Opposition — Parking Realty Co. v. Sherline

AUG 16 }977

IR., CLERK |

IN THE

Supreme Court of the Gnited States

October Term 1977

PARKING REALTY CO. AND EAN ERIE,

FORMERLY HOPE VAN RIPER,

Petitioners,

Vv

HOWARD SHERLINE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF MICHIGAN

BRIEF OF PLAINTIFF-RESPONDENT

MILLER, CANFIELD, PADDOCK

and STONE

Gilbert E. Gove

Carl H. von Ende

R. Richard Livorine

300 Wabeek Building

Birmingham, Michigan 48011

Attorneys for Plaintiff-

Respondent

EEE

THE INLAND PRESS, DETROIT, MICHIGAN

i

SUBJECT INDEX

Page

eee ii

i a ea 1

I pili liscinisiciiiscessiensibcbeiabimmnemebejitheuibinbisiimentbiihanidinih 2

Counter-Statement of Questions

PE COD hncdinectsincinecinesniossccnttliablasnentindibipimnciics 2

Counter-Statement of the Case 2022.22... cececeeceeeeeeeeee 3

Argument

1. The substantive issue upon which petitioners

seek this Court’s review was neither presented

to nor decided by the courts of Michigan; hence,

this Court’s consideration of that issue as raised

in the instant Petition would be inappropriate ... 6

2. The claim of petitioner Erie of a right to repre-

sent, as counsel, persons other than herself fails

to raise a federal question of substance —.............. 11

3. A state’s reservation of the privilege to engage

in the practice of law to natural persons, and the

denial of that privilege to corporations, raises no

substantial Federal question unucr the Equal

Protection Clause of the Fourteenth Amendment

to the United States Constitution — 2.0.0.2. 14

il

INDEX TO AUTHORITIES CITED

Cases

Federal

Black v Cutter Laboratories, 351 U.S. 292, 76 S.Ct. 824,

ee Ses SN SIU cee Mi ccielintenhctsbictincsoniniitines diisiomasieaiiabean 6

Buck v California, 343 U.S. 99, 72 S.Ct. 806, 96 L.Ed.

Sis SUE CED: <inisstscetemsisinitnncttacdinsiocktathcinanintiiincsininiindintiabiaeion 6

Cohen v Hurley, 366 U.S. 117, 123-124, 81 S.Ct. 954,

© aes Se I cecilia cichesincicpiiniaeprisichtaciancieaenieaianiaces 12

California Water Service Co. v City of Redding, 304

U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1937) -........... 11,12

Crescent Cotton Oil Co. v Mississippi, 257 U.S. 129,

42 S.Ct. 42, 66 L.Ed. 166 (1921) ..2.2.2.n.u..........eeeeeees 15

DeBacker v Brainard, 396 U.S. 28, 29-30, 90 S.Ct. 163,

Se Ek els ee GI decciensennndinnienahasonantenies 11

Dent v West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32

as TE CMI. iinicoclovceniccnccencicichenidestiiiansicniioalainaladbiliais 13

Durley v Mayo, 351 U.S. 227, 76 S.Ct. 806, 100 L.Ed.

Se CI eecinsubiaenneneraiiainadlstinmdneinimaattnatee 6

Ferguson v Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10

Se I UP NOT. ciieunitnintinesntenicbininibainatelibsddcuilind 14, 16, 17

Goldfarb v Virginia State Bar, 421 U.S. 773, 792, 95

S.Ct. 2004, 44 L.Ed. 2d. 572, 588 (1975) ...................... 12

Hacken v Arizona, 389 U.S. 143, 88 S.Ct. 325, 19 L.Ed.

els SET CRIED cctciniicisnenvdeieensicgmiaitadiilinidaiciiiieastias ees 12

Herb v Pitcarin, 324 U.S. 117, 65 S.Ct. 59, 89 L.Ed.

Fe. COMPGIGD . jraisitnicsceningenitsibesinilaptasneniiciiipaicentinsiidst Ne paid aie, 9

International Bd. of Trustees v Denver Milk Producers,

Tnc., 334 U. 8. 809, 68 S.Ct. 1015, 92 L.Ed. 1741 (1948) 11

ili

Page

Kentucky Finance Corp. v Paramount Auto Exchange

Corp., 262 U.S. 544, 43 S.Ct. 636, 67 L.Ed. 112 (1923) 16

Konigsberg v State Bar of California, 353 U.S. 252,

IN I TI ras nseteiremaasidaidesdiahbannaisbigtes deelaphiasiabiaa 13

Lathrop v Donohue, 367 U.S. 820, 81 S.Ct. 231, 6 L.Ed.

I wulinaedo 13

Law Student’s Research Council v Wadmond, 401 U.S.

