Petition for Writ of Certiorari — Peyman Roshan, Petitioner v. Melanie J. Lawrence, et al.

FILED

SEP 16 2024

OFFICE OF THE CLERK

2 4 _ 5 8 6 SUPREME COURT US

IN THE

Supreme Court of the United States

PEYMAN ROSHAN,

Petitioner,

Vv.

MELANIE LAWRENCE, in her official

capacity as Chief Trial Counsel, and in

her personal capacity; OFFICE OF

CHIEF TRIAL COUNSEL,

Respondents,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PEYMAN ROSHAN

1757 Burgundy Dr.

Santa Rosa, CA 95403

(415) 305-7847

i

QUESTIONS PRESENTED

Petitioner Peyman Roshan presents in this

petition the following questions:

1. At what point or points in time should federal

courts analyze the factors for application of Younger

abstention? There are at least six views expressed in

the case law, five of which are present in Ninth

Circuit case law:

a.

Federal courts only look at the time the

complaint is filed, a view set out in the Ninth

Circuit’s en banc authority and many other

cases.

Federal courts look at the time the complaint

is filed and perform a second check, as

accepted in some Ninth Circuit case law, the

panel in this appeal, and this Court. Polykoff

v. Collins, 816 F.2d 1326, 1332 (9th Cir. 187);

quoting Hawaii Housing Authority v. Midkiff,

467 U.S. 229, 238 (1984).

Federal courts look at the state proceedings at

the time of the district court hearing and

separately upon federal appellate review, as

the majority held in Duke v. Gastelo, 64 F.4th

1088, 1096 (9th Cir. 2023).

Federal courts look at matters as the case

progresses, in the same way constitutional

standing and mootness are evaluated, which

is the position of the Appellants, the Eighth

Circuit, the Tenth Circuit, and arguably this

Court in Middlesex, supra;

Federal courts look at the time the complaint

is filed and matters before, as advocated by

il

Judge Bumatay in his dissent in Duke, supra,

and held by the Fourth Circuit;

f. Federal court looks at the situation upon

remand from the Court of Appeal, as the

Ninth Circuit panel decided in the

unpublished decision Big Sky Scientific LLC,

vu. Bennetts, Case No. 19-35138 (9th Cir. Sept.

4, 2019).

2. Given that Younger abstention’s application to

civil cases was premised on the availability of

Supreme Court review of allegedly unconstitutional

statutes which has since been eliminated and a view

that 42 U.S.C. §1983 does not guarantee a federal

forum for constitutional claims against state action

that is now rejected, should Younger abstention’s

application to civil cases be eliminated on grounds

that it violates equal protection and access to the

Courts?

Roshan also joins in a request for this Court to

address the following issues argued in the

accompanying petition for certiorari from the same

decision by Cyrus Sanat:

1. Does the endorsement by some Courts of

Appeals of raising Younger abstention sua sponte at

the District Court or Court of Appeals violate the

party presentation principle and is thus improper?

2. Did the Court of Appeals err when it found

that Younger abstention applied without addressing

the additional requirement of determining whether

the California attorney discipline proceedings fall

into one of the NOPSI categories, given that after the

ill

Ninth Circuit Court of Appeals found that California

State Bar attorney discipline proceedings meet the

Middlesex factors in Hirsh v. Justices of Supreme Ct.

of Cal., 67 F.3d 708, 712 (9th Cir. 1995) (per curiam)

(citing Middlesex Cnty. Ethics Comm. v. Garden

State Bar Ass’n, 457 U.S. 423, 432 (1982)), and so are

protected by Younger abstention, the California

Supreme Court held in Jn re Rose, 22 Cal.4th 4380,

440 (2000) that such proceedings are not civil

enforcement proceedings nor criminal proceedings,

thus avoiding the California Constitution’s

requirement that the Court hear oral argument on

all civil and criminal cases before it? See.

3. Did the Court of Appeal err in holding that the

Younger abstention requirement of a fair opportunity

to raise federal claims is ignored if the federal court

does not think the federal constitutional argument is

meritorious on a pre-emptive basis?

PARTIES TO THE CASE

This petition is in respect of four federal actions

with two different plaintiffs and two different sets of

Defendants. The four actions were consolidated for

hearing and decision, though they were litigated and

briefed separately.

The plaintiff appellant and petitioner is Peyman

Roshan, an individual.

The Defendants in this action are California State

Bar Chief Trial Counsel Melanie Lawrence and the

State Bar’s Office of Chief Trial Counsel, who are Ex

Parte Young defendants on behalf of the California

iv

State Bar and in Lawrence’s case the individual

defendant. She has been succeeded in her official

capacity by George Cardona.

