Saturday, April 04, 2009

LA Court Transcript Reveals Judicial Immunity, Curious Proceedings, Conflict

Serving an indefinite sentence, without bail, no release date, no hearing set.

For the County of Los Angeles

March 4, 2009 Contempt Sentencing of Richard I Fine (Open Court)


THE COURT (Judge David Yaffe): All right. Mr. Fine, I will give you an opportunity to comment on the changes before I impose sentence.

MR. FINE: First of all, your Honor, as your Honor is aware, given Senate Bill SBX 211, (California Budget Bill Provision, Feb. 2009) the payments that you received are unconstitutional and, consequently, you will be given immunity for receiving those payments and any action you have done receiving those payments. Therefore, the action that you’ve taken in this contempt proceeding is illegal.

The reasons that you’re saying as (my) not having brought up the disqualification of you in the underlying case are, therefore, invalid because of the fact that, given the bill and the disqualification and the immunity that you’re given and the fact of the Sturgeon Case, (Sturgeon vs County of Los Angeles) which says the payments are unconstitutional, I was not under any obligation to bring up the disqualification on behalf of my client with respect to you if the client didn’t want to have this done.

So therefore, what you are talking about as an earlier disqualification of you in the underlying case really doesn’t have any relevance. We are now in the situation of you’re ordering sanctions against me personally and the payments of money by me personally to the County of Los Angeles, an order which you issued without notice or hearing which is unconstitutional in and of itself. That order is illegal and invalid and an order for which the State Legislature has found that you did an illegal act.

So in dealing in that part of it where you’re now saying that I should have disqualified you in the underlying case, that reasoning doesn’t hold water. So consequently, on this part of your judgment, you’re entirely wrong and that part, needless to say, would get overturned.

With respect to the issue of you not being served with a copy of the April 11th disqualification, unless I’m mistaken, I believe, and I think we can pull it, that the April 11th disqualification shows that your Honor had proof of service. I may be wrong on this, but I’m pretty sure that it does, in fact -- it was filed in this court, so you knew about it. You knew that you were disqualified, and the fact of the matter is, even if you hadn’t been served with it, you were disqualified under section 170.3(c) (4), by law, because of the fact that you did not respond to the March 25th C.C.P. 170.3 objection that was personally served upon you.
So consequently, you are out. There is nothing that you can really do about it. So you didn’t have any jurisdiction to go forward and make any type of orders.

Now, granted, you have now shown in here that the April 15th order that is the order that actually made an order of $46,000.00 to be paid to real party in interest, which is the party that Mr. Comer and Mr. Rosen represent, that order you are not relying upon here. So really, what we have in this case is we have an order of January 8th—is the only order that is existing that says that I should pay any attorney’s fees and that order does have an amount in it.
So what you’ve got here is you’ve got a judgment where you are holding me in contempt for an order that was unconstitutional..........

.......and also which the State Legislature and the Governor say is illegal to pay money of a non-existent sum to people where you are now saying I am in contempt based upon an order of a Commissioner who has not been appointed as a referee because --

just because someone is assigned to a Department, because a Commissioner is assigned to a Department, does not mean that he has the ability to preside in the Department because being assigned to a Department does'nt mean he’s sitting there. In order to preside in the Department, he’s either going to be a temporary judge or he has to have the stipulation of the parties, litigants, under section -Article 6, section 21 of the California Constitution, or C.C.P. section 259(d), which Commissioner Gross did not have or he has to receive an appointment as a referee.
And you do not even show that he had received any appointment as a referee. You don’t even refer to that in here. You just say he’s appointed to preside in the Department. That does not make him a referee.

nd there are specific sections. In order to be a referee you have to be appointed as a referee. There is no order in this case which shows that Commissioner Gross was appointed as a referee. And in fact, when we dealt with the objections and so forth -- and, in fact, the motion to quash the subpoena, motion to quash the writ, Commissioner Gross didn't even handle that. He sent it out.

Using your theory, if he were, in fact, the referee in the case, he would have had the ability to deal with that particular issue because he would have the ability to deal with the questions. He would have the ability to deal with whether, in fact, the writ was properly issued. But he didn’t. He sent it out. So consequently, we have a situation that we have a person that is a Commissioner who is not a referee and whom you even admit there is no specific order making him a referee. So you’re wrong throughout this judgment. It is highly fallacious.

Now, we get to the other part of the judgment which is dealing with the facts of practicing law without a license or holding himself out as practicing law, or entitled to practice law. There is no order in this particular trial which says that I was ordered inactive. There is no order that says that my license was taken away. That’s not even existing. And in fact, you don’t even refer in this judgment to any evidence that says that. And if, hypothetically, there had been such an order entered, that would have been invalid because of the fact that the underlying state bar proceeding was involving the issue of my having brought the LACHAYOS Case and the Silva versus the County of Los Angeles case, which alleged that the L.A. County payments to judges were unconstitutional as a violation of Article 6, section 18, of the California Constitution and unconstitutional under the United States Constitution of Article 1 and Article 14.

Now, as we know, the Sturgeon Case (Sturgeon vs County of L.A.) held that those payments were unconstitutional under Article 6, section 19, of the California Constitution. Senate Bill SBX 211 affirmed the Sturgeon Case and gave the governments, the public officials, the government employees and everyone immunity for actions relating to those government payments. The State Bar, who is the authorized administrative arm of the California Supreme Court, California Supreme Court being a government entity, ends up prosecuting me for having filed those cases claiming that the filing of those cases was frivolous and, therefore, it was moral turpitude. They got immunity for that illegal act.

