Petition for Writ of Certiorari — Robert Doyle, Petitioner v. Douglas Palmer, Clerk, United States District Court for the Eastern District of New York

No. 19-

In the Supreme Court of the United States

_____________________

ROBERT DOYLE,

Petitioner,

v.

DOUGLAS C. PALMER, in his official capacity

as Clerk of the United States District Court

for the Eastern District of New York,

Respondent.

_____________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

TODD C. BANK

TODD C. BANK,

ATTORNEY AT LAW, P.C.

119-40 Union Turnpike

Fourth Floor

Kew Gardens, New York 11415

(718) 520-7125

tbank@toddbanklaw.com

Counsel for Petitioner

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTIONS PRESENTED FOR REVIEW

1.

Whether Congress may delegate, to the

Judicial Branch, the power to enact federal-court baradmission requirements that Congress lacks the power

to enact directly.

2.

Whether a federal district court may,

consistent with the First Amendment, force a bar

applicant to associate with a member of the bar of that

court and engage, with that member, in a significant

amount of expressive conduct.

3.

Whether a federal district court may,

consistent with the First Amendment, force a bar

applicant to waive his freedom of conscience.

i

LIST OF PARTIES AND

RULE 29.6 DISCLOSURE

The caption lists all of the parties. Petitioner,

Robert Doyle, is a natural person. Therefore, no

corporate-disclosure statement is required under

Supreme Court Rule 29.6.

STATEMENT OF DIRECTLY

RELATED PROCEEDINGS

There are no directly related proceedings.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW . . . . . . . . i

LIST OF PARTIES AND

RULE 29.6 DISCLOSURE . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF DIRECTLY

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . ii

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

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS AND ORDERS BELOW . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . 1

STATUTORY PROVISIONS INVOLVED . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3

REASONS FOR GRANTING THE PETITION . . . . 4

I.

TO THE EXTENT THAT STATUTES

AND RULES AUTHORIZE THE

AFFIDAVIT REQUIREMENT, SUCH

STATUTES AND RULES VIOLATE

THE DUE-PROCESS CLAUSE OF

THE FIFTH AMENDMENT . . . . . . . . . . . . . . . 4

iii

Page

Table of Contents (cont’d)

A. An Article III Court, in Determining

the Criteria for Admission to its Bar,

Does So Pursuant to a Congressional

Delegation of Legislative Authority . . . . 4

B. Congress May Not Delegate, to the

Other Branches of Government,

Power that Congress Does Not Have . . . 8

C. Congress Could Not Have Enacted

the Affidavit Requirement . . . . . . . . . . . . 9

II. THE AFFIDAVIT REQUIREMENT

VIOLATES THE FIRST AMENDMENT . . . . . 10

A. The Affidavit Requirement Violates

the First Amendment by Compelling

Petitioner to Engage in Expressive

Association and Conduct . . . . . . . . . . . . 11

B. The Affidavit Requirement Violates

Petitioner’s Freedom of Conscience . . . . 13

C. The District Court Relied

Upon Cases That Did Not

Address the First Amendment Questions at Issue . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

iv

Page

Table of Contents (cont’d)

APPENDIX

A. Robert Doyle v. Douglas C. Palmer,

Order (2d. Cir. December 16, 2019) . . . . . . . . . 1a

B. Robert Doyle v. Douglas C. Palmer,

Order (E.D.N.Y.. March 19, 2019) . . . . . . . . . . 4a

C. Robert Doyle v. Douglas C. Palmer,

Order denying Petition for Rehearing with

Suggestion for Rehearing En Banc

(2d. Cir. January 31, 2020) . . . . . . . . . . . . . . 18a

v

TABLE OF AUTHORITIES

Page

CONSTITUTIONAL PROVISIONS

U.S. Const., Art. I, § 8, cl. 9 . . . . . . . . . . . . . . . . . . . 8

U.S. Const., Art. I, § 8, cl. 18 . . . . . . . . . . . . . . . . . . 8

U.S. Const., Art. III . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

U.S. Const., Am. I . . . . 3, 4, 10, 11, 13, 14, 16, 18, 20

U.S. Const., Am. V . . . . . . . . . . . . . . . . . . . . . . . 4, 10

STATUTES AND RULES

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

28 U. S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U. S.C. § 1651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 1654 . . . . . . . . . . . . . . . . . . . 2, 3, 5, 9, 10

