Petition for Writ of Certiorari — Robert M. Joost, Petitioner v. Massachusetts Board of Bar Examiners

4IN THE UNITED STATES SUPREME COURT

ORIGINAL

FILED

DEC 0 3 2024

No.

OFFICE OF THE CLERK

SUPREME COURT. U.S.

ROBERT M. JOOST,

Petitioner

v.

BOARD OF BAR EXAMINERS, MASSACHUSETTS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL

COURT FOR THE COMMONWEALTH OF MASSACHUSETTS

BRIEF OF THE PETITIONER

Robert M. Joost (pro se)

126 Border St. Unit 330

Boston, MA 02128

bobiparalegal@gmail.com

Question

I.

Presented

Whether, under the particular facts of this case, the Respondents and the

Commonwealth of Massachusetts, have violated Petitioner’s

constitutional rights by refusing to allow him to take the bar exam

because he does not have a formal education consisting of a four-year

college degree and a three-year law school degree by an accredited ABA

law school, when, in fact, Petitioner is fit and capable of representing

clients in the courts and before other entities owing to his more than 50

years of legal experience in writing briefs, memorandum of law,

complaints, etc.—including more than a dozen petitions for certiorari to

this Court and several briefs to the several U.S. courts of appeals—and

conducting trials when permitted, all of which is equal to, or better than a

formal education, and in fact is more in line with “reading law” and

apprenticeship that was in existence at the foundation of the United

States?

II.

Whether the Respondents and the Commonwealth of Massachusetts are

violating Petitioner’s constitutional rights by denying him the right to

pursue his chosen occupation—that is, representing people in legal

actions before the courts and other entities?

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

There are no related cases.

n.

TABLE OF CONTENTS

Questions Presented

1

List of Parties and Related Cases

n

Table of Cases

IV

Opinion Below

1

Jurisdictional Statement

1

Constitutional and Statutory Provisions Involved

1

Statement of the Case

2

Reasons for Granting the Writ

10

Conclusion

18

Certification of Service

19

Index to Appendices

Appendix A

Opinion of the Full Supreme Judicial Court of Massachusetts

Appendix B

Opinion of a Single Justice of the Supreme Judicial Court of Massachusetts

m.

Table of Cases

Board ofRegents v. Roth, 404 U.S. 564 (1972)........................

17

Butchers ’ Union Co. v. Crescent City Co., Ill U.S. 746 (1884)

17

Greene v. McElroy, 360 U.S. 474 (1960).................................

15

Meyer v. Nebraska, 262 U.S. 390(1923 ....................................

15,17

Reeves v. Scott, 324 Mass. 594 (1949).....................................

18

Schware v. Board ofBar Examiners of the State ofNew Mexico,

353 U.S. 232 (1957).........................................................

14

Shelton v. Tucker, 364 U.S. 479 (1960)

16

Smith v. Texas, 233 U.S. 630 (1914)

17

Welter v. Board ofRegistration in Medicine, 490 Mass. 718 (2022)

18

Statutes and Rules

Supreme Judicial Court Rule 3:01 Section 1

Section 1. Filing Requirements for Admission

1.1

Admission by Written Uniform Bar Examination. Persons desiring

admission to the bar of the Commonwealth by written examination in

Massachusetts or a concurrent written exam in another Uniform Bar

Examination jurisdiction shall petition by filing with the Clerk of the

Supreme Judicial Court for the county of Suffolk:

1.1.1 Petition for Admission accompanied by the recommendation of a member of

the bar of this Commonwealth or of any state, district or territory of the

United States;

1.1.2 Petitioner's Statement;

1.1.3 Authorization Form;

IV.

1.1.4 Law School Certificate;

1.1.5 Multistate Professional Responsibility Examination Score Report that sets

forth a passing scaled score that meets or exceeds the Massachusetts required

score;

1.1.6 Two (2) Letters of Recommendation for Admission; and

1.1.7 Current Certifi cate(s) of Admission and Good Standing from the highest

judicial court of each state, district, territory or foreign country to which the

petitioner is admitted, if applicable

Supreme Judicial Court Rule 3:01 Section 3

3.1 Graduates of law schools in a state, district or territory of the United

States.

