Petition for Rehearing — Russell Thaw, et al., Petitioners v. Jefferson B. Sessions, III, Attorney General, et al.

No. 17-594

3n Tbe

'upreme Court of the aniteb 'tatc

RUSSELL THAW, et al.,

Petitioners,

V.

JEFFERSON B. SESSIONS III,

ATTORNEY GENERAL, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR REHEARING

JOSEPH ROBERT GIANNINI

Counsel of Record

12016 Wilshire Blvd., Suite 5

Los Angeles, CA 90025

Phone 310-442-9386

Email j.r.giannini@veriion.net

Attorney for Petitioners

Russell Thaw, et al.

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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RECEIVED

JAN 2

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2018

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ........................................I

TABLE OF AUTHORITIES ...................................ii

The Jurisprudential Origin and Unresolved

Ripe Conflict in the Question Presented

....

1

The Sociological and Biological Origin and

Unresolved Conflict in the Question Presented...........................................................8

This Court Should Grant Rehearing and

Supervisory Review to Preserve Its Reputation for Integrity and Equal Justice Under

Law: The Buck Stops Here ..........................12

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TABLE OF AUTHORITIES

Page

CASES

Bradwell v. State, 83 U.S. 130 (1873) ...........................4

Frazier v. Heebe, 482 U.S. 641 (1987) ........................5, 6

In re Lockwood, 154 U.S. 116 (1894) ............................4

Korematsu v. United States, 323 U.S. 214 (1944).........4

Plessy v. Ferguson, 163 U.S. 537 (1896)........................4

STATUTE

28 U.S.C. §§ 2071-72 .....................................................6

OTHER AUTHORITIES

Robert Sapoisky, Behave: The Biology of Humans at Our Best and Worst (2017 Penguin

Publishing Group, Kindle Edition) ..... 8,9,10,11,12

"Monkeys Reject Unequal Pay," YouTube Video

httpsi/wwwyoutube.comlwatch?v=1KbAd0TynyO ......... 8

Supreme Court docket NAAMJP v. Howell, 17409, Aifriend v. United States District Court

for the Northern District of California 16-3 10,

NAAMJP v. Lynch 16-404, and NAAMJP v.

Lynch 160525 ............................................................6

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I.

The Jurisprudential Origin and Unresolved

Ripe Conflict in the Question Presented

This case is closely related to Janus v. American

Federation of State, County, and Municipal Employees,

Council 31 Supreme Court docket 16-1466 where this

Court granted review on September 28, 2017. The

Janus Question Presented, in part, states: whether "it

is constitutional for a government to force its employees to pay agency fees to an exclusive representative

for speaking and contracting with the government over

policies that affect their profession." This case, raises

the same issue: whether "it is constitutional for a government to force licensed attorneys to pay agency fees

to an exclusive representative for speaking and contracting with the government over policies that affect

their profession." The majority of State Bar associations are mandatory bar organizations that routinely

engage in political lobbying on behalf of its members

like any other public labor union. All lawyers seeking

bar membership in sixty percent of the Federal District

Courts are compelled by Local Rules to join these political organizations to practice in the Federal District

Court whether they want to or not. The same question

is presented in this case with an additional wrinkle

stemming from the constitutional right to petition the

government for the redress of grievances.

Many have suggested that the Petitioners are deaf

and dumb to pursue this attorney equality and compelled association question because these challenged

administratively adopted Local Rules (sic) arise from

institutional and tradition bound Us vs. Them federal

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compelled association that has existed for decades.

Others in the know have suggested, additionally, that

you did not go to Harvard or Yale Law School, you have

not clerked in the Supreme Court, you are not being

represented by Thurgood Marshall or Ruth Bader

Ginsburg, and Petitioner THAW and his advocates

were not even smart enough to entirely escape United

States military service.

Petitioner RUSSELL M. THAW is an American

citizen. He has been a licensed trial lawyer in good

standing for over thirty-three years. Attorney Thaw is

an honorably discharged Vietnam Veteran decorated

for meritorious service. In wearing the uniform of

the U.S. Army and serving with other Americans from

all fifty states, Petitioner was fundamentally transformed, not unlike a judge is transformed in wearing a

robe, or a law clerk is transformed by serving in the

marble palace. Thaw, in representing America 24-7 in

armed combat earned his citizenship rights. He stood

side by side with other American servicemen from fifty

states representing the United States government;

some of his brothers were wounded, many suffer posttraumatic stress disorder, and some paid their last full

measure. Yet, Attorney Thaw is barred under Local

Rules (sic) from representing clients in the Arizona

Federal District Court. In order for attorney Thaw to

gain admission, he is required to re-enroll in law

school, graduate again, and then take and pass the

Uniform Bar Exam in Arizona that does not test Arizona law. Thaw is not disbarred because of charges of

misconduct. He has not been provided an opportunity

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to be heard on his qualifications or experience, or a presumption of innocence, or a full and fair hearing by an

impartial judge or jury. On the contrary, Thaw is automatically and categorically disbarred by an administratively adopted Local Rule enacted to benefit Us and

disable Them. An administratively adopted Local Rule

that has national effect; a Local Rule that divests

Americans of fundamental citizenship rights. A Local

Rule, the Ninth Circuit panel upheld by squarely holding only the Supreme Court possesses supervisory review jurisdiction.

