The Clerk’s Office of the San Francisco-based Ninth Circuit Court of Appeals has rejected and refused to process a complaint against United States District Court judge Morrison C. England, TLR has learned.
The complaint alleged that Judge England’s failure to disclose to the plaintiff in the case of Sara Granda v. State Bar of California the nature of his and his wife’s (Tori Flourny-England) close relationship to the defendants (State Bar of California and Judy Johnson) or, alternatively, to recuse himself from the matter, constituted misconduct.
While the case of Sara Granda v State Bar of California was litigated before Hon. Judge Morrison England, serving on the board of directors of CaliforniaALL (which was in a partnership relationship with the State Bar of California) was Torie Flournoy-England, the esteemed and educated spouse of Hon. Morrison England. Judge Morrison England, as well as then-State Bar of California Executive Director Judy Johnson and State Bar employee Patricia Lee were part of CaliforniaALL’s Advisory Council. See above.
Knowledgeable sources maintain that the Clerk’s excuse for refusing to process the complaint is based on the purported lack of a declaration at the end of the complaint stating, “I understand that even if I successfully prove that the judge engaged in misconduct or is disabled, this procedure cannot change the outcome of my underlying case.”
These sources maintain, and it was previously shown here, that – even though it was irrelevant given that the complainant was not a party to the action at issue – the declaration was, in fact, included in the complaint as mandated by Local Rule 6.1(d), which requires the inclusion of the statement on the first page of the complaint.
Specifically, the following was placed on Page 1 of the complaint against United States District court judge Morrison C. England. (See also previously published story which contains said language)
“The undersigned Complainant was not a party to the litigation, and by filing this complaint is not seeking to change the outcome of the “underlying case” – i.e., the case presided over by the Judge England which is the subject of this complaint. However, in order to fully comply with the requirement stated in Local Rule 6.1(d) and the requirement to place the statement on page 1 of the complaint, I hereby state the following: “I understand that even if I successfully prove that the judge engaged in misconduct or is disabled, this procedure cannot change the outcome of my underlying case.”
The complaint alleged that Judge Morrison C. England is a United States District Court judge for the Eastern District of California who sits in Sacramento. Prior to assuming the role of a federal judge, he served as a judge with the Sacramento Superior Court. He is a graduate of McGeorge School of Law, also located in Sacramento.
In approximately 2005, as part of his community involvement and extra-judicial activities, Judge England became involved in programs initiated by Elizabeth Parker, dean of McGeorge, and Sarah Redfield, a visiting professor from New Hampshire, relating to the promotion of diversity within the legal profession. Ruthe Catolico Ashley, an assistant dean at the career office at McGeorge School of Law who later assumed a position as a Diversity Officer at CalPERS, was also involved in these activities.
The diversity initiatives instigated by McGeorge were both local and national in scope. The local program in Sacramento was entitled “PacificPathways.” The program to promote diversity on a national level became known as “Wingspread,” which evolved into a series, including Wingspread – Blackboard, Bench, and Bar and Wingspread – Delivered and Deliverable, and the like. Torie L. Flournoy, a school principal from Sacramento, was also involved in these programs at the local level.
Because Ruthe Ashley also served on the Board of Governors of the State Bar of California and Sarah Redfield served on the State Bar’s Council on Fairness and Access, the parties from Sacramento (namely, Parker, Ahley, Flournoy, Redfield and Judge England) became acquainted with individuals from the State Bar of California who are involved in matters relating to diversity, including Executive Director Judy Johnson, State Bar employee Patricia Lee, and Buchalter Nemer’s Holly Fujie. As such, it was common to observe the same participant names at various diversity-related events taking place around the country.
For example, over a 3 day weekend in Monterey on October 5-7, 2006, part of the Wingspread program ran concurrently with the State Bar of California’s annual convention. Some of the attendees included Judy Johnson, Holly Fujie, Patricia Lee, Ruthe Ashley, Torie L. Flournoy, Hon. Morrison C. England, Dean Elizabeth Parker, and Sarah Redfield. (See attachment 1.)
This event, Wingspread — Blackboard Bench and Bar, was organized by Sarah Redfield. Similarly, in June 2007, and also part of the “Wingspread” series, a summit was held in Honolulu, Hawaii at which Dean Elizabeth Parker, Hon. Morrison C. England, Sarah Redfield and Torie L. Flournoy were all in attendance. (See attachment 2.)
In approximately 2007, Ruthe Ashley and Munger Tolles & Olson’s Jeffrey Bleich served as vice-president and president of theCalifornia State Bar, respectively. During that time frame, an idea was formulated to replicate an existing entity that would also absorb large sums of money from utility companies and which would be used to promote diversity.
The original entity, the California Consumer Protection Foundation (CCPF), was secretly controlled for years by State Bar Executive Director Judy Johnson. Fines and settlements from proceedings before the CPUC and other cy pres funds of approximately $30 million dollars were funneled to CCPF, primarily from legal and administrative proceedings. Unlike the funds funneled to CCPF via cy pres funds or fines imposed by the CPUC, the funds flowing to the new entity would come from utility companies’ voluntary donations after they were urged by the CPUC and others to donate in order to further diversity.
As such, Peter Arth (Chief of Staff to then-president of the CPUC, Michael Peevey) invited Ruthe Ashley to a restaurant in San Francisco. As a result of the meeting, a new entity known as CaliforniaALL was formed as a Section 501(c)(3) charitable entity that would collect funds to theoretically be used to invest in promoting diversity.
