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by Michael Green
Monday, Jun. 07, 2010 at 12:46 PM
A great deal of local fanfare has been made of the 15 month-and-running incarceration of Richard Fine by Los Angeles Superior Judge David Yaffe, especially by Leslie Dutton of "Full Disclosure Network." A close examination of the facts and the law suggest that Mr. Fine challenged the Court on the weakest grounds imaginable, and has been wrong on both the law and the facts from the start.
NOTE: FORMATTING DOES NOT TRANSFER TO INDYMEDIA SO I RECOMMEND VIEWING THE ARTICLE AT ITS ORIGINAL WEBSITE BELOW. -- MICHAEL GREEN
Original Content at http://www.opednews.com/articles/Attorney-Richard-Fine-s-Se-by-Michael-Green-100531-15.html
June 1, 2010
Attorney Richard Fine's Self-Inflicted Wounds
By Michael Green
Many OPED reporters have taken up the case of Richard Fine who has been imprisoned by Los Angeles Superior Court Judge David Yaffe for 15 months for civil contempt, and who remains in jail. The most recent coverage is a May 25, 2010 OPED essay by Roger Shuler, "Is California Prisoner a Victim of Judicial Retaliation?" Like most others, it argues that Fine is in essence a victim of retaliatory judicial discrimination, if not an outright political prisoner, held for his bold and courageous stand against institutional judicial corruption. I too have followed the Fine case, mostly through a local independent TV news program, "Full Disclosure Network," that has served as Mr. Fine's advocate. The deficiencies in this coverage finally led me to do my own research, which is summarized in the letter below to Leslie Dutton who owns and operates Full Disclosure Network. The letter shows that to his own detriment, Mr. Fine has done almost everything possible to sever the grounds of his imprisonment from the broader issue of his alleged exposure of judicial corruption that he claims is the true and only source of his imprisonment.
Richard Fine rots in jail for a very simple legal reason. As the attorney for Marina Strand, Fine launched a major real estate civil lawsuit against Los Angeles County and Del Rey Shores, but miscalculated the calendar and failed to file timely for a hearing. In order not to prejudice his client's right to proceed, Fine filed an affidavit of fault that automatically made him liable for reasonable compensatory legal costs and fees. But, instead of participating in the process to determine costs, Fine who was by this point ordered inactive by the State Bar and was no longer an attorney-of-record demanded that Judge David Yaffe disqualify himself from the case. At the time Fine made this demand he no longer had standing to do so (because he was neither a party nor current counsel), and contrary to law he used grounds that were known to him eight months before when the case-in-chief began. Fine refused to participate in the proper proceedings to determine the amount that he owed, and specifically refused to answer questions or produce documents in a debtor's examination that is standard procedure for assessing ability to pay. Fine's refusal to cooperate with the debtor's examination is the ground for the contempt charge that keeps him incarcerated until he complies with it. The entire matter would be a tempest in a teapot but for what it reveals about the sad state of Mr. Fine's psychiatric functioning, and also about the terrifically obscure and wasteful self-important machinations of the Court that permitted Fine to give the appearance of transforming his stubbornly deluded refusal to pay what he owes into a vast Constitutional issue.
The claim urged so passionately by Fine's followers, viz., that he is being crucified for his crusading role in exposing judicial corruption, plays no obvious part in his incarceration whether or not Fine's allegations of judicial corruption are true. Mr. Fine is in jail because he refuses to comply with standard court procedures to assess his ability to pay the money that he admittedly owes.
Full Disclosure Network
337 Washington Blvd, Ste. #1
Marina del Rye, CA 90292
RE: Why Is Richard Fine in Jail?
A month ago, when we spoke by phone, I said that the piece missing from your account of the Richard Fine saga is a clear statement of precisely why he is in jail, i.e., the contempt charge. You were unable to say why clearly, but you told me to read the record and I have.
Any political crusader knows that to take on the Establishment one must be right on the facts and, if possible, right on the law. In other words, if you know that you will be treated with prejudice, you choose your fights wisely. Richard Fine has chosen to fight where he is wrong on the facts and by his own choice wrong on the law, i.e., he drew his line in the sand when he was by his own admission wrong on the facts and the law.
