Petition for Writ of Certiorari — Wendy Alison Nora, Petitioner v. Office of Lawyer Regulation

No. __________

In the Supreme Court of the United States

Wendy Alison Nora,

Petitioner

v.

Office of Lawyer Regulation,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF WISCONSIN

_____________________________________________________

Wendy Alison Nora, Petitioner, and

a member of the bar of this Court

ACCESS LEGAL SERVICES, LLC

310 Fourth Ave. South, Suite 5010

Minneapolis, Minnesota 55415

VOICE: (612) 333-4144

FAX: (612) 206-3170

Email: accesslegalservices@gmail.com

i

QUESTIONS PRESENTED

Whether Petitioner was denied procedural due process in the lawyer disciplinary

proceeding.

Whether Petitioner is being denied due process in the lawyer disciplinary

proceeding because she is being punished for attempting to present evidence that

forged documents are being used by mortgage foreclosure claimants in judicial

foreclosure and bankruptcy proceedings.

ii

PARTIES TO THE PROCEEDINGS BELOW

Petitioner:

Wendy Alison Nora, Respondent below

310 Fourth Ave. S. #5010

Minneapolis, Minnesota 55415

Telephone: (612) 333-4144

Facsimile: (612) 206-3170

Email: accesslegalservices@gmail .com

Respondent:

Office of Lawyer Regulation

110 East Main Street, Suite 315

Madison, Wisconsin 53713

represented by

Attorney Paul W. Schwarzenbart

STAFFORD ROSENBAUM, LLP

222 West Washington Ave., Suite 900

Madison, Wisconsin 53703

Telephone: (608) 259-2631 (direct)

Facsimile: (608) 259-2600

Email: PWSchwarzenbart@staffordlaw. com

iii

TABLE OF CONTENTS

Questions Presented......................................................................................................i

Parties………………………………………………....................................................……i i

Table of Authorities.....................................................................................................vi

Introduction…………………………………………….......................................................1

Opinions Below..............................................................................................................1

Jurisdiction....................................................................................................................1

Constitutional Amendments and

Rules of Court Involved.................................................................................................2

Statement of the Case....................................................................................................6

Reasons for Granting Petition.......................................................................................8

A. The questions presented have not been decided by this Court.....................8

B. The questions are clearly presented here and are matters

of great importance..............................................................................................9

C. Petitioner’s First and Fourteenth Amendment Petition and

Due Process Rights were consistently raised and preserved...........................10

D. Petitioner’s Rights under the First and Fourteenth Amendments

were violated......................................................................................................11

1. Lawyers’ First Amendment Petition Rights......................................11

2. Lawyers’ Due Process Rights in Disciplinary Proceedings...............12

E. The Due Process Clause of the Fourteenth Amendment to the

United States Constitution requires full and fair hearing before Petitioner’s

right to practice her profession may be taken by state action........................15

iv

F. Lawyer disciplinary proceedings may not be used to punish

a lawyer for assisting her clients in exercising their right to

Petition the Judiciary for Redress of Grievances under the First

Amendment to the United States Constitution.................................................16

Conclusion.....................................................................................................................17

APPENDIX A:1 July 14, 2020 Opinion and Order of the

Wisconsin Supreme Court............................................................1a-53a

APPENDIX B:2: October 21, 2020 Order Denying Reconsideration............................54a

APPENDIX C: Referee’s Finding of Fact, Conclusions of Law and

Recommendation......................................................................55a-127a

APPENDIX D: November 30, 2015 Complaint..............................................128a-151a

APPENDIX E: December 22, 2015 Motion to Dismiss and Alternative

Motion for Probable Cause Hearing......................................152a-238a

APPENDIX F: January 5, 2016 Motion for Sanctions..................................239a-266a

APPENDIX G: January 19, 2016 First Amended Complaint.......................267a-290a

APPENDIX H: April 14, 2016 Reply on Motion to Dismiss and

Alternative Motion for Probable Cause Hearing..................291a-303a

APPENDIX I: April 26, 2016 Order Denying Motions..................................304a-312a

APPENDIX J: May 16, 2016 Answer and Continuing Objection to

Proceedings without Probable Cause.....................................313a-390a

APPENDIX K: August 16, 2016 Order on Motions.......................................391a-397a

APPENDIX L: August 17, 2016 Motions Including for Relief from

Scheduling Order...................................................................398a-403a

1

Appendices A & B are combined into a single document and stapled

together.