3.1.1 (section deleted)

3.1.2 College. Each petitioner shall have completed the work acceptable for a

bachelor’s degree in a college or university, or have received an equivalent

education in the opinion of the Board of Bar Examiners.

3.1.3 Law School. Each petitioner shall have graduated with a degree of bachelor

of laws or juris doctor from a law school which, at the time of graduation, is

approved by the American Bar Association or is authorized by statute of the

Commonwealth to grant the degree of bachelor of laws or juris doctor.

Other Authorities

ABA Website

12

New York Times

10

Wikipedia

11

v.

IN THE

SUPREME COURT OF THE UNITED STATES

Petition for Writ of Certiorari

Petitioner respectfully prays that a writ of certiorari issue to review the

judgement below.

Opinions Below

The opinion of the highest state court to review the merits appears at

Appendix A to the Petition and is published at 495 Mass. 1006 (2024).

The opinion of the Single Justice of the Massachusetts Supreme Judicial

Court to review the initial petition to take the bar exam appears at Appendix B and

is unpublished.

Jurisdiction

The date on which the highest state court decided the instant case was

November 19, 2024. A copy of that decision appears at Appendix A. No petition

for rehearing was sought.

The jurisdiction of this Court is invoked under 28 USC § 1257(a)

Constitutional and Statutory Provisions Involved

Amendment V to the United States Constitution:

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor shall any person be

7

subject for the same offence to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken for public use,

without just compensation

Amendment XIV to the United States Constitution (in part):

Section 1. All persons bom 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.

STATEMENT OF THE CASE

Petitioner Joost turned 80 on July 4, 2024. For more than 60 of those years

he has constantly been involved in various litigations, sometimes in his own

actions, but 90-plus percent in helping lawyers or litigants. That quasi

“occupation” began right after his military service ended in 1963 when he began

“hanging out” at times with Attorney Joseph Bevilaqua of Providence, Rhode

Island, who later became the Chief Judge of the Rhode Island Supreme Court.

During his lifetime, Joost has also been friends with, and worked closely with,

many other lawyers, including one of Connecticut’s most renown lawyers, the late

James A. Wade, who began mentoring Joost in 1973. See Dukes v. Warden, 406

U.S. 250 (1972) (attorney for Petitioner Dukes).

8

For 37 of those 60 years (over 14 years, then nearly 23 years), Joost was

involved on a continuous daily basis, 24/7, 365 days a year, in working on legal

cases—either through discussion, research, drafting briefs, filing petitions or

complaints or motions, and for several years, teaching legal research and

procedure. Beginning in January, 2018, he has assisted Attorney Richard

Chambers, Jr. in scores of cases dealing with, inter alia, constitutional issues and

the civil rights of Attorney Chambers’ clients. These cases are wide in variety:

clients who were fired for refusing to take the COVID-19 vaccination on religious

grounds (see Bazinet v. Beth Israel Lahey Health, Inc., 113 F.4lh 9 (1st Cir. 1024));

restauranteurs who were denied outdoor dining licenses because of their location in

the primary Italian neighborhood of Boston, although every other area’s

restauranteurs were allowed outdoor dining; the constitutionality of the

Commonwealth of Massachusetts recent ban on assault-type weapons; the

revocation of a doctor’s license-to-carry because of a misdemeanor conviction for

OUI; the City of Salem, Massachusetts granting a variance to a restauranteur and

then blocking the variance with parking meters; police officers discriminated

against under USERRA based on their military service; negligence by hospital

resulting in wrongful death; defense of a newspaper for published articles;

constitutionality of Commonwealth’s child support guidelines; habeas corpus

proceedings under 28 USC § 2241; and so on.

9

These decades of constantly dealing with legal issues culminated in late

2023 when Joost attempted to apply to take the Massachusetts bar exam. The on­

line State system wouldn’t allow him to apply because he couldn’t produce his

four-year college and law school credentials—none of which he possesses. Joost

then applied for a waiver of those requirements to the Commonwealth’s Rules

Committee. The Board of Bar Examiners objected and the waiver was denied.

