Opposition Brief — Johnson v. State Bar

Supreme Court brief1995

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In The

Supreme Court of the United States

October Term, 1995

LILLIAN BROWN JOHNSON,

Petitioner,

vs.

THE STATE BAR OF CALIFORNIA,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF CALIFORNIA

DIANE C. YU, S.B. # 78676

LAWRENCE C. YEE, S.B. # 84208

RICHARD J. ZANASSI, S.B. # 105044*

555 Franklin Street

San Francisco, California 94102

(415) 561-8200

Attorneys for Respondent

* Counsel of Record

QUESTIONS PRESENTED

1. Does the California Supreme

Court's determination that recusal was not

appropriate in light of petitioner's

highly speculative and conclusory

allegations of bias constitute a denial of

due process or raise an important federal

question which should be decided by this

Court?

2. Whether petitioner's vague and

unsupported claims of bias and financial

interest on the part of the California

Supreme Court and the State Bar of

California raise an important federal

question which should be decided by this

Court?

3. Whether petitioner can challenge

disciplinary rules and regulations on

vagueness and due process grounds where

(1) the language in the rules and

regulations provides notice of the

proscribed conduct (2) petitioner was

given formal notice of the proscribed

conduct and the facts and circumstances

alleged to have violated the rules and

regulations in question prior to hearing

(3) petitioner was afforded a full hearing

at which time she was afforded an

opportunity to address and refute the

disciplinary charges and (4) petitioner

made no objection on lack of notice/due

process grounds until after the State Bar

Court Review Department had recommended to

the California Supreme Court that she be

suspended from the practice of law.

4. Whether a federal constitutional

question is raised by the action of the

California Supreme Court in suspending

petitioner from the practice of law

because of conduct that involved the

misappropriation of funds, the entering

into a business transaction with a client

under terms and conditions that were

neither fair nor reasonable, the failure

to make any attempt to repay funds and the

failure to rectify or atone for the

misconduct, when petitioner was provided

with an adversarial hearing before the

Hearing Department of the State Bar Court,

provided a second review hearing before

the Review Department of the State Bar

Court, and provided independent review by

the California Supreme Court which ordered

her suspended from the practice of law.

iii

SUBJECT INDEX

QUESTIONS PRESENTED Tit Be ye: oe Sey Se ee i-iii

I. STATEMENT OF THE CASE ......- 1

II. BACKGROUND « «© «+ «6 «© 6 © © © e «@ 4

A. The Nature of the State Bar

OE GRAASOENSGS 45% Git ec ce eS

B. Procedural History ..... 9

C. Statement of Facts ..... 15

Zits Qe se 6 eet etSiaveleos « « « 33

A. The California Supreme

Court's Determination

that Recusal Was Not

Appropriate and its

Subsequent Order

Imposing Discipline

Does Not Raise Due

Process or Important

Federal Questions ..... . 23

B. Petitioner's Challenge

to the

Constitutionality of

the California

Regulatory System is

WAG TOE RG 2 a 8s ite ee EC

IV.

SUBJECT INDEX (Cont *d)

C. Petitioner's Broad

Claims of Financial

Interest and Bias by

the California Supreme

Court, the State Bar

Court and Trial

Examiner are

Frivolous, Unsupported

By Any Evidence and

Entirely Without

a ee ee

D. Petitioner's

Contention that

Charged Sections of

the State Bar Act and

Rules of Professional

Conduct Are

Unconstitutional is

Void of Merit ....

E. Petitioner Has Failed

to Demonstrate that

the Recommended

Discipline was

Beeeneces-. %. Sse id

CONCLUSION . . ... «2 « «

TABLE OF AUTHORITIES

Cases

Aetna Insurance Co. v. LaVoie, 475

U.S. 813, 106 S. Ct. 1580, 89 L.

Ed. 2d 823 (1986) ...-+ +. 25,

Beery v. State Bar, 43 Cal. 3d 802,

239 Cal. Rptr. 121, 739 P.2d

1289 (1987) . _ - 7 . + aa « — .

Brockway v. State Bar, 53 Cal. 3d 51,

63, 278 Cal. Rptr 836, 806 P.2d

308 (1991) e . a 7 * . e + . * 7

Brotsky v. State Bar, 57 Cal. 2d 287,

301, 19 Cal. Rptr. 153, 368 P.2d

697 (1962) * . - . °° o - 7 se o oa

Conway v. State Bar, 47 Cal. 3d 1107,

255 Cal. Rptr. 390, 767 P.2d 617

(1989) . . = a7 7 + . 7. ° 7 ao *

Doyle v. State Bar, 15 Cal. 3d 973,

978, 126 Cal. Rptr. 801, 544

P.24 ‘937 ‘(1976) 6 c's oe 6 « « «

Flangas v. State Bar of Nevada, 655

F.2d 946, 950 (9th Cir. 1981) .

Gibson v. Berryhill, 411 U.S. 564,

577-79, 93 S. Ct. 1689, 36 L.

BA. 90 468 (3973) 2. wc tt

TABLE OF AUTHORITIES (cont'd)

Hirsch v. Justices of the Supreme

Court of the State of

California, No. 94-55240, Slip.

Op. at 11141 (9th Cir. Sept. 7,

199S}) ss Si SV ee Ss oS BBG £335 ° 395 34

Jacobs v. State Bar, 20 Cal. 3d 191,

196, 141 Cal. Rptr. 812, 570

P. 2d: 2230: (1977) « Stet ie et ew eC

Jordan v. DeGeorge, 341 U.S. 223, 71

S. Ct. 703, 707, 925 L. Ed. 886,

95 L. Ed. 886 (1951) ... .-. 36, 39

Kaufman v. Court of Appeal, 31 Cal.

3d 933, 184 Cal. Rptr. 302, 647

P. 2d 1081 (1982) 2 o = 2 a e = - * 25

In Re Kelly (1990) 52 Cal. 3d 487,

497, 276 Cal. Rptr. 375, 801

P. 2a 1126 o e a ° e * oe ° ° * 36, 37

Lawhorn v. State Bar, 43 Cal. 3d

1357, 240 Cal. Rptr. 848, 743

P.2G -GG6 sC2OGR) ha 4 teste OSS. ow « 143

Lebbos v. State Bar, 53 Cal. 3d 37,

278 Cal. Rptr 689, 806 P.2d 317

(1991) ” ° ° e ° « . fs * s ” a 27, 28

Morrison v. State Board of Education,

1 Cal. 3d 214, 227-229, 82 Cal.

Rptr. 175, 461 P.2a@ 375 (1969) .. 39

Parker v. Levy 417 U.S. 733, 756, 94

S.Ct. 2547, 2567, 41 L. Ed. 2d

Gan Saeres «se 64 6 «6 ee a ee

vii

iii

TABLE OF AUTHORITIES (cont'd)

Rosenthal v. Justices of the Supreme

Court of California, 910 F.2d

561, 566-67 (9th Cir. 1990) ... 5

In the Matter of Ross, 6°6 P.2d 832,

9: Bees. 2003963) « 6 oe eo HM Se 3

Smith v. State Bar, 37 Cal. 3d 17,

26, 206 Cal. Rptr. 845, 687 P.2d

259 (1984) a = = * * - * 7” _ — +. . 41

Village of Hoffman Estates v.

Flipside, Hoffman Estates, 455

U.S. 489, 495, fn. 7, 102 S.Ct.

1186, 1191, fn. 7, 71 L.Ed. 2d

SER CAOSBSZ See 86 ORO ee ce 3G

Ward v. Village of Monroeville, Ohio,

409 U.S. 57, 93 S.Ct. 80, 34

ee ee ae) eo rr

Constitutions

California Constitution

Article Vi, @@6G3ONR 9 iiaise see 4

Rules

Standards for Attorney Sanctions for

Professional Misconduct

Gummeee ae@ ec twee eee eo « « 48

standard 1.4(c)(ii) ....