Vv

TABLE OF CONTENTS

QUESTIONS PRESENTED. .........ccccccescecsseeessessecesesecseseeaccesesenes i

PARTIES TO THE CASE..........ccceessceesseeseseesesenscesscenseseneceenecs iii

TABLE OF CONTENTS ..........cccsssccessecessecessserssesecsessccesessescecees Vv

TABLE OF AUTHORITIES. ...........csscsscsesscesecenscenssecsssesnsscsees vii

ORDERS BELOW. ............cccsssccssssessssescscceececeecensersscsscecensssesenees 5

BASIS FOR JURISDICTION... eccccssesescecescnceseesessseserscnees 5

RELEVANT CONSTITUTIONAL AND STATUTORY

PROVISIONS AND RULEG. .........cssccssccessesecscssteccssrenearees 5

STATEMENT OF THE CAGBE..........ccccccccessscsssessscsessecssscsscsescene 6

A. PROCEDURAL BACKGROUND ..........ccccccseccsscccoreeeccecscsencesansecseeeses 6

1. The Complaint... eee eceeceecesceseeesesseeseeeessesesccecsereesessesnssesecceres 6

2. The Rule 12(b) Dismissal Proceedings ...........:.csccccceseseeesseeeeeeeens 7

B. PROCEDURAL BACKGROUND .........:.0:cccscessesscecssssesececorenceasceateess 14

WHY THE PETITION SHOULD BE GRANTED................ 15

A. YOUNGER ABSTENTION. .....scccsssessseesecesscscscssceessssessscsacsssecessessesesceeeees 15

B. THE COURTS OF APPEAL ARE HOPELESSLY DIVIDED ON THE

QUESTION OF WHEN YOUNGER ABSTENTION IS EVALUATED AND

ONLY THIS COURT CAN ESTABLISH A UNIFORM RULE, .........c0cc000000- 16

C. THE COURT SHOULD RECONSIDER WHETHER YOUNGER

ABSTENTION SHOULD BE APPLIED OUTSIDE OF CRIMINAL

PROCEEDINGS GIVEN THE NEGATION OF THE REASONS FOR ITS

EXPANSION DISCUSSED IN HUFFMAN, ....c:.c0cscsccesccssesesscscccseesececsserseeee 30

CONCLUSION 1. cccccesscsessensnssecseacsessscscsassesssescecessesceseetsnsenes 33

vi

TABLE OF APPENDICES

APPENDIX A Memorandum Decision of the Ninth

Circuit Court of Appeals.

APPENDIX B Order of the United States District

Court for the Northern District of

California Granting Motion to Dismiss.

APPENDIX G Order of the Ninth Circuit Court of

Appeals.

APPENDIX D Order of the Ninth Circuit Court of

Appeals Denying Request to Recall

Mandate.

APPENDIX E Letter From the California Supreme

Court.

APPENDIX F Relevant Statutory and Constitutional

Provisions.

Vil

TABLE OF AUTHORITIES

Cases

Aaron v. Target Corp., 357 F.3d 768 (8th Cir.2004)..4,

21

Bettencourt v. Bd. of Registration in Medicine of

Comm. of Mass., 904 F.2d 772 (1st Cir. 1990)...2, 18

Big Sky Scientific LLC, v. Bennetts, Case No. 19-

35138 (9th Cir. Sept. 4, 2019)... 24, 26, 35

Bracy v. Gramley, 520 U.S. 899 (1994)... cece 5

Crown Point Iv. Intermountain Rural Elec, 319 F.3d

1211, 1215 (10th Cir. 2008) 0... cece eeeeeree 4,21

DeSpain v. Johnston, 731 F.2d 1171 (5th Cir. 1984)

Flee oa sale PORES 0 ERTS Seta SS Ses ea eae 17, 20

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)... 19, 29

Doran v. Salem Inn, Inc., 422 U.S. 922, 929-931

(1975), . ssspatesicaipepsswesaesiaanaceuascscsianceisstanapausisinosieneerense: «+++ 3

Duke v. Gastelo, 64 F.4th 1088 (9th Cir. 2028)....20, 22

Fuller v. Ulland, 76 F. 3d 957 (8th Cir. 1996)....... 4,21

Gacho v. Wills, 986 F.3d 1067 (7th Cir. 2021)............. 5

Gilbertson v. Albright, 381 F.3d 965 (9th Cir.

2004) (en banc) :xxsscescssearescesnceeumiene weusunueunes 18, 23

Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d

508 (1st Cir. 2009) oe ccccccscesccessesesscssssccssssesevsevenens 18

Hawaii Housing Authority v. Midkiff, 467 U.S. 229

(1984) ..cccccccccssscssccsssssssssssessessssssesesessesessssssssssssevssseseseceean 19

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975)31, 32, 33

Knick v. Twp. of Scott, 189 8. Ct. 2162 (2019)........... 33

Laurel Sand & Gravel, Inc. v. Wilson, 519 F. 3d 156

(Ath Cir, 2008) ...ccccccccccscsssesesscscssssscssesessssssssveesesseeen 22, 23

Liedel v. Juvenile Court of Madison County, AL, 891

F.2d 1542 (11th Cir. 1990) .ccccccccccccssssssssscsssssssssssveecee 19

Logan v. U.S. Bank N.A., 722 F.2d 11638 (2018)........ 24

Maymo-Meléndez v. Alvarez-Ramirez, 364 F.3d 27

(Ast Cir. 2004)... cccccccccescsecsscsseseescsesessesessesssssses 2,18

Vill

Middlesex County Ethics Comm. v. Garden State

Bar Assn, 457 U. 8. 423 (1982) ........... 3, 21, 22, 30

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987).......... 30

Perez v. Ledesma, 401 US 82, 108-4 (1971)... 28

Polykoff v. Collins, 816 F.2d 1326, 1832 (9th Cir. 187)

spnnenatanseaanrousses svapensereesenscasinntenesnigessdsian sued spnsdesdawenehonsunsussestns 19