2

Id.

v

APPENDIX M: August 18, 2016 Second Amended Complaint.....................404a-427a

APPENDIX N: September 7, 2016 Answer....................................................428a-556a

APPENDIX O: September 20, 2016 Order Denying Motions

Including Motion for Relief from Scheduling Order.............557a-563a

APPENDIX P: May 15, 2017 OLR’s Post-Hearing Brief with

Allegations of New Facts........................................................564a-630a

APPENDIX Q: February 23, 2018 Nora’s Post-Hearing Brief with

Answer to Allegations of New Facts.....................................631a-772a

APPENDIX R: Excerpt of March 27, 2017 Hearing discussing Wells

Fargo Home Mortgage Attorneys Foreclosure Manual........773a-788a

APPENDIX S: March 27, 2017 Hearing Exhibit 528

Offer of Proof (offered and not admitted)..............................789a-943a

vi

TABLE OF AUTHORITIES

Constitution of the United States

First Amendment..................................................................................2, 8, 9, 10

Petition Rights................................................................... ......................passim

Fourteenth Amendment...................................................................2, 3, 8, 9, 10, 12

Due Process Rights...................................................................................passi m

United States Supreme Court Cases

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

14 L.Ed.2d 62 (1965)........................................................................................10, 15, 17

Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701,

33 L.Ed.2d 548 (1972)......................................................................................12, 13, 14

Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 694, 98 L.Ed. 884 ...............12

Bordenkircher v. Haynes, 434 U.S. 357, 363, 98 S.Ct. 663,

54 L.Ed.2d 604 (1978)..................................................................................................16

Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499,

104 S.Ct. 1949 1958, 80 L.Ed.2d 502 (1984)...............................................................11

Cafeteria & Restaurant Workers v. MeElroy, 367 U.S. 886, 898, 81 S.Ct. 1743,

1750, 6 L.Ed.2d 1230..............................................................................................13, 14

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1038, 111 S.Ct. 2720,

115 L.Ed.2d 888 (1991)............................................................................................8, 11

Gitlow v. New York, 268 U.S. 652, 666 (1925)..............................................................2

In re Carrsow-Franklin, 524 B.R. 33 (Bankr. S.D.N.Y. 2015) ...................................13

In re Edna Smith Primus, Appellant, 436 U.S. 412, 98 S.Ct. 1893,

56 L.Ed.2d 417 (1978)..........................................................................................8, 9, 10

vii

In re Sawyer, 360 U.S. 622, 640, 79 S.Ct. 1376, 3 L.Ed.2d 1473.....................8, 10, 11

In the Matter of John Ruffalo, Jr., Petitioner, 390 U.S. 544, 551,

88 S.Ct. 1222, 20 L.Ed.2d 117 (1968)..........................................................6, 10, 14

Joint Anti- Fascist Refugee Committee v. McGrath, 341 U.S. 123,

71 S.Ct. 624, 95 L.Ed. 817......................................................................................13, 14

NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163 1170,

2 L.Ed.2d 1488 (1958)....................................................................................................9

NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)......................8, 9

New York Times Co. v. Sullivan, 376 U.S. 254, 284-286, 84 S.Ct. 710, 728-729,

11 L.Ed.2d 686 (1964)..................................................................................................11

Malinski v. New York, 324 U.S. 401, 414, 65 S.Ct. 781, 787,

89 L.Ed. 1029 (1945)...................................................................................................12

Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902,

47 L.Ed.2d 18 (1976)....................................................................................................15

Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042. .................12

Middlesex County Ethics Committee v. Garden State Bar Association,

457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982).................................................10

Peters v. Hobby, 349 U.S. 331, 352, 75 S.Ct. 790, 801, 99 L.Ed. 1129.......................13

Schware v. Board of Bar Examiners, 353 U.S. 232, 238, 77 S.Ct. 752, 756,

1 L.Ed.2d 796...............................................................................................................14

Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551...............................12

Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131...................................14

United States v. Lovett, 328 U.S. 303, 316-317, 66 S.Ct. 1073, 1079,

90 L.Ed. 1252................................................................................................................13

Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 219, 97 L.Ed. 216...............13

viii

Willner v. Committee on Character, 373 U.S. 96, 103, 83 S.Ct. 1175 1180,

10 L.Ed.2d 224.............................................................................................................14

Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510,

27 L.Ed.2d 515..............................................................................................................13

United States Court of Appeals Cases

Hornsby v. Allen, 326 F.2d 605, 610 (CA5 1964)....................... ..................................12

United States Bankruptcy Court Cases

In re Carrsow-Franklin, 524 B.R. 33 (Bankr. S.D.N.Y. 2015)..............................13,15

Wisconsin State Supreme Court Cases

Office of Lawyer Regulation v. Nora (In re Nora), 2020 WI 70,

393 Wis.2d 359, 945 N.W.2d 559 (Wis. 2020)...............................................................1

State v. Hersh, 73 Wis.2d 390, 243 N.W.2d 178 (Wis., 1976).....................................17

Other State Cases

NAACP v. Harrison, 202 Va. 142, 116 S.E.2d 55 (1960).............................................8

United States Code

28 U.S.C. sec. 1257(a).....................................................................................................2

United States Supreme Court Rules

Rule 13.1........................................................................................................................2

Rule 14.1(g)(i)...............................................................................................................10

