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Published by: lesliebrodie on May 07, 2011
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PATRICIA J. BARRY, SBN 59116634 S. Spring St., Ste. 823Los Angeles, Ca 90014Tele. (213) 995-0734Fax (213) 995-0735patbarrylegal@yahoo.com[Counsel for Class and Kay individually and as a class representative]Philip E. Kay736 43
rd
AvenueSan Francisco, California 94121(415)387-6622(415)387-6722 (fax)[In Pro Per]SUPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF SAN FRANCISCOPHILIP E. KAY, an individual and as aclass representative for other personssimilarly situated,Plaintiff,vs.STATE BAR OF CALIFORNIA, THEBOARD OF GOVERNORS OF THESTATE BAR OF CALIFORNIA, THESTATE BAR COURT, OFFICE OFCHIEF COUNSEL, LUCYARMENDARIZ, SCOTT J. DREXEL,JAMES. E. TOWERY, DONALDSTEEDMAN, JEFF DAL CERRO andALLEN BLUMENTHAL, individuallyand their official capacity; HELENEWASSERMAN, RALPHS GROCERYCOMPANY,and DOES 1 - 500,Defendants.__________________________________))))))))))))))))))))))))Case No.CLASS ACTIONCOMPLAINT(Verified)CLASS CLAIMS FORDECLARATORY ANDINJUNCTIVE RELIEF - Code of Civil Procedure §§ 1060, 1065, 1068& 1102; VIOLATION OF STATEBAR ACT - §6001;CLASS AND INDIVIDUALCLAIMS FOR VIOLATION OFCIVIL CODE §52.1(b); 42 USC §1983 PROCEDURAL DUEPROCESS; FIFTH AMENDMENT;SIXTH AMENDMENT,SUBSTANTIVE DUE PROCESS;FREE SPEECH;INDIVIDUAL CLAIMS FORVIOLATION OF PENAL CODE§182; STATE BAR ACT - §6068.1(b);Exhibits and Request for JudicialNotice;
 Ex Parte
Application andMotion for Temporary RestrainingOrder and Preliminary Injunction FiledHerewith; Application for ComplexDesignation Filed Herewith
 
12345678910111213141516171819202122232425262728Kay v. State Bar, et al.Verified Complaint-1-
I.INTRODUCTION
1.Plaintiff Philip E. Kay (“Kay”) Kay is a State Bar member and respondent,currently under suspension and probation. Kay is an individual and a class representativefor other persons similarly [State Bar members and respondents] situated and brings thisaction on information and belief, except as to those allegations relating to himself, whichare asserted on personal knowledge. This action is brought as a class action under theprovisions of California Code of Civil Procedure §382. This action is brought to seek declaratory and injunctive relief and damages, pursuant to the holding in
Canatella v.State Bar of California
, 304 Fed.3d 843 (9th Cir. 2002) and Civil Code §52.1(b) tochallenge and remedy impending and past unconstitutional, illegal and void (
ultra vires
)actions, threats, intimidation and coercion against Kay by the State Bar of Californiadefendants collectively (“State Bar"), which has and will continue to cause irreparableharm to Kay and other persons similarly situated. (See also,
Kruetzer v. San DiegoCounty
(1984) 153 Cal.App.3d 62, 71-72.)2.During the prior State Bar proceeding, Kay’s constitutional - due process rightsand privileges, including the right not to be compelled as a witness against himself underthe 5
th
Amendment and right to a jury trial in a criminal proceeding under the 6
th
Amendment to the United States Constitution and Calif. Const., Art. I, Secs. 15 and 16,Calif. Const., Art. III, Sec. 3.5, Calif. Const. Art. VI, were violated. Moreover, inresponse to Kay’s assertion of his rights and privileges, the State Bar Court found him incontempt without a trial and entered a void (
ultra vires
)
 
default, with his Answer on fileand having appeared for trial. Based on the default, the State Bar issued a Decisioncontaining completely fabricated findings, including the non-existent common law crimeof “obstruction of justice.” There are no common-law crimes in California since theenactment of the Penal Code, which took effect on January 1, 1873. Thereafter, no act oromission is criminal or punishable, except as prescribed or authorized by the Penal Codeor analogous statute or ordinance. (See 17 Cal.Jur.3d Criminal Law: Core Aspects, §3.)“Obstruction justice” is criminal contempt of court. (Penal Code §166(a)(1) ["Disorderly,
 
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1
Section 6103: “A wilful disobedience or violation of an order of the court requiring him to do orforbear an act connected with or in the course of his profession, which he ought in good faith to door forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitutecauses for disbarment or suspension.”Kay v. State Bar, et al.Verified Complaint-2-
contemptuous, or insolent behavior committed during the sitting of any court of justice, inthe immediate view and presence of the court, and directly tending to interrupt itsproceedings or to impair the respect due to its authority"].) (7 Witkin,
Cal. Proc.
(2002 5
th
ed.)
Trial
, §174, p. 212.) Conviction of a nonexistent crime results in a void judgmentnot subject to waiver. (See
People v. McCarty,
94 Ill.2d 28, 37 (1983).) Moreover, Kaywas never cited, tried or convicted of contempt by an article VI court; nor was he evercharged or convicted of a Penal Code violation. Regardless, Hearing Department[administrative] judge Armendariz, without original jurisdiction, found Kay guilty of “obstruction of justice,” without ever having been charged or convicted of any PenalCode violation. (See
 In the Matter of Respondent D
., 1 Cal. State Bar Ct. Rptr. 517, p. 3(1991) [“Respondent can only be found culpable for conduct which is charged in thenotice to show cause.”]; 1 Witkin,
Cal. Proc.
(2008 5
th
ed.) Attorneys, § 606, p. 733,[Charges Dismissed] citing to
In the Matter of Mapps
(1990) 1 Cal. State Bar Ct. Rprt.19, 24 [an attorney cannot be disciplined for uncharged Penal Code violations];
 In the Matter of Glasser 
, 1 Cal. State Bar Ct. Rptr. 163, p. 1 (1990) [“Adequacy of notice is anessential element of due process. . . . This principle applies with equal force in State Barproceedings.”].) (See also
 Baker v. State Bar 
(1989) 49 Cal.3d 804, 814–815 [§6103
1
does not purport to define the duties of an attorney; rather, it merely provides thatviolation of duties defined elsewhere is ground for discipline].) Moreover, State Barcosts have been determined to be a criminal fine (punishment) and non-dischargeable inbankruptcy. (See
Findley v. State Bar of California
, 59 Fed.3d 248 (2010). (See also
 Matter of Lapin
(Rev.Dept. 1993) 2 Cal. State Bar Ct.Rptr. 279, 295 [State Bar Courtlacks contempt or sanction power].) The default resulted in a void order of suspension of his law license, probation and assessment of a criminal fine. The State Bar now seeks to

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