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ID # 1824367 c/o Men’s Central Jail441 BauchetStreet, Los Angeles, CA 90012RichardIFine@gmail.com
Via email andVia Certified Mail,Return Receipt RequestedSeptember 14, 2009Edmund G. Brown, Jr.Attorney General of CaliforniaCalifornia Department of Justice455 Golden Gate Avenue, Ste. 1100San Francisco, CA 94102RE:Formal Complaint Requesting Prosecution of Superior Court Judges, et alDear Sir: Please consider this a formal complaint requesting the prosecution of Los Angeles County Superior Court Judge David P. Yaffe and the members of the LA County Board of Supervisors, in particular,and all other superior court judges and county supervisors who have, respectively, received andauthorized “benefits provided to a judge under official action of a governmental entity” for violationof the California Penal Code sections prohibiting “misappropriation of funds” (
§
424), “bribery” (
§§
92-94) and “obstruction of justice” (
§§
146(a) and 153), amongst others. Prosecution isalso soughtagainst all judges who have received any “supplemental benefit payments” from any county sinceMay 21, 2009, and all county officials who have authorized the appropriation of such payments.Request is further made for your office to seek to reopen any case that has been decided by or presided over by any judge who has received immunity for criminal acts under Senate Bill SBX2-11 or who has received payments from any county since May 21, 2009, due to the “integrity of the court”having been compromised by the judge having received such criminal payments from a county.
I.History
As you are aware, LA County Superior Court judges have been receiving supplemental paymentsfrom LA County, in addition to their state salaries and benefits, since the late 1980s.In October 2008, the California Court of Appeals decided the case of
Sturgeon v. County of LosAngeles
(167 Cal.App.4
th
630 (2008), review denied December 23, 2009).
Sturgeon
held that the“judicial benefits” paid by LA County to LA Superior Court judges was “compensation” and, as such,violated Article VI, Section 19, of the California Constitution. Such Article states in relevant part thatonly the state legislature can “prescribe” the compensation of the judges. The Court confirmed thatthis was a “non-delegable duty” which could not be undertaken by counties.
Edmund G. Brown, Jr.Attorney General of CaliforniaSeptember 14, 2009Page 2In response to the
Sturgeon
decision, the Administrative Office of the Judicial Council of Californiadrafted Senate Bill SBX2-11. (The history of the bill shows such drafting.) The bill, sponsored bySenate President Pro Tem Darrell Steinberg, was introduced as part of the budget process onFebruary 11, 2009, passed by the State Senate on February 14, 2009, passed by the State Assembly onFebruary 15, 2009, and signed by the Governor on February 20, 2009. The Bill became effective onMay 21, 2009.The first Section of Senate Bill SBX2-11 continued the county benefits to judges as follows:“Judges of a court whose judges received judicial benefits provided by the county or court or both, as of July 2008, shall continue to receive supplemental benefits fromthe county or court then paying the benefits on the same terms and conditions aswere in effect on that date.”The second Section provided for the termination of the benefits with 180 days’ notice to theadministrative director of the Courts and the “impacted judge”, but precluded termination while thejudge remained in office in that court.The last Section of Senate Bill SBX2-11 recognized that the county benefits violated the criminal lawby giving retroactive immunity to the judges and government employees for past violations. Theimmunity does not extend, however, to the current payments. Such paragraph states as follows:“Notwithstanding any other law, no governmental entity, or officer or employer of agovernmental entity, shall incur any liability or be subject to any prosecution of anydisciplinary action because of benefits provided to a judge under the official action ofa governmental entity prior to the effective date of this act on the ground that thosebenefits were not authorized under law.”As shown above, the immunity was limited to actions “prior to the effective date of this act” (May 21,2009). No immunity exists for the current “benefits provided to a judge under the official action of agovernmental entity … on the ground that those benefits were not authorized by law.”The Penal Codes which are being and have repeatedly been violated are: (a) misappropriation offunds (
§
424), (b) bribery (
§§
92-94), and (c) obstruction of justice (
§§
146(a) and 153), amongstothers. (In
People v. Sperl
(54 Cal.App.3rd 640 (1976)), for example, the Court of Appeals held that acounty marshal was properly convicted of misappropriation of public money within the meaning ofPenal Code
§
424 after he used deputies and county vehicles in conducting non-county business.)
Edmund G. Brown, Jr.Attorney General of CaliforniaSeptember 14, 2009Page 3Additionally, the due process clauses of the Fourteenth Amendment to the U.S. Constitution and tothe California Constitution have been violated. U.S. Supreme Court cases have long and consistentlyheld that: it is a violation of due process for a judge to preside over a case when his campaigncommittee had received a significant contribution from the party who later appeared before himafter he won the election (see
Caperton v. A.T. Massey Coal Co., Inc
., 566 U.S. ___ (2009) decided June8, 2009). It is a violation of due process for a judge to preside over cases where the fines or fees heimposes go to the city treasury and are used to supplement his salary, and also because of hisinterest in helping the city as its mayor (see
Tumey v. Ohio
, 273 U.S. 510 (1927) –due process clauseincorporated the common law rule that a judge must recuse himself when he has “a direct personalsubstantial pecuniary interest” in a case. Page 523,
Caperton
, Slip Opinion page 6); it was a violationof due process for a mayor to preside over cases as a judge without a salary and without anypayment because the fines and penalties he imposed went into the town’s “Fisc.”. (See
Ward v.Monroeville
, 409 U.S. 57 (1972) –the mayor’s “executive responsibilities for village finances maymake him partisan to maintain the high level of contribution (to these finances] from the mayor’scourt”. Page 60,
Caperton
, Slip Opinion page 8); it was a violation of due process for anadministrative board composed of optometrists to preside over the case of a competitiveoptometrist. (See
Gibson v. Berryhill
, 411 U.S. 564, 579 (1973); it was a violation of due process for anAlabama Supreme Court Justice to uphold a bad faith damage award against an insurance company’srefusal to pay a claim when he was the lead plaintiff in a nearly identical lawsuit in Alabama’s lower courts. (See
Aetna Life Ins. Co. v. Lavoie
, 475 U.S. 813 (1975),
Caperton
Slip Opinion page 8), and it wasa violation of due process for a judge to judge his own actions. (See
In Re Murchison
, 349 U.S. 133,136 (1955) –the court recited the general rule that “no man can be a judge in his own case”, addingthat “no man can be permitted to try cases where he has an interest in the outcome”. Page 136,
Caperton
Slip Opinion page 10); and it was a violation of due process for a judge who was criticized topreside over the contempt proceedings of the “contemnor”. (See
Mayberry v. Pennsylvania
, 400 U.S.455,466 (1971) –“that by reason of the due process clause of the Fourteenth Amendment adefendant in a criminal proceeding should be given a public trial before a judge other than the onereviled by the contemnor”. Page 466,
Caperton
Slip Opinion page 10).The California state court judges are bound to follow the U.S. Constitution and the laws of the UnitedStates pursuant to Article VI, Clause 2, of the U.S. Constitution, which states:“This constitution, and the laws of the United states which shall be made inpursuance thereof; and all treaties made, or which shall be made, under the authorityof the United States, shall be the supreme law of the land; and the judges of everystate shall be bund thereby, anything in the constitutions or laws of any state to thecontrary notwithstanding.”Further, under the lawsof the United States, violations of the intangible right to honest servicesunder 18 U.S.C.
§§
1341, 1343 and 1346 have occurred. Section 1346, in particular, clarifies as follows:“For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes ascheme or artifice to deprive another of the intangible right of honest services.”
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