Rule 29.2.........................................................................................................................2

Wisconsin Supreme Court Rules (SCR)

SCR 3.1...........................................................................................................................3

SCR 3.1(a).......................................................................................................................5

ix

SCR 3.1(a).....................................................................................................................17

SCR 3.1(a).....................................................................................................................17

SCR 3.1(a).....................................................................................................................17

SCR 3.2.......................................................................................................................3, 5

SCR 8.4(g)...................................................................................................................3, 4

SCR 22.11....................................................................................................................................4, 6

SCR 22.26......................................................................................................................................14

SCR 40.15................................................................................................................................3, 4, 5

Other Authority

United States Supreme Court Order List: 589...........................................................2

Section III.H. of the Wisconsin Supreme Court’s

Internal Operating Procedures Manual (IOP).............................................................10

1

INTRODUCTION

Petitioner, Wendy Alison Nora, respectfully petitions for a Writ of Certiorari

to review the July 14, 2020 Opinion and Order of the Wisconsin Supreme Court

suspending her right to practice law before the Wisconsin Supreme Court. On

October 21, 2020, Petitioner’s Motion for Reconsideration was denied. Petitioner

was aware since well-before the initiation of the disciplinary proceeding that OLR

was not providing her the rights guaranteed under Section 1 of the Fourteenth

Amendment to the Constitution of the United States (hereinafter “Due Process

Rights”). Anyone can lose their liberty or have their property rights taken by state

action if fundamental Due Process requirements are allowed to be violated.

OPINIONS BELOW

The July 14, 2020 Opinion and Order of the Supreme Court of Wisconsin is

reported as Office of Lawyer Regulation v. Nora (In re Nora), 2020 WI 70, 393

Wis.2d 359, 945 N.W.2d 559 (Wis. 2020). The July 14, 2020 Opinion and Order in

its original form is Appendix A (1a-53a) and the October 21, 2020 Order Denying

Reconsideration is Appendix B (54a-55a). The referee’s August 9, 2017 Report and

Recommendation is Appendix C (App. 56a-127a)

JURISDICTION

This Court’s jurisdiction arises under 28 U.S.C. sec. 1257(a). On July 14,

2020, the Wisconsin Supreme Court filed its Opinion and Order suspending

Petitioner’s right to practice law before the Wisconsin Supreme Court (Appendix

A). Petitioner’s Motion for Reconsideration was denied on October 21, 2020

2

(Appendix B). The July 14, 2020 Opinion and Order of the Wisconsin Supreme

Court is the final judgment of the Wisconsin Supreme Court. This Petition is being

filed within 150 days following the entry of the Order denying Petitioner’s Motion

for Reconsideration under Rules 13.1 and 29.2 pursuant to this Court’s standing

Order entered on March 19, 2020 at Order List: 589 by which this Court extended

the time for filing Petitions for Writs of Certioriari as the result of the COVID-19

national emergency.

CONSTITUTIONAL AMENDMENTS

AND ETHICS RULES INVOLVED

The First Amendment to the United States Constitution guarantees:

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.

By the incorporation doctrine followed in Gitlow v. New York, 268 U.S. 652,

666 (1925), the First Amendment to the Constitution of the United States applies to

the States under the Fourteenth Amendment1. Under Gitlow, supra, the

Fourteenth Amendment provides that the States “ shall make no law . . . abridging .

. . the right of the people . . . to petition the Government for a redress of grievances”

(hereinafter “Petition Rights)2.

1

The incorporation doctrine was only used once before Gitlow, supra. The

incorporation doctrine first appeared in Chicago, Burlington & Quincy Railroad Co.,

166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897).

2

Gitlow, supra, does not specifically incorporate Petition Rights because First

Amendment issue in Gitlow was Freedom of the Press, not Petition Rights. In De

3

Section 1 of the Fourteenth Amendment to the Constitution of the United

States includes the Due Process and Equal Protection Clauses and applies to state

action and reads:

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 its jurisdiction the equal protection of the laws.

The Wisconsin Rules of Professional Conduct which Petitioner was charged

with violating are SCR 3.1, SCR 3.2, and SCR 8.4(g) for violation of SCR 40.15.

The Wisconsin Supreme Court Rules of Professional Conduct (SCR) involved in the

disciplinary proceedings are:

SCR 20:3.1 Meritorious claims and contentions

(a) In representing a client, a lawyer shall not:

(1) knowingly advance a claim or defense that is unwarranted under existing

law, except that the lawyer may advance such claim or defense if it can be

supported by good faith argument for an extension, modification or reversal

of existing law;

(2) knowingly advance a factual position unless there is a basis for doing so

that is not frivolous; or

(3) file a suit, assert a position, conduct a defense, delay a trial or take other

action on behalf of the client when the lawyer knows or when it is obvious

that such an action would serve merely to harass or maliciously injure

another.

