Dickstein v. Supreme Court of California et al

Ex Parte MOTION for Temporary Restraining Order

N.D. Cal.June 7, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jeffrey A. Dickstein E-mail: jdlaw47@yahoo.com 3263 S Erie Ave Tulsa OK 74135 Telephone: (918) 271-3374 Facsimile: None Jeffrey A. Dickstein, Plaintiff appearing Pro Se UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION JEFFREY A. DICKSTEIN, ) CASE NO. 3:17-cv-02469-YGR ) Plaintiff, ) EX PARTE MOTION FOR ) TEMPORARY RESTRAINING ORDER; v. ) MOTION FOR PRELIMINARY ) INJUNCTION; MEMORANDUM JAMES P. FOX, President of the Board of ) OF POINTS AND AUTHORITIES Trustees of the State Bar of California in ) his Official Capacity; ELIZABETH ) RINDSKOPF PARKER, Executive Director ) and Chief Executive Officer of the State ) Bar of California, in her Official Capacity, ) ) Defendants. ) PLAINTIFF’S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER; MOTION FOR PRELIMINARY INJUNCTION; MEMORANDUM OF POINT AND AUTHORITIES Comes now Plaintiff Jeffrey A. Dickstein (hereinafter referred to as “Dickstein”) who moves the Court for the issuance of an ex parte motion for temporary restraining order and to set a hearing on preliminary injunction to prospectively restrain Defendants, their officers, agents, servants, employees, and attorneys from taking any action to enforce the terms of probation issued in State Bar Case No. 10-C-07932, which case is void resulting from a complete lack of jurisdiction over the subject matter of “other misconduct warranting discipline.” In support thereof, Dickstein makes the following showing: THE FOLLOWING FACTS ARE UNDISPUTED 1. During the course of providing representation to Claudia and Mark Hirmer in the -1- Case No. 3:17-cv-02469-YGR Plaintiff’s Ex Parte Motion for TRO Case 4:17-cv-02469-YGR Document 29 Filed 06/07/17 Page 1 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 criminal case of United States v. Hirmer, et al., Case No. 3:08-cr-00079-MCR (U.S.Dist.Ct., N.D. Fla.), Dickstein, was convicted on November 24, 2010, of a misdemeanor contempt for filing a motion to be relieved as counsel. 2. Subsequent to the Eleventh Circuit Court of Appeals affirming Dickstein’s misdemeanor conviction for having filed a motion to be relieved as counsel, on January 17, 2012, the Review Dept. of the State Bar Court issued an order referring to the Hearing Dept. of the State Bar Court “under the authority of California Rules of Court, rule 9.10(a), to conduct a hearing and recommending the discipline to be imposed in the event that the hearing department finds that the facts and circumstances surrounding the misdemeanor violation of 18 United States Code section 401(3) (criminal contempt), of which Jeffrey Alan Dickstein was convicted, involved moral turpitude or other misconduct warranting discipline.” [Emphasis added.] 3. On January 27, 2012, the Hearing Dept. of the State Bar Court, issued and caused to be served on Dickstein a "Notice of Hearing on Conviction (Bus. & Prof. Code, §§ 6101, 6102)" in State Bar case no. 10-C-07932. 4. The Hearing Dept. of the State Bar Court, as well as the Review Dept. of the State Bar Court, specifically found Dickstein’s misdemeanor contempt did not involve moral turpitude. 5. The Hearing Dept. of the State Bar Court held a hearing on the issue of “other misconduct warranting discipline” and thereafter issued a recommendation for disciplinary action for “other misconduct warranting discipline.” 6. Thereafter, the Review Dept. of the State Bar Court held the “other misconduct warranting discipline” found by the Hearing Dept. did not comply with proper notice to Dickstein. Instead it cited to content found within the Eleventh Circuit’s Opinion, and found that content constituted “other misconduct warranting discipline.” The Review Dept. then forwarded its recommendation for discipline to the California Supreme Court. 7. Dickstein petitioned the California Supreme Court for review of the recommendation, and the California Supreme Court, on October 19, 2016, issued its final order sustaining the disciplinary recommendation of the State Bar Court. It imposed discipline in the -2- Case No. 3:17-cv-02469-YGR Plaintiff’s Ex Parte Motion for TRO Case 4:17-cv-02469-YGR Document 29 Filed 06/07/17 Page 2 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 form of suspension, a requirement to comply with various rules of the State Bar, a requirement to pass the Multistate Professional Responsibility Examination, and costs. 8. One of the conditions of probation was a requirement that Dickstein comply with California Rules of Court, Rule 9.20(c). 9. On May 18, 2017, the State Bar sent Dickstein notice of its intent to start disciplinary proceedings for Dickstein’s failure to comply with Rule 9.20(c) which included a draft of the Notice of Disciplinary Charges to be filed in the Hearing Dept. in a new case designated Case No. 17-N-00495. A copy of the notice is attached hereto as Exhibit B. REASONS FOR GRANTING THE TEMPORARY RESTRAINING ORDER 10. As more fully set forth in the memorandum of points and authorities, the State Bar Court was without subject matter jurisdiction to hold a hearing on “other misconduct warranting discipline,” to find Dickstein guilty of “other misconduct warranting discipline” or to issue a recommendation of disciplinary action, and therefore all proceedings in connection therewith are void as a matter of law. 11. As more fully set forth in the memorandum of points and authorities, the actions of the California Supreme Court in sustaining the finding that Dickstein engaged in “other misconduct warranting discipline,” and imposing terms of probation contained therein, are also void. 12. Dickstein is likely to succeed on the merits. The discipline of an attorney for “other misconduct warranting discipline” resides exclusively with the California Supreme Court under its “inherent jurisdiction.” In re Kelly, 52 Cal.3d 487, 494 (1990). The California Supreme Court’s “inherent jurisdiction” was never delegated to the State Bar Court, and said Court has no authority to conduct a hearing, much less to make a finding of guilt. In re Paguirigan, 25 Cal.4th 1, 8-9 (2001). 