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Case 8:08-cv-00625-DSF-CW

Document 1

Filed 06/06/08

Page 1 of 54

FILEt)

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PHILIP A. PUTMAN, State Bar No. LAW OFFICE OF PHILIP A. PUTMAN 3303 HARBOR BLVD. SUITE K-11

COSTA

Telephone:

MESA,

CA

92626

(7l4) 848-5297 (714) 963-8035

4 Facsimile:

5

Attorney

Pro

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6

7

8

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10

FOR

UNITED

STATES

DISTRICT

THE

CENTEAL

DISTRICT

OF

CENTRAL

DIVISION

COURT

CALIFORNIA

II

PHILIP

A.

12

13

14

15 STATE

BAR

BAR

COURT

16 BAR

BOARD

PUTMAN,

Plaintiff(s),

) Case
)

No.

SACV08-625 DOC (MLGx)

)

iVERIFIED

COMPLAINT

FOR

v.

JDECLARATORY

RELIEF,

INJUNCTIVE

) RELIEF,

AND

DAMAGES;

AND

OF

CALIFORNIA;

STATE

)REQUEST

FOR

JURy

TRIAL

OF

CALIFORNIA;

STATE

)

OF

GOVERNORS;

LAWYERSi

17 SSISTANCE

GASTELUM;

18 SPENDLOVE;

19

DOES

1

to

PROGRAM;

ROBERT

)Filed:

PAM

POLEY;

LISA

)

and

)

100

.)

)

20 L-

21

22

Plaintiff

 

)

Defendant(s).

)

PHILIP

A.

PUTMAN

hereby

alleges

as

follows:

INTRODUCTION

24

26

27

28

1.

California

Amendments

2 .

This

complaint

seeks

to

prohibit

the

Sate

Bar

of

(State

Bar)

from

violating

the

First

and

Fourteenth

to

the

U.S.

Constitution.

 
 

-

The

Complaint

seeks

an

order

declaring

Cal.

B&P

§

6068(b)

unconstitutional .on

the

grounds

of

lack

of

notice,

denial

of

due

process,

and

violation

of

the

First }'\mendment of

COMPLAINT AND RFnTTF'<T enD n Tn" ~n'"

Case 8:08-cv-00625-DSF-CW

Document 1

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Page 2 of 54

Page ID #:2

the u.s.

Constitution.

The

complaint

seeks

a

temporary

restraining

order,

preliminary

and

permanent

injunction

,

J

4

5

6

7

8

9

10

11

12

,

1 -'

14

15

16

17

18

19

20

21

22

7'

--'

24

25

26

27

28

restraining the

State

Bar

of

California,

its

Board

of

Governors

and

the

Defendants

and

each

of

them

from

enforcing

and

applying

B&P

Code

§

6068(b).

3.

This

complaint

seeks

an

order

declaring

B&P

Code

§

6106

unconstitutional

on

the

grounds

of

a

violation

of

the

First

Amendment

to

the u.s.

Constitution

and

vagueness.

The

complaint

seeks

a

temporary

restraining

order,

preliminary

and

permanent

injunction restraining the State Bar of California, its Board of

Governors,

and

and

the

§

Defendants

6106.

and

each

of

them

from

enforcing

applying

B&P

4 .

JURISDICTION AND VENUE

under

Jurisdiction

exists

28

U.S.C.

§§

1331,

1367,

and

2201-02.

5. Venue-is

proper

in

this

district

pursuant

to

28

U.S.C.

§ 1391(b)

because

at

all

times

herein,

Defendants

resided,

 

maintained

office

and

conducted

business

in

the

Central

District,

Western

Division.

 
 

THE

PARTIES

 
 

6.

Plaintiff,

PHILIP

PUTMAN

is

a

natural

person

residing

in

Huntington

Beach,

California.

PHILIP

PUTMAN

is

seventy

three

(73)

years

7 .

old

and

suffers

from

California

quasi-government

diabetes

State

and

Bar

entity

Defendant,

and

is

a

is

Corporation

Supreme

Court.

other maladies.

a

under

California

the

State

a

8. Defendant

public

corporation

State

Bar

Court

of

California

established

by Article

VI

(4)

(State

9

of

Bar)

the

AN

sT

n

T RV

lS

t,

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California Constitution and B&P Code §

6001.