What I did is I appealed the hearing judge’s statement or conclusion that those were frivolous and recommendations of disbarment and an order being inactive that went to the California Supreme Court. The California Supreme Court did not order me to be inactive and only denied the petition for review under B&P Code 6084 (a).
The California Supreme Court has to enter an order, and on the case of in re rose, it specifically says that when one makes a timely petition for review, The Court must enter the order. They must independently review the situation. So there is no order by the California Supreme Court.
But it goes even further because three members of the California Supreme Court received immunity by having been judges that received payments from their counties, and these judges were Chin, Corrigan and Moreno. So they were even out from even being able to decide that issue.

And in addition to that, you have the Chief Justice George and Justice Baxter who are the Judicial Council who are the group that wrote Senate Bill SBX 211, so they’re out because of the fact that they were prejudiced because of the fact they wrote the bill that gave the immunity to the judges. So even if there had been some type of a decision, the Supreme Court was out on it. So basically, what you have, if they even had put in the order, the order didn’t work.
The Court: is there any judge or justice in California that can order you to do anything?

Mr. Fine: yes, there is, and basically, those are:

  1. The judges that are in San Francisco County who did not receive the payments.
  2. The judges in Yolo County who did not receive the payments.
  3. The judges in Mendocino County who did not receive the payments.
  4. The justices on the California Court of Appeal who did not receive the payments.
  5. The justices on the California Court of Appeal who did not receive the payments.
  6. And two judges on the California Supreme Court, Judge Wordegar, and Judge Kennard, having been in the Los Angeles Superior Court in 1988 and even though the payments started in 1988, she, I believe, left the Los Angeles Superior Court in August of 1988 and, therefore, may have been off The Court before the payments began.

    So the answer to your question is yes, there are judges within the county -- California judicial system that can order me to do something. You are not one of them. And approximately 1,600 of these superior court judges are not one of them. And a certain amount of Court of Appeal justices are not part of them. And a minimal three to five justices of the California Supreme Court are not one of them.

Yes, there are people in the California judicial system who are clean. There are a lot of people who are not clean, and those are the people who cannot order me to do something with respect to this particular case and who cannot order people to do things involving payments from counties. Unfortunately, your Honor, you are in this group that is disqualified. Not by me and not by my opinion, but by the opinion of the Legislature of the State of California and the Governor of California who have passed the law that have given you immunity for your illegal acts.
So essentially, the judgment that you have tendered is basically void because of the fact that you do not have the jurisdiction to go out and enter this judgment. You didn’t have jurisdiction to sit on this case, and no matter how much you want to try and get around that and no matter how much you want to dance around it, legally speaking, and no matter how much you want to avoid an act of the Legislature of the State of California and signed by the Governor of the State of California, you cannot do it.

We are no longer dealing in your interpretation of law versus my interpretation of law. We are now dealing with the law of the State of California which said that the acts that you have done are illegal. They gave you the immunity for it. You cannot be prosecuted criminally in the State of California for your acts. You are not -- you cannot be held civilly liable in the State of California for your acts. You cannot be punished by the Commission on Judicial Performance in the State of California for your acts.

On the other hand, in the federal system, it’s a different story. There, under 18 United States Code Section 1346, you can be held liable for the violations of the implied or intangible right to perform honest services. You are still subject to federal criminal prosecution and you are still subject to federal liability. So that is where we are sitting.

Now, you may take your position, which you obviously have, against the federal law. You may take your position with respect to claims that you have jurisdiction to do something. I have my position, which is taking you up through The Courts and going into the writs of habeas corpus, which will ultimately decide these particular issues. You have done your thing here and I am respectfully advising you that it’s void; that it is illegal and it’s an illegal judgment.

The Court: All right. Thank you, Mr. Fine.

Mr. Fine: and that is where we are sitting. I respectfully suggest to you that if you’re thinking of any type of imposing of a sentence and—which you are indicating in here, I suggest that you may want to delay the actual serving of that sentence until such time as we end up finishing off all the writs because of the fact that what does happen is that even though you may have immunities under state laws, you don’t have immunities under federal laws for any type of false imprisonment or anything else on this particular order. So we’re both dealing in risk here.

The Court: All right. Thank you, Mr. Fine. Anything, counsel?

Mr. Comer: Yes, thank you, your Honor. Most of the arguments you heard before and I don’t need to respond to those. We would ask The Court to enact sentencing today, and on one amendment to the ruling is paragraph 7 of page 14. We respectfully request The Court to amend that sentencing today and order Mr. Fine to take down the website which is still up to date.

Mr. Fine: Well, your Honor, in response to that, your Honor, the State Bar’s, quote, “disbarment order,” has not gone into effect. So consequently, there is no disbarment of me as of the present time according to the California Supreme Court, see, because you are dealing only on what is being considered an order of the State Bar of California, which itself is an invalid order. And if they are trying to go by anything done by the California Supreme Court, that order doesn’t go into effect until, I believe it’s March 13th.

The Court: I don’t think this is the appropriate time for me to order the contempt nor to do other things because then what if he doesn’t do those and, you know, this proceeding…

Mr. Comer: Thank you, your Honor.

The Court: -- proceeding has got to have a terminating point, and I think this is it.

Mr. Comer: Then we have nothing further, your Honor.

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