Po i ee ee ee ae ee ae

viii

aaa a ai i ig

TABLE OF AUTHORITIES (cont ’d)

California Rules of Court

BULGE“ SSL(G) > 6 0 oS eS Se SESE, 7

rule 952 7 a * e e am a = 2 a 7 rd 8

rule 953 (b) * oO 2 oa - oe a ia * oe e a

EUL@ O56 2 « «0 « 6). B64; 05 0 42K Se 7,9

Int. Op. Prac. & Proc. of the Supreme

Court of California, IVB3, IVGA.... 8

Rules of Procedure of the State Bar

of California

rule 2 es 17 & D> oe @ - * e e * * * — 5

rule 2 s 27 2 es 2 n ° aa 2 - * o J es 5

Rules of Professsional Conduct of the

State Bar of California

Fuse S.-101 ivecsersetcts eel 18y 37,38

rule 8-101 66.0 aeo Ee 6 - €X'o eX GP 6 38

former rule 8-101(B)(4) .. . 39, 40

Rules of the Supreme Court of the

United States

rule 10 a ° e ioe e ° * * * es a 8 es 24

rule 10 (a) a + - se - i 7 e e * e 24

rule 10 (b) * — 2 od = * *. e + e o = 24

SUAO- SOG) So GES + Sette « « BA

West's Cal. Rules of Court - State

(1991 Supp.), Ppp. 579-580 .. se es 8

section

chapter

Statutes

California Business &

6001 .

6079 (da)

6079.1

6079.1(a)

6079.1(

6082 .

6083 .

6084 .

6086.5

6086.65

6087.

6094.5

6100 .

6106 .

6140 .

6140.1

California Statutes

1159 .

(a)

(b)

(da)

Professions

°o Ulid&e © © © ee ewe ew Ye = *&

N Ww

STEP IUAAASPOINAGAWN &

= =

. 6 be ae ee See Se 8 Re ee

No. 95-423

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1995

LILLIAN BROWN JOHNSON,

Petitioner,

vs.

THE STATE BAR OF CALIFORNIA,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF

THE STATE OF CALIFORNIA

STATEMENT OF THE CASE

By order filed August 10, 1995,

Petitioner, Lillian B. Johnson, an

. attorney found culpable of having, inter

alia, “exploited a vulnerable, impecunious

relative by improperly borrowing and not

repaying the bulk of proceeds of a

personal injury settlement’," was

suspended from the practice of law in

California by the California Supreme Court

for a period of five years, execution of

suspension stayed, on conditions that

included a period of actual suspension for

two years and until proof of restitution

in the amount of $20,550 is provided and a

requisite showing of fitness is made under

standard 1.4(c)(ii), Standards for

Attorney Sanctions for Professional

Conduct.”

In her petition before this Court,

Petitioner contends that the evidence does

— copy of the State Bar Court

Review Department decision is included in

Petitioner's Appendix to Petition for Writ

of Certiorari ("Petition") at p. El. The

California Supreme Court issued its own

order, incorporating the recommendation of

the Review Department of the State Bar

Court.

7 * copy of the order is included in

petitioner's Appendix at pp. Al-A2.

not support the findings or recommended

discipline and that the recommended

discipline is erroneous and excessive

(Petition for Writ of Certiorari,

hereinafter "Petition," pp. 25, 28-29, 30-

33). Petitioner further contends that her

due process rights were violated because

of an alleged "financial interest" on the

part of the California Supreme Court, the

trial examiner and hearing judge and the

perceived existence of an

unconstitutionally created State Bar Court

(Petition, pp. 13-22). Finally,

Petitioner challenges the

constitutionality of selected rules and

statutes that govern attorney disciplinary

matters (Petition, pp. 22-34).

For the reasons set forth herein, the

State Bar respectfully submits that the

petition is entirely without merit and

should be denied.

The State Bar of California is a

public corporation established in the

judicial branch of government for the

purpose of performing governmental

functions in the administration of

justice. Cal. Const. art. VI, § 9; Cal.

Bus. & Prof. Code, § 6001.

Historically, the State Bar has

statutory authority to prosecute attorney

disciplinary proceedings, Cal. Bus. &

Prof. Code, § 6094.5, and the State Bar

Court has statutory authority to

adjudicate such proceedings, Cal. Bus. &

Prof. Code, §§ 6079.1(a), 6086.5,

6086.65(d). However, the California

Supreme Court retains inherent power to

control all matters related to attorney

discipline. Jacobs v. State Bar, 20 Cal.

3d 191, 196, 141 Cal. Rptr. 812, 570 P.2d

1230 (1977); Cal. Bus. & Prof. Code §

6087; Cal. R. Ct. 951(g). “Final

authority for disbarment [and suspension]

rests not with the bar but with the state

Supreme Court." Rosenthal v. Justices of

the Supreme Court of California, 910 F.2d

561, 566-67 (9th Cir. 1990).

The State Bar Court includes a

Hearing Department, which conducts formal

trial proceedings, and a Review

Department, which functions as an

appellate body in independently reviewing,

upon either party's request,

determinations of the Hearing Department

on a de novo basis. Cal. Bus. & Prof.

Code, §§ 6079.1(a) and 6086.65(d); Rules

Proc. of State Bar, rules 2.17 and 2.27,

West's Cal. R. Ct. - State (1991 Supp.

Pamph.), pp. 579-580.

The State Bar Court, in its present

form, was created by statute effective

January 1, 1989, and began to hear and

adjudicate attorney disciplinary

proceedings on September 1, 1989. Cal.

Stats. 1988, ch. 1159; Cal. Bus. & Prof.

Code, §§ 6079.1(f) and 6086.65(b). The

Hearing Department of the State Bar Court

is comprised of six full-time hearing

judges. Cal. Bus. & Prof. Code, §

6079.1(a). The Review Department is

comprised of three members, including a

presiding judge and a lay judge. Cal.

Bus. & Prof. Code, § 6086.65(a).

In establishing the State Bar Court

to replace the volunteer system that

existed prior to 1989, the California

Legislature modelled the State Bar Court

after courts of record. However, the

State Bar Court remains subject to the

inherent authority of the California

Supreme Court to regulate attorney

discipline. The California Supreme Court

appoints the State Bar Court judges and

delegates authority to the judges, subject

to the Supreme Court's ultimate control.

Cal. R. Ct. 951(g), 952; Cal. Bus. & Prof.

Code §6087; Broteky..v< State Rar; 57 Cal.

2a 287, 301, 19 Cal. Rptr. 153, 368 P.2d

697 (1962).

While the grant of a writ of review

of a State Bar disciplinary proceeding by

the California Supreme Court is

discretionary, Cal. R. Ct. 952, 954, all

actions of the State Bar Court regarding

attorney discipline are subject to the

independent and plenary review of the

California Supreme Court. Cal. Bus. &

Prof. Code §§ 6082, 6083, 6087, 6100; Cal.

R. Ct. 951(g). If no timely petition for

review is filed, the recommendation of the

State Bar Court for disbarment or

suspension is filed as an order of the

Supreme Court. Cal. R. Ct. 953(b); gee

also Cal. Bus. & Prof. Code, § 6084. That

is to say, the Supreme Court issues its

own order, which is filed by the Clerk,

incorporating the recommendations of the

State Bar Court.

In petitions for writ of review of

State Bar Court proceedings pursuant to

rule 952 of the California Rules of Court,

a conference memorandum is prepared with a

recommendation on the petition by central

staff of the California Supreme Court.

The conference memorandum is distributed

to the justices of the Court no later than

Tuesday of the week before the assigned

date for consideration of the petition by

conference of the Court. Int. Op. Prac. &

Proc. of the S.Ct. of Cal. IVB3, IVG1.

The Court will order review when it

appears (1) necessary to settle important

questions of law; (2) the State Bar Court

has acted without jurisdiction; (3)

petitioner did not receive a fair hearing;

(4) the decision is not supported by the

weight of the evidence; or (5) the

recommended discipline is not appropriate

in light of the record as a whole. Cal.

R. Ct. 954.

B. Procedural History

On October 7, 1991, a three count

notice to show cause was filed against

Petitioner. The notice was answered by

Petitioner on December 2, 1991.

On January 8, 1992, the State Bar

filed a motion to dismiss the second and

third causes of action. The motion was

granted by the Hearing Department on

January 14, 1992. Count One, which

alleged that Petitioner misappropriated

funds, failed to honor a medical lien and

failed to perform competently, remained.

