9thCircuitBrief&CertificateCompliance090109

8/14/2019 9thCircuitBrief&CertificateCompliance090109

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UNIW D STATES COURT OF APPEALS R E c E 1 V E D OLLY c DwYER CLERKU.s. COIIRTOFAPEALS

Atlp 3 1 20%OR THE NINTH CmCIJITFILED --- --. --DOCKETED

DATE INITIALRJC 1. FINE,

Appellant and Petitioner,

VS.

Case No. 09-56073

D.C. No. 2:09-cv-019l4 JFW (CW)

SY RIFF OF LOS ANGELESCOUNTY, et a1,

Appellees and Respondents

APPELLANT'S OPEM NG BRIEF

RICHARD 1. FINEPrisoner ID # 1824367c/o Men's Cenkal Jail44l Bauchet StreetLos Angeles, CA 90012

Pro Se

Case: 09-56073 08/31/2009 Page: 1 of 48 DktEntry: 7047502


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l . The unconstltutlonal, lllegal cnmlnal pa ents mandate recusal .... .....................3a 2. The charges of attacking the integrity of the court mandate recusal ............. . ......34

3 Recusal is man ted because Judge Yaffe is judging his own act1'ons..................385 21. Jtltl;t l lfKftt -t%tl' S klllAll tli lrrl lllt rrl Etlltll ttkl S rtltl IS tl .............-............ .... .. 3 6)6

7 5. Recusal is mandated because the system of a local gove ent who is a pa8 to a case mying the judge of the case has been held a dem'al of due process .......399 (2 )ll lllzs 1-()11 ........ .-... .... ......... .4 1

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1 1. lntroduction2 'Ihis case is a classic example of the actions of ajudge whch Supreme Cottrt34 cases have consistently held to be a denial of due process as such itoffer a

5 possible temptation to the average . .. judge to . . . lead him not to hold the6

balance nice, clear and tnze''. (Caperton v. ,4.X Massev Coal Co., et al, 566 U.S.78 (2009) decided June 8, 2009, Slip Opinion page 16 (quoting Aetna Life lns.9 Co. v. L tnwjc, 475 US 8 l3, 825 (1986)n quoting Ward v. Monroeville, 409 U.S.10

11 57, 60 (1972), in ttu'n quoting Tumev v. Ohio, 273 U.S. 510, 532 (1927).)12 .n this case , Los M geles Cotmty Superior Court Judge David P. Yaffe13

(along with al1 other Los Angeles County Supelior Court judges) received415 $46 300 per year from Los Angeles Cotmty (hereinafter KCLA County'l. This16 payment was paid as ''MegaFlex'' benefits, a professional development17

18 allowance and a contribution to his 40l(k) plan. 'I'he tMegaFlex'' benefits and19 the professional development allowance could be taken in cash. The payments20zl were made to G&attract and retain qualified people to serve as judges in this (LAj22 '' s Sturgeon v Counp (l/vo,g Angeles, l67 Cal.App.4th 630 (2008)ounty ( ee ,23

rev. denied l 2/23/08, for a history pf payments.)425 Judge Yaffe and a1l Superior Court judges are state employees and are26 elected every six years under the Califomia Constimtion. 'Fheir compensation''2728 is set by the Califomia Legislattzre under Article V1, Section 19, of the

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l Califomia Constitution. The LA County payments are approximately 28% of2 their state salary of $178,800' with the LA Cotmty payments, and their state3

4 benefits and the LA County payments, the LA Superior Court judges receive5 approximately $249,000 per year. (LA Cotmty's payments to judges were6

recently reported as having been increased to $57,026, or 32% of their state

8 l See for exnmple , the Daily Breeze's Jtme 6 2009 editorial GKA Questiona al-y . , , ,9

of Judmnent'' at httpr//o w.dailvbreeze.com/editorial/ci l 2537056.)10 G = r -

11 The Sturgeon case held that the LA County payments violated Article Vl,12 Section l9, of the Califomia Constitution. Subsequent thereto, Senate Bill1314 CCSBXZ 115' written by the Judicial Cotmcil of Califomia, was enacted on

15 February 20 , 2009. Such bill gave retroactive immtmity from its effective date16

of May 21, 2009, to a11 judges, amongst others, from criminal prosecution, civil17i8 liability and disciplinary action on the potmd that the benefits'' judicial19

paymentsj Ewere not authorized under law''. Senate Bill LLSBXZ 1 1'' was a state2021 statute and did not affect Federal law or the rights under the U.S. Constitution.

22 The LA Cotmty payments have been occurring since the 1980s (Sturgeon,23

supra). LA Superior Court judges have continuously presided over LA County425 senate Bill tSBXZ l l'' has provided that county payments shouldaSeS .26

continue as they existed, wit,h a 180-day termination notice, except as to those27

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l judges currently serving. 'I'he constimtionality of tLSBXZ 1 1'' under the2 California Constimtion is not before this court.34 The actions of Judge Yaffe, however, of receiving LA County payments in

5 addition to his state salary and benefits, wllile LA Cotmty was a party before6

him in the tmderlying case of Marina Strand Colony 11 Homeowners Association78 C nlv ofluos Angeles (LASC case no. BSl09420.) Making an order in favor ON9 of LA County for appellant to pay attorney's fees and costs to LA County and its

10

11 co-applicant for an Environmental Impact Report (E&E1R'') without notice to12 Appellant, without Appellant present at the hearing, and in violation of the1314 Public Resources Code, and then presiding at a contempt proceeding to require

15 Appellant to participate in judgment debtor proceedings including incarcerating16

Appellant until he disclosed his assets is before this Court.17

18 The Supreme Court precedent has been crystal clear from Tumey supra,19 through Caperton, supra. 'l'he payments from LA Cotmty to Judge Yaffe2021 mandate his recusal in both the Marina Strand case and the contempt case.k2 'Further, he cannot judge his own acts in the contempt case (1n Re23

Murchison, 349 U.S. 133, 136 (1955), cited in Caperton, juprw Slaip Opinion at24 -25 10zge .26

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l H. Statement of Jurisdiction.2

The jurisdiction of the District Court wms based upon 28 U.S.C. j 22543

4 (Petition for Writ of Habeas Corpus by Person in State Clzstody). Appellant5 Richard 1. Fine (hereinafter ''Fine'') has been in the custody of LA Cotmty67 Sheriff Leroy D. Baca since March 4, 2009, having been found guilty of

B f urt He is being held without bail for an indefmite term andontempt o co . ,9

without any scheduled court appearance. (See Judgment and Order of0

11 Contempt, Section V, Subsection 4, page 14, Exhibit ILC'' to the Petition for Writ12 of Habeas Corpus, Dkt. #1. Mr. Fine is sentenced to confmement in the county13

14 jail until he provides a1l of the information he has been ordered to provide .. . '')15 A Certificate of Appealability was granted on August 12 , 2009, tmder 2816

U.S.C. j 2253(c) and Fed.R.App.proc. 22(b), thereby establishing appellate7

18 jurisdiction.19

111. The appeal is timelv and from a final order.2021

The Distict Court entered its judgment on Jtme 30, 2009 (D1d. #30). A2223 Notice of Appeal was tiled on July 1, 2009 (Dkt. #34).24 -

1V. Statement of issues presented for review.2526 The issue presented for review as set forth in the Certificate of2728 Appealability is:



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Whether the GaI judge should have recused himself.'Fhis issue was specitically addressed in the Grotmds in the Petition for

Wl'it of Habeas Corpus (hereinafter the ''Petition''), Grounds 1, 2 and 6.The Respondent (Sherifg did not answer the Petition. Instead, the Sheriff

moved Glto disrniss or in the alternative request that this court direct real parties

in interest to respond ... ''. (Dkt. #12). Such motion was denied as moot. (Dk1.

#30).