SCR 20:3.2 Expediting litigation

A lawyer shall make reasonable efforts to expedite litigation consistent with

the interests of the client.

Jonge v. State of Oregon, 299 U.S. 353, 363-365, 57 S.Ct. 255, 81 L.Ed. 278 (1937), this Court

applied the incorporation doctrine to the right to assemble. In 83 years since Gitlow

and 71 years since DeJonge, it has never been seriously questioned that the States

may not abridge the Petition Rights of the People.

4

SCR 20:8.4 Misconduct

It is professional misconduct for a lawyer to:

...

(g) violate the attorney’s oath; . . .

SCR 40.15 Attorneys oath.

The oath or affirmation to be taken to qualify for admission to the

practice of law shall be in substantially the following form:

I will support the constitution of the United States and the

constitution of the state of Wisconsin;

I will maintain the respect due to courts of justice and judicial officers;

I will not counsel or maintain any suit or proceeding which shall

appear to me to be unjust, or any defense, except such as I believe to be

honestly debatable under the law of the land;

I will employ, for the purpose of maintaining the causes confided to

me, such means only as are consistent with truth and honor, and will never

seek to mislead the judge or jury by any artifice or false statement of fact or

law;

I will maintain the confidence and preserve inviolate the secrets of my

client and will accept no compensation in connection with my client’s

business except from my client or with my client's knowledge and approval;

I will abstain from all offensive personality and advance no fact

prejudicial to the honor or reputation of a party or witness, unless required

by the justice of the cause with which I am charged;

I will never reject, from any consideration personal to myself, the cause

of the defenseless or oppressed, or delay any person’s cause for lucre or

malice. So help me God.

The Wisconsin Supreme Court Rules (SCR) of Procedures for the Lawyer

Regulation System appear in SCR Chapter 21 and 22. Among the procedural rules

at issue in the proceedings below, Petitioner contends that SCR 22.11(2) was

disregarded.

SCR 22.11 provides:

SCR 22.11 Initiation of proceeding.

(1) The director shall commence a proceeding alleging misconduct by filing a

complaint and an order to answer with the supreme court and serving a copy

of each on the respondent.

5

(2) The complaint shall set forth only those facts and misconduct

allegations for which the preliminary review panel determined there

was cause to proceed and may set forth the discipline or other disposition

sought. Facts and misconduct allegations arising under SCR 22.203 and SCR

22.224 may be set forth in a complaint without a preliminary review panel

finding of cause to proceed.

(3) The director may retain counsel to file, serve and prosecute the complaint.

(4) The complaint shall be entitled: In the Matter of Disciplinary Proceedings

Against [name of respondent], Attorney at Law; Office of Lawyer Regulation,

Complainant; [name of respondent], Respondent. The complaint shall be

captioned in the supreme court and contain the name and residence address

of the respondent or the most recent address furnished by the respondent to

the state bar.

(5) The complaint may be amended as provided in the rules of civil procedure.

(Emphasis added.)

Petitioner attempted to defend against the (ever-changing) charges of

violations of SCR 20:3.1(a) on the basis that her actions were protected by the First

Amendment, that her legal positions were supported by existing law, that her

factual statements were true, and that she did not bring the actions merely to

harass or injury another. She attempted to defend against the charges of violations

of SCR 3.2 on the basis that she was pursuing meritorious defenses for her clients.

Petitioner balanced her duties and obligations under SCR 40.15 (the Attorneys’

Oath). She gave priority to the duty and obligation “to never reject, from any

consideration personal to myself, the cause of the defenseless or oppressed”.

Families whose homes are being foreclosed by the use of false pleadings, based on

3

SCR 22.20 applies to summary proceedings on criminal conviction of an

attorney and does not apply to the proceedings from which review by certiorari is

sought.

4

SCR 22.22 applies to reciprocal disciplinary proceedings and does not apply

to the proceedings from which review by certiorari is sought.

6

forged documents, authenticated by falsely sworn affidavits are defenseless without

legal representation and are oppressed by false foreclosure claims.

STATEMENT OF THE CASE

This case presents important constitutional questions regarding the Due

Process rights of lawyers in state disciplinary proceedings. This Court held In the

Matter of John Ruffalo, Jr., Petitioner, 390 U.S. 544, 551, 88 S.Ct. 1222, 20 L.Ed.2d

117 (1968):

These are adversary proceedings of a quasi-criminal nature . . . absence of

fair notice as to the reach of the grievance procedure and the precise nature

of the charges deprived petitioner of procedural due process.

Petitioner’s defense to the disciplinary action involved her good faith efforts

to introduce evidence in foreclosure bankruptcy cases which would show that forged

documents authenticated by perjured affidavits are being used in judicial

proceedings. Petitioner intended to demonstrate that the voluminous exculpatory

evidence she provided to the investigator for the Office of Lawyer Regulation (OLR)

for review and which was required to be provided to the Preliminary Review

Committee was not included in the Investigative Report. OLR failed to follow SCR

22.11(2) to establish the facts upon which the allegations of misconduct were based.