On September 23, 1992, the scheduled

hearing was continued as the State Bar

moved to amend the notice to add an

additional charge of commingling. On

October 28 and 29, 1992, the matter came

on for hearing, at which time the State

Bar was directed to file an amended

Notice. On November 2, 1992, a first

amended Notice to Show Cause was filed.

The Notice was answered by Petitioner on

November 13, 1992.

On November 20, 1992, following post-

trial briefing, the matter was initially

submitted for decision. However, on March

1, 1993, the Hearing Judge, on his own

motion, reopened the hearing to allow the

parties to present additional evidence on

an allegation that Petitioner had violated

former Rule 5-101 of the Rules of

Professional Conduct’, which allegation

had only become apparent during the course

of the October 28th and 29th hearings.

Further hearings were held on April 29,

1993, and on June 7, 8, 21, and 28, 1993.

On July 30, 1993, the Hearing Judge

issued his decision, recommending that

Petitioner be suspended from the practice

of law for five years, stayed, on

conditions that included a two year period

of actual suspension and restitution of

$22,910 within the two year period.

On August 30, 1993, Petitioner

submitted an Application for Review by the

Review Department. On September 13, 1993,

the Review Department issued an Order to

Show Cause Why Request for Review Should

Not Be Dismissed, based on Petitioner's

failure to make the required deposit for

. References to "Rules" are to the

Rules of Professional Conduct.

the cost of the transcript. Petitioner

thereafter requested an extension of time

to deposit the fees for the transcript and

was granted an extension to October 15,

1993. On November 9, 1993, following

deposit of the required fee by Petitioner,

the transcripts were served on Petitioner.

On November 30, 1993, Petitioner

filed a Motion for a Continuance and

Motion te Settle Reporter's Transcript on

Appeal, based on an error involving the

transcripts. A supplement to the Motion

was filed on December 12, 1993. On

January 26, 1994, the Review Department

granted Petitioner's motion and allowed

Petitioner additional time to file her

opening brief.

On March 26, 1994, Petitioner filed

her opening brief. On May 2, 1994, the

State Bar filed its response. On May 23,

1994, Petitioner filed a Motion to File a

Reply Brief, which motion was opposed by

the State Bar, and on June 4, 1994, she

filed a Motion for Postponement of Oral

Argument for the Purpose [cf filing) a

Reply Brief. On June 16, 1994, the Review

Department issued an order denying

Petitioner's motions without prejudice to

Petitioner making a request at the time of

oral argument for leave to file a

supplemental brief.

On June 29, 1994, oral argument was

presented before the Review Department, at

which time Petitioner was granted leave to

file a Reply Brief. On July 28, 1994,

Petitioner submitted her Reply Brief. On

January 23, 1995, following additional

briefing by both parties on various

issues, the Review Department filed its

Opinion on Review.

Petitioner thereafter filed a Motion

for Reconsideration, which was opposed by

the State Bar. On March 6, 1995, the

Review Department denied Petitioner's

Motion. On March 3, 1995, Petitioner

served a Motion to File Supplement to

Motion for Reconsideration which was also

opposed by the State Bar. On March 21,

1995, the Review Department denied

Petitioner's Motion for lack of showing of

good cause as to why the proposed

additional arguments were not included in

her motion for reconsideration.

On April 28, 1995, the State Bar

Court's file and recommendation in this

matter were transmitted to the California

Supreme Court. On June 27, 1995,

Petitioner filed a Petition for Review of

Decision with the California Supreme

Court. On July 13, 1995, the State Bar of

California filed its Memorandum Response

in Opposition to Petiticn for Review. On

or about July 24, 1995, Petitioner filed a

eT ae ee PT eR RS Te) ee rR TT eee

document entitled "Petition for

Disqualification and Removal of Justices

and Appoint Disinterested Court of Appeals

Justices to Hear and Motion to Declare

State Bar Court Statutes, Rules,

Regulations and Standards

Unconstitutional."

On August 10, 1995, the Supreme Court

issued its order denying Petitioner's

Petition for Review and Petition for

Disqualification. The Court further

ordered that Petitioner be suspended from

the practice of law for five years,

execution of suspension stayed, on

conditions that included actual suspension

for two years and until restitution is

completed and proof of rehabilitation,

fitness to practice and learning and

ability in the general law is established.

C. Statement of Facts

Petitioner was admitted to the

practice of law on June 27, 1975 and at

all times herein mentioned was a member of

the State Bar. Petitioner has no prior

record of discipline.

Petitioner's misconduct in the

present proceeding centered around her

"overreaching at the expense of her

sister-in-law, now deceased, a woman of

limited income, in poor health, who lacked

sophistication in business matters."

(Appendix, p. El.) The factual findings

documenting Petitioner's misconduct are

fully set forth in the Opinion on Review

and are summarized below. (Appendix, pp.

E1-E31.)

In or about 1982, Margie L. Brown’,

sister-in-law of Petitioner, retained

Petitioner to represent her in a personal

injury matter. Petitioner and Brown

* Ms. Brown died in January 1992.

nner sere

orally agreed that the matter would be

handled on a contingency basis with

Petitioner to recover 40 per cent on any

settlement as attorney's fees. In

September 1986, the parties agreed to

settle Ms. Brown's case for $40,000. This

amount was electronically transferred

directly to a personal account maintained

by Petitioner, although insurance company

records noted that the account was a trust

account. (Appendix, p. E3.)

Pursuant to the oral retainer

agreement, Ms. Brown was entitled to

receive $24,000 less $200 in estimated

court costs. Petitioner admitted that

none of the proceeds went to Ms. Brown.

Petitioner represented that Ms. Brown

agreed to loan her, without security,

$19,860, which Petitioner used as a down

payment on the purchase of a residence.

Of the remaining amount due Ms. Brown,

$140 represented cash Petitioner advanced

Ms. Brown prior to the settlement, $3,250

represented an amount Ms. Brown agreed to

pay for legal services provided by

Petitioner in two prior legal matters, and

$750 was allegedly given to Ms. Brown in

cash at the time the insurance release was

executed. (Appendix, p. E3.)

In support of her contention,

Petitioner introduced into evidence a

promissory note, dated September 26, 1986,

that required Petitioner to pay Ms. Brown

$19,860 with 10 per cent interest on or

before January 31, 1991. Petitioner also

produced an unsecured agreement, dated

September 19, 1986 and signed by both

herself and Ms. Brown, which provided that

Ms. Brown agreed to loan Petitioner

$20,000 so as to allow Petitioner to

purchase real property. The agreement

further provided that Ms. Brown agreed to

“

se ee ae ee ee a ae

pay Petitioner legal fees in the amount of

$2500 for a prior criminal case handled by

Petitioner and $750 for a previous damage

Claim that had been filed against Ms.

Brown. There was no mention of the

alleged cash advancement in the agreement.

(Appendix, p. E3~-E4.)

The Review Department found that a4

loan was made from Ms. Brown to

Petitioner. However, Petitioner's conduct

with respect to the loan was found to have

been in violation of former rule 5-101,

Rules of Professional Conduct. The terms

of the loan were clearly unfair in that

Petitioner failed to provide any security

for the loan and the loan did not provide

for any payments to Ms. Brown until

January 1991, which was deemed

unreasonable in light of the financial

situation of Ms. Brown. Petitioner also

failed to describe such terms as the

assignment of a security interest or other

lien against the real property that

Petitioner acquired with the loan

proceeds, which could have safeguarded Ms.

Brown's interests’. In addition, Ms.

Brown's written consent was not a knowing

one because she was incapable of giving

informed consent and her incapacity was

known to Petitioner. (Appendix. pp. E16-

E19.) As noted by the State Bar Court

Hearing Judge:

"At the time of the settlement,

Brown was unmarried, having been

widowed in 1975, poor,

unsophisticated, 54 years of

age, not well educated, and was

helping to support several of

her adult-age children, and

several grandchildren, with her

meager income as a part-time

housekeeper and from Social

Security. At the time the case

settled, Brown was in poor

' Petitioner failed to make the

mortgage payments on the real property

purchased with the funds loaned to her by

Ms. Brown, resulting in the property being

lost to foreclosure in 1989.

health, but not as acutely ill

as she later became, and was

regularly drinking alcoholic

beverages to excess. Brown's

difficult circumstances and

corresponding vulnerability were

known to Respondent at the time

the loan agreement was

executed." (July 30, 1993,

Decision of Hearing Department. )

Although the Hearing Judge concluded

that Petitioner misappropriated the funds

in question, the Review Department found

that Petitioner did not misappropriate a

majority of the settlement proceeds as the

funds were obtained pursuant to the loan

agreement. (Appendix, pp. E9-E13, E22-

E25.) The Review Department did find that

Petitioner misappropriated the cash

payments alleged by Petitioner to have

been advanced to Ms. Brown, finding that

such payments had never been made.