Petitioner SHERYL ANN PHIPPS is an attorney

in good standing licensed in California. Like THAW,

she has a diversified life experience. She iearned a

M.Ed. in mathematics at the University of Arizona.

As an Arizona citizen, she taught high school and college mathematics at the University of Arizona for sixteen years. She evolved in her career choice and earned

a J.D. and an LL.M. in Taxation at Golden Gate University School of Law. She has taught courses on federal income, estate, and gift taxation as an Adjunct

Law Professor at Golden Gate University School of

Law. She has served as a Taxation and Accounting Editor for Mathew Bender & Co. (part of Lexis-Nexis).

Since 2012, she has been the Attorney-Editor of the

California Continuing Education of the Bar (CCE). Attorney Phipps is barred under Local Rules from general admission privileges in the Arizona Federal

District Court. In order for Sheryl Ann Phipps to gain

admission in the Arizona District Court, she is required to take and pass the Uniform Bar Exam in

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Arizona that does not test Arizona law. A test designed

to measure entry level practice that has nothing to do

with her federal practice field of taxation. The alleged

reason for this "reinvent the wheel" requirement is Petitioner has allegedly not proved that she is not incompetent and not a threat to the public.

Oliver Wendell Holmes, Jr., a man familiar with

the foibles of human nature, having been wounded

three times in the Civil War is quoted to the effect, that

if you really get a person to understand your reasoning

and that reasoning is valid, they will eventually agree

with you. Life and people evolve. There are many examples where people wake up and wonder how their

predecessors could have been so ignorant. For 1500

years people swore the sun revolved around the earth.

It was held as• a matter of law women do not have a

constitutional right to practice law. Bradwell v. State,

83 U.S. 130 (1873); In re Lockwood, 154 U.S. 116 (1894);

African-Americans were not injured by separate but

equal government policies. Plessy v. Ferguson, 163 U.S.

537 (1896); Japanese-Americans could not be trusted.

Korematsu v. United States, 323 U.S. 214 (1944).

This case presents a pure question of law that only

this Honorable Court has the jurisdiction and supervisory duty to decide that raises the same Us/Them

equality and dignity issued raised in Bradwell, Lockwood, Plessy, and Korematsu. The question presented

is whether "Local Rules" in 60% of the 94 Federal District Courts that invidiously and categorically disqualify otherwise competent and licensed out of state

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attorneys from 49 States and the District of Columbia

for general bar admission are lawful, and subject to

rubber stamp rational basis review based on any conceivable justification in the record or not. The remaining 40% of 94 Federal District Courts provide general

bar admission to all licensed sister-state attorneys and

do not provide a monopoly and uneven playing field for

forum state lawyers.

The Declaration of Independence was founded on

the principle that all men are created equal. Local

Rules enacted once upon a time hold that while all men

are created equal, only forum state lawyers are created

equal.

Similarly, our Constitution was formed to provide

a more perfect Union and to ensure justice and the

blessings of liberty to ourselves and posterity. The Bill

of Rights provides that Congress shall pass no law that

abridges the People's freedoms to speech, assembly,

and to petition the government for the redress of grievances. Yet, the Local Rules in 60% of Federal District

Courts hold that while Congress may not abridge the

constitutional freedoms to speech, expressive association, counsel, and to petition the United States judiciary we can until the United States Supreme Court

exercises its supervisory power and tells us we cannot.

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In Frazier v. Heebe, 482 U.S. 641 (1987) this Honorable Court exercised its supervisory power and abrogated a Louisiana Federal District Court local rule

that disqualified out-of-state attorneys for general bar

admission privileges applying a heightened "rational

and necessary" standard of review. Under the standard

set forth in Frazier v. Heebe, it is obviously not necessary for Local Rules to categorically deny all sisterstate attorneys general admission privileges as 40% of

the Federal District Courts do not discriminate in favor or against any state's lawyers. It is also obviously

not rational for federal courts to arbitrarily and invidiously discriminate against any group of citizens.

This case presents a perfect opportunity to decide

this important Us/Them question that is capable of

repetition like the METOO cases; but has time after

time escaped certiorari review by this Honorable

Court. See Supreme Court docket NAAMJP v. Howell,

17-409, Aifriend v. United States District Court for the

Northern District of California 16-310, NAAIVIJP v.