28 U.S.C. § 2071(a) . . . . . . . . . . . . . . . . . 2, 3, 7, 9, 10

28 U. S.C. § 2072 . . . . . . . . . . . . . . . . . . . . . . . 3, 8, 10

28 U. S.C. § 2072(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7

28 U. S.C. § 2075 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

vi

Page

Table of Authorities;

Statutes and Rules (cont’d)

C.D. Calif. L.R. 83-2.1.2.1 . . . . . . . . . . . . . . . . . . . . 12

E.D. Mo. L.R. 83-12.01(B) . . . . . . . . . . . . . . . . . . . . 12

E.D.N.Y. L.R. 1.3(a) . . . . . . . . . . . . . . . . . . . . passim

Fed. R. Civ. P. 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Fed. R. Civ. P. 83(a)(1) . . . . . . . . . . . . . . . . 3, 7, 9, 10

CASES

Brown v. McGarr,

774 F.2d 777 (7th Cir. 1985) . . . . . . . . . . . . . . . 5-6

Chambers v. NASCO, Inc.,

501 U.S. 32 (1991) . . . . . . . . . . . . . . . . . . . . . 16-17

Church of Lukumi Babalu

Aye, Inc. v. Hialeah,

508 U.S. 520 (1993) . . . . . . . . . . . . . . . . . . . . . . . 14

Ex parte Burr,

22 U.S. 529 (1824) . . . . . . . . . . . . . . . . . . . . . 17, 18

Ex parte Secombe,

60 U.S. 9 (1857) . . . . . . . . . . . . . . . . . . . . . . . . . . 16

vii

Page

Table of Authorities; Cases (cont’d)

Frazier v. Heebe,

482 U.S. 641 (1987) . . . . . . . . . . . . . . . . . . . . . . 5, 7

Janus v. American Federation

of State, County, and Municipal

Employees, Council 31,

138 S. Ct. 2448 (2018) . . . . . . . . . . . . . . . . . . . . . 11

Loving v. United States,

517 U.S. 748 (1996) . . . . . . . . . . . . . . . . . . . . . . . . 8

Matter of Abrams,

521 F.2d 1094 (3d Cir. 1975) . . . . . . . . . . . . . . . . 5

Matter of Frazier,

594 F. Supp. 1173 (E.D. La.1984),

aff’d, 788 F.2d 1049 (5th Cir. 1986),

rev’d on other grounds, Frazier v. Heebe,

482 U.S. 641 (1987) . . . . . . . . . . . . . . . . . . . . . . 8-9

Matter of Roberts,

682 F.2d 105 (3d Cir. 1982) . . . . . . . . . . . . . . . 5-6

Mistretta v. United States,

488 U.S. 361 (1989) . . . . . . . . . . . . . . . . . . . . . . 6, 7

NAAMJP v. Howell,

851 F.3d 12 (D.C. Cir. 2017) . . . . . . . . . . . . . 19, 20

viii

Page

Table of Authorities; Cases (cont’d)

NAAMJP v. Lynch,

826 F.3d 191 (4th Cir. 2016) . . . . . . . . . . . . . 19, 20

Ohralik v. Ohio State Bar Ass’n,

436 U.S. 447 (1978) . . . . . . . . . . . . . . . . . . . . 18, 19

Parents for Privacy v. Barr,

949 F.3d 1210 (9th Cir. 2020) . . . . . . . . . . . . 14-15

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) . . . . . . . . . . . . . . . . . . . . . . . 12

Randall v. Brigham,

74 U.S. 523 (1869) . . . . . . . . . . . . . . . . . . . . . . . . 16

Riley v. Nat’l Fed’n of

the Blind of N.C., Inc.,

487 U.S. 781 (1988) . . . . . . . . . . . . . . . . . . . . 12, 13

Roberts v. United States Jaycees,

468 U.S. 609 (1984) . . . . . . . . . . . . . . . . . . . . . . . 12

Sanders v. Russell,

401 F.2d 241 (5th Cir.1968) . . . . . . . . . . . . . . . . . 6

Sibbach v. Wilson & Co.,

312 U.S. 1 (1941) . . . . . . . . . . . . . . . . . . . . . . . . 6-7

Wayman v. Southard,

23 U.S. 1 (1825) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ix

Page

Table of Authorities; Cases (cont’d)

Zhang v. Chinese Anti-Cult World Alliance,

311 F. Supp. 3d 514 (E.D.N.Y. 2018) . . . . . . . . . 14

OTHER AUTHORITIES

Theresa Keeley,

Comment, Good Moral Character: Already an

Unconstitutionally Vague Concept and Now

Putting Bar Applicants in a Post-911 World

on an Elevated Threat Level,

6 U. Pa. J. Const. L. 844 (2004) . . . . . . . . . . . . . . 4

x

INTRODUCTION

Robert Doyle (“Doyle”) respectfully petitions this

Court for a writ of certiorari to the United States Court

of Appeals for the Second Circuit.