OLR and the referee precluded Petitioner’s defenses. The voluminous documents

demonstrated the use of false pleadings, false filings and false affidavits in both of

her clients’ cases which were the basis for the Complaints. The exculpatory

evidence she provided to OLR in the investigative stage of the disciplinary process

included the Wells Fargo Home Mortgage Foreclosure Attorneys Manual, Version 3

7

(Appendix S, 789a-943a) which formed the basis of the Motion for Relief from the

adverse disposition in the United States District Court for the Eastern District of

Wisconsin which was ignored by the Federal District Court and the Seventh Circuit

Court of Appeals when Petitioner was subjected to sanctions. See also Appendix R,

773a-788a.

The referee allowed the filing of OLR’s Second Amended Complaint5 by Order

dated August 16, 2016 (Appendix K, 391a-397a) without granting relief from the

Scheduling Order. Petitioner immediately filed Motions for Relief, including relief

from the Scheduling Order on August 17, 2016 (Appendix L, 398a-403a) because her

deadline for naming witnesses had lapsed 6 and her deadline for submitting

documentary evidence under the then-current Scheduling Order was about to

expire.

5

OLR filed the initiating Complaint on November 30, 2015 (Appendix D,

128a-151a) which was filled with false allegation which OLR would have known

were false if its investigator had actually reviewed the voluminous exculpatory

evidence Petitioner provided in accordance with her duty to cooperate with the

investigation. After Petitioner moved to dismiss the action on December 22, 2015

and requested a probable cause hearing based on the extent of the false allegations

(Appendix E, 152a-238a) and gave notice of her intent to seek sanctions if the false

statements were not withdrawn (Appendix F, 239a-266a), OLR filed a First

Amended Complaint on January 19, 2016 (Appendix G, 267a-290a) which failed to

cure most of the false allegations.

6

Petitioner did not need any witnesses, other than herself until the major

defect in the First Amended Complaint was allowed to be cured by the Second

Amended Complaint. OLR argued that the amendments were minor and at one

point asserted that the errors were “typograpical” and the referee agreed that the

amendments were minor and refused to allow Petitioner to conduct the additional

discovery she sought after the Second Amended Complaint was allowed to be filed.

8

On August 18, 2016, OLR filed its Second Amended Complaint (Appendix M,

404a-427a). The referee withheld ruling on Petitioner’s August 17, 2016 Motions

until September 20, 2016 (Appendix M, 557a-563a) and then declared that the

Motion for Relief from the Scheduling Order was “moot” because the hearing date

had been rescheduled, but none of the pre-trial deadlines had been corresponding

adjusted. Petitioner submitted voluminous documents at the rescheduled pre-trial

conference in October, 2016 as her Offer of Proof. See, e.g. Appendix S, 773a-943a.

On September 7, 2016, Petitioner answered the Second Amended Complaint,

preserving her Motions to Dismiss. See Appendix N (428a-556a). On January 17,

2017, Petitioner fell on ice and hit her head on concrete. She suffered from postconcussion syndrome for several years. Nevertheless, hearing was held on March

22, 23, 24, and 27, 2017. Petitioner was struggling on March 24, 2017 and her cocounsel requested that the hearing terminate early for the day. The hearing

continued on March 27, 2017.

REASONS FOR GRANTING THE PETITION

A. The questions presented have not been decided by this Court.

This Court has been careful to assure that lawyer disciplinary proceeding do

not violate the First and Fourteenth Amendments to the Constitution of the United

States. See In re Sawyer, 360 U.S. 622, 640, 79 S.Ct. 1376, 3 L.Ed.2d 1473 and

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1038, 111 S.Ct. 2720, 115 L.Ed.2d

888 (1991). See also NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405

(1963) and In re Edna Smith Primus, Appellant, 436 U.S. 412, 98 S.Ct. 1893, 56

9

L.Ed.2d 417 (1978). It appears that this is the first case in which the issue clearly

arises for review of whether or not a lawyer may be punished for assisting her

clients in exercising their Petition Rights.