Prior to such denial, without seeking leave to intervene, nor filing a noticeof interested parties, the LA Superior Court and Judge Yaflb filed a tResponse''

and lreclaration of Kevin Mccormick in Support of Response'' (Dkt. #15 and

#16). Neither of these docllments opposed or contested the grounds, facts orclaims set forth in the Petition.

ln the District Court, the Sheriff defaulted on the issue by not answering.

ln the Diskict Court, the LA Superior Court and Judge Yaffe were not parties.

However, even if they were, they conceded the issue by not opposing it and not

contesting it.

Despite the lack of opposition, the District Court, on its own accord, in

violation of 28 U.S.C. j 2243, and without citation to the record, held that Judge

Yaflb did not have to recuse himself. (See Dkt. #25-2, pages 14-22.)



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1 ln particular, the District Court did not mention Ground 6 of the Petition,2

Part 3, which stated that ipetitioner was denied due process because the34 January 8, 2008, Order was entered without notice to Fine and Fine being5 present at the hearing, making such order void. Judge Yaffe was deciding the6

legality of his own void Order in the contempt proceeding.

8 F rther the District Court relied on the judgment to establish ifacts '' when 1 , ,9

Addendum 8 to the Petition, was not opposed, sholed these L'facts'' to be tmtrue.10 > ,

11 This act by the District Cotlrt violated 28 U.S.C. j 2243, which required the12 District Court to have a hearing if there was a dispute between the facts in the1314 Petition and the Response. As no such dispute occurred, the District Court could

15 not rely on the Judgment which was disputed by the Petition and not contested16

by any response.7

18 Additionally, at page 19, the District Court cites to the torder Striking19 Notice,'' Exhibit &IB'' to the Declaration of Kevin Mccormick. This document2021 was not an exhibit in the contempt trial and on its face was never served on Fine.

22 Also , at page l9, foomote l 1, the District Court cites to a September 19, 2008,23

State Bar Opinion which wis also not an exhibit at the contempt trial. ('Fhis is4

25 1so true for the items in foomote 4 at page 6, and foomote 7 at page 9.)26

Finally, the District Court ttmakes up'' a record by making statements2728 attributed to the record'' without citation, at pages 21, lines 24-26 -- -l-he



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record shows that Judge Yaffe gave Petitioner ample warning about possible

contempt sanctions for his actions . .. ''' and at page 22, lines 23-25 uudge

Yaffe was patient and professional in dealing with Petitioner while carrying outltis judicial duties and vindicating the property authority of his court.''

Grolmd 1 of the Petition claimed that Fine was denied due process and

Judge Yaffe should have recused himself because Fine was charged with

criticizing Judge Yaffe in many ways, including (1) attacking the integrity of

Judge Yaffe and the LA Superior Court (see Order to Show Cause datedNovember 3, 2008 (&OSC'') exhibit to Petition) (See Addendllm to Parapaph 7

of Petition, page 405' (2) taking unconstimtional payments 9om LA County andsimultaneously heming cases in which LA County is a party and making

decisions in favor of LA Colmty as in the Marina Strand case and then enforcing

those decisions in contempt proceedings (see OSC' see Addendum to paragraph

7 of Petition, page 4-5), and (3) the criminal act of taking payments from LA

County (see Senate Bill 'tSBXZ 1 1'' enacted Febnlary 20, 2009, effectiveMay 2l, 2009, Appendix to Petition, page 176, see Reporter's Transclipt dated

January 22, 2009, page 165 of Addendum to Petition; see Sentencing Transcript

dated March 4, 2009, Exhibit ''D'' to Mccormick Declaration, page l7, line l 8

through page 25, line 4, Dkt. # l 6).



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1 Citing to the Sturgeon case and Senate Bill SBXZ 1 l'' the Distlict Court2

acknowledged at page l7, lines 12-19, in relevant part:3

4 ... thus the state legislature has reaffmned the practice inquestion (county payments to judgesq, set standards, and provided : . .lmmtmity to governmental employees hudges) who might otherwise

6 be subjected to suit, (criminall prosecution, or disciplinary action onthe grotmds that the prior county benetits forjudges were illegal.

Petitioner is correct that the court of appeal found that the8 in hich the cotmty previously provided additional benefits toanner w9 judges was tmconstitutional .. . .10 Upon these clear facts and without any reference to any Supreme Court11 case or any precedent, the Distict Court refused to require recusal on Grotmd 1.1213 Dtlring the case and before tlze Magistrate Judge had made her Report and14

Recommendation (the lAepolf'l (Dk4. # 25-2, adopted by the District Court,1516 Dk4. #29 and #30), Fine had informed both the Magistrate Judge and the District17 ,ourt of the Supreme Court s recent Caperton decision wherein the Supreme18

Court held that a legitimate s3-million-dollar contribution by a potential litigant9

20 to the campaign committee of an ultimately successful candidate for the West21

Virginia Supreme Court mandated his recusal from the conkibutor's case.2223 Additionally, the District Court did not address the case of Mayberrv v.24 -

Pennsvlvania, 400 U.S. 455 (1971), raised in the Petition in Grolmd l for the2526 proposition that a criticizedjudge cmmotjudge his own actions.27 'I'h District Court did not have any legal precedent to deny recusal on28

Ground 1 .

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1 Ground 2 of the Petition stated ttdenial of right to an impartial adjudicator''2

because Judge Yaffe was personally embroiled'' in the proceeding. The3

4 Grotmd stated that lhe was personally accused of tnking unconstimtional5 payments from a party and these accusations gave rise to the contempt6

proceeding. Judge Yaffe's conduct showed he felt the emotional and fmancial

8 in f the acctusation .'' (See Petition - Ground 2.)t g o9

The Addendum to Parapaph 7 of the Petition set forth further facts and10

11 legal arpzments and incorporated page references to flpetitioner's brief12 supporting his Petition to the California Supreme Court'' attached as Exhibit &QE''1314 to the Petition. lncluded in such were Judge Yaffe's refusal to leave the

15 mderlying Marina Strand case after his disqualification , his appointment o16

attomeys who had a fmancial interest in the underlying case to prosecute the1718 contempt, and his emotional involvement in vindicating his hurt feelings and19

anger against Fine. In the OSC, he signed mz illegal prosecution for attacking20

21 the integrity of the court gludge Yaffel which violated CCP j l2l l (a)(1 1),22 which states that a contempt charge cnnnot 1ie for the tiling of any pleading23

criticizing a judge. 'l'he Ground also cited to 0@/ v. United States, 348 U.S. 1 1425 jpjy; .26

The District Court did not respond to the specific facts in Ground 2 and2728 cited to Mqvberly, supra, but wrongfully addressed the specific comments of the



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l lawyer. (See pages 20-22.) This case only concems one of the contempt2

chrges. lt is Judge Yaffe's reaction to such written pleadings such as signing34 an tmlawful OSC for attacking the integrity of the courq and signing an OSC to5 enforce his own illegal and criminal conduct of taking money from LA County,6

a party to a case before lzim in whose favor he issued a void Order that shows his

8 &: tsojjment7:m .9

The District Court did not address these facts, and denied Grotmd 2 despite10

11 the precedent of Mqvberl, suprw and Ofut, supraa mandating recusal. Other12 examples of lembroilment'' are set forth in the Statement of Facts.1314 In sllmmary, neither the Sheriff, the LA Superior Court and Judge Yaffe15 ,nor the District Court set forth any factual or legal basis to oppose Judge Yaffe s16

recusal.7

18 V. Statement of ease: proceedinas and decision in District Court.19

2c A. Statement of case.