Thereupon, Joost filed a petition for waiver before a single Justice of the

Massachusetts Supreme Judicial Court, which Justice acts as a trial court in cases

of original petitions. The single Justice, sans hearing, denied Joost’s petition for

waiver. See Appendix B. Per rule, Joost appealed to the full Supreme Judicial

Court, which denied relief. See Appendix A.

In applying for the waiver, Joost provided a record in the Court Below as a

small sample of his legal experience and acumen acquired over the decades of his

so-called “paralegal” work. He filed an appendix consisting of a sample of his

legal drafts for Attorney Chambers that had mostly been filed in the courts as

is—an appendix of well over 200 pages—including a petition for writ of certiorari

Joost had drafted for pro se petitioner Frank Locascio, see Supreme Court No. 177780. Joost also cited in the body of his brief to the Court Below his pro se filings,

produced here as cited in the SJC brief:

10

CASES IN WHICH ROBERT M. JOOST FILED PRO SE BRIEFS IN

THE U.S. SUPREME COURT AND APPELLATE COURTS

1.

Joost v. United States, 444 U.S. 971 (1979)

2.

Joost v. U.S. Parole Commission, 461 U.S. 934 (1983)

3.

Joost v. MacMahon, 469 U.S. 1162 (1985)

4.

Joost v. U.S. Parole Commission, 471 U.S. 1126 (1985)

[NB. This denial came after the Supreme Court ordered the Solicitor

General in this case, and one or two others relating to the same issue (filing

of a new notice of appeal) to respond to the issue in the petition. This case

stems from the USPC denial of parole for impermissible reasons. See, Joost

v. U.S. Parole Commission, 698 F.2d 418 (10lh Cir. 1983) (per curiam)

(reversed and remanded to the district court for further proceedings

concerning whether the Commission used impermissible information to

deny parole). Upon remand, and represented by counsel at oral arguments

only, the district judge again denied relief. Thereafter, a series of post­

judgment motions were filed, along with a notice of appeal. A certificate of

appealability was eventually granted by the district judge. Both parties filed

briefs back in the Tenth Circuit Court of Appeals. After a year, without

reaching the merits, the appellate court summarily dismissed the appeal for

failure to file a new notice of appeal after denial of the post-judgment

motions. Joost and others complained vociferously about this technical

violation, especially since no one had complained. Ironically, although it

didn’t do Joost any good, the Supreme Court eventually changed the rule

relating to filing a second notice of appeal after the denial of post-judgment

motions—just what Joost had been complaining about. See notes to 1993

Amendments of Rule 4, F.R.App.R, id. at note to paragraph (a)(4).

5.

In re Robert Joost, 474 U.S. 814 (1985)

6.

Joost v. O’Brien, 475 U.S. 1111 (1986)

7.

U.S. v. Joost, 94 F.3d 640 (1st Cir. 1996)

11

8.

Joost v. United States, 519 U.S. 874 (1996)

9.

U.S. v. Joost, 133 F.3d 125 (1st Cir. 1998)

10.

Joost v. United States, 523 U.S. 1087 (1998)

11.

Joost v. United States, 226 Fed.Appx. 12 (1st Cir. 2007)

12.

Joost v. Apker, 553 U.S. 1074 (2008)

13.

Joost v. United States, 551 U.S. 1122 (2007)

14.

Joost v. United States, 559 U.S. 986 (2010)

15.

Joost v. Cornell Correction, Inc. 15 F.3d 1311 (1st Cir. 2000)

16. [In the early 1980s, Joost drafted another certiorari petition for an

inmate in the U.S. Penitentiary at Leavenworth, Kansas, whose issue on

certiorari concerned the question of the proper enforcement of the “dual

sovereignty” doctrine. While the Solicitor General declined to file a

Response, the Supreme Court ordered the Solicitor General to do so.

Thereafter, the Court declined to grant certiorari. Joost does not recall the

name of the case or the exact time, as he assisted on hundreds of pro se

filings during the 1970s and 1980s.]

