[00:00:00] Speaker 03:
I'm called housekeeping, which is that there's two.

[00:00:05] Speaker 03:
Reply briefs and they were Sandy Lawrence case that were submitted oversized and never ruling was no ruling was ever made whether to accept or not it was transferred over to this court.

[00:00:16] Speaker 03:
this merit panel for decision and the oversized reply brief for which permission was denied I believe last Wednesday and a conforming brief was submitted on I believe Thursday or Friday morning and the question I simply have is does the court have the opportunity to look at those briefs?

[00:00:35] Speaker 02:
Yes, we have received those and we know there are a number of pending motions in some of these cases and those will be ruled on in due course.

[00:00:41] Speaker 03:
Right, but the only question is you're familiar with the contents of these matters so I don't need to spend any time

[00:00:46] Speaker 03:
on the assumption that you need to be refuted.

[00:00:48] Speaker 03:
No, we have received them.

[00:00:50] Speaker 03:
Okay, and read them.

[00:00:51] Speaker 03:
Okay.

[00:00:52] Speaker 03:
So therefore, I would please the court.

[00:00:55] Speaker 03:
This is a set of four related appeals, all of which were dismissed on grounds of younger abstention.

[00:01:01] Speaker 03:
The specific controlling case that was cited by every one of the courts was the Hirsch case.

[00:01:06] Speaker 03:
However, Hershey's been long been superseded both on the California Supreme Court side in terms of the underlying conceptual underpinnings for the application of Younger Abstention and on the mechanism by which Younger Abstention is actually applied, which is the Sprint Communications case.

[00:01:24] Speaker 03:
Sprint Communications ends up imposing a set of categorical mandates known as the NOPSI categories.

[00:01:32] Speaker 03:
Previously, under the interpretation of this court and most of the courts,

[00:01:37] Speaker 03:
Any proceeding of any kind that had any kind of judicial or administrative effects or characteristics would be interpreted as potentially coming under Younger.

[00:01:49] Speaker 03:
That was abolished by the United States Supreme Court.

[00:01:52] Speaker 03:
The issue here is that when you end up understanding what the actual ANOPSI categories are, these kind of state bar proceedings in California do not meet the standards.

[00:02:04] Speaker 03:
In addition,

[00:02:06] Speaker 03:
The underlying matters, both for the specifics of this case, involve ongoing corruption from our point of view and certainly a history of corruption regarding Tom Girardi.

[00:02:19] Speaker 03:
And the state bar is obliged to disclose information regarding Girardi's corruption because of the possibilities of direct bias or compensatory bias as understood under the Bracey and Gatcho cases.

[00:02:35] Speaker 03:
The State Bar's position and the position of the underlying courts was simply to apply the Hirsch case, ignore and not even mention the Bracey matters, and essentially also once we ended up, I was able to develop the specific requests

[00:02:53] Speaker 03:
regarding the statutory Brady obligations, our business and professional code section 6085, reveal the fact that both the state bar and the California Supreme Court do not recognize the statutory protections that this court has looked at to decide that, in fact, Ninth Circuit authority should protect the California state bar proceedings under younger section.

[00:03:21] Speaker 03:
Now, I was very interested, Judge Seiler, to see your presence on this case, because you've actually written an opinion on this matter that's highly relevant to the arguments that were made, that were particularly developed in the St.

[00:03:34] Speaker 03:
Ivy Lawrence case.

[00:03:35] Speaker 03:
And that case was the, if you will recall, is the Doe versus University of Kentucky case.

[00:03:44] Speaker 03:
And if you remember, that was a younger extension case.

[00:03:47] Speaker 03:
And you took the position that in order for it to fit into the Nopsy categories,

[00:03:51] Speaker 03:
the underlying administrative proceedings had to fit, at least within some semblance of criminal proceedings, because of the idea that these kind of proceedings that we're talking about, if they fit into any NOPSC category at all, the NOPSC category that they would fit into is the category of civil enforcement proceedings.

[00:04:15] Speaker 03:
We take the position that to be qualified as a civil enforcement proceedings under NOPSC, the underlying proceedings have to be traditional in character, which is explicitly articulated in NOPSC, and also have to have basic characteristics of civil litigation.