21 j-uabeas Copus in ahis is an appeal from a denial of a Petition for Writ o22

contempt proceeding. 'Fhe judge in the contempt proceeding was LA Superior3

24 Court Judge David P. Yaffe, an elected state judge under the California25 Constitution. ln addition to his state salary, he had received payments f'rom LA2627 County known as llocal judicial benefits''. In 2008, these payments amounted to28 approximately $46,300 per year (see Sturgeon, supra) or approximately 28% of

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1 his state salary of $178,800 per year. Sturgeon, supraa held that these

County payments were unconstitutional as a violation of Article Vl, Section 19,

of the California Constitmion.

3

Such Article states in relevant part: l'The Legislature shall prescribe

compensation forjudges of courts of record.''Sturgeon also held that the legislamre's duty was not delegable.

ln response to Sturgeon, supra, Senate Bill QSBXZ.t'3q. z .

February 20, 2009, and became effective on May 21, 2009. Such Billrecognized that the LA County payments and al1 local judicial benefits'' were

1 1'' was enacted on

criminal acts and provided immlmity from criminal prosecution, civil liability

and disciplinary action to a1l governmental employees, includingjudges.Senate Bill LCSBXZ 1 1'' stated in relevant part:

Notwithstanding any other law, no governmental entity, or officer oremployee of a governmental entity, shall incur any liability or besubject to prosecution or disciplinary action because of benefitsprovided to a judge tmder the official effective date of this act on theground that those benetits were not authorized under law.

Senate Bill 11SBX2 l 1'' also extended the benetits as of July 1, 2008, to

judges then receiving benefits, with a l 80-day termination potice, except as to

those judges serving a current term. T'he Bill did not obligate the state or theJudicial Council to pay for benefits previously provided by the colmty, city and



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l county, or the court. (See Senate Bill QLSBXZ 1 1'' page 176, Appendix to2

Petition.)34 ln his testimony at the contempt trial, Judge Yaffe admitted that he was5 receiving payments from LA County, that he did not disclose such on his Form6

700 Statement of Economic Interest, that he did not have any employment

8 f ices with LA County and, excludingeement Or arfangement to PCr On11 SeW9

his decision regarding the 'dirt'' in the Marina Strand case, he could not10

11 remember any case in the last five years that he decided against LA County.12 (See Reporter's Transcript dated 12/22/08, page l55 et seq. of Appendix to13

14 Petition.)15 .he taklng of the money from LA County , which was both16

tmconstimtional and a criminal act, mandated Judge Yaffe's recusal under1718 Califomia law in the Marina Strand case where LA Cotmty was a party, and the19

contempt proceeding where llis actions and orders in favor of LA County were2021 the b%es of the proceeding.

22 :t,anon 2 of the Califomia Code of Judicial Ethics states that a judge shall23

avoid the impropriety and the appearance of impropriety in a1l of the judge's425 tivities . '' 'lhe commentary to this Canon provides an objective test for thec26

appearance of impropriety: the question is not whether the judge is acttzally2728 bi%ed, but whether a person aware of the facts might reasonably entertain a

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l doubt that the judge would be able to act with integrity, impartiality , and2

'' S Hall v. Harker, 69 Cal.App.4th 836 841 (1 999).)ompetence ( ee, e.g., ,34 Judge Yaffe engaged in criminal acts by taking the payments from LA5 .Cotmty. But for the lmmtmity provided by Senate Bill 'SBXZ l l'' he would6

have been prosecuted and removed from the bench for such acts. lt is clear that

B t: f the facts might re%onably entertain a doubt that the judgeperson aware o9

(Yaffel would be able to act with integrity, impartiality, and competence.''10

11 Judge Yaffe refused to recuse himself in the Marina Strand cmse, refused12 to transfer the case or ttvoid'' his unconstitutional and void orders, and was1314 disqualified (see Motion, Trial Exhibit 11A'' page 31, et seq., Appendix to15 ' T ial Exhibit 9'' for copy of January 8, 2008, Order, page 67 etetition , see r16

seq., Appendix to Petition, see Trial Exhibit tl4'' for Motion to Void, page l 16,1718 et seq., Appendix to Petition' and see Trial Exhibit tQ1'' for Disqualification of19

Judge Yaffe, page 143, et seq., Appendix to Petition). He still refused to leave2021 and presided over the contempt case.

22 Judge Yaffe knew that he could not preside over the contempt case . (See23

Reporter's Transcript dated January 22, 2009, page 165, Appendix to Petition, .4

25 sentencing Transcript page l 7, line l 8 through page 26, line 3, Exhibit LD'' to26

Mccormick Declaration, Dk4. #16-5.)728

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1 B . Proceedings and decision in District Court.2

The proceedings in the District Court violated 28 U.S.C. j 2243.3

4 'l'he Petition was filed on March 20, 2009. 'lhe Magistrate Judge violated5 28 U.S.C. j 2243 and waited lmtil Aplil 7, 2009, to order the Sheriff to file an6

answer on Aplil 21, 2009, instead of ordering a response to an OSC Qforthwith''.

8 S Dkt #6) On April 9 2009 Fine filed an Ex Parte Application andee . , ,9

Memorandum for Order for lmmediate Release Pending Decision on Petition for10

11 Writ of Habe% Corpus and Appeal. (See Dk't. #9) On April 9, 2009, the12 Magistrate Judge ordered the Sheriff to respond to the Ex Parte Application on1314 or before April 17, 2009. The Sheriff never responded. The Ex Parte

15 Application should have been granted for lack of opposition .16

On April 2 1, 2009, the Sheriff did not file an answer or tcertifylingj the718 true cause of detention'' or ttshow cause why the writ should not be granted'' as19

required by 28 U.S.C. j 2243. lnstead, he filed a Notice of lnterested Parties2021 designating only the Sheriff and Fine (Dkt. //1 1) and a Motion to Dismiss or in22 the Alternative That This Court Direct the Real Parties ln lnterest to Respond to23

Petitioner's Habeas Corpus Petition. (Dk4. #12)425 On April 23 , 2009, the Magistrate Judge directed Fine to file an opposition26

by May 1, 2009, and directed the LA Superior Court and Judge Yaffe and 'r el2728 Rey Shores Joint Venture'' and rel Rey Shores Joint Venture North''

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1 (hereinafter collectively referred to as rel Rey Shores'') to file an answer by2

May l , 2009. The May 1, 2009, date violated the 20-day linlitation of 28 U.S.C.3

4 j 2243, which expired on April 27, 2009. Additionally, the District Court did5 not have jurisdiction over these entities.6

7 Fine tiled an opposition on April 24, 2009. (Dk''t. //14)8 The Sheriff s Motion was ultimately denied as moot by the District Court9

judge on June 30, 2009. (Dk4. #30)0

11 On May 1, 2009, the LA Superior Court and Judge Yaffe filed a12

Response'' (mislabeled in the docket as an 'answef') and a Declaration of13

14 Kevin Mcconnick. (Dk4. #15 and #16)15 On May5 , 2009, the Magistrate Judge either determined that the Response16

did not raise an issue of fact with the Petition or violated 28 U.S.C. j 2243 as7

18 she did not schedule a heming with Petitioner present to dispute any facts in the19

Response. lnstead she gave Fine tmtil May 22, 2009, to reply to the Response20

21 and then would take the matler under submission without oral argument. (Dkt.22 #19)23

On May 5, 2009, the Magistrate Judge struck the Opposition to the4

25 sheriff's Motion .26

On May 14, 2009, Fine filed his Response in Support of Petition and2728 Request for Immediate Release From Custody . (Dk4. //24)

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On June 12, 2009, the Magiskate Judge filed her Report and2

Recommendation to deny the Petition. (Dkt. #25-2) The Report indicated that34 she had not read the entire Petition. She stated that the Petition had only tive5 pounds (page 10, line 28 - page l 1, line 1) when it had seven. She stated that6

the contempt proceeding did not have a criminal charge (page 14, lines 3-6)

8 hen the OSC (page 1, et seq., Appendix to Petition, page 3, paragraph l6)9

shows a criminal charge tmder B&P Code j 6126. Further, as shown above, she10

l l referenced to false tfacts'' by quoting from the disputed judgment, docllments12 which were not in the ttrecord'' of the contempt proceeding and ttmaking up'' her1314 own record. She also omitted to discuss relevant precedent such as Caperton,15 SUPra.16

Fine tiled his objections to the Report. (Dkt. #26) On June 20, 2009, the7

18 District Court Judge accepted the Repol't and entered judgment. mkt. #29 and19

//30).2021 Fine filed a Notice of Appeal and a Request for a Certiticate of

22 Appealability, which was denied (Dk4. #34). Fine tiled an Ex Parte Application

23to be released pending the appeal, which was denied (Dk1. #37).4

25 on August 12 2009 the Court of Appeal granted the Certiticate of 726

Appealability.2728



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1 V1. Statement of facts relevant to issues.2a A. Actions related to Fine.

