so i just wanted mr cunningham to give give you a few of the ground rules st of all we're conducting this hearing by video conference from the th circuit in san francisco and you are appearing by video conference and i can see you are you able to see me and to hear me all right i would like to say thank you kate all right so this scope of this hearing is limited to the question whether  the respondent mr cunningham will continue to be able to practice in the th circuit nothing in this order would affect your ability to practice in any other court or d the  call into question the validity of the state court order d and you do have this right to a hearing that you've exercised and under the governing hearing have the burden of showing that this state bar proceeding did not afford you adequate notice and opportunity to be heard or that the evidence  that was presented was not sufficient to support the disbarment order or that some other grave reason exists that would prevent the th circuit from recognizing this court determination you have cemented a number of filings in response to this court's order to show cause concern reciprocal discipline i've read those i understand your arguments i want to assure you that you don't need to spend this time repeating any arguments that you've already made but i this is your opportunity to to make a showing under the criteria that i set out so what do you  anticipate your presentation will cover today basis for the discipline and the state park work determinations so this is your opportunity and i'm going to allow you to to present your testimony  hersh the th circuit case said that you know a party had to write presumably to raise constitutional issues  just apparently some summarily denied it without explanation and apparently it rests on the presumption that anything custody was summarily approved at the hearing was there then no no no no no let me just i don't mean to be interrupted but i want to i want to understand that's finally o daughter's it wasn't summarily accepted at the hearing it was submitted it without my knowledge without any indication i filed an order to show cause to by declaration and as such it was for then opposing counsel maria shop submitted after the hearing without my knowledge without it ever being order was void on its face because it involved a trial by declaration which chief justice george state supreme court had said the hearsay law without reaching the issue of whether when there was a due process violation so that was my of my point when i filed my order and possibly due process in issue justice george didn't reach so that the february twenty six hearing after the hear without my knowledge without my consent was an issue raised my order to show cause was to restore not to terminate my prana rights and the judge went along with their it officially void order so thousand he would go on to sanction me a th time you know so the shmoo of constitutional procedural due process violations is just t a rd time you know and it up getting twenty six thousand dollars from the trial court even though in that case i was represented  you know sanction multiple times twenty three thousand the st time and and then mr mckay had me sanctioned essentially twenty two thousand and the state court oh i was represented and he asked for another vexatious to get motion in the appeal and then he was awarded almost seventy thousand for prevailing in the appeal so this isn't a case of my being pled the th amendment i had a court appointed an attorney representing me in the contempt case that my wife brought against me and so  know i didn't go to the st contempt hearing because it was ongoing criminal case you know i pled the th and my attorney didn't show up he didn't show up for the two  two st contempt hearings so there was a violation of my th amendment rights and then the attorney who the state bar has insisted that there was a hearing on well there's never been a hearing on determination of my parental rights it's never happened what they've said in their reference the appeal i'd taken of my trial by declaration in two thousand and eight he cited that as the the basis for  which occurred in two thousand and eight it didn't correspond to any ten terminations order which occurred two years later so the state bar just assumed despite evidence to the contrary that that issue is resolved it had never been resolved same thing with some of the other issues one of which he went into court as for the sale of my property you know under the state bar you know only licensed members of the bar can practice law he admitted it himself he wasn't an attorney but he said that he was authorized you know to practice law you know not by any statute or not by any exception to the state bar act but because he was representing his own interest at the state bar i showed case after case where the only person not allowed to practice law on behalf of someone else or to go and court is someone who has a financial interest in the outcome of the property at the hearing mr saner admitted he had no financial interest in my property no financial interest in the outcome he had no he wasn't in an attorney the things he was doing were by definition practicing law but he said that he was kind of accepted from the prohibition of unlicensed practice of law by not lawyers business and professional code six thousand one hundred and twenty six by the fact that he that nobody has standing to or can legally capacity to file unless they are a member of the bar is his  that he was representing his own interest and the case law says the only one was standing is somebody who has a financial interest in the outcome he admitted he had no financial interest in the outcome of th except to accept his representing you know acting in a representative capacity as is a receiver let me ask you this question f licensed attorneys are permitted to practice law and only people with a financial interest in the outcome have the right