13. As more fully set forth in the memorandum of points and authorities, the State Bar Court was only delegated the Supreme Court’s statutory powers under Cal. Bus. & Prof. Code §§ 6101-6102, and said statutes nowhere authorize a proceeding for “other misconduct warranting discipline.” -3- Case No. 3:17-cv-02469-YGR Plaintiff’s Ex Parte Motion for TRO Case 4:17-cv-02469-YGR Document 29 Filed 06/07/17 Page 3 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14. Dickstein suffers a violation of due process every time the State Bar Court attempts to enforce its judgment that is void. This violation of such a fundamental right secured to Dickstein under the Fifth Amendment, made applicable to the State under the Fourteenth Amendment, is per se irreparable harm, as more fully set forth in the memorandum of points and authorities. Additionally, the State Bar’s public record that Dickstein is unethical constitutes libel and damages his reputation. Furthermore, the State is immune from damages for any judicial action taken. 15. In the absence of the requested temporary restraining order, Dickstein will suffer imminent violation of his right to due Process. As shown by Exhibit B, the State Bar Court is currently in the process of attempting to enforce its void order by way of a disciplinary action. 16. The State can have no interest in proceeding on a void judgment, and thus it has no equitable position to tip the balance of equities in its favor. The judgment the State Bar Court is attempting to enforce is a complete nullity. 17. Requiring the State’s Courts to only assert jurisdiction when a cause of action exists, which protects the public from the operations of a Kangaroo Court, is clearly in the public interest. A court’s exercise of unbridled discretion is a direct violation of due process of law, and a threat to the freedom which the Due Process Clause protects, as more fully set forth in the memorandum of points and authorities. WHEREFORE, for the reasons stated herein as supported by the memorandum of points and authorities and attached exhibits, Dickstein is entitled to a temporary restraining order and preliminary injunction to stop the prospective action of the State Bar Court from attempting to enforce a void judgment. MEMORANDUM OF POINTS AND AUTHORITIES A. Conviction Proceedings Cal. Bus. and Prof. Code §§ 6101-6102 are the statutory authority to subject attorneys convicted of a crime to discipline. Section 6101(a) provides that an attorney convicted of a felony or misdemeanor, involving moral turpitude constitutes a cause for disbarment or suspension. -4- Case No. 3:17-cv-02469-YGR Plaintiff’s Ex Parte Motion for TRO Case 4:17-cv-02469-YGR Document 29 Filed 06/07/17 Page 4 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Section 6101(b) requires various people: district attorneys, city attorneys, or other prosecuting attorneys, to forward the pendency of a criminal action against an attorney to the State Bar. Section 6101(c) requires the State Bar to forward notice of the conviction to the Supreme Court to establish the Supreme Court’s jurisdiction over such convictions. Section 6101(d) requires the Supreme Court to proceed on the conviction under Sections 6102. The statutory powers under Section 6101(2) are: a. If the record of conviction shows the crime involved moral turpitude or is a felony, the power to suspend the attorney until the time for appeal of the conviction has elapsed or there is a final appellate decision sustaining the conviction. Even in light of a final conviction, the Court, in the exercise of its discretion, may refuse to order suspension or may set aside a prior order of suspension. Section 6102(a), see Rules Proc. of State Bar, rule 5.342(A); b. Section 6102(b) defines when a conviction should be considered a felony or a misdemeanor. c. Section 6102(c) orders the Supreme Court to summarily disbar the attorney if the crime was a felony with the specific intent to deceive, defraud, steal, or make or suborn a false statement, or involved moral turpitude. Section 6102(c), see Rules Proc. of State Bar, rule 5.343. d. Section 6102(d) defines a felony for purposes of Section 6102. e. Section 6102(e) requires a hearing that comports with notice and opportunity to be heard for the purpose of determining whether the conviction involved moral turpitude: 1. if moral turpitude is found, the Supreme Court has the power to disbar or suspend the attorney; and 2. if no moral turpitude is found, the Supreme Court has the non-discretionary obligation to dismiss the proceedings. Section 6102(e); see Rules Proc. of State Bar, rule 5.344. f. Section 6102(f) grants the Supreme Court the discretion to refer the conviction proceeding, or any part thereof, to the State Bar for hearing, report, and recommendation. -5- Case No. 3:17-cv-02469-YGR Plaintiff’s Ex Parte Motion for TRO Case 4:17-cv-02469-YGR Document 29 Filed 06/07/17 Page 5 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. “Other Misconduct Warranting Discipline” 1. Complete Lack of Standards or Procedure Catastrophically missing from Bus. & Prof. Code §§ 6101-6102 is any mention whatsoever over anything called “other misconduct warranting discipline.” So too, catastrophically missing from any California statute is anything creating a cause of action for “other misconduct warranting discipline,” much less defining what it is or providing for notice and opportunity to be heard. Equally catastrophically missing from any California Rule of Court promulgated by the California Supreme Court is anything creating a cause of action for “other misconduct warranting discipline,” much less defining what it is or providing for notice and opportunity to be heard, or referring such a proceeding to the State Bar. Equally catastrophically missing from any State Bar rule or procedure is anything providing for the type of notice to be provided to the attorney or standard of burden of proof to be made by the Office of Chief Trial Counsel. 