Lynch 16-404, and NAA1VIJP v. Lynch 160525. Amicus

briefs supporting certiorari grant were filed by the Association of Professional Responsibility Lawyers and

others.

In each of these cases, the lower Courts followed

each other and upheld Local Rules categorically barring non-forum state lawyers holding: (a) that no substantive or constitutional rights were implicated by

the Local Rules; (b) that the Congressionally imposed

rule-making standards set forth by 28 U.S.C. §§ 207172 were not applicable to District Courts; (c) that the

Local Rules were subject to rubber stamp rational basis review; and (d) that these Court's did not possess

this Honorable Court's supervisory power that was

employed by this Court in Frazier v. Heebe to invalidate discriminatory bar admission Local Rules.

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In each of these cases, the lower courts covered-up,

as with a date-rape drug, the evidence Petitioners submitted: including multiple American Bar Association

reports recommending reciprocal licensing; the fact

that 28 states have adopted the Uniform Bar Exam

where state law is not even tested and reciprocity is

provided to novice attorneys; and scientific evidence

proving that increased diversity improves fitness, innovation, and decision-making.

In each of these cases, where certiorari was denied

in the last two years, no substantive evidence was submitted justifying this federal discrimination.

Oliver Wendell Holmes, Jr. also famously said

even a dog can distinguish between when he is kicked

intentionally and tripped over. Petitioners here are being intentionally kicked. Petitioners, under Locl Rule,

are afforded the same civil rights as Homer Plessy,

Myra Bradwell, Belva Lockwood, and Korematsu.

The decisions below squarely hold only the Supreme Court has supervisory review. As the drumbeat

of METOO cases against Bill Cosby, Alex Kozinski, and

other public officials demonstrate numeracy counts.

There is a big difference between one person making

an abuse of power claim and 49 people echoing the

same thing.

In Chico and the Man, the famous television show

in the 70s, Chico's famous line was "that's not my job."

This is what the lower courts have held about

ri

[Si

supervisory review: That's not my job. In other words,

the lower courts are examining the question presented

in the narrowest context possible and not considering

the global impact of this federal discrimination that

nullifies the Constitution. This Honorable Court cannot allow this "Us vs. Them" federal discrimination to

escape supervisory review without staining its own

reputation for integrity and undermining the rule of

law because more METOO cases will follow where the

justices of this Honorable Court will be named as supervisory defendants.

II. The Sociological and Biological Origin and

Unresolved Conflict in the Question Presented

Professor Robert M. Sapolsky is a professor of biology, neurology, and neurological sciences at Stanford

University. He is a MacArthur Genius award winner.

Professor Sapolsky in his magisterial book Behave:

The Biology of Humans at Our Best and Worst (2017

Penguin Publishing Group, Kindle Edition) sets forth

two reasons why this Honorable Court should exercise

its supervisory jurisdiction and grant review in this

case that is capable of repetition, and in light of 21st

Century technological advances cannot evade review.

First, the petitioners are not being treated fairly

by this federal discrimination. Professor Sapolsky cites

a scientific paper on fairness called "Monkeys Reject

Unequal Pay." See YouTube Video https://wwwyoutube.

comlwatch?v=1KhAd0Tyny0, demonstrating this remarkable study on fairness. Professor Sapolsky writes:

we

Now there are two capuchins, side by side.

Each gets a pebble. Each gives it to the human. Each gets a grape, very rewarding. Now

change things. Both monkeys pay their pebble. Monkey 1 gets a grape. But monkey 2

gets some cucumber, which blows compared

with grapes capuchins prefer grapes to cucumber 90 percent of the time. Monkey 2 was

shortchanged. And monkey 2 would then typically fling the cucumber at the human or

bash around in frustration; Most consistently,

they wouldn't give the pebble the next time.

Id. 484-485.

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This response has since been demonstrated in

various macaque monkey species, crows, ravens, and dogs.

What's key that the other guy is still getting

grapes. It's about the work give one monkey a free grape, the other free cucumber,and

the latter doesn't get pissed. The closer in

proximity the two animals are, the more likely

the one getting cucumber is to go on strike.

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.

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.

Instead it's self-interest "This isn't fair; I'm

getting screwed." Id. at 486.

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Given the relatively limited reasoning capacities of monkeys, these findings support the

importance of social intuitionism. De Waal

perceives even deeper implications the roots

of human morality are older than our cultural

institutions, than our laws and sermons. Rather than human morality being spiritually

transcendent (enter deities, stage right), it

transcends our species boundaries. Id. at 487.

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Petitioner THAW is an honorably discharged Veteran. He did the work, and he is getting short changed

by Local Rules. The same holds true for petitioner

PHIPPS, who is being treated in this 21st Century the

same way this Supreme Court treated attorneys Belva

Lockwood and Myra Bradwell in the 19th Century. It

is not fair.