OPINIONS AND ORDERS BELOW

The Order of the United States Court of Appeals

for the Second Circuit, dated December 16, 2019 (the

“Subject Order”), which is not reported, is reprinted in

the Appendix to this Petition (“Appx.”) at Appx. A, 1a4a.

The Memorandum & Order of the United States

District Court for the Eastern District of New York,

dated March 19, 2019 (the “Opinion”), is reported at

365 F. Supp. 3d 295, and is reprinted at Appx. B, 5a22a.

The Order of the Court of Appeals denying Doyle’s

Petition for Rehearing with Suggestion for Rehearing

En Banc, dated January 31, 2020, which is not

reported, is reprinted at Appx. C, 23a-24a.

STATEMENT OF JURISDICTION

On December 16, 2019, the Subject Order was

entered.

On December 30, 2019, Doyle filed a Petition for

Rehearing with Suggestion for Rehearing En Banc,

which the Court of Appeals denied on January 31,

1

2020.

This Court has jurisdiction under 28 U.S.C. §

1254(1).

STATUTORY PROVISIONS INVOLVED

Civil Rule 1.3(a) of the Local Rules of the

United States District Court for the

Eastern District of New York

...

[An] application [for admission to the bar] shall . . . be

accompanied by an affidavit of an attorney of this

Court who has known the applicant for at least one

year, stating when the affiant was admitted to practice

in this Court, how long and under what circumstances

the attorney has known the applicant, and what the

attorney knows of the applicant’s character and

experience at the bar.

28 U.S.C. Section 1654

In all courts of the United States the parties may plead

and conduct their own cases personally or by counsel

as, by the rules of such courts, respectively, are

permitted to manage and conduct causes therein.

28 U.S.C. Section 2071(a)

The Supreme Court and all courts established by Act

of Congress may from time to time prescribe rules for

2

the conduct of their business. Such rules shall be

consistent with Acts of Congress and rules of practice

and procedure prescribed under section 2072 of this

title.

Federal Rule of Civil Procedure Rule 83(a)(1)

After giving public notice and an opportunity for

comment, a district court, acting by a majority of its

district judges, may adopt and amend rules governing

its practice. A local rule must be consistent with—but

not duplicate— federal statutes and rules adopted

under 28 U.S.C. §§ 2072 and 2075 . . . .

STATEMENT OF THE CASE

Doyle brought the underlying action in the Eastern

District of New York, which had jurisdiction under 28

U.S.C. Sections 1331 and 1361.

Doyle alleged that the requirement, of Civil Rule

1.3(a) of the Local Rules of the United States District

Court for the Eastern District of New York, to obtain

an affidavit (the “Affidavit Requirement”) is unConstitutional because, inter alia: (i) it was enacted

pursuant to any or all of three provisions, i.e., 28

U.S.C. Section 1654 (the “Admission Statute”), 28

U.S.C. Section 2071(a) (the “Prescribing Statute”), and

Rule 83(a)(1) of the Federal Rules of Civil Procedure

(the “Rule-Making Rule”), each of which, to the extent

of having authorized the enactment of the Affidavit

Requirement, violated the non-delegation doctrine; (ii)

it violated the First Amendment by forcing Doyle to

3

engage in speech and expressive association, and to

violate his conscience.

REASONS FOR GRANTING THE PETITION

As set forth below, the Court of Appeals: (i) decided

important Constitutional questions that have not

specifically been, but should be, settled by this Court;

and (ii) disregarded relevant decisions of this Court.

This case presents an opportunity to address: (i)

important questions concerning the non-delegation

doctrine; and (ii) “the Supreme Court’s lack of clarity

in the area of First Amendment rights for bar

applicants[,] [which] confuses character[-]and[-]fitness

committees.” Theresa Keeley, Comment, Good Moral

Character: Already an Unconstitutionally Vague

Concept and Now Putting Bar Applicants in a Post-911

World on an Elevated Threat Level, 6 U. Pa. J. Const.

L. 844, 873 (2004).

I.