2. Supreme Court’s Inherent Jurisdiction The California Supreme Court has asserted in case law that when it comes to members of the State Bar, it is not bound by either statutes or rules, but can do whatever it wants in the exercise of its independent judgment: This court's original jurisdiction over disciplinary proceedings is not limited in any manner. For example, the court exercises its independent judgment as to the weight and sufficiency of the evidence and as to the discipline to be imposed. (E. g., Codiga v. State Bar (1978) 20 Cal.3d 788, 796, 144 Cal.Rptr. 404, 575 P.2d 1186; Doyle v. State Bar (1976) 15 Cal.3d 973, 980, 126 Cal.Rptr. 801, 544 P.2d 937; Brotsky v. State Bar, supra, 57 Cal.2d at p. 301, 19 Cal.Rptr. 153, 368 P.2d 697.) Hustedt v. Workers' Comp. Appeals Bd., 30 Cal.3d 329, 339 (Cal. 1981). This court possesses inherent powers to discipline a wayward attorney whether or not his misconduct involves moral turpitude. Our inherent powers are not limited by our interpretation of statutory provisions to the effect that criminal conduct unrelated to an attorney's professional responsibilities does not constitute grounds for discipline unless it involves moral turpitude, dishonesty or corruption within the meaning of section 6106. In re Rohan, 21 Cal.3d 195, 202 (1978). -6- Case No. 3:17-cv-02469-YGR Plaintiff’s Ex Parte Motion for TRO Case 4:17-cv-02469-YGR Document 29 Filed 06/07/17 Page 6 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The ‘other misconduct warranting discipline’ standard permits discipline of attorneys for misconduct not amounting to moral turpitude as an exercise of our inherent power to control the practice of law to protect the profession and the public. (See, e.g., In re Carr (1988) 46 Cal.3d 1089 [252 Cal.Rptr. 24, 761 P.2d 1011]; In re Rohan (1978) 21 Cal.3d 195, 203 [145 Cal.Rptr. 855, 578 P.2d 102] [lead opn. by Clark, J.] In re Kelly, 52 Cal.3d 487, 494 (1990). 3. Kangaroo Court The absence of a written standard to guide the decision making allows unlimited and unguided discretion to interpret what constitutes “other misconduct warranting discipline.” Such unbridled discretion constitutes a violation of due process under United States Constitution, amend. XIV. See Kaahumanu v. Hawaii, 682 F.3d 789, 802 (9th Cir. 2012).1 To meet constitutional muster, there must be standards to guide the decision maker. The standards to be applied must be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice. See Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 770 (1988). The doctrine forbidding unbridled discretion is violated when the decision maker relies upon no more than his purely subjective ideas of public welfare, peace, safety, health, decency, good order, morals or ethics. See Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969). 4. Delegation of Statutory Powers Over Conviction Proceedings to the State Bar The California Supreme Court delegated its Section 6101-6102 statutory powers to the State Bar Court when it promulgated Cal. Rules of Court, rule 9.10(a): The State Bar Court exercises statutory powers under Business and Professions Code sections 6101 and 6102 with respect to the discipline of attorneys convicted of crimes. (See Bus. & Prof. Code section 6087.) For purposes of this rule, a judgment of conviction is deemed final when the availability of appeal has been exhausted and the time for filing a petition for certiorari in the United States Supreme Court on direct review of the judgment of conviction has elapsed and no petition has been filed, or if filed the petition has been denied or the judgment of conviction has been affirmed. The State Bar Court must impose or recommend discipline in conviction matters as in other disciplinary proceedings. The power conferred upon the State Bar Court by this rule includes the power to place 1. See also Griffin v. Warden West Virginia State Penitentiary, 517 F. 2d 756, 757 (4th Cir. 1975); and Schiavo v. Bush, 885 So.2d 321 (Fla. 2004). -7- Case No. 3:17-cv-02469-YGR Plaintiff’s Ex Parte Motion for TRO Case 4:17-cv-02469-YGR Document 29 Filed 06/07/17 Page 7 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 attorneys on interim suspension under subdivisions (a) and (b) of section 6102, and the power to vacate, delay the effective date of, and temporarily stay the effect of such orders. Cal. Rules of Court, rule 9.10(a). 5. The Supreme Court Did Not Delegate Its Inherent Jurisdiction to the State Bar The California Supreme Court has made it abundantly clear that it did not delegate any of its judicial power/inherent jurisdiction to the State Bar, nor did the State Bar Act delegate to the State Bar, the Legislature, the executive branch, or any other entity, the Supreme Court’s inherent judicial authority over the discipline of attorneys. In re Attorney Discipline System, 19 Cal.4th 582 (1998). 