Wednesday, December 5, 2018
By a MetNews Staff Writer
California’s irrebuttable presumption that factual determinations made in another state’s attorney disciplinary proceeding are correct does not, on its face, contravene due process, the Ninth U.S. Circuit Court of Appeals has held.
In a memorandum opinion filed Monday, a three-judge panel did, however, give the appellant, Contra Costa attorney Steven J. Foster, another chance to show that the statute in question—Business & Professions Code §6049.1—cannot constitutionally be applied to him. Foster’s quest is to avoid imposition of discipline here based on a censure he received last year from the Colorado Supreme Court.
Under the California statute, a final order of discipline in a sister jurisdiction “shall be conclusive evidence that the member is culpable of professional misconduct in this state” and the only defenses are that the conduct that was found would not be disciplinable here or that the out-of-state proceedings “lacked fundamental constitutional protection.”
In light of the presumption, Foster said in his complaint filed in the U.S. District Court for the Northern District of California, he “will not be able to fully defend himself under the reciprocal discipline procedures.” He asserted:
“In any prosecution brought by the State Bar, Plaintiff will not have the right to present witnesses and evidence before a judge that is not barred from ruling on his due process constitutional claims.”
District Court Judge Jeffrey S. White dismissed the action without leave to amend.
The Ninth Circuit panel said of Foster’s contention that the statute, on its face, denies due process:
“The district court properly dismissed Foster’s facial due process challenge because Foster failed to allege facts sufficient to state a plausible claim.”
The panel drew attention to the Ninth Circuit’s 2002 decision in In re Kramer, citing it for the proposition that the “function of a court seeking to impose reciprocal discipline is ‘far different’ from that of a court seeking to impose discipline in the first instance.”
The opinion partially reinstates Foster’s action, saying:
“Dismissal of Foster’s as-applied due process claim was proper because it was not prudentially ripe….However, a dismissal for lack of subject matter jurisdiction should be without prejudice….We affirm the dismissal, and instruct the district court to amend the judgment to reflect that the dismissal of this claim is without prejudice.”
The case is Foster v. Cantil-Sakauye, 17-17332.
Foster brought his proceeding in the U.S. District Court for the Northern District of California on April 17, 2017, seeking to block proceedings from being commenced by the State Bar of California based on a censure he received earlier in the year from the Colorado Supreme Court. The discipline there was predicated on Foster entering into a business deal with a client without adhering to procedural requisites.
He expressed apprehension that the State Bar here would simply copy the discipline imposed in Colorado, as it did once before.
The State Bar did institute new proceedings against Foster on Sept. 20, 2017. On Feb. 15 of this year, then-Hearing Judge Lucy Armendariz (now a Los Angeles Superior Court judge) recommended that he be suspended from law practice for one year, with the suspension stayed, and that he be placed on probation, with conditions.
Proceedings in the State Bar Court Review Department have been in abeyance pending the federal appeals court’s decision.
Foster was admitted to the State Bar of California on Dec. 11, 1987; assumed inactive status on Jan. 1, 1992, was suspended on July 31, 1995 based on a failure to pay State Bar dues, and resigned from membership on April 1, 2001.
The lawyer applied on April 30, 2004, for reinstatement to membership in the State Bar of California. State Bar Court Judge Richard A. Honn recommended that the application be granted.
In his Sept., 24, 2004 decision, he recited:
“Since the effective date of his resignation to the date of filing his petition for reinstatement, Petitioner has been the president of Steven J. Foster, P.C., an entity providing legal services. At no time has the Colorado State Bar disciplined Petitioner.”
Foster regained active membership on Jan. 13, 2005.
On Dec. 6, 2011, he received a censure in Colorado for filing, for the purpose of harassing his ex-wife, a sixth appeal of family law orders based on the same contentions that had been rejected in his fifth appeal. Based on the facts adduced in the Colorado proceeding, he received a public reproval here on Sept. 26, 2014.
There is also a Steven J. Foster in Butte County. He has no record of discipline.
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