(Appendix, pp. E6-E8, E24-E25.) The

Review Department further found that

Petitioner had violated the provisions of

former rule 8-101 in that he commingled

the settlement proceeds with personal

funds by failing to place the funds in a

trust account and failed to promotly pay

over funds to Ms. Brown. (Appendix, pp.

E25-E26.)

The Review Department concluded that

Petitioner's misappropriation of funds, as

well as her having "exploited her superior

knowledge and position of trust to the

detriment of a vulnerable client"

constituted moral turpitude. (Appendix,

p-. E24.)

In determining the appropriate degree

of discipline, the Review Department

considered both mitigating and aggravating

factors presented by the parties.

(Appendix, pp. E26-E28.) The Review

Department, while giving weight to

Petitioner's lack of a prior record of

discipline, expressed serious concern over

———

AO Se Ate eee aw

Petitioner's indifference towards

rectifying the harm she caused and her

lack of candor throughout the hearing:

"There is other aggravating

evidence in this case.

Respondent's misconduct involved

multiple acts of wrongdoing, and

significantly harmed her client.

She showed indifference towards

rectifying or atoning for her

misconduct and has failed to

make any attempt to repay the

loan, or to contact the heirs.

The hearing judge's decision is

replete with examples of

respondent's lack of candor at

the hearing. The carelessness

with which respondent lost

control of between four and five

hundred case files when her

practice closed raises grave

doubts about her ability to

protect the interests of other

clients as well." (Appendix, p.

E28.)

Review on a writ of certiorari is not

a matter of right and will be granted only

where there are special and important

reasons. Rule 10, Rules of the Supreme

Court of the United States. None of the

reasons set forth in rule 10 are present

here. There is no decision by a federal

appellate court (rule 10(a)); the

California Supreme Court decision at issue

does not conflict with that of another

state court of last resort or of a federal

appeals court (rule 10(b)); and the

California Supreme Court decision at issue

does not decide an important question of

federal law that should be decided by this

Court, nor is it in conflict with any

decision of this Court (rule 10(c)).

Moreover, Petitioner's empty claims

regarding the "partisan" nature of the

Supreme Court are groundless and do not

warrant recusal. Petitioner baldly

@ 280 Ee Ree 2a)

asserts that recusal of the California

Supreme Court was required under the due

process clause because of the alleged

"partisan" role of the California Supreme

Court in disciplinary metters. (Petition,

pp. 12-13.)° However, Petitioner offers

no legal authority in support of her

contention. Rather than present evidence

that would demonstrate a direct, personal,

substantial pecuniary interest by the

Court, Petitioner merely proffers highly

speculative and conclusory allegations of

bias. See Aetna Insurance Co. v. LaVoie,

475 U.S. 813, 822, 106 S. Ct. 1580, 89 L.

Ed. 2d 823 (1986).

The procedure for recusal of

appellate justices was set forth in

,» os Cal. 3d

Kaufman v. Court of Appeal

933, 184 Cal. Rptr. 302, 647 P.2d 1081

(1982), where the court found that state

appellate justices follow the federal

standard which allows each justice to

decide for himself/herself whether the

facts require recusal.

Petitioner further fails to establish

that the California Supreme Court acted

improperly in issuing its disciplinary

order following Petitioner's recusal

argument. To the contrary, it was

entirely proper for the California Supreme

Court to be given the opportunity to

decide the issues of alleged bias of its

individual members for itself. Flangas v.

State Bar of Nevada, 655 F.2d 946, 950

(9th Cir. 1981).

B. 8

ons - h

a & System is

Without Merit.

As best as can be understood from

Petitioner's brief, it appears that

Petitioner attempts to challenge the

constitutionality of the structure of the

California regulatory system based on

allegations that the State Bar Court was

impermissibly created. (Petition, pp. 18-

19.) Petitioner, who decided to raise

this argument for the first time on appeal

to the California Supreme Court, offers no

pertinent authorities to support her

contention.

Two decisions by the California

Supreme Court, Lebbos v. State Bar, 53

Cal. 3d 37, 278 Cal. Rptr 689, 806 P.2d

317 (1991) and Conway v. State Bar, 47

Cal. 3d 1107, 255 Cal. Retr. 390, 767 P.24

617 (1989), expressly rejected the

argument that the California disciplinary

system represents an improper delegation

of judicial authority that violates the

Constitution. Both Lebbos and Conway were

decided under the pre-1989 disciplinary

system in which the State Bar Court was

comprised of volunteers appointed by the

State Bar Board of Governors. However,

both decisions have even stronger force in

establishing the legality of the present

disciplinary system in which full-time

State Bar Court judges are appointed

directly by this Court. (Bus. & Prof.

Code § 6079.1.) The main point of the two

decisions is that an attorney disciplinary

system over which this Court maintains

final authority and control is

constitutional. As the Court held in

Lebbos, "...the judicial power in

disciplinary matters remains with the

[Supreme] Court, and was not delegated to

the State Bar." lLebbos, supra, 53 Cal. 3d

at p. 48. This reasoning similarly

applies to the present reconstituted State

Bar Court, whose recommendations are

subject to immediate and plenary review by

the Supreme Court.

The United States Ninth Circuit Court

of Appeals, in its recently published

decision in Hirsch v. Justices of the

}

No. 94-55240, Slip. Op. at 11141 (9th Cir.

Sept. 7, 1995)’ rejected similar

arguments advanced by other respondent

attorneys who were involved in state

disciplinary proceedings.

c. Petitioner's Broad Claims of

Although confusing, Petitioner

appears to contend that the California

Supreme Court, the State Bar Court judges

and the trial examiners have an improper

financial interest in the outcome of

disciplinary proceedings in violation of

her due process rights. (Petition, pp.

13-17.)

Again, Petitioner's bald argument is

without support in law or fact and is

Attached hereto as Appendix A.

entirely without merit. Petitioner

presents no evidence of bias or any

"direct, personal, substantial, [and]

pecuniary interest" by either the Supreme

Court, the State Bar Court or the State

Bar trial examiners in the outcome of the

case. See Aetna Life Insurance Company v.

LaVoie, 475 U.S. 813, 106 S. Ct. 1580, 89

L. Ed. 823 (1986). Petitioner further

fails to present any evidence that the

aforementioned parties received improper

payments to influence attorney

Gisciplinary proceedings or that they are

competitors who heve a financial interest

in seeing Petitioner disciplined. See

Gibson v. Berryhill, 411 U.S. 564, 577-79,

93 S. Ct. 1689, 36 L. Ed. 24 488 (1973).

Rather, Petitioner merely proffers

speculative and conclusory allegations of

a financial conflict and fails to

establish that her “due process" rights

were violated.

Moreover, contrary to Petitioner's

direct attack or the State Bar Court

(Petition, pp. 13-15), there is no

personal financial incentive for the State

Bar Court judges to find an attorney

culpable. The salaries of the State Bar

Court judges are set by statute and are

unaffected by the imposition or collection

of costs. (Bus. & Prof. Code § 6079(d).)

In addition, the sums collected from

Gisciplinary costs are de minimis and have

no effect on the State Bar's expenditures

in carrying out its disciplinary

functions. Petitioner presents no

evidence that the salaries of the judges

are dependent on the amount of costs

collected or that the State Bar would be

unable to pay the judges salaries without

the money collected for costs.

The Ninth Circuit dismissed similar

frivolous claims in Hirsch v. Justices,

supra, at 11150-52. The Court

specifically rejected contentions that the

California attorney disciplinary system

was unconstitutionally tainted by bias

because of alleged financial interest in

the prosecution and outcome of

disciplinary matters. The Court noted

that, as here, plaintiffs in those

proceedings had offered no evidence that

the justices or judges received improper

payments to influence attorney

disciplinary proceedings or that they are

competitors who might have a financial

interest in seeing attorneys disbarred.

