Petition for Writ of Certiorari — Ty Clevenger, Petitioner v. Melanie Lawrence, et al.

5/2/i1

No._/g — ib7

3n Tbe

'upreme Court of the Gntteb 'tate

TY CLEVENGER,

Petitioner,

V.

MELANIE LAWRENCE, IN HER OFFICIAL

CAPACITY AS INTERIM CHIEF TRIAL COUNSEL

FOR THE STATE BAR OF CALIFORNIA, AND

STACIA L. JOHNS, IN HER OFFICIAL

CAPACITY AS DEPUTY TRIAL COUNSEL

FOR THE STATE BAR OF CALIFORNIA,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Ty CLEVENGER

P.O. Box 20753

Brooklyn, New York 11217

tyclevenger@yahoo.com

Phone: 979-985-5289

Fax: 979-530-9523

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

1

QUESTION PRESENTED

1. The Younger abstention doctrine "naturally

presupposes the opportunity to raise and have timely

decided by a competent state tribunal the federal

issues involved." Trainor v. Hernandez, 431 U.S. 434,

441, 97 S. Ct. 1911, 1917, 52 L. Ed. 2d 486 (1977),

quoting Gibson v. Berry hill, 411 U.S. 564, 577, 93 S.Ct.

1689, 1697,36 L.Ed.2d 488 (1973). Although California

flatly prohibits its administrative hearing officers

from considering federal claims, the Ninth Circuit has

held that Younger applies anyway because parties

might have a subsequent chance to present constitutional issues in "wholly discretionary" review by the

California Supreme Court. See, e.g, Canatella v. California, 404 F.3d 1106, 1111 (9th Cir. 2005) ("Although

judicial review is wholly discretionary, its mere availability provides the requisite opportunity to litigate").

In California, no such review has been granted in the

19 years since judicial review became "wholly discretionary."

QUESTION: Where a state administrative

hearing officer is prohibited from hearing a

party's federal claim, may a federal court abstain from hearing that claim on the grounds

that the party might be able to raise it later if

judicial review is granted by a state court? In

other words, is a remote possibility of state

court judicial review sufficient for purposes of

Younger abstention?

11

QUESTION PRESENTED

Continued

-

2. Several circuits permit staff attorneys to perform adjudicatory functions traditionally reserved for

Article III judges, and that has prompted considerable

criticism from legal academics, practitioners, and even

some judges. The Ninth Circuit is perhaps the most extreme, as its General Order 6.5 permits judges to resolve cases without reading the briefs or the record.

Instead, a staff attorney summarizes the arguments

and recommends a decision in a five- to ten-minute

oral presentation conducted behind closed doors.

QUESTION: Does a federal appellate court

deny due process when it requires litigants to

present their arguments to staff attorneys rather than Article III judges?

111

PARTIES TO THE PROCEEDING

Petitioner (plaintiff below) is Ty Clevenger. Respondents are Melanie Lawrence, in her official capacity as Interim Chief Trial Counsel for the State Bar of

California, and Stacia L. Johns, in her official capacity

as Deputy Trial Counsel for the State Bar of California.

Defendants in the trial court were Gregory P.

Dresser, in his official capacity as Interim Chief Trial

Counsel; Stacia L. Johns and Kimberly G. Kasreliovich, in their official capacities as deputy trial counsel;

and the State Bar of California. In the Court of Appeals, then-Chief Trial Counsel Steven Moawad replaced Mr. Dresser.

lv

TABLE OF CONTENTS

QUESTION PRESENTED...................................i

PARTIES TO THE PROCEEDING......................iii

TABLE OF CONTENTS ......................................iv

TABLE OF AUTHORITIES.................................vi

PETITION FOR WRIT OF CERTIORARI...........1

OPINIONS BELOW.............................................1

JURISDICTION...................................................1

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS ............................1

INTRODUCTION ................................................3

STATEMENT OF THE CASE..............................5

REASONS FOR GRANTING REVIEW...............14

"Wholly discretionary review" is inadequate for

purposes of Younger abstention .......................14

The Ninth Circuit's "oral screening" procedures

deny due process ..............................................18

CONCLUSION.....................................................25

APPENDIX

United States Court of Appeals for the Ninth

App. 1

Circuit, Memorandum, December 26, 2018

....

United States District Court for the Northern

District of California, Order, October 19,

2017 ..................................................................App. 5

V

TABLE OF CONTENTS

Continued

-

Page

United States District Court for the Northern

District of California, Order, June 19,2017 ..... App. 11

United States District Court for the Northern

App. 16

District of California, Order, July 24, 2017

....

State Bar Court of California, Status Conference

Order, November 27, 2017 .............................App. 17

United States Court of Appeals for the Ninth

Circuit, Order, February 21, 2019..................App. 20

Ninth Circuit General Order ............................App. 21

Constitutional and Statutory Provisions..........App. 26

Joint Status Report, August 29, 2017...............App. 31

Précis, August 6, 2017 .......................................App. 43

Statement of Nonopposition, September 15,

2017 ................................................................App. 47

Transcript of Proceedings, June 1, 2017...........App. 49

Transcript of Proceedings, July 20, 2017..........App. 51

James Getz, US Judge Sanctions State Bar,

Los Angeles Daily Journal, July 21, 2017 .....App. 66

Vi

TABLE OF AUTHORITIES

Page

CASES

Alleghany Corp. v. Haase, 896 F.2d 1046 (7th Cir.

1990) cert. granted, judgment vacated sub

nom. Dillon v. Alleghany Corp., 499 U.S. 933,

111 S. Ct. 1383, 113 L. Ed. 2d 441 (1991) ..............14

Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct.