[00:04:31] Speaker 03:
California state bar proceedings have none of these characteristics.

[00:04:35] Speaker 03:
In the 2000 decision of Henry Rose,

[00:04:38] Speaker 03:
The California Supreme Court was trying to explain to the world why it was not going to allow any oral argument for state bar proceedings that had been initiated through a petition for review after a recommendation for discipline had been made by the California state bar.

[00:04:58] Speaker 03:
And the position that was taken by the California Supreme Court was to make clear that

[00:05:07] Speaker 03:
proceedings for the California State Bar have no judicial qualities because they are quasi-judicial in nature.

[00:05:16] Speaker 03:
That comes from the fact that the California Constitution bars the California Bar Association or any other entity not mentioned and granted specific judicial powers from exercising judicial power under the California Constitution.

[00:05:32] Speaker 03:
Because of that bar,

[00:05:35] Speaker 03:
The California Supreme Court repeatedly explains that state bar matters are quasi-judicial.

[00:05:41] Speaker 03:
In NAPSE, the United States Supreme Court explicitly addressed the question of what happens if you have administrative proceedings that are not judicial in character.

[00:05:54] Speaker 03:
And they said those proceedings and any subsequent judicial review of them are not covered by younger abstention.

[00:06:02] Speaker 03:
In addition, the basic characteristics of a civil enforcement proceeding.

[00:06:08] Speaker 01:
Don't you think the cases that we do have

[00:06:14] Speaker 01:
from this court and from the California Supreme Court differ with the way you describe the essential characteristics of a state board procedure?

[00:06:23] Speaker 03:
Yes, but the characteristics of the two decisions are 1990's decision, Rosenthal versus California justices, and Hirsch.

[00:06:33] Speaker 03:
1990, 1995.

[00:06:35] Speaker 03:
The characteristics and the description of how these things operated is the 2000 decision of Henry Rose.

[00:06:43] Speaker 03:
And before Henry Rose, the California Supreme Court had never really articulated how it treats state bar court proceedings after the reformation of the California state bar.

[00:06:56] Speaker 02:
Are you saying that Hirsch is superseded?

[00:07:00] Speaker 03:
Absolutely it's superseded.

[00:07:01] Speaker 03:
It's superseded on two bases.

[00:07:03] Speaker 03:
It's superseded because at the time, under the Sprint case,

[00:07:10] Speaker 03:
you know how to fit into the NOPSE categories.

[00:07:13] Speaker 03:
Not a single one of the decisions that dismissed matters under younger abstention discussed whether or not they fit into the NOPSE categories.

[00:07:21] Speaker 03:
Why?

[00:07:21] Speaker 03:
Because they had Hirsch.

[00:07:22] Speaker 03:
Hirsch is on point and therefore from the district court's point of view that ended the discussion as far as whether they fundamentally fit within those categories.

[00:07:33] Speaker 03:
In addition, Henry Rose takes a radically different view of how the

[00:07:39] Speaker 03:
these matters should be considered when you actually take a good, close reading of what they're saying.

[00:07:47] Speaker 03:
Because what the Supreme Court makes clear is, first of all, when they take a recommendation from the State Bar Association, they look it over.

[00:07:58] Speaker 03:
But even if you demonstrate irrefutable

[00:08:04] Speaker 03:
uh... violation of constitutional rights as long as they think that the result is the result that they're happy with they don't care they're not going to grant a petition for review and they have never granted a petition for review on the merits and provided any relief for any attorney in the decades following and that's because they take the position that

[00:08:27] Speaker 03:
Essentially, I would say it's despotic position that they look at the fact they say does this guy deserve to be punished?

[00:08:34] Speaker 03:
We think so.

[00:08:35] Speaker 03:
What relief are you seeking in this case?

[00:08:38] Speaker 03:
The specific relief depends on the cases we're talking about.

[00:08:42] Speaker 03:
One of the cases is extremely bizarre at first glance because it was my direct lawsuit against the California Supreme Court justices that was filed after I took the petition for review but before they had ruled.

[00:08:58] Speaker 03:
They chose to default.

[00:09:00] Speaker 03:
uh... rather than contest the matter i presume because they assume given the history of ninth-circuit law uh... and the ninth-circuit procedure in this matter that the uh... i was going to lose anyway and their prediction was correct uh... the the trial court judge martinez olguin in that particular case ended up uh...

[00:09:22] Speaker 03:
ruling against me and rejected all of the allegations we provided regarding both bias at the Supreme Court, potential bias at the Supreme Court level and the sorority bias.

[00:09:33] Speaker 03:
Are you seeking money damages or reinstatement or what?

[00:09:37] Speaker 03:
In my case, we're only requesting equitable release.

[00:09:42] Speaker 03:
The only request we do in this case is injunctive relief in respect of me to reverse the California Supreme Court decision suspending me because they defaulted.

[00:09:54] Speaker 03:
In the other matters, we want to be able to go ahead and make the case that the proceedings, the underlying proceedings, should be enjoined.

[00:10:03] Speaker 03:
Now, specifically, one of the cases

[00:10:06] Speaker 03:
In my case, they initiated a second set of state bar proceedings, which are ongoing, and that's the Santa Ana v. Cardona case.

[00:10:14] Speaker 03:
In the Santa Ana v. Cardona case, the specific issue is the fact that I made requests under the statutory Brady requirements regarding the Girardi matters.

[00:10:27] Speaker 03:
And they refused to recognize the existence of the statutory right that had been imposed by the California legislature.

[00:10:37] Speaker 03:
And it is clear from Henry Rose that the California Supreme Court rejects it as well.

[00:10:44] Speaker 03:
Because the statutory Brady rights were imposed by the legislator in 6085B in 1995,

[00:10:55] Speaker 03:
By 2000, the court is taking the position that there is no criminal protections whatsoever, even though five years before, it's undisputed from the legislative history, such protections had been imposed.

[00:11:08] Speaker 02:
What is the connection between your cases and the Girardi matters?

[00:11:13] Speaker 03:
The Girardi matters come through the doctrine of bracy.

[00:11:20] Speaker 03:
Compensatory bias.

[00:11:21] Speaker 03:
Compensatory bias is the theory that when a tribunal of any kind is corrupted, as the Girardi case clearly was, that the functions of it will be tilted against other people in order for them to show how tough they are and to eliminate criticism of their

[00:11:49] Speaker 03:
lack of prosecution.

[00:11:52] Speaker 03:
And in particular, there was a direct connection in the Girardi cases between me and what was going on.

[00:12:01] Speaker 03:
Because simultaneously, as I'm sure you hopefully understand, my bar case was instigated by Alex Kaczynski and the Judicial Council

[00:12:10] Speaker 03:
over my filing, over my exposure of Kaczynski's pornography server and my filing of a complaint about it to the Judicial Council.

[00:12:22] Speaker 03:
That's what prompted my bar complaint and that's demonstrated in the record that it was Cathy Canterson who essentially bludgeoned them into

[00:12:34] Speaker 03:
filing the ultimate bar complaint, and I managed to eliminate all but one of the charges, but the last charge I could not get rid of.

[00:12:42] Speaker 03:
And that was because I was not allowed by the second bar court judge to have any relief on that matter.

[00:12:53] Speaker 03:
Simultaneously, they are putting away the matter that you, Judge Tashima, had actually adjudicated

[00:13:03] Speaker 03:
which was the Henry Girardi matter.

[00:13:05] Speaker 03:
Walter, if you recall, Walter Lack and Girardi, you ended up finding should be sanctioned.

[00:13:11] Speaker 03:
They cleared Lack and Girardi improperly, which they acknowledge, though nobody has ever really understood how it occurred.

[00:13:20] Speaker 03:
And my theory, among others, is that the instigation of those bar complaints against me, most of which failed and were proved to be non-meritorious, were a quid pro quo

[00:13:33] Speaker 03:
and to show the Ninth Circuit that, well, they weren't gonna go after Girardi, they weren't gonna go after Walter Latt, but we will go after the Sani guy who's really angered you because of his public disclosure of the porn server.

[00:13:46] Speaker 03:
So that's the theory.

[00:13:48] Speaker 03:
And under any circumstances, the Bracy case and the underlying cases show that even disconnected cases factually can end up being affected by the decision of a tribunal which is corrupted to try and appear tough in one circumstance

[00:14:03] Speaker 03:
to alleviate criticism of their failures to prosecute or failures to enforce the law on other ones, which is what actually happened in the underlying bracing matters.

[00:14:12] Speaker 03:
Do you want to save some time for rebuttal?

[00:14:13] Speaker 03:
I would like to do so, unless you have any specific questions.

[00:14:26] Speaker ?:
Nope.

[00:14:26] Speaker 00:
Thank you.

[00:14:27] Speaker 00:
May it please the court, I'm Rita Himes, Assistant General Counsel for the State Bar of California.

[00:14:32] Speaker 00:
And I am appearing for defendant's appellees in Rochanne v. Lawrence, Sinai v. Lawrence, and Sinai v. Cardona.

[00:14:41] Speaker 00:
All three of these appeals are easily resolved under controlling Supreme Court and Ninth Circuit law.

[00:14:48] Speaker 00:
Middlesex clearly holds that attorney disciplinary proceedings that are not materially different from the proceedings in California are subject to younger abstention, and Sprint reaffirmed that holding, specifically citing Middlesex as good authority.

[00:15:08] Speaker 00:
There's no material difference in this proceeding.

[00:15:10] Speaker 00:
They begin with an administrative arm of the Supreme Court, as in New Jersey, and the discipline is imposed by the Supreme Court.

[00:15:18] Speaker 00:
Hirsch specifically holds that State Bar of California attorney disciplinary proceedings are subject to Younger, and there is no material difference in the current proceedings and those that were at issue in Hirsch.

[00:15:32] Speaker 00:
All of plaintiffs' arguments are generic.

[00:15:36] Speaker 00:
They apply to all attorneys, if accepted, and would result in the wholesale transfer of attorney disciplinary cases to federal court.

[00:15:46] Speaker 00:
And fundamentally, they are premised on a distrust of the California Supreme Court justices and the appointed state bar court judges.

[00:16:00] Speaker 00:
Under Hirsch, this court must presume the honesty and integrity of the state judiciary.

[00:16:07] Speaker 00:
The district court had to dismiss under Middlesex and Hirsch, and this court must affirm.

[00:16:14] Speaker 00:
As to Girardi,

[00:16:18] Speaker 00:
The only connection between the Girardi controversy and the cases before the court is that these appellants are not Girardi.

[00:16:26] Speaker 00:
Mr. Sanai just argued that the connection between his case and Girardi is that they occurred at about the same time.

[00:16:34] Speaker 00:
Bracey is an entirely different case.

[00:16:37] Speaker 00:
In that case, you had a corrupt judge who took specific measures in the defendant's case that undermined his defense.

[00:16:45] Speaker 00:
And it was inferable that it was related to proven corruption by that judge.

[00:16:52] Speaker 00:
I welcome the court's questions.

[00:16:59] Speaker 02:
It does not appear there are any missed times.

[00:17:01] Speaker 02:
So unless you have anything further, we'll thank you for your argument this morning.

[00:17:04] Speaker 02:
Thank you.

[00:17:14] Speaker 03:
The fundamental position of the state bar is that there is no difference between the Middlesex proceedings and the proceedings that the California state bar does.

[00:17:24] Speaker 03:
In fact, they're entirely different.

[00:17:26] Speaker 03:
In the first place, in Middlesex, as made clear within the Middlesex decision and the Captain New Jersey Supreme Court decisions, the proceedings are judicial from start to finish.

[00:17:35] Speaker 03:
They operate on a system similar to Hawaii does, where there are direct special masters hired in committees that work directly for the court, and the proceeding is a seamless process going from direct litigation with the prosecutorial authority, then recommendation, and finally review by the New Jersey Supreme Court.

[00:17:58] Speaker 03:
When the New Jersey Supreme Court was asked to characterize what its proceedings were like, they said they're civil in character.

[00:18:04] Speaker 03:
California Supreme Court takes the exact opposite.

[00:18:06] Speaker 03:
They say they're not civil, they're not criminal, you have no criminal rights, we ignore the specifics of the statutory rights that have been imposed by the legislature.

[00:18:20] Speaker 03:
It doesn't resemble, when you actually look at it closely, anything regarding civil or criminal

[00:18:26] Speaker 03:
law, or any kind of procedures that were recognized as common to due process in any way.

[00:18:32] Speaker 03:
In addition, specifically to the California Supreme Court, you are prohibited from making certain kinds of constitutional arguments to them.

[00:18:40] Speaker 03:
You cannot make constitutional arguments either regarding the state bar court judges or themselves, which are based on their rulings or their statements in court.

[00:18:52] Speaker 03:
And California does not allow you to obtain disqualification of California justices at the appellate level or at the state Supreme Court level.

[00:19:01] Speaker 03:
A fact by the way acknowledged in Hirsch.

[00:19:05] Speaker 03:
The fact that you can make certain classes of constitutional arguments in and of themselves disqualifies these from younger because one of the middle sex factors is that you're entitled to make all constitutional arguments.

[00:19:19] Speaker 03:
In addition, there's a temporal bar.

[00:19:21] Speaker 03:
The temporal bar, which is unique in the law, is that if you discover a month after discipline has been imposed that one of the witnesses were bribed or that there were constitutional problems, there is no mechanism for you to be able to seek relief from the California Supreme Court.

[00:19:40] Speaker 03:
I ended up actually filing and requesting such relief after there was a problem

[00:19:45] Speaker 03:
there was a problem for me to be able to satisfy one of the conditions to lift my suspension.

[00:19:49] Speaker 03:
And I received a letter back from the clerk of the California Supreme Court saying, once it matters final, there is no procedural mechanism in able to adjust it.

[00:20:00] Speaker 03:
Essentially, the system has none of the basic due process protections that are, or even procedural.

[00:20:07] Speaker 01:
But listen, I think you're speaking of what was characterized

[00:20:14] Speaker 01:
as a motion to reconsideration, a decision on reconsideration, right?

[00:20:18] Speaker 01:
Is that what it amounted to?

[00:20:20] Speaker 03:
What it was was a second motion for reconsideration.

[00:20:23] Speaker 01:
Right.

[00:20:24] Speaker 01:
With the raw lighting from.

[00:20:24] Speaker 01:
So you want to reconsider something that's already been reconsidered.

[00:20:27] Speaker 01:
There's got to be an end to everything.

[00:20:29] Speaker 01:
And we have the same rules in our court.

[00:20:31] Speaker 01:
Every court has the same rules.

[00:20:33] Speaker 03:
No.

[00:20:35] Speaker 03:
If, for example, there is a criminal matter, you discover that there was corruption within the body or certain constitutional obligations were not fulfilled, such as handing over documents that required to be documented, or there was fraud on the court, you go back and you go back and then take standard rule 60

[00:20:56] Speaker 03:
or independent action and equity in California that allows you to go in and seek rectification for these matters, which you had no ability to know about.

[00:21:06] Speaker 03:
That's completely impossible.

[00:21:08] Speaker 01:
I don't think Route 60 applies to criminal cases, but let me finish.

[00:21:13] Speaker 01:
But the remedy there is obviously habeas, which is in the Constitution.

[00:21:18] Speaker 01:
But it's an entirely different animal.

[00:21:20] Speaker 01:
Go ahead.

[00:21:22] Speaker 03:
It's an entirely different animal, but there is a mechanism

[00:21:26] Speaker 03:
essentially obtain post-judgment relief regarding subsequent matters that you discover or for example if you have an injunction or a particular sentence that you can no longer or obligation that you can no longer satisfy in federal law you can go ahead and say please modify the sentence please modify this please modify the injunction

[00:21:48] Speaker 03:
Common law and criminal law, civil law and criminal law, has always had post-judgment mechanisms to be able to rectify problems that arise subsequently.

[00:21:58] Speaker 03:
Those do not exist in California bar proceedings, and it's unique to that.

[00:22:03] Speaker 03:
But again, it's not the only deficiency.

[00:22:06] Speaker 03:
As acknowledged by Herb.

[00:22:07] Speaker 02:
We let you go quite a bit over your time, so I wanted to see if Judge Tishima or Judge Siler have further questions for you.

[00:22:12] Speaker 02:
I know, thank you.

[00:22:13] Speaker 02:
Okay, Mr. Simon, thank you for your argument this morning.

[00:22:15] Speaker 02:
Thank both counsel.

[00:22:17] Speaker 02:
These matters are submitted.