Petition for Writ of Certiorari — Maynard v. United States District Court

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90-1558 FILED

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In The

Supreme Court of the United States

October Term, 1990

MARGARET DANEHY MAYNARD,

Petitioner,

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA, et al.,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court Of

Appeals For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

WiLuaAM E. WINnpdDHaM, Esa.

Suite 3

133 North Buena Vista

P.O. Box 3540

Hemet, California 92343

(714) 925-5024

Counsel of Record

for Petitioner

Danie L. Camp, Esq.

2347 Emory Lane

Marietta, Georgia 300638

(404) 973-4901

Co-Counsel on Appeal

for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

——

QUESTIONS PRESENTED

1. Whether a local rule of a United States District

Court, limiting attorney admission to practice to mem-

bers of a particular state’s bar, violates due process as

guaranteed by the Fifth Amendment of the United States

Constitution because it is either arbitrary or irrational, or

both.

2. Whether a local rule of a United States District

Cour!, limiting attorney admission to practice to mem-

bers of a particular state’s bar, violates due process as

guaranteed by the Fifth Amendment of the United States

Constitution because it is not absolutely necessary to the

normal, routine and effective functioning of a District

Court.

3. Whether a local rule of a United States District

Court, limiting attorney admission to practice to mem-

bers of a particular state’s bar is impermissibly inconsis-

tent with the rules governing admission to practice before

the United States Supreme Court, and as such, not in

keeping with principles of “fairness” and “justice” as

recently embraced in a decision by this Court in Frazier

vs. Heebe, 482 US. 641, 107 S.Ct. 2607, 96 L.Ed.2d 557

(1987).

LIST OF INTERESTED PARTIES

The following is a complete list of all parties with an

interest in the outcome of this litigation.

Petitioner: Margaret Danehy Maynard

Respondents: In their official capacity as judges of The

United States District Court for the Cen-

tral District of California,

Hon. Manuel L. Real

Hon. Jesse W. Curtis

Hon. William P. Gray

Hon. A. Andrew Hauk

Hon. Robert J. Kelleher

Hon. Lawrence T. Lydick

Hon. Albert L. Stephens, Jr.

Hon. Laughlin E. Waters,

Hon. Francis C. Whelan

Hon. David W. Williams

Hon. William M. Byrne, Jr.

Hon. John G. Davies

Hon. Ferdinand F. Fernandez

Hon. Richard A. Gadbois, Jr.

Hon. Terry J. Hatter, Jr.

Hon. Harry L. Hupp

Hon. James M. Ideman

Hon. William D. Keller

Hon. David V. Kenyon

Hon. J. Spencer Letts

Hon. Ronald S. W. Lew

Hon. Consuelo B. Marshall

ili

LIST OF INTERESTED PARTIES - Continued

Hon.

Hen.

Hon.

Mariana R. Pfaelzer

William J. Rea

Edward Rafeedie

Pamela Ann Rymer

Alicemarie H. Stotler

Robert M. Takasugi

A. Wallace Tashima

Dickran Tevrizian

Stephen V. Wilson

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY PROVI-

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STATEMENT OF THE CASE. «2.2... ccccccescccess 6

REASONS FOR GRANTING THE WRIT ........... 10

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TABLE OF AUTHORITIES

Page

Cases

Barnard vs. Thorstenn, 489 U.S. 546, 109 S.Ct. 1294,

ee F 8 fl rere ree 11, 12, 20

Cowen vs. Calabrese, 230 Cal.App.2d 870, 41

ee 8 | Pe rr yee ren yy ere rer 15

Frazier vs. Heebe, 482 U.S. 641, 107 S.Ct. 2607, 96

5 Se Se PEND, oc ba econ bees te ua eens passim

Giannini vs. Real, 911 F.2d 354 (9th Cir. 1990).... passim

In re McCue, 211 Cal. 57, 293 Pac. 47 (1930)......... 15

Matter of Roberts, 682 F.2d 105 (3rd Cir. 1982) ....10, 13

Maynard vs. United States District Court for the

Central District of California, 701 FSupp. 738

Ga CORR. TOO x 6 dan sn skhickeccnSeuanvasee nena: 2, 12

Supreme Court of New Hampshire vs. Piper, 470 U.S.

274, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985). 11, 12, 16, 22

Supreme Court of Virginia us. Friedman, 487 U.S. 59,

108 S.Ct. 2260, 101 L.Ed.2d 56 (1988) ...... 11, 12, 21

Waters vs. Barr, 747 Pac.2d 900 (Nev. 1987).......... 20

Zambrano vs. City of Tustin, 885 F.2d 1473 (9th Cir.

