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9th Circuit Appeal - Dkt 59 - Memorandum Denying Appeal

9th Circuit Appeal - Dkt 59 - Memorandum Denying Appeal

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Published by: Honor in Justice on Dec 18, 2009
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02/01/2013

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*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument.See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD I. FINE,
Petitioner - Appellant,
v.
SHERIFF OF LOS ANGELES COUNTY;
et al.,
Respondents - Appellees.
No. 09-56073
D.C. No. 2:09-cv-01914-JFW-CW
MEMORANDUM*

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding

Submitted December 10, 2009**
Pasadena, California
Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.
Richard Fine appeals from the district court\u2019s denial of his petition for
habeas corpus. We have jurisdiction pursuant to 28 U.S.C. \u00a7 2253, and we affirm.
FILED
DEC 16 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Case: 09-56073 12/16/2009 Page: 1 of 3
DktEntry: 7165909
2

The district court correctly concluded that Los Angeles Superior Court
Judge Yaffe\u2019s refusal to recuse himself from Fine\u2019s contempt proceedings was not
\u201ccontrary to, or involved an unreasonable application of, clearly established federal
law\u201d or an \u201cunreasonable determination of the facts.\u201d 28 U.S.C. \u00a7 2254(d);s ee

also Jones v. Ryan, 583 F.3d 626, 636 (9th Cir. 2009) (de novo review). A judge\u2019s

failure to recuse himself results in a constitutional violation where \u201cthe probability
of actual bias on the part of the judge or decisionmaker is too high to be
constitutionally tolerable.\u201dCaperton v. A.T. Massey Coal Co., 129 S. Ct. 2252,
2257 (2009) (citation and quotation omitted). Fine asserts that Judge Yaffe was
intolerably biased because he received employment benefits from Los Angeles
County, a party to the underlying litigation. However, unlike the circumstances of

Caperton, Judge Yaffe\u2019s receipt of these benefits did not give him a \u201cdirect
personal, substantial, pecuniary interest\u201d in the matter.Id. at 2259 (citing Tumey v.
Ohio, 273 U.S. 510 (1927)). Nor was Judge Yaffe so \u201cpersonally embroiled\u201d that

he could not preside impartially.Crater v. Galaza, 491 F.3d 1119, 1132 (9th Cir.
2007). Fine\u2019s argument that he \u201cexposed\u201d Judge Yaffe for receiving \u201ccriminal
payments\u201d is belied by a California statute expressly providing that judges \u201cshall
continue to receive supplemental benefits from the county or court then paying the
benefits.\u201dSee Cal. Gov. Code \u00a7 68220; see also Sturgeon v. County of L.A., 84

Case: 09-56073 12/16/2009 Page: 2 of 3
DktEntry: 7165909
3

Cal. Rptr. 3d 242 (2008) (rejecting taxpayer\u2019s contention that judicial
compensation was an unconstitutional waste or gift of public funds, but finding
that judicial compensation required statutory prescription).

AFFIRMED.
Case: 09-56073 12/16/2009 Page: 3 of 3
DktEntry: 7165909

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