Silverton v. Department of Treasury, 77-4656-AAH.

• Decision Date: 05 May 1978
• Docket Number: No. 77-4656-AAH.,77-4656-AAH.
• Citation: 449 F. Supp. 1004
• Court: U.S. District Court — Central District of California
• Parties: Ronald R. SILVERTON, Plaintiff, v. DEPARTMENT OF the TREASURY of the United States of America, Office of the Director of Practice, Leslie S. Shapiro, Director of Practice, John J. Corcoran, County Clerk and Clerk of the Superior Court of California, County of Los Angeles, the State Bar of California, the California State Board of Accountancy, Defendants.

449 F. Supp. 1004

Ronald R. SILVERTON, Plaintiff, v. DEPARTMENT OF the TREASURY of the United States of America, Office of the Director of Practice, Leslie S. Shapiro, Director of Practice, John J. Corcoran, County Clerk and Clerk of the Superior Court of California, County of Los Angeles, the State Bar of California, the California State Board of Accountancy, Defendants.

No. 77-4656-AAH.

United States District Court, C. D. California.

May 5, 1978.

Ronald R. Silverton, in pro per.

Robert M. Sweet, Los Angeles, Cal., for The State Bar of California.

Evelle J. Younger, Atty. Gen., by Alan A. Mangels, Deputy Atty. Gen., Los Angeles, Cal., for The California State Board of Accountancy.

HAUK, District Judge.

ORDER DISMISSING STATE BAR OF CALIFORNIA

The motion of defendant The State Bar of California to dismiss the above entitled action upon the grounds that the Court lacks jurisdiction over the subject matter and that the First Amended Complaint fails to state a claim upon which relief can be granted came on regularly for hearing on Monday, April 17, 1978, before the Honorable A. Andrew Hauk, United States District Judge Presiding in Courtroom No. 1 of the above entitled court. Plaintiff appeared pro se and defendant The State Bar of California ("State Bar") appeared by and through counsel, Robert M. Sweet. After considering the records and files herein, including Points and Authorities filed by the respective parties, and after taking judicial notice of certain matters as hereinafter specified, the Court, being fully advised in the premises, finds and concludes that plaintiff's First Amended Complaint and action against defendant State Bar are fatally defective for each and all the following reasons:

1. This court lacks subject matter jurisdiction to review alleged federal constitutional defects in the final order of the Supreme Court of California disbarring plaintiff from the practice of law in California (as reported in Silverton v. State Bar, 14 Cal.3d 517, 121 Cal.Rptr. 596, 535 P.2d 724 (1975)). Plaintiff's sole recourse from said order was by way of petition for writ of certiorari to the Supreme Court of the United States, which remedy plaintiff failed to pursue. Plaintiff may not in effect obtain such review here by the device of seeking this Court's injunction requiring defendant State Bar to expunge from its records (as an administrative arm of the Supreme Court of California) ". . . any and all reference to the disbarment of plaintiff from the practice of law." This is not the unusual or extreme case where this court may have power to order expunction of state arrest or criminal conviction records because the arrest was unlawful; because the arrest represented harassing action by the police; or because the statutes under which plaintiff suffered his criminal conviction and subsequent disbarment are themselves alleged to be unconstitutional; or because, for reasons beyond the control of the plaintiff, he has been denied fundamental constitutional rights without knowledge or prior opportunity to litigate such issues in state or federal courts. Shipp v. Todd, 568 F.2d 133 (9th Cir. 1978).

2. Plaintiff's First Amended Complaint fails to state a claim upon which relief can be granted against defendant State Bar because it is an agency or instrumentality in the judicial branch of government of the State of California, functioning as an administrative arm of the Supreme Court of California in matters relating to the admission, discipline, and reinstatement of attorneys; and defendant State Bar therefore is not a "person" amenable to suit within the purview of 42 U.S.C. § 1983. Clark v. State of Washington, 366 F.2d 678, 681 (9th Cir. 1966).

3. Plaintiff's First Amended Complaint fails to state a claim upon which relief can be granted against defendant State Bar under 42 U.S.C. § 1981 because plaintiff has not alleged that the criminal proceedings or the subsequent and independent disciplinary proceedings which culminated in plaintiff's disbarment were in any way the result of race discrimination. Vogel v. Torrance Board of Education, 447 F.Supp. 258 (C.D.Cal.1978); League of Academic Women v. Regents, 343 F.Supp. 636 (N.D.Cal.1972).

4. Plaintiff's First Amended Complaint fails to state a claim upon which relief can be granted against defendant State Bar because the issues relating to the alleged constitutional defects in plaintiff's criminal conviction and the subsequent disciplinary proceedings resulted in plaintiff's disbarment have been fully and finally litigated against plaintiff in prior state and federal court proceedings; and plaintiff's action is therefore barred by the doctrine of res judicata. In this respect, the court takes judicial notice of the following:

(a) In 1972, plaintiff was convicted in the Superior Court of California, County of Los Angeles, of the felonies of conspiracy to defraud and solicitation of grand theft (Sup.Ct. No. A-281235). The judgment of conviction was affirmed by the Court of Appeal of California in an unpublished opinion filed October 31, 1972. (People v. Silverton, 2nd Crim.No. 21868). The Supreme Court of California denied plaintiff's petition for hearing by order filed December 29, 1972. And the United States Supreme Court dismissed plaintiff's appeal for want of a substantial federal question. 412 U.S. 901 93 S.Ct. 2292, 36 L.Ed.2d 967 (1973), reh'g den., 414 U.S. 882 94 S.Ct. 39, 38 L.Ed.2d 129 (1973).

(b) As is reflected by the "Statement of the Case" in plaintiff's points and authorities in opposition to motion to dismiss, after his criminal conviction became final, plaintiff filed a habeas corpus proceeding in the Superior Court of California alleging, inter alia, that he did not receive a fair trial in the criminal action in that the judge allegedly (i) considered matters (i. e., "contentions") regarding plaintiff's guilt which he heard outside the courtroom and in the absence of plaintiff or his coun

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