1187, 14 L. Ed. 2d 62 (1965) ...................................17

Canatella v. California, 404 F.3d 1106 (9th Cir.

2005) .............................. . ...................................14,15

Carducci v. Regan, 714 F.2d 171 (C.A.D.C. 1983) .......21

Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532,

105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985) ................18

duPont v. S. Nat. Bank of Houston, Tex., 771 F.2d

874 (5th Cir. 1985)...................................................17

Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49

L. Ed. 2d 547 (1976)................................................16

Hirsh v. Justices of Supreme Court of State of

Cal., 67 F.3d 708 (9th Cir. 1995).............................15

Hous. Auth. v. Midkiff, 467 U.S. 229, 104 S. Ct.

2321, 81 L. Ed. 2d 186 (1984) .................................13

In re Rose, 22 Cal. 4th 430, 993 P.2d 956

(2000)..............................................................4, 15, 17

INS v. Chadha, 462 U.S. 919,103 S. Ct. 2764,77

L. Ed. 2d 317 (1983)................................................22

LaChance v. Erickson, 522 U.S. 262, 118 S. Ct.

753, 139 L. Ed. 2d 695 (1998) ...........................17, 21

Lawson v. Stephens, 900 F.3d 715 (5th Cir. 2018).......18

Vii

TABLE OF AUTHORITIES

Continued

-

Page

Lozman v. City of Riviera Beach, Fla., 138 S. Ct.

1945, 201 L. Ed. 2d 342 (2018) ................................15

Middlesex County Ethics Comm. v. Garden State

Bar Assn, 457 U.S. 423, 102 S. Ct. 2515, 73

L. Ed. 2d 116 (1982)..........................................14, 16

Nat'l Aeronautics & Space Admin. v. Nelson, 562

U.S. 134, 131 S. Ct. 746, 178 L. Ed. 2d 667

(2011).......................................................................21

Nationwide Biweekly Admin., Inc. v. Owen, 873

F.3d 716 (9th Cir. 2017) cert. denied sub nom.

Nationwide Biweekly Admin., Inc. v. Hubanks,

138 S. Ct. 1698, 200 L. Ed. 2d 953 (2018) ..............12

Stern v. Marshall, 564 U.S. 462, 131 S. Ct. 2594,

180 L. Ed. 2d 475 (2011) .............................18, 21, 22

Ty Clevenger v. Gregory Dresser, et al., Case No.

3:17-cv-02798 (N.D. Cal. 2017) .................................7

United States v. Ness, 652 F.2d 890 (9th Cir.

1981) ........................................................................10

Wadley S. Ry. Co. v. State of Georgia, 235 U.S.

651, 35 S. Ct. 214, 59 L. Ed. 405 (1915)...................16

Wilson v. Thompson, 593 F.2d 1375 (5th Cir.

1979) ........................................................................23

Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27

L. Ed. 2d 669 (1971) .............................. 4,7,8, 14, 17

viii

TABLE OF AUTHORITIES

Continued

-

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I .........................................1, 15, 16

U.S. Const. amend. V ....................................................2

U.S. Const. amend. XIV................................................2

California Const. Art. 3.5 ...........................................15

California Const. Art. 6 ................................................4

STATUTES

28 U.S.C. §1254 .............................................................1

42 U.S.C. §1983 .........................................................3, 4

CALIFORNIA BUSINESS & PROFESSIONS CODE

§6128 .........................................................................5

CALIFORNIA PENAL CODE §135.......................................5

RULES

CALIFORNIA STATE BAR RULE 5.111(D)(1) ...................15

CALIFORNIA STATE Bu RULE OF PROCEDURE

2201(a).......................................................................

CALIFORNIA STATE BAR RULE OF PROCEDURE

2201(c)(1)...................................................................6

ix

TABLE OF AUTHORITIES

Continued

-

Page

OTHER AUTHORITIES

Alex Kozinski, "The Appearance of Propriety,"

Legal Affairs, Jan.-Feb. 2005 ..................................20

"California bar prosecutor implicates herself in

crime," June 1, 2016, http://lawflog.coml?p=

1221 ...........................................................................5

"State bar prosecutor who investigated prosecutorial misconduct is accused of prosecutorial

misconduct," http://Iawflog.com/?p=1185 .................5

David S. Caudill, "Parades of Horribles, Circles

of Hell: Ethical Dimensions of the Publication

Controversy," 62 Wash. & Lee L. Rev. 1653,

1660(2005) ..............................................................19

Jan. 16, 2004 Letter from Judge Kozinski to

Judge Auto, Chairman, Advisory Comm. on

Appellate Rules 7 ..............................................19, 22

John B. Oakley, "The Screening of Appeals: The

Ninth Circuit's Experience in the Eighties

and Innovations for the Nineties," 1991 BYU

L. Rev. 859 (1991)....................................................22

Judge Alex Kozinski and Judge Stephen Reinhardt, "Please Don't Cite This! Why We Don't

Allow Citation to Unpublished Dispositions,"

Cal. Law., June 2000, at 43-44 (copy available

at http://www.nonpublication.com/don't%20

cite%20this.htm) .....................................................19

NX

TABLE OF AUTHORITIES

Continued

-

Page

Mann K. Levy, "The Mechanics of Federal Appeals: Uniformity and Case Management in

the Circuit Courts," 61 Duke L.J. 315 (November2011) .................................................................. 22

Penelope Pether, "Sorcerers, not Apprentices:

How Judicial Clerks and Staff Attorneys Impoverish U.S. Law," 39 Ariz. St. L.J. 1 (Spring

2007) ............................................................18, 20, 22

David S. Law, "Strategic Judicial Lawmaking:

Ideology, Publication, and Asylum Law in the

Ninth Circuit," 73 U. Cm. L. Rev. 817 (Spring

2005) ........................................................................19

Robert Timothy Reagan et al., Fed. Judicial

Ctr., Citing Unpublished Opinions in Federal

Appeals 66 app. (2005) ............................................20

I

PETITION FOR WRIT OF CERTIORARI

Petitioner Ty Clevenger respectfully petitions for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit, Pet. App. 1, can be found at 746

Fed.Appx. 645. The order of the United States District

Court for the Northern District of California granting

the Respondents' motion to dismiss, Pet. App. 5, can be

found at 2017 WL 6551154.