Pursuant

to

B&P

Code §

6001,

it

"can

sue

and

be

sued",

"dispose

of

.,.

all or

portion ' of its income

or

revenue

from

membership

fees

paid

in

addition to mandatory dues

set

by

the

Legislature

pursuant

to

B&P

Board of Governors (B&P Code §§ 6008.4, 6010), which makes rules

and regulations

Code

§

6140

(§6001(g)).

(B&P

Code

§

The

6025)

State

and

Bar

acts

through

the

State

its

Bar

operates

(B&P

Code

9. Defendant,

§§

6028-6031).

Board

of

Governors

(Board),

with

the

approval of the California Supreme Court,

enforce "rules of professional conduct" (rules) for members of

the State Bar (B&P Code § 6076).

Court,

"willful breach of

the

the

can

formulate

by

the

and

After approval

enforce

to

for

Supreme

to

not

the

Board

by

Court

has

the

power

public

to

a

rules"

Supreme

"reproval,

a

or

from

private

or

recommend

a

period

suspension

practice

exceeding

three

years"

(B&P

Code

§

6077).

 

10.

Defendant,

Lawyers

Assist-ance

Program

("LAP")-

is

a

program

that

supports

recovering

attorneys

in

their

rehabilitations

and

competent

practice

of

law.

11.

Defendant

Robert

Gastelum

is

a

Case

manager

with

LAP,

and

is

a

member

of

the

LAP

evaluating

committee.

Defendant

Robert

Gastelum

is

licensed

as

a

Marriage

and

Family

Theiapist

(MFT. )

 
 

12.

Defendant

Pam

Poley

is

a

Clinical

Director

at

LAP,

and

a

member

of

the

LAP

evaluating

committee.

Defendant

Pam

Poley

is

licensed

as

an MFT.

 

13. Defendant

Lisa

facilitator

and

a

Spendlove,

is

member

of

the

a

LAP

natural

person,

is

committee.

a

evaluating

16

17

18

19

20

21

22

23

24

25

26

27

28 group

3

COMPLAINT AND REQUEST FOR JURY TRIAL

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14.

The

true

name

and

capacities

of

those

defendants,

whether

individual,

corporate,

associate,

or

otherwise

named

3

4

5

6

7

8

9

10

11

13

14

15

16

herein

as

DOES

1

through

100

inclusive,

are

unknown

to

PHILIP

PUTMAN,

who

therefore

sues

said

defendants

by

fictitious

names.

PHILIP

PUTMAN

will

amend

this

Complaint

to

allege

the

true

names

and

capacities

when

they

have

been

ascertained.

 

15.

PHILIP

PUTMAN

is

informed

and

believes,

and

thereon

alleges

that

each

of

the

DOE

defendants

is

responsible

in

some

manner

for

the

caused

of

action

herein

alleged.

 
 

16.

PHILIP

PUTMAN

is

informed

and

believes,

thereon

 

alleges,

that

at

all

times

herein mention

each

of

the

Defendants

was

the

agent

and

employee

of

each

of

the

remaining

defendants,

and

in

doing

the

things

hereinafter

alleged,

was

acting

within

the

course

and

scope

of

such

agency

and

employment.

 

STANDING

 

17. Plaintiff

is

directly

affected

by

the

actions

of

the

17

18

19

20

21

)'

--'

24

California

Code

Plaintiff.

State

and

Bar

when

a

the

disciplinary

California

State

Bar

enforced

the

B&P

§

6106

imposed

also

may

Bar.

action

against

18.

Plaintiff

who

State

also

stands

be

in

representative

capacity

for

by

those

actions

of

the

actual

"injury

in

fact U

by

and

being

Program.

program.

prevented

from

Because

Plaintiff

faces

Discipline

Program

and

.all

others

California

affected

19. Plaintiff has

been

terminated

the

suffered

an

from

the

LAP

the

having

25 completing

26

27

28

Alternative

Discipline

LAP

Plaintiff was

terminated

from

imminent

termination

from

the

the

imposition

of

the

stayed

Alternative

discipline.

COM

4

from imminent termination from the the imposition of the stayed Alternative discipline. COM 4 T Tn

T Tn

r

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.,

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22

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20. Plaintiff

also

stands

in

representative

capacity

for

all others who also may be affected by those actions of the LAP.