to go into court and  claim they have an interest financial interest in the outcome that is somebody standing so on april or may th two thousand and sixteen i went before judge by state bar prosecutor duncan carline that he had the right to practice law there sure he was going into court sure he was doing all the things a lawyer did share but he was exempted or their argument was that he wasn't practicing law because he was representing his own interest and you know under  indulging me in that case you know the state supreme court says that the only judicial exception to practicing vaal without a license is  you know a lot by the legislature and the legislature has provided two exceptions limited exceptions you know so there's never been a judicial exception for not lawyer receivers so i think what mr singer is joining what the little subtlety he was trying to exploit was that he was saying you know he wasn't licensed to practice he wasn't an an attorney but he was going into court as of receiver acting in a representative capacity and representing the state but he wasn't practicing law because he was acting in his own interest quat the case law says the only one who can bring an action you know under their own name and i know our own behalf is  an actual party to the litigation mr singer wasn't a party to the letter shannon you know he wasn't a license attorney and he wants to say that there is some implicit exception that he has the right to represent his own interest well he does if he's if he has some financial stake in the outcome there was no financial outcome that he had that he had no lawyer receiver or anybody else without a financial interest he has no right to you know to bring me ace a claim or to practice law without a matter of law jurisdiction fundamental jurisdiction they have no right to represent anyone else much the same way if some you know lawyer trying to represent her i'm not going to try to represent a criminal discipline test it as to whether you or didn't die due process notice opportunity to be heard in the course of the state bar proceedings process aspect to this i i am inferring from what you're saying in your arguments that essentially you're saying that the evidence was really not sufficient to subject you to the discipline that was imposed because the evidence was all based on determinations that for one reason or another were invalid  or the underlying procedures deprive you of a certain process but what i'm really interested in exploring here is whether the actual up implicit perhaps it wasn't clear is that this is kind of a due process due process violation stacked on a due process violation stacked on a due process unless i mean this is something kind of unbelievable well if i think i might yeah i understand your discussions about how you were treated in this state trial court in the superior court in the district court in terms of the vexatious litigant issue and that is that was the basis for the state bar bringing charges against you and they relied on the state court proceedings as evidence as substantial evidence to justify the discipline that they impose but i'm asking you a more discreet question and that is whether the actual state or court proceedings themselves deprive you have noticed if you have notice of all the proceedings where you allowed to be heard and present evidence in the state park or proceedings and sells itself so that i can and so our court can evaluate whether the state bar for proceedings themselves forty due to process aside from all the other questions about the process you are afforded the state cord and the district court to do you understand my question i do understand your question i think maybe we're talking about the same thing or you know we're talking about  you know why the heads you know tails and we're talking about the same thing that is coming out a different way in the state bar opinion itself  state bar judge done said you know there is no basis to allow mr cunningham to challenge any of these rulings because the state bar rulings these facially void of orders these orders custody hearing  an awful practice of law these issues were never decide so my defense in the state bar was that i cannot defend myself  myself by challenging orders that i never even occurred you know i cannot challenge you know rulings that were never made my daughter was summarily you know deprived of her right to have a father and when i went to challenge that at the state court you know i was denied under the  challenge the validity of those orders which is what the state bar bases it on that all and in fact age they said haul all of my efforts to to challenge the validity of their or were for purposes of the state bar frivolous at the hearing or in as opinion judge  than the characterization that the issues had been decided i brought up you know and it's attached here like your page that i state supreme court order saying that you know a strip state court opinion saying that one hears the right to colette early attacked you know orders that have never been finally determined ultimately determined and cited in in a particular brief that you can refer me to yeah that's that's in my that's in the these documents here if you look in the table of  and where is it there where did you four hundred less than fair market value and the court appointed receiver and the other parties who sued me giving out almost a one million of equity as i had my property dd today because what you've basically been saying are matters that are set out clearly in your filings so i  understand the thrust of your argument all of the arguments that you've been talking about today are familiar to me from your written submissions where you articulate those issues clearly  i'm wondering if you know it's one of those things where so i remember an old judge of arc or maybe forty years ago in oral arguments saying he would he would talk to counsel at the beginning of our of argument say well counsel