SAMPLE OF JOOST’S TRIAL EXPERIENCES

On several occasions through the past 50 years, Joost has either

conducted lengthy trials or evidentiary hearings pro se or as co-counsel. A

few examples are as follows:

(a)

Docket No. H-524, Hartford, Connecticut (United States District

Court)

12

Joost and others were indicted in the above-numbered case. The late

James A. Wade, a renown Connecticut attorney, was appointed as Joost’s

counsel and conducted the first trial. Joost was convicted in the case and

sentenced to life imprisonment.

(i) In 1974 new evidence came to light that tended to question Joost’s

guilt. In early 1975 a new trial evidentiary hearing was held. Joost requested

that he be allowed to be co-counsel with Attorney Wade. The trial judge,

Hon. T. Emmet Clarie, refused. Consequently, Joost proceeded pro se. On

the first day of the hearing, Joost examined two prominent Justice

Department officials on the witness stand. At the end of the day, Judge

Clarie spoke highly to Attorney Wade of Joost’s trial conduct and reversed

his order and allowed Joost co-counsel status. Joost forthwith allowed

Attorney Wade to take over the hearing, only reserving the right to question

two particular witnesses.

The hearing lasted over two weeks. The Government presented a new

witness—a former codefendant—when their chance came to present

evidence. Joost cross-examined this witness. The result of Joost’s crossexamination was that Judge Clarie ordered that two prominent Connecticut

lawyers, whose names arose in the case during Joost’s cross-examination, be

summoned to the court hearing the first thing the next morning. Judge Clarie

13

took testimony from both lawyers the next morning. At the end of their

testimony, Judge Clarie called a temporary halt to the hearing. Then, on

April 18,1975, without resuming the hearing, Judge Clarie vacated the

convictions and ordered a new trial. See United States v. Guillette, 404

F.Supp. 1360 (D. Conn.)

(ii) A new trial was held in 1975 before the Hon. Jon Newman, later

the Chief Judge of the Second Circuit Court of Appeals. Judge Newman

allowed Joost co-counsel status. Again, Joost examined or cross-examined

only two witnesses—the Government’s chief witness and an alarm expert.

The trial lasted approximately six weeks. The jury deliberated for six days.

They acquitted Joost of two of the three counts, and were unable to reach a

verdict on the main conspiracy count.

(iii) The Hon. Lloyd F. MacMahon of the District of New York was

brought in to conduct a third trial. Judge MacMahon would not allow Joost

to be co-counsel and therefore Joost conducted the entire trial of three weeks

pro se. Joost was convicted. At sentencing, Judge MacMahon stated that but

for a twist of fate, Joost would have been sitting on the bench instead of

standing before it. He sentenced Joost to 25 years imprisonment, not life as

had been done at the first sentence.

14

(b)

Docket No. 94-056, United States v. Joost (District of Rhode

Island)

Joost was charged with conspiracy. Joost filed all pre-trial motions

and conducted all pre-trial hearings. One motion in particular involved a

challenge to the jury selection process and the statutes relevant thereto,

including expert opinions and several charts.

Joost conducted pro se the jury trial that lasted over two weeks. Joost

was convicted, and perfected pro se an appeal to the First Circuit Court of

Appeals.

(c)

Docket No. 94-055, United States v. Joost (District of Rhode

Island).

Joost was charged with being a felon in possession of a firearm. There

was an entrapment defense, but the trial judge refused to give such an

instruction to the jury. Just prior to trial, Joost was convinced by stand-by

counsel that counsel ought to be allowed to conduct the trial.

Joost was convicted. However, on appeal the First Circuit Court of

Appeals set aside the conviction and ordered a new trial. See United States

v. Joost, 92 F.3d 7 (1st Cir. 1996).

Former trial counsel resigned. Joost conducted the new trial pro se

before a new judge, who found Joost competent to represent himself and that

15

he knew all the rules and procedures to conduct the defense. Joost was

reconvicted and perfected his own appeal to the First Circuit Court of

Appeals, which upheld the conviction. See United States v. Joost, 133 F.3d

125 (1st Cir. 1998)

Reasons for Granting the Petition

I.