In re Edna Smith Primus, Appellant, 436 U.S. 412, 422-424, 98 S.Ct. 1893,

56 L.Ed.2d 417 (1978), this Court wrote:

In NAACP v. Button, supra, the Supreme Court of Appeals of Virginia

had held that the activities of members and staff attorneys of the National

Association for the Advancement of Colored People (NAACP) and its affiliate,

the Virginia State Conference of NAACP Branches (Conference), constituted

“solicitation of legal business” in violation of state law. NAACP v. Harrison,

202 Va. 142, 116 S.E.2d 55 (1960). Although the NAACP representatives and

staff attorneys had “a right to peaceably assemble with the members of the

branches and other groups to discuss with them and advise them relative to

their legal rights in matters concerning racial segregation,” the court found

no constitutional protection for efforts to “solicit prospective litigants to

authorize the filing of suits” by NAACP-compensated attorneys. Id., at 159,

116 S.E.2d, at 68-69.

This Court reversed: “We hold that the activities of the NAACP, its

affiliates and legal staff shown on this record are modes of expression and

association protected by the First and Fourteenth Amendments which

Virginia may not prohibit, under its power to regulate the legal profession, as

improper solicitation of legal business violative of [state law] and the Canons

of Professional Ethics.” 371 U.S., at 428-429, 83 S.Ct., at 335. The solicitation

of prospective litigants,14 many of whom were not members of the NAACP or

the Conference, for the purpose of furthering the civil-rights objectives of the

organization and its members was held to come within the right “ ‘to engage

in association for the advancement of beliefs and ideas.’ ” Id., at 430, 83 S.Ct.,

at 336, quoting NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163 1170, 2

L.Ed.2d 1488 (1958).

B. The questions are clearly presented here and are matters of great

importance.

This Court has been reluctant to interfere with attorney disciplinary

proceedings and decisions by state authorities as a matter of comity and federalism,

10

deferring to state court disciplinary proceedings except where Due Process

violations occur as in Ruffalo, or where First Amendment Rights are implicated.

See Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S.

423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Thi s Court has granted Petitions for

Writs of Certiorari in cases involving a lawyer’s First Amendment Rights like

Sawyer, supra, 360 U.S. at 640, Gentile, supra, at 501 U.S. at 1038, and In re Edna

Smith Primus, supra.

Petitioner’s duty to assist her clients in the exercise of their fundamental

right to petition the judiciary for redress of grievances resulted in punishment

through a series of Due Process violations which prevented her from defending

herself at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 380

U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965).

C. Petitioner’s First and Fourteenth Amendment Petition and Due

Process Rights were consistently raised and preserved.

To demonstrate that the federal issues were timely raised and consistently

preserved required by Rule 14.1(g)(i), Petitioner has produced a true and correct

copy of OLR’s November 30, 2015 Amended Complaint as Appendix D, 128a-151a,

along with her Motions to Dismiss (Appendix E, 152a-238a) and the subsequent

pleadins and Motions to demonstrate that she timely raised the federal issues below

as required by Rule 14.1(g)(i). Petitioner has endeavored to demonstrate her

strenuous efforts to preserve the federal issues in the proceedings below.

11

D. Petitioner’s Rights under the First and Fourteenth

Amendments were violated.

1. Lawyers’ First Amendment Petition Rights

In re Sawyer, 360 U.S. 622, 640, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959), thi s

Court held:

[I]t hardly needs elaboration to make it clear that the question of the total

insufficiency of the evidence to sustain a serious charge of professional

misconduct, against a backdrop of the claimed constitutional rights of an

attorney to speak as freely as another citizen, is not one which can be

subsumed under the headings of local practice, customs or law.

In Gentile v. State Bar of Nevada, 501 U.S. 1030, 1038, 111 S.Ct. 2720, 115

L.Ed.2d 888 (1991)

We have held that “in cases raising First Amendment issues . . . an appellate

court has an obligation to ‘make an independent examination of the whole

record’ in order to make sure that ‘the judgment does not constitute a

forbidden intrusion on the field of free expression.’” Bose Corp. v. Consumers

Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949 1958, 80

L.Ed.2d 502 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254,

284-286, 84 S.Ct. 710, 728-729, 11 L.Ed.2d 686 (1964)).

The Wisconsin Supreme Court, sitting in the capacity of an appellate court

overseeing the conduct of its own employees, did not make an independent

examination of the record. It delegated the writing of the Opinion and Order

(Appendix A) to unelected Court Commissioners. In Wisconsin, lawyer disciplinary

opinions are not written by the justices, but are delegated to law clerks designated

as Court Commissioners under Section III.H. of the Wisconsin Supreme Court’s

Internal Operating Procedures Manual (IOP) presently retrievable at

https://www.wicourts.gov/sc/IOPSC.pdf (most recently retrieved on March 19, 2021).

12

2. Lawyers’ Due Process Rights in Disciplinary Proceedings

Mr. Justice Frankfurter has said that “(t)he history of American freedom is,

in no small measure, the history of procedure.” Malinski v. New York, 324 U.S. 401,

414, 65 S.Ct. 781, 787, 89 L.Ed. 1029 (1945) (separate opi nion). With respect to

occupations controlled by the government, the Fifth Circuit Court of Appeals

recognized that ‘'(t)he public has the right to expect its officers . . . to make

adjudications on the basis of merit. The first step toward insuring that these

expectations are realized is to require adherence to the standards of due process;

absolute and uncontrolled discretion invites abuse.’ Hornsby v. Allen, 326 F.2d 605,

610 (CA5 1964).