6. The State Bar Only Has Subject Matter Jurisdiction “Over Other Misconduct Warranting Discipline” Upon Specific Referral from the Supreme Court Every instance of the term “other misconduct warranting discipline” appearing in California case law is from cases that originated in the Supreme Court prior to the delegation of its statutory powers to the State Bar. Each such case identifies the subject matter jurisdiction over “other misconduct warranting discipline” as deriving from, and residing exclusively with, the inherent authority of the Supreme Court. So too, each instance of “other misconduct warranting discipline” being litigated at the State Bar was because the Supreme Court made a case specific referral to the State Bar on that issue. In re Ross, 51 Cal.3d 451 (1990); In re Carr, 46 Cal.3d 1089 (1988); In re Rohan, 21 Cal.3d 195 (1978); In re Kelly, 52 Cal.3d 487 (1990). There is absolutely no existing record that can be produced by Defendants establishing any such referral from the Supreme Court to the State Bar regarding Dickstein! 7. The State Bar Had No Jurisdiction Over “Other Misconduct Warranting Discipline” and No Authority to Hold a Hearing The California Supreme Court has clearly stated the State Bar, in a conviction proceeding, must follow the statutory powers set forth in Sections 6101-6102, and has no power to conduct an evidentiary hearing on any subject not contained within Sections 6101-6102: Equally meritless is petitioner's assertion, first raised in her reply brief, that we delegated our inherent authority over attorney discipline to the State Bar Court, thus giving the State Bar Court discretion to conduct an evidentiary hearing even -8- Case No. 3:17-cv-02469-YGR Plaintiff’s Ex Parte Motion for TRO Case 4:17-cv-02469-YGR Document 29 Filed 06/07/17 Page 8 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 when, as here, the requirements of the summary disbarment statute are met, and to recommend to this court imposition of discipline less than disbarment. The first sentence of rule 951(a) of the California Rules of Court states that the ‘State Bar Court shall exercise statutory powers pursuant to Business and Professions Code sections 6101 and 6102 with respect to the discipline of attorneys convicted of crimes.’ (Italics added.) Section 6102 is clear: Disbarment is mandatory if, as in this case, the felony of which the attorney is convicted meets the statutory requirements. Petitioner nevertheless insists that the State Bar Court can hold an evidentiary hearing to determine whether discipline less than disbarment is warranted. In support, petitioner quotes this sentence in rule 951(a) of the California Rules of Court: ‘The State Bar Court shall impose or recommend discipline in conviction matters as in other disciplinary proceedings.’ Contrary to petitioner's assertion, it does not follow that because evidentiary hearings are held in cases not within section 6102(c), that they must also be held in cases that are within section 6102(c). The first sentence of Rule 951(a) directs the State Bar Court to ‘exercise statutory powers pursuant to Business and Professions Code section 6101 and 6102....’The rule cannot be read, as petitioner argues, as authorizing the State Bar Court to ignore the summary disbarment mandate of section 6102(c), one of the very provisions it is directed to implement. Thus, when an attorney's conviction meets the criteria of section 6102(c), the State Bar Court must recommend summary disbarment to this court. In re Paguirigan, 25 Cal.4th 1, 8-9 (2001). While there is no question the State Bar could have held an evidentiary hearing on whether or not Dickstein’s misdemeanor conviction involved moral turpitude, Defendants will not contest that the Office of Trial Counsel made no such claim, and both the Hearing Dept. and the Review Dept. specifically held the misdemeanor conviction did not involve moral turpitude. Therefore, under Paguirigan, the State Bar was required to follow the statutory mandate of Section 6102(e) and dismiss the conviction proceeding. Rather than do so, however, and in the absence of any jurisdiction to do so, it held a hearing on “other misconduct warranting discipline” in which the Office of Trial Counsel presented no evidence, and thereafter found Dickstein guilty and recommended discipline. 8. A Decision Rendered in the Absence of Jurisdiction is Void and Constitutes a Violation of Due Process of Law That Dickstein was entitled to due process in any proceeding which contemplates the deprivation of his license to practice law is clear. In the Matter of John Ruffalo, Jr., 390 U.S. 544, 550 (1968); In re Strick, 34 Cal.3d 891, 899 (Cal. 1983). Citation to authority is not necessary that due process requires, in the first instance, the existence of a cause of action as well -9- Case No. 3:17-cv-02469-YGR Plaintiff’s Ex Parte Motion for TRO Case 4:17-cv-02469-YGR Document 29 Filed 06/07/17 Page 9 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 as a court’s jurisdiction over the subject matter of that cause of action. The absence of any cause of action deprives any court of subject matter jurisdiction. Dickstein in not here seeking relief from the denial of procedural due process flowing from the complete lack of notice of what “other misconduct warranting discipline” he was required to defend. Dickstein is here seeking prospective injunctive relief for a violation of substantive due process flowing from the lack of jurisdiction of the State Bar over the entire cause of action for “other misconduct warranting discipline.” There is a complete absence of authority, in the State Bar, of subject matter jurisdiction over “other misconduct warranting discipline.” Indeed, there is no such thing as a cause of action for “other misconduct warranting discipline” anywhere; it is not defined in any statute, regulation or rule. It doesn’t exist anywhere except within the subjective opinions of the judges of the California Supreme Court. Thus, it is impossible for the State Bar to have any jurisdiction whatsoever. In California, as in every jurisdiction, an absence of authority over the subject matter of a proceeding renders any ensuing judgment void: As explained by our Supreme Court, ‘Essentially, jurisdictional errors are of two types. “Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” [Citation.] When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and “thus vulnerable to direct or collateral attack at any time.”’ People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660-661). A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. Subject matter jurisdiction ‘relates to the inherent authority of the court involved to deal with the case or matter before it.’ Lack of jurisdiction in this ‘fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ Carlson v. Eassa, 54 Cal.App.4th 684, 62 Cal.Rptr.2d 884, 888 (Cal. App. 6 Dist., 1997). Here the State Bar lacked even an arguable basis for exercising the Supreme Court’s inherent jurisdiction that was not delegated to the State Bar. The State Bar lacked subject matter jurisdiction to allege a cause of action for “other misconduct warranting discipline,” much less any legal authority to conduct a hearing, find guilt and recommend discipline, especially since no -10- Case No. 3:17-cv-02469-YGR Plaintiff’s Ex Parte Motion for TRO Case 4:17-cv-02469-YGR Document 29 Filed 06/07/17 Page 10 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 such cause of action exists. The proceedings are void. A void judgment is a nullity. It is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceeding founded upon it are equally worthless. It neither binds nor bars anyone. Bennett v. Wilson, 122 Cal. 509, 513-14 (Cal. 1898); Rochin v. Pat Johnson Manufacturing Co., 67 Cal.App.4th 1228, 1240 (Cal. 1998). C. IRREPARABLE INJURY There is no question but that the State Bar is continuing to enforce the void judgment against Dickstein, and such actions constitute a violation of due process guaranteed under the Fifth Amendment. Deprivation of constitutional rights for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373-74 (1976)(citing New York Times Co. v. United States, 403 U.S. 713 (1971)). See also Awad, 670 F.3d at 1131 (“Furthermore, when an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”)(citation omitted); Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) (“[W]hen reviewing a motion for preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.”); Bowman v. Township of Pennsauken, 709 F.Supp. 1329, 1348 (D.N.J.1989) (equal protection and due process violations establish irreparable harm); Cate v. Oldham, 707 F.2d 1176, 1188-89 (11th Cir.1983) (violation of First Amendment rights constitutes irreparable injury). The existence of a continuing constitutional violation constitutes proof of an irreparable harm. Preston v. Thompson, 589 F.2d 300, 303 n. 3 (7th Cir. 1978); see Does v. City of Indianapolis, No. 1:06-cv-865-RLY-WTL, 2006 WL 2927598, *11 (S.D. Ind. Oct. 5, 2006) (quoting Cohen v. Coahoma Cnty., Miss., 805 F. Supp. 398, 406 (N.D. Miss. 1992) for the proposition that “[i]t has been repeatedly recognized by federal courts at all levels that violation of constitutional rights constitutes irreparable harm as a matter of law.”); see also Back v. Carter, 933 F. Supp. 738, 754 (N.D. Ind. 1996) (“When violations of constitutional rights are alleged, further showing of irreparable injury may not be required if what is at stake is not monetary -11- Case No. 3:17-cv-02469-YGR Plaintiff’s Ex Parte Motion for TRO Case 4:17-cv-02469-YGR Document 29 Filed 06/07/17 Page 11 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 damages. This rule is based on the belief that equal protection rights are so fundamental to our society that any violation of those rights causes irreparable harm.”); see also Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) (finding irreparable harm when Plaintiffs’ Second Amendment rights were likely violated); see also Hodgkins v. Peterson, No. 1:04-cv-569-JDT-TAB, 2004 WL 1854194, * 5 (S.D. Ind. Jul. 23, 2004) (granting a preliminary injunction enjoining enforcement of Indianapolis’ curfew law as it likely violated the parents’ due process rights and finding that “when an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.). CONCLUSION Dickstein was and is being denied due process of law. He was tried in a Kangaroo Court and found guilty, and punished, for something that doesn’t exist in the law. He is entitled to a prospective injunction protecting him from the efforts of the State Bar to enforce that void judgment against him. Such prospective injunctive relief is clearly authorized in a 42 U.S.C. § 1983 action for redress for a violation of Dickstein’s fundamental right to due process of law against the Defendants sued herein in their official capacity. Doe v. Lawrence Livermore Nat. Laboratory, 131 F.3d 836, 839 (9th Cir. 1997). Dated June 7, 2017. /s/ Jeffrey A. Dickstein JEFFREY A. DICKSTEIN Pro se -12- Case No. 3:17-cv-02469-YGR Plaintiff’s Ex Parte Motion for TRO Case 4:17-cv-02469-YGR Document 29 Filed 06/07/17 Page 12 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jeffrey A. Dickstein E-mail: jdlaw47@yahoo.com 3263 S Erie Ave Tulsa OK 74135 Telephone: (918) 271-3374 Facsimile: None Jeffrey A. Dickstein, Plaintiff appearing Pro Se UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION JEFFREY A. DICKSTEIN, ) CASE NO. 3:17-cv-02469-YGR ) Plaintiff, ) FIRST AMENDED COMPLAINT ) FOR PROSPECTIVE INJUNCTIVE ) RELIEF UNDER 42 U.S.C. § 1983; ) AND TO CHALLENGE THE v. ) CONSTITUTIONALITY OF CAL. STATE ) BAR RULES 2.45, 5.420 AND CAL. RULE JAMES P. FOX, President of the Board of ) OF COURT 9.21 Trustees of the State Bar of California in ) his Official Capacity; Elizabeth Rindskopf ) Parker, Executive Director and Chief ) Executive Officer of the State Bar of ) of California, in her Official Capacity, ) ) Defendants. ) Comes now Plaintiff Jeffrey A. Dickstein (hereinafter referred to as “Dickstein”) who, for causes of action against the herein above named defendants, alleges as follows: JURISDICTION AND VENUE 1. This Court has jurisdiction pursuant to the provisions of 28 U.S.C. § 1331; 28 U.S.C. § 1343(a)(4), and 42 U.S.C. § 1983. 