a why and i want to before you begin oral argument i want you to know that if you said anything in the briefs you don't need to say them again because we read the briefs if there's a he came here to say that's not in the breeze we don't want to hear about it because it should have been in the briefs and we're not going to hear about it for the st time in oral argument and having said that counsel do you want to say written submissions and that i really don't need you to reiterate what you've already said but i do what i understand and i can't publicly you know i spent skills or the temperament be a litigator so i cannot probably express my legal views and you know a factual basis for those any better than i did in my pleadings but i would want to just come bear briefly in touch on the matter of that you brought up about what is it about the state bar call laterally attack any of these rulings because you know there's a factual basis for them or there was a final determination on the merits there has been no final determination on the merits that's false that's completely made up that's fair ok you know never has been on those issues namely determination my daughter that's never happened yet the state bar in its opinion presumes there must have been some final determination in the state bar there hasn't that same thing with with the exception if you don't mind me before you go under well those is it are you saying that the cause that kind of in order remains subject to revision over time so it's never final in the sense that it judgment i i appreciate the fact that you see there i'm saying it's not final for two way reasons one who's never decision they'd never even acknowledge the ip the opinion family law case and the attorney and judge mahoney just signed off on it's a wait a minute he said there was never a decision but it was wasn't the decision what what happened was you know six weeks later the family large yard issued his final decision so he incorporated that february t ten hearing into his final decision but it was not a matter brought up at the hearing on february th it was not before me i wasn't even aware that that question you just eat it i think i think your point was that there never was a decision never was a final decision but then you just said that there was a decision that incorporated this attorney maria shop raised the issue of terminating all the rights that was never litigated at the hearing it was never presented  and judge how he just signed off on it then you know i don't need you to sign an order in which he represented that i had voluntarily submitted to   termination my orders he signed off on x six weeks later if you look at the feb twenty six oared says and her proposed terminations or she says this takes  fact february twenty six not march th whatever so you know the point was that the judge never even notice of th given an opportunity to challenge the terminations of of my prior rights you know and what happened was his little you know little you know leasure them on a little bit where judge mahoney seemed to say that he has decision and i didn't know about that i hadn't heard that we had argued about was a decision on the termination of crennel rights so i've been living with their it for ten years i haven't seen my daughter in ten years every motion oh it was decided well where was it decided where was it  supposedly agreed to determination from her criminal rights without a hearing without notice and on matters that were never part of the original order to show cause yeah ok we're now we're now going over matter that  already got over and over let me ask you this question because any order that the most favorable order that could emanate from here would be in order a loud music continue practicing in that circuit from a practical standpoint would your continued membership in the th circuit bar be of value to you well the only reason and bear with me i'm kind of long winded for various reasons the only time i've gone you know to the th circuit was to bring a class action on behalf parents who'd been declared vexatious so the class action involved parents who so you know i have really no interest in practicing law between you know i think that's i had if you know file and become a member of the th circuit in order to cosines you know in an unpublished opinion i've held the ruling of that there was no constitutional violation because at any at some point these you know he didn't i mean published opinion and so that case is still being cited and so you know i have no interest in reviving their whatever but what i do plan on doing and probably the twelve months i have left on the face of this earth is to get some justice you know ten years of not seen your kid for you know what i just see is you know just a miscarriage of justice i want you to say this is a miscarriage of justice i say this is like you know back alley abortions by some judicial hacks it's it's just been terrifying where in the world you go where you don't see you care for for ten years and you're denied all court access to challenge that it just doesn't happen anywhere so for me in terms of of you know i'm here as much about justice and getting a fair hearing as you know which i don't really expect any anything in there's really not much skin in the game or not much to lose  other than you know i'm not a little you know where you know the state bar california in its rulings you know here you know and sixteen for that the weight of authority the justice of that there's no reason to even review the case well if you look at all the state bar action stage one of which is interpreted by the plain language and it then names the remedies to remedies declares someone very sage has them get a pre filing or so all these rulings don't even add up you know i was declared vexatious once and then again and then again so the state supreme court doesn't even follow its own rulings so you know doesn't say mr cunningham can be declared