TO THE EXTENT THAT STATUTES AND

RULES AUTHORIZE THE AFFIDAVIT

REQUIREMENT, SUCH STATUTES AND

RULES VIOLATE THE DUE-PROCESS

CLAUSE OF THE FIFTH AMENDMENT

A.

An Article III Court, in Determining the

Criteria for Admission to its Bar, Does

So Pursuant to a Congressional Delegation of Legislative Authority

“[A] district court has discretion to adopt local rules

4

that are necessary to carry out the conduct of its

business. See 28 U.S.C. §§ 1654, 2071; Fed.Rule Civ.

Proc. 83. This authority includes the regulation of

admissions to its own bar,” Frazier v. Heebe, 482

U.S. 641, 645 (1987) (emphases added); see also Brown

v. McGarr, 774 F.2d 777 (7th Cir. 1985):

The authority to adopt rules relating to

admission to practice before the

federal courts was delegated by Congress to the federal courts in Section 35 of

the Judiciary Act of 1789, Act of

September 25, 1789, Ch. 20, 1 Stat. 73, 92

now codified as 28 U.S.C. § 1654. In

addition to § 1654, 28 U.S.C. § 2071

provides in part that “[t]he Supreme

Court and all courts established by Act of

Congress may from time to time prescribe

rules for the conduct of their business.”

FED.R.CIV.P. 83, promulgated by the

Supreme Court pursuant to its rulemaking authority, specifies that, “[e]ach

district court by action of a majority of

the judges thereof may from time to time

make and amend rules governing its

practice not inconsistent with these

rules.” . . . . [E]very federal court which

has construed [28 U.S.C. §§ 1654 and

2071, and FED.R.CIV.P. 83] has held

that they permit a federal district

court to regulate the admission of

attorneys who practice before it. See,

e.g., Matter of Roberts, 682 F.2d 105, 108

5

(3d Cir.1982); Matter of Abrams, 521 F.2d

1094, 1099 (3d Cir. 1975); Sanders v.

Russell, 401 F.2d 241 (5th Cir.1968).

Id. at 781-782 (emphases added).

Congress’s conferral of rule-making authority upon

the Judicial Branch is the result of an exception to the

“general principle . . . [that] executive or administrative duties of a nonjudicial nature may not be imposed

on judges holding office under Art[icle] III of the

Constitution,” Mistretta v. United States, 488 U.S. 361,

385 (1989) (citations and quotation marks omitted). As

Mistretta observed, this Court has “recognized significant exceptions to this general rule and ha[s] approved

the assumption of some non[-]adjudicatory activities by

the Judicial Branch,” id. at 386, explaining:

[J]udicial rulemaking, at least with

respect to some subjects, falls within [a]

twilight area . . . in which the activities of

the separate Branches merge . . . . None

of our cases indicate that rulemaking per

se is a function that may not be performed by an entity within the Judicial

Branch, either because rulemaking is

inherently nonjudicial or because it is a

function exclusively committed to the

Executive Branch. On the contrary, we

specifically have held that Congress, in

some circumstances, may confer rulemaking authority on the Judicial Branch. In

Sibbach v. Wilson & Co., 312 U.S. 1

6

(1941), we upheld a challenge to certain

rules promulgated under the Rules

Enabling Act of 1934, which conferred

upon the Judiciary the power to

promulgate federal rules of civil

procedure[,] [s]ee 28 U. S. C. § 2072[;]

[but] [w]e observed: “Congress has undoubted power to regulate the practice

and procedure of federal courts, and may

exercise that power by delegating to this

or other federal courts authority to make

rules not inconsistent with the statutes or

constitution of the United States.” 312

U.S., at 9-10 (footnote omitted).

Id. at 386-387 (emphases added; footnote omitted). See

also id. at 386, n.14 (“rulemaking power originates in

the Legislative Branch and becomes an[other]

[Branch’s] function only when delegated by the

Legislature to the [other] Branch” (emphases added)).

In sum, a district court, when engaged in “the

regulation of admissions to its own bar,” Frazier, 482

U.S. at 645, does so pursuant to (i) a direct Congressional delegation of legislative power, i.e., the Admission Statute and/or the Prescribing Statute, and/or

(ii) an indirect Congressional delegation of legislative

power, i.e., the Rule-Making Rule, which this Court

enacted under a direct Congressional delegation of

legislative power, i.e., under 28 U.S.C. Section 2072(a)

of the Rules Enabling Act.

7

B.