JURISDICTION

The judgment of the Court of Appeals was entered

on December 26, 2018. The Petitioner's petition for rehearing and petition for rehearing en banc were denied

on February 21, 2019. This Court has jurisdiction under 28 U.S.C. §1254.

RELEVANT CONSTITUTIONAL

AND STATUTORY PROVISIONS

The First Amendment to the United States Constitution provides:

2

"Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the government for a redress of grievances."

The Fifth Amendment to the United States Constitution provides:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness against himself,nor be deprived of life,

liberty, or property, without due process of

law; nor shall private property be taken for

public use, without just compensation."

The Fourteenth Amendment to the United States

Constitution, Section 1 provides:

"All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

state wherein they reside. No state shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

3

its jurisdiction the equal protection of the

laws."

42 U.S.C. §1983 provides in pertinent part:

"Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within

the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured

by the constitution and laws, shall be liable

to the party injured in an action at law, suit in

equity, or other proper proceeding for redress,

except that in any action brought against ajudicial officer for an act or omission taken in

such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory

decree was violated or declaratory relief was

unavailable."

INTRODUCTION

The Petitioner, Ty Clevenger, is an attorney and

blogger who often writes about legal and judicial misconduct at LawFlog.com. In 2016, he blogged about

California bar prosecutors who withheld exculpatory

evidence from a respondent attorney (who happened to

be the Petitioner's former client). The Petitioner filed

grievances against the bar prosecutors and also reported the misconduct to the San Francisco County

District Attorney's Office, triggering an inquiry from a

4

criminal prosecutor. Shortly thereafter, the California

Bar re-opened a closed disciplinary case against the

Petitioner under a new case number. At the same time,

the chief bar prosecutor refused to appoint a special

prosecutor (as required by the bar's own rules) to investigate the Petitioner's grievances against the bar

prosecutors. Instead, his deputy dismissed the grievances without an investigation.

The Petitioner filed suit in the Northern District

of California under 42 U.S.C. § 1983, seeking injunctive

relief on the grounds of selective prosecution and First

Amendment retaliation. He argued that Younger v.

Harris abstention was improper for several reasons,

including the fact that California law prohibited him

from asserting federal claims before the state bar's

hearing officers and appellate panels.' The Petitioner

further explained that the California Supreme Court

had never permitted an attorney respondent to present

a constitutional claim since it made judicial review discretionary 19 years earlier. In fact, the California Supreme Court has never granted relief of any kind to a

disciplinary respondent since judicial review became

discretionary. The district court nonetheless dismissed

the case on Younger abstention grounds, holding that

judicial review was adequate. On appeal, the Ninth

Circuit canceled oral argument pursuant to its General Order 6.5, permitting the case to be resolved by an

California calls its disciplinary hearing system the "State

Bar Court," but it also recognizes that the hearing system is not

really a court. In re Rose, 22 Cal. 4th 430, 438, 993 P.2d 956, 961

(2000), citing California Const. Art. 6.

5

anonymous staff attorney. The appellate opinion rejected a facial challenge to California law, citing prior

Ninth Circuit holdings, but it ignored the fact that the

Petitioner presented an as-applied challenge. Indeed,

the staff attorney's opinion ignored or misrepresented

most of the issues on appeal.

STATEMENT OF THE CASE

1. Factual Background: On May 9, 2016, the

Petitioner first blogged about a senior California bar

prosecutor, Cydney Batchelor, who withheld exculpatory evidence in a disciplinary case against Wade Robertson, the Petitioner's former client. See "State bar

prosecutor who investigated prosecutorial misconduct

is accused of prosecutorial misconduct," http://lawfiog.

com/?p= 1185; see also "California bar prosecutor implicates herself in crime," June 1, 2016, http:/flawfiog.

com/?p=1221. Ms. Batchelor had, ironically, chaired the

California Bar's task force on prosecutorial misconduct, and she had personally prosecuted criminal prosecutors for withholding exculpatory evidence. The

Petitioner also filed a bar grievance against Ms. Batchelor and her co-counsel, as well as a criminal complaint

with the San Francisco County District Attorney's Office, citing CALIFORNIA PENAL CODE §135 (criminalizing

the concealment of evidence) and CALIFORNIA BUSINESS

& PROFESSIONS CODE §6128 (criminalizing deceit by an

attorney). Despite the fact that California Bar rules

• mandated the appointment of a special counsel, see

CALIFORNIA STATE BAR RULE OF PROCEDURE 2201(a)

and (c)(1), the bar grievances were assigned to Mr.

Dresser's deputy, who then dismissed them without an

investigation.

Shortly thereafter (the exact date is uncertain),

the California Bar opened Case No. 16-J-17320, which

was premised on events in Texas and the District of

Columbia that had happened nearly four years earlier.

The California Bar had already considered those

events in Case No. 13-0-1016, and that case was closed

after the Petitioner accepted a reprimand from the

State Bar of Texas for the same events. In other words,

the California Bar reopened a closed case in 2016 after

the Petitioner blogged about corruption in the California Bar and filed complaints against bar prosecutors.

