth Circuit Court of Appeals, by making a formal motion.

"Schwarzenegger, California lawmakers plan late-night session to finish budget"

Beware! The last time this happened, they snuck thru Senate Bill SBX2-11, giving retroactive immunity to judges.

Pleadings and Exhibits Filed July 15, 2009

Exhibits:

1 - 11/10/88 memo to Zolin from County Counsel re local judicial benefits

2 - Supreme Court Docket, Fine v. State Bar

Pleadings:

1 - Request for Judicial Notice re Supreme Court docket, filed in 9th Circuit Court of Appeals

2 - Request for Judicial Notice re 1988 memo, county budgets, county counsel reports, etc., filed in 9th Circuit

3 - Request for Judicial Notice re requests for recusals of Judge John F. Walter and Magistrate Judge Carla M. Woehrle in light of State Bar's waiver of right to reply in Supreme Court case, filed in USDC in Fine v. Sheriff

4 - Request for Judicial Notice re recusals in light of State Bar's waiver of right to reply in Supreme Court case, filed in USDC in Fine v. State Bar.

California State Bar waives right to respond to Petition

In the U.S. Supreme Court case of Fine v. State Bar, the updated docket (link above) shows Fine's Petition for Writ of Certiorari ("disbarment" issue) has been scheduled for conference before the justices on Sept. 29, 2009.

Presumably finally realizing that its position has no merit, not the least of which are the First Amendment issues, the State Bar of California has filed a waiver of its right to respond to the Petition.