The Court further held that "[{a]jlthough

the State Bar pays the salaries of the Bar

Court judges, the salaries are set by

statute, see Cal. Bus. & Prof. Code §

6079(d), and no evidence suggests that

they are in any way dependent on the

amount of fines collected or that the

State Bar would be unable to pay the

salaries of Bar Court judges without the

money collected in disciplinary

proceedings, which totals less that 1% of

the State Bar Revenues (Footnote)." Id.

at 11151.

Petitioner's reliance on In the

Matter of Ross, 656 P.2d 832, 99 Nev. 1

(1983) and Ward v. Village of Monroeville,

Ohio, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d

267 (1972) is unpersuasive. In Ross, the

Nevada attorney disciplinary proceedings

were deemed inconsistent with due process

where the members of the State Bar Board

of Governors served as both judicial

officers and bar executives with

responsibility to protect the financial

integrity of the bar. In the instant

matter, neither the State Bar's Office of

Trials nor the State Bar Court judges have

any responsibility for the budget or

financing of the Bar. That responsibility

falls upon the Board of Governors, subject

to the review and approval by the State

Legislature. Cal. Bus. & Prof. Code,

sections 6140, 6140.1. As such, no

commingling of functions exists under the

California disciplinary systen.

In Ward, the Court found that a Mayor

with executive responsibilities could not

be regarded as an impartial judge where

fines levied by him provided a substantial

portion of the township's finances.

Nothing like the Mayor's Court is present

here as revenues from costs imposed are de

minimis. See Hirsch v. Justices, supra,

at 11151.

Having failed to establish at the

State Bar Court level that the evidence

was insufficient to support findings of

culpability, Petitioner decided to argue

on petition to the California Supreme

Court that the charging rules and statutes

are vague and fail to provide adequate

notice of the prohibited conduct.

(Petition, pp. 5, 7-10.) Petitioner

repeats those contentions before this

Court. (Petition, po. 19-22.)

Petitioner's contention is completely

without merit.

To show that a statute or rule is

unconstitutionally vague on its face, it

must be proven that "the enactment is

vague ‘not in the sense that it requires a

person to conform his conduct to an

imprecise but comprehensible normative

standard, but rather in the sense that no

standard of conduct is specified at all.'"

Village of Hoffman Estates vy. Flipside,

Hoffman Estates, 455 U.S. 489, 495, fn. 7,

102 S.Ct. 1186, 1191, fn. 7, 71 L.Ed. 2d

362, (1982); see also Jordan v. DeGeorge,

341 U.S. 223, 71 S&S. Ct. 703, 707, 95 L.

Ed. 886 (1951) (test is whether the

language conveys sufficiently definite

warning as to the proscribed conduct when

measured by common understanding and

practices.) Moreover, "[o]}ne to whose

conduct a statute clearly applies may not

successfully challenge it for vagueness."

Id. (citing Parker v. Levy (1974) 417 U.S.

733, 756, 94 S.Ct. 2547, 2567, 41 L.Ed.2d

439; In Re Kelly (1990) 52 Cal. 3d 487,

497, 276 Cal. Rptr. 375, 801 P.2d 1126

(1990)).

The statutes and rules require

nothing more than is clearly required of

all attorneys--that they conform their

conduct according to the law and that

violation of the law will subject them to

professional discipline. See In Re Kelly,

Supra, 52 Cal. 3d at 497. The record in

this case demonstrates that Petitioner

received notice of the charges filed and

that several days of hearings were held,

during which time evidence was presented

concerning the charges. The rules and

statutes clearly set forth the type of

conduct that was prohibited, Petitioner

contested those charges and presumably

offered evidence in an attempt to refute

those charges, but was unable to persuade

the State Bar Court that the facts did not

support the findings of culpability. See,

e.g., Order Re-Opening Record, filed March

1, 1993 (Hearing Judge reopened record to

allow parties to present additional

evidence of various charges, including the

rule 5-101 charge. Additional hearings

were held on April 29, 1992 and on June

7,8,21, and 28, 1993.) It is disingenuous

for Petitioner to now contend that there

was insufficient notice of the prohibited

conduct. See Brockway v. State Bar, 53

Cal. 3d 51, 63, 278 Cal. Rptr 836, 806

P.2d 308 (1991) (attorney never objected

to introduction of evidence on lack-of-

notice grounds).

Specifically, Petitioner challenges

Rule 5-101, Rules of Professional Conduct

of the State Bar, Business and Professions

Code Section 6106 and Rule 8-101, Rules of

Professional Conduct. The requirements

under Rule 5-101 are clear and the

agreement was unfair to Petitioner's

client for the reasons set forth in the

State Bar Court decision. (Appendix, pp.

E16-E19.) The fact that Petitioner does

not understand that such an agreement

would constitute a rule 5-101 violation

does not render the rule vague.

Petitioner's challenge to California

Business and Professions Code section 6106

is likewise without basis. It is

difficult to conceive of how an attorney

who engaged in conduct whereby she

“exploited her superior knowledge and

position of trust to the detriment of her

vulnerable client" and misappropriated

Client funds can contest the application

of section 6106. See Jordan v. DeGeorge,

supra, 341 U.S. 223, 71 8S. Ct. 703, 705,

95 L. Ed. 886 (1951), (statute relating

to deportation of illegal alien sentenced

because of crime involving moral turpitude

was not unconstitutional for vagueness in

meaning of the phrase "crime involving

moral turpitude"); Morrison v. State Board

of Education, 1 Cal. 3d 214, 227-229, 82

Cal. Rptr. 175, 461 P.2d 375 (1969).

Finally, Petitioner's challenge to

former rule 8-101(B) (4) is without merit.

(Petition for Review, p. 14.) Former rule

8-101(B) (4) requires an attorney to

promptly pay or deliver to the client,

upon demand, the property in the

attorney's possession to which the client

is entitled. As noted by the Review

Department, the settlement funds had a

"mixed character," with a portion of the

funds belonging to Petitioner and a

portion to Ms. Brown. The State Bar Court

found that at least $700 of the funds

received was promptly owed to Ms. Brown,

that Ms. Brown made a demand for the

funds, and that Petitioner's failure to

"place the proceeds in a trust account and

pay the remainder promptly to Ms. Brown

violated the trust account rules."

(Appendix A, p.19.) Petitioner was put on

notice of this misconduct and such conduct

violated the provisions of former rule 8-

101(B) (4).

E. Petitioner Has Failed to

Demonstrate that the Recommended

Discipline was Erroneous.

The purpose of the disciplinary

process is to protect the public, the

courts and the legal profession from unfit

practitioners, preserve public confidence

in the profession and maintain the highest

of professional standards for attorneys.

Smith v. State Bar, 37 Cal. 3d ave we, 206

Cal. Rptr. 845, 687 P.2d 259 (1984);

Standard 1.3, Standards for Attorney

Sanctions for Professional Misconduct. )

In light of these objectives, Petitioner

has failed to establish that the

recommended discipline is improper,

erroneous or unlawful.

In disciplinary proceedings, each

case is determined on its own set of facts

and circumstances. ° Vv a ar, is

Cal. 3d 973, 978, 126 Cal. Rptr. 801, 544

P.2d 937 (1976). Here, the record

demonstrates that Petitioner

misappropriated client funds, commingled

trust funds with personal funds and

improperly solicited a loan from a

vulnerable client following the client's

receipt of a large settlement.

Particularly egregious was Petitioner's

overreaching at the expense of her sister-

in-law, a vulnerable woman of limited

income, in poor health, and who lacked

sophistication in business matters. As

the Review Department concluded:

"Here, respondent's family ties

to her client, her sister-in-

law, made respondent all the

more aware of the client's

vulnerabilities and the

considerable trust the client

placed in respondent. Rather

than honoring that trust,

respondent exploited it for her

own benefit and to the harm and

detriment of the client."

(Appendix, pp. E27-E28.)

Although only minimal factors in

mitigation were present, Petitioner's

conduct was aggravated by several factors,

including misconduct that involved

multiple acts of wrongdoing and

significantly harmed her client, lack of

candor at the hearing and indifference

towards rectifying or atoning for her

misconduct. Perhaps most telling is the

fact that Petitioner has failed to make

any attempt to repay to funds, either to

Ms. Brown prior to her death or to her

heirs.