On April 5, 2017, California bar prosecutors notified

the Petitioner that they intended to file disciplinary

charges against him. The Respondents said they intended to seek his disbarment for events that occurred

in other jurisdictions, i.e., Texas and D.C., even though

(1) the Petitioner was an inactive member of the California Bar, (2) he had not practiced in California for

almost a decade, and (3) the jurisdictions where he was

actively practicing were not seeking reciprocal discipline, much less disbarment.2

The Petitioner should, at least briefly, summarize the events

in Texas and D.C. The Texas bar first investigated a 2011 sanctions order from the Western District of Texas and a 2012 sanctions order from the D.C. district court wherein the Petitioner was

accused of multiplying proceedings. The Petitioner produced evidence that the sanctions in D.C. were the result of a fraud on the

court perpetrated by his opposing counsel, and that the presiding

judge in D.C. had been communicating ex parte with his opposing

2

7

2. District court proceedings: On May 15, 2017,

the Petitioner filed Ty Clevenger v. Gregory Dresser, et

al., Case No. 3:17-cv-02798 (N.D. Cal. 2017), alleging

selective prosecution and seeking injunctive relief

against Mr. Dresser, who was then the interim chief

bar prosecutor, and bar prosecutors Stacia L. Johns

and Kimberly G. Kasreliovich. The Petitioner requested a preliminary injunction, but the Respondents

argued that the federal court was required to abstain

for the reasons set forth in Younger v. Harris, 401 U.S.

37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). At a June 1,

2017 hearing on the preliminary injunction, District

Judge William H. Alsup noted that disciplinary

counsel when she covered up that fraud. After producing that evidence, the Texas bar dropped all charges arising from the D.C.

sanctions, and the Petitioner voluntarily accepted a reprimand

pertaining to the Texas sanction. Apparently dissatisfied with

that result, the D.C. court opened its own disciplinary proceeding,

but it refused to permit discovery and it refused to permit witness

testimony at "trial" on the disciplinary charges, so the Petitioner

agreed to a $5,000 fine and a 180-day suspension, followed by the

Petitioner's voluntary resignation. The jurisdictions wherein the

Plaintiff is an active member and actively practicing, e.g., the Fifth

Circuit and the Southern District of Texas, have flatly refused to

reciprocate the discipline imposed by the D.C. court since the matter had already been considered and rejected by the State Bar of

Texas. Conversely, California is seeking the Petitioner's outright

disbarment even though he has not practiced in California for almost a decade, and even though none of the alleged misconduct

occurred in California. To be clear, this is now the third time in

six years that the Petitioner has been prosecuted for the exact

same events. In support of his selective prosecution claim, the Petitioner asked the Respondents to identify other instances in

which the California Bar sought to impose more severe discipline

on an -inactive member than what had been imposed where he or

she was active, but the Respondents have ignored that request.

charges had not been filed as of that date, ergo Younger

abstention was not required. Judge Alsup further said

he was inclined to allow the Petitioner to conduct a

deposition in support of his claims. In an attempt to

prevent that discovery, counsel for the Respondents,

Suzanne Grandt, assured Judge Alsup that the Petitioner would be permitted to (1) assert his constitutional claims in the state bar proceedings and (2)

conduct discovery in support of those claims. Judge

Alsup accepted those representations:

Motion for Preliminary Injunction denied.

And the main reason I'm denying it is because

Ms. Grandt has represented to me that plaintiff will be able to take all the discovery necessary or that he wishes. He will have a fair

opportunity in the state bar court to subpoena

appropriate people to show that he's being retaliated against. And if that turns out not to

be true, you may come back and see me and

maybe we will give a preliminary injunction

at that point.

June 1, 2017 Hearing Transcript 22, Pet. App. 49. As

set forth below, those representations were completely

false.

Shortly after the preliminary injunction hearing,

the Petitioner learned that California law did not grant

discovery rights in reciprocal discipline proceedings,

and it flatly prohibited the Petitioner from presenting

his federal constitutional claims in State Bar Court.

The Petitioner demanded that Respondents' Counsel

notify the district court that its representations at the

June 1, 2017 hearing which had caused the district

court to deny discovery and deny injunctive relief

were untrue. Respondents' Counsel initially balked,

then filed an obscure pleading that did not disclose the

misrepresentation.

-

-

On June 12, 2017, the Petitioner notified the district court that Respondents' Counsel made false representations about the availability of discovery and the

opportunity to assert federal claims in the State Bar

Court. In response, the district court issued an order

outlining the false representations and setting a hearing for July 20, 2017. See June 19, 2017 ORDER SETTING

HEARING, Pet. App. 11. At that hearing, Judge Alsup

learned that just days after the Respondents told him

that discovery would be available to the Petitioner in

the State Bar Court, the Respondents had urged the

State Bar Court to block the Petitioner's request for

discovery on the grounds that it was prohibited by

state law. July 20, 2017 Hearing Transcript 8, Pet.

App. 16. In other words, the Respondents told Judge

Alsup one thing and told the State Bar Court the exact

opposite. Judge Alsup angrily accused Respondents'

Counsel of misleading him, and he sanctioned the Respondents by permitting the Petitioner to conduct a

single, two-hour deposition of Mr. Dresser. Id. at 8-9.

This resulted in even more bad publicity for the scandal-ridden California Bar and its prosecutors. See

James Getz, "US judge sanctions State Bar" July 21,

2017, Los Angeles Daily Journal, Pet. App. 66. The Petitioner, meanwhile, presented an as-applied challenge

to California disciplinary procedures, noting that the

10

California Supreme Court had never allowed an attorney to present federal constitutional claims since judicial review became discretionary.