Potrero Hills Landfill, Inc. v. Cty. of Solano, 657 F.3d

876 (9th Cir. 2011) ... scusscosnanencmmensnoaamenmenceareys 2,18

Spargo v. N.Y. State Com'n, Judicial Conduct, 351

F.3d 65 (2d Cir. 2008)...-c-rascesseresnnissadsnosasqennaseninensessen 22

Sprint Communications v. Jacobs, 571 US 69, 72-78

(2OTA) cccccccccssssesevecsessessssssssveviesssssssssssesssssssnsessessssesssasee 17

Tokyo Gwinnett, LLC v. Gwinnett Cnty., Ga, 940 F.3d

1254 (11th Cir, 2019) ccccccccsssccsssssseeesssssssseesssssssseseees 19

Winter v. Natural Resources Defense Council, Inc.,

B55 U.S. 7 (2008) cessseccsssssesscssssseevseesessssssseveseessesnsecssens 33

Yamaha Motor Corp., USA v. Riney, 21 F.3d 7938 (8th

Cir. 1998) oo. ecccceccceecseeeseesseeseeceeeesseeseeetseerseereneens 3,21

Younger v. Harris, 401 U.S. 37 (1971)... eee 31

Zalman v. Armstrong, 802 F.2d 199 (6th Cir. 1986) 19

Zalman v. Armstrong, 802 F.2d 199, 208-5 (6th Cir.

LOB) voccccccccsecsecsecssececssecsecsececsecsecsesscseeeeseeeseeteeeeeeeteetetaess 3

Statutes

28 U.S.C. §1 2541). cccccccccccsececescsseeeeseesseeeesrenseeseereeeteas 6

28 U.S.C. 81881 ooo ccccccccccccseeeeeseeserenecesseeeeseeseeeeaereeseeeny 6

42 U.S.C. §1988 0... cccccccccccsseesscstessecseseceetseeseerreneeneeseente 7

Act of June 27, 1988, Pub. L. No. 100-352, 102 Stat.

COQ. ceccccccceccveseensccesessessccsscssesseessseessecuescseesseecescesertecsees 38

Heck v. Humphrey, 512 U.S. 477, 480 (1994)... 38

Other Authorities

H. Keene, “Gavin Newsom has Longstanding Ties to

Dem Power Player Facing Lawsuits,

Investigations”, Nox News, June 22, 2021 at

1X

www.foxnews.com/politics/gavin-newsom-ties-tom-

PILALAI-]AWSUIE oo... eee ceceescesesseeeceseeseesesesssesenensersess 11, 13

H. Ryan, M. Hamilton, “A Judge’s Affair with Tom

Girardi and a $300000 Wire”, Los Angeles Times,

August 381, 2022 occ ccccccccssscsscsscssccsesssesscssestssseseeens 12

H. Ryan, M. Hamilton, “Erika Jayne Under Fire

After Alleging Judge’s Involvement with Tom

Girardi” Los Angeles Times, December 22, 2020 12,

14

H. Ryan, M. Hamilton, “His job was to police bad

lawyers. He became Tom Girardi’s broker to L.A.’s

rich, powerful”, Los Angeles Times, July 13, 2021 11

H. Ryan, M. Hamilton, “Tom Girardi’s epic

corruption exposes the secretive world of private

judges”. Los Angeles Times August 4, 2022........... 11

J. Kloczko, “Dating Tom: My Lunch dates with

Famous Lawyer Guy Tom Girardi,” The Debaser,

May 9, 2021 at debaser.substack.com/p/lunch-with-

COMI SHY oo..eeceeccccscssecsecesecscesessesscsecsecsesaccseessessesseesscsrsatenss 12

K. Ofgang, “Howard Miller Poised to Became State

Bar President”, Metropolitan News-Enterprise,

May 4, 2009.0... ccccccccssceseessessesecessesseceeessstssecseeseneeeees 12

K. Reich, “Judges’ Role in Cruise Sponsored by

Lawyer’s Group Raises Questions”, Los Angeles

Times, October 6, 1997 at

www.latimes.com/archives/la-xpm-1997-oct-06-me-

39832-story Html... ccc cscesscesseeeseeseesseeesees 11,14

M. Hamilton, H. Ryan, “Real Housewives’ attorney

Tom Girardi used cash and clout to forge powerful

political connections”, Los Angeles Times, March 9,

QOQL vee eecccecscscsscssscscessesscsscssesesseesesceseceascecssesseeseesseaeeats 10

Rules

Fed. R. Civ. P. G0(bD) ooo. ce ceecccccsccseceeesssecssetesesssenensns 9,15

Constitutional Provisions

U.S. Const., amend. V, § 1. ssssaissssssanusccrnnwsvseeveneusnsvess

U.S. Const., amend. XIV .... scssssscssrevcensccennncnecues

l

IN THE

Supreme Court of the United States

PEYMAN ROSHAN,

Petitioner,

Vv.