154, 157, 91 S.Ct. 720, 27 L.Ed. 2d. 749 (1971) ............ 12

Leonard v Vicksburg, Shreveport, and Pacific Railroad

Co., 198 U.S. 416, 25 S.Ct. 758, 49 L.Ed. 1108 (1904) 11

Martin v Walton, 368 U.S. 25, 82 S.Ct. 1, 7 L.Ed. 2d. 5

et aE ene ere acn 13

Minneapolis, St. Paul and Sault Ste. Marie Railway

Co. v C. L. Merit Co., 198 U.S. 416, 41 S.Ct. 142

a as aah cath tects iaiialiselbeleiedtamitine 11

Osborne v The Bank of the United States, 22 U.S. (9

Wheat.) 738, 6 L.Ed. 204 (1824) 2... ceeeeeeeeeeeeee 16

Ownbey v Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed.

I lila sheasitaphenigen Saselabinideatebe 15

Phillips Petroleum Co. v Jenkins, 297 U.S. 629, 56 S.Ct.

is RS CU III ercsceciccceensnesensecasnensinnrensslinnnnsiain 15

Rescue Army v Municipal Court of Los Angeles, 331

U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1966 (1947) 0000. §=610

Simmons v West Haven Housing Authority, 399 U.S.

510, 90 S.Ct. 1960, 26 L.Ed. 2d. 764 (1970) .2000... 11

Sperry v Florida ex rel. Florida Bar, 373 U.S. 379, 383,

83 S.Ct. 1322, 10 L.Ed. 2d. 428 (1963) ........ 00. 12

iv

Page

United Mine Workers v Illinois State Bar, 389 U.S.

217, 88 S.Ct. 353, 19 L.Ed. 2d. 426 (1967) ..............-....- 13

Wilson v Cook, 327 U.S. 474, 66 S.Ct. 663, 90 L.Ed. 793,

CRUD ccscccensuvacinnicsicnsitstiainsabiaintiiatinamn ssininthichieiseaanedidantbeatsinin 6

Zucht v King, 260 U.S. 174, 43 S.Ct. 24, 67 L.Ed. 194

CRD ccxincixiscsssinsicesiiiciseccidintanepiibichbindinesdieliduiiualeamiadaatatini 11

State

Bennett v School District of City of Royal Oak, 10

Mich. App. 265, 159 N.W.2d. 245 (1968) .................... 8

Detroit Bar Ass’n. v Union Guardian Trust Co., 282

Mich. 216, 276 N.W. 365 (1938) 0.0... ...-........scecse000 15

Genesee Prosecutor v Circuit Judge, 386 Mich. 672,

ype FR , RE re ear eee soon 8

Quigley v Township of Dexter, 43 Mich. App. 604, 204

Fh Ss CIE scesehiaptoniniicisnaleiniencdintptirinniin 8

State Bar of Michigan v Cramer, 399 Mich. 116, 132,

BG ee We PRE . so ssciintesdpticnicsbctinatniamieqniiaancinations 15

Constitutional Provisions

Fourteenth Amendment, Constitution of the United

ID ccnecicscccsiunididiaiabiianieetieinandsllpapidee ardaeainpnecalapipsiamiinnie 14, 16

Statutes

Michigan Compiled Laws Annotated, Section 600.916... 15

Michigan Compiled Laws Annotated, Section 450.681.. 15

Michigan Compiled Laws Annotated, Section 600.8408 16

vV

Rules

Revised Rules of the Supreme Court of the United

I I ictal

Revised Rules of the Supreme Court of the United

IT is ala slencemiaammaanitiin

Revised Rules of the Supreme Court of the United

IN II TIDY sn cctsctesanlacndidelediineeebaneniiMlppenetaiite

Michigan General Court Rules, Rule 405.1 ..................

Michigan General Court Rules, Rule 806.3 ......................

Michigan General Court Rules, Rule 852.1 -.......0..2........

Michigan General Court Rules, Rule 711 .............00.......

IN THE

Supreme Court of the Gnited States

October Term 1977

ERS Ps eee

PARKING REALTY CO. AND EAN ERIE,

FORMERLY HOPE VAN RIPER,

Petitioners,

Vv

HOWARD SHERLINE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF MICHIGAN

BRIEF OF PLAINTIFF-RESPONDENT

To the Honorable Chief Justice and the Associate Jus-

tices of the Supreme Court of the United States.

Respondent, Howard Sherline, respectfully files the fol-

lowing brief in opposition to the Petition for Writ of

Certiorari to the Supreme Court of Michigan filed by peti-

tioners.

OPINION BELOW

As indicated in the Petition for Writ of Certiorari to the

Supreme Court of Michigan (herein ‘‘the Petition’’), no

formal opinion was issued by the Michigan Supreme Court.

2

That court’s Memorandum Order (attached to the Petition

as Appendix A) explicitly states, however, that its con-

sideration of the matter at hand was confined to a holding

that ‘‘. . . plaintiffs-appellants have failed to persuade the

Court that the questions presented should now be reviewed

by the Court or that appellants will suffer substantial harm

by awaiting final judgment or determination before taking

an appeal.’’ This Memorandum Order discloses no con-

sideration by the Michigan Supreme Court of the substan-

tive issue sought to be presented to this Court in the

Petition.