At the July 20, 2017 hearing, Judge Alsup stated

in open court that he did not believe the Petitioner

would get a fair hearing in State Bar Court. See July

20, 2017 Hearing Transcript at 9 ("I don't believe

you'll get a fair hearing in the State Bar Court. I think

the way this thing has been presented to me, that

they're going to shortchange you"). Nonetheless, he rejected the Petitioner's attempts to conduct discovery,

including a list of proposed interrogatories for the Respondents, e.g., "Identify all cases (if any) in the last

fifteen ten years wherein the California Bar prosecuted an inactive member for acts that occurred in another jurisdiction in which the attorney was admitted

to practice."'

The district court authorized a two-hour deposition

of Mr. Dresser as a "sanction" for counsel's misrepresentations, but that too was a fiasco. Shortly before the

deposition, the Petitioner sent Mr. Dresser's attorneys

a list of questions related to the Petitioner's equal protection claims, namely the interrogatories identified

That question has never been answered even though it is

critical to establishing a selective prosecution claim. See United

States v. Ness, 652 F.2d 890, 892 (9th Cir. 1981) ("To succeed on

a claim of selective prosecution a defendant has the burden of establishing that others similarly situated have not been prosecuted and that the allegedly discriminatory prosecution of the

defendant was based on an impermissible motive.") The Petitioner cannot identify similarly-situated respondents without answers to such questions.

11

above. At the deposition, one of the bar attorneys revealed that he had never shared the questions with Mr.

Dresser. Mr. Dresser nonetheless admitted he had seen

the questions previously when the Plaintiff proposed

them to the court as interrogatories, but he claimed to

have no answers to any of the questions. See JOINT

STATUS REPORT, Pet. App. 31 (summarizing the deposition and citing the reporter's record). He went a step

further in "playing dumb" when he testified that, even

though he was the chief prosecutor, he did not know

who in his office would have the answer to the Petitioner's questions. Id.

One might have expected the district judge to be

outraged by Mr. Dresser's evasions and bad faith, but

the judge instead directed his ire toward the Petitioner,

falsely alleging that the Petitioner had asked "unreasonable questions" and "squandered" the deposition.

ORDER GiwTrmG MOTION TO DISMISS at 1, 4. (In the

Court of Appeals, the Petitioner defied the Respondents to identify any such "unreasonable questions," but

they could not identify a single one. Compare APPELLANT'S BRIEF, 2018 WL 986582 at 33, with APPELLEE'S

BRIEF, 2018 WL 1791737) .4 To this day, the Respondents have never been forced to answer basic questions

about selective prosecution, e.g., whether they have

previously sought disbarment of an inactive member

The Petitioner can only wonder whether the court's protectiveness toward Mr. Dresser was related to a belated disclosure

from Judge Alsup: Eighteen days after denying the request for a

preliminary injunction, Judge Alsup disclosed that Mr. Dresser

was his former law partner.

12

based on (1) events that occurred in another jurisdiction and where (2) discipline was adjudicated in that

other jurisdiction. Likewise, they have never been required to disclose who made the decision to re-open

Case No. 13-0-1016 as Case No. 16-J-17320, or who

made the decision to seek disbarment (in his deposition, Mr. Dresser claimed he did not know the answer

to those questions).

Judge Alsup nonetheless dismissed the case on

Younger abstention grounds on October 19, 2017. See

ORDER GRANTING MOTION TO DISMISS, Pet. App. 5.

Among other reasons, Judge Alsup indicated that

there had been no "proceedings of substance on the

merits" when disciplinary charges were filed. Id. at 2.

At the time of dismissal, however, the district court

had already conducted two hearings, including a preliminary injunction hearing, it had issued several orders, and it had sanctioned the Respondents for their

fraud. More shocking was the fact that Judge Alsup

had literally rewarded the Respondents for their fraud

by dismissing the case. Recall his statement on June 1,

2017 that "the main reason I'm denying [the preliminary injunction] is because Ms. Grandt has represented to me that plaintiff will be able to take all the

discovery necessary or that he wishes." A preliminary

injunction would have been "a proceeding of substance

on the merits" per se and would have foreclosed

Younger abstention. See Nationwide Biweekly Admin.,

Inc. v. Owen, 873 F.3d 716, 728 (9th Cir. 2017) ("the

grant of a preliminary injunction is always a proceeding of substance on the merits") cert. denied sub nom.

13

Nationwide Biweekly Admin., Inc. v. Hubanks, 138

S. Ct. 1698,200 L. Ed. 2d 953 (2018), citing Hous. Auth.

v. Midkiff, 467 U.S. 229, 238, 104 S. Ct. 2321, 81

L. Ed. 2d 186 (1984). The Respondents thus thwarted

the preliminary injunction by lying about the availability of discovery in State Bar Court, and Judge Alsup

gave them the very objective of their fraud when he

dismissed the case anyway.

3. Ninth Circuit. In the Ninth Circuit, the Respondent again asserted an as-applied challenge to

California's judicial review procedures (among several

other issues on appeal). He acknowledged that the

Ninth Circuit had repeatedly rejected facial challenges

to those procedures, but the Ninth Circuit had never

before addressed an as-applied challenge. A threejudge panel canceled oral argument on December 6,

2018, and on December 26, 2018 the Court of Appeals

affirmed the district court in a four-page opinion that

treated the as-applied challenge as a facial challenge.