MELANIE LAWRENCE, in her official

capacity as Chief Trial Counsel, and in

her personal capacity; OFFICE OF

CHIEF TRIAL COUNSEL,

Respondents,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PEYMAN ROSHAN

1757 Burgundy Dr.

Santa Rosa, CA 95403

(415) 305-7847

2

The lead question presented is a long-established

and intractable conflict between the Circuit Courts of

Appeal and within the Ninth Circuit regarding the

point or points in time at which a federal court is

required to determine when the requirements of

Younger abstention are, or are not, met.

There are three positions on this question which

have won a substantial amount of appellate support.

The first position is endorsed by the Ninth Circuit in

its en banc decision of Gilbertson v. Albright, 381

F.3d 965, 969 n.4 (9th Cir. 2004)(e banc); see also

Potrero Hills Landfill, Inc. v. Cty. of Solano, 657 F.3d

876, 881 n.6 (9th Cir. 2011); ReadyLink Healthcare,

Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 759 (9th

Cir. 2014). The First and Eleventh Circuits agree.

Maym6-Meléndez v. Alvarez-Ramirez, 364 F.3d 27,

32 (1st Cir. 2004)(noting that “the time at which the

Younger test is applied” is the filing of the federal

complaint); Bettencourt v. Bd. of Registration in

Medicine of Comm. of Mass., 904 F.2d 772, 777 (1st

Cir. 1990)(“In determining whether federal

proceedings would interfere with ongoing state

proceedings, the proper point of reference is the date

plaintiff filed his federal complaint.”).

The second position is derived from this Court’s

holding in Doran v. Salem Inn, Inc., 422 U.S. 922,

929-931 (1975), which looks at when the federal

proceeding is filed and then, if the state proceeding is

filed later, when the state proceeding is filed. The

circuits which adhere to this position are the Ninth

Circuit, in this case, and the Sixth Circuit in Zalman

v. Armstrong, 802 F.2d 199, 208-5 (6th Cir. 1986).

The third most endorsed position arises from this

Court’s opinion in Middlesex County Ethics Comm. v.

3

Garden State Bar Assn, 457 U.S. 423, 436-7

(1982)(when evaluating the opportunity-to-litigate

Younger prong, there is “no reason to ignore this

subsequent development” of a change in rules that

allowed constitutional arguments to be made.) This

is the position of the Fifth Circuit as articulated in .

Despain v. Johnston, 731 F.2d 1171, 1177-8 (Fifth

Cir. 1984).

The Eighth Circuit applied this rule in Yamaha

Motor Corp., USA v. Riney, 21 F.3d 793 (8th Cir.

1993)(addressing state proceedings as they

developed); see also Fuller v. Ulland, 76 F. 3d 957,

961 (8th Cir. 1996)(staying action on Younger

grounds because state court’s potential action in

proceeding may eliminate possibility of interference);

Aaron v. Target Corp., 357 F.3d 768 (8th

Cir.2004)(“district court erred by concentrating on

filing dates rather than by examining all the facts

and context of the two actions”).

The Tenth Circuit also adhered to the dynamic

position. “Events in the state court proceeding

occurring after the motions panel made its decision

require us to find that Younger abstention is not

applicable in this case.” Crown Point I v.

Intermountain Rural Elec, 319 F.3d 1211, 1215 (10th

Cir. 2003) (reversing District Court's dismissal

under Younger because the subsequent bar created

by “[t]he [state] court in declin[ing] to consider Crown

Point's due process defense prior to granting

immediate possession on the grounds that Crown

Point was collaterally estopped from raising the

argument due to the District Court's decision on the

merits in the federal action.” Jd. fn.2).

4

In this case and two consolidated Sanai appeals,

both appellants win if the dynamic approach is used

because the California Supreme Court attorney

discipline proceedings ended before the Ninth Circuit

heard the appeals, and unlike every other civil or

criminal proceeding, California attorney discipline

proceedings are not subject to reconsideration after

the deadline for filing a petition for rehearing has

passed and the case in closed. See App. E. Accordingly

it was impossible for two of the four Middlesex factors

to be deemed satisfied at the time the Ninth Circuit

heard the appeal.

The Ninth Circuit panel in this case did not

address the conflict in timing within Ninth Circuit

case law or as between other circuits. Instead, it

rejected the specific constitutional argument that

Roshan wanted to raise after his attorney discipline

proceedings ended, which was to argue that the laterdiscovered corruption of the State Bay’s disciplinary

personnel by disgraced California legal kingmaker

Thomas Girardi raised constitutional issues under

Bracy v. Gramley, 520 U.S. 899 (1994) and Gacho v.

Wills, 986 F.3d 1067 (7th Cir. 2021). The panel

concluded appellants had not “plausibly explained the

relationship between Girardi and their State Bar

proceedings.” Appendix A at A-8. However, there is

no requirement in any case, anywhere, that a party

must show the merits of a constitutional argument

that he shows he lacks an adequate opportunity to

make in a State court in order to to defeat Younger

abstention. All that has ever been required is that the

federal plaintiff show he lacks an adequate

opportunity to make the constitutional argument in

State court.