JURISDICTION

The respondent accepts the statement of this Court’s

jurisdiction contained in the Petition. Pursuant to Supreme

Court Rule 40(3), respondent makes no counter-statement

thereof.

CONSTITUTIONAL PROVISIONS INVOLVED

Without conceding that the Petition properly raises an

issue of constitutional dimension, respondent makes no

counter-statement of the constitutional provisions cited

therein.

COUNTER-STATEMENT OF

QUESTIONS PRESENTED FOR REVIEW

1. Ought this Court to entertain the substantive issue

raised in the Petition when the Supreme Court of Michigan

has not considered that issue and this Court has previously

denied an application by petitioners to seek its review?

2. Inasmuch as this Court has repeatedly recognized the

right of a state to regulate the practice of law, does a state

3

prohibition against non-lawyers representing persons and

entities other than themselves in its circuit courts present

a substantial federal question?

3. Does a state’s regulation of the practice of law,

which reserves the privilege to practice law to natural per-

sons and denies that privilege to fictional persons such as

corporations, create a substantial federal question concern-

ing the classification of persons under the Equal Protection

Clause of the Fourteenth Amendment to the United States

Constitution?

COUNTER-STATEMENT OF THE CASE

Respondent Howard Sherline, individually and as trustee,

is a minority shareholder in five corporations. He is a

director and officer of each of those corporations. Dorothy

Turkel is the majority shareholder in, and a director and

officer of, each of those corporations. Petitioner Erie is her

daughter, and is neither a shareholder, director or officer in

any of those corporations. Respondent initiated this action

below, alleging gross corporate mismanagement, and joined

as defendants therein Ms. Turkel, Ms. Erie and the five

corporations.

Ms. Turkel is an attorney licensed to practice in the State

of Michigan; Ms. Erie is not. During the course of the pro-

ceedings in the trial court, the individual and corporate

defendants have been represented, in succession, by three

attorneys licensed to practice in the State of Michigan. Ms.

Turkel has not been active, as an attorney, in the repre-

sentation of the defendants.

In August, 1976, Paul J. G. Gravel, Esq., the second of

defendants’ three attorneys, filed a motion to disqualify

the Honorable John M. Wise, the trial judge assigned to

4

hear this cause. The motion was first heard by Judge Wise,

as provided by local court rule, and was denied. An inter-

locutory appeal from this ruling was sought by Mr. Gravel

and dismissed by the Michigan Court of Appeals on the

ground that Michigan General Court Rule 405.1 required

that the matter first be considered by another judge of the

same trial bench. Mr. Gravel was thereupon discharged as

counsel to the defendants.

The defendants then retained Frederick B. Bellamy, Esq.,

who refiled the motion for disqualification in November,

1976. Pursuant to local court rule, this motion was assigned

to the Honorable Roman 8S. Gribbs. In January, 1977,

petitioner Erie filed a supplemental motion for disqualifica-

tion which was also assigned to Judge Gribbs. Both motions

were assigned for hearing on February 4, 1977. At that

hearing, petitioner Erie discharged Mr. Bellamy as counsel

and announced her intention to proceed on the motion for

disqualification on behalf of herself, her mother and the

five defendant corporations. Judge Gribbs indicated to

petitioner Erie that he would entertain the motion as one

made on her own behalf, but that, as a non-lawyer, she could

not represent her mother or the five corporations. Judge

Gribbs adjourned the hearing until February 15, 1977 to

permit him an opportunity to review the hundreds of pages

of material filed by Ms. Erie.

In the interim between February 4, 1977 and February

15, 1977, petitioner Erie sought emergency review by the

Michigan Court of Appeals of Judge Gribbs’ comments

concerning her right to represent persons other than her-

self. That court denied her application by its Order dated

February 15, 1977.

At the resumed hearing before Judge Gribbs on Feb-

5)

ruary 15, 1977, argument was offered on the motion for

disqualification and Judge Gribbs gave his oral ruling

thereon, denying the motion. A formal order denying the

motion was entered by Judge Gribbs on March 4, 1977. A

copy of that Order is annexed hereto as Appendix A.

Petitioners’ account of these proceedings before Judge

Gribbs, as set forth in their Petition, is erroneous in two

respects. First, Judge Gribbs did not dismiss petitioner

Erie’s motion for disqualification ‘‘... on the ground solely

that the motion was not presented by an attorney-at-law

duly licensed to practice by the State of Michigan.’’ (Peti-

tion at 1). To the contrary, Appendix A annexed hereto

clearly discloses that Judge Gribbs considered the motion

on its merits, as one filed by a party acting im propria

persona, and denied it. Second, petitioners contend through-

out their argument that Judge Gribbs held that corpora-

tions may not have access to Michigan courts without a

licensed attorney. Again, this is factually inaccurate. Judge

Gribbs’ oral comments, excerpts from which appear on

page 3 of the Petition, were confined to the question of

whether Ms. Erie could provide legal representation to

persons other than herself.