See MEMORANDUM OPINION, Pet. App. 1. On January 9,

2019, the Petitioner filed a petition for rehearing and

rehearing en banc, noting that only the en banc panel

would be able to consider both a facial challenge and

an as-applied challenge to California's judicial review

procedures. The Petitioner also challenged Ninth Circuit General Order 6.5, which had permitted a staff attorney to adjudicate the case pursuant to the Ninth

Circuit's "oral screening" procedures. The petition for

rehearing was denied without explanation.

14

REASONS FOR GRANTING REVIEW

"Wholly discretionary review" is inadequate

for purposes of Younger abstention.

It is "extraordinarily common" for states to prohibit consideration of constitutional questions during

administrative proceedings, see Alleghany Corp. v.

Haase, 896 F.2d 1046, 1051-52 (7th Cir. 1990) (Easterbrook, J., concurring and citing cases), cert. granted,

judgment vacated sub nom. Dillon v. Alleghany Corp.,

499 U.S. 933, 111 S. Ct. 1383, 113 L. Ed. 2d 441 (1991),

thus the first question raised by the Petitioner is one

of great legal and practical importance.

In Younger v. Harris, the Court held that federal

courts should abstain from interfering in state criminal prosecutions so long as criminal defendants have

an opportunity to litigate their federal claims in state

court. 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669

(1971). The Court extended that rule to attorney disciplinary proceedings in Middlesex County Ethics

Comm. v. Garden State Bar Assn, holding that federal

courts should not intervene so long as respondents

have an "opportunity to raise and have timely decided

by a competent state tribunal the federal issues involved. . . ." 457 U.S. 423, 437, 102 S. Ct. 2515, 2524, 73

L. Ed. 2d 116 (1982). The Court has never elaborated

on what an "opportunity to raise and have timely decided" means, but the Ninth Circuit and the California

Supreme Court have long perverted that phrase beyond any reasonable interpretation. See, e.g., Canatella

v. California, 404 F.3d 1106, 1111 (9th Cir. 2005)

15

("Although judicial review is wholly discretionary, its

mere availability provides the requisite opportunity to

litigate [federal claims]"); see also In re Rose, 22 Cal.

4th 430, 993 P.2d 956 (2000) and Hirsh v. Justices of

Supreme Court of State of Cal., 67 F.3d 708 (9th Cir.

1995).

Under California law, the Petitioner is plainly prohibited from raising federal issues in state bar proceedings. In re Rose, 22 Cal. 4th at 438, 993 P.2d at 961

(2000), citing California Const. Art. 3.5. Like any other

respondent, he must first endure a de facto trial before

an administrative hearing officer, whose powers include the right to immediately and indefinitely suspend him from the practice of law pending disbarment.

See CALIFORNIA STATE BAR RULE 5.111(D)(1). The Petitioner must endure that suspension while he appeals

to the bar's administrative appeals panel, but he still

cannot raise federal issues, i.e., he cannot assert his

claim that he is being selectively prosecuted in retaliation for exercising his First Amendment rights. Only

after the administrative panel has recommended disbarment to the California Supreme Court can the

Plaintiff request permission to raise his federal claims

for the first time. Canatella, 404 F.3d at 1111.

On its face, California law cannot withstand

constitutional scrutiny. This Court has consistently

recognized First Amendment rights as among the

"most precious" rights guarded by the Constitution,

see Lozrnan v. City of Riviera Beach, Fla., 138 S. Ct.

1945, 1954, 201 L. Ed. 2d 342 (2018), elsewhere holding that "the loss of First Amendment freedoms, for

16

even minimal periods of time, unquestionably constitutes irreparable injury," Elrod v. Burns, 427 U.S. 347,

373, 96 S. Ct. 2673, 2690, 49 L. Ed. 2d 547 (1976).

Furthermore, Middlesex mandates an "opportunity to

raise and have timely decided" a constitutional claim,

457 U.S. at 437, 102 S. Ct. at 2524 (emphasis added),

yet California makes its lawyers run a prolonged administrative gauntlet and endure severe disciplinary

penalties before they can even request permission to

raise their First Amendment or equal protection

rights.

-

-

More than 100 years ago, this Court held that judicial review of state administrative decisions must be

more than theoretical: "[T]n whatever method enforced,

the right to a judicial review must be substantial, adequate, and safely available . . . " Wadley S. Ry. Co. v.

State of Georgia, 235 U.S. 651, 661, 35 S. Ct. 214, 218,

59 L. Ed. 405 (1915). It is self-evident that "the right to

a judicial review" is not a "right" if the reviewing court

has no obligation to provide such judicial review. As a

practical matter,constitutional rights are not worth

much at all when one is denied a forum to vindicate

those rights.5 And while this is not a case about

Even the State Bar Court seems to have acknowledged that

the Petitioner deserved a forum wherein he could present his constitutional claims. After acknowledging that it would be unable to

hear the constitutional claims, the State Bar Court took the unusual step of abating the disciplinary case while the Petitioner presented his claims in federal court, and even on appeal to the Ninth

Circuit. See November 11, 2017 STATE BAR COURT ORDER, Pet.

App. 17 ("Abatement is generally contrary to public protection.

However, here, on balance, the factors weigh in favor of abatement of the case pending the outcome in the Ninth Circuit."). As

17

procedural due process per Se, it should be obvious that

the third prong of Younger is not satisfied by state procedures that fail to afford basic due process.

The facial shortcomings of California's judicial review procedures are clear enough, but they become

even clearer when one considers the law as applied.

Not long after the California Supreme Court made judicial review discretionary, two dissenting justices

warned that judicial review would be illusory at best.