fixations once twice three or four times essentially twenty three thousand and in this case thirty three of their cases one hundred and five thousand in this case but she does that and so she were on as in saying she reviewed her you know her opinion or the summary judgment isn't even consistent with their own rulings so for me how do you how do you even address that short of bringing in nine hundred and eighty three hit action in the district court and kind of what's want this one to disappear you know and then and here i'll be dead and who will really give a shit right except for me and maybe a handful of people who care about justice but just  it didn't didn't make her decision for summary you know denial based on you know she contradicts every ruling made which she signed off on in doing so it's just it's mind boggling to me i think they really want to just throw this case under the bus next year i have a live fire that's what i hope i did i realize there's not a whole bunch at stake in your ruling i would hope you would you know follow the law and lawyer receiver practicing law why are the you know the parties that who you know sued him you know why are they bringing in action in the state vigorously tries to get his daughter back is filing frivolous litigation under the state bar act as we define it even though her policy has been in the legislature i it's just a fancy sense of fair play justice and the fact that people who have problems are not held accountable have are you going to be able to see your daughter is is she approaching an age where you would be able she's turned eighteen you know and can you see her now if if she's well well  has you know when people ask me that i go i know when she was nine or ten you know she probably loved me as much as anything in the world i know her mother  gotten to restraining orders against me for what you might ask for disturbing her peace of mind i asking her to share custody with her daughter under the liberal san francisco whatever that i interrupted the mother's peace of mind by e mailing  never talk to her and never looked at her never you know asked center some e mails say let's end this crazy let's end this badness and share custody of my daughter  consider all the matter say you stated you've raised issues and i promise you i will consider those my role now is to prepare a report recommendation about i understand could i could i just quickly say one thing hi again if i had mentioned that i'm going to file a nine hundred and eighty three suit and  i i would just ask that that be mentioned in your hearing or that you maybe even forgo a form decision pending the outcome of my nine hundred and eighty three dollars claim because i'll be able to file you know the seven volumes of greater opportunity to present evidence and since there are no clients of his in the th circuit because he has no clients he's got a brain tumor he's going to die he great risk is practicing law in the th circuit because he has no clients there that that the that the th circuit just say you know why you wouldn't but i certainly would appreciate their head and there's really no skin off your teeth because you know if things go according les i'll be dead in a year it was well let me go let me let me propose this because i don't think i don't think it's appropriate for me to act are your verbal request as you stated it i'm also  already in this state core pending the initiation of another action that's likely to take months many many months if not years to to be resolved if you want to defer action in this case then what i would recommend is that you file a formal motion in this disciplinary action asking to stay proceedings on whatever basis however you want to articulate the basis it will come to me it is likely that what i will do is issue a report and recommendation in the report a recommendation i would also address the motion to stay more we put a recommendation will be sent to you you'll have several weeks in which to read it and if you so choose file a response to it objections or the agreement with that then firing what recommendation plus any thoughts and mission you have will be submitted to a three judge panel of the court and then they will decide whether to adopt my recommendation or reject my recommendation or we may add it to me for further proceedings so i understand and i i appreciate it and it's it's procedur probably the appropriate way to go but you know it kind of brings up the the other underlying issue this is in this disciplinary proceeding the state summarily denies my motion half at least half of the charges the state bar is brought against me are federal opinions review you know i had my heart my federal constitutional questions and summary summary motion when the state bar had no jurisdiction to do that i mean how does the state supreme court you know how is it presume two to rule on the matter of the state bar  know i think i think that i'm very satisfied that you've made a complete presentation i think your written presentation is comprehensive and i appreciate you appearing today and i do wish you the best of luck dealing with your health issues have so many matters that we're dealing with it with almost certainly not be done in less than a week and a half from today i doubt we would be able to get anything out next we even the following week maybe optimistic but we will try to do it as quickly as possible well i prefer the slower the better  has something to be consider so again i just feel having spent fifteen years working in legal publishing that i am better at expressing myself through the written word and spoken words so the longer you can take the better it gives me i mean i could probably kick out a nine hundred and eighty three motion within days if if i didn't put this all together appreciate it ok i can't drive side there's no way i was going to get out to california so right all right well good luck to you and thank you for appearing today thank you