Subsequent to the hearings described above, petitioner

Erie sought simultaneous review, on an emergency basis,

in the Michigan Court of Appeals and Michigan Supreme

Court. The applications filed by her consisted of a jumbled

collage of hundreds of pages of corporate minutes, reprints

of law review articles, lists of alleged CIA agents, Freud-

ian analyses of Judge Wise’s alleged psychiatric problems

and quotations from treatises on satanism and witchcraft.

Both appellate courts dismissed Ms. Erie’s applications.

The orders of dismissal are annexed to the Petition as

Appendices A and B.

6

On or about April 8, 1977, petitioner Erie filed an ‘‘ Ap-

plication for Emergency Appeal or, In the Alternative,

Claim for Superintending Control’’ with this Court. That

application, like the instant Petition, sought this Court’s

review of petitioner Erie’s claim of the right to represent

the other defendants in this cause. By letter dated April

25, 1977, Ms. Erie’s application was returned, with the

notation ‘‘Application denied April 23, 1977 Potter

Stewart.’’ A copy of the letter of notification is annexed

hereto as Appendix B.

This matter remains pending in the Cireuit Court for

the County of Wayne, Michigan and is awaiting trial.

ARGUMENT

1. The substantive issue upon which petitioners seek this

Court’s review was neither presented to nor decided by

the Courts of Michigan; hence, this Court’s consideration

of that issue as raised in the instant Petition would be

inappropriate.

This Court has long recognized and consistently declared

that, in reviewing the judgments and opinions issued by the

courts of the several states, this Court’s consideration

should be reserved for those Constitutional issues fairly

presented to, and squarely decided by, the courts of last

resort of those states. Black v Cutter Laboratories, 351

U.S. 292, 76 S.Ct. 824, 100 L. Ed. 1188 (1956); Durley v

Mayo, 351 U.S. 277, 76 S.Ct. 806, 100 L. Ed. 1178 (1956) ;

Buck v California, 343 U.S. 99, 72 S.Ct. 502, 96 L. Ed. 775

(1952) ; Wilson v Cook, 327 U.S. 474, S.Ct. 663, 90 L. Ed. 66

(1952). This doctrine is rooted both in the basic concept of

federalism upon which our system of jurisprudence is

based and in the elementary notion that a court’s decisions

7

should not be evaluated as to issues not fairly presented

for its consideration in the first instance.

In the case at bar, petitioners seek this Court’s con-

demnation of ‘‘{t]he refusal of the Michigan Courts to

permit a corporation to represent itself in litigation . . .’’

In respondent’s view, this phrasing of the issue wholly

mischaracterizes the matters presented to and decided by

the Michigan courts in this cause and substantially exceeds

the proper bounds of aggressive advocacy.

The comments of the trial judge concerning Ms. Erie’s

attempts to represent persons other than herself are fairly

presented in the excerpts from his remarks quoted on page

3 of the Petition. Plainly stated, Judge Gribbs ruled only

the Ms. Erie could not represent, as counsel, her mother and

five corporations of which she is neither a shareholder,

officer nor director.’ It is worthy of mention that this ruling

was delivered from the bench as an observation in the

course of argument on the defendants’ motion for disquali-

fication of the trial judge. No order concerning this issue

was ever requested by petitioners or entered by the court.

It ought further to be noted that, contrary to the asser-

tion in the Petition, Judge Gribbs did not dismiss petitioner

Erie’s motion for disqualification because she is a non-

lawyer. Indeed, the trial court’s comments to Ms. Erie set

forth in the Petition include the court’s statement that

‘¢| |. you may appear on the 15th on your own behalf .. .”’

for the purpose of pursuing the motion for disqualification.

Judge Gribbs’ Order clearly states that petitioner Erie’s

motion was considered and denied.

1The Petition includes the statement (at page 4) that Ms. Erie is

“managing agent” of Petitioner Parking Realty Co. and the other

four defendant corporations. No mention of this term, nor any facts

which would support its use, appears in the record below.

In this posture, this matter was brought simultaneously

to the Michigan Court of Appeals and Michigan Supreme

Court on pleadings authored by petitioner Erie and

variously entitled Application for Emergency Appeal, or

in the Alternative, Claim for Superintending Control and

Cross-Application for Emergency Appeal or, in the Alter-

native, Claim for Superintending Control. As noted above,

these pleadings were exceedingly voluminous, contained

reams of extraneous materials dealing with random is-

sues, and requested extraordinary relief on an interlocu-

tory basis.