21. In

2005

FACTUAL ALLEGATIONS

State

Bar

Court

of

California

in

Case

No.

02-

O-1012l-RAH found that PHILIP A PUTMAN violated sections 6068(b)

and

6106

of

the

Business

and

Professions

Code.

 

22.

The

Bar

Court

findings

stemmed

from

a

letter

that

PHILIP

PUTMAN

wrote

to

Judge

Brickner

and

opposing

counsel

in

which

Putman

requested

Judge

Brickner

to

recuse

himself

from

case

number

00CC10381,

Putman

v.

Azafrani,

et

al.,

which

was

then

pending

before

Judge

Brickner.

 

23.

Following

the

State

Bar

Court's

finding

PHILIP

PUTMAN

entered

into

stipulation

for

a~ Alternative

Discipline

Program.

(Exhibit

A.)

 

24.

According

to

the

Alternative

Discipline

Program,

upon

PHILIP

PUTMAN'S

successful

completion

of

the

LAP,

PHILIP

PUTMAN

will

be

publicly

reproved.

 

25.

Alternatively,

if

PHILIP

PUTMAN

fails

to

enter

into

and

successfully

complete

the

LAP,

PHILIP

PUTMAN

will

be

suspended

from

practice

of

law

for

two

years,

such

suspension

would be

stayed

and

PHILIP

PUTMAN

would

be

actually

suspended

for

six

months

and

placed

on

probation

for

five

years.

26.

Following

the

terms

of

the

Alternative

Discipline

 

Program, PHILIP PUTMAN entered into a written agreement with LAP

of

the

California

State

Bar

to

participate

in

the

LAP

program.

(Exhibit

A)

.

 

27.

PHILIP

PUTMAN

began

participating

in

the

program

in

January

2005.

5

COMPLAINT AND RFnT ]]:::<::T ]:::nD TT TDV Tn '"

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28. While' participating

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in

the

LAP

program,

PHILIP

PUTMAN

2 attended weekly LAP meetings. Philip had to pay $220 per month

3

4

5

6

7

8

9

10

11

12

13

to

attend

LAP.

29. In

order

to

attend

the

weekly

LAP

meetings,

PHILIP

PUTMAN left his office at 4:30 p.m. on the day of the meeting

and returning at 8:30 pm, thus losing four (4) hour of time.

30.

The

Law

Officers

of

PHILIP

PUTMAN

are

located

in

Costa

Mesa, California while the LAP meeting took place in Torrance,

California,

thirty

(30)

miles

away.

31. Also,

the

weekly

LAP

meetings

prevented

PHILIP

PUTMAN

from attending his church choir, which PHILIP PUTMAN has been

doing for thirty (30) years prior to attending LAP meetings.

32.

After

PHILIP

PUTMAN

have

participated

in

the

LAP

14 program for almost three years, in October 2007, LAP ordered

15 PHILI P PUT~lAN to submit to random alcohol testing based on an

16 informant whose identity LAP refused to disclose in violation of

17 Mr. Putman's 4th Amendment rights to confront his accuser.

last

18

19

alcohol

three (3) years, which is before PHILIP PUTMAN began

33.

PHILIP

PUTMAN

had

not

consumed

any

in

the

20 participating in the LAP.

21

24

2S

26

34.

Other

than

or

the

report

that

on

by

an

anonymous

PUTMAN

(3)

informant

had

there

any

Bar

is

no

evidence

of

had

indication

during

that

cast

PHILIP

three

consumed

nor

that

amount

alcohol

Case.

35.

test

on

alcohol

any

years,

bearing

the

underlying

California

State

 

Plaintiff

conditionally

consented

to

submit

to

alcohol

a

condition

that

LAP

disclose

the

name

of

the

informant

28

(Exhibit

B).

COMPLAINT AND

6

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36.

LAP

refused

to

tell

PHILIP

PUTMAN

who

had

made

the

report

to

LAP

or

when

and

where

the

anonymous

informant

had

allegedly

observed

PHILIP

PUTMAN

to

consume

alcohol.

 

37.

LAP

ordered

Mr.

Putman

to

appear

at

the

hearing.