Many of Richard's pleadings cry out the injustice of Judge Yaffe sentencing him in excess of the five days allowed by CCP 1218, and his followers have been much moved by this seeming grave injustice. But, in fact, Fine is held exclusively under CCP 1219 (a) that allows:
(a) Except as provided in subdivisions (b) and (c), when the contempt consists of the omission to perform an act which is yet in the power of the person to perform, he or she may be imprisoned until he or she has performed it, and in that case the act shall be specified in the warrant of commitment. (MG: (b) and (c) do not apply to Fine.)
The difference between criminal and civil contempt is that criminal contempt is punitive in nature in response to past transgressions, whereas civil contempt is remedial, and may be coercive in order to achieve some possible and legitimate goal (here, compliance with the debtor examination). Fine has stated explicitly on the record that he will not provide information required by his debtor examination until all his habeas corpus appeals are exhausted, but then he would supply the required information.
I am exercising my rights of petition for habeas corpus. At such times, those rights are entirely finished. If in fact I lose with those writs, then I would answer the questions.
Thus, Fine has stated that the coercive confinement serves a purpose, viz., that it brings him closer to the point of either victory or else exhaustion of his writs and his submission to the demands of the debtor examination. On March 24, 2010, Mr. Fine filed for an immediate Farr hearing on his behalf. William T. Farr was an investigative reporter who refused, on principle, to reveal sources as the court demanded. Farr won his release on the grounds that he would never reveal his sources no matter how long he was held in contempt; hence his imprisonment became punitive rather than prospectively coercive. Thus, Fine's case is crucially different from the Farr case where Farr maintained from the outset that he would continue to refuse to supply the requested information no matter how long he was held. Fine has admitted that he will comply when all his other legal remedies are at an end. Thus, as the Superior Court respondents opined:
Fine holds the key to his jail cell. By simply agreeing to answer questions and produce documents concerning his assets, that he has a legal obligation to provide, his coercive confinement will end.
An examination of Mr. Fine's Farr demand shows him engaging in cheap self-serving lawyering by deliberately distorting the facts to his own advantage. Fine cites Judge Yaffe's grounds for continuing the coercive confinement, but clipped out his admission supra that he would comply after all his legal remedies were exhausted:
The February 3, 2010 Minute Order at pages 1 and 2 affirms: 'Fine stated to the Court that he would not answer questions put to him at a Judgment Debtor Examination until he exhausts his right to petition for Habeas Corpus'. This concession and admission by Judge Yaffe, who is also Fine's direct adversary in this case (as he appeared personally in the writ proceedings), shows that there was 'no substantial likelihood' on March 4, 2009, or any time thereafter, that the March 4, 2009 Judgment and Order of Contempt would serve its 'coercive' purposes.
Mr. Fine's reasoning is defective even vis-à-vis the clipped quote, since that quote implies the omitted portion, viz., that he would comply once his habeas corpus writs were exhausted. Surely in his pleading for such a hearing Fine should have argued that he had changed his mind and that now nothing would make him cooperate with the debtor's examination.
If your reporting is accurate, then the courts do not appear to be acting fairly. According to your May 28, 2010 video update, Judge Yaffe reportedly told his clerk not to schedule a Farr hearing until such time as Fine complied with a debtor examination. I hope that this reporting is more accurate that other claims you make in that same video update, e.g., that
1) Mr. Fine has been imprisoned over a year and a half (his incarceration began March 4, 2009);
2) Supreme Court Justice William O. Douglas established five days as the maximum incarceration for civil contempt. (COMMENT: Leslie, you are making up sheer fiction. Justice Douglas ordered a stay of execution for reporter Farr after he had served 45 days of imprisonment, pending the disposition of his review in the United States Court of Appeals for the Ninth Circuit. Before the Ninth Circuit acted, the Court of Appeals of California, Second Appellate District, Division One "suggested that a proceeding be had in the superior court to determine whether there was a substantial likelihood that Farr's continued incarceration under the order would serve its purpose of supplementing the Manson record on appeal and assisting the court in the effective discipline of the offending attorneys of record in that case; and stated that once it was established that there was no substantial likelihood that such contempt order would serve its coercive purpose the commitment would become punitive in nature and thus subject to the statutory limitation. (P. 584.) [64 Cal.App.3d 612]."
In other words, only because a proceeding had determined that coercive confinement would not serve its purpose with Farr did his confinement become punitive and hence subject to statutory limitations of five days.
What are Fine's grounds for refusing to supply the required information? By his own admission, Fine missed a 90-day deadline to file for a hearing in a major real estate civil lawsuit. In order not to prejudice his client's rights to proceed, Fine admitted his error and then was forced to withdraw as counsel from the case because the State Bar ordered him inactive. His client was permitted time to obtain another counsel. By law, missing such a deadline makes Mr. Fine personally liable for reasonable compensatory legal fees and costs sustained by the opposing party. Judge Yaffe imposed compensatory legal fees and costs of circa ,000 on Fine and ordered him to participate in a judgment debtor's examination, which is standard procedure. Fine refused -- wrong on the facts, wrong on the law. How so?
Before the amount of the compensatory award was finalized, Fine demanded that Judge Yaffe recuse himself on the grounds of conflict of interest (since Yaffe, like all other Superior Court judges, had taken recompense, in a manner prohibited by the State Constitution, in the form of health and retirement benefits provided by Los Angeles County). Fine was wrong on the facts and the law again. First he was no longer counsel to the case; second he was never a party to the case; therefore he had no standing at that point to demand Yaffe's recusal even if Yaffe had improperly received such benefits. Yaffe rejected the motion and advised Fine that his rejection was not subject to appeal, but he also took the trouble to instruct Fine that his proper and sole legal remedy was to file timely a writ of mandate, which Fine did not do, making Yaffe's rejection of the recusal request final. Third: it was far too late -- both morally and legally -- in the proceedings for Fine to make the recusal demand, since the grounds for recusal had been known to Fine before the case-in-chief began but he had never used them until he objected to a particular action by Judge Yaffe. Thus, instead of wielding his cudgel against corruption from the start as someone crusading on principle, Mr. Fine held it back like an ace-in-the-hole to be used in case he did not like what Judge Yaffe did. It is difficult to imagine a more self-destructive strategy.
Mr. Fine's burst of sustained irrationality is difficult to fathom. Fine reportedly missed the filing deadline by a single day because he miscalculated the calendar, but then he filed an affidavit of attorney fault so that his client's case would not be dismissed due to this error, as opposing counsel had moved. Judge Yaffe nonetheless did dismiss the case of Fine's client (after the client had obtained other counsel), but immediately provided relief from the dismissal so Fine's client suffered no harm. Judge Yaffe then turned his attention to assessing the "reasonable compensatory legal fees and costs" for which Mr. Fine was personally liable, and his behavior became even more bizarre.
Mr. Fine may have been seized by a deep irrationality to embrace principle belatedly even while abandoning both the law and common sense. This is when, lacking the standing to do so (because he was neither attorney-of-record not a party to the case-in-chief), he demanded that Judge Yaffe recuse himself from the case. This is when Fine further abandoned the law by ignoring Yaffe's admonition that his ruling on the recusal demand was not subject to appeal by Mr. Fine, who was told that his only possible remedy was to file a timely writ of mandate, which Fine refused to do. From this point on in the proceeding, Mr. Fine's behavior became grossly irrational, pseudo-principled, and made him legally vulnerable to any ill will that Judge Yaffe may have chosen to express through official and by then legally sanctified actions.
A closer examination of Mr. Fine's behavior underscores the depth of his irrationality, passion and impaired judgment. Fine had waited over eight months after initiating the civil action on his client's behalf to demand Judge Yaffe's disqualification, and he threw in the demand that every judge on the Los Angeles Superior Court be disqualified. Although Fine's lack of standing to demand Yaffe's disqualification was a dispositive ground for denial, Judge Yaffe rejected it for other reasons as well:
In an order filed March 18, 2008, Judge Yaffe ordered the disqualification stricken (1) as giving insufficient notice, (2) because it was not filed by a party or [current] attorney for a party, (3) because a challenge may only be made against a presiding judge and not all judges, (4) because it was untimely, and (5) because it "disclosed on its face no legal grounds for disqualification."
Then, after Judge Yaffe advised Mr. Fine of the only available legal recourse to dispute his rejection of the demand, Mr. Fine ignored that advice and again simply filed another notice of disqualification as though he, Fine, and not established law, controlled proceedings. Or, to put it tendentiously, Fine behaved as though he were in touch with, and guided by, an imaginary Higher Law that only he could understand and appreciate. Thus, Mr. Fine's subsequent sustained burst of irrationality may well reflect deeper and more abiding components of characterlogical functioning of a similar sort, here possibly stressed to the point of at least a minor breakdown in reality testing.
Mr. Fine has filed pleadings claiming that he was denied notice of the January 8, 2008 hearing in which Judge Yaffe initially ordered him to pay costs, hence that the assignation of costs has no authority and violates constitutional guarantees of due process. Fine's claim appears to be a double distortion. Because Mr. Fine was no longer attorney of record, there may have been no no obligation to notify him of a hearing whose primarily purpose was to rule on the motion to dismiss the civil case. At that hearing Judge Yaffe also, following CCP 473 (b), ordered Fine to pay reasonable compensatory legal fees and costs, but these costs were determined after opposing counsel filed a memorandum of costs and Mr. Fine submitted two "motions to tax costs" in response, i.e., motions that challenge the stated costs. As Judge Carla Woehrle noted in her motion to deny Fine's writ of habeas corpus:
On April 10, 2008, a hearing was convened on Petitioner's motions to tax costs, but when he refused to proceed, claiming that Judge Yaffe had been disqualified, the motions were taken off calendar. [Judgment & Order at 6.] (Emphasis added.)
Thus, even if Mr. Fine should have been noticed for the January 8, 2008 hearing but was not -- and I do not see anything to support this except Fine's claim -- this failure played no role in the assessments of costs, which he indisputably owed. Thus, Mr. Fine's claim that the order to pay costs is grossly unconstitutional has no other basis in fact or law than his wishful thinking. Then, and continuing, the record reflects Mr. Fine's delusional grandiosity. Mr. Fine seems to imagine himself tilting at Constitutional windmills and vast cesspools of judicial corruption when the only issue before the court is his refusal to pay his bills. Despite his charm and superficial rationality, Mr. Fine is not behaving like someone in his right mind.
There is an additional issue that by the time Fine demanded a recusal of Yaffe, he had been ordered inactive by the California Bar but represented himself as still licensed to practice law, for which he was held in criminal contempt. Fine has a good point that Yaffe showed bias in allowing opposing counsel to act as prosecutor in this civil contempt proceeding, but he has never been imprisoned on the criminal contempt charge, and it is only the criminal contempt charge that carries a maximum five days. Thus, Richard Fine has been deliberately trying to confuse both the courts and his supporters about the legal rationale for his imprisonment and the alleged judicial abuse of the law to achieve it. You, too, I am afraid have been confused, from neglect of the record.
Similarly, in several episodes of your show, Fine declares that there is established federal law that a judge cannot rule in a case of contempt that involves a charge of misconduct against himself. Fine repeatedly cites Federal case law, Mayberry in particular, as though it were being grossly flouted. But as Judge Carla Woehrle opined, the "personal embroilment" that disqualified the judge in Mayberry from ruling on the contempt to which he was subjected involved gross, virulent and repeated personal attacks and insults that were wholly unlike the matters of principle that Fine urged against Yaffe (and all Los Angeles Superior Court judges) in a gentlemanly fashion; hence Fine's charges did not disqualify Yaffe from being unbiased or even give the appearance of his being biased. In contrast to Mr. Fine's behavior vis-à-vis Judge Yaffe, in Mayberry, the defendant:
"called the judge a "dirty sonofabitch," a "dirty tyrannical old dog," a "stumbling dog," and a "fool"; said that the judge was running a Spanish Inquisition; and told the judge to "Go to hell," and to "Keep your mouth shut."
The judge saved up all these insults, taking no action until the trial was over, then slammed Mayberry with more time for the contempt charges than for crimes of the case-in-chief.
Judge Yaffe's behavior in the Fine matter provides an instructive contrast. As Judge Woehrle noted:
The Mayberry Court continued as follows: "The vital point is that in sitting in judgment on such a misbehaving lawyer the judge should not himself give vent to personal spleen or respond to a personal grievance."
Friends of Richard Fine have described the fourteen contempt charges (reduced to three for trial) as "trumped up" but they fail to appreciate that trumped up charges are typically followed by a kangaroo court verdict of "guilty." But Judge Yaffe found Fine "not guilty" on all fourteen counts, indicating that he did not vent personal spleen. Jaffe found Fine guilty of contempt only for Fine's willful refusal to meet his obligations in the debtor examination, and for his practicing law without a license. Whether or not one agrees with Judge Woehrle, Fine's quoting Mayberry as though it were on all fours with his own case is mere propaganda, not law, let alone "settled law" as Fine called it.
The two most useful documents for me were:
Case 2:09-cv-01914-JFW-CW Document 15 Filed 05/01/2009 RESPONSE OF THE SUPERIOR COURT OF LOS ANGELES TO PETITION FOR WRIT OF HABEAS CORPUS
Case 2:09-cv-01914-JFW-CW Document 26 Filed 06/12/2009 REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
One must sign in and search for them at http://www.scribd.com/.
Richard Fine is a decidedly flawed hero, but like you I like him, and frankly I feel sorry for him. Nonetheless, the missing piece of your story, once put back in place where it belongs, makes most of the charges of gross abuse and distortion of the legal system diminish, if not disappear. If you are going to beard the Lion in his own den, you do not begin by laying your throat open to be devoured by it.
Michael B. Green, Ph.D
Qualified Medical Examiner (1992-2006, retired)
Former Assistant Professor of Philosophy
University of Texas at Austin
Postscript: After writing this article I discovered a 2/1/9 post made by Mr. Fine on the American Home Owners Resource Center website. There, nearly a year after his first attempt to force Judge Yaffe's recusal, Fine referred to himself in the third person and argued:
...On January 8, 2008, Judge Yaffe ordered Fine to pay attorneys fees and costs to LA County and its "co applicant" for the EIR, the developer, and sanctions without giving notice to Fine of the hearing and without Fine being present at the hearing. This was an unconstitional [sic] act and Judge Yaffe did not have any jurisdiction over Fine to make such an order as Fine was not a party to the case or an attorney in the case. (Emphasis added)
Thus, Fine maintains that Judge Yaffe cannot assess a compensatory penalty against him for his having failed to file timely for a hearing when he was the attorney of record, on the grounds that Fine is now neither a party nor attorney of record. Of course, these are amongst the grounds by which Jaffe rejected Fine's demand for Yaffe's recusal, i.e., Yaffe ruled that Fine had no standing to demand Yaffe's disqualification at the time that Fine made the demand (February and again March 2008) because Fine was then neither a party to the case nor the attorney of record. So Fine is "turning the tables" on Yaffe, but in a psychotic fashion. A person who becomes personally liable for penalties for acts committed when he was the attorney-of-record -- as did Mr. Fine through his own affidavit of fault in failing to file timely -- remains liable for those penalties even though the penalties are assessed at a later time when he is not the attorney-of-record. A psychologist who has sex with a patient and loses his license for having done so cannot use the loss of license -- or its voluntary surrender -- to argue that the courts have no jurisdiction over him because he is no longer a psychologist or is no longer treating the patient that he abused. To argue otherwise reflects deranged thinking, not creative thinking or principled constitutional law as Mr. Fine asserts. Whatever one's politics, and whatever one thinks of Judge David Jaffe, friends of Richard Fine should recognize the derangement in his arguments and underlying thought process and act to further Mr. Fine's best interests insofar as they are able to do so.
Author's Bio: I am a retired forensic psychologist living in Los Angeles with enough time on my hands to have spent the past few years studying the deeds whose perpetrators pejoratively deride the correct analysis of which as "conspiracy theories," i.e., USG intelligence community domestic covert operations -- fascist politics by unconventional means. A professor of analytic philosophy in a former career, I no longer embrace the Lotus Land argument that if you can work on your abs, then you are not living under a totalitarian state.
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