Second, Professor Sapoisky in Chapter 11 "Us

vs. Them," explores our tendency to form Us/Them dichotomies and to favor the former and treat them unfairly.

Concerning US, Professor Sapoisky writes:

Our brains form Us/Them dichotomies (henceforth, "Us/Them-ing," for brevity) with stunfling speed. :. fifty-millisecond exposure to

the face of someone of another race activates

the amygdala, while failing to activate the fusiform face area as much as same-race faces

do all within a few hundred milliseconds.

.

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Minimal group studies show our propensity

for generating biased Us/Thems from arbitrary differences. What we then do is link arbitrary markers to meaningful differences in

values and beliefs. Id. at 391.

Merely grouping people activates parochial

biases, no matter how tenuous the basis of the

grouping. In general, minimal group paradigms enhance our opinion of Us rather than

lessening our opinion of Them. Id. at 390.

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(

So in-group parochialism is often more concerned about Us beating Them than with Us

simply doing well. This is the essence of tolerating inequality in the name of loyalty. Id. at

395.

Concerning THEM, Professor Sapoisky writes:

In economic games people implicitly treat

members of other races as less trustworthy or

reciprocating. Id. at 398.

But Thems do not solely evoke a sense of menace; sometimes it's disgust. The role of disgust

in Them-ing explains some individual differences in its magnitude. Id. at 399.

Thems are also frequently viewed as simpler

and more homogeneous than Us, with simpler

emotions and less sensitivity to pain. Id. at

399.

Essentialism is all about viewing Them as

homogeneous and interchangeable, the idea

that while we are individuals, they have a

monolithic, immutable, icky essence.. Thus,

Thems come in different flavors threatening

and angry, disgusting and repellent, primitive

and undifferentiated. Id. at 399.

.

.

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Professor Sapoisky in recognizing the arbitrary

nature of Us/Theming emphasizes:

Thus Us/Them dichotomies can wither away

into being historical trivia questions

and

can have their boundaries shifted at the

whims of a census. Most important......ones

that seem inevitable and crucial can, under

.

.

.

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the right circumstances, have their importance evaporate in an instant. Id. at 410.

The Arizona District Court Local Rules are the

product of a quintessential and arbitrary Us/Them

bias. All Arizona lawyers are presumed angels. All

lawyers licensed in 49 States and the District of Columbia are presumed threatening, angry, repellant,

primitive, and undifferentiated.

The question presented in this petition, similar to

Janus Supreme Docket 16-1466, is whether citizens

from 49 states (THEM) should be thrown under the'

bus, and all citizens be compelled to salute the Arizona

state flag, so that a political union, i.e. the Arizona Bar

Association (US), can be provided a monopoly on access

to the United States Courthouse?

III. This Court Should Grant Rehearing and Supervisory Review to Preserve Its Reputation

for Integrity and Equal Justice Under Law:

The Buck Stops Here

The American Bar Association has repeatedly

concluded that women and minorities are disproportionately disabled by the failure of Courts to have reciprocity provisions.

This Honorable Court has a reputation as a beacon of justice above reproach. Accordingly, the Courts

below uniformly refuse to exercise this Court's supervisory responsibility. However,refusing to exercise supervisory power can be the same as encouraging civil

rights violation as the recent METOO cases illustrate.

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Refusing to exercise supervisory responsibility and not

having it are different.

If this Court denies rehearing in light of the same

compelled association issue presented in Janus, Petitioners are going to be compelled to repackage these

claims that disable hundreds of attorneys and their clients, and are capable of repletion but evading review,

and name the Justices of this Honorable Court as a

named party to avoid this "no supervisory jurisdiction"

subterfuge. Petitioners expect that the Washington

Post and every newspaper in America will broadcast

this Honorable Court's deliberate indifference to the

plight of American veterans and refusal to exercise its

supervisory review.

The greater good, the core principles our more perfeet Union and Bill of Rights was founded upon, will be

preserved by this Court granting review and they will

be perverted by not granting review.

Respectfully submitted,

JOSEPH ROBERT GIANNINI

Counsel of Record for Petitioners

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CERTIFICATION OF COUNSEL

I hereby certify that this petition for rehearing is

presented based on good cause based on Janus v. American Federation of State, County Supreme Court docket

16-1466 and other recent METOO cases demonstrating public official misconduct including Judge Alex

Kozinski's resignation; and the December 20, 2017

letter signed by 850 former law clerks and law professors sent to the Supreme Court asking it to address the

systém of investigating harassment and other misconduct complaints within the federal judiciary.

JOSEPH ROBERT GIANNINI

Counsel of Record for Petitioners