PHILIP

PUTMAN

appeared

at

the

hearing

before

the

evaluating

committee

Lisa

composed

of

Spendlove,

where

Defendants:

the

Robert

Gastelum

Pam

Poley,

an

evaluating

committee

terminated

PHILIP

PUTMAN's

participation

in

the

LAP.

38.

Evaluating

Committee's

untimely

termination

of

PHILIP

PUTMAN from the LAP caused PHILIP PUTMAN physical, financial and

emotional hardship, and loss of income.

39. Additionally,

LAP's

untimely

termination

of

PHILIP

PUTMAN's participation in LAP ,;,ill cause PHILIP PUTMAN, loss in

income

and

will

affect

his

license

to

practice

law.

40.

Spendlove

Defendants

Robert

Gastelum,

Pam

Poley,

and

Lisa

are

members

of

the

LAP

evaluation

committee

and

are

17 all licensed therapists, commi::ted medical malpractice ,,,hen they

18

made

a

medical

19 recover",

and

and

that

legal

determination

"all

alcohol

use

is

that,

deleterious."

"alcoholics

In

cannot

truth

20

21

and in fact,

alcohol

use

had

nothing

to

do

with

any

California

State

Bar

complaints

or

the

co~tract between

LAP

and

PHILIP

PUTMAN.

24

25

26

27

28

41. Furthermore,

alcohol

consumption

use

is

of

actually

wine.

Alcoholics

can

and

healthy,

and

many

do

ceremonies

recover,

some

call

for

 

42.

LAP

and

members

of

the

evaluating

committee

breached

the

contract

between

LAP

and

PHILIP

PUTMAN,

when

LAP

terminated

PHILIP

PUTMAN'S

participation

in

the

program

after

PHILIP

PUTt1AN

7

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2

3

4

5

6

7

8

did

have

not

sign

the

Amendment

to

subjected

PHILIP

PUTMAN

the

Participation

to

random

alcohol

Plan

which

would

testing,

thus

violating

Plaintiff's

constitutional

rights,

employing

 

draconian,

arbitrary

and

oppressive

authority.

 

43.

LAP

evaluating

committee

also

breached

its

fiduciary

duty

mled

to

PHILIP

PUTM2\N

as

an

elder

by

submitting

PHILIP

PUTMAN

to

physical

and

emotional

hardship

while

fully

aware

of

PHILIP

PUTMAN'S

age

and

poor

health.

9

10

11

12

13

14

15

16

17

18

19

20

21

COUNT

I:

FOR DECLARATORY AND

INJUNCTIVE

RELIEF:

(B&P

Code

§

6068(b)

44. Plaintiff

is unconstitutionally vague and overbroad)

incorporates

paragraphs

1

through

43

and

each

of

them

as

if

set

forth

in

full.

45.

B&P

Code

§

6068(b)

is

unconstitutional

and

violated

First Amendment overbroad.

because

it

is

unconstitutionally

46.

B&P

maintain

the

officers."

47.

B&P

Code

§

6068 (b)

imposes

a

courts

duty

of

an

justice

on

re~pect due to

the

Code"§

6068(b)

is

unconstitutional

vague

and

attorney:

and

"To

judicial

and

violated

First

Amendment

because

it

is

unconstitutionally

vague

and

overbroad

in

that

it

does

not

define

the

conduct

which

it

seeks

22

to

disqualifications,

prohibit

with

sufficient

definiteness

lawsuits,

pleadings,

24 opinions

about

a

judge.

such

as

filing

or

expressing

ones

25

26

First

48. B&P

Code

as

Amendment

§

6068(d)

applied

to

lS

unconstitutional

the

Plaintiff

and

and

violated

violates

27 Plaintiffs due process rights under the Fourteenth Amendment to

28 the U.S. Constitution as the language of B&P Code § 6068(b) does

8

COMPLAINT AND REOUEST FOR JURY TRIAl

Case 8:08-cv-00625-DSF-CW

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Page ID #:8

not

afford

Plaintiff

sufficien~ notice

that

Plaintiff

violated

the

section

by

expressing

his

opinion

about

a

judicial

officer.

4

5

6

7

8

9

10

11

13

14

49.

B&P

Code

§

6068(b)

proscribes

Plaintiff

from

 

exercising

his

First

Amendment

Constitutional

right

in

filing

papers

with

the

court

such

as

motions

to

disqualify,

pleadings,

or

expressing

his

opinion

about

the

character

of

a

judicial

officer.