4 Fine is a prominent attorney who has practiced over 45 years in various5State and Federal courts throughout the colmtry. He is a graduate of the6

7 University of Wisconsin, the University of Chicago Law School and holds a8 Ph.D. in lnternational Law from the University of London - London School of9

10 Economics and Political Science.

11 Fine has been involved in many high-profile cases achieving results for12

taxpayers and citizens. As examples: AD v. United Way - required United1314 way to allow donors to designate the charity to receive their contributions,15

CSEA v. Matsushitaa et a1, -- restructured the consumer service industry in1617 California tmder the Song-Beverly Act when the state refused to enforce such'18 Malibu Video v. Wilson and other cases - returned and saved tnpayers over $119

% billion of monies taken by state, county and municipal governments from trust

21 and special funds , and White v. Davis (Howard Jarvis Tupayers Assoc. v.22

Colmell) - prohibited the State of Califonzia from paying any bills without an23

24 appropriation (i.e., budget). '25 Fine had also brought and fought the cases of Hen v. City of Los Angeles,2627 et a1, -- involving the flrst terrorist killing at a U.S. airpol't, and lAM v. OPEC -

28 involving price fixing by the OPEC countries

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l Fine was with the U.S. Department of Justice in Washington, D.C.,2

founded the ftrst municipal antitrust division in the U.S. for the City of Los34 Angeles, and is the Honorary Consul General for the Kingdom of Nonvay in Los5 Angeles and other Southern Califomia counties. (See Rslzm of Richard 1.6

Fine, Exhibit LEA'' to Petition.)8 Fine has properly challenged a11 of the judges of the Los Angeles Superior9

Court and pm icularly Judge Yaffe for taking tmconstitutional payments 9om10

11 LA County while at the same time LA County was a party before them. (See12 Addendum to Parapaph 7, Ground 1 to Petition.) These challenges have1314 resulted in a disbnnnent action against Fine commenced by Bruce E. Mitchell, a

15 LA County Superior Court Commissioner who was receiving the16

unconstitutional and criminal LA County payments and who was a defendant in1718 a Federal civil rights cl%s action suit brought by Fine challenging such19

payments as a violation of Article Vl, Section 19, of the California Constitution,2021 and Articles 1 and XIV of the U.S. Constitution. The case was Silva v. County22 of Los Angeles, et al. lt sought injtmctive relief to stop all LA County payments23

to any LA Superior Court judicial officer who would hear a LA Cotmty case.425 I'he disbarment action was tiled on February 6, 2006. At that time, Fine26

represented the Mmina Strand Colony 11 Homeowners Association before tlze27

28 LA County Regional Planning Commission. He would later represent them

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l against LA County in the Marina S trand case. The opponent before the LA2

Resonal Planning Commission wms Del Rey Shores. Their local managing34 partner was the Epstein Family Trust, the tnlstees were Jerry and Pat Epstein.

5 ;N y, j jjy; ugyyg jpmy;y raso. a ujyhey became the real parties in interest n6

atlorneys were Armbruster & Goldsmith, who became their attorneys in the

8 Marina Strand case and who prosecuted the contempt case.9

At the same time, Fine was fighting the Cotmty of Los Angeles in10

11 ntlmerous other cases in the LA Superior Court. ln fotlr of these cases,12 consolidated under Coalition to Save the Marina and Mnn'na Tenants Assoc., et1314 a1, v. County of Los Angeles, et a1, Fine had moved to disqualify Judge

15 Bruguera on the grotmd that she was receiving payments from LA County, and16

moved to change venue to San Francisco, where judges did not receive county71S payments. The motions were denied, as were the subsequent mits.19 At the same time, Fine was fighting another Epstein entity in the case of2021 Coalition to Save the Mminw et al, v. County of Los Angeles and Marina Pacitic

22 u: ,, f. valina pacjj-jc Associatesssociates , et a1. 'l''he local managing partner o23

was the Epstein Family Tmst, whose trustees were Jerry and Pat Epstein. One4

25 of their attomeys was Sheldon H. Sloan, a member of the Board of Governors of26

the California State Bar, President-Elect of the California State Bar, and27

28 subsequently President of the California State Bar.

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l The Epsteins and their attorney, Sheldon H. Sloan, had an interest in Fine's2

disbannent and removal from their cases.34 'l'he firm representing LA County in its negotiation with the Epsteins for5 the lease in the Marina Strmzd case was Mtmger, Tolles and Olson. Jefgey6

y Bleich of such firm was on the Board of Governors of the California State Bar,

8 h President-Elect of the State Bar dming Sheldon H. Sloan's presidency, ande9

succeeded Sheldon H. Sloan as President.10

11 LA County and its lawyers, Munger, Tolles and Olson and Jeffrey Bleich, G12 had an interest in Fine's disbarment and removal from their cases.1314 ln 1996 or early 1997, Lalzra Chick, a former LA City Council member15 and then LA City Controller, wis appointed as a public member of the State Bar16

Board of Govemors. She was an LA City Council member during the case of17

18 Shinkle v. City of Los M geles, one of the cases in the State Bar's case against19 Fine. Additionally, Fine had exposed that she had given a favorable report for2021 the Playa Vista Development while having had a $5,000 ttbehest'' given in her22 name one day after the report was released and during the time the report was23

being considered by the City of Los Angeles.4

25 Fine was the attorney for the Grassroots Coalition in the case of Etina and26 Gr%sroots Coalition, et a1, v. City of Los Angeles, et a1, which was seeking to2728 enforce an order against the city of Los Angeles regarding an ElR. The gift was

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4

6

8

9

10

111213

14

1516

17

18

21

23

given by Latham and Watkins, the lobbyists and attorneys in the case for Playa

Vista Capital Cop., the real parties in interest in the case.

Laura Chick had an interest in having Fine disbarred to remove him fromthe case and to clear the actions of the City of Los Angeles in the Shinkle case

where the City made an urllawful B&P j 473d motion to change the substance of

ajudgment.Under the State Bar Act, the salaries of the State Bar Courtjudges were set

by statute, but their ttcompensation'' was set by the Board of Governors. Theywere paid by the State Bar from the dues of the members and the fmes and costs

levied upon the attorneys whom they convicted. Tlzis system is a denial of due

process as the State Bar Courtjudges have an tinterest'' in the outcome, which is

unconstimtional. (See Tumev and Monroeville, supra.)The chief tI'iaI counsel of the State Bar served at the ple%ure of the Board

of Governors and reported to a committee of the Board of Govemors.

The charges against Fine included charges for filing Federal civil rights

lawsuits challenging the LA County payments to the LA Superior Coul't judgesas violating Article Vl, Section l 9, of the Califomia Constitution, and the First

and Fourteenth Amendments to the U.S. Constitmion.