ORDERS BELOW

The orders of the Ninth Circuit Court of Appeals

affirming the District Court, denying the petitions

for rehearing and rehearing en banc are set forth in

Appendices, and denying the request to recall the

mandate (“App.”) A, C, D. The relevant order of the

District Court is in App. B. The California Supreme

Court’s letter to Roshan confirming that there is no

post-judgment proceedings to reopen or challenge an

attorney disciplinary order is in App. E.

BASIS FOR JURISDICTION

The Ninth Circuit Court of Appeals issued its

decisions affirming the orders of dismissal of the

District Court and denying post judgment motions

on January 20, 2024 App. A. Timely Petitions for

Rehearing and Rehearing en Banc were denied on

April 17, 2024. App. C. Petitioner invokes this

Court’s jurisdiction under 28 U.S.C. §1254(1) and the

jurisdiction of the federal courts under 28 U.S.C.

§1331.

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS AND RULES

The relevant statutory and constitutional

provisions and judicial rules are set forth in App. F.

and include the Fourteenth Amendments to the

United States Constitution U.S. Const., amend. XIV,

and 42 U.S.C. §1983.

6

STATEMENT OF THE CASE

A, Procedural Background

1. The Complaint

On July 16, 2020, Plaintiff and Appellant

Peyman Roshan (“Plaintiff’, “Appellant” and

“Petitioner”) filed a class action complaint against

Respondent Lawrence in her official capacity as Chief

Trial Counsel of the California State Bar and

personal capacity, and against the Office of Chief

Trial Counsel “OCTC”). ER 24. The complaint

alleges the following facial constitutional

inadequacies of the California State Bar’s attorney

disciplinary rules and practices:

(1) notice and opportunity to be heard were

eliminated from its rules with a purpose

to railroad innocent attorneys, ER 26-

35;

(ii) noright to discovery, ER 35;

(iii) uncharged discipline is imposed, ER 35;

(iv) permission to add new charges up to

date of trial, ER 32, 35;

(v) rejection of right to counsel, ER 32, 35;

(vi) arbitrary standards for granting

continuances, ER 35;

(vii) deciding issues within the exclusive

jurisdiction of federal courts, ER 32, 35;

(viii) not enforcing respondents’ subpoenas of

prosecution witnesses, ER 33; and,

(ix) not providing respondents power to

subpoena witnesses and documents, ER

35.

7

On the July 16, 2020 date the federal

complaint was filed, attorney discipline proceedings

against Roshan were ongoing. Roshan filed a

petition for review of the State Bar Court’s

recommended discipline on December 8, 2020. The

petition for review reserved all federal and state

constitutional claims. A suspension was imposed by

the California Supreme Court on February 17, 2021.

The reports of the press investigations into Thomas

Girardi’s corruption of the State Bar, discussed

below, had not yet been made public, so no

allegations regarding it were put in the Complaint.

2. The Rule 12(b) Dismissal

Proceedings

On August 19, 2020, Defendants moved to dismiss

based solely on Younger abstention, Dkt. No. 9, pp. 4-

5. Defendants asserted “this Court must abstain from

exercising its jurisdiction where four requirements

are met: (1) a state-initiated proceeding is ongoing;

(2) the proceeding implicates important state

interests; (3) the federal plaintiff is not barred from

litigating federal constitutional issues in the state

proceeding; and (4) the federal court action would

enjoin the proceeding or have the practical effect of

doing so.” Dkt. No. 9, p. 9.

On October 14, 2020, Plaintiff opposed the motion

to dismiss on the following grounds:

(i) “Defendants fail to properly characterize

the doctrine. Younger abstention applies

to a suit under 42 U.S.C. §1983 when

the "Middlesex" factors are met: "Absent

‘extraordinary circumstances’ (including

but not limited to bad faith and

(il)

(iii)

(iv)

(v)

8

harassment), abstention in favor of state

judicial proceedings is required if the

state proceedings (1) are ongoing, (2)

implicate important state interests, and

(3) provide the plaintiff an adequate

opportunity to litigate federal claims”.”

Dkt. No. 17, pp. 7-8 (citations omitted).

‘Defendants...fail to acknowledge that

the issue of whether adequate

opportunity exists is a question of

FACT.” Dkt. No. 17, p. 8.

[IJntervening California Supreme Court

case law after Hirsh...demonstrates that

the California Supreme Court does not

recognize federal or state constitutional

arguments as grounds for granting

review and reversing State Bar Court

Review Department Decisions.” Id.

‘TI]n the 29 years since the California

Supreme Court established its current

standards for granting review State Bar

Court decisions, it has never granted

review to consider a single federal

constitutional issue; the one time it

considered a state constitutional issue,

it explicitly held that constitutional

issues do not meet the standard for

granting review under Cal. R. Ct.

954(a), now Cal.R.Ct. 9.16(a).” Id.

“(T]he extraordinary circumstances

doctrine applies, because the California

Supreme Court rejects binding United .

States Supreme Court authority

regarding attorney disciplinary

matters.” Id.

The District Court granted the motion to dismiss.

App. B. A timely appeal was filed.

On January 17, 2022, while this appeal was

pending, Roshan moved for relief from order or

judgment under Fed. R. Civ. P. 60(b) based on both

newly discovered evidence; and fraud,

misrepresentation, or misconduct by opposing party.