2. Venue is properly set in this Court pursuant to 28 U.S.C. §1391(b). PARTIES 3. Dickstein is an individual person resident in the State of Oklahoma. Dickstein has not been a resident of the State of California since approximately 1981. 1 FIRST AMENDED COMPLAINT EXHIBIT A, PAGE 1 Case 4:17-cv-02469-YGR Document 29-1 Filed 06/07/17 Page 1 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Defendant James P. Fox is the current President of the Board of Trustees of the State Bar of California which has its principal office located at 180 Howard St, San Francisco, CA 94105 within the above said judicial district. Said defendant is being sued herein in his official capacity. 5. Defendant Elizabeth Rindskopf Parker is the current Executive Director and Chief Executive Officer of the State Bar of California which has its principal office located at 180 Howard St, San Francisco, CA 94105 within the above said judicial district. Said defendant is being sued herein in her official capacity. FACTS COMMON TO ALL CAUSES OF ACTION 6. The State Bar of California (herein after referred to as “State Bar”) is a Public Corporation and is the administrative arm of the California Supreme Court regarding the discipline and membership of attorneys who are admitted and licensed to practice law in California. 7. The State Bar is governed by its Board of Trustees, whose directives regarding the licensing of attorneys, the regulation of the profession and practice of law in California, the enforcement of the California Rules of Professional Conduct for attorneys, and the discipline of attorneys who violate rules and laws, are carried out under the Office of the Executive Director and Chief Executive Officer. 8. Dickstein became a member of the California State Bar in December 1976. 9. During the course of providing representation to Claudia and Mark Hirmer in the criminal case of United States v. Hirmer, et al., Case No. 3:08-cr-00079-MCR (U.S.Dist.Ct., N.D. Fla.), Dickstein, was convicted on November 24, 2010, of a misdemeanor contempt for filing a motion to be relieved as counsel. 10. On January 22, 2011, Dickstein sent to the State Bar, by certified mail No. Z 416 168 248, return receipt requested, his notice of resignation from the State Bar, effective immediately. Dickstein has not practiced law since that date, either in California or any other jurisdiction, state or federal. 2 FIRST AMENDED COMPLAINT EXHIBIT A, PAGE 2 Case 4:17-cv-02469-YGR Document 29-1 Filed 06/07/17 Page 2 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. Said notice of resignation was received by the California State Bar, the return receipt showing the notice was signed for by Martha Prieto. 12. California licensed attorneys who are convicted of a crime are subject to “conviction proceedings” pursuant to Cal. Bus. & Prof. Code §§ 6101-6102. 13. Sections 6101-6102 conferred original jurisdiction over conviction proceedings to the California Supreme Court. 14. The California Supreme Court exercises “inherent jurisdiction” over attorneys who are members of the State Bar. 15. Acting under its “inherent jurisdiction,” the California Supreme Court from time to time referred conviction proceedings to the State Bar Court, including a referral to said Court to investigate whether a member attorney convicted of a crime also engaged in “other misconduct warranting discipline.” 16. By virtue of the issuance by the California Supreme Court of Cal. Rules of Court, rule 9.10(a), the California Supreme Court transferred the exercise of statutory powers under Bus. & Prof. Code §§ 6101-6102 to the State Bar Court. Thus, conviction proceedings are now instituted in the first instance in the State Bar Court. 17. The California Supreme Court at no time, past or present, granted any of its “inherent jurisdiction” to the State Bar Court. 18. Bus. & Prof. Code §§ 6101-6102 nowhere addresses “other misconduct warranting discipline.” 19. A cause of action for “other misconduct warranting discipline” appears in no statute, regulation, or rule promulgated by the Board of Trustees of the State Bar or California Rules of Court. 20. At no time herein mentioned did the California Supreme Court make a referral to the State Bar Court to investigate whether Dickstein engaged in “other misconduct warranting discipline.” 21. Subsequent to the Eleventh Circuit Court of Appeals affirming Dickstein’s 3 FIRST AMENDED COMPLAINT EXHIBIT A, PAGE 3 Case 4:17-cv-02469-YGR Document 29-1 Filed 06/07/17 Page 3 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 misdemeanor conviction for having filed a motion to be relieved as counsel, on January 17, 2012, the Review Dept. of the State Bar Court issued an order referring to the Hearing Dept. of the State Bar Court “under the authority of California Rules of Court, rule 9.10(a), to conduct a hearing and recommending the discipline to be imposed in the event that the hearing department finds that the facts and circumstances surrounding the misdemeanor violation of 18 United States Code section 401(3) (criminal contempt), of which Jeffrey Alan Dickstein was convicted, involved moral turpitude or other misconduct warranting discipline.” [Emphasis added.] 22. On January 27, 2012, the Hearing Dept. of the State Bar Court, issued and caused to be served on Dickstein a "Notice of Hearing on Conviction (Bus. & Prof. Code, §§ 6101, 6102)" in State Bar case no. 10-C-07932. 23. The Hearing Dept. of the State Bar Court, as well as the Review Dept. of the State Bar Court, specifically found Dickstein’s misdemeanor contempt did not involve moral turpitude. 