In Board of Regents of State Colleges v. Roth, 408 U.S. 564, 572-,92 S.Ct.

2701, 33 L.Ed.2d 548 (1972), this Court provided a thorough analysis of the liberty

interest of which Petitioner has been deprived by the violation of her Due Process

Rights documented herein and wrote:

‘While this court has not attempted to define with exactness the liberty

. . . guaranteed (by the Fourteenth Amendment), the term has received much

consideration and some of the included things have been definitely stated.

Without doubt, it denotes not merely freedom from bodily restraint but also

the right of the individual to contract, to engage in any of the common

occupations of life, to acquire useful knowledge, to marry, establish a home

and bring up children, to worship God according to the dictates of his own

conscience, and generally to enjoy those privileges long recognized . . . as

essential to the orderly pursuit of happiness by free men.’ Meyer v. Nebraska,

262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 . In a Constitution for a

free people, there can be no doubt that the meaning of ‘liberty’ must be broad

indeed. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 694,

98 L.Ed. 884; Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.

Petitioner has been deprived of the right to engage in the common

13

occupations of life, i.e. that of a legal secretary, law clerk or legal assistant in the

State of Wisconsin under the extraordinary provisions of SCR 22.26 (2)7. See below.

...

For ‘(w)here a person’s good name, reputation, honor, or integrity is at

stake because of what the government is doing to him, notice and an

opportunity to be heard are essential.’ Wisconsin v. Constantineau, 400 U.S.

433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515; Wieman v. Updegraff, 344 U.S.

183, 191, 73 S.Ct. 215, 219, 97 L.Ed. 216; Joint Anti- Fascist Refugee

Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817; United

States v. Lovett, 328 U.S. 303, 316-317, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252;

Peters v. Hobby, 349 U.S. 331, 352, 75 S.Ct. 790, 801, 99 L.Ed. 1129 (Dougl as,

J., concurring). See Cafeteria & Restaurant Workers v. MeElroy, 367 U.S. 886,

898, 81 S.Ct. 1743, 1750, 6 L.Ed.2d 1230. In such a case, due process would

accord an opportunity to refute the charge before University officials. In the

present case, however, there is no suggestion whatever that the respondent's

‘good name, reputation, honor, or integrity’ is at stake.

In the present case, Petitioner’s good name, reputation, honor and integrity is

at stake because, as this Court can plainly see from the Opinion and Order of the

Wisconsin Supreme Court (Appendix A), Petitioner has been found to have engaged

in “serious misconduct” for which she has not shown sufficient remorse, because

none of the exculpatory evidene she proffered was considered. Note that there is no

mention of the Wells Fargo Home Mortgage Attorneys Manual, Version 3 or the

favorable result obtained in In re Carrsow-Franklin, 524 B.R. 33 (Bankr. S.D.N.Y.

2015) based on that very same evidence.

Similarly, there is no suggestion that the State, in declining to

re-employ the respondent, imposed on him a stigma or other disability that

foreclosed his freedom to take advantage of other employment opportunities.

7

To the best of Petitioner’s knowledge, no other jurisdiction imposes such a

limitation. Petitioner works with lawyers in California, Hawai’i, Minnesota,

Nevada, Texas, and Washington in a legal research, legal assistant, and

investigative capacities.

14

The State, for example, did not invoke any regulations to bar the respondent

from all other public employment in state universities. Had it done so, this,

again, would be a different case. For ‘(t)o be deprived not only of present

government employment but of future opportunity for it certainly is no small

injury . . .’ Joint Anti-Fascist Refugee Committee v. McGrath, supra, 341 U.S.

at 185, 71 S.Ct. at 655 (Jackson, J., concurring). See Truax v. Raich, 239 U.S.

33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131. The Court has held, for example, that a

State, in regulating eligibility for a type of professional employment, cannot

foreclose a range of opportunities ‘in a manner . . . that contravene(s) . . . Due

Process,’ Schware v. Board of Bar Examiners, 353 U.S. 232, 238, 77 S.Ct. 752,

756, 1 L.Ed.2d 796, and, specifically, in a manner that denies the right to a

full prior hearing. Willner v. Committee on Character, 373 U.S. 96, 103, 83

S.Ct. 1175 1180, 10 L.Ed.2d 224. See Cafeteria Workers v. McElroy, supra,

367 U.S. at 898, 81 S.Ct. at 1750. In the present case, however, this principle

does not come into play.

In the present case, Petitioner is not only deprived of her professional

occupation of over 40 years but is precluded by a uniquely draconian prohibition on

even the common occupation in as a legal assistant, legal secretary or law clerk by

employment in the State of Wisconsin only under SCR 22.26(2) and (3), which

provides:

SCR 22.26 Activities following suspension or revocation.

...