See In re Rose, 22 Cal. 4th at 460 et seq., 993 P.2d at

976 et seq. (J. Kennard and J. Brown, dissenting). Their

words were prophetic. Since Rose was decided, the California Supreme Court has never afforded any kind of

relief to a disciplinary respondent, much less relief

founded on federal constitutional claims. Furthermore,

the California Supreme Court has never before in its

170-year history permitted an appellant to conduct

discovery for the first time on appeal. If due process

includes a "right to fully and fairly litigate each issue"

in a party's case, duPont v. S. Nat. Bank of Houston,

Tex., 771 F.2d 8741 880 (5th Cir. 1985), citing Armstrong

v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14

L. Ed. 2d 62 (1965), that can hardly be reconciled with

a proceeding that provides no discovery whatsoever.

"The core of due process is the right to notice and

a meaningful opportunity to be heard." LaChance v.

Erickson, 522 U.S. 262, 266, 118 S. Ct. 753, 756, 139

noted above, the district judge also stated on the record that he

did not believe the Petitioner could obtain a fair trial in State Bar

Court.

1fS

L. Ed. 2d 695 (1998) (emphasis added), citing Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542, 105

S. Ct. 1487, 1493, 84 L. Ed. 2d 494 (1985). A theoretical, one-in-a-million chance to assert a constitutional

claim and an even smaller chance of obtaining discovery to support that claim cannot be reconciled

with that standard. Whether considered facially or asapplied, California's administrative procedures and

the Ninth Circuit's supportive case law are constitutionally indefensible, and they cry out for this Court's

supervisory jurisdiction.

-

-

The Ninth Circuit's "oral screening" procedures deny due process.

In its seminal 2011 opinion on the limits of bankruptcy court jurisdiction, this Court held that Congress

could not delegate Article III powers to persons other

than Article III judges. Stern v. Marshall, 564 U.S. 462,

484, 131 S. Ct. 2594, 2609, 180 L. Ed. 2d 475 (2011).

The circuit courts have had no difficulty applying that

principle in other settings, see, e.g. ,Lawson v. Stephens,

900 F.3d 715, 718 (5th Cir. 2018) ("Magistrate judges

operate as ancillary Article I judicial officers. They support, but cannot supplant, district judges"), yet surprising difficulty in applying that principle to themselves.

Several circuits now delegate significant and even

primary adjudicatory responsibilities to staff attorneys, and the Ninth Circuit's practices are perhaps the

best analyzed (and most widely criticized) in academic

literature. See, e.g., Penelope Pether, "Sorcerers, not

IL:]

Apprentices: How Judicial Clerks and Staff Attorneys

Impoverish U.S. Law," 39 Ariz. St. L.J. 1 (Spring 2007)

and David S. Law, "Strategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the Ninth Circuit," 73 U. Cin. L. Rev. 817 (Spring 2005). Judging

from the text of Ninth Circuit General Order 6.5 alone,

judges are not expected to read the briefs or otherwise

hear argument from the actual parties during "oral

screening" dispositions (which account for 100-150 dispositions each month), and Ninth Circuit judges themselves have confirmed that such is indeed the practice.

See Judge Alex Kozinski and Judge Stephen Reinhardt,

"Please Don't Cite This! Why We Don't Allow Citation

to Unpublished Dispositions," Cal. Law., June 2000, at

43-44 (copy available at http://www.nonpublication.

comldon't%20cite%20th1s.htm).

In a letter to then-Judge Samuel Auto, former

Ninth Circuit Chief Judge Alex Kozinski wrote that

screening opinions are "drafted by our central staff and

presented to a panel of three judges in camera, with an

average of five or ten minutes devoted to each case."

See David S. Caudill, "Parades of Horribles, Circles of

Hell: Ethical Dimensions of the Publication Controversy," 62 Wash. & Lee L. Rev. 1653, 1660 (2005) (quoting Jan. 16, 2004 Letter from Judge Kozinski to Judge

Auto, Chairman, Advisory Comm. on Appellate Rules

7) (hereinafter "Kozinski Letter"). "During a two- or

three-day monthly session, a panel of three judges may

issue 100 to 150 such rulings." Id. Chief Judge

Kozinski defended that practice to Judge Auto, id., but

elsewhere admitted just how profoundly deficient it is:

20

Ninth Circuit judges generally have four law

clerks, and the circuit shares approximately

70 staff attorneys, who process roughly 40

percent of the cases in which we issue a merits

ruling. When I say process, I mean that they

read the briefs, review the record, research

the law, and prepare a proposed disposition,

which they then present to a panel of three

judges during a practice we call "oral screenoral, because the judges don't see the

ing"

briefs in advance, and because they generally

rely on the staff attorney's oral description of

the case in deciding whether to sign on to the

proposed disposition. After you decide a few

dozen such cases on a screening calendar, your

eyes glaze over, your mind wanders, and the

urge to say O.K. to whatever is put in front of

you becomes almost irresistible.

-

Alex Kozinski, "The Appearance of Propriety," Legal

Affairs, Jan.-Feb. 2005, at 19. In other words, Article

III judges never receive any input from the actual litigants, but only a five- or ten-minute oral summary

from an anonymous staff attorney who has already

drafted the disposition .6 Writing in 2007, the late Professor Penelope Pether noted that other Ninth Circuit

judges largely confirmed these practices in anonymous

survey responses compiled by the Federal Judicial

Center. Pether, 39 Ariz. St. L.J. at 13, citing Robert

It is also worth noting that staff attorneys not judges

decide which cases the staff attorneys will handle and which cases

they will forward to a merits panel for disposition. See General

Order 6.5.

6

-

-

21

Timothy Reagan et al., Fed. Judicial Ctr., Citing Unpublished Opinions in Federal Appeals 66 app. (2005).

