RICHARD I.

FINE, In Pro Per

Prisoner ID # 1824367
c/o Men’s Central Jail
441 Bauchet Street
Los Angeles, CA 90012

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD I. FINE, Case No. 09-56073

Appellant and Petitioner,
vs.
SHERIFF OF LOS ANGELES
COUNTY, et al,
Appellees and Respondents
D.C. No. 2:09-cv-01914 JFW (CW)
COMBINED EMERGENCY
PETITION FOR PANEL REHEARING
AND REHEARING EN BANC OF
THE PANEL’S UNPUBLISHED NON-
PRECEDENT MEMORANDUM
DECISION AFFIRMING DISTRICT
COURT AND DENYING WRIT OF
HABEAS CORPUS

F.R.A.P. RULE 35
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TABLE OF CONTENTS
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I. Undisputed Facts.............................................................................................................. 6
3
II. The LA County Payments Were Criminal .......................................................................8
4
III. Reasons for Reversal of the Panel’s Decision Mandating the Granting of the Writ ......8
5

6 a. Judge Yaffe violated due process by judging his own actions in the contempt
proceeding ................................................................................................................8
7

8 b. Judge Yaffe did not have an “appearance of justice” because, inter alia, he took a

9 “bribe” from LA County...........................................................................................9

10 c. Due process was violated by the direct payments to Judge Yaffe from LA County,
11 who was a party in a case before him........................................................................9

12 d. The panel’s argument that Gov’t Code § 68220, passed as part of SBX2-11,
13 “belies” the criminality of the act or the retroactive immunity, is unconstitutional
14 .................................................................................................................................10

15 IV. An Emergency Decision is Needed Because the Court has Replaced the Opposition as
the Advocate in This Case .............................................................................................11
16

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V. Conclusion ....................................................................................................................12

18 VI. Certificate of Compliance ...........................................................................................End

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TABLE OF AUTHORITIES
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Precedent Cases
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Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 [1986]....................................................5, 11
4
Caperton, et al, v. A.T. Massey Coal Co., Inc., et al, 566 U.S. ___ (2009)...................3, 5, 6, 11
5
Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2007).......................................................................2, 9
6
Gibson v. Berryhill, 411 U.S. 564, 573 (1973)..................................................................... 5, 11
7
In Re Murchison, 349 U.S. 133, 136 (1955)..................................................................... 5, 9, 10
8
Levine v. United States., 362 U.S. 610 (1960)............................................................................5
9
Marina Strand Colony II Homeowners Association v. County of Los Angeles,
10
LASC Case No. BS 109420...................................................................................... 7, 8, 9, 10
11
Offutt v. United States, 348 U.S. 11 (1954).......................................................................... 5, 10
12
Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (2008) ........................ 4, 7, 9, 11, 12
13
Tumey v. Ohio, 273 U.S. 510 (1927)................................................................................... 5, 10
14
Ward v. Village of Monroeville, 409 U.S. 57 (1972)..................................................... 5, 10, 11
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Statutes
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CCP § 170.3............................................................................................................................. 2, 8
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CCP § 170.3(c)(4).................................................................................................................... 2, 8
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California Government Code §§ 68220-68222 ...........................................................6, 9, 10, 11
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California Pubic Resources Code................................................................................................7
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Other Authorities
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California Senate Bill “SBX2 11”...................................................................................... passim
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Constitutional Provisions
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California Constitution, Article I, Sec. 9,............................................................................. 6, 11
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California Constitution, Article VI, Sec. 19,........................................................................ 7, 12
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 1 U.S. Constitution - Article I, Sec. 9, Cl. 3 ............................................................................6, 11
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Our entire Republic was destroyed merely to finagle a measly raise?
2 There can be no doubt whatsoever that the Panel’s affirmation of the
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District Court’s decision to deny due process (to an attorney ethically and
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5 lawfully bound to follow his sworn oath) in favor of protecting an illegal

6
payment scheme being now used to piggyback justification for increases in
7

8 federal judicial income has severely, and most likely permanently,

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compromised the independence of the federal judiciary by subverting its Ninth
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Circuit to the will of a corrupt state bench, and in so doing has soiled the
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12 integrity of the judicial institution and shamed the bench as a whole nationwide.
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Panel Judge Reinhardt himself has written of his “duty to maintain the
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15 supremacy of the Constitution, and, indeed, of the constitutional structure

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itself”. Crater, infra. Inexplicably, not only were those ideals not invoked in
17

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the present case, they were wholly contravened.