Dtuing the disbarment case, the State Bar Court Hearing Depaltnent judgewas a member of the Board of Governors of the Southern California Special

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E! .

l Olympics which received a contribution of $30,000 from LA Cotmty duling this2

same time period. A representative of LA Colmty sat on the Board with him,34 and a partner of Latham and Watkins sat on the Board of Directors. The5

Henring Department judge did not disclose this information and did not recuse67 himself. On October 12, 2007, he recommended Fine's disbarment and ordered

8 Fine inactive effective October 17 2007 .79

Fine leR the representation of a1l the above cases, including the Marina10

11 Strand c%e. The Califomia Supreme Court denied Fine's Petition for Review12

on the inactive Order but did not affirm the Order or order Fine inactive as13

14 required under B&P Code j 6084. Only the California Supreme Court can order15 an attorney inactive. The action of the State Bar is made subject to the16

immediate and independent review of the Califomia Supreme Court. (1n Re7

18 Rose 22 Ca1.4th 430 (2000)' ConwF v. State Bar, 47 Ca1.3d 1 107 (1989).) >19

After Fine left the Marina Strand case, Judge Yaffe issued a void Order on2021 January 8, 2008, for Fine to pay attomey's fees and costs to LA County and its22 co-applicant, Del Rey Shores. 'l'he Order was entered without jurisdiction over23

Fine, without notice to Fine, and without Fine being present at the hearing.4

25 Further the Order violated the Public Resources Code (See Trial Exhibits IA >26

page 31, 9 page 67 and 14 page 1 16, Appendix to Petitionk Exhibit to Petition2728 pages 33-35, Exhibit CCD'' to Petition pages 1 1-15.)

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1 After Judge Yaffe's admissions in open court tmder questioning by Fine2

that he received LA County payments, Fine served him with a CCP j 170.33

4 Objection on March 25, 2009. He did not respond and was disqualified under5 CCP j 170.3(c)(4) on April 7, 2008. (T1ial Exhibit 21, page 143, Appendix to6

Petition.)8 Th re are not any trial exhibits showing actions of Judge Yaffe after9

April l0, 2009, when he was given the Notice of Disqualiscation tTrial Exhibit0

11 21, filed April 11, 2009). Judge Yaffe did sign a judgment submitted to him12

after April 10, 2008, to which Fine objected, however such judgment was not an1314 exhibit at the trial.

15 On November 3 , 2008, Judge Yaffe executed an Order to Show Cause re16

Contempt (Exhibit LCB'' to Petition) (hereinafter the 'OSC'7). ' l'he OSC contained7

18 16 cotmts. The tcomplaint'' was the Declaration of Joshua L. Rosen (page 27,19

Appendix to Petition). Fine moved to dismiss. Fine flled a mit. Both were2021 denied.22 The trial occurred on December 22

, December 24, December 26 and23

December 30, 2008, and January 8, January l2, and January 22, 2009. Judge4

25 Yafl-e presided despite demands for his recusal The wimesses were Judge26

Yaffe, who presided while he was a wimess. (See Reporter's Transcript of7

28 December 22, 2008), Joshua L. Rosen, R.J. Comer tthe colmsel for Del Rey

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l Shores) and a custodian from the State Bar of Califomia. 'l'he prosecutors were2

Joshua L. Rosen and R.J. Comer.34 Fine raised various afflrmative and constitutional defenses including but5 not limited to denial of due process of Judge Yaffe presiding, denial of due6

process due to lack of notice of doctlments and wimesses, the underlying

8 J 8 2008 Order is void resulting in all other actions being void, Judgenuary , ,9

Yaflb was disqualitied for failing to respond to the 3/25/08 CCP j170.310

11 Objection pllrsuant to CCP j 170.3(c)(4), any action by Judge Yaffe after the12

disqualification was void, the April 15, 2008, jud> ent was void, the Writ of1314 Execution and subsequent actions were void, Commissioner Gross wms not a

15 d '' feree'' with authority to enforce a judgment, underemporary ju ge nor a re16

Sturgeon, supra, the LA Cotmty payments to Judge Yaffe were unconstitutional,1718 and tmder Senate Bill LCSBXZ 1 1'' the LA Cotmty payments to Judge Yaffe were19

illegal and criminal based upon the immtmity given to him, and denial of due2021 process by the attomeys for a party acting as prosecutors, amongst other things.

22 :: ,, 4 tsn January 22 , 2009, Judge Yaffe fotmd Fine not guilty on 1 coun23

and Gguilty'' on 2 counts. (See Reporter's Transcript of January 22, 2009, pag425 153 Appendix to Petition and Minute Order dated 1/22/09 page l 53 Appendix 7 726

to Petition). The January 22, 2009, Transcript and Minute Order differ2728

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l signiticantly from the March 4, 2009, Judgment. (See Addendum to Paragraph2

8 of Petition and Exhibit CC'' to Petition - Judpnent.)34 After January 22, 2009, and prior to sentencing, Fine moved to set aside5 the judgment, even though not written judgment had been entered. The Motion6

was denied.

8 On March 4 2009 Fine again raised the issue of the recusal of Judge 79

Yaffe, and the tmconstitutional, illegal and criminal payments from LA Cotmty10

11 to Judge Yaffe and the LA Superior Court judges. Judge Yaffe responded at12

Reporter's Transcript (Dkt. #16-5), page 23, lines 4-5:1314 The Court: tls there any judge or justice in Califomia that can order you

to do anything?''1516 After receiving the response citing the judges in San Francisco, Mendocino17 and Yolo Cotmties who did not receive cotmty payments, and justices who did18 -

not receive county payments, and being informed that even with Line 20:19

20 immlmity he was still subject to prosecution tmder 18 U.S.C. j 1346 for21

violating the lintangible righf' to honest services, Judge Yaffe stated, at2223 Reporter's Transcript dated March 4, 2009, page 25, line 20, Exhibit QD'' to24 -

Mcconnick Declaration, Dkt. #16-5:25The court: 1W1l right. 'Fhank you, Mr. Fine.''6

27 J d e Yaffe then signed the Judgment and ordered Fine to the custody ofg28

the Sheriff (ld., page 27, line 6), where he is today.

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l2

3

5

11

Under the January 22, 2009, Minute Order, Fine was found 'guilty'' of

Count 1 - not answering questions at a judgmentdebtor hearing on Jtme l8,

2008, and Count 16 - holding himself out to practice 1aw in violation of B&PCode jj 6126

penalty of one year in jail. Fine was fotmd ''not guilty'' on a1l other cotmts,

and 6127(b). B&P Code j 6126 was a criminal section with a

including Count 5 - 'tlying about his status with theState Bar in pleadings filed

in this court and oral arguments before the couf'.

The tguilty'' judpnent on Cotmt 16 and the ttnot guiltf' judpnent onColmt 7 are inconsistent on their face. Fine could not hold himself out to

practice 1aw illegally dnd not misrepresent his status. lf he was correctly

representing his status, he was not illegally holding himself out to practice law.