UNDER THE FACTS OF THIS CASE, IT’S

UNCONTITUTIONAL TO REQUIRE PETITIONER

TO HAVE A FORMAL EDUCATION IN ORDER TO

TAKE THE BAR EXAM

The Founding Lawmakers, who drafted the Constitution—none of whom

had even heard of law schools—must be squirming in their resting places should

they be monitoring Petitioner Joost’s situation. At the time the Constitution and

Bill of Rights were ratified, attending a “law school” wasn’t required in order to

practice law. Even a license wasn’t required as far as Petitioner can ascertain.

Of course, it must be recognized that for hundreds of years those who

wanted to practice law didn’t go to law schools in order to become a lawyer. They

“read law”. That is, they did an apprenticeship in a lawyer’s office for several years

and learned lawyering in that manner. In a New York Times article (“The Lawyer’s

Apprentice”) dated July 30, 2014, reporter Sean Patrick Farrell wrote:

16

“Before the prevalence of law schools in the 1870s, apprenticeships

were the primary way to become a lawyer. ‘Stop and think of some of the

great lawyers in American history,’ said Daniel R. Coquillette, a law

professor at Boston College who teaches and writes in the areas of legal

history and professional responsibility. ‘John Adams, Chief Justice Marshall,

Abraham Lincoln, Thomas Jefferson. They didn’t go to law school at all.’

The earliest law schools, Mr. Coquillette said, worked in tandem with

apprenticeships, a practice he noted is returning as many law schools move

toward externships for third-year students.”

In fact, several states today still allow the practice of law without a law

school education, basically using the apprenticeship method. As the Wikipedia site

notes about the subject:

“Reading law was the method used in common law countries,

particularly the United States, for people to prepare for and enter the legal

profession before the advent of law schools. It consisted of an extended

internship or apprenticeship under the tutelage or mentoring of an

experienced lawyer. The practice largely died out in the early 20th century.”

The article goes on to note that law schools were rare in the Founding years until

the late nineteenth century. It notes that 13 Justices of the Supreme Court never

graduated from law school, 13 U.S. Presidents who were lawyers never attended

law school, and even one of America’s most famous lawyers, Clarence Darrow,

never went to law school. The great Abraham Lincoln told a young man in 1855:

“If you are absolutely determined to make a lawyer of yourself the

thing is more than half done already. It is a small matter whether you read

with any one or not. I did not read with anyone. Get the books and read and

study them in their every feature, and that is the main thing. It is no

consequence to be in a large town while you are reading. I read at New

Salem, which never had three hundred people in it. The books and your

17

capacity for understanding them are just the same in all places. [...] Always

bear in mind that your own resolution to succeed is more important than any

other one thing.”

President Lincoln’s advice stands up 168 years later. Reading the common

law and understanding it is the most important aspect of being a capable lawyer

worthy of protecting the interests of one’s clients. Attending an ABA accredited

law school is not indicative that a person has enough knowledge to practice law. In

fact, according to the ABA’s website, in 2023 79.18% of first-time takers of the

several states’ bar exam passed on their first attempt. That means that nearly 21%

failed to pass the bar exam. One in five law school graduates, it could be argued,

didn’t learn enough in law school to get a license to practice law. Of course, there’s

little doubt that many of these failures led to boning up on law school subjects in

order to pass subsequent attempts at the bar exam. Without doubt, even those that

passed on their first attempt boned up on various subjects before taking the exam.

Indubitably, Joost’s particular case is a rare one—i.e., it would be rare to see

a case where a bar applicant has decades of experience in litigation. As rare as it is,

the SJC found “knowledge of the law” of 50-plus years no substitute for a formal

“legal education” of a mere three years with no practical experience. Appendix A,

p. 3. It’s difficult to understand that reasoning in the face of history and common

sense. A recent young law school graduate who passes the bar exam and is given a

license to practice by a state certainly, in most cases, cannot hang up a shingle and

18

began practicing law on their own; the fact is that they usually join a law practice

and begin a period of apprenticeship. In that respect, Petitioner needn’t do the

same, for he has over 50 years of apprenticeship.

