Rosenthal v. Justices of the Supreme Court of California

• Decision Date: 01 August 1990
• Docket Number: No. 88-15709,88-15709
• Citation: 910 F.2d 561
• Parties: 116 Lab.Cas. P 10,334 Jerome B. ROSENTHAL, Esq., Plaintiff-Appellant, v. JUSTICES OF THE SUPREME COURT OF CALIFORNIA; Allen Broussard; Edward Panelli; John A. Arguelles; David N. Eagleson; Mildred Lillie; Vaino Spencer; Marcus Kaufman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 561

910 F.2d 561

116 Lab.Cas. P 10,334

Jerome B. ROSENTHAL, Esq., Plaintiff-Appellant, v. JUSTICES OF THE SUPREME COURT OF CALIFORNIA; Allen Broussard; Edward Panelli; John A. Arguelles David N. Eagleson; Mildred Lillie Vaino Spencer; Marcus Kaufman, Defendants-Appellees.

No. 88-15709.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 13, 1990.

Decided Aug. 1, 1990.

Jerome B. Rosenthal, Los Angeles, Cal., pro se.

Daniel G. Stone and Cathy A. Neff, Deputy Attys. Gen., Sacramento, Cal. and Lawrence C. Yee, State Bar of California, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before HERBERT Y.C. CHOY, THOMAS TANG and ROBERT R. BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Rosenthal appeals the district court's dismissal of his action against the justices of the California Supreme Court and officers of the state bar association arising out of his disbarment. We affirm.

Rosenthal was disbarred by the California Supreme Court on the recommendation of the Hearing Panel of the California State Bar and its Review Department. See Rosenthal v. State Bar of California, 43 Cal.3d 612, 238 Cal.Rptr. 377, 738 P.2d 723 (1987) (en banc), appeal dismissed, 488 U.S. 805, 109 S.Ct. 35, 102 L.Ed.2d 15 (1988) (Rosenthal I ). The recommendation was made after over ten years of hearings and proceedings following a complaint filed against Rosenthal by a former client, Doris Day, and her family. See id., 43 Cal.3d at 615-21, 238 Cal.Rptr. at 379-83, 738 P.2d at 725-29. Rosenthal had represented Day and her husband, Martin Melcher, for 18 years, until Melcher's death in 1968. See Day v. Rosenthal, 170 Cal.App.3d 1125, 217 Cal.Rptr. 89 (App.Ct.1985), cert. denied 475 U.S. 1048, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986). During that period, Rosenthal committed breaches of professional ethics that are difficult to exaggerate. ¹ Rosenthal has also been disbarred by this court and appears before us pro se. In re Rosenthal, 854 F.2d 1187, 1188 (9th Cir.1988) (Rosenthal II ).

Rosenthal brought this action in federal court to allege constitutional and statutory defects in the state disbarment proceedings. ² First, he argues that the statute authorizing judicial review of the bar association's recommendation impermissibly shifts the burden to him to show the evidence is insufficient to support disbarment. See Cal.Bus. & Prof.Code Sec. 6083(c). Second, he argues that the statute authorizing admission of documents from other disciplinary proceedings violates the confrontation clause. See Cal.Bus. & Prof.Code Sec. 6049.1(a). Third, he alleges that Chief Justice Malcolm Lucas of the California Supreme Court, who had earlier recused himself from the case, acted without jurisdiction when he signed an order on behalf of the court denying Rosenthal's petition for rehearing, violating 42 U.S.C. Sec. 1983. Finally, he charges that the Bar Association violated federal labor law, specifically 29 U.S.C. Sec. 411(a)(5), by not providing him a "full and fair hearing."

The district court rejected these arguments and dismissed the claims with prejudice. We review the district court's dismissal of a complaint de novo. Kruso v. Int'l Telephone and Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989).

I

Rosenthal first argues that Cal.Bus. & Prof.Code Sec. 6083, which places upon the petitioner the burden to prove to the state Supreme Court that the bar association's recommendation of disbarment is erroneous, ³ violates both the principle of presumption of innocence and the command of the 14th Amendment that the state prove every element of an offense beyond a reasonable doubt.

We reject both of Rosenthal's attacks upon Section 6083(c). A lawyer disciplinary proceeding is not a criminal proceeding. See, e.g., Standing Comm. on Discipline v. Ross, 735 F.2d 1168, 1170 (9th Cir.), cert. denied, appeal dismissed, 469 U.S. 1081, 105 S.Ct. 583, 83 L.Ed.2d 694 (1984). As a result, normal protections afforded a criminal defendant do not apply. The principle of presumption of innocence is a creature of a criminal proceeding; and hence, does not apply in a lawyer disbarment proceeding. Similarly, Section 6083(c) does not violate the command of the 14th Amendment that the state prove every element of an offense beyond a reasonable doubt. That command, which arises from Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1975), applies only in criminal proceedings, not in a lawyer disbarment such as this one.