Dkt. No. 46. The motion cited to the Los Angeles

Times’ (“Times”) post-judgment reporting of broadbased corruption of the State Bar by Thomas Girardi

(“Girardi”); that since the California Supreme Court,

contrary to United States Supreme Court and

Federal Circuit authority, refused to overturn its

opinion that a party cannot enter a trial court’s

rulings or in-court statements as evidence to prove

bias under either state or federal law, there is a

procedural barrier to raising issues of bias in the

State Bar Court based on the State Bar court’s

rulings on disqualifications; and that State Bar Court

Rules of Procedures do not allow raising

constitutional claims regarding a State Bar court

judge’s bias or impartiality. Dkt. No. 46, p. 5. The

motion cites two factual examples. Dkt. No. 46, p. 6.

For two decades the State Bar of California was

corrupted by a group of lawyers, investigators and

others centered around Girardi. Once a prince of the

legal profession, a friend and lover of judges, and a

political and legal power-broker, Girardi was recently

convicted for a portion of this crimes stealing money

from his clients and faces more charges.

The Times conducted series of exposés which

demonstrated that the Office of Chief Trial Counsel

10

(“OCTC”), State Bar Board of Trustees, and the State

Bar Court had been corrupted by Girardi. As set out

in the articles and additional filings made in the

California Supreme Court, Girardi over two decades

had successfully placed operatives and allies in the

State Bar Board of Trustees (including at least one

past President of the State Bar), the State Bar’s

management (including a State Bar Executive

Director who was fired by the State Bar for

misconduct and subjected to State Bar discipline), all

of the prior Chief Trial Counsels with one partial

exception, numerous State Bar investigators and

lawyers (many who worked for Girardi while at the

State Bar), and past and currently serving State Bar

Court judges. See M. Hamilton, H. Ryan, “Real

Housewives’ attorney Tom Girardi used cash and

clout to forge powerful political connections”, Los

Angeles Times, March 9, 2021 (“Girardi pushed for

other state court judges who did make it onto the

federal bench, according to congressional records.”);

H. Ryan, M. Hamilton, “His job was to police bad

lawyers. He became Tom Girardi’s broker to L.A.’s

rich, powerful”, Los Angeles Times, July 18, 2021; H.

Ryan, M. Hamilton, “State Bar probes whether

insiders helped ‘Real Housewives’ star Tom Girardi

avoid scrutiny”, Los Angeles Times, January 24,

2022; H. Ryan, M. Hamilton, “Tom Girardi’s epic

corruption exposes the secretive world of private

judges”, Los Angeles Times, August 4, 2022; H. Ryan,

M. Hamilton, “Tom Girardi gave millions to

Democratic politicians. Was the money stolen from

clients?”, Los Angeles Times, August 4, 2022

(discussing how Girardi “poured millions into local,

state and national races personally and lined up

11

additional donations from his wife, “Real Housewives

of Beverly Hills” star Erika; the employees of his law

firm; and the multitude of California trial lawyers

who did business with him — or hoped to”); see also

H. Keene, “Gavin Newsom has Longstanding Ties to

Dem Power Player Facing Lawsuits, Investigations”,

Fox News, June 22, 2021 at

www.foxnews.com/politics/gavin-newsom-ties-tomgirardi-lawsuit.

Girardi had close personal relationships with

certain judges; so, for example and without

limitation, in the case of former District Judge

Tevrizian, he was a life-long friend; in the case of

California Court of Appeal Justice Tricia Bigelow, he

was her lover; and in the case of former L.A. Superior

Court Judge Daniel J. Buckley, he was Buckley’s

legal idol. See K. Reich, “Judges’ Role in Cruise

Sponsored by Lawyer’s Group Raises Questions”, Los

Angeles Times, October 6, 1997 at

www.latimes.com/archives/la-xpm-1997-oct-06-me-

39832-story.html; H. Ryan, M. Hamilton, “Erika

Jayne Under Fire After Alleging Judge’s Involvement

with Tom Girardi” Los Angeles Times, December 22,

2020; J. Kloczko, “Dating Tom: My Lunch dates with

Famous Lawyer Guy Tom Girardi,” The Debaser,

May 9, 2021 at debaser.substack.com/p/lunch-withtom?s=r (“Tom looked across the room and saw

Daniel Buckley, who was the assistant presiding

judge of Los Angeles County Superior Court. What

happened next was amazing. He pointed at the judge,

wagged his finger “come here,” and the judge ran up

to Girardi like a groupie. I was introduced to him,

and a few weeks later we had lunch. Tom hooked it

up.”); H. Ryan, M. Hamilton, “Erika Jayne Under

12

Fire After Alleging Judge’s Involvement with Tom

Girardi” Los Angeles Times, December 22, 2020; H.

Ryan, M. Hamilton, “A Judge’s Affair with Tom

Girardi and a $300000 Wire”, Los Angeles Times,

August 31, 2022 (discussing Second Appellate District

Judge Tricia Bigelow’s adulterous affair with Girardi

and the gifts and apparent bribes paid to her with

stolen money from his clients).