As to Count 1, it was shown that any judo ent was void and

Commissioner Gross was neither a tttemporary judge'' nor a referee''Finally, it should be noted that the State Bar action against Fine went to the

State Bar Court Review Department. The State Bar did not appeal counts

disrnissed by the Hearing DepaM entjudge, however without notice the ReviewDepartment reinstated such in violation of due process and the State Bar Rules

of Procedure. The Review Department dismissed numerous counts. The

remaining cotmts related to the tiling of three Federal civil rights actions against

LA Superior Cotu't judges who received lmconstimtional and criminal payments

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1 from LA County, and other pleadings tiled in courts which are protected by the2

First Amendment.3

4 A Petition for Review was tiled with the Califomia Supreme Court as well5as motions to rectlse those justices who had received the unconstitutional and

6

cn'minal payments from counties, and those justices who were on the JudicialB C il of Californiw which wrote Senate Bill C&SBXZ 1 l''ImC .9

'Fhe recusal motions were denied. The Petition was denied.10

11 A Petition for a Writ of Certiorari is presently before the U.S. Supreme12

Court, case no. 08-1573. The State Bar has waived its response. One of the13

14 issues presented is whether the California Supreme Court jtlstices should recuse15 themselves as they have received tmconstitutional illegal payments from16

counties, immunity for such and wrote the law granting such immunity.7

18 B. Actions related to Judge Yaffe.19

20 As set forth above, Judge Yaffe and a11 LA County Superior Court judges21 received tmconstimtional, illegal and criminal payments from LA Cotmty.22

These payments occurred while LA Cotmty was a party before Judge Yaffe in3

24 the Marina Strand case and while he was enforcing the January' 8, 2008, Order25

and its progeny, presiding over the attack on his integrity for taking the26

27 payments, presiding over his embroilment with Fine in the Marina Strand case28

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1 and presiding over claims that Fine had misrepresented his professional status2

and was illegally holding himself out to practice law in the contempt case.34 But for the immtmity provided to them under Senate Bill QLSBXZ l l''75

Judge Yaffe and all of the other LA County Superior Court judges who took the6

unconstimtional, illegal, criminal payments from LA County, would be facing

8 ions to repay the monies , criminal prosecutions and disciplinary actionsct9

resulting in their removal from office.10

11 As set forth above, Judge Yaffe made the January 8, 2008, Order of LA12

County and its co-applicant for the EIR in the Marina s'/rlzll case without any13

14 notice to Fine, without Fine being present at the hearing, without jmisdiction15 over Fine and in violation of the Public Resources Code (see Trial Exhibit 1A,16

page 3l, to Appendix to Petitionv Trial Exhibit t9'' page 67 to Appendix to7 7

18 petiton).19

As set forth above, Judge Yaffe was disqualified on April 7, 2008, when he20

21 did not respond to a March 25, 2008, CCP j 170.3 Objection served upon him22 after he adnzitted in open court to receiving tlze LA Cotmty payments. (See Trial23

Exhibit 21, page.143, Appendix to Petition.)425 'rhe osc si>ed by Judge Yaffe on November 3 , 2008, (page 1 of the26

Appendix to the Petition) supported by the Declaration of Joshua L. Rosen (page728

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l 4 of the Appendix to the Petition), the 'complaint,'' provides the Kembroilment''2

of Judge Yaffe with Fine in the Marina Strand case.34 Counts 1 - 6 are an attempt to enforce the void January 8, 2008, Order and5 any void subsequent orders. Additionally, these cotmts are an attempt to reject6

th disqualification after not responding to the March 25, 2008, CCP j 170.38 Objection based upon his admission of receiving the LA County payments.9

Judge Yaffe knows that he cannot enforce these counts, yet his anger is so peat10

11 at having been exposed for having taken the payments and made illegal orders in12

favor of LA County and its co-applicant, he refuses to be objective and follow1314 the law.

15 ja jjj tlejaujjte then adds to his misconduct by selecting the attomeys w o w16

from his illegal orders to prosecute the contempt proceeding. He knows that it is1718 a denial of due process to have a non-independent prosecutor. However, an19

independent prosecutor would not prosecute void actions.2021 counts 7 and 16 are linked as Judge Yaffe is angered that Fine has listed22 ' 't 1 jbr Marina Strand Colony 11 Homeownerslmself as former counse23

Association''. Fine is not the current lawyer for Malina Strand, yet Fine's4

25 actions are interfeling with Judge Yaffe's ''arrangement'' with LA County.26

He has admitted that he cannot remember a case in the last five years that2728 he decided against LA County, except the dirt'' in the Marina Strand case.

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1 Fine's actions of exposing the LA County relationship have angered Judge Yaffe2

to pllnish Fine. At the sentencing hearing, Judge Yaffe stated that he did not3

4 think that there was a court order regarding prohibiting Fine to practice 1aw (see5 ,,Sentencing Transcript, page l0, line 30, through page l 1, line 2, Exhibit 'D to6

Mccormick Declaration, Dkt. #16-5). As shown above, only the California0 S Court can order an attonzey inactive . Since Judge Yaffe admitted thatpreme9

there was no court order, there could not be a contempt.10

11 This leaves the charge in Count 16 as another example of embroilment.12 Additional, the Rosen Declaration did not show that there was a court order as a1314 basis for the cotmt. The embroihnent was epegious as the cotmt contained a15 criminal charge under B&P Code j 6126.16

Count 8 showed Judge Yaffe's anger at Fine's action of pursuing the void1718 January 8, 2008, Order and its progeny and the dsqualification aRer Judge Yaffe19

did not respond to the March 25, 2008, CCP j 170.3 Objection. The cotmt2o21 alleged lmotions for reconsideration7'. Yet no motion for reconsideration22 occurred.23

Colmts 9 - 14 showed Judge Yaffe's embroilment as they charge Fine with4

25 ttacking the intepity of the court (Judge Yaffe) (Counts 9 - 10), the LA26

Superior Court (Counts 1 1 - 12), the State Bar Coul't tcotmt 13) and cotmsel for2728 Real Parties ln lnterest (Del Rey Shores) tcount 15). As shown above, under

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1 CCP j 121 1(d), a contempt charge cnnnot 1ie for criticizing ajudge. That would2

eliminate Colmts 9-13. A contempt charge also does not lie for attacking the3

4 intep'ity of opposing counsel (Count 14). Thus all counts are a sham. The only5 ,reason for the counts was the embroilment of Judge Yaffe due to Fine s criticism6

of his taking the LA County payments and showing that such action violated 1 8

8 USC j 1346 the ttintangible right to honest services'' e9

Cotmt 15 also is an example of Judge Yaffe's embroilment. lt charges10

11 behaving in disorderly, contempmous or insouciant manner toward the court.12

However, the Rosen Declaration does not refer to any conduct in the courtroom.1314 The cotmt was a pure sham. lts sole purpose was to agpavate Fine and force

15 him to defend a false contempt proceeding . Judge Yaffe knew this as any16

conduct had to appear before him, and he was bound to have a timely contempt1718 trial. Once again, the cotmt wms an example of Judge Yaffe acting against Fine19

while knowing that no charge existed.2021 'l'he result of Judge Yaffe's actions was that even he could not stomach all22 qt ,, !4 qojmts . yjowever, whenf his misconduct. He fotmd Fine not guilty on23

questioned on Cotmt 16, he did not find an underlying court order making Fine4

25 inactive . 'Fhis shows that his tguilty'' decision was an admitted error.26

This leaves Cotmt 1, which is based upon his void January 8, 2008, Order2728 in the Marina Strand case where he received the tmconstitutional, illegal,

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1 criminal LA County payments. As stated above, but for the immunity he2

received from Senate Bill ''SBXZ 1 l'' Judge Yaffe would not have even been3

4 thejudge in such case and may very well have been incarcerated.5 Reco>izing the possibility, as shown above Judge Yaffe enquired of other6

courts and judges who could hear the cmse. He knew that he should not have8 ided over either the Marina Strand case or the contempt proceeding.res9 . -'

V1l. Summarv of araument.10

11 A . Standard of review.12 .

The standard of review is objective as set forth in Withrow v. Larkin, 4213

14 U s 35 47 (1975). '* >15

B. Objective standards.617 Objective standards were reviewed and established in Caperton, supra.18 These standards are adopted and used in the argtlment.1920 C. 'I'he objective standards mandate recusal.21 1 . The unconstittztional, illegal criminal payments mandate recusal.22

The payments representing 28% of his state salary pose a risk of actual2324 bi%, and reflect LA County's significant and disproportionate influence On.25 Judge Yaffe, coupled wit.h the fact that LA County is a party to the Marina2627 Strand case and a beneficiary of the January 8, 2008, Order, toffer a temptation28

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1 to the average ... judge to . . . lead him not to hold the balance nice, clear and2

W C2 SS34 2. The charges of attacking the integrity of the court mandate

recusal. s5As a criticized judge, Judge Yaffe's response to Fine's exposttre of his

