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Memorandum Of Points And AuthoritiesI.Prefatory Statement.
Richard I. Fine (hereinafter “Fine”) has been incarcerated in the LosAngeles County Men’s Central Jail since March 4, 2009 under a Remand Order from Los Angeles Superior Court Judge David P. Yaffe with “no bail,” without acourt date on such Order, and showing as the charge “CCP Section 1219.”California Code of Civil Procedure § 1219(a) is a “coercive incarceration.”From the outset, the “coercive incarceration” was both unlawful and penal.Judge Yaffe knew that “coercion” would not succeed and that answeringquestions was not related to the real issue of the case, his unlawful refusal torecuse himself.It is now obvious that “coercive incarceration” has failed.
II.“Coercive incarceration was a sham from the outset.
The “Answering Brief of Appellees, Superior Court of California, Countyof Los Angeles, and the Honorable David P. Yaffe, Judge of the Superior Courtof California, County of Los Angeles” stated at page 3, line 16, to page 4, line 2,in describing the contempt proceedings, as follows:The proceedings culminated in a finding of both civil andcriminal contempt. Coercive civil contempt pursuant toCalifornia Code of Civil Procedure Section 1219(a) wasimposed. Footnote 4The Answering Brief then falsely stated in Footnote 4:…the basis of the finding of the civil contempt was not related toFine’s challenges based upon the payment of local judicial benefits, but to Fine’s failure to answer questions and producedocuments at the judgment debtor hearing conducted byCommissioner Gross.The falsity of the aforementioned statement and the coercive confinementwas shown by the fact that Fine had challenged Judge Yaffe’s presiding over the
Marina Strand
case, as shown, as Judge Yaffe disclosed that he was receiving payments from LA County. The first disclosure by Judge Yaffe was made in aMarch 20, 2008 court hearing by Judge Yaffe, and Fine’s CCP 170.3 Objectionwas filed and served on March 25, 2008. Fine subsequently challenged Judge
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Yaffe’s judging his own actions by presiding over the contempt proceedings.The Answering Brief conceded that the LA County payments were one of thecrucial underlying issues in the case, stated at page 3, lines 5-8, under the headingof Statement of Issues Presented.On July 20, 2009, the Court [the Ninth Circuit] issued its order specifying asingle issue on appeal as follows:Appellant [Fine] is granted a certificate of appealability on theissue of whether the trial judge [Judge Yaffe] should haverecused himself.The issue of recusal based upon Judge Yaffe having received paymentsfrom LA County, a party before him, and Judge Yaffe having presided over contempt proceedings in which he judged his own actions, did not have anyrelationship or relevance to Fine’s answering questions about his assets beforeCommissioner Gross.The California case law which Judge Yaffe knew, and was bound to know,at the time he issued the Contempt and Remand Order held in the case of
In Re Farr
, 36 Cal.App.3d 577, 584 (1974), that once it was established that there wasno substantial likelihood that such contempt order would serve its coercive purpose, the commitment would become punitive in nature and thus subject tothe statutory limitation [five days under CCP § 1218], cited in
In Re William T. Farr
on Habeas Corpus, 64 Cal.App.3d 605, 610-611 (1976).The Contempt and Remand Orders were both penal from the outset asJudge Yaffe knew that such orders and incarceration would not coerce Fine todisclose his assets. The transcript of the March 4, 2008 hearings shows at page 8,line 8, to page 9, line 14, that Fine was not going to answer the questions unlesshe lost all of the writ proceedings because Fine believed that the proceedingswere illegal as Judge Yaffe had violated the Constitution. This was repeated at page 16, line 18, to page 25, line 3, which further emphasized the illegal LACounty payments, the immunity from criminal prosecution for Judge Yaffe under Senate Bill SBX2-11, the violation of the U.S. Constitution, federal law; i.e. 18U.S.C. 1346, and the risk of false imprisonment by incarcerating Fine.Despite the knowledge Judge Yaffe violated the law and ordered Fine to theLA County Jail, and knowing that the incarceration was false and penal from theoutset, under CCP § 1218, Fine should have been released on March 9, 2009,having served only five days of penal incarceration, which itself was false.Instead, after eleven months, Fine is still incarcerated.The criminal contempt referred to in the Answering Brief reflects the penalincarceration. The second contempt conviction was for “practicing law while not
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an active member of the bar”. However, at page 9, line 18, page 10, line 3, JudgeYaffe did not find any court order that ordered Fine inactive or took his licenseaway. It should be noted that the disbarment order did not become effective untilMarch 25, 2008, which was after the March 4, 2008 hearing, and the CaliforniaSupreme Court never ordered Fine “inactive.”Further, the Order to Show Cause contained a criminal charge of practicinglaw while not an active member of the bar, under CCP § 6126, but Fine never received a jury trial, and the charge was never dismissed. Thus Fine’s SixthAmendment right to a trial by jury was violated. Additionally, the conviction of practicing law without being an active member of the bar is inconsistent with the“not guilty” judgment on the charge of “lying about the status with state bar in pleadings filed in this court and oral arguments made before this court” in whichFine at all times represented and argued that the California Supreme Court hadnot ordered him inactive. There was never an issue of a disbarment order fromthe California Supreme Court, as such did not become effective until after thecontempt proceedings were over. In this regard, the attention of the Court isrespectfully invited to the case of
Fine v. State Bar of California, et al
, USDCcase no. CV-10-0048 JFW (CW), which charges the State Bar and others withfraud on the Court in seeking and obtaining the disbarment of Fine. The lawsuitseeks an order voiding and annulling such disbarment.The transcript of the March 4, 2008 hearing was attached as Exhibit “D” tothe “Declaration of Kevin M. McCormick in Support of the Response of theSuperior Court of California, County of Los Angeles, et al, to Petition for Writ of Habeas Corpus, etc.” Judge Yaffe has a copy in that Kevin McCormick is hisattorney in that matter.
III.Proposed orders.
Given the admissions in the Answering Brief and the March 4, 2009transcript that:1.the issue is “whether the trial judge [Judge Yaffe] should haverecused himself”;2.that the convictions were civil and criminal; and3.that no orders were violated to justify practicing law without beingan active member of the State Bar;and given that Judge Yaffe knew that Fine would not answer any questions andwould not be coerced to answer any questions, that questions about Fine’s assetsdid not have any relationship or relevance to the issue of Judge Yaffe’s recusal
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