The Court Below posited that they had the authority to make the rules

qualifying one to practice law in the Commonwealth, id., a statement Joost doesn’t

contest herein because it’s irrelevant to the questions presented. Citing to one of

the SJC’s prior opinions, the Court Below noted their rules for practice of law “do

not violate the equal protection or due process protections contained in the Federal

and State Constitutions ‘so long as they have a rational connection with an

applicant’s fitness or capacity to practice law.’” Id.

But in denying Joost a waiver, the SJC violated that proposition. Joost’s

experience demonstrates that he is fit to practice law and has the capacity to

practice law. It would be rare indeed to find a graduated student fresh out of law

school—who automatically can take the bar exam—to have the legal knowledge

and ability that Joost possesses. Despite his capacity, Joost is being denied the

ability to take the bar exam simply because he didn’t have the hundreds of

thousands of dollars to get a formal education, but instead had to resort to the lowly

route of serving an apprenticeship with practicing lawyers and “reading law”.

19

The Court has noted in a prior case, Schware v. Board of Bar Examiners of

the State of New Mexico, 353 U.S. 232 (1957) (denial of due process to bar an

applicant from becoming a lawyer because of their past under a “good moral

character” test), that “A State cannot exclude a person from the practice of law or

from any other occupation in a manner or for reasons that contravene the Due

Process or Equal Protection Clause of the Fourteenth Amendment.” Id. 238-239.

The Court noted that they weren’t going to discuss in that particular case whether

the right to practice law was a “‘right’” or a ‘“privilege”’, but, “it is sufficient to

say that a person cannot be prevented from practicing except for valid reasons.

Certainly, the practice of law is not a matter of the State's grace.” Id. 239 fn. 5.

But a state can “require high standards of qualification, such as good moral

character or proficiency in its law, before it admits an applicant to the bar, but any

qualification must have a rational connection with the applicant's fitness or

capacity to practice law.” Id. 239. The review of “good moral character must be

for conduct that occurred at times near to the application.” Id. 243. “[Legislation

laying down general conditions of an arbitrary or discriminatory character may,

like other legislation, fall afoul of the Fourteenth Amendment.” Id. 248 (Justice

Frankfurter, and two other Justices, concurring). The concurring Justices further

said that “Refusal to allow a man to qualify himself for the profession on a wholly

20

arbitrary standard or on a consideration that offends the dictates of reason offends

the Due Process Clause.”

As Petitioner Joost pointed out to the SJC, their own line of decisions

relative to the practice of law centered on knowledge of the law. TEST THE

KNOWLEDGE, NOT FROM WHENCE IT CAME, is Joost’s entire point. If he

can pass the bar exam, and the other ethical and rules tests the Commonwealth

requires, then why shouldn’t Joost be as qualified as anyone who obtained their

knowledge from a school rather than through apprenticeship?

Simply put, under the facts of this case, the SJC’s decision to deny Joost the

opportunity to take the bar exam is a violation of his constitutional rights as noted

in this Court’s prior decisions cited above.

II.

IT’S A VIOLATION OF PETITIONER’S

CONSTITUTIONAL RIGHTS TO DENY HIM

THE RIGHT TO PERSUE HIS OCCUPATION

In Greene v. McElroy, 360 U.S. 474, 492 (1960) the Court stated that “the

right to hold specific private employment and to follow a chosen profession free

from unreasonable governmental interference comes within the ‘liberty’ and

‘property’ concepts of the Fifth Amendment.” Also see, Meyer v. Nebraska, 262

U.S. 390, 399 (1923) (the liberty that a citizen enjoys under the Fourteenth

21

Amendment encompasses the right “to engage in any of the common occupations

of life” and it may not be interfered with “under the guise of protecting the public

interest, by legislative action which is arbitrary or without reasonable relation to

some puipose within the competency of the state to effect”) (citations omitted). In

that vein, citing to a plethora of settled-law, this Court held in Shelton v. Tucker,

364 U.S. 479, 488 (1960) that in cases where a state attempts to require certain

conditions be met before allowing a citizen to practice their profession or

occupation that “even though the governmental purpose be legitimate and

substantial, that purpose cannot be pursued by means that broadly stifle

fundamental personal liberties when the end can be more narrowly achieved.”