19 Judge Yaffe allowed himself to be disqualified under operation of law, and

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only an irrelevant ex post facto, multiple-subject law is available to proffer as
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22 though for his defense. When Judge Yaffe failed to respond to Fine’s CCP §
23
170.3 objection, he was automatically disqualified under CCP § 170.3(c)(4)).
24

25 Senate Bill SBX2-11 is not remotely relevant to this particular issue, and would
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not remedy the problem even if it were proper law. Therefore, no order entered
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by Judge Yaffe after April 7, 2008 is legitimate or enforceable.
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In fact, no order entered by Judge Yaffe regarding the January.8, 2008
2 hearing is legitimate or enforceable inasmuch as Fine was prevented from
3
attending that hearing. SBX2-11 does nothing to remedy this void order either.
4

5 Embarrassingly, the very day after release of the Panel’s decision in this
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case, California’s Judicial Council, chaired by Chief Justice Ronald George, co-
7

8 author of SBX2-11, submitted a report by its “Commission For Impartial

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Courts” in response to the Caperton, infra, decision in which it recommended
10
the disqualification of judges from any future case in which they have received
11

12 at least $1,500 in campaign contributions from either side because $1,500 is

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“the amount that creates a ‘financial interest’”.1
14

15 $1,500 is enough to trigger disqualification, but $46,000 is not?

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Luckily for California citizens, some judges evidently did not get the
17

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memo to maintain their silence on the subject of judicial income and its

19 influence. Just last week, Monterey County, California, Superior Court

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Presiding Judge Adrienne Grover freely acknowledged what is typically
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22 universally acknowledged: that the source of a judge’s income can influence

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his decisions (thus he will be unlikely to make decisions which could harm his
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25 source of income). Judge Maldonado clarified that the protection is “so central
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to American values that it was one of 64 grounds cited in the Declaration of
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1
http://www.courtinfo.ca.gov/jc/tflists/commimpart.htm

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 Independence”,2 grounds so egregious as to justify war and win the colonists’

freedom from tyrant George III.

The Panel’s obfuscation of Judge Yaffe’s true fears following Fine’s

exposure of his receipt of criminal payments, and Judge Yaffe’s subsequent

actions to protect that income stream and protect himself from criminal

prosecution, etc., is belied by the fact that SBX2-11 would not come into

existence for another year; it wouldn’t even be thought of until after the

Sturgeon, infra, decision was issued in October 2008. Judge Yaffe had no

crystal ball to know a year in advance that SBX2-11 would even be drafted,

much less be passed by a legislature willing to overlook its ex post facto nature.

SBX2-11 may forgive Judge Yaffe’s crimes, but he could not know that at the

time.

And even now that SBX2-11 has been passed, albeit with an uncodified

retroactive immunity provision, it still cannot protect Judge Yaffe without

judges again violating the California and U.S. Constitutions.

Of course Judge Yaffe’s receipt of $46,000 that year gave him a “direct

personal, substantial, pecuniary interest” in the matter, as shown by his actions

(admitted) in concert with other judges to deliver LA County a near-100%

2
Monterey Herald article, December 7, 2009. http://www.montereyherald.com/news/ci_13939368?source=rss
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win/loss litigation record3 which helped the County generate income to finance
2 the payments to judges (and members of the County’s Board of Supervisors,
3
who authorize the payments and raises thereto, and whose salaries are, by
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5 charter, set to match superior court judges’ salaries).

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The panel’s decision conflicts with established U.S. Supreme Court
7

8 precedent that “no man can be a judge in his own case” and “no man is
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permitted to try cases where he has an interest in the outcome” (In Re
10
Murchison, 349 U.S. 133, 136 (1955), cited in Caperton v A.T. Massey Coal
11

12 Co., Inc., 566 U.S. __ (2009) decided June 8, 2009, Slip Opinion pg 10; “a
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judge receiving a bribe from an interested party over which he is presiding,
14

15 does not give the appearance of justice.” (Offutt v. U.S., 348 U.S. 11, 14 (1954);
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“justice must have the appearance of justice” (Levine v. U.S. 362 U.S. 610
17

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(1960); a judge who received money from a party directly through fines (Tumey

19 v. Ohio, 273 U.S. 510 (1927) ); or face the possibility of temptation through
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payments into the city’s “fisc.” (Ward v. Monroeville, 409 U.S. 57 (1972), or
21

22 who was competing with a party (Gibson v. Berryhill, 411 US 564, 579 (1973)
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or who was a party to an identical lawsuit to that which he was deciding (Aetna
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25 Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) or a justice who had received
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contributions to his campaign committee from a president of a company that
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3
Los Angeles County Litigation Cost Management Reports, 2005-2008. http://counsel.lacounty.gov/ar.asp

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subsequently appeared before him (Caperton, supra), all violated due process
2 by presiding over a party’s case.
3
The panel’s decision also conflicts with the California Constitution (Article
4

5 I, Section 9) and the U.S. Constitution (Article I, Section 9, Cl. 3) in that it

6
violates the single-subject rule of the California Constitution and makes an ex
7

8 post facto law of California Government Code § 68220 by removing the

9
immunity given under Senate Bill SBX2-11, which immunity was not limited in
10
time.
11

12 The Panel has succumbed to the concert of corruption and to criminals in

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judicial robes. The grant of Fine’s writ will free Californians from the tyranny
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15 of a corrupt judicial system and will restore its citizens’ constitutional rights.
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These are the battlelines drawn in this fight to save the Republic.
17

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A rehearing by the Panel and the consideration by the full Court is

19 therefore necessary to secure and maintain uniformity of the Court’s decisions.

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The Panel’s election to stand 100% against U.S. Supreme Court precedent and
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22 100% in favor of judicial corruption must be addressed without delay.

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The certified question is “whether the trial judge should have recused
24

25 himself”.
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I. Undisputed Facts.
2 Los Angeles Superior Court Judge David P. Yaffe received illegal
3
payments from LA County, a party before him, made orders in that party’s
4

5 favor, and then presided over a contempt proceeding in which he judged his
6
own actions. The illegal payments include misappropriation of funds,
7

8 obstruction of justice and bribery.

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The payments totaled $46,366 per year, or 27% of his annual state salary
10
of $178,800. Judge Yaffe was a state-elected judge. He testified at the
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12 contempt proceeding that he did not have any employment or other work
13
relationship with LA County, that he did not report the payments on his Form
14

15 700 Statement of Economic Interests, that he did not place the payments in his
16
re-election campaign fund, and that he could not remember any case in the last
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three years that he decided against LA County.

19 The LA County payments were held to violate Article VI, Section 19, of
20
the California Constitution in the case of Sturgeon v. County of Los Angeles,
21

22 167 Cal.App.4th 630 (2008), review denied 12/23/08.

23
In June 2007, Judge Yaffe commenced presiding over the case of Marina
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25 Strand Colony II Homeowners Assoc. v. County of Los Angeles, LA Superior

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Court case no. BS109420 (the “Marina Strand” case). Fine was counsel for
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Marina Strand. Judge Yaffe did not disclose the LA County payments.
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Without notice to Fine, without Fine being present at the hearing and in
2 violation of the California Public Resources Code, on January 8, 2008, after
3
Fine left the case, Judge Yaffe ordered Fine to pay attorney’s fees and costs to
4

5 LA County and its co-applicant for the environmental impact report.

6
Judge Yaffe admitted to receiving the LA County payments while in open
7

8 court and under questioning by Fine on March 20, 2008. On March 25th, Fine
9
filed and served a CCP § 170.3 objection to Judge Yaffe. Judge Yaffe did not
10
respond and was disqualified as a result on April 7th under CCP § 170.3(c)(4).
11

12 Judge Yaffe refused to leave the case, however. Instead, he entered an order
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awarding attorney’s fees against Fine on April 15th, after he (Judge Yaffe) was
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15 disqualified and had abandoned jurisdiction.

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On November 3, 2008, Judge Yaffe signed an order to show cause re
17

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contempt against Fine related to Fine’s refusal to obey Judge Yaffe’s void order

19 and answer questions at a debtor’s examination hearing, and Fine’s challenging

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Judge Yaffe’s order for attorney’s fees as void. Judge Yaffe presided over the
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22 contempt proceeding, judging his own actions and the truthfulness of his own
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testimony, over Fine’s objection. Fine filed timely writs of habeas corpus in
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25 the state courts and in federal court, challenging Judge Yaffe’s sitting as a judge
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in both the underlying Marina Strand litigation and the contempt proceedings.
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II. The LA County Payments Were Criminal.
2

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After the Sturgeon case was decided (in October 2008), Senate Bill SBX2-

4 11 was enacted (on February 20, 2009, made effective May 21st). SBX2-11
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gave retroactive immunity from criminal prosecution, civil liability and
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7 disciplinary action to judges who received, and governmental officials who

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gave, county judicial benefits to judges, effective May 21, 2009. It also
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continued county judicial benefits existing as of July 1, 2008, subject to a 180-
11
day notice of discontinuance to sitting judges, effective May 21, 2009. This
12
latter Section was codified as Government Code § 68220. The Immunity
13

14 Section was not codified (and was thus hidden from the public). No immunity
15
was given for the current county payments being given and accepted.
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III. Reasons for Reversal of the Panel’s Decision Mandating
18 the Granting of the Writ.
19
a. Judge Yaffe violated due process by judging his own actions in
20 the contempt proceeding.
21
Judge Yaffe violated Murchison, supra, by presiding over the contempt
22

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proceeding. He was judging his own actions in the Marina Strand case. The

24 panel did not even address this crucial issue, even though it was encompassed
25
in the certified question.
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27 Further, the precedent cited by the Panel, Crater v. Galaza, 491 F.3d 1119,
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1132 (9th Cir. 2007) is inapposite for the reason cited, but is directly on point in

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Fine’s case in its discussion of judges performing “incompatible accusatory and
2 judicial roles”, citing Murchison.
3
b. Judge Yaffe did not have an “appearance of justice” because,
4
inter alia, he took a “bribe” from LA County.
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Judge Yaffe violated Offutt, supra, by taking criminal payments, including
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7 misappropriation of funds, obstruction of justice and bribes for which he

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received retroactive immunity effective May 21, 2009 under SBX2-11. The
9

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panel conceded these facts but did not directly address this issue. See below for
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discussion of the relationship of Government Code § 68220 to the immunity.
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Judge Yaffe’s admitted history of making rulings in favor of LA County
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14 show his favoritism, and his antagonism was fully evident in his treatment of
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Fine.
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17 c. Due process was violated by the direct payments to Judge Yaffe

from LA County, who was a party in a case before him.
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19 The panel conceded Judge Yaffe’s receipt of the payments but did not
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address the fact that LA County was a party before Judge Yaffe in the Marina
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Strand case. It ignored the fact that Judge Yaffe was a state-elected judge and
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23 that LA County did not have any employment or other relation with him.
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Under the panel’s strained argument and its misapplication of Tumey, supra,
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26 every party who has a case before a judge is now allowed to “pay him off” with
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impunity. The next judge defending the bribery charge may be expected to cite
2 the panel’s opinion.
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Under the true holdings of Tumey, Monroeville, Gibson, Lavoie and
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5 Caperton, supra, due process was violated by the LA County direct payments to
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Judge Yaffe, even if such payments were not criminal or did not violate the
7

8 California Constitution.
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d. The panel’s argument that Government Code § 68220, passed as
10 part of SBX2-11, “belies” the criminality of the act or the
retroactive immunity, is unconstitutional.
11

12 The genesis and subject of SBX2-11, as stated in the Bill, was to remedy
13
the Sturgeon decision. It was not to amend the California Criminal Code. The
14

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panel’s argument that allowing county payments to recommence would

16 “decriminalize the past and present payments” violates the single subject rule of
17
the California Constitution.
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19 Article I, Section 9, Cl. 3 of the U.S. Constitution prohibits ex post facto

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laws, as does Article I, Section 9, of the California Constitution. SBX-211 gave
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22 retroactive immunity from criminal prosecution effective May 21, 2009. The
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panel argued that the granting of judicial benefits available on July 1, 2009,
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starting on May 21st, “belies” the retroactive immunity and criminal acts. This
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26 argument removes the retroactive immunity, which did not have a time limit.
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Such removal established the crime, which was not exiting under the retroactive
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immunity. Thus the panel argument created an ex post facto law itself; i.e.,
2 established a crime where one did not previously exist.
3
Additionally, the panel did not discuss whether the current payments under
4

5 SBX2-11 are constitutional under the California Constitution. This is an

6
underlying question that must be answered before the panel can assume
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8 anything about the status of the current payments. This issue, not co-
9
incidentally, is presently before the California Court of Appeals in the ongoing
10
Sturgeon case. Under Sturgeon, the new payments also violate Article VI,
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12 Section 19, of the California Constitution because the Legislature’s duty to set
13
the compensation of the judges still cannot be delegated. Yet under SBX2-11,
14

15 such duty is delegated to the counties inasmuch as each county sets a different
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amount of payment and stops such payments at will.
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IV. An Emergency Decision is Needed Because the Court has Replaced
19 the Opposition as the Advocate in This Case.
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Action is needed now. The Memorandum of Opinion demonstrates that
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the judicial process in this case has been a farce. Supreme Court precedent, as
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23 shown above, is clear. It supports Fine. Yet Fine has been under “coercive
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incarceration” for nearly 10 months. The Court has denied two unopposed
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26 motions to set Fine free and one unopposed motion for reconsideration to set
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Fine free. It has also denied an unopposed motion to grant the writ on the
2 opening brief.
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The other side has literally “given up”. The panel has thus become the
4

5 advocate for judicial corruption. This sham should cease immediately.

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7 V. Conclusion.
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The panel has presented a conclusive argument for the House Judiciary
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Committee’s current hearings on the need to draft new recusal legislation by
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demonstrating that the judiciary cannot be trusted to govern itself on recusal
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issues.
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14 The time has come for the judicial sophistry to end and the Constitutions
15
and Rule of Law to be obeyed.
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17 Chief Justice Ronald M. George stated in a speech to the American

18
Academy of Art on October 10, 2009, that the California government is
19

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“dysfunctional”. He should know. He is the Chief Justice of the California

21 Supreme Court, he supervises the corrupt judicial system and is the Chairman
22
of the Judicial Council of California which drafted SBX2-11.
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24 Unless the en banc hearing is granted and the writ is granted, the Ninth
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Circuit will endorse California’s corruption and dysfunction, leaving its citizens
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to suffer without constitutional protections under the tyranny of criminals in
28 judicial robes.

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Judges Reinhardt, Trott and Wardlaw have opted for the side of criminals
2 and corruption. It is now up to the en banc Court to restore the Constitution, the
3
Rule of Law and the Republic. Fine respectfully requests that an en banc
4

5 hearing be granted, and that the writ be granted, thereby finally ending over
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twenty years of a corrupt California judicial system. To refuse to do so will be
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8 to continue to subject 38 million Californians to judicial corruption on a level

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found only in the worst of the developing and war-torn countries.
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Dated this _____ day of December, 2009 Respectfully submitted,
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BY: _________________________
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RICHARD I. FINE,
15 In Pro Per
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VI. Certificate of Compliance
17

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I certify under FRAP Rule 32(a)(7)(c) and Circuit Rule 32-1 that this
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COMBINED EMERGENCY PETITION FOR PANEL REHEARING AND
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REHEARING EN BANC OF THE PANEL’S UNPUBLISHED NON-
21
PRECEDENT MEMORANDUM DECISION AFFIRMING DISTRICT
22
COURT AND DENYING WRIT OF HABEAS CORPUS is proportionately
23
spaced, has a type face of 14 points, and contains 2,700 words according to the
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word processing system on which it was prepared. The words counted are those
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in the COMBINED EMERGENCY PETITION, pages 1 - 13.
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Dated: December ___, 2009 BY: _________________________
FRED SOTTILE

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 PROOF OF SERVICE

STATE OF CALIFORNIA,
COUNTY OF LOS ANGELES

I am Fred Sottile. My address is 2601 E. Victoria Street, # 108, Rancho

Dominguez, CA 90220.
On December ___, 2009, I served the foregoing document described as
COMBINED EMERGENCY PETITION FOR PANEL REHEARING AND
REHEARING EN BANC OF THE PANEL’S UNPUBLISHED NON-
PRECEDENT MEMORANDUM DECISION AFFIRMING DISTRICT
COURT AND DENYING WRIT OF HABEAS CORPUS on interested parties
in this action by depositing a true copy thereof, which was enclosed in a sealed
envelope, with postage fully prepaid, in the United States Mail, addressed as
follows:

Aaron Mitchell Fontana Kevin M. McCormick

Paul B. Beach BENTON, ORR, DUVAL & BUCKINGHAM
LAWRENCE BEACH ALLEN & CHOI, PC 39 N. California Street
100 West Broadway, Ste. 1200 P.O. Box 1178
Glendale, CA 91210-1219 Ventura, CA 93002

I certify and declare, under penalty of perjury under the laws of the United
States of America and the State of California, that the foregoing is true and
correct.
Executed on this _____ day of December, 2009, at Rancho Dominguez,
California.
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____________________________________
FRED SOTTILE
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