Congress May Not Delegate, to the Other

Branches of Government, Power that

Congress Does Not Have

Rules and regulations that result from a Congressional delegation of power are Constitutional only, of

course, to, at most, the extent that Congress itself

could have enacted them. See Loving v. United States,

517 U.S. 748, 758 (1996) (“[t]his Court established long

ago that Congress must be permitted to delegate to

others at least some authority that it could exercise

itself,” citing Wayman v. Southard, 23 U.S. 1, 42

(1825) (emphases added)); see also Wayman, 23 U.S. at

43 (“Congress may certainly delegate to others, powers

which the legislature may rightfully exercise itself”

(emphasis added)); Matter of Frazier, 594 F. Supp.

1173 (E.D. La. 1984), aff’d, 788 F.2d 1049 (5th Cir.

1986), rev’d on other grounds, Frazier v. Heebe, 482

U.S. 641 (1987):

The rule-making authority of the

lower federal courts is limited only to the

extent that Congress would be limited if

that body itself exercised the rulemaking power. Congress possesses the

power to establish courts inferior to the

Supreme Court and to make all laws

necessary and proper for executing that

power. U.S. Const., art. I, § 8, cl. 9; U.S.

Const. art. I, § 8, cl. 18. As part of the

power to make necessary regulations in

establishing a lower[-]court system,

Congress can prescribe rules for practice

8

and procedure in those courts. Congress

. . . has instead delegated the rulemaking

authority to the courts themselves. See 28

U.S.C. § 2071 . . .; 28 U.S.C. § 1654 . . .;

see also F.R.C.P. 83 . . . . So long as the

lower courts do not exceed the authority

delegated to them, they can prescribe

rules of practice to the same extent as

could Congress if it exercised the

power directly.

Id. at 1178 (emphases added; footnotes omitted).

In sum, Congress may not delegate, to the Judicial

Branch, power that Congress itself does not possess.

Thus, Doyle now turns to the question of whether

Congress itself could have enacted the Affidavit

Requirement.

C.

Congress Could Not Have Enacted

the Affidavit Requirement

Under neither the Prescribing Statute, Admission

Statute, nor Rule-Making Rule (collectively, the

“Source Provisions”) are district courts required to

consider, much less find the presence of, any particular

factors in order to impose what the Affidavit Requirement imposes (generically, an “affidavit requirement”);

that is, district courts have unfettered and independent discretion in deciding whether to do so. Because

there are no factors that are required to exist with

respect to those district courts that have an affidavit

requirement but to be absent with respect to those

9

courts that do not, Congress could not have

directly enacted this scheme, as doing so would

violate the Equal-Protection component of the Due

Process clause of the Fifth Amendment. Therefore, the

Source Provisions, to the extent that they authorize

this scheme, violate that component. Moreover, rules

regarding who may be a member of the bar of a court

are, of course, substantive, and are distinct from a

court’s procedural rules.

The Opinion, in rejecting Doyle’s Due Process

claim, reasoned that, “Local Rule 1.3(a)’s requirement

that a sponsoring attorney provide [his] knowledge of

the applicant’s qualifications, experience, and good

moral character is rationally related to the applicant’s

fitness to practice law.” Appx. B, 18a (emphasis added).

However, Doyle’s Due Process claim does not hinge

upon the question of whether the Affidavit Requirement is so “rationally related.” Rather, the question is

whether Congress itself could have enacted the abovedescribed scheme.

II.

THE AFFIDAVIT REQUIREMENT

VIOLATES THE FIRST AMENDMENT

Doyle alleges that, “[he] believes that, in order for

him to enable a member of the bar of the Eastern

District [of New York] (a ‘Sponsor’) to provide a

reasonably accurate assessment of Doyle’s character,

Doyle would be required to engage in certain activities

(the ‘Necessary Activities’),” Am. Compl., ¶ 24, which

include Doyle’s disclosure, to the Sponsor, of: “Doyle’s

beliefs regarding philosophical, religious, political,

10

social, moral, and ethical matters (‘Doyle’s Personal

Beliefs’),” id., ¶ 25; “a sufficient number of experiences

of Doyle that demonstrate consistency, or inconsistency, with any of Doyle’s Personal Beliefs,” id., ¶ 26;

“Doyle’s thoughts about a sufficient number of the

Sponsor’s beliefs regarding philosophical, political,

religious, social, moral, and ethical matters (the

‘Sponsor’s Personal Beliefs’),” id., ¶ 27; and “a

sufficient number of experiences of Doyle that

demonstrate consistency, or inconsistency, with any of

the Sponsor’s Personal Beliefs.” Id., ¶ 28.

