Lawyer, Slammed for Insulting Bench Officer, Seeks Aid

Monday, September 21, 2020

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Lawyer, Slammed for Insulting Bench Officer, Seeks Aid

U.S. District Court Asked to Block State Bar Disciplinary Proceedings Based on Attorney Denominating Court Commissioner’s Fee Order Using Term That Refers to Sex-Crazed Demon in Female Form

By a MetNews Staff Writer

A lawyer who was upbraided by Div. One of the Fourth District Court of Appeal for characterizing the ruling of a San Diego Superior Court commissioner in terms of a mythological female demon with unusual sexual proclivities, and was reported by the court to the State Bar, on Friday asked the U.S. District Court for the Central District of California to block disciplinary proceedings against him.

The Feb. 28, 2019 Court of Appeal opinion, authored by Acting Presiding Justice Richard D. Fybel, said, in a published portion:

“[A]s required by the California Code of Judicial Ethics, we are reporting plaintiff’s attorney Benjamin Pavone to the California State Bar for manifesting gender bias. The notice of appeal signed by Mr. Pavone on behalf of plaintiff referred to the ruling of the female judicial officer as ‘succubustic.’ A succubus is defined as a demon assuming female form which has sexual intercourse with men in their sleep. We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period.”

Fybel noted:

“Webster’s Third New International Dictionary (2002) at page 2282, column 3, defines the term ‘succubus’ as ‘1: a demon assuming female form to have sexual intercourse with men in their sleep—compare incubus 2: demon, fiend 3: strumpet, whore.”

In Friday’s memorandum of points and authorities in support of injunctive relief, Pavone, of the San Diego firm of Pavone & Fonner, insisted that federal abstention from meddling in state proceedings, mandated by the U.S. Supreme Court’s 1971 decision in Younger v. Harris, is not required, explaining:

‘Normal Outcome’

“The normal outcome when a litigant seeks to interrupt a state court action is that he urns into the concrete wall of Younger. Not here. Plaintiff filed this action before the state action. Younger is not a bar. Consequently. Plaintiff is entitled to adjudicate this case in this, the earlier forum, which is also the one that is most expert in First Amendment constitutional law.”

Pavone filed his action on Aug. 11. That same day—but later in the day, if the timing Pavone recites is accurate—disciplinary charges were filed by the Office of Chief Trial Counsel in the State Bar Court. It sets forth four counts of conduct in alleged violation of Business and Professions Code §6068(b) which requires attorneys to “maintain the respect due to the courts of justice and judicial officers.”

All of the counts relate to criticisms Pavone leveled at San Diego Superior Court Commissioner Carmen Luege, who granted none of the approximately $160,000 in attorneys fees he had requested in a gender bias case, questioning the reliability of his time records. One count is based on the April 14, 2017 notice of appeal, in which Pavone said:

Wording of Notice

“Pursuant to Code of Civil Procedure section 904.1 et seq., Plaintiff Fernando Martinez hereby appeals from the lower court’s disgraceful order dated November 30, 2016, as incorporated into a reported judgment dated February 21, 2017, and as such, technically appeals from that judgment. The ruling’s succubustic adoption of the defense position, and resulting validation of the defendants pseudohennapliroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners.”

Pavone argued in Friday’s memorandum:

“The controversial part of the sentence, ‘the ruling’s succubustic adoption of the defense position.’ does not refer to the judge. It’s an adjective describing the ruling.”

Even if taken to apply to Luege, he asserted, the “succubus charge is not actionable as a disciplinary matter since such textbook hyperbole is protected by the First Amendment.”

The lawyer remarked:

“Here, no one could seriously think that Commissioner Luege is actually a succubus. No one could actually think any living person is a fictional creature from medieval folklore, that has no bodily form, that assumes a voluptuous female human form at night, and in doing so, sprouts wings and a tail, before seducing men. Its not a factual accusation.”

Overbreadth, Vagueness

Challenging the constitutionality of §6068(b), Pavone pointed to the Ninth U.S. Circuit Court of Appeals’ 1996 opinion in United States v. Wunsch which found that a then-existing provision in §6068 barring “offensive personality” was Liegeoverly broad and void for vagueness. He commented:

“A perusal of the state case law reveals that 6068(b) has just as many applications, is just as broad, is just as vague, sweeps in just as much permissible speech, and is supported by a body of California case law that…interposes no limits on its reach. Mild criticisms are violations. Opinions are violations. Criticism apart from the judge’s moral character are considered violations. Criticism that is part of an appellate attorney’s job can result in charges.”

First Amendment Shunned

The lawyer went on to say:

“Established principles of federal constitutional law, such as the latitude to engage in rhetorical hyperbole, are rarely recognized and almost never applied on the state side.

“In this case, instead of undertaking a serious First Amendment analysis based on the right of lawyers to dream up ‘lusty and imaginative’ criticisms, the state judges in this case decided to nationally lambast undersigned counsel as a misogynist, while cynically burying in a footnote the legal reality that the gender rule they were enforcing post-dated the offense in question.

“…[T]he failure of the California case law, including in this case, to produce 6068(b) opinions that respect First Amendment limitations leave it open to be enforced in a vague, constitutionally unacceptable manner. It should be invalidated as a result.”