(2) An attorney whose license to practice law is suspended or revoked or who

is suspended from the practice of law may not engage in this state in the

practice of law or in any law work activity customarily done by law students,

law clerks, or other paralegal personnel, except that the attorney may engage

in law related work in this state for a commercial employer itself not engaged

in the practice of law.

(3) Proof of compliance with this rule is a condition precedent to

reinstatement of the attorney’s license to practice law.

In the Matter of John Ruffalo, Jr., Petitioner, 390 U.S. 544, 556, 88 S.Ct.

1222, 20 L.Ed.2d 117 (1968), Justice White, joined by Justice Marshall wrote,

concurring,

15

I would hold that a federal court may not deprive an attorney of the

opportunity to practice his profession on the basis of a determination after

the fact that conduct is unethical if responsible attorneys would differ in

appraising the propriety of that conduct.

Petitioner’s proffered defense was that her conduct was not frivolous because

responsible attorneys agree and have prevailed on the basis of the same evidence as

that which Petitioner sought to present within days of receiving the Wells Fargo

Home Mortgage Foreclosure Attorneys Manual, Version 3 along with the

authentication from the attorney who obtained the evidence in discovery in In re

Carrsow-Franklin, 524 B.R. 33 (Bankr. S.D.N.Y. 2015).

The conduct for which Petitioner is being punished was decided by a referee

based on the dictation of findings of fact by OLR which OLR claims to have proved

at a hearing at which Petitioner was deprived of the right to call witnesses in her

defense and denied the opportunity to present essential, exculpatory documentary

evidence, precluding her defenses and denying her a full and fair hearing.

E. The Due Process Clause of the Fourteenth Amendment to the

United States Constitution requires full and fair hearing before

Petitioner’s right to practice her profession may be taken by state

action.

It is well-established that due process must be accorded before a property

right is taken by state action. Due process requires notice of charges and an

opportunity for a hearing. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893,

902, 47 L.Ed.2d 18 (1976). The hearing must be held in a meaningful manner and

at a meaningful time. Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191,

16

14 L.Ed.2d 62 (1965). Petitioner was denied her right to call witnesses in her

defense and produce exculpatory documentary evidence, e.g. Manual, Appendix S.

While Petitioner was permitted a hearing, it was not held in a meaningful

manner because she was precluded from presenting testimonial evidence from

witnesses other than herself (OLR wanted to call her as a witness against herself so

that it could try to attack her credibility and give the referee the opportunity to

make factual inferences based on his “beliefs”) when she could not get relief from

the Scheduling Order after the Second Amended Complaint was allowed to be filed

on August 18, 2016. She was left with the pre-trial deadlines on the January 19,

2016 Scheduling Order which had expired or were on the cusp of expiring. The

referee even acknowledged she perceived she had been “tricked” because he did not

deny her Motion for Relief from the Scheduling Order until September 20, 2016

(Appendix O, 557a-563a) after the deadlines for naming witnesses and presenting

documentary evidence for consideration at the hearing had expired but for the new

date of the hearing and he declared Petitioner’s Motion “moot”.

F. Lawyer disciplinary proceedings may not be used to punish a

lawyer for assisting her clients in exercising their right to Petition

the Judiciary for Redress of Grievances under the First Amendment

to the United States Constitution.

In Bordenkircher v. Haynes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604

(1978) the United States Supreme Court held, “To punish a person because he has

done what the law plainly allows him to do is a due process violation of the most

basic sort . . . and for an agent of the State to pursue a course of action whose

17

objective is to penalize a person’s reliance on his legal rights is “patently

unconstitutional.”

Because Petitioner’s claims were not frivolous as a matter of fact in violation

of SCR 20:3.1(a)(2) or unsupported by law in violation of SCR 20:3.1(a)(1), she

cannot be held to have filed claims which she knew or when it was obvious that

doing so would “merely serve to harass or maliciously injure another” in violation of

SCR 20:3.1(a)(3). She cannot be found to have delayed proceedings by defending

her clients’ homes by raising meritorious claims or to have violated her oath.

Petitioner has been punished for doing what the law plainly allows her to do. The

punishment of the Petitioner in the proceedings below is patently unconstitutional.

CONCLUSION

Rather than address Petitioner’s Due Process issues and allow her a full and

fair hearing, the Wisconsin Supreme Court refused to address the failure of the

proceedings to meet the Wisconsin Supreme Court’s own Due Process requirements

established in State v. Hersh, 73 Wis.2d 390, 243 N.W.2d 178 (Wis., 1976). The

Wisconsin Supreme Court has held that an attorney’s constitutional due process

rights involve “only his right to prior notice of charges, his right to prepare to

defend these charges and his right to a full hearing on these charges.” State v.

Hersh, 390 Wis.2d at 398, 243 N.W.2d at182. A full hearing must also be a fair

hearing with the opportunity for the lawyer to be heard at a meaningful time and in

a meaningful manner. Armstrong v. Manzo, supra. Petitioner implores this Court



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