Given the absence of guidance governing the

criteria that a Sponsor may consider in assessing a bar

applicant’s character, Doyle’s allegations regarding the

Necessary Activities must be accepted as true. Indeed,

it is indisputable that many people consider, as

indispensable to the assessment of a person’s character, the person’s “beliefs regarding philosophical, religious, political, social, moral, and ethical matters,” id.,

¶ 25, and his level of consistency with those beliefs.

A.

The Affidavit Requirement Violates the

First Amendment by Compelling Petitioner to Engage in Expressive Association and Conduct

The right not to speak is equally protected as the

right to speak, and the right not to engage in speechrelated association is equally protected as the right to

engage in such association. See Janus v. American

Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448, 2462-2464 (2018);

11

Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S.

781, 796-797 (1988).

Because “[m]andating speech that a speaker would

not otherwise make necessarily alters the content of

the speech,” Riley, 487 U.S. at 795 (emphasis added),

such a mandate is “consider[ed] . . . a content-based

regulation of speech.” Id. (emphasis added). Thus, in

Riley, this Court applied strict scrutiny, see id. at 796,

for, “any restriction based on the content of the speech

must satisfy strict scrutiny[;] that is, the restriction

must be narrowly tailored to serve a compelling

government interest.” Pleasant Grove City v.

Summum, 555 U.S. 460, 469 (2009). Similarly,

“[i]nfringements on . . . [t]he right [not] to associate for

expressive purposes . . . may be justified by regulations

adopted to serve compelling state interests, unrelated

to the suppression of ideas, that cannot be achieved

through means significantly less restrictive of associational freedoms.” Roberts v. United States Jaycees, 468

U.S. 609, 623 (1984).

As reflected by those district courts that do not

have an affidavit requirement but do require bar

applicants to be of sufficient character, see, e.g., C.D.

Calif. L.R. 83-2.1.2.1 and E.D. Mo. L.R. 83-12.01(B), it

is clear that the manner in which the Eastern District

of New York has acted upon its interest in Doyle’s

character is neither “narrowly tailored” nor incapable

of being realized through “means significantly less restrictive of associational freedoms.” First, in containing

no standards, it enables a Sponsor to consider even the

most dubious criteria upon which to assess the

12

character of a bar applicant. Indeed, the very reasons

that one potential Sponsor could find that a bar

applicant is of poor character are the same reasons

that another potential Sponsor could find that the

applicant is of outstanding character.

Second, whereas the Affidavit Requirement forces

Doyle to engage in the Necessary Activities, and forces

him and any potential Sponsor to agree on the

character-assessment criteria in order for each of them

to comply in good faith with the Affidavit Requirement,

the Eastern District of New York could, for example,

have posed specific questions to Doyle, and/or required

Doyle to provide specific information to the court or a

potential Sponsor.

Compelling the expression of opinions, as does the

Affidavit Requirement with respect to Doyle, is an even

greater affront to the First Amendment than is the

compelling of statements of fact (which the Affidavit

Requirement also does). Thus, in Riley, the Court,

referring to several cases, noted that, “[t]hese cases

cannot be distinguished simply because they involved

compelled statements of opinion while here we deal

with compelled statements of ‘fact’: either form of

compulsion burdens protected speech.” Riley, 487 U.S.

at 797-798 (emphases added).

B.

The Affidavit Requirement Violates Petitioner’s Freedom of Conscience

Doyle alleges that, “[his] belief that he would have

to engage in the Necessary Activities in order for him

13

to enable a Sponsor to provide a reasonably accurate

assessment of Doyle’s character (‘Doyle’s NecessaryActivities Belief’) is a belief that Doyle holds sacredly,”

Am. Compl., ¶ 29; that, “Doyle’s Necessary-Activities

Belief is fundamental to Doyle’s self-identity,” id., ¶ 30;

that, “[i]t would be virtually impossible for Doyle to

engage in the Necessary Activities to a degree that

would avoid the non-negligible risk (the ‘Risk’) that the

Sponsor would be untruthful in stating ‘what the

[Sponsor] knows of [] [Doyle]’s character,’” id., ¶ 31,

quoting E.D.N.Y. L.R. 1.3(a); that, “Doyle believes that

taking the Risk would be immoral,” id., ¶ 32; that,

“Doyle’s belief that it would be immoral to take the

Risk (‘Doyle’s Risk-Related Belief’) is a belief that

Doyle holds sacredly,” id., ¶ 33; and that, “Doyle’s RiskRelated Belief is fundamental to Doyle’s self-identity.”