In light of the aforementioned

conduct, which was found to have involved

moral turpitude, the recommended

discipline is not unjustified. See, e.g.,

Lawhorn v. State Bar, 43 Cal. 3d 1357, 240

Cal. Rptr. 848, 743 P.2d 908 (1987); Beery

v. State Bar, 43 Cal. 3d 802, 239 Cal.

Rptr. 121, 739 P.2d 1289 (1987); standard

2.3 (discipline for acts of moral

turpitude includes actual suspension or

disbarment, depending on the extent of the

harm to the victim, the magnitude of the

act, and its relationship to the practice

of law.)

CONCLUSION

For each of the foregoing reasons,

the State Bar respectfully submits that

the petition should be denied.

DATED: October 3, 1995

Respectfully submitted,

Diane C. Yu

Lawrence C. Yee

Richard J. Zanassi

Kos J. Zang#gsi

Counsel of Record

Attorneys for Respondent

The State Bar of California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Stuart H. Hirsw,

Plaintiff-Appellant,

Vv.

JUSTICES OF THE SUPREME COURT OF

THE STATE OF CALIFORNIA:

MALcoLm L. Lucas; Epwarp

PANELLI; JoycE KENNARD; ARMAND

ARABIAN; MARVIN BAXTER:

RONALD M. Georce; and Dan

LuNGREN, State Attorney General

& acting personally for his private

appointee’s financial gain; STATE

Bar OF CALIFORNIA; ELLEN R.

Peck, Employee of the State Bar

as a Claimed Judge; Davin C.

Carr, Employee Prosecutor of

State Bar Association,

Defendants-Appellees.

mdi

RALPH F. SERVER,

Plaintiff-Appellant,

Vv.

SUPREME CouRT OF THE STATE OF

CALIFORNIA: STATE BAR OF

CALIFORNIA,

Defendants-Appellees.

11141

No. 94-55240

D.C. No.

CV-93-04114-SVW

ORDER AND

OPINION

No. 94-55250

D.C. No.

CV-93-06789-SVW

11142 Himsu v. Justices of THE SupREME Court or CA

HAROLD LENARD PERRY,

Plaintiff-Appellant,

Vv.

JUSTICES OF THE SUPREME COURT OF No. 94-55507

THE STATE OF CALIFORNIA: D.C. No

Ma.coim Lucas, Chief; EDWARD a

PANELLI; STANLEY Mosk; Joyce CV-93-06909-S VW

KENNARD; ARMAND ARABIAN;

MARVIN BAXTER; RONALD GEORGE;

and Dan LUNGREN; LISE PERLMAN,

et al.,

Defendants-Appellees.

Appeals from the United States District Court

for the Central District of Califomia

Stephen V. Wilson, District Judge, Presiding

“

EpMUNDO B. Espinoza,

Plaintiff-Appellant,

Vv.

MALCOLM Lucas; HONORABLE No. 94-56335

JUSTICES OF THE SUPREME COURT OF D.C. No

THE STATE OF CALIFORNIA; KATHRYN progageectinn

Micke; STANLEY Mosk; Joyce CV-94-01299-MLH

KENNARD; ARMAND ARABIAN;

MARVIN BAXTER; RONALD GEORGE;

and Dan Lunaren, State Attorney

General,

Defendants-Appellees.

Appeal from the United States District Court

for the Southem District of Califomia

Marilyn L. Huff, District Judge, Presiding

HirsH V. JUSTICES OF THE SUPREME Courntor CA = 11143

Argued and Submitted

March 7, 1995—Pasadena, California

Memorandum Filed March 29, 1995

Order and Opinion Filed September 7, 1995

Before: James R. Browning and Robert R. Beezer, Circuit

Judges, and Ancer L. Haggerty,* District Judge.

Per Curiam

SUMMARY

Attorneys and Judges/Professional Responsibility/

Civil Litigation and Procedure

The court of appeals affirmed a district court judgment. The

court held that the district court did not err in dismissing on

abstention grounds suits seeking an injunction to stop pending

California attomey disciplinary proceedings and a declaratory

judgment that the disciplinary system is unconstitutional.

Under California law, attomey disciplinary matters are han-

dled by the State Bar Court, an administrative agency that is

affiliated with the California State Bar Association (State

Bar). The Bar Court’s Hearing Department conducts formal

adversarial hearings, and makes findings and recommenda-

tions regarding discipline. An attomey may appeal to the Bar

Court’s Review Department, which makes its own recommen-

dation. The attommey may then file a petition for review with

the California Supreme Court, which can either grant or deny

review. The Supreme Court retains inherent jurisdiction over

attorney disciplinary matters throughout the process.

*Honorable Ancer L. Haggerty, District Judge, United States District

Court for the District of Oregon, sitting by designation.

| ES aa eee emer Te eT eT eed aT eo MCR TE

11144 Himsu v. Justices or THE Supreme Court or CA

Facing pending attomey disciplinary proceedings in Cali-

fornia, appellants Stuart Hirsh, Ralph Server, Harold Perry

and Edmundo Espinoza (collectively, Appellants) filed civil

rights actions in the district court, alleging deprivation of vari-

ous constitutional rights. The suits named as defendants

appellees the Justices of the California Supreme Court, the

State Attorney General, the State Bar, the Bar Court and the

respective Bar Court judges and prosecutors involved. The

Appellants sought an injunction to stop the pending disciplin-

ary proceedings, a declaratory judgment that the disciplinary

system is unconstitutional and monetary damages. The district

court granted the govemment’s motions to dismiss. The court

dismissed each case on the ground that Younger v. Harris

required abstention. The Appellants appealed.

[1] Younger and its progeny generally direct federal courts

to abstain from granting injunctive or declaratory relief that

will interfere with pending state judicial proceedings. [2] In

this case, each of the Appellants faced ongoing disciplinary

proceedings when he brought suit in federal court. [3] The

ongoing proceedings were judicial in character. [4] The attor-

ney disciplinary proceedings implicated important state inter-

ests. [5} Federal constitutional claims may be raised in

judicial review of the Bar Court’s decision; [6] the fact that

review is discretionary does not bar pzesentation of federal

Claims by appellants.

[7] The Appellants failed to overcome a presumption of

honesty and integrity. [8] They offered no evidence that the

justices or judges received improper payments to influence

attomey disciplinary proceedings or that they might have a

financial interest in seeing them disbarred. [9] The fact that

fines imposed in attomey disciplinary proceedings are paid to

the State Bar treasury did not establish an impermissible

financial interest. [10] The Appellants offered only conjecture

to support their claim that Supreme Court justices are imper-

missibly biased because they appoint Bar Court judges. [11]

The absence of a mandatory statutory recusal mechanism

Hirsu v. Justices or THE Supreme Courtor CA 11145

applicable to Califomia Supreme Court justices did not make

a showing of bias unnecessary.

[12] The Appellants were incorrect in contending that

abstention was inapplicable because the California disciplin-

ary system allegedly involves an unconstitutional delegation

of power, violates separation of powers and deprives them of

a right to vote.

[13] All of the defendants were immune from liability for

monetary damages. The Eleventh Amendment's grant of sov-

ereign immunity bars monetary relief from state agencies,

such as the California Bar Association and Bar Court. The

immunity extended to the individual defendants acting in offi-

cial capacities. [14] The individual defendants were also

immune in their individual capacities.

COUNSEL

Stuart H. Hirsh and Ralph F. Server, Beverly Hills, California.

Harold L. Perry, Oakland, California, and Edmundo Espinoza,

San Diego, California, in pro per for the plaintiffs-appellants.

Robert M. Sweet, Marina Del Rey, Califormia, for the

defendants-appellees.

ORDER

The memorandum disposition filed March 29, 1995. is

redesignated as a per curiam opinion.

11146 Himsu v. Justices oF THE SupREME Court or CA

OPINION

PER CURIAM:

Facing pending attomey disciplinary proceedings in Cali-

fornia, each appellant filed suit in federal court under 42

U.S.C. § 1983, alleging deprivation of various constitutional

rights. The district court granted the government’s motions to

dismiss. We affirm.

L Background

A. The California Attorney Disciplinary System

Under California law, attomey disciplinary matters are han-

died by the State Bar Court (“Bar Court”), an administrative

agency affiliated with the California State Bar Association

(“State Bar”). Calif. Bus. & Prof. Code § 6086.5. The Bar

Court is divided into a Hearing Department and a Review

Department. Id. §§ 6079.1, 6086.65. Disciplinary proceedings

are commenced by serving the accused attomey with a Notice

to Show Cause. The Hearing Department then conducts a for-

mal adversarial hearing during which the accused attomey

and a State Bar prosecutor present evidence before a Bar

Court judge. The Hearing Department makes findings and a

recommendation regarding appropriate discipline. The attor-

ney may appeal to the Review Department, which reviews the

Hearing Department’s findings de novo and makes its own

recommendation. The attorney may then file a petition for

review with the California Supreme Court.’ Id. § 6082. The

Supreme Court either grants review and issues a final order or

denies review, in which case the Bar Court’s recommendation

is filed as an order of the Supreme Court. Id. § 6084; Calif.

‘If no petition for review is filed, the Bar Court’s recommendation

becomes a final order of the California Supreme Court, although the

Supreme Court may review the recommendation on its own motion. Id. _

§ 6084: Calif. Court Rule 953(b).

Himsu Vv. JusTICes OF THE SUPREME Courtor CA 11147

Court Rule 954. Throughout this process, the Supreme Court

retains inherent jurisdiction over attomey disciplinary matters.

Id. 951(g).

B. The Federal Suits

Each of the suits named as defendants the Justices of the

California Supreme Court, the State Attorney General, the

State Bar, the Bar Court, and the respective Bar Court judges

and prosecutors involved. The appellants sought an injunction

to stop the pending disciplinary proceedings, a declaratory

judgment that the disciplinary system is unconstitutional, and

monetary damages based on alleged deprivations of state and

federal constitutional rights. The complaints allege that the

disciplinary system deprives appellants of various constitu-

tional rights, including due process, equal protection, the right

to vote, and the right to court access. The district court dis-

missed each case on the ground that Younger v. Harris, 401

U.S. 37 (1971), required abstention.

II. A&stention from Granting Injunctive and Declaratory

Relief

A. Requirements for Abstention

[1] Younger and its progeny generally direct federal courts

to abstain from granting injunctive or declaratory relief that

would interfere with pending state judicial proceedings. Jd. at

40-41; Samuels v. Mackell, 401 U.S. 66, 73 (1971) (extending

Younger to declaratory judgments). Absent “extraordinary

circumstances”, abstention in favor of state judicial proceed-

ings is required if the state proceedings (1) are ongoing, (2)

implicate important state interests, and (3) provide the plain-

tiff an adequate opportunity to litigate federal claims. See

Middlesex County Ethics Comm. v. Garden State Bar Ass'n,

457 U.S. 423, 432 (1982). Each prerequisite is satisfied in

each of these cases.

11148 Himsu v. Justices oF THE SuPREME Court or CA

1. Ongoing State Proceedings

[2] Each appellant faced ongoing disciplinary proceedings

when he brought suit in federal court. See Beltran v. State of

California, 871 F.2d 777, 782 (9th Cir. 1988) (stating that

abstention requires proceedings to be ongoing at the time

plaintiff initiates federal proceedings). Notices to Show Cause

had been directed to Hirsh and Espinoza, and the California

Supreme Court had not yet filed an order regarding the Bar

Court’s recommendations with respect to Perry and Server.

See Flangas v. State Bar of Nevada, 655 F.2d 946, 949 (9th

Cir. 1981) (holding proceedings were ongoing where state

Board of Bar Governors had recommended discipline but

final binding action had yet to be taken by the Nevada

Supreme Court).

[3] The ongoing proceedings were judicial in character.

Under California’s discipline system, the Hearing Department

conducts a formal hearing and makes findings, the Review

Department conducts a de novo review of those findings, and

the Supreme Court retains inherent jurisdiction over the pro-

ceedings, including power to review the Bar Court’s findings.

Appellants point to no relevant distinction between this proce-

dure and that held to be judicial in nature in Middlesex. 457

U.S. at 433-34; see also Partington v. Gedan, 880 F.2d 116,

122 (9th Cir. 1989) (attorney disciplinary proceedings con-

ducted by an ethics committee or its equivalent under the aus-

pices of the state supreme court are judicial for purposes of

Younger).

2. Important State Interests

[4] Califomia’s attomey disciplinary proceedings implicate

important state interests. See Middlesex, 457 U.S. at 434

(“The State . . . has an extremely important interest in main-

taining and assuring the professional conduct of the attorneys

it licenses.”).

Hirsu Vv. Justices OF THE SUPREME Court or CA 11149

3. Opportunity to Present Federal Claims

[5] The Califomia Constitution precludes the Bar Court

from considering federal constitutional claims. See Calif.

Const. art. II, § 3.5. However, such claims may be raised in

judicial review of the Bar Court’s decision. This opportunity

satisfies the third requirement of Younger. See Ohio Civil

Rights Comm'n v. Dayton Christian Schools, Inc., 477 US.

619, 629 (1986); Kenneaily v. Lungren, 967 F.2d 329, 332

(9th Cir. 1992).

[6] Appellants contend their opportunity for judicial review

is inadequate because it is wholly discretionary.” Judicial

review is inadequate only when state procedural law bars

presentation of the federal claims. See Partington, 880 F.2d

at 123; accord Moore v. Sims, 442 U.S. 415, 430 & n.12

(1979) (finding abstention appropriate because state law did

not impose procedural barriers to raising constitutional

claims). The fact that review is discretionary does not bar pre-

sentation of appellants’ federal claims — appellants can raise

the claims in a petition for review. See Beltran, 871 F.2d at

781, 783 (opportunity to present federal claims in a petition

for writ of review is sufficient to trigger Younger abstention,

even though the court of appeal simply “denied the petition

without elaboration”); Martori Bros. Distribs. v. James-

Massengale, 781 F.2d 1349, 1352, 1354 (9th Cir.), amended

on other grounds, 791 F.2d 799 (9th Cir. 1986) (opportunity

to raise federal claims in petition for review satisfied the

*Hirsh also argues that the California Supreme Court’s summary denial

of his interim motion precluded judicial review of his federal claims. This

contention is meritless — Hirsh can raise those claims in his petition for

review following the conclusion of disciplinary proceedings in the Bar

Court and has stated his intention to do so. See Mason v. Departmenial

Disciplinary Comm., 894 F.2d 512, 515 (2nd Cir. 1990) (a state court’s

“refusal to halt the [attorney disciplinary] inquiry at its incipient stage pro-

vides no basis for believing that [the court] will be reluctant to entertain

any legitimate objections [the attorney] may have in the event that disci-

plinary sanctions are improperly imposed”).

11150 Hmmsu v. Jusnces or THe Supreme Court or CA

requirements of Younger even though a reviewing court could

deny the petition summarily); Fresh Int'l Corp. v. ALRB, 805

F.2d 1353, 1362 (9th Cir. 1986) (finding abstention applicable

because plaintiff “could have presented [its federal claim] to

the court of appeal in its petition for review”).

The California Supreme Court’s rules state that Bar Court

decisions will be reviewed “when it appears . . . necessary to

settle important questions of law.” Calif. Court Rule 954(a).

The court has considered federal constitutional challenges to

the attorney disciplinary procedure. See, e.g., Lebbos v. State

Bar, 53 Cal. 3d 37, 48 (1991). Refusing to abstain would

require presuming that the California Supreme Court will not

adequately safeguard federal constitutional rights, a presump-

tion the U.S. Supreme Court squarely rejected in Middlesex.

457 U.S. at 431. Accordingly, the third requirement for

Younger abstention test was satisfied.

B. Applicability of Exceptions to Abstention

1. Bias

[7] Although a federal court is normally required to abstain

if the three prongs of the Younger test are satisfied, abstention

is inappropriate in the “extraordinary circumstance” that the

State tribunal is incompetent by reason of bias. See Gibson v.

Berryhill, 411 U.S. 564, 577-79 (1973). However, “one who

alleges bias ‘must overcome a presumption of honesty and

| integrity in those serving as adjudicators.’ ” Kenneally, 967

| F.2d at 333 (quoting Withrow v. Larkin, 421 U.S. 35, 47

(1975)). Appellants failed to overcome this presumption.

[8] Appellants contend California Supreme Court justices

and Bar Court judges have a direct and substantial financial

interest in the outcome of disciplinary hearings. See Aetna

Life Ins. Co. v. Lavoie, 475 U.S. 813, 824-25 (1986). How-

ever, appellants offer no evidence that the justices or judges

receive improper payments to influence attomey disciplinary

| ee ee re arn re ner nr em

Himsu v. JUSTICES OF THE SUPREME COURT OF CA 1115)

proceedings or that they are competitors who might have é

financial interest in seeing appellants disbarred. See Gibson,

411 USS. at 577-79 (optometrists who sat on licensing board

were biased because of their financial interest in the outcome

of hearings to revoke the licenses of optometrists with whom

they competed).

(9] The fact that fines imposed in attomey disciplinary pro-

ceedings are paid to the treasury of the State Bar does not

establish an impermissible financial interest. Although the

State Bar pays the salaries of the Bar Court judges, the sala-

ries are set by statute, see Cal. Bus. & Prof. Code § 6079%d),

and no evidence suggests that they are in any way dependent

on the amount of fines collected or that the State Bar would

be unable to pay the salaries of Bar Court judges without the

money collected in disciplinary proceedings, which totals less

than 1% of the State Bar’s revenues.”

[10] Appellants offer only conjecture in support of their

claim that Supreme Court justices are impermissibly biased

because they appoint Bar Court judges. As the district court

noted, district court judges are not deemed incompetent to

review the findings of magistrate judges whom they partici-

pate in appointing. Compare Vanelli v. Reynolds Sch. Dist.

No. 7, 667 F.2d 773, 779-80 & n.10 (9th Cir. 1982) (school

board reviewing its own prior decision was not impermissibly

biased).

[11] The absence of a mandatory statutory recusal mecha-

nism applicable to justices of the California Supreme Court

*This fact distinguishes the present case from In the Matter of Ross, 656

P.2d 832 (Nev. 1983), in which the Nevada altorney disciplinary sysiem

was deemed to violate due process in part because disciplinary fines were

a crucial source of revenues for the State Bar. Id. a 836. Moreover, the

adjudicators under the Nevada system were the State Bar Board of Gover-

nors, who were also responsible for the financial integrity of the bar. Id.

No such commingling of functions exists under the California disciplinary

sysiem.

11152. Hmsu v. Jusnces or THE Supreme Court or CA

does not make a showing of bias unnecessary. The case upon

which the appellants rely, Flangas v. State Bar of Nevada,

655 F.2d 946 (9th Cir. 1981), held only that the court would

not consider the bias exception to Younger because the plain-

tiff had not exhausted his state court remedies by invoking the

available statutory recusal procedure. See id. at 950. Flangas

did not imply that the absence of a particular recusal mecha-

nism made it unnecessary to consider whether bias existed in

fact.

Finally, appellants suggest the disciplinary process is

tainted by bias because the State Bar has both investigative

and adjudicative functions. However, the Supreme Court has

rejected the contention that such a combination necessarily

creates an unacceptable risk of bias. Such decisionmakers are

still entitled to a presumption of honesty and integrity when

serving as adjudicators. See Withrow, 421 U.S. at 47. Appel-

lants offer no evidence to rebut this presumption.

2. Patent Unconstitutionality

[12] We reject appellants’ contention that abstention is

inapplicable because the Califomia disciplinary system alleg-

edly involves an unconstitutional delegation of power, vio-

lates separation of powers, and deprives appellants of a right

to vote.‘ The California Supreme Court has previously

rejected similar constitutional challenges on the ground the

Bar Court functions as an administrative arm of the Court,

which maintains final authority over discipline. See Lebbos v.

State Bar, 53 Cal. 3d 37, 48 (1991). In any case, regardless

of the ultimate merits of these claims, the pertinent statutes

are not “ ‘flagrantly and patently violative of express constitu-

tional prohibitions in every clause, sentence, and paragraph,

and in whatever manner and against whomever an effort

“It is unclear whether any of these claims state a violation of a federal,

as opposed to a state, constitutional guarantee. We need not reach that

issue.

Himsu v. Justices OF THE SupREME Courtor CA = 11153

might be made to apply it.” Younger, 401 U.S. at 53-54

(quoting Watson v. Buck, 313 U.S. 387, 402 (1941)). Accoru-

ingly, any violation would not justify refusal to abstain.

Ill. Dismissal of Claims for Monetary Relief

[13] All of the defendants are immune from liability for

monetary damages.’ The Eleventh Amendment's grant of sov-

ereign immunity bars monetary relief from state agencies such

as California’s Bar Association and Bar Court. See Lupert v.

California State Bar, 761 F.2d 1325, 1327 (9th Cir. 1985).

This immunity extends to the individual defendants acting in

their official capacities. See Pena v. Gardner, 976 F.2d 469,

472 (9th Cir. 1992); see also Hafer v. Melo, 112 S. Ct. 358,

361-62 (1991) (holding that a defendant official acting in his

official capacity receives the same immunity as the govern-

ment agency to which he belongs).

[14] The individual defendants are also immune in their

individual capacities. The justices of the Califomia Supreme

Court have absolute immunity for their role in reviewing the

recommendations of the Bar Court. See Rosenthal v. Justices

of the Supreme Court of California, 910 F.2d 561, 565-66

(9th Cir. 1990). They are also entitled to absolute legislative

immunity for actions relating to the promulgation of disciplin-

ary tules. See Supreme Court of Virginia v. Consumers Union

of the United States, Inc., 446 U.S. 719, 734 (1980).

*The district court relied on Younger abstention as its basis for dismiss-

ing the monetary claims. However, the applicability of Younger abstention

to appellants’ monetary claims is unclear. Compare Mann v. Jett, 781 F.2d

1448, 1449 (9th Cir. 1986) (abstaining in a § 1983 action because “such

an action would have had a substantially disruptive effect upon ongoing

state [ ] proceedings”) with Lebbos v. Judges of the Superior Court, 883

F.2d 810, 816-17 (Sth Cir. 1989) (suggesting that abstention is inappropri-

ate where ongoing state proceeding afforded no opportunity for the plain-

tiffs to receive monetary relief); see also Deakins v. Monaghan, 484 U.S.

193, 202 (1988) (“{TJhe District Court has no discretion to dismiss rather

than to stay claims for monetary relief that cannot be redressed in the state

proceeding.”). We decline to address the issue here.

11154 Hmsu v. Jusnces or THE Supreme Court or CA

The Bar Court judges and prosecutors have quasi-judicial

immunity from monetary damages. Administrative law judges

and agency prosecuting attorneys are entitled to quasi-judicial

immunity se tong as they perform functions similar to judges

and prosecutors in a setting like that of a court. Butz v. Econo-

mou, 438 U.S. 478, 511-17 (1978). The factors cited by the

Butz Court apply equally to the personnel of the Bar Court —

hearuigs are adversarial, errors are correctable on appeal, the

judges make factual findings and perform other adjudicatory

functions, and Bar Court decisions are controversial enough

to stimulate harassing damage actions against the adjudica-

tors, as this case illustrates. See id. Thus, the Bar Court judges

and prosecutors are immune from damages. See Clark v. State

of Washington 366 F.2d 678, 681 (9th Cir. 1966) (holding that

Bar Association prosecuting attorney was entitled to immu-

nity).

Finally, the California Attorney General is entitled to abso-

lute prosecutorial immunity for his limited role in the disci-

plinary system. See Imbler v. Pachtman, 424 U.S. 409, 427

(1976).

IV. Espinoza’s Recusal Motion

Judge Huff did not abuse her discretion by denying the

motion for recusal. She is not a member of the State Bar and

noted that the Califomia Constitution forbids such member-

ship. Cal. Const. art. VI, § 9. Although Judge Huff occasion-

ally participated in State Bar activities, she was not paid,

except for reimbursement of expenses. We reject Espinoza’s

contention that, “a reasonable person with knowledge of all

the facts would conclude that [Judge Huff's] impartiality

might reasonably be questioned.” Yagman v. Republic Ins.,

987 F.2d 622, 626 (9th Cir. 1993).

AFFIRMED.

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