Michigan General Court Rules 806.3 and 852.1 set forth

the standards which must be met by an applicant seeking

interlocutory review by the Michigan Court of Appeals

and Michigan Supreme Court respectively. In general,

these provisions require a showing of one or more of

the following factors: 1) involvement of a controlling ques-

tion of law or an issue of major significance to the juris-

prudence of the state, 2) clear error in the decision below,

3) involvement of a challenge to the validity of a legislative

act or an issue of substantial public interest, and 4) likeli-

hood of substantial harm if an adjudication is delayed.

The power of superintending control over inferior courts

in granted to Michigan appellate courts in Michigan Gen-

eral Court Rule 711. The authorities uniformly indicate

that this power is discretionary, that its office is to control

inferior courts from exceeding their jurisdiction and that

it should not be utilized where adequate alternative reme-

dies are available. Genesee Prosecutor v Circuit Judge,

386 Mich. 672, 194 N.W.2d 693 (1972) ; Quigley v Township

of Dexter, 43 Mich. App. 654, 204 N.W. 2d 257 (1972);

Bennett v School Dist of City of Royal Oak, 10 Mich. App.

265, 159 N.W.2d 245 (1968). It is against the background

9

of the foregoing facts and the above-described rules of

procedure applicable to their consideration of cases, that

the orders of the Michigan appellate courts must be evalua-

ted.

The order of the Michigan Court of Appeals (Appendix

B to the Petition) dismissed Ms. Erie’s various applica-

tions on two bases: 1) that petitioner Erie had failed

‘*. . . to persuade the Court of the need for immediate

appellate review .. .,’’ and 2) that the applications and

briefs filed by her were ‘‘. . . grossly lacking in compliance

with . . .”’ applicable procedural rules. Discussion of the

first of these grounds may be deferred and considered in

connection with the similar ruling of the Michigan Supreme

Court. As to the latter ground, while no mention thereof

is made in the Petition, undersigned counsel assures the

Court that the procedural irregularities in Ms. Erie’s

pleadings were both substantial and fundamental. Clearly

no federal question cf substance is presented by this latter

holding. Herb v Pitcarin, 324 U.S. 117, 65 S.Ct. 59, 89 L.Ed.

789 (1944).

The order of the Michigan Supreme Court (Appendix A

to the Petition) also reflects two grounds upon which Ms.

Erie’s applications were dismissed, namely: 1) that she

had ‘‘. . . failed to persuade the Court that the questions

presented should now be reviewed by the Court . . .,’’ and 2)

there had been no showing that the defendant-appellants

‘¢ | will suffer substantial harm by awaiting final judg-

ment or determination before taking an appeal.’’ As to the

first of these grounds (and the similar ruling by the Michi-

gan Court of Appeal), it is patent that the court’s ruling

evidences merely the conclusion that the facts presented

did not merit the exercise of its conceded discretion to grant

or withhold extraordinary relief on an emergency hasis in

10

an interlocutory matter. As to the latter ground, the court’s

opinion simply refleets its failure te perceive imminent and

substantial harm to the defendant-appellants. It may be

inferred that this conclusion is grounded in the fact that

Judge Gribbs did accord Ms. Erie a full and complete op-

portunity to present her motion on her own behalf, and

that little prejudice could result from her inability to

present the same motion on behalf of parties other than

herself.

In effect, the instant Petition requests this Court to issue

an advisory opiuion to the Michigan appellate courts di-

recting them as to how and when to exercise their discre-

tion in considering emergency appeals in interlocutory

matters. Petitioners’ claim that this case presents the ab-

stract issue of ‘‘corporate self-representation’’ is plainly

belied by the record. By their orders, the Michigan appellate

courts plainly indicate that their consideration of this

matter was confined, and properly confined, to a determina-

tion of whether the facts here presented warranted the

exercise of their discretion in granting extraordinary in-

terlocutory relief. That exercise of discretion, we submit,

is not properly reviewable by this Court on a Petition for

Writ of Certiorari. Moreover, Mr. Justice Stewart’s denial

of petitioner Erie’s previous application to this Court for

review of the issue raised in her current Petition provides

additional support for the conclusion that the Petition now

before the Court ought to be dismissed.

Finally, given the voluminous, rambling, and obfuscatory

nature of petitioner Erie’s pleadings in the Michigan ap-

pellate courts, all of which pervades and clouds the record,

this Court, in its discretion, should deny the Petition.

Rescue Army v Municipal Court of Los Angeles, 331 U.S.

11

549, 67 S. Ct. 1409, 91 L. Ed. 1966 (1947); International

Board of Teamsters v Denver Milk Producers, Inc., 334 U.S.

809, 68 S. Ct. 1015, 92 L. Ed. 1741 (1948); DeBacker v

Brainard, 396 U.S. 28, 29-30, 90 S. Ct. 163, 24 L. Ed. 2d 148

(1969); Simmons v West Haven Housing Authority, 399

U.S. 510, 90 S. Ct. 1960, 26 L. Ed. 2d 764 (1970).

2. The claim of petitioner Erie of a right to represent, as

counsel, persons other than herself fails to raise a

federal question of substance.