The lawyer subject to discipline is entitled to procedural due process, including notice and an opportunity to be heard. In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117 (1968); Ross, 735 F.2d at 1170. California provides this and other protections. It allows the lawyer to call witnesses and cross-examine them. Emslie v. State Bar of California, 11 Cal.3d 210, 226, 113 Cal.Rptr. 175, 183-84, 520 P.2d 991, 999-1000 (1974) (en banc). At the hearing, the burden is on the state to establish culpability "by convincing proof and to a reasonable certainty"; "all reasonable doubts must be resolved in favor of the accused." Id.; see also Arden v. State Bar of Calif., 43 Cal.3d 713, 724, 239 Cal.Rptr. 68, 73, 739 P.2d 1236, 1241 (1987) (en banc). ⁴ The California Supreme Court, in deciding whether to accept the bar's recommendation, grants the bar's findings "great weight" but is not bound by them. Id. It must "independently examine the record, reweigh the evidence and pass on the sufficiency." Franklin v. State Bar of Calif., 41 Cal.3d 700, 708, 224 Cal.Rptr. 738, 742, 715 P.2d 699, 703 (1986) (en banc). Once again, "all reasonable doubts will be resolved in favor of the accused." Emslie, 11 Cal.3d at 220, 113 Cal.Rptr. at 179, 520 P.2d at 995. The petitioner need only show that the charges "are not sustained by convincing proof and to a reasonable certainty." Id.

The State of California provides attorneys subject to discipline with more than constitutionally sufficient procedural due process. We decline to hold this statute unconstitutional.

II

Rosenthal next argues that the California statute authorizing admission of documents from other disciplinary proceedings violates the confrontation clause. Cal.Bus. & Prof.Code Sec. 6049.1(a) provides:

In any disciplinary proceeding under this Chapter, a certified copy of a final order made by any court of record ... determining that a member of the State Bar committed professional misconduct ... shall be conclusive evidence that the member is culpable of professional misconduct in this state....

At the time the proceeding against Rosenthal was commenced, the statute provided that:

authenticated copies of findings, conclusions, orders or judgments made or entered in any court of record ... in any disciplinary proceeding therein against the same person, shall be admissible....

The former statute also allowed admission of the "authenticated transcript of the testimony taken in ... out-of-state proceedings." Id. Rosenthal argues that these provisions deny him the right to cross-examine witnesses from other proceedings and violate the sixth amendment.

The state court decision in this matter shows that Rosenthal had no prior record of discipline. See Rosenthal I, 43 Cal.3d at 621, 238 Cal.Rptr. at 383, 738 P.2d at 729. Rosenthal identifies no record of a disciplinary proceeding against him that was admitted at his hearing. He points to the findings of a bankruptcy court that were admitted over his objection, arguing that because they were findings they fall under Sec. 6049.1. The findings were, however, admitted under a different statute, namely, Cal.Bus. & Prof.Code Sec. 6049.2. See Rosenthal I, 43 Cal.3d at 633, 238 Cal.Rptr. at 391, 738 P.2d at 737. Rosenthal's challenge to that statute was rejected by the California Supreme Court because he was a party to all the underlying proceedings and had a full opportunity to cross-examine adverse witnesses there. Id. He does not challenge Sec. 6049.2 here.

We reject Rosenthal's confrontation clause claim. The confrontation clause is a criminal law protection. Therefore, it does not apply to a disbarment case. In any event, we agree with the district court that Rosenthal has shown no "injury in fact," much less a "concrete and particularized one," flowing from application of Sec. 6049.1, the statute he challenges in this action. He fails to meet even the threshold test of standing to raise this claim. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 79-80, 98 S.Ct. 2620, 2633-34, 57 L.Ed.2d 595 (1978).

III

Rosenthal next argues that Chief Justice Lucas, who recused himself from Rosenthal's case in the California Supreme Court, violated Rosenthal's constitutional rights by nevertheless signing on behalf of the court an order denying Rosenthal's petition for rehearing. To the extent this was error, it was harmless, for the entire state supreme court affirmed its decision in a second order signed by Acting Chief Justice Arguelles five months later. The second order specified that the decision to deny Rosenthal's petition for rehearing was unopposed. Furthermore, even if the order signed by Chief Justice Lucas were void, see Giometti v. Etienne, 219 Cal. 687, 28 P.2d 913, 914 (1934), rehearing would automatically have been denied when the time for granting Rosenthal's petition expired on September 11, 1987.

Any injury to Rosenthal caused by Chief Justice Lucas' signing of the order was cured by the later order. But even if it were not, and the Chief Justice acted in excess of his jurisdiction, we agree with the district court that he remained immune from suit. A judge is immune from suit under 42 U.S.C. Sec. 1983 for acts in excess of his jurisdiction, so long as the acts themselves were judicial. Stump v. Sparkman, 435 U.S. 349, 355-57, 363 n. 12, 98 S.Ct. 1099, 1104-05, 1108 n. 12, 55 L.Ed.2d 331 (197...