7 receiving tmconstitutional, illegal, criminal payments, from LA County, Fine's8

charge of violating 18 U.S.C. j 1346, Fine's exposttre of the January 8, 2008,910 Order and filing the March 25, 2008, CCP j 170.3 Objection, was to file the

11 invalid charge which he knew violated CCP j l21 1(a)(1 1)12

3. Recusal is mandated because Judge Yaffe is judging his own3actions.

14Judge Yaffe is judging his own actions in violation of the Rule tno man15

16 can be thejudge in his own case'' and ttno man is permlxed to try cases where hel 7 !,!)as an interest in the outcome18

4. Judge Yaffe's embroilment mandates recusal.9A11 of the counts in the OSC manifest Judge Yaffe's embroilment. Bias20

21 exists as a11 of the counts are a sham.22

5. Recusal is mandated because the system of a local govenunent23 who is a party to a case paying the judge of the case has been held24 a denial of due process.25 'I'he cases of Tumey -v. Ohio and Ward v. Monroeville have held it to be a26 denial of due process for a mayor of a city to be a judge and assess fmes wlzich27

went into the city's tTisc.'' Even if he was not being paid to be the judge, as in8

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1 Monroeville. Here, Judge Yaffe decides cases wlzich $ve money to the Cotmty2 wllich pays him. The Supreme Court hms held that the interest need not be that3

4 direct. In Gibson v. Bernhill, 4 1 1 U.S. 564, 573 (1973), it held that an5 . .admlnlslative board of optometrists could not preside over a hearing against6

competing optomeGsts.

8 vltl Areument.910 A. Standard of review.

11 'rhe Court reviews the facts to apply objective standards that require12

recusal when tlthe probability of actual bias on the part of the judge or decision314 maker is too high to be constitutionally tolerable.'' Withrow v. f arkin, 421 U.S.15

35, 47 (1975), cited in Caperton, supraa Slip Opinion, page 1.1617 B. The objective standards.18 Caperton, suprw set forth the bmsic elements of the objective test, citing the1920 maxim that lnlo mmz is allowed to be a judge in his own calzse, because his

21 ' 1 bias his judpnent, and not improbably, con-upt hisnterest wotlld certaln y22

integrity'' (citations omitted) (Caperton, Slip Opinion, page 6).324 Citing to Tmey, the Court in Caperton, suprw at page 7 set forth the25

following principles regarding payments to judges:2627 Every procedttre which would offer a possible temptation to the

average man as a judge to forget the burden of proof required to28 convict the defendant or which might lead him not to hold the balance

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1 nice, clear and true between the state and acctlsedo denies the latterdue process of law.

3 'l'he Caperton Court stated at page 7:

4 j t oj-t lthe courq was also concemed with a mere genera concep5 interests that tempt adjudicators to disregard neutrality.6 This concept was extended to not require to decide if the judge was7

influenced by lwhether sitting on the case .. . '' would offer a possible temptation89 to the average ... judge to ... lead him not to hold the balance nice, clear and10

true'' ti (citations omitted) (Caperton, suprw page 9) towhat kind of depee or1112 kind of interest is sufficient to disqualify ajudge f'rom sitting Kcannot be defmed13 ,ywith precision' (citations omitted) (1d.).14

A second set of standards as discussed at pages 4 - 1 1 of Caperton, supra,15

16 resulted in the rule that ltno man can be the judge in his own case'' and ino man17

is permitted to tl'y cses where he has an interest in the outcome'' citing ln Re1819 Murchison, 349 U.S. 133, 136 (1955).20 ln discussing criticism of ajudge, the Caperton Court stated at page 1 1:2122 T'he court as1 not whether this judge is actually, subjectively bi&sed,

but whether the average judge in his position is tlikely'' to be neutral,23 tt j j j-r 'bjas>'r whether there is an tmconstitutional potent a .24 - *

The Court in Caperton, supraa then analyzed a s3-n1illion-dollar2526 contlibution by Blankenship to the campair colllmitlee of Benjamin who was a27 candidate for the West Virginia Supreme Court.28

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l Benjamin won. Blankenship's company, A.T. Massey Coal Co., had a2

case before the court which it won on a 3-2 vote. Benjamin refused to recuse3

4 himself.5 'Fhis court, at page 13 citing Withrow, 421 U.S. at 47, set forth the6

z defmition of the standards as follows:

8 Wh ther tunder a realistic appraisal of psychological tendencies and9 human weakness,'' the interest ttposes such a risk of acttzal bias or

preiudrnent that the practice must be forbidden if the guarantee ofl O - - --' '* ,,ue process is to be adequately implemented .11 The Court concluded that ilthere is a serious risk of actual bias - based on1213 objective and re%onable perceptions - when a person with a personal stake in a14 particular case had a si>ificant and disproportionate influence in placing the1516 judge on the case by raisilzg funds or directing the judge's election campaign1 7 . :, A

when the case was pending or lmminent. (ld., page l4)18 The Court concluded that Blankenship's contributions in comparison to the1920 total amotmt contributed and the total amount spent on the campaign had a21 significant and disproportionate influence on the election. lt further concluded2223 that the risk that Blankenship's engendered actual bias is sufficiently substantial24 -

that it must be forbidden if the guarantee of due process is to be adequately2526 implemented''. Withrow, supra, at 47 (1d. At 1 5).27

28

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l The Caperton Court concluded at page 16:2

Due process tmay sometimes bar trial by judges who have no act-ual3 $. tjc uias and who would do their very best to weigh the scales o jus4 equally between contending parties . . . the failure to consider

objective standards requiring recusal is not consistent with theimperatives of due process. We fmd that Blankenship's si> ificant

6 and disproportionate influence - coupled with the temporalrelationship between the election and the pending case -'' toffer apossible temptation to the average ... judge to . .. lead him not to hold

8 h balance nice , clear and true.''e9

C. The objective standards mandate recusal.10

11 1. The tmconstitutional, illegal criminal payments mandate recusal.12 Judge Yaffe receives $46 ,300 per year in unconstitutional, illegal, criminal13

payments from LA Cotmty, a party in the Man'na Strand case and a beneticiary1415 of the January 8, 2008, Order which is the basis of the Order enforced in the16

contempt proceeding. 'Fhis payment is approximately 28% of his state salary of17

18 $178,800 per year. The $46,300 is paid to him in addition to his state salm'y and19 state benefits, giving him a total compensation of approximately $249,000 per2021 Y021-'

22 2 The charges of attacking the intepity of the coul't mandate23 recusal.

24 H Judge Yaffe is reacting to Fine's expostlre of his receivingre25tmconstitutional, illegal and criminal payments from LA County and Fine's26

27 charge that he is violating 18 U.S.C. j 1346 the lintangible right'' to honest28 services by signing the November 3, 2008, OSC. Fine's exposttre of the

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1 January 8, 2008, Order and the disqualification b%ed on the payments also2

angered him. He %ew under CCP j l 2 1 l (a)(1 1) that the charges could not be3

4 brought, yet he still signed the OSC.5 The standard is set forth in Caperton, suprao at page 1 1 :61 T'e court aSKS not whether the judge is acmally, subjectively bi%ed,

but whether the average judge in his position is likely to be neutral, or8 h ther there is an unconstitutional potential for bias'' e .9

Here, the bias clearly exists. First, no judge would be in his position.10

11 However, even if in the position of having been exposed for taking money and12 being chticized

, thejudge would never have si>ed the OSC knowing that it was13

illegal. Judge Yaflk's actions show both actual bias and a potential for bias.''4

15 3 Rectlsal is mandated because Judge Yaffe is judging his own16 actions.