Rule 19.1 of the United States Supreme Court Rules

provides :

; **A review on Writ of Certiorari is not a matter of

right, but of sound judicial discretion, and will be

granted only where there are special and important

reasons therefor.’’ (Emphasis supplied).

Subsection (a) of Rule 19 indicates the character of reasons

which will be considered by the Court in exercising such

discretion :

‘*Where a state court has decided a federal ques-

tion of substance not theretofore determined by this

Court, or has decided it in a way probably not in

accord with applicable decisions of this Court.’’

In analyzing what consitutes a ‘‘substantial’’ federal

question for purpose of Supreme Court review, this Court

has repeatedly held that a question is not substantial where

previous decisions of the Court are uniform and consistent

in resolving it. California Water Service Co. v City of

Redding, 304 US. 252, 58 S. Ct. 865, 82 L. Ed. 1323 (1937) ;

Zucht v King, 260 U.S. 174, 43 S. Ct. 24, 67 L. Ed. 194

(1922) ; Minneapolis, St. Paul and Sault Ste. Marie Railway

Co. v C. L. Merit Co., 254 U.S. 376, 41 S. Ct. 142, 67 L. Ed.

312 (1920); Leonard v Vicksburg, Shreveport, and Pacific

12

Railroad Co., 198 U.S. 416, 25 S. Ct. 758, 49 L. Ed. 1108

(1904). The question which petitioners seek to foist upon

this Court is precisely of this character. Properly framed,

‘¢.. its unsoundness so clearly results from the previous

decisions of this Court as to foreclose the subject.’’ Calt-

fornia Water Service Co., supra, at 255.

This Court has long recognized:

‘« . . that the states have a compelling interest in

the practice of professions within their boundaries,

... they have broad powers to establish standards for

licensing practitioners and regulating the practice of

professions. ... The interests of the states in regulat-

ing lawyers is especially great since lawyers are

essential to the primary governmental function of

administering justice, and have historically been

‘officers of the court.’ ”’

Goldfarb v Virginia State Bar, 421 U.S. 773, 792, 95 8. Ct.

2004, 44 L.Ed. 2d 572, 588 (1975); Sperry v Florida ez rel.,

Florida Bar, 373 U.S. 379, 383, 83 S. Ct. 1322, 10 L. Ed. 2d

428 (1963) ; Cohen v Hurley, 366 U.S. 117, 123-124, 81 S. Ct.

954, 6 L. Ed. 2d 156 (1961); Law Student’s Research Coun-

cil y Wadmond, 401 U.S. 154, 157, 91 S. Ct. 720, 27 L. Ed.

2d 749 (1971). Clearly, the single most important aspect of

proper regulation of the practice of law is the power of the

state to prohibit unlicensed and unqualified individuals,

such as petitioner Erie here, from acting as attorney and

counselor to others. Petitioners ignore this Court’s empha-

tic acknowledgment of this fundamental state power and

argue, in effect, that the Constitution confers upon Ean

Erie an unfettered right to represent others. Claims of such

a right have been uniformly rejected by this Court as being

utterly without merit.

In Hacken v Arizona, 389 U.S. 143, 88 8. Ct. 325, 19 L. Ed.

13

2d 347 (1967), a non-lawyer, having represented an indi-

gent prisoner in an Arizona state court was convicted under

an Arizona statute making the unauthorized practice of law

a misdemeanor. The Supreme Court of Arizona denied a

Petition for Habeas Corpus, affirming the conviction. Ap-

peal was made to this Court and, in a per curiam opinion,

was dismissed for want of a substantial federal question.

In Martin v Walton, 368 U.S. 25, 82 S. Ct. 1, 7 L. Ed. 2d 5

(1961), a lawyer, admitted to the Bars of Kansas and

Missouri, brought an action in mandamus in Kansas to

compel a judge of the Kansas probate court to permit him

to try cases in the Kansas probate court without the asso-

ciation of Kansas counsel. Kansas statutes and court rules

provide that an attorney admitted to the Kansas bar, who

is also a member of the Bar of another state and regularly

engaged in the practice of law in that state, must associate

with local counsel in Kansas before he can appear in

Kansas courts. The Supreme Court of Kansas affirmed a

lower court’s order quashing the Writ in spite of a claim

that the Kansas statutes and court rules were in contra-

vention of the Fourteenth Amendment. In a per curiam

opinion, this Court dismissed the appeal for want of a

substantial federal question, holding that the statute and

rules at issue were ‘‘.. . not beyond the allowable range of

state action under the Fourteenth Amendment.’’ Martin,

supra, at 26.7

*In numerous cases prior to Martin and Hacken, both supra, this

Court has recognized and upheld the state’s power to regulate the

privilege to practice law, to ensure that only qualified individuals

presume to counsel others as to their legal interests. Konigsberg v

State Bar of California, 353 U.S. 252, 77 S. Ct. 722, 1 L. Ed. 2d 810

(1957) ; Dent v West Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 L. Ed.