50. In

a

letter

that

Plaintiff wrote

to

Judge

Brickner,

Plaintiff

stated

several

opinions

about

Judge

Brickner's

fitness

as

a

judge,

including

a

statement

that,

"[Judge

Brickner]

did

nothing

that

he

can

be

proud

of."

 

51.

The

statement

made

by

PHILIP

PUTMAN

Judge

Brickner

constituted

an

opinion

rather

fact

and

Plaintiff

could

not

discern

from

the

in

than

a

a

letter

to

statement

language

of

B&P

of

15

16

Code § 6068(b) 6068 (b) .

that

Plaintiff's

conduct

had

violated

B&P

§

52. Plaintiff

to

17

18 unconstitutional

the

19 Amendment

seeks

the

an

ground

order

that

on

U.S.

declaring

B&P

Code

§

6068(b)

it violates the

First

20

53. Plaintiff

seeks

a

temporary

restraining

order,

21 preliminary and permanent injunction restraining Defendants, and

22

'J'

-.'

25

27

each

of

them,

from

enforcing,

applying

or

using

B&P

Code

§

6068(d)

against

any

member

of

the

State

Bar

of

California

with

respect

to

any

document

filed

in

a

court,

statement

made

in

a

court

or

any

right

protected

by

the

First

and

Fourteenth

 

Amendment.

III

III

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COUNT

II:

FOR DECLARATORY AND

INJUNCTIVE

RELIEF

(B&P

Code

§

6106

is

Unconstitutionally vague and overbroad)

-' o

5

6

7

8

9

10

11

12

13

14

54.

Plaintiff incorporates paragraphs 1 through 53 and

each

of

them

as

if

set

forth

in

full.

 

55.

B&P

Code

§

6106

states

as

follows:

 
 

The

commission

of any act invo~ving mora~

 

turpit~de, dishonesty or corruption, whether the

as is

committed

in

the

course

of

this

relations

 

as

an

attorney

or

otherwise,

and

whether

the

act

 

a

felony

or misdemeanor

or

not,

constitutes

a

 

cause

for

disbarment

or

suspension.

 

If the Act cons~itutes a

felony

or misdemeanor,

 

conviction

thereof

in

a

criminal

proceeding

in

not

a

condition

precedent

to

disbarment

or

suspenslon

from

practice

thereof.

[Epmphasis

 

added .J

 
 

56.

B&P

Code

§

6106

is

u~constitutional and violated

First

Amendment

because

it

is

unconstitutionally

vague

and

overbroad

 

15

16

17

18

19

in

that

it

does

not

define

the

conduct

which

it

seeks

to

prohibit

with

sufficient

definiteness

such

as

a

prohibition

against

filing

disqualifications,

pleadings,

or

lawsuits,

and

does

not

57.

establish

Code

B&P

minimal

§

6106

guidelines

to

govern

law

enforcement.

is

unconstitutional

and

violates

the

20 Amendment's

to

22 grievances."

First

the

people

21

u.s.

Petition

Clause

which

protects,

"the

right

petition

the

government

for

a

redress

of

Constitution,

Amendment

I,

of

24

 

58.

The

July

15,

2007

order held

PHILIP

PUTMAN

in

violation

of

B&P

Code

§

6106

for

having

submitted

a

letter

to

Judge

Brickner

requesting

Judge

Brickner

to

recuse

himself

from

26 a

judicial proceeding.

59.

B&P

Code

§

6106

lS

28

the

language

of

the

B&P

Code

vague

§

6106

and

overbroad

specifically

as

precludes

nothing

in

this

10

COMPLAINT AND RFOl TFST FnR

n lR v

TR I AI

Case 8:08-cv-00625-DSF-CW

Document 1

Filed 06/06/08

Page 10 of 54

Page ID #:10

3

4

5

6

7

8

9

10

11

act

proceeding.

of

requesting

a

60. Plaintiff

on

unconstitutional

judge

to

recuse

himself

from

a

judicial

seeks

an

order

declaring

B&P

Code

§

6106

the

ground

that

it violates

the

First

Amendment

to

the

U.S.

Constitution

and

vagueness.

61.

Plaintiff

seeks

a

temporary