Id., ¶ 34.

Doyle’s beliefs are entitled to the same protection

to which they would be entitled if they had been based

upon religion; that is, Doyle’s beliefs are, for First

Amendment purposes, equivalent to religious beliefs.

See Zhang v. Chinese Anti-Cult World Alliance, 311 F.

Supp. 3d 514, 545-547 (E.D.N.Y. 2018).

As this Court has explained, “a law that is neutral

and of general applicability need not be justified by a

compelling governmental interest even if the law has

the incidental effect of burdening a particular religious

practice.” Church of Lukumi Babalu Aye, Inc. v.

Hialeah, 508 U.S. 520, 531 (1993). Such laws are,

instead, subject to the rationale-basis test. See Parents

for Privacy v. Barr, 949 F.3d 1210, 1238 (9th Cir.

14

2020). However, although the Affidavit Requirement is

neutral and generally applicable, it fails the rationalbasis test because, as set forth in Point I, supra, it

would not have been rational of Congress to directly

enact an affidavit requirement that applies in some

district courts but not in others without regard to

whether any common factors separate the former

courts from the latter.

The Opinion states that the Affidavit Requirement

“does not require a comprehensive survey of the

applicant’s legal experience or an explanative analysis

of [the applicant’s] ethical beliefs[,] [and] [t]he court

may reasonably inquire generally into the personal

and professional background of applicants to its bar

without contravening the First Amendment.” Appx. B,

20a. First, the Affidavit Requirement is silent about

what types of information a bar applicant must impart

to a potential Sponsor in order to enable the applicant

to submit, in good faith, the potential Sponsor’s

assessment of the applicant’s character, thus

necessarily leaving the matter to be determined the

applicant and the potential Sponsor.

Second, the question suggested by the abovequoted statement is not what criteria a potential

Sponsor must consider in assessing a bar applicant’s

character, for, again, the Affidavit Requirement is

silent regarding any such criteria. Rather, the statement suggests that Doyle’s First Amendment claim is

defeated by the possibility that Doyle would find a

Sponsor who would sign an affidavit attesting to

Doyle’s character without Doyle’s having to engage in

15

the Necessary Activities. However, Doyle is entitled to

maintain his beliefs that he would have to engage in

the Necessary Activities in order to comply, in good

faith, with the Affidavit Requirement, and that “[i]t

would be virtually impossible for Doyle to engage in

the Necessary Activities to a degree that would avoid

non-negligible risk (the ‘Risk’) that the Sponsor would

be untruthful in stating ‘what the [Sponsor] knows of

[] [Doyle]’s character,’” Am. Compl., ¶ 31, quoting

E.D.N.Y. L.R. 1.3(a), thereby forcing Doyle to take

what, to him, is an immoral risk. See id., ¶¶ 33-34.

C.

The District Court Relied Upon Cases

That Did Not Address the First Amendment Questions at Issue

The Opinion’s reliance upon Randall v. Brigham,

74 U.S. 523 (1869), and Ex parte Secombe, 60 U.S. 9

(1857), see Appx. B, 18a-19a, is unwarranted. First,

Randall and Ex parte Secombe addressed disbarments

of attorneys by, respectively, a state-court system and

a territorial-court system. Second, neither of these

cases concerned the types of claims that Doyle makes.

The Opinion also cites Chambers v. NASCO, Inc.,

501 U.S. 32 (1991), for the proposition that “the scope

of the federal court’s inherent power includes ‘the

power to control admission to its bar and to discipline

attorneys who appear before it.’” Appx. B, 7a, quoting

Chambers, 501 U.S. at 43. First, the issue in Chambers

was “whether the District Court, sitting in diversity,

properly invoked its inherent power in assessing as a

sanction for a party’s bad-faith conduct attorney’s fees

16

and related expenses paid by the party’s opponent to

its attorneys.” Chambers, 501 U.S. at 35 (emphasis

added). The full quotation in Chambers is:

Prior cases have outlined the scope of

the inherent power of the federal courts.

For example, the Court has held that a

federal court has the power to control

admission to its bar and to discipline

attorneys who appear before it. See Ex

parte Burr, [22 U.S.] 529, 531 (1824).

While this power “ought to be exercised

with great caution,” it is nevertheless

“incidental to all Courts.” Ibid.