In 2009, Girardi cemented his control over the

State Bar when his “partner” Howard Miller became

State Bar President by default when all other eligible

candidates mysteriously refused to run. See K.

Ofgang, “Howard Miller Poised to Became State Bar

President”, Metropolitan News-Enterprise at 1, May

4, 2009. Under Girardi’s control, the State Bar

sought to eliminate the ability of the persons it was

permitted or encouraged to prosecute by Girardi and

his allies (who included a large network of lawyers

and corrupted California state court judges) by

making defense of their cases nearly impossible.

Thus if you were Girardi, a colleague of Girardi’s, or a

friend of one of Girardi’s judicial allies, you virtually

had a free pass for misconduct. However, if you were

outside this magic circle, the State Bar would

prosecute you with all important due process

protections removed; and if one was before a Girardiallied State Bar Court judge, all discretionary

procedural and discovery rulings would go against

that respondent.

The State Bar does not deny that its prosecutorial

and adjudicative policies resulted in forgoing

disciplinary actions against Girardi and his cabal.

Indeed, one of its internal reviewers, engaged by the

State Bar to advise on its policies, found that there

13

are fifty Girardis which the State Bar has refused to

prosecute.

Girardi obtained this power through money

stolen from his clients, which he liberally contributed

to Democratic politicians such as former Governor

Jerry Brown (“Brown”) and current Governor Gavin

Newsom (“Newsom”) as well as all of the rising stars

at the state and local levels. As a result, Brown and

Newsom regularly appointed Girardi’s hand-picked

candidates, who were often informed of their

appointments at dinners at Girardi’s home attended

by the governors. Current California Supreme Court

Justices Joshua Groban (“Groban”) and Meryl

Jenkins (“Jenkins”) were charged with accepting and

evaluating Girardi’s favored candidates, and were

instrumental in Girardi’s retention of power within

California’s legal system due to their genuflecting

towards Girardi’s candidate choices. Even those

appointees to state judicial positions who were not

selected by Girardi had to obtain his approval to

advance.

On January 31, 2022, Defendants opposed the

plaintiffs motion for relief stating “Plaintiff is simply

attempting to dispute the Court’s ruling on Younger

abstention as to the issue of the adequacy of state

court constitutional review...This is simply an attack

on the basis for the judgment itself, and must be

raised on appeal, not by FRCP 60 motion.” Dkt. No.

47, p. 4.

On September 9, 2022, the District Court denied

Roshan’s Rule 60(b) motion.

Last year in the related Sanai discipline matters

it was demonstrated for the first time that there

exists an absolute procedural bar to raising

14

constitutional issues after the Supreme Court has

issued its discipline order. Sanai v. Lawrence, Case

No. 22-56215, Dkt. No 13-8 at 265. To demonstrate

its applicability in his case, Roshan filed a petition

and motion for relief that was rejected for filing.

Ninth Circuit Case No. 21-15771. Dkt No. 118, App.

E. This motion sought to present to the California

Supreme Court the arguments regarding Girardi’s

corruption that Roshan had not been able to make

because they had not been disclosed to him as

exculpatory evidence by the State Bar.

B. Procedural Background

Roshan filed an appeal that was consolidated with

three different pending appeals field by Cyrus Sanai.

The Ninth Circuit affirmed the dismissals based on

Younger abstention. App. A. On April 17, 2024, four

petitions for rehearing which cross-referenced the

others were denied. App. C.

15

WHY THE PETITION SHOULD BE GRANTED

A. Younger abstention.

In this Court’s most recent discussion of Younger

abstention, it explained that:

In the main, federal courts are obliged to

decide cases within the scope of federal

jurisdiction. Abstention is not in order

simply because a pending state-court

proceeding involves the same subject matter.

New Orleans Public Service, Inc. v. Council

of City of New Orleans, 491 U.S. 350, 373,

109 8.Ct. 2506, 105 L.Ed.2d 298 (1989)

(NOPSD ("[T]here is no doctrine that ...

pendency of state judicial proceedings

excludes the federal courts."). This Court has

recognized, however, certain instances in

which the prospect of undue interference

with state proceedings counsels against

federal relief. See id., at 368, 109 S.Ct. 2506.

Younger exemplifies one class of cases in

which federal-court abstention is required.

When there is a parallel, pending state

criminal proceeding, federal courts must

refrain from enjoining the state prosecution.

This Court has extended Younger abstention

to particular state civil proceedings that are

akin to criminal prosecutions, see Huffman v.

Pursue, Lid., 420 U.S. 592, 95 S.Ct. 1200, 43

L.Ed.2d 482 (1975), or that implicate a

16

State's interest in enforcing the orders and

judgments of its courts, see Pennzoil Co. v.

Texaco Inc., 481 U.S. 1, 107 S.Ct. 1519, 95

L.Ed.2d 1 (1987). We have cautioned,

however, that federal courts ordinarily

should entertain and resolve on the merits

an action within the scope of a jurisdictional

grant, and should not "refus[e] to decide a

case in deference to the States." NOPSI, 491

USS., at 368, 109 S.Ct. 2506.