The Commonwealth’s legitimate end in this case—whether Joost has the

knowledge and ability to represent clients’ interests before the courts and other

entities—can be “more narrowly achieved” simply by allowing him to take the bar

exam, the same as the Commonwealth does for a person who has a mere three-year

law experience in a school and no practical experience.

To deny Joost the right to take the bar exam—as applied to the particulars of

this case—would be a denial of his constitutional rights to engage in a lawful

occupation.

22

Moreover, ‘“the right of the individual... to engage in any of the common

occupations of life”’ has long been recognized as being one of the guarantees

under the Fourteenth Amendment as it pertains to the concept of liberty. Board of

Regents v. Roth, 404 U.S. 564, 572 (1972) (quoting Meyer v. Nebraska, 262 U.S.

390, 399 (1923)). Even as far back as 1884 Mr. Justice Bradley wrote in his

concurrence in Butchers ’ Union Co. v. Crescent City Co., 111 U.S. 746, 762 that

the right to practice an occupation “is an unalienable right; it was formulated as

such under the phrase ‘pursuit of happiness’ in the declaration of independence

[sic]. ... The right is a large ingredient of the civil liberty of the citizen.” Likewise,

in Smith v. Texas, 233 U.S. 630 (1914) the Court recognized that “all men are

entitled to the equal protection of the law in their right to work for the support of

themselves and families.” Id. at 641.

In so far as a man is deprived of the right to labor, his liberty is

restricted, his capacity to earn wages and acquire property is lessened,

and he is denied the protection which the law affords those who are

permitted to work. Liberty means more than freedom from servitude,

and the constitutional guaranty is an assurance that the citizen shall

be protected in the right to use his powers of mind and body in any

lawful calling.

Id. 636.

Even the Commonwealth’s own jurisprudence recognized this tenet. “[T]he

right to engage in any lawful occupation is an aspect of the liberty and property

interests protected by the substantive reach of the due process clause of the

23

Fourteenth Amendment to the United States Constitution and analogous provisions

of our State Constitution.” Welter v. Board ofRegistration in Medicine, 490 Mass.

718, 724 (2022) (cites omitted), cert, denied 143 S.Ct. 2561. The right to engage

in any particular business is a “property right” protected by common law and

several Federal and Commonwealth constitutional provisions. Reeves v. Scott, 324

Mass. 594, 598 (1949). Unfortunately, in Joost’s case the Court Below failed to

follow their own case law, never mind this Court’s jurisprudence.

Joost has a constitutional right to practice law—an “occupation” that he has

been engaged in for virtually his entire life. While the Commonwealth may or may

not have the right to ensure that Joost has the knowledge to practice law—and such

is not conceded herein, mainly because the right may be that of the consumer’s, not

the state—all that needs to be done is to test Joost’s knowledge, just as the

Commonwealth does for those with a more formal education. The fact that Joost

obtained his equal education by less formal means ought not be held against him.

CONCLUSION

For any or all of the above reasons, the Court ought to grant a writ of

certiorari.

RESPECTFULLY SUBMITTED

Dated: /<P

/s/ ROBERf M. JOOST (pro se)

24

126 Border St., Unit 330

Boston, MA 02128

bobjparalegal@gmail.com

Certificate of Service

Robert M. Joost hereby certifies under the pain and penalties of perjury that

on the above date he has mailed via first-class postage a copy of the foregoing

Motion to Proceed in Forma Pauperis and the Petition for a Writ of Certiorari to the

Respondent, Board of Bar Examiners of Massachusetts by mailing a copy of each

document to said Respondent at their stated address of One Pemberton Square,

Suite 5-140, Boston, MA 02108.

Robert M. Jobsf

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