Id. at 43 (emphases added). Not only is the Court’s

reference regarding bar admission dicta, but, in Ex

parte Burr, the Court merely denied “a motion for a

mandamus[,] to the Circuit Court for the District of

Columbia, to restore [an attorney] to his place of

attorney at the bar of that Court,” Ex parte Burr, 22

U.S. at 529, explaining:

There [was] . . . no irregularity in the

mode of proceeding which would justify

the interposition of th[e] [Supreme]

Court[,] [which] could only interpose[] on

the ground that the Circuit Court had

clearly exceeded its powers, or had

decided erroneously on the testimony . . .

on which the [Circuit] Court [had]

proceeded. . . . The power [of the Circuit

Court] is one which ought to be exercised

17

with great caution, but which is, we

think, incidental to all Courts, and is

necessary for the preservation of decorum, and for the respectability of the

profession. Upon the testimony, th[e]

[Supreme] Court would not be willing to

interpose where any doubt existed. It is

the less inclined to interpose in this case,

because the complaint is not of an

absolute removal, but of a suspension,

which is nearly expired, after which, [the

petitioner] may be restored by the Court

itself, should not very serious objections

exist to that measure.

Id. at 531. In sum, Ex parte Burr did not concern a

court’s regulation of bar admission.

The Opinion notes that, in Ohralik v. Ohio State

Bar Ass’n, 436 U.S. 447 (1978), this Court stated: “‘[a]

lawyer’s procurement of remunerative employment is

a subject only marginally affected with First Amendment concerns. It falls within the … proper sphere of

economic and professional regulation.’” Appx. B, 19a,

quoting Ohralik, 436 U.S. at 459. In Ohralik, which

concerned unsolicited visits by an attorney to recently

injured persons during which the attorney sought to be

retained by them, this Court, in holding that a state

“constitutionally may discipline a lawyer for soliciting

clients in person, for pecuniary gain, under

circumstances likely to pose dangers that the State has

a right to prevent,” id. at 449, relied upon the lessprotected commercial speech at issue, see id. at 45518

456, 464-466, as opposed to the more-protected noncommercial speech that Doyle’s claims concern. Thus,

the Opinion’s reliance upon Ohralik is unwarranted.

The Opinion’s reliance upon Nat’l Assn. for the

Advancement of Multijurisdiction Practice

(“NAAMJP”) v. Lynch, 826 F.3d 191 (4th Cir. 2016),

see Appx. B, 17a, is also unwarranted. In Lynch,

attorneys challenged the District of Maryland’s limiting of admission to “attorneys licensed in the State of

Maryland,” Lynch, 826 F.3d at 194, and to “nonMaryland attorneys . . . [who] maintain[] [their]

principal law office in [a] state in which [they] [are]

licensed to practice law [and] whose district courts

observe reciprocity with the District [of Maryland].”

Lynch, 826 F.3d at 194, 195. The challenge did not

concern any part of the application process, let alone

an affidavit requirement. In sum, Lynch did not face,

much less rule upon, the issues that Doyle’s claims

present.

Finally, the Opinion’s reliance upon NAAMJP v.

Howell, 851 F.3d 12 (D.C. Cir. 2017), see Appx. B, 19a,

20a, is likewise unwarranted. In Howell, the court

rejected a challenge to what it referred to as the

“Primary Office Provision,” Howell, 851 F.3d at 16, i.e.,

a requirement that an attorney, in order to be admitted

to the District Court for the District of Columbia, must

be an “active member[] in good standing of the Bar of

[a] state in which [he] maintain[s] [his] principal law

office.” Id. The Howell court cited Lynch in reasoning

that “[r]egulations on entry into a profession, as a

general matter, are constitutional if they have a

19

rational connection with the applicant’s fitness or

capacity to practice the profession,” id. at 20 (emphasis

added; citations and quotation marks omitted), and

that “the First Amendment does not come into play

when considering restrictions on admission similar to

the Principal Office Provision.” Id. (citations and quotation marks omitted). In sum, Howell, like Lynch, did

not face, much less rule upon, the issues that Doyle’s

claims present.

CONCLUSION

This Petition should be granted.

Respectfully submitted,

TODD C. BANK

TODD C. BANK,

ATTORNEY AT LAW, P.C.

119-40 Union Turnpike

Fourth Floor

Kew Gardens, New York 11415

(718) 520-7125

tbank@toddbanklaw.com

Counsel for Petitioner

APRIL, 2019

20