Circumstances fitting within the Younger

doctrine, we have stressed, are "exceptional";

they include, as catalogued in NOPSI, "state

criminal prosecutions," "civil enforcement

proceedings," and "civil proceedings

involving certain orders that are uniquely in

furtherance of the state courts' ability to

perform their judicial functions." 491 U.S., at

367-368, 109 S.Ct. 2506.

Sprint Communications Inc. v. Jacobs, 571 US

69 (2014).

B. The Courts of Appeal are Hopelessly

Divided on the Question of When Younger

Abstention is Evaluated And Only this

Court can Establish a Uniform Rule.

1. Time in Evaluating Younger is Crucial.

“Timing is crucial to the applicability of Younger.”

DeSpain, supra. Within the Ninth Circuit and

outside of it, the case law is completely inconsistent

as to when and how often during the progress of

federal litigation a court evaluates the factors for

17

applying Younger abstention. In this case the

significance is that a complete temporal procedural

bar to making constitutional arguments was proven

during the appeal. See App. E.

2. The First View: Look at Time of Filing

Only.

The first view is to look only at when the

complaint was filed. This is the official position of

the Ninth Circuit under the en banc decision of

Gilbertson, supra; see also Potrero Hills, supra;

ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund,

754 F.3d 754, 759 (9th Cir. 2014); Duke v. Gastelo, 64

F.4th 1088, 1105 (9th Cir. 2023)(““the "critical date

for purposes of deciding whether abstention

principles apply is the date the federal action is

filed.” Gilbertson v. Albright, 381 F.3d 965, 969 n.4

(9th Cir. 2004).”)(Bumatay, J, diss.).

The First and Eleventh Circuits agree. Maym6-

Meléndez v. Alvarez-Ramirez, 364 F.3d 27, 32 (1st

Cir. 2004)(noting that “the time at which the Younger

test is applied” is the filing of the federal complaint);

Bettencourt v. Bd. of Registration in Medicine of

Comm. of Mass., 904 F.2d 772, 777 (1st Cir. 1990)(“In

determining whether federal proceedings would

interfere with ongoing state proceedings, the proper

point of reference is the date plaintiff filed his federal

complaint.”) Interestingly enough, Judge Siler, who

was on the panel in the underlying appeal, was also

on a subsequent First Circuit panel that found there

was tension between Bettencourt and this Court’s

precedent. Guillemard-Ginorio v. Contreras-Gomez,

585 F.3d 508, 521 (1st Cir. 2009).

18

The Eleventh Circuit agrees with Gilbertson.

Liedel v. Juvenile Court of Madison County, 891 F.2d

1542, 1546 n. 6 (11th Cir. 1990) (“The date of filing of

the federal complaint is the relevant date for

purposes of determining Yownger's applicability.”);

Tokyo Gwinnett, LLC v. Gwinnett Cnty., Ga, 940 F.3d

1254, 1268 (11th Cir. 2019) (holding, over objection of

dissent, that subsequent events after filing may not

be considered.)

3. The Second View: Take a Second Look

When State Proceeding is Filed.

The second view is, if at the time of filing no state

action pends, whether, when the state court action

was later filed, the federal case has progressed

beyond the embryonic stage. That was the standard

employed in Sanai v. Cardona, the related case. See

App. A at A-7 fn. 2. Polykoff v. Collins, 816 F.2d

1326, 1332 (9th Cir. 187); quoting Hawait Housing

Authority v. Midkiff, 467 U.S. 229, 238 (1984). This

position was established in Doran v. Salem Inn, Inc.,

422 U.S. 922, 929-931 (1975), and is not inconsistent

with the third or fourth view if it is viewed as an

application of the dynamic approach; however, it is

inconsistent if these are treated as the only two times

that the applicability of Younger is analyzed.

The Sixth Circuit also takes the approach of an

initial look at the time of filing with a revisit when a

state proceeding is subsequently initiated that

qualifies for Younger protection. Zalman v.

Armstrong, 802 F.2d 199, 203-5 (6th Cir. 1986).

4. The Third View: Look at the Situation

When the District Court Reviews the Case

and Then Look Again When the Appellate

19

Courts Review.

The third view is to look at matters at the time the

District Court and Court of Appeals each

independently review the case. “Properly framed, the

third requirement for Younger abstention asks

whether there remains an opportunity to litigate the

federal claim in a state-court proceeding at the time

the federal court is considering whether to abstain.”

Duke, supra at 1096. The third view, like the first,

second, and fourth are all present in published Ninth

Circuit case law.

5. The Fourth View: Evaluate Timing of

Younger’s Applicability Dynamically

The fourth view is the timing of Younger’s

applicability is evaluated dynamically at every point

in the litigation, in the same manner as

constitutional case and controversy for

standing/mootness. This is the approach of the Fifth,

Kighth and Ten Circuits.

The Fifth Circuit looks at the situation when the

federal action is filed and then the state action is

filed, but removes Younger protection once “the state

appellate procedure has...been exhausted.” This

analysis arose from the Fifth Circuit’s view that the

purpose of Younger abstention is to give the state

appeals courts first shot at deciding the case. Of

course, if the plaintiff loses he is potentially subject to

the preclusion trap if he litigated his constitutional

issues; but if he wins on a state-law issue and

receives a remand without the constitutional issues

being decided, Younger terminates. Despain, supra.

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