A month ago, when we spoke by phone, I said that the piece missing from your account of the Richard Fine saga is a clear statement of precisely why he is in jail, i.e., the contempt charge. You were unable to say why clearly, but you told me to read the record and I have.
Any political crusader knows that to take on the Establishment one must be right on the facts and, if possible, right on the law. In other words, if you know that you will be treated with prejudice, you choose your fights wisely. Richard Fine has chosen to fight where he is wrong on the facts and by his own choice wrong on the law, i.e., he drew his line in the sand when he was by his own admission wrong on the facts and the law.
Several of Richard's pleadings cry out the injustice of Judge Yaffe sentencing him in excess of the five days allowed by CCP 1218, and his followers have been much moved by this seeming grave injustice. But, in fact, Fine is held exclusively under CCP 1219 (a) that allows:
(a) Except as provided in subdivisions (b) and (c), when the contempt consists of the omission to perform an act which is yet in the power of the person to perform, he or she may be imprisoned until he or she has performed it, and in that case the act shall be specified in the warrant of commitment. (MG: (b) and (c) do not apply to Fine.)
The difference between criminal and civil contempt is that criminal contempt is punitive in nature in response to past transgressions, whereas civil contempt is remedial, and may be coercive in order to achieve some possible and legitimate goal (here, compliance with the debtor examination). Fine has stated explicitly on the record that he will not provide information required by his debtor examination until all his habeas corpus appeals are exhausted, but then he would supply the required information.
I am exercising my rights of petition for habeas corpus. At such times, those rights are entirely finished. If in fact I lose with those writs, then I would answer the questions.
Thus, Fine has stated that the coercive confinement serves a purpose, viz., that it brings him closer to the point of either victory or else exhaustion of his writs and his submission to the demands of the debtor examination. On March 24, 2010, Mr. Fine filed for an immediate Farr hearing on his behalf. William T. Farr was an investigative reporter who refused, on principle, to reveal sources as the court demanded. Farr won his release on the grounds that he would never reveal his sources no matter how long he was held in contempt; hence his imprisonment became punitive rather than prospectively coercive. Thus, Fine's case is crucially different from the Farr case where Farr maintained from the outset that he would continue to refuse to supply the requested information no matter how long he was held. Fine has admitted that he will comply when all his other legal remedies are at an end. Thus, as the Superior Court respondents opined:
Fine holds the key to his jail cell. By simply agreeing to answer questions and produce documents concerning his assets, that he has a legal obligation to provide, his coercive confinement will end.
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