623 (1889); Lathrop v Donohue, 367 U.S. 820, 81 S. Ct. 1826, 6 L.

Ed. 2d 1191 (1961); United Mine Workers v Illinois State Bar,

389 U.S. 217, 88 S. Ct. 353, 19 L. Ed. 2d 426 (1967).

14

A final and fatal blow to the patently frivolous claim of

petitioners is provided by Ferguson v Skrupa, 372 U.S. 726,

83 S. Ct. 1028, 10 L. Ed. 2d 93, 95 ALR 2d 1347 (1963). In

Ferguson, a Kansas statute restricted the business of ‘‘debt

adjusting’’ to licensed attorneys. Plaintiff claimed the sta-

tute violated both the Due Process and Equal Protection

clauses of the Fourteenth Amendment. This Court was

unanimous in rejecting the claim, saying: ‘‘If the State of

Kansas wants to limit debt adjusting to lawyers, the Equal

Protection Clause does not forbid it.’’ Ferguson, supra, at

732.

Petitioners ignore all these cases and the fundamental

concept they reflect in baldly asserting that Ean Erie has

a constitutional right to act as an attorney for others. The

decided cases of this Court are uniform and emphatic in

rejecting such claims. The Petition fails to raise a sub-

stantial federal question and should be rejected.

3. A state’s reservation of the privilege to engage in the

practice of law to natural persons, and the denial of

that privilege to corporations, raises no substantial

federal question under the Equal Protection Clause of

the Fourteenth Amendment to the United States Con-

stitution.

Respondent earnestly submits that the arguments pre-

sented in the foregoing sections of this Brief thoroughly

dispose of petitioners’ contention that this Court should

entertain review of the abstract issue of ‘‘corporate self-

representation’’ posed in the Petition. It is without trepida-

tion, however, that respondent addresses that issue on the

merits.

We begin with the acknowledgement that the Equal Pro-

tection Clause of the Fourteenth Amendment to the United

States Constitution includes corporations as persons within

15

its purview and prohibits discrimination among persons

by classifications which lack rational basis. This Court has

recognized, nonetheless, that distinctions between corporate

persons and natural persons, where based on rational dis-

tinctions, are constitutionally sound. Phillips Petroleum

Co. v Jenkins, 297 U.S. 629, 56 S. Ct. 611, 80 L. Ed. 943,

reh. denied, 298 U.S. 691, 56 S. Ct. 745, 80 L. Ed. 1409

(1936) ; Crescent Cotton Oil Co. v Mississippi, 257 U.S. 129,

42 S. Ct. 42, 66 L. Ed. 166 (1921); Ownbey v Morgan, 256

U.S. 94, 41 S. Ct. 433, 65 L. Ed. 837 (1921).

In the matter at hand, the Michigan legislature has re-

served the privilege to practice law to those natural persons

licensed by it (M.C.L.A. §600.916) and has forbidden

corporations from practicing law for others (M.C.L.A.

§450.681). The Michigan Supreme Court has concluded that

corporations must appear in its circuit courts by a licensed

attorney. Detroit Bar Ass’n v Union Guardian Trust Co.,

282 Mich. 216, 276 N.W. 365, reh. denied, 282 Mich. 707, 711,

N.W.432 (1938). Respondent suggests that this classification

is both rational and necessary. Perforce, a corporation

cannot practice law; it must, if it is to appear in court,

appear through some natural person. It would be equally

ludicrous to suggest that a corporation could practice

surgery. The Michigan regulation of the practice of law

simply requires that all such natural persons who seek to

practice law for others than themselves be licensed to do

so. The Supreme Court of Michigan has recently noted that

the substantial state interests which underlie this regulatory

scheme include the protection of the public and the assur-

ance that practitioners of the law are subject to disciplinary

procedures. State Bar of Michigan v Cramer, 399 Mich. 116,

132, 134, ...... NW 2d ....... (1976). The legitimacy of these

important state interests is beyond dispute.

16

It is of no moment, we submit, that the Michigan legisla-

ture has permitted corporations to appear in its small

claims courts without counsel (M.C.L.A. §600.8408), since

this very section prohibits the participation of attorneys

in small claims cases, except on their own behalf. Hence,

unless corporations were permitted to appear through non-

lawyers, they could not appear at all.

We further submit that petitioners’ reliance on this

Court’s opinion in Kentucky Finance Corp. v Para-

mount Auto Exchange Corp., 262 U.S. 544, 43 S. Ct.

636, 67 L. Ed. 112 (1923), is misplaced. There, this Court

faced a state statute which placed on corporate litigants a

vexatious and irrational burden in connection with the

situs of the production of its corporate records. Here, the

Michigan regulatory scheme imposes no analogous burden.