24. Having so found, the State Bar Court was mandated to dismiss the conviction proceedings against Dickstein per Bus. & Prof. Code, § 6102(e). 25. Rather than dismissing said conviction proceeding, the Hearing Dept. of the State Bar Court, in the complete and absolute lack of jurisdiction over the nonexistent subject matter of “other misconduct warranting discipline,” held a one day hearing in which the State Bar Office of Trial Counsel presented no evidence, and thereafter the Hearing Dept. issued a recommendation for disciplinary action for “other misconduct warranting discipline.” 26. Thereafter, the Review Dept. of the State Bar Court, in the complete and absolute lack of jurisdiction over the nonexistent subject matter of “other misconduct warranting discipline,” made and forwarded to the California Supreme Court a recommendation for discipline for “other misconduct warranting discipline.” 27. Dickstein petitioned the California Supreme Court for review of the recommendation, and the California Supreme Court, on October 19, 2016, issued its final order sustaining the disciplinary recommendation of the State Bar Court, and imposed discipline in the 4 FIRST AMENDED COMPLAINT EXHIBIT A, PAGE 4 Case 4:17-cv-02469-YGR Document 29-1 Filed 06/07/17 Page 4 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 form of suspension, a requirement to comply with various rules of the State Bar, a requirement to pass the Multistate Professional Responsibility Examination, and costs. 28. On or about December 1, 2015, The State Bar sent Dickstein a bill for disciplinary costs in the amount of $2,459.00, a fee of $17,400.00 for the hearing before the Hearing Dept. and $400.00 for nonpayment of membership dues since Dickstein sent his notice of resignation to the State Bar. 29. On February 8, 2017, the Review Dept. of the State Bar Court issued its Order noting Dickstein did not provide proof of passage of the Multistate Professional Responsibility Examination, and indefinitely suspending Dickstein from the practice of law pending proof of his passage of said examination. 30. On May 18, 2017, the State Bar sent Dickstein a notice of its intent to commence disciplinary proceedings for Dickstein’s failure to comply with the requirements of Cal. Rules of Court, rule 9.20(c). 31. Each and every act of the State Bar and the California Supreme Court set forth herein above was done under the color of State law. FIRST CAUSE OF ACTION Prospective Injunctive Relief, 42 U.S.C. §1983 32. Dickstein realleges and incorporates herein by reference the allegations set forth in paragraphs 1 through 31 of this complaint. 33. Each and every act of the State Bar pertaining to “other misconduct warranting discipline” is null and void for the complete and absolute absence of subject matter over “other misconduct warranting jurisdiction” as is the final order of the California Supreme Court sustaining the void actions of the State Bar Court. 34. Subjecting Dickstein to legal proceedings in the complete absence of subject matter, and therefore lack of jurisdiction over “other misconduct warranting discipline” deprived Dickstein of due process of law guaranteed to him under the Fifth Amendment to the United States Constitution, made applicable to the State of California under the Fourteenth Amendment 5 FIRST AMENDED COMPLAINT EXHIBIT A, PAGE 5 Case 4:17-cv-02469-YGR Document 29-1 Filed 06/07/17 Page 5 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to the United States Constitution. 35. Each and every prospective act of the State Bar against Dickstein, such as further disciplinary action and attempts to collect the costs and fees are also void for want of subject matter jurisdiction, and will subject Dickstein to further violations of due process guaranteed to him under the Fifth Amendment to the United States Constitution, made applicable to the State of California under the Fourteenth Amendment to the United States Constitution. SECOND CAUSE OF ACTION State Bar Rules 2.45, 5.420 and Cal. Rules of Court, rule 9.21 are Unconstitutional as Violating the First Amendment to the United States Constitution; 42 U.S.C. § 1983 36. Dickstein realleges and incorporates herein by reference the allegations set forth in paragraphs 1 through 31 of this complaint. 37. The State Bar received Dickstein’s voluntary notice of resignation, but acting under the authority of State Bar Rules 2.45 and 5.420, and Cal. Rules of Court, rule 9.21, which require Dickstein to admit he is unethical, refused to accept his notice of resignation and continue to subject Dickstein to the payment of State Bar Membership Dues and the terms of the void orders of probation, all under threat of continuing disciplinary action and/or collection efforts, thereby affecting his reputation and his credit rating. 38. Even after the original disciplinary action under Cal. Bus. & Prof. Code §§ 6101- 6102 became final, the State Bar continues to this date to assert Dickstein is a member of the State Bar and subject to its rules and membership fees. 39. Compelled membership against will, violates Dickstein’s federally guaranteed right [not] to associate under the First Amendment to the United States Constitution, made applicable to the State of California under the Fourteenth Amendment to the United States Constitution. WHEREFORE, Dickstein moves the Court for: 1. A prospective injunction against the State Bar prohibiting it from taking any further action whatsoever with respect to the void decision finding him guilty of “other 6 FIRST AMENDED COMPLAINT EXHIBIT A, PAGE 6 Case 4:17-cv-02469-YGR Document 29-1 Filed 06/07/17 Page 6 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 misconduct warranting discipline”; 2. A prospective injunction against the State Bar from maintaining any public record that Dickstein was disciplined in State Bar case no. 10-C-07932 and/or suspended from the practice of law; 3. A prospective injunction against the State Bar from maintaining Dickstein on the roll of attorneys admitted to the State Bar; 4. For a declaration that State Bar Rules 2.45 and 5.420, and Cal. Rules of Court, rule 9.21 which compels membership in the State Bar against Dickstein’s federally guaranteed freedom not to associate is unconstitutional in violation of the First Amendment to the United States Constitution. 