In Stern, this Court held that the job of adjudication "resolution of 'the mundane as well as the glamorous, matters of common law and statute as well as

constitutional law, issues of fact as well as issues of

law" belongs solely to Article III judges. Stern, 564

U.S. at 484 (internal citations omitted). That principle

cannot be squared with General Order 6.5, which permits a staff attorney to fully adjudicate an appeal

with no oversight other than a five- or ten- minute session with judges who have never read the briefs nor

the record.

-

-

In the proceedings below, the Petitioner challenged General Order 6.5 on due process grounds, but

the end result is the same. "The core of due process is

the right to notice and a meaningful opportunity to be

heard." LaChance, 522 U.S. at 266. A "meaningful

opportunity to be heard" necessarily implies a "meaningful opportunity to be heard" by the constitutionallydesignated adjudicators of the case. In an adversarial

system, the parties must be allowed to present their

own arguments directly to Article III judges. "The

premise of our adversarial system is that appellate

courts do not sit as self-directed boards of legal inquiry

and research, but essentially as arbiters of legal questions presented and argued by the parties before them."

Carducci v. Regan, 714 F.2d 171, 177 (C.A.D.C. 1983)

(opinion for the court by Scalia, J.) (emphasis added),

quoted with approval in Nat'l Aeronautics & Space

22

Admin. v. Nelson, 562 U.S. 134,147 n.10, 131 S. Ct. 746,

756, 178 L. Ed. 2d 667 (2O11).

This is an issue of great consequence, particularly

in those circuits (like the Ninth) wherein judges purport to adjudicate appeals without reading the briefs

or otherwise hearing from the parties. The proponents

of these shortcuts argue that they are necessary to

keep pace with an ever-increasing appellate workload,

see, e.g., Kozinski Letter at 5, quoted in Pether, 39 Ariz.

St. L.J. at 13, but at some point the shortcuts must be

constrained by the Constitution. "It goes without saying that 'the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of

government, standing alone, will not save it if it is contrary to the Constitution." Stern, 564 U.S. at 501, 131

S. Ct. at 2619, quoting INS v. Chadha, 462 U.S. 919,

944, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983).8

That said, the Petitioner's objections to "oral

screening" are not made in the abstract, as the opinion

below is exactly what one would expect from judges

One observer noted almost 30 years ago that increased reliance on staff attorneys was driving the Ninth Circuit from a

common-law adversarial system to a civil-code inquisitorial system. See John B. Oakley, "The Screening of Appeals: The Ninth

Circuit's Experience in the Eighties and Innovations for the Nineties," 1991 BYU L. Rev. 859, 922 (1991).

8 Even the practicality argument is eviscerated by the fact

that judges in other circuits handle comparable per capita caseloads and yet still find time to read the parties' briefs. See Mann

K. Levy, "The Mechanics of Federal Appeals: Uniformity and

Case Management in the Circuit Courts," 61 Duke L.J. 315 (November 2011).

23

who did not read the briefs nor the record. According

to the appellate opinion, for example, there was no evidence of bad faith on the part of bar prosecutors, MEMORANDUM OPINION 3-4, Pet. App. 3-4, even though the

Petitioner presented uncontested documentary evidence that the Respondents reopened a closed case

from 2013 under a new number in 2016, shortly after

the Petitioner exposed criminal misconduct by bar

prosecutors. To this day, the Respondents have not offered a plausible reason for reopening the case years

after it was closed.9

And it was more than a little disingenuous to

find "no evidence" of bad faith when the district court

had denied the Petitioner's requests for discovery.10

That fact alone should have weighed heavily against dismissal:

If the plaintiff shows that the State responded to his

exercise of a constitutionally protected right by bringing the prosecution, he may of course rely upon an inference of impermissible purpose. The strength of this

inference will depend upon the particular circumstances. If the State advances no other explanation for

so responding to the conduct, for example, the inference

will almost certainly carry the day.

Wilson v. Thompson, 593 F.2d 1375, 1387 (5th Cir. 1979).

10

The district judge went so far as to prohibit the parties

from filing motions without advance permission from the court.

See June 19, 2017 Order Setting Hearing, Pet. App. 11. The Petitioner asked the district court for permission to update his request

for a preliminary injunction, see September 6, 2017 PRECIS, Pet.

App. 43, and the Respondents did not object, see September 15,

2017 STATEMENT OF NON-OPPOSITION, Pet. App. 47, yet the district court never allowed the Petitioner to file the updated motion.

Needless to say, it is hard to litigate one's case when .the district

court arbitrarily forbids the parties from filing motions.

24

At the very least, the Petitioner presented a prima facie case that merited reasonable discovery in support

of his claims. Likewise, it was disingenuous to dismiss

the case on the grounds that it was in the "embryonic

stages" when the Respondents had perpetrated a fraud

on the court for the purpose of keeping it in the "embryonic stages."

The Petitioner does not ask the Court to sort out

these matters, as that was the job of the Court of Appeals. Instead, the Petitioner asks the Court to ensure

that he and others like him are afforded due process in

the Court of Appeals. Where, as here, the issues and

facts are complex, an appellate case cannot be understood much less accurately decided based on a fiveminute presentation from a staff attorney. Given the

sheer number of cases being decided by staff attorneys

in the Ninth Circuit alone, the threat to due process

rights is an enormous one that merits the attention of

this Court.

-

-

25

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted. In the alternative, the

Court should summarily vacate the opinion below and

remand it with directions to consider the issues raised

herein.

Respectfully submitted,

TY CLEVENGER

P.O. Box 20753

Brooklyn, New York 11217

tyclevenger@yahoo.com

Phone: 979-985-5289

Fax: 979-530-9523