17 J d e Yaffe is judging his own actions of taking the tmconstitmional,g18

illegal, criminal LA Colmty payments' making the January 8, 2008, Order and19

20 subsequent acts, and not responding to the March 25, 2008, CCP Objectiony' and21 subsequent acts in the Marina Strand case.22

The rule is lno man can be the judge in his own case'' and ''no man is324 - ,,

permitted to try cases where he has an interest in the outcome ln Re25Murchison, 349 U.S. 133, 136 (1955).6

27 Here, Judge Yaffe will be judging his own actions, and cannot avoid such,28

as the counts are b%ed upon his actions.

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l 4. Judge Yaffe's embroilment mandates recusal.2 As shown in the actions related to Judge Yaffe'' al1 of the cotmts in the34 OSC maaifest Judge Yaffe's embroilment.5

The standard is the same as that set forth in #2 above.6

7 Here again the bias exists both for the reasons set forth in //2 above , but8

also for the false charges in a1l of the other counts, as the Court may recall,910 found Fine tnot guilty'' on January 22, 2009, on al1 counts but 1 and 16. On11 March 4, 2009, he admitted that there was not any order making Fine inactivev''1213 thereby showing that the guilty'' decision on Cotmt 16 was in error.14

As the same hearing, Judge Yaffe did not have a response when informed1516 of the judges who could hear the cases and who did not receive cotmty17

payments. Such judges would rule Judge Yaffe's acts void. These latter facts1819 demonstrate that the entire OSC was a sham.20

The entire OSC was a manifestation of Judge Yaffe's anger, hatred and2122 desire to Zjure Fine.23 5. Recusal is mandated because the system of a local govenunent

24 - wlzich is a party to a case paying the judge of the case has been25 held a denial of due process.

26 H Judge Yaffe and LA Supelior Courtjudges are being paid $46 300 inre, ,27

addition to their state salaries by LA County. Judge Yaffe presides over LA28

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1 County cases and in this case, on January 8, 2008, ordered atlonaey's fees and2 costs to be paid to LA County and its co-applicant without notice or Fine being34 present at the hearing and in violation of the Public Resources Code. He then5 presided at the contempt proceeding to enforce such Order after he wms6

disqualitied.8 'l'he U.S. Supreme Court has held that the system under which a local910 govenunent pays a judge and that judge decides cases which bring money to the11 ,city s general ftmd which pays his salary violates due process. (See Tumev, in12

wlzich the mayor kat as judge and was paid 9om fmes levied for violations of1314 state alcoholic beverage laws and fmes also went into the city's general fund;15 see Ward v. Monroeville, supra - unlike Tumey the mayor did not share in the1617 town's general fisc. BOth cases in Caperton, Supraa Slip Opinion at pages 7-8.18

Here, the monies awarded by Judge Yaffe go to LA County, which pays1920 the monies to hima as in Ward, supraa albeit not directly from the lfines'' but21

from the general fund.22

23 The Court in Caperton , suprw at Slip Opinion page 8, explained that the24 -

interest could be less direct:2526 & ... the judge'sj fmancial stake need not be as direct or positive as it27 appeared in Tumev.'' Gibson v. Berlyhill, 41 1 U.S. 564, 573 (1973)

(an adminiskative board composed of optometrists had a peclmiary28

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interest of sufticient substance'' so it could not preside over a hemingagainst competing optometrists.)Here, Judge Yaffe had the fmancial interest tlto ... lead him not to hold the

balance nice, clear and true.'' (Tumev, suprw at 532.)

Conclusion

the Court pant the Writ forthwith, andine respectfully requests that

relere Fine from the false imprisonment which commenced on March 4, 2009.

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Dated this & day of ) y#tx r-, 2009

8

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l 0

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Respectfully sublnitted,

AY:R1 ARD 1. FINE,ln Pro Per



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PROOF OF SERWCESTATE OF CALIFORNIA,COUNTY OF LOS ANGELES

l am Fred Sottile. 4 tk-y mailing address is W o j ff Vlciv zz /4 X r-. .1 .On August 2.1 , 2009, l served theforegoing document described as

APPELLANT'S OPEM NG BRIEF on interested parties in this action by

depositing a true copy thereof,which was enclosed in a sealed envelope, with

postage fully prepaida ill the United States Mail, addressed as follows:Aaron Mitchell FontanaPaul B. BeachLAWRENCE BEACH ALLEN & CHOI, PC100 West Broadway, Ste. 1200Glendale, CA 91210-1219

Clerk, U.S. District Court312 N. Spring St., Rm G-8Los Angeles, CA 90012

l certify and declare, under penalty of perjury tmder the laws of the UnitedStates of America and the State of Califomia, that the foregoing is tl'ue andcorrect.

Kevin M. MccormickBENFON, ORR, DUVM , & BUCKINGHAM39 N. California StreetP.O. Box 1 178Ventttrw CA 93002

Executed on this 3.7 day of August, 2009, in the city of kptvctiob wc lwtotfcCalifomia.

ln-prm -% 7 p f La-iFR/D SOTTILE



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r R E c E l v E D't%.7J SrI7AB//Jr SKRICHARD 1 . FINE, l1i Pro Per

Prisoner ID # 1824361 Akg 3 1 22%c/o Men's Central Jzll3 FILED ----441 Bauchet Street oocxEzsp - DAYE 1 NITIAL

4 Los Angeles, CA 9001256 UNITED STATES COURT OF APPEALS

7 FOR THE NINTH CIRCUIT8

9

1 0 RICI'A'RD 1. FINE, Case No. 09-56073l l Appellant and Petitioner,

D.C. No. 2:09-cv-019l4 JFW (CW)2VS.

13

14 CERTIFICATE OF COW LIANCESHERIFF OF LOS ANGELES

15 cotm-fy et al 716 Appellees and Respondents F .R.A.P. Rttle 32(a)(7)(C)

l718

19

20 Certiticate of Compliance With Type-volume Limitation,21 Typeface Requirements , and Type Style Requirements2223

2425

27

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Appellant's Opening Brief filed, ftled concurrently herewith, complies

with the type-vollzme limitation of F.R.A.P.

10,048 words.

Rule 32(a)(7)(B) because it contains

Appellant's Opening Brief also complies with the typeface requirements of

F.R.A.P. Rule 32(a)(5) and the type style requirements of F.R.A.P. Rule 32(a)(6)because it vvas preparedin a proportionallyspaced typeface using s4icrosoR

Word 2002 in l4-point Times New Roman.

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1819

20

2122

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51/52

oated this Jday of l ktztor, 2009

10

1112

14

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18192021

222324

Respectfully submittedo

BY:RICLIARD 1. FINE,hl Pro Per



52/52

PROOF OF SERVICESTATE OF CALIFORNIA,COLWTY OF LOS ANGELES

ile. My mailing address is T-to I b-. k2 lc'-. ogtg X ;- V/ 0kam Fred Sott

On August IRV , 2009, l served the foregoing document described as

CERTWICATE OF COMPLDVNCE

interested parties in this action by depositing a true

F.R.A.P. RULE 32(a)(7)(C) oncopy thereof, which was

enclosed in a sealed envelope, with postage fully prepaid, in the United StatesMail, addressed as follows'

Aaron Mitchell FontanaPaul B. BeachLAWRENCE BEACH ALLEN & CHOI, PCl00 West Broadway, Ste. 1200Glendale, CA 91210-1219

Clerka U.S. District Court

312 N. Spring St., Rm G-8Los Angeles, CA 90012

l certify and declare, under penalty of perjury under the laws of the UnitedStates of America and the State of Californiw that the foregoing is tnle andcorrect.

Kevin M. MccormickBENFONV 01< DUVAL & BUCKINGHAM39 N. California StreetP.O. Box 1 178Venturw CA 93002

Executed on this '2- day of August, 2009, in the city of fz-tlpctto ilsal14 ItvG t//cl.(2 alifornia.

V/e-fwn Xsn 7 r l c.;iFRED soTTILE


9thCircuitBrief&CertificateCompliance090109

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