5. For an Order awarding Dickstein cost of suit herein; and 6. For such other and further relief as the Court deems proper. Dated: June 7, 2017. _/s/__________________________________ Jeffrey A. Dickstein Plaintiff pro se. 7 FIRST AMENDED COMPLAINT EXHIBIT A, PAGE 7 Case 4:17-cv-02469-YGR Document 29-1 Filed 06/07/17 Page 7 of 7 EXHIBIT B, PAGE 1 Case 4:17-cv-02469-YGR Document 29-2 Filed 06/07/17 Page 1 of 5 EXHIBIT B, PAGE 2 Case 4:17-cv-02469-YGR Document 29-2 Filed 06/07/17 Page 2 of 5 EXHIBIT B, PAGE 3 Case 4:17-cv-02469-YGR Document 29-2 Filed 06/07/17 Page 3 of 5 EXHIBIT B, PAGE 4 Case 4:17-cv-02469-YGR Document 29-2 Filed 06/07/17 Page 4 of 5 EXHIBIT B, PAGE 5 Case 4:17-cv-02469-YGR Document 29-2 Filed 06/07/17 Page 5 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jeffrey A. Dickstein E-mail: jdlaw47@yahoo.com 3263 S Erie Ave Tulsa OK 74135 Telephone: (918) 271-3374 Facsimile: None Jeffrey A. Dickstein, Plaintiff appearing Pro Se UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION JEFFREY A. DICKSTEIN, ) CASE NO. 3:17-cv-02469-YGR ) Plaintiff, ) [PROPOSED] ORDER ON PLAINTIFF’S ) EX PARTE MOTION FOR v. ) TEMPORARY RESTRAINING ORDER; ) ORDER TO SHOW CAUSE JAMES P. FOX, President of the Board of ) Trustees of the State Bar of California in ) his Official Capacity; ELIZABETH ) RINDSKOPF PARKER, Executive ) Director and Chief Executive Officer of the ) State Bar of of California, in her Official ) Capacity, ) ) Defendants. ) [PROPOSED] ORDER The ex parte motion of Plaintiff for a temporary restraining order and preliminary injunction having come before this Court, and having considered said motion and the points and authorities contained therein, as well as the exhibits attached thereto, and the Declaration of Plaintiff advising notice of the filing of said motion has been made, and GOOD CAUSE APPEARING, the Court finds: 1. The State Bar Court of California lacks subject matter jurisdiction over “other misconduct warranting discipline”; 2. The State Bar Court’s decision finding Plaintiff engaged in “other misconduct warranting discipline” in State Bar Court Case No. 10-C-07912, and its recommendation to the California Supreme Court recommending discipline to be imposed is void for want of subject -1- Case No. 3:17-cv-02469-YGR [Proposed] Order on Plaintiff’s Motion for TRO Case 4:17-cv-02469-YGR Document 29-3 Filed 06/07/17 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 matter jurisdiction; 3. The State Bar Court is currently in the process of commencing new disciplinary proceedings to enforce the void order; 4. The attempted enforcement of a void proceeding constitutes a denial of due process of law guaranteed by the Fifth Amendment to the United States Constitution; 5. The continuing violation of the Fifth Amendment right to due process constitutes irreparable injury; 6. The threatened commencement of a disciplinary action for Plaintiff’s alleged violation of the terms of probation flowing from the void order is imminent; 7. Plaintiff is likely to succeed on the merits of his complaint seeking prospective injunction relief as a result of the State Bar Court’s lack of jurisdiction over “other misconduct warranting discipline”; 8. The proceeding in the State Bar in the absence of jurisdiction being void, the balance of equities tip exclusively to Plaintiff; 9. The public has no interest in the enforcement of a void order; IT IS HEREBY ORDERED: Plaintiff’s motion for an ex parte temporary order is hereby granted. Defendants James P. Fox, the President of the State Bar of California Board of Trustees, and Elizabeth Rindskopf Parker, the Executive Director and Chief Executive Officer of the State Bar of California, together with their officers, agents, servants, employees, and attorneys, are hereby temporarily enjoined from commencing or continuing a disciplinary action against Jeffrey Alan Dickstein. This temporary restraining order will expire in fourteen days from its issuance unless continued by the issuance of a preliminary injunction. IT IS HEREBY FURTHER ORDERED that Defendants shall SHOW CAUSE on _______________, 2017, at ______.m. in Courtroom 1 - 4th Floor located at 1301 Clay Street, Oakland, California before the undersigned judge, Yvonne Gonzalez Rogers why a preliminary injunction should not issue. -2- Case No. 3:17-cv-02469-YGR [Proposed] Order on Plaintiff’s Motion for TRO Case 4:17-cv-02469-YGR Document 29-3 Filed 06/07/17 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS HEREBY FURTHER ORDERED that the Clerk of the Court shall forthwith issue summons to the Defendants named in the First Amended Complaint, and the United States Marshall shall forthwith serve the named Defendants by personally serving Sean T. Strauss, attorney for the California State Bar, at 180 Howard Street, San Francisco, CA 94105. IT IS HEREBY FURTHER ORDERED that since the General Counsel for the State Bar of California has entered an appearance in this case, that electronic service of this Order under the ECF shall constitute service on the Defendants. IT IS HEREBY FURTHER ORDERED that Plaintiff may attend the show cause hearing by telephone. IT IS SO ORDERED. Dated: _______________, 2017 ____________________________ YVONNE GONZALES ROGERS District Court Judge -3- Case No. 3:17-cv-02469-YGR [Proposed] Order on Plaintiff’s Motion for TRO Case 4:17-cv-02469-YGR Document 29-3 Filed 06/07/17 Page 3 of 3