Rather, it has merely identified the indisputable fact that

corporations are inherently incapable of appearing in court

except through a natural person and that, in consequence,

they must so appear through a natural person licensed and

authorized to practice law. This conclusion does not offend

the Equal Protection Clause and is in harmony with this

Court’s decision in Osborn v The Bank of the United States,

22 U.S. (9 Wheat.) 738, 6 L. Ed. 204 (1824). Petitioners

cite no authority to the contrary.

Lastly, petitioners ask this Court to engage in a debate

with the State of Michigan as to the wisdom of confining

the practice of law to natural persons. In the great tradition

of federalism, this Court has declined such invitations. In

Ferguson, supra, the Court stated:

‘*We are not concerned ... with the wisdom, need,

or appropriateness of the legislation. . . . this Court

does not sit to subject the State to an intolerable

supervision hostile to the basic principles of our

—— = oe

a ee

ee te — -

17

Government and wholly beyond the protection which

the general clause of the Fourteenth Amendment was

intended to secure.’’ Ferguson, supra, at 730.

Petitioners simply ignore this settled and fundamental

principle of federalism and insist ‘‘there is no good reason

. why Parking Realty Co. should not be permitted to

have petitioner Ean Erie represent it .. .’’ (Petition at 9)

The State of Michigan, in its wisdom, has decided there

are very good reasons to regulate who may appear in its

courts as attorneys for others. That wisdom, and the power

to effect it, has always been respected by this Court.

18

CONCLUSION

The issue which the Petition requests this Court to ad-

dress was never considered by the Michigan appellate

courts. Those courts properly confined their attention to

an examination of whether the facts presented to them

justified the exercise of their discretion in granting emer-

gency interlocutory review of the trial judge’s actions in

this cause. This Court has never considered the exercise

of such discretion properly reviewable.

Respondent further submits that the claim asserted by

Ms. Erie that she may represent, as counsel, her mother and

five corporations of which she is neither a shareholder,

director nor officer is patently frivolous and wholly fails

to present a substantial federal question. Finally, we urge

that the statutes and appellate decisions under which

Michigan has reserved to licensed attorneys the privilege

of engaging in the practice of law do not present a color-

able claim of improper classification or discrimination

against corporations under the Equal Protection Clause of

the Fourteenth Amendment to the United States Constitu-

tion. We urge that the Petition be denied.

Respectfully submitted,

Miller, Canfield, Paddock and Stone

Gilbert E. Gove

Carl H. von Ende

R. Richard Livorine

300 Wabeek Building

Birmingham, Michigan 48011

Attorneys for Plaintiff-

Respondent

Dated: August 10, 1977

19

APPENDIX A

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE

COUNTY OF WAYNE

HOWARD SHERLINE, Individually

and as Executor and Trustee,

Plaintiff,

vs. No. 75-071-519-CK

PARKING REALTY COMPANY, et al.

Defendants.

Carl H. von Ende (P-21867)

Attorney for Plaintiff

ORDER DENYING SUPPLEMENTAL MOTION

TO DISQUALIFY THE JUDGE

At a session of said Court held in the City of Detroit,

County of Wayne, State of Michigan on March 4, 1977.

PRESENT: HONORABLE ROMAN S. GRIBBS, Cir-

cuit Court Judge

This matter having come before the Honorable Roman

S. Gribbs by designation by Presiding Judge James N.

Canham for consideration of the Supplemental Motion to

Disqualify the Judge filed by defendant Ean Erie, a/k/a

Hope Van Riper, and hearings on said Motion having been

conducted on February 4, 1977 and February 15, 1977; and

the Court having heard argument from defendants Erie

and Turkel and from counsel for the plaintiff; and the

Court having fully considered the contents of the afore-

said Supplemental Motion and the Reply and Brief filed

in opposition thereto by counsel for the plaintiff; and the

Court being fully advised in the premises ;

20

IT IS HEREBY ORDERED that the Supplemental

Motion to Disqualify the Judge filed in this cause by

defendant Ean Erie be, and the same hereby is, denied.

IT IS HEREBY FURTHER ORDERED that the oral

motion by plaintiff’s counsel for the award of costs and

actual attorneys fees in connection with said Supplemental

Motion is reserved for consideration by the judge to whom

this case is assigned.

/s/ ROMAN S. GRIBBS

Circuit Court Judge

A TRUE COPY

JAMES R. KILLEEN, Clerk

oe ee

Deputy Clerk

21

APPENDIX B

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

April 25, 1977

Ms. Ean Erie

1420 David Whitney Building

Detroit, Michigan 48226

Re: Ean Erie, formerly Hope Van Riper v.

Howard Sherline, et al., A-871

Dear Ms. Erie:

Your applications in the above-entitled case have been

presented to Mr. Justice Stewart, who has endorsed thereon

the following:

‘* Application denied

April 23, 1977

Potter Stewart’’

Please notify opposing counsel of this action.

Very truly yours,

MICHAEL RODAK, JR., Clerk

By: /s/ PETER K. BECK

Assistant Clerk