by Scott Zwartz
Sunday, June 14, 2015
with Sunday, February 14, 2016 Addendum
. Unknown to almost all Californians, for decades the state’s courts have been polluted by hubris which has turned the judiciary into an ethical swamp. California has two court systems: the State Courts and the Federal Courts. Despite some recent grandstanding by the federal court, both the state and federal courts are swamps when it comes to ethics. In January 2015, the feds charged that the California state courts have an epidemic of attorney misconduct due to the judges’ turning a blind eye to serious ethical violations. http://lat.ms/1znOjpN
. According to the the federal court judges in the Baca Case, the lack of ethics among the State judges was the reason California prosecutors use lying jail house informants and the prosecutors themselves take the stand to commit perjury. The ethical morass, however, is not unique to the prosecutors in criminal proceedings, but it arises from the overall, grandiose hubris of the judiciary. It does not matter whether a judge is sitting in a criminal court or in a civil court. The judiciary views itself as above the law and it perceives a judgeship as a private possession to advance the financial and career interests of judges and their friends.
. Because most judges see it as their prerogative to use their power for their personal benefit, many cases are decided not on the merits, but in order to advance the judge’s personal agenda. Behind the scenes, judges and justices engage in behavior that would shock the average person.
. One common abuse is that judges will call up a senior partner in the defense firm in a consumer oriented case when an important case has been assigned to them. Helping a consumer has scant potential to benefit a judge as consumers lack money and their law firms lack political clout. Ruling against a large business can blackball a judge for promotion or for a lucrative post-judgeship career in private arbitration. http://bit.ly/1E6lC02 February 12, 2015 CityWatch Justice at Risk Part 2 — Injustice Plague Infiltrates California’s Courts, by Richard Lee Abrams
. In an important insurance case against Aetna Insurance in the 1980’s, Aetna was ignoring its duties under a special law known as ERISA. The law requires the ERISA Plan’s Plan Administrator to provide the insured person with copies of the terms and conditions of the ERISA Plan so that the insured person can see whether the insurance company’s health policy was providing the benefits required by the ERISA Plan. Denying coverage can be a life or death matter. Thus, it is vital for the insured person to know whether his medical condition is covered under his employer’s ERISA plan.
. Aetna did not want to provide the ERISA documents because it was not providing the proper benefits. Thus, the judge called up the senior partner at the defense firm and they decided that she would rule that the ERISA Plan and the Aetna Insurance were the same thing, which of course they were not. That ruling would make it impossible for the insured person to find out what medical conditions were covered and how much Aetna was supposed to be paying.
. As was subsequently discovered, Aetna and other insurance companies ignored the benefits which they were supposed to be providing under the ERISA Plans, but instead they only provided the benefits which they found most profitable for them, e.g. they denied a lot of benefits on the false grounds that the ERISA Plan did not provide those benefits.
. A week in advance of the court’s absurd ruling, the two junior defense attorneys “predicted” that the judge would rule that the Aetna insurance policy was the ERISA Plan document. At the hearing, the junior attorney who appeared on behalf of Aetna said that the Aetna insurance policy was not the ERISA Plan. Lawyers are not supposed to make material misstatement of law to the court and thus the young lawyer was being ethical. [The California State Bar has Rules of Professional Conduct for Attorneys. Rule 5-200 Rule 5-220 and State Bar publish articles instructing attorneys on the need to be truthful. See April 2011 article from State Bar Journal, http://bit.ly/1Tmbyt6
. The judge, however, responded that she did not care what Aetna’s junior attorney said, she was ruling that the Aetna insurance policy was the ERISA Plan document. And, she so ruled.
. A day later, Plaintiff’s attorney was contacted by one of the probable class members who knew what was happening behind the scenes even though he was not a member of this defense firm. He related that the trial court judge wanted to be elevated to the Ninth Circuit Court of Appeals and that she had to secure the political support of the major downtown law firms. This career motivation is the most often cited motivation for judges’ abusing their powers.
. The two young attorneys were soon unemployed, but the judge was elevated to the Ninth Circuit Court of Appeals.
. While this judge is deceased, the junior attorneys are still practicing. Thus, the judge cannot speak in her defense, and identifying the two ethical attorneys would only harm their present careers.
. The reason Zwartz Talk is relating serious judicial misconduct from the 1980’s is to highlight that it is an ingrained feature in both the federal and the state judiciary, and it is a cancer on our third and least accountable branch of government. It would take volumes to discuss all the instances where cases have be subverted by a judge’s personal desires. Zwartz Talk learns of additional cases at the rate of two or three per month, but Zwartz Talk has a limited amount of time to investigate which claims have validity. Zwartz Talk requires underlying written documentation, usually in the form of court records. Thus, Zwartz Talk can present only a few instances showing that the dearth of ethics is not new. As will be shown, however, matters are as bad today as they were 30 years ago.
. Manuel (Manny) Real appears to be living and a sufficient number of his exploits have been publicly discussed that Zwartz Talk will mention him by name. It seems impossible to further tarnish his judicial reputation. http://bit.ly/1QYiU1Q Wikipedia, http://bit.ly/1GEZ7TU, 2012 article on Conflicts of Interest
. In the later 1980’s, federal Judge John Davies certified a class action in the case of Takeda/Whitten v Northwestern Insurance. A few weeks later, Judge Davies called the attorneys for both sides into his chambers and informed them that as a newly appointed federal judge, he had not known that the presiding judge Manny Real had an agreement with the insurance industry to never allow a class action case to be certified against an insurance company. Thus, he had to decertify the class action.
. The attorneys assumed that Judge Davies was telling the truth. His rendition of the unpleasant consequences of what would happen to him if he did not de-certify the class action was consistent with Manny Real’s reputation.
. There is no way to ever know how many insured were seriously harmed by allowing the insurance industry to systematically under pay insurance claims. A major cause of personal bankruptcy is medical bills, not to mention the harm from not receiving necessary medical care. Due the hundreds of millions of dollars which an insurance company can save by systematically underpaying claims, these type of cases are best brought on a class action basis. People who have been cheated by their insurance company are often dead or seriously debilitated and unable to take their insurance company to court.
. No one seems to have documented whether Judge Real financially cashed in on his hubris or whether he had some idiosyncratic quirk that compelled him to throw aside all Due Process and the substantive law of the land in order to protect the insurance industry, but the harm done to millions of insured people is real albeit incalculable.
. The last older case also deals with insurance and the desire of a state court judge to be promoted. This judge went on to do much good, but her unethical behavior highlights how a system infused with hubris can cause good people to do bad things. In an insurance case, it came to light that the defendant insurance company was cutting and pasting its insureds’ signatures to obtain confidential information by pretending that its insureds’ had authorized disclosure of the information.
. One would think that no judge would stoop so low as to condone obvious criminal behavior. Forgery and Uttering are crimes.
. During litigation, the plaintiff discovered that his insurance company had cut and pasted his signature on to documents which he had never seen in order to obtain confidential information, to which the insurance was legally not permitted to see without the consent of the insured person. Whenever one wants to take out an insurance policy, one has to sign the application. Thus, the insurance company always has at least one copy of its insured’s signature. This insurance company would cut the insureds’ signatures from documents in its files and then paste the signatures onto Releases of Information.
. When the plaintiff complained that the insurance company had been engaged in Forgery and Uttering, the judge told the plaintiff that unless he dropped his lawsuit she would report him to the IRS and have him audited. The IRS did subsequently audit him and gave the plaintiff a totally clean bill of health, but the judge’s threat was enough to make the insured to drop his lawsuit. Who would not be intimidated at a judge’s threat to report him to the IRS, no matter how scrupulous he had been in paying his taxes?
. The criminal implications for the insurance company were horrendous since forgery and uttering are felonies and the information which Plaintiff has stumbled across showed that the practice was common. Now, the judge had leverage in the “I Scratch Your Back, You Scratch My Back” game of judicial appointments. As the saying goes, “they owed her one.”
. The scuttlebutt around town even before this case was that the judge was looking to be elevated to the state courts of appeals, but since the Democrat Gray Davis was governor that was unlikely. Soon, she received GOP nomination to the more prestigious federal bench. While on the federal bench she made a number of decisions which are generally acknowledged to be well reasoned and beneficial to society at large. When it comes to judicial ethics, what is the exact role of the belief that The End Justifies The Means?
. The hubris which infects the judiciary has led California judges to cover up criminal behavior among the rich and powerful when it suits their personal agenda or when they can help a friend. The judges are most vigilant in protecting their power to abuse. Psychologically, it seems close to James I’s belief in the Divine Right of Kings.
. Now we work our way back to current day California for more on the sorry saga of the Hollywood Community Plan litigation. See Stench from the Bench #1, http://bit.ly/1Es74pD , Stench from the Bench #2, http://bit.ly/1Es70WX, and Stench from the Bench #3, http://bit.ly/1cwdq0G
. SaveHywd, an unincorporated association, was one of five petitioners in the CEQA litigation over the 2012 Hollywood Community Plan Update. Its attorney was Richard MacNaughton, and at his suggestion, SaveHywd also retained attorney Frank Angel as a consultant who was to provide additional CEQA advice at attorney MacNaughton’s request.
. After a year, Frank Angel decided that he wanted to be SaveHywd’s lead attorney, but SaveHwyd did not agree. Thus, Frank Angel went to another group, a corporation, to have the corporation make him lead attorney. Of course, such a ploy was legally worthless as the corporation, which was a separate entity, had no control over who represented the Petitioner SaveHywd.
. After SaveHywd and Attorney MacNaughton orally and in writing told Frank Angel that he could not give any advice to the corporation and he could not be the corporation’s attorney, Frank Angel boldly went to court to have Judge Allan Goodman remove SaveHywd from its own lawsuit and have the corporation made the petitioner in its place. The purpose of this move was so that the corporation would fire Attorney MacNaughton as “SaveHywd’s” attorney. The entire scenario was a legal absurdity for many reasons, except one: Judge Goodman, as it turns out, is Frank Angel’s “buddy.”
. Attorneys recognize the outlandish nature of Frank Angel’s actions. Lawyers cannot go out and find a second client and then go into court an attack their first client. The entire legal system is based on the complete faithfulness that all attorneys owe their clients. Who would ever trust their attorney if their attorney could betray them by suing them? Judge Goodman not only turned a blind eye to Frank Angel’s extremely unethical conduct under Rule 3-310(C), Flatt v Superior Court, Truck v Firemans , Jeffry v. Pounds, Goldstein v Lees, Judge Goodman aided and abetted Frank Angel in his unethical behavior. Judge Goodman’s legal duty is set down in California Code of Judicial Ethics, Canon3(d)(2) leaving Judge Goodman no option but to stop Frank Angel’s attack in his own client.
. In discussing an attorney’s duty of loyalty to his client, the California Supreme Court has said.
One of the principal obligations which bind an attorney is that of fidelity, the maintaining inviolate the confidence reposed in him by those who employ him, and at every peril to himself to preserve the secrets of his client. [Citations.] This obligation is a very high and stringent one. It is also an attorney’s duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter’s free and intelligent consent given after full knowledge of all the facts and circumstances. Flatt v Superior Court page 289
. In ignoring Canon3(d)(2), Judge Goodman did a strange thing. While he did not accede to Frank Angel’s wish to remove SaveHywd or Attorney MacNaughton, he allowed Frank Angel to continue to file pleadings in the case as if Frank Angel had a client in the litigation. Because the corporation’s legal goals were directly and irretrievably opposed to SaveHywd’s objectives, SaveHywd brought a motion for the court to stop taking pleadings from Frank Angel. Although SaveHywd had fired Frank Angel (SaveHywd’s Termination Letter,) Judge Goodman not only allowed Frank Angel to participate in the lawsuit, to the extreme detriment of SaveHywd, but he also forbid SaveHywd to object to Frank Angel’s interference in the case.
. Judge Goodman’s allowing an attorney to attack his own client in the same case for which he had been hired struck at the heart of the attorney client relationship. Judge Goodman was allowing SaveHywd’s former attorney to continue to participate in the same case from which he had been fired, and Frank Angel was pushing a position which essentially eradicated SaveHywd’s entire legal position. While SaveHywd asserted that the City had to do a new DEIR and study a Hollywood with a smaller population in year 2030 than it had in year 2010, Frank Angel’s position was that a new DEIR was discretionary, and he had said that it was reasonable to expect Hollywood’s population to double to 400,000 people by the year 2030.
. Two days later on March 27, 2014, after his leaving Frank Angel to continue to meddle in the Hollywood Community Plan case, Judge Goodman then rewarded Frank Angel’s treachery by smoothing the way for Frank Angel to collect $1/4 Million in attorney fees. While the nature and extent of Judge Goodman’s and Frank Angel’s “buddyism” is unknown, it was worth at least $1/4 Million.
. The City has taken advantage of Judge Goodman’s favoritism for his unethical buddy. As a result, a year and one-half later, Hollywood has no new community plan. The old 1988 Hollywood Community Plan, which Judge Goodman reinstated, had its Commerce Section expire in 2010. Thus, the billions of dollars of projects which are being approved in Hollywood lack a community plan with a Commerce Section which makes their approvals voidable for failure comply with State law. Neither the developers nor the public benefit from this legal quagmire.
. As Frank Angel became suffused in his own hubris, he took the love and care which Judge Goodman bestowed upon him and turned it into a dagger to continue his attacks SaveHywd and its attorney. These machinations have been explored in Stench from the Bench #1, Stench from the Bench #2, and Stench from the Bench #3, above
. Judge Goodman knows that Frank Angel’s representation of the corporation was an unethical dual representation, making Frank Angel’s exclusion from the lawsuit mandatory. Being disqualified for such serious ethical breaches not only would result Frank Angel’s exclusion from the lawsuit, his likely suspension from the State Bar, but it would also prevent him from getting $1/4 Million in (unearned) attorney fees. Perhaps, it was to protect his “buddy” Frank Angel from consequences of his ethical violations that Judge Goodman launched the on-going cover-up of Frank Angel’s misconduct, but his protecting Frank Angel also served to cover-up the Judge Goodman’s own ethical violations. Hubris lacks the humility to admit its errors.
. As the prior Stench from the Bench articles relate, appellate Justice Paul Turner and Judge John Torribio have been immersed in their orgy of hubris to savage SaveHywd and Attorney MacNaughton. Meanwhile Judge Goodman has stood silently by, watching the evils which he unleashed, bring more dishonor upon the judiciary. If protecting a trial judge is important, that is nothing compared to the need to protect Appellate Justice Paul Turner, who acted without jurisdiction or Due Process.
. Judge Goodman, however, finds protecting Frank Angel, himself, Justice Turner and now Judge Torribio from their own predatory abuses of the judicial system to outweigh any moral duty to rectify the situation. Hubris trumps honor.
. The harm that judicial hubris does to society is beyond anyone’s ability to calculate. The judiciary is the most secretive branch of government. Very few trials are televised. People have to trust that judges are doing the right thing or at least that the judges are trying to be fair and honest. Courts which lose the faith of the people endanger the entire government. In colonial days, Americans found judicial corruption to be so destructive of government that the Declaration of Independence listed it as one of the justification for independence.
. Without the public’s faith and trust in the independence and honesty of the judiciary, society cannot function. The public’s toleration for the judges’ orders would be short lived if people knew that the courts’ opinions were not necessarily the product of Due Process or the result of a reasonable application of the law to the facts, but rather the courts were often enacting a judge’s personal whims to advance his/her financial well-being or to secure appointment to a higher court.
. Many judges justify their cover-up of judicial abuse of power by their belief that if the public were to find out how terribly judges behave, then the public would cease to obey court orders. Thus, they adopt the curious ethical idea that the best way to protect the Republic is to allow judicial hubris and corruption to run unchecked. For the judges, appearance of propriety is deemed so important that anyone who would point out that the emperors are wearing no clothes becomes a state enemy.
Sunday, February 14, 2016
. It was learned in September 2015, that on December 18, 2014 Justice Turner was privy to a defamatory ex parte communication with Angel Law. Angel Law falsely related that Petitioner SaveHywd had fired Attorney MacNaughton in July 2014, but in reality Judge Goodman had expressly rejected that claim in his September 24, 2014 Minute Order. Judge Goodman left standing the situation that Frank Angel represented the non-party corporation and Attorney MacNaughton represented Petitioner SaveHywd.
. While it is contrary to the State Bar rules for an attorney to make false representations to the court, the Canons of Judicial Ethics require all judges to disclose any ex parte communications so that everyone knows exactly what was said and then he court is required to provide the harmed party an opportunity to be heard. Justice Turner never divulged the substantive ex parte communication, making it impossible for SaveHywd or attorney MacNaughton to protect themselves from the secret defamatory accusations — the same false charges which Judge Goodman had rejected on September 24th.
. Although the December 18th ex parte communication is no longer secret, Justice Turner persists in his efforts to sabotage Petitioner SaveHwyd and Attorney MacNaughton. Justice Turner refuses to disclose the sum and substance of the ex parte communication. Justice Turner, however, has used that secret communication to alter the appellate court’s webpages to falsely show that Frank Angel is SaveHywd’s attorney and by his refusing to accept any appellate court pleadings from Petitioner SaveHywd. Justice Turner now contends that his secret ex parte communication with Angel Law gave him authority to issue a ruling binding on the trial court that Attorney MacNaughton did not represent SaveHywhd in the trial court.
. According to the California Constitution, no appellate court has original jurisdiction of such issues. Thus, the only way for Justice Turner’s Division Five to have obtained jurisdiction of who represented SaveHywd in the trial court would have been for someone to have appealed or sought a writ from Judge Goodman’s September 24, 2014 order. No one had done so. At this time, it is an open question whether Angel Law perhaps told Justice Turner about the September 24th Minute Order and that was the reason Justice Turner refused to permit SaveHywd and Attorney MacNaughton know about the secret communication. Had they known the specific issue, they would have presented a copy of Judge Goodman’s September 24th Order to the appeals court as well as SaveHywd’s contract with Frank An gel which expressly excluded him from representing SaveHywd in any appeal. By not disclosing the secret ex parte communication, Justice Turner deprived SaveHywd and Attorney MacNaughton of the opportunity to rebut the false charges.
. From the facts it is clear that Justice Turner’s over-reaching trashes the essence of a judicial system — a court must obtain jurisdiction in order to make a ruling and the Constitution unequivocally states that trial court issues have to reach the appeals court by appeal or writ and not by a secret ex parte communication.