SN hhc iixweks Sue ceabas yaks rene eeeanes 9, 17, 18, 20

STATUTES

ae USA... Seckiem Ber aes cco ks vce do ecnan 3, 4 12, 2 ao

ee Esk oe kan eR eek 4 i% 2 2

Be UR SO Bee 6 ck ik cava tadce cncisascaii.o 6

TABLE OF AUTHORITIES - Continued

Page

FepERAL RuLes

POG TRADE, RUG GOB) on oc ccc ccc ccccnncceecnewenns 18

PNR CN sy HEU RRUUD GPs cn ccm ccccacncnenectaeanes 7

Court Rutes

Central District of California Rule 2.2.1 ........ ~ & 2

Central District of California Rule 2.2.3.2............ 14

re CONE TAR DO, occ cece be eeeessneneeaseeses 3, 9

Northern District of California Rule 110-1............ 5

United States Supreme Court Rule 5.1 ......... » 4 oo

CONSTITUTIONAL PROVISION

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No. 90-___

In The

Supreme Court of the United States

October Term, 1990

MARGARET DANEHY MAYNARD,

Petitioner,

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA, et al.,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court Of

Appeals For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

—_

Margaret Danehy Maynard, Petitioner, prays that a

Writ of Certiorari issue to review the decision on appeal

before the United States Court of Appeals for the Ninth

Circuit, affirming a judgment in the United States District

Court for the Central District of California, dismissing

Petitioner’s case on a motion for dismissal brought by the

Respondents. The decision after rehearing by the Court of

Appeals was filed on January 9, 1991.

OPINIONS BELOW

On May 1, 1989, the United States District Court for

the Central District of California (in the person of the

Honorable Rudi M. Brewster, Judge of the United States

District Court for the Southern District of California sit-

ting by appointment from the Ninth Circuit United States

Court of Appeals) granted the Respondents’ separate

motions to dismiss Petiticner’s Amended Complaint

without the Petitioner having had the opportunity to

conduct any discovery and having any hearing during

which testimony was presented on the merits of her

complaint, and thereafter filed its Judgment and Order of

Dismissal. The Judgment and Order of Dismissal, with

leave to amend the original complaint, is set forth in a

published decision in Maynard vs. United States District

Court for the Central District of California, 701 F.Supp. 738

(C.D. Cal. 1988). A copy of the Judgment and Order of

Dismissal on Petitioner’s Amended Complaint, an

unpublished decision, is attached hereto as Appendix

On June 26, 1989, the Petitioner timely filed her

Notice of Appeal to the United States Court of Appeals

for the Ninth Circuit.

On October 3, 1990, the Court of Appeals filed its

Order affirming judgment, without published opinion,

based upon a recent decision in Giannini vs. Real, 9th Cir.

No. 89-55466, Slip op. 9031 (August 16, 1990). The Gian-

nini decision appears at 911 F.2d 354 (9th Cir. 1990). A

copy of the Order in this mater is attached hereto as

Appendix “B.”

On or about October 17, 1990, the Petitioner brought

a petition for rehearing based upon a denial of oral

argument, the Court’s non-compliance with the require-

ments of Ninth Circuit Rule 34-4, and the Court’s appar-

ent failure to consider in this matter or in Giannini, supra,

whether the challenged locai rule was necessary for the

court to carry out the conduct of its business.

The Court granted rehearing in an Order by the

Court filed on January 9, 1991, insofar as its related to the

procedures required by Circuit Rule 34-4, but denied

Petitioner the right to orally argue and otherwise denied

the Petition for Rehearing. A copy of this Order is

attached hereto as Appendix “C.”

JURISDICTION

The United States Court of Appeals denied the Peti-

tion for Rehearing, insofar as it related to the merits of

the case, in an order filed on January 9, 1991. This Peti-

tion For A Writ Of Certiorari is filed within ninety (90)

days of that date. Jurisdiction in invoked under 28 U.S.C.

Section 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States, Amendment V

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

otherwise infamous crime, unless cn 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 the time of war or public danger; nor shall any

person be 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 property be taken for pubic use, without

just compensation.

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

The Supreme Court and all courts established by Act

of Congress may from time to time prescribe rules for the

conduct of their business. Such rules shall be consistent

with Acts of Congress and rules of practice and pro-

cedure prescribed under section 2072 of this title.

28 U.S.C. Section 2072

(a) The Supreme Court shall have the power to

prescribe general rules of-practice and procedure and

rules of evidence for cases in the United States district

courts (including proceedings before magistrates thereof)

and courts of appeals.

(b) Such rules shall not abridge, enlarge or modify

any substantive right. All laws in conflict with such rules

shall be of no further force or effect after such rules have

taken effect.

United States Supreme Court Rule 5.1

It shall be requisite for admission to the Bar of this

Court that the applicant shall have been admitted to

practice in the highest court of a State, Commonwealth,

Territory or Possession, or of the District of Columbia for

the three years immediately preceding the date of appli-

cation and shall have been free from any adverse disci-

plinary action whatsoever during that 3-year period, and

that the applicant appears to the Court to be of good

moral and professional character.

Central District of California Rule 2.2.1

Admission to and continuing membership in the Bar

of this Court is limited to persons of good moral charac-

ter who are active members in good standing of the State

Bar of California.

Northern District of California Rule 110-1

Admission to and continuing membership in the bar

of this court shall be limited to attorneys of good moral

character who are active members in good standing of the

bar of and who are eligible to practice before any United

States Court or the highest court of any State, Territory or

Insular Possession of the United States.

STATEMENT OF THE CASE

Petitioner, Margaret Danehy Maynard, is admitted to

practice law in the State of Indiana and in the United

States District Courts for the Northern and Southern Dis-

tricts of Indiana and the Northern District of California,

the United States Court of Appeals for the Ninth Circuit

and the United States Supreme Court. She practices law,

exclusively in the field of Immigration and Naturaliza-

tion, within the jurisdiction of the United States District

Court for the Central District of California, but has not

sought, and does not intend to seek, admission to practice

law in the State of California.

On July 20, 1987, in connection with immigration

matters she was handling, Maynard sought admission to

practice in the United States District Court for the Central

District of California. The District Court denied her

admission because of the requirement of its own Rule

2.2.1, which, in part, limits admission to persons

e . who are active members in good standing of the

State Bar of California.”

On November 10 1987, Maynard commenced an

action for declaratory relief, pursuant to 28 U.S.C. Section

2201, in the United States District Court for the Central

District of California. As amended on September 22, 1988,

with leave of court, the action, in part, sought a declara-

tion of the Court that Rule 2.2.1 was unconstitutional as a

violation of due process within the meaning of the Fifth

Amendment of the United States Constitution because of

its arbitrary and irrational nature. It further sought relief

on the basis that the same was inconsistent with “princi-

ples of right and justice” and with United States Supreme

Court Rule 5.1, within the meaning of this Court’s deci-

sion in the case of Frazier vs. Heebe, 482 U.S. 641, 107 S.Ct.

2607, 96 L.Ed.2d 557 (1987).

On November 4 and 8, 1988, the Respondents

brought separate motions to dismiss the amended com-

plaint, pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure

to state a claim upon which relief may be granted. These

motions were heard on March 27, 1989, before the Honor-

able Rudi M. Brewster, Judge of the United States District

Court for the Southern District of California, sitting by

appointment from the United States Court of Appeals for

the Ninth Circuit to hear this case for the Central District

of California.

On May 1, 1989, the court filed its Judgment and

Order of Dismissal.

On June 26, 1989, the Petitioner timely filed her

Notice of Appeal to the United States Court of Appeals

for the Ninth Circuit.

The Petitioner’s appeal was scheduled for oral argu-

ment on September 11, 1990, in Pasadena, California. On

that date, the Petitioner and Respondents appeared, but

were orally advised by the Court that oral argument of

the matter would not take place.

On October 3, 1990, the Court of Appeals filed its

Order affirming judgment, based upon a recent decision

in Giannini vs. Real, 911 F.2d 354 (9th Cir. 1990).

The Giannini matter concerned a challenge to the

entire California Attorney licensing scheme, brought by

an unsuccessful applicant for admission in California.

The challenge collaterally attacked the use of California

licensure as a measure of determining competency to

practice in the federal courts in California because of

certain perceived flaws in the California admission pro-

cess.

Unlike Giannini, the Petitioner has never applied for

admission to practice in California, and does not intend

to do so, since she practices in a limited area of law of

exclusive federal concern. She disagreed with the Gian-

nini challenge that the California Attorney admission

scheme is unconstitutionally defective.

What she does contend, is that no federal court

should limit admission to those who practice before it on

the basis of admission to a single or specific state’s bar,

such as California, in particular where there is no uni-

form application of such a rule within the District Courts

in California, and because her competency to practice is

manifest by her admission to the bar of another District

Court in California.

In affirming judgment in Giannini, and by adoption

of the earlier opinion in this case also, the Court of

Appeals found six considerations given by the Respon-

dents to justify the challenged rule under a denial of

equal protection to Giannini. These considerations, set

forth at 911 F.2d 360, are identified as follows: “(1) the

defendant district courts, having no relevant procedures

of their own, rely on the California bar examination for

determination of fitness to practice law; (2) questions of

California substantive law permeate the range of cases

over which the district courts have subject matter juris-

diction; (3) membership in the California bar provides the

district courts assurance that the character, moral integ-

rity and fitness of prospective admittees have been

approved after investigation; (4) allegations of profes-

sional misconduct can be brought to the attention of the

State Bar; (5) such membership helps screen applicants

who are guilty of ethical misconduct in any other juris-

diction; and, (6) attorneys who are members of the Cali-

fornia and district court bars will not chose the forum for

litigation on the basis of their membership in the federal

bar rather than the clients’ interests.”

However, conspicuously absent in the Court’s deci-

sion in Giannini, was its own consideration of whether

those same reasons would withstand a due process chal-

lenge, as raised by Petitioner. In other words, an analysis

that simply affirms dismissal for the reasons set forth in

the district court’s decision, after finding a mere “rational

basis” for the rule, does not consider whether the chal-

lenged rule is “arbitrary, irrational” or even “neces-

sary” to the normal functioning of a district court.

On or about October 17, 1990, Petitioner brought a

Petition for Rehearing, based on the Couct’s lack of com-

pliance with notice procedures set forth in Ninth Circuit

Rule 34-4 and because the Court did not even take into

account in reaching its decision, whether the challenged

rule was “necessary for the court to carry out the conduct

of its business,” as had been previously considered in an

unrelated attorney admission decision in Zambrano vs.

City of Tustin, 885 F.2d 1473 (9th Cir. 1989).

The court granted rehearing in an Order by the Court

filed on January 9, 1991, based upon its lack of compli-

ance with Circuit Rule 34-4, but denied Petitioner the

right to orally argue and otherwise denied the Petition

for Rehearing.

REASONS FOR GRANTING THE WRIT

1. A LOCAL RULE OF A UNITED STATES DISTRICT

COURT WHICH LIMITS ATTORNEY ADMISSION

TO PRACTICE TO MEMBERS OF THE BAR OF A

SINGLE OR PARTICULAR STATE, VIOLATES DUE

PROCESS AS GUARANTEED BY THE FIFTH

AMENDMENT OF THE UNITED STATES CONSTI-

TUTION BECAUSE SUCH A LIMITATION IS

ARBITRARY, IRRATIONAL OR BOTH.

Before 1987, it had been the well established rule that

District Courts of the United States were free, virtually

without limitation, to establish whatever rules they

desired concerning admission of attorneys to practice

before them.

Indeed, in response to a prior challenge of an admis-

sion rule of a similar nature, one court has said that if “no

impairment of a fundamental right or classification based

on a suspect criterion is involved, any requirement for

admission will be upheld that is rationally related to the

applicant’s fitness to practice law in the court to which he

seeks admission.” Matter of Roberts, 682 F.2d 105, 108 (3rd

Cir. 1982).

In a number of recent decisions, this court has consis-

tently struck down restrictive bar admission require-

ments which have come before it, thus evidencing a

concern and interest on the part of the Court to review

state and federal standards for admission and ensure that

they are both narrowly drawn to protect the interests of

the involved court, while at the same time, not unduly

infringing access to the courts by otherwise competent

attorneys who might chose to practice in a particular

_ location.

In Supreme Court of New Hampshire vs. Piper, 470 U.S.

274, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985), this Court

struck down a New Hampshire Supreme Court rule that

excluded non-residents from admission to the New

Hampshire bar on the ground that it violated the Privi-

leges and Immunities Clause of Art. IV, Section 2, of the

United States Constitution. Most importantly, this Court

noted that the ability to practice law was a right protected

by this clause. Piper, 470 U.S. at 280-281.

This Court, consistent with the Privileges and Immu-

nities Clause, scrutinized the New Hampshire rule to

determine if (1) there was a substantial reason for exclu-

sion of non-residents from admission in New Hampshire,

and (2) the practice bore a substantial relationship to the

State’s own objectives.

In Supreme Court of Virginia vs. Friedman, 487 U.S. 59,

108 S.Ct. 2260, 101 L.Ed.2d 56 (1988), using the Privileges

and Immunities Clause, this Court struck down a Virginia

Supreme Court rule allowing resident attorneys, admit-

ted elsewhere, to be admitted on motion in Virginia, but

which denied the same right to non-resident attorneys.

In Barnard vs. Thorstenn, 489 U.S. 546, 109 S.Ct. 1294,

103 L.Ed.2d 559 (1989), this Court, again, employed a

Privileges and Immunities analysis to invalidate a local

rule of a United States District Court requiring residency

for admission to the Virgin Islands Bar Association.

In a case most closely related to the instant matter,

this Court, in Frazier vs. Heebe, 482 U.S. 641, 107 S.Ct.

2607, 96 L.Ed.2d 557 (1987), exercised it own inherent

supervisory authority over United States District Courts,

under 28 U.S.C. Sections 2701 and 2702. to invalidate a

local rule of a United States District Court in Louisiana

requiring residence or maintenance of an office in the

State, as a requisite for granting admission to practice

before the Court.

In Frazier, this Court analyzed the rule to determine

whether, within the framework of the factual context, it

was “arbitrary,” “unnecessary” or “irrational.” The Court

conciuded that the rule was, as to both requirements,

“unnecessary and irrational” and that it “arbitrarily dis-

criminates against out-of-state attorