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Critiques of the Judiciary
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Critiques of the Judiciary
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By law, the judicial salaries of California's Superior Court judges are set and financed by the state. Many of the counties, however, have utilized schemes for supplementing the salaries of appellate court judges. These supplements assist the judges in their reelection campaigns and help insure favorable outcomes in cases where those counties are defendants. Attorney Richard I. Fine was instrumental in uncovering these extra-legal payments, which began in 1988 and affect more than 1,600 judges. The payments, which currently amount to about $46,000, have been routinely omitted from the financial disclosure forms required of all judges. Fine's campaign to expose this judicial misconduct led to his disbarment, and he was subsequently tried and imprisoned for contempt by one of the judges, Judge David P. Yaffe, who was caught up in the financial scandal.
In 2008, the landmark decision in Sturgeon vs. County of Los Angeles made it clear that the supplementary payments to the judges were unlawful. This prompted the California Judicial Council to have a bill drafted that was quietly inserted into the state's budget legislation, SBX2 11 , and passed without public debate or awareness. This provision granted retroactive immunity from criminal prosecution to all the California judges and County officials who either received or authorized illegal payments of public money. These events demonstrate how the judiciary, with the power to silence its critics through imprisonment, can evolve into a corrupt enterprise, and it underscores the imperative to create an inspector general's office that functions independently of the judiciary and has the authority to convene citizen grand juries to investigate complaints about judges.
On September 17, 2010, Judge Yaffe ordered Richard Fine released from prison after having kept him in coercive solitary confinement for 18 months. Yaffe also announced his own retirement, effective November 1, 2010.
“His conduct is bizarre, and that fact alone must be considered by this court in performing its continuing duty to determine whether Fine's continued confinement serves any useful purpose.” -- Judge David P. Yaffe
September 17, 2010
A Fine MessDisbarment and imprisonment apparently won't persuade Richard Fine to stop accusing state judges of being on the take.MICHAEL ESTRINOctober, 2010If Richard Fine feels sorry about any of the things he said or did that compelled a state judge to throw him in jail for contempt of court, he has yet to express it. The 70-year-old disbarred attorney claims that he was a prisoner of conscience who continues to pay a very high price for blowing the whistle on a state-sanctioned bribery scheme that implicates hundreds of judges. As he told the Los Angeles Daily News in March for an article that would mark the one-year anniversary of his confinement: "We've exposed the most massive judicial corruption scheme in the history of the United States."
To be honest, I had never heard of Fine before I read that article. And even after I read it, I couldn't tell whether he was just crazy, or a lot more interesting than that. But I was intrigued enough to investigate further.
In short order, I learned that Fine has a law degree from the University of Chicago and a PhD in international law from the London School of Economics. I also learned that in the early 1970s he worked in the Antitrust Division of the U.S. Department of Justice, bringing price-fixing cases against the likes of General Motors and the Ford Motor Company. By the 1990s, though, Fine was making a name for himself in private practice, filing cases against the public sector. One sixteen-year-old clip from the Lodi News-Sentinel names him as part of a team of attorneys who sued California for illegally "robbing" special state funds to plug holes in the budget. In 1995, a Los Angeles Times story identified Fine as the lawyer behind a $116 million suit against the city, claiming that it had illegally diverted funds set aside for installing fire sprinklers in public buildings, constructing parking lots, and maintaining parking meters. The same story also noted that Fine had won a $3 million judgment against the city in a separate lawsuit on behalf of the Los Angeles Harbor Trust Fund, and that he blocked the misappropriation of another $120 million the city had planned to tap to fix a budget shortfall. Then in 1996, according to the Times, Fine brought suit on behalf of two North Hollywood residents against the Los Angeles Department of Water and Power, for allegedly overcharging customers by as much as $65 million in sewer fees.
Taken together, these clips suggest that Fine was a crusader rather than just another hired gun. In fact, the man claims to have recovered or saved taxpayers nearly a billion dollars over the course of his career. But by the spring of 2009, when L.A. Superior Court Judge David Yaffe found him in contempt, Fine's crusade had morphed into a single-minded campaign against the roughly $300 million in benefits that he estimates L.A. superior court judges had received from the county since the late 1980s to supplement their state-paid salaries. These payments, Fine insisted, made it almost impossible to get a fair hearing in Los Angeles when representing parties against the county.
It was, of course, a whopper of a claim. And yet, as wacky as it seemed, Fine could point to at least one case that strongly suggested he was on to something. This was a case brought by the conservative public interest group Judicial Watch on behalf of a Los Angeles County taxpayer named Harold P. Sturgeon. The question it raised was this: Could California's judges collect any county-paid insurance or retirement benefits without violating the state's Constitution? (Under Article VI, section 19, judicial compensation must be set by the Legislature.) On October 10, 2008, the California Court of Appeals in the Fourth District ruled that they could not (Sturgeon v. County of Los Angeles, 167 Cal. App. 4th 630 (2008)).
Needless to say, for the roughly 90 percent of California's trial judges who receive local benefits of some sort, that decision came as quite a shock. And in Sacramento, it set off a mad scramble to enact a legislative fix. The result was SB 11 (Steinberg), which passed both chambers of the Legislature during a special weekend budget session in February 2009 (see Cal. Gov. Code §§ 68220–68222).
Then, just one month later, Richard Fine found himself in jail.
When I first spoke with Fine in early May of this year, a CNN crew had already been out to the Men's Central Jail to film a story about him. Also by then, Inmate No. 1824367 had asked the U.S. Supreme Court to review his habeas corpus petition. His request would soon be rejected (see Fine v. Sheriff of Los Angeles County, 2009 WL 4874116 (9th Cir,), cert. denied sub nom. Fine v. Baca, 130 S. Ct. 1334 (2010)), but not before prompting simultaneous demonstrations on his behalf: one in front of the U.S. Supreme Court, the other outside the Stanley Mosk Courthouse in downtown Los Angeles, where about 75 protestors chanted "This is America, not Russia!"
As I expected, Fine felt pretty good about all that attention. But when I arrived at the jail, I also learned that he was having some problems with his health. Most worrisome was the swelling in his legs. His blood sugar and cholesterol numbers also were high. "The Rabbi told me to go with the kosher meals because they were better," he told me with a slight laugh. "But the food is still pretty bad."
We spoke to each other through a pair of clunky, black phones in the jail's second-floor infirmary, he on one side of a thick glass partition and I on the other. Fine's side was dimly lit, so it was difficult for me to see beyond his stall. But occasionally I heard the sound of a steel door opening and closing, which disrupted our conversation. The interview on that day alone lasted for five hours.
It started, though, with him asking me a lot of questions. He wanted to know where I was from and where I went to college. He wanted to know what the weather was like outside, and he asked about what was going on in the rest of the world. (To minimize the possibility of unrest, the two newspapers that the prisoners had access to were out of date and heavily edited by the jail's staff. So although Fine had a pretty good grasp of what was going on in Iraq and Afghanistan, he was not nearly so up to date on Los Angeles.)
Heavyset and bespectacled, he struck me as a rather pleasant, grandfatherly sort of guy. But when the talk turned to how the county was enhancing judicial compensation packages, Fine's posture noticeably stiffened. "It's bribery," he said, tilting his head straight at me. "The result is that when you sue [a county] on a bench trial, you lose."
As Fine recalls, he didn't realize that the county was doing any of this until 2000—at least a dozen years after it started. But then when I asked him how he found out, his answer floored me. The person who tipped him off, he said, was none other than Ronald M. George, the chief justice of California.
"I had a feeling something was amiss for a while," he explained. "I had come across some really bizarre rulings in my cases against the county, but I didn't know why. I didn't learn about the payments until I read a news report of a speech given by Chief Justice George where he said that these payments were unconstitutional."
When I later checked out the Free Richard Fine website devoted to his defense, I would indeed find a quotation attributed to George: "That state of affairs is not only wrong, it may be unconstitutional," it said.
This quote, I've since determined, came from a September 18, 2000, article in a legal daily in L.A. called the Metropolitan News-Enterprise, which described an informal Q&A session in San Diego between the chief justice and members of the California Judges Association. In the article, however, the line Fine's website excerpted did not have any quotation marks around it, suggesting the reporter had paraphrased the remark.
When I called the State Supreme Court for a comment, a spokeswoman for George said that the Chief didn't remember ever making such a remark. She also noted that it wasn't altogether unheard of for a reporter to take his comments out of context.
Clearly, I wasn't going to get to the bottom of this easily. But to hear Fine tell it, I needn't have bothered.
"You won't find a copy of that speech," he said before I left the jail. "They don't want that out there."
His words had the ring of a bad Hollywood thriller.
In one of the last cases of his legal career, before he lost his license, Fine represented a homeowners association called Marina Strand, which was challenging Los Angeles County's permit for a high-rise apartment complex to be built in Marina del Ray (Marina Strand Colony II Homeowners Ass'n v. County of Los Angeles, No. BS 109420 (Los Angeles Super. Ct.)). Fine filed the action in June 2007, but before the year was out the State Bar, as part of its disbarment proceedings against him, ruled his membership inactive. (See In Re Matter of Richard I. Fine, No. 04-0-14366 (State Bar Ct. inactive enrollment ordered Oct. 17, 2007)). So the homeowners association turned the matter over to another attorney named Rose Zoia.
According to Zoia, there was nothing unusual about the Marina Strand case itself. Arguing before Judge Yaffe, she won on some issues and lost on several others. Each side then appealed, only for the case to be dismissed as moot when the county issued a new environmental impact report.
I asked Zoia whether she agreed with Fine that nobody suing the county in L.A. could get a fair hearing. "No," she emailed back, "I would not support that very general proposition. Of course, whether one agrees with the outcome of any given case is a different issue."
Marina Strand may have been perfectly routine from a case law standpoint, but if you go to the records department of the Stanley Mosk Courthouse and ask for the files, you'll end up with a cart filled with four volumes of material, much of it devoted to the fight that landed Fine in jail. The issue at hand: Did Judge Yaffe have the authority to order Fine to pay $46,329.01? This was the amount that the lawyers for the apartment project's developer said Fine owed them for missing a filing deadline. (Fine calls this sum preposterous, maintaining that his error caused only a one-day delay in the proceedings.) But rather than argue over the merits of the claim, Fine simply insisted that Yaffe's authority had been entirely compromised by the money that he was receiving from the county.
As Fine began to file motions calling for Yaffe's disqualification, their exchanges grew increasingly tense. At one point Yaffe asked: "Is there any judge or justice in California that can order you to do anything?"
"The answer to your question is yes," Fine responded, "there are judges within the county [and the] California judicial system that can order me to do something. You are not one of them."
Fine then added: "There are people in the California judicial system who are clean. There are a lot of people who are not clean.
... Unfortunately, your Honor, you are in this group that is disqualified."Minutes later, the judge found Fine in contempt of court.
By the time Judicial Watch decided to throw its weight behind Sturgeon, Los Angeles County had already been supplementing judges' salaries for almost two decades, though the practice wasn't codified into state law until 1998, when the Lockyer-Isenberg Trial Court Funding Act took effect. (In addition to Los Angeles, 34 of the state's 58 counties also supplement their judges' salaries, although by much smaller amounts.) But in the appeal of Sturgeon, Justice Patricia Benke ruled in October 2008 that under current law the state Legislature could not delegate to individual counties such constitutionally prescribed duties as setting judges' compensation (Sturgeon, 167 Cal. App. 4th at 635).
It wasn't that counties didn't have a "legitimate interest" in assuring the competence and skill of the judges who serve them, she allowed. "Because they improve recruitment and retention of judicial officers, the disputed benefits ... serve a public purpose." Yet she concluded that the Lockyer-Isenberg law did not pass constitutional muster because it failed to stipulate "any standard or inherent safeguard by which future increases or decreases in judicial benefits would be regulated." (167 Cal. App. 4th 656.)
Benke's decision drew an immediate appeal from the county and prompted L.A.'s superior court judges to retain their own counsel (Gibson, Dunn & Crutcher), which was paid for out of a superior court defense fund. Meanwhile, with reports circulating that a number of senior judges were threatening to retire, pressure mounted for a legislative solution that would keep the county funds flowing without interruption.
And SB 11—which Governor Schwarzenegger signed into law on February 20, 2009—did just that.
Actually, the legislation did three important things. First, it addressed the constitutionally mandated role of the state by requiring the Judicial Council to report to the Senate annually any judicial payments that the counties made. Second, it empowered the counties to stop making such payments, as long as the judges affected are given at least 180 days written notice. (Observers had worried there might be no legal way for a county to stop giving money to judges once they started.) And third, the bill shielded public entities and officers against any liability from past payments. (See Cal. Gov. Code §§ 68220–68222.)
Later, Judge James Richman affirmed that the supplemental payments could continue in light of SB 11's passage: "[T]he Legislature obviously considered the problem identified in Sturgeon," wrote the San Francisco appellate court judge, who was transferred to Los Angeles just to hear the case. "That the Legislature did not ordain a uniform state-wide amount of the total salary, compensation, and benefits," he added, "does not show the 'abdication' that Plaintiff so vigorously decries." (Sturgeon v. County of Los Angeles, No. BC 351286 (Los Angeles Super. Ct.) order on summary judgment at pp. 11–12.)
To Fine, of course, these developments were all part of an "outrageous act of corruption." However, when I asked Paul Orfanedes, the director of litigation at Judicial Watch, for his assessment, he seemed to go out of his way to distance himself from Fine's characterization. "In our view," he told me after a long pause, "the California state Constitution says that only the Legislature can set judicial compensation. Is this payment corruption? Maybe it's a form of corruption, I don't know. But it is not a kickback scheme or a quid pro quo.
"Fine's fight predated our case," added Orfanedes, whose organization has appealed Judge Richman's ruling. "When the court of appeals ruled in our favor [in Sturgeon], he used that as an opportunity to bring attention to his issues."
On May 24, Fine scored a big media coup when CNN aired its lengthy segment about him on Anderson Cooper's 360 news show. Among those interviewed for the program was Los Angeles County's cost litigation manager, Steven Estabrook. For the network's online version of the story, he told CNN that in the past two fiscal years the county had won eight of nine bench trials—odds that seemed to support Fine's complaints. When I spoke to Estabrook later, however, he told me that the numbers were not nearly so definitive. For one thing, he noted, records on the county's success at the bench versus at jury trial go back only three years. He also noted that no one has collected statistics on pretrial motions, which is when many rulings go against the county.
In addition to giving Fine an opportunity to talk about judicial corruption, CNN provided him with a platform to describe the harsh conditions of his confinement in a seven-and-a-half by thirteen-foot cell set apart from the rest of the inmates. And in a second video clip posted on CNN's website, Fine's wife and daughter described their own pain and indignation.
In fact, Fine's daughter, Victoria, had lots to say about this case, even before the CNN program. An editor at the Huffington Post, she wrote an impassioned editorial for the online news organization back in January, describing her father as a "political prisoner."
Still, CNN's broadcast struck at least one critical note: "What [Fine] ultimately did" in Marina Strand, said Joseph Carlucci, the lead prosecutor for the California State Bar on Fine's disciplinary case, "was to delay proceedings [and] to level false accusations against judges. All those lawsuits were found to have been frivolous and meritless," he added. The segment also made mention of the fact that Fine had been disbarred—an action the California Supreme Court finalized on March 13, 2009 (Fine v. State Bar, No. S168418).
Unlike Judge Yaffe's deliberations, the State Bar's disbarment proceedings against Fine passed judgment on a long history of acting out. The records on this are voluminous. Numbering thousands of pages, they portray a litigator who at times seemed virtually out of control. As State Bar Judge JoAnn Remke wrote: "[Fine had a] pattern of deliberately and repeatedly misusing this state's statutory process for challenging a judicial officer's qualifications." (In the matter of Richard I. Fine, No. 04-0-14366 (State Bar Ct.) opinion and order at p. 1.)
To make their case, State Bar prosecutors focused on five civil suits that Fine had worked on over the years, including one in which he filed no fewer than a dozen disqualification motions, three times the number he filed in Marina Strand. This was a class action that arose out of a series of claims against an insurance company that allegedly had hired an imposter physician (DeFlores v. EHG Nat. Health Servs., No. B150607 (Los Angeles Super. Ct. filed May 23, 1996)). When Fine and several other plaintiffs lawyers settled the case in 1999 for $9.2 million, one-third of the settlement was set aside for attorneys fees. However, all hell broke loose when Bruce Mitchell, the commissioner who presided over the case, refused to authorize a $1.4 million advance payment that Fine was seeking before the court had made a clear determination about how much money each attorney was owed.
Fine filed his first motion to disqualify Mitchell in December 1999, claiming that the commissioner had colluded with another plaintiffs attorney to cheat him out of his fee. Four months later, with Fine becoming increasingly obstreperous, Mitchell removed him from his role as class counsel—although he did allow him to continue representing a few of the litigants. In September 2001, with Fine up to nine disqualification motions, Mitchell found him in contempt of court and sentenced him to five days in jail. Fine then appealed the matter to Justice Roger Boren of the Second District, who not only rejected Fine's arguments (he noted that Fine, along with the other lawyers in the case, had stipulated without objection to Mitchell acting as the pretrial judge), but also found his accusations to be "false and thus contemptuous." Thus, Mitchell's contempt order stood (Fine v. Superior Court, 97 Cal. App. 4th, 651 (2002)).
Amazingly enough, the ruling failed to dissuade him from filing even more disqualification motions against Mitchell. And in October 2002, with Fine up to his twelfth motion, an independent judge assigned to the case once again found him in contempt.
The State Bar Court found a similar pattern of abuse in the four other civil cases it looked at, in which he racked up another 18 disqualification motions. Perhaps even more telling, however, were the five disqualification motions Fine subsequently filed against the State Bar Court trial judge who presided over his disbarment trial, the five more he filed against the supervising judge of that court, the six against the presiding judge of the review department, and the eight he filed against other review judges.
In her opinion, State Bar Judge Remke stated that Fine had committed "multiple acts of moral turpitude." (In the matter of Richard I. Fine, No. 04-0-14366, opinion and order at p. 16.) But when I bounced those words off of Fine, he simply scoffed. ""Moral turpitude," he said, "is an archaic concept."
"This started with an effort to take away my fees because they thought I would quit [pursuing the DeFlores class action] if they went after my pocketbook," he continued. "Then, they went after my license, and now I'm in jail. As a friend of mine said, 'Richard, they'd kill you if they could figure out a legal way to do it.' "
"Who told you that?" I asked.
"A personal friend," he answered back, without saying anything more about it.
Is it reasonable to suppose that the hundreds of millions of dollars that state judges have received from Los Angeles County make it more difficult for lawyers there to win cases against the public sector? Frankly, I think it's something worth looking at. But even if one were to concede the point, is Richard Fine the best person in the world to be making it?
This brings me to Roger M. Grace, an attorney who also happens to be the editor and co-publisher of the Metropolitan News-Enterprise. Grace is clearly no fan of the judge who threw Fine in jail. In fact, back in 2001, Grace wrote no fewer than seven highly critical columns about David Yaffe. "From what I've observed," Grace wrote, "Yaffe does, to his credit, read the briefs. And he has a substantial quantum of law memorized. To his discredit, however, he's a nasty and arrogant SOB." Grace then proceeded to quote nine lawyers, most of them without attribution, who more or less echoed his sentiment.
Still, when I asked Grace whether Yaffe had mistreated Fine, he answered: "Even Yaffe is going to get one right."
In early August, Judge Yaffe announced his retirement, effective November 1. Then, on September 17, just one day after formally restating his intention to keep the disbarred attorney locked up, Yaffe abruptly ordered Fine's release. "It is becoming increasingly clear that Fine's conduct is irrational," the judge wrote. "His conduct is bizarre, and that fact alone must be considered [in determining whether his continued] confinement serves any useful purpose."
Fine, however, had a different take on what happened. "Right will win over might. This is a really great day for Los Angeles and for California," he told the Los Angeles Daily News. He also promised that he would continue his fight to "clean up the judiciary in California."
Copyright 2010, Daily Journal Corporation.
From: Michael Estrin, "A Fine Mess," California Lawyer, October Issue, 2010, http://www.callawyer.com/story.cfm?eid=911866&evid=1, accessed 10/08/10. Michael Estrin is a freelance writer living in Los Angeles. Reproduced in accordance with the "fair use" provision of Title 17 U.S.C.§ 107 for a non-profit educational purpose.
The remedy to unbridled judicial power and its inevitable abuses is to hold judges accountable for improper and unlawful conduct through citizen-controlled means that are independent of the judiciary, as described elsewhere on Tulanelink. The Constitution empowers Congress to regulate the courts, but Congress has proven to be an unwilling taskmaster and has permitted the judiciary to usurp power sufficient to keep the scales of justice from attaining an honest balance.
Calls from the public for greater accountability have been treated with disdain by the judiciary, which resists any change that would curtail the nearly unlimited power that judges enjoy over litigating parties. Perhaps continued citizen distress over arbitrary abuses of judicial discretion will lead to an inevitable "pitchfork rebellion" intent on restoring the balance of power to the people, where it rightfully belongs.
Reform movements modeled on the J.A.I.L. initiative have gained and then lost momentum in California, Idaho, South Dakota, Florida and Minnesota, where they have been opposed by bar associations and big business, misrepresented in the press, and suppressed by government entities with instances of law enforcement participation. Clearly, the "Powers That Be" fear meaningful judicial reform, and stand ready to mobilize considerable resources to defend their position.
ELENA SASSOWER MARK ADAMS DOUGLAS SCHAFER DORIS SASSOWER LINDA KENNEDY ROGER WEIDNER ISRAEL WEINSTOCK RICHARD COOK
Web site created November, 1998 This section last modified October, 2010
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