CaliforniaALL, which came into existence in 2008 and was abruptly dissolved in 2010, was considered to have been in a partnership relationship with the State Bar of California. (See first page Attachment 3 - CaliforniaALL newsletter dated December 12, 2008 which consists of 4 pages.) In addition, the partnership stipulation between the State Bar and CaliforniaAll provided that the Board of Governors would appoint two of CaliforniaALL’s members to the Board of Directors.
Executive Director of the State Bar of California Judy Johnson,Patricia Lee , and Judge Morrison England were members of CaliforniaALL’s “Advisory Council” (see Attachment 3, page 4), affording Judy Johnson and Judge England numerous opportunities to meet and collude or, at a minimum, to create such an appearance.
CaliforniaALL obtained donations of almost $2 million, primarily from utility companies such as Sempra, AT&T, PG&E and, of course, Verizon Wireless.
In addition, Judy Johnson, Patricia Lee, Buchalter Nemer’s Holly Fujie , and Leslie Hatamiya colluded to transfer $780,000 sub-rosa from the State Bar of California Foundation (dba California Bar Foundation) to CaliforniaALL. (See attachment 4 — Cal Bar Foundation 2008 IRS Form 990, Schedule I, which lists $774,247 to CaliforniaALL).
The transfer of $774,247 from Cal Bar Foundation to CaliforniaALL was never acknowledged by CaliforniaALL. (See page 1 of Attachment 3, making no mention of Cal Bar Foundation as a Founding Funder. Similarly, it was never mentioned in the California Bar Journal or the NewsRoom of Cal Bar Foundation, where all other grants were heavily reported.)
It is worth noting that the California Bar Foundation is part and parcel of the State Bar of California, despite claims to the contrary and the contention that it is only affiliated with the State Bar. The fact of the matter is that the State Bar’s Board of Governors appoints all Foundation board members, including the president, and that the Executive Director of the California Bar Foundation reports directly to the Board of Governors and needs the Board’s approval to change any bylaws, for example.
In the meantime – after Judge England filed for summary dissolution in the Sacramento Superior Court, and after Judge England and Torie L. Flournoy wed, and after Torie Flournoy-England was appointed to serve as a member of CaliforniaALL’s board of directors, and while CaliforniaALL was in existence – a lawsuit was filed in the Eastern District of California in which the State Bar of California was named as the sole defendant. (See Attachment 3; page 4 which lists Torie Flournoy-England as board member of CaliforniaALL)
The action was filed by plaintiff Sara Granda and was titled Sara Granda v. the State Bar of California (Case Number 2:09-cv-02015-MCE). The matter was adjudicated by Judge England, who promptly
dismissed it. Neither Judge England nor the defendant or its counsel disclosed to Granda the ongoing relationship with CaliforniaALL, to wit:
1. CaliforniaALL and the defendant (State Bar of California) are business partners.
2. Judge England and the Executive Director of the State Bar of California (Ms. Judy Johnson) are members of CaliforniaALL’s advisory council.
3. Torie Flournoy-England, the spouse of Judge England, is a board member of CaliforniaALL, an entity that is a partner of the State Bar.
4. And, the unusual sub rosa transfer of $780,000 from defendant to CaliforniaALL.
By failing to make the disclosure mandated by these facts, and/or by failing to recuse himself from hearing this matter, Judge England committed misconduct, irrespective of the merits of the case or its outcome. As such, Judge England must be disciplined for not acting in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Even though the outcome of the Granda matter is irrelevant to a determination of Judge England’s misconduct, the following paragraphs are included to provide further background and to rebut any allegation that the relationship between the Englands and the defendant caused no prejudice to plaintiff Sara Granda, or that the failure to provide fair administration of justice was otherwise harmless. The fact of the matter is that the plaintiff was severely prejudiced by Judge England’s misconduct.
Granda, a 2009 graduate of the Davis school of Law, intended to sit for the July 2009 bar exam. The recent graduate, a quadriplegic who can only move her head and fingers, arranged for the California Department of Rehabilitation to pay the examination fee of $600, which it did via check. However, the State Bar of California stated that it only accepts payments made via credit card, and would not allow Granda to sit for the fast-approaching bar examination.
Plaintiff sensed unfairness and, like many recent law school graduates before her who approached federal court, she asked the federal court to award her both monetary and equitable relief in her lawsuit, which claimed that defendant State Bar of California violated the Americans with Disabilities Act.
The State Bar of California, which was represented by Michael von Lownedfelt of Kerr & Wagstaffe, as well as Lawrence Lee, Mark Gil-Torres and Rachel Grunberg (State Bar in-house attorneys) asserted that the State Bar was immune pursuant to the 11th Amendment.
In its filing, defendant mostly cited as authority cases adjudicated by district courts around the country, as there is no clear authority addressing the interactions between the ADA and Eleventh Amendment Immunity. Cases which held otherwise were not referenced by defendant, such as Stoddard v. Florida Board of Bar Examiners.
Judge England promptly dismissed the case without giving Granda the chance to amend or plead around the issue of Eleventh Amendment Immunity by, for example, naming Judy Johnson as a defendant in her individual capacity. In addition, Granda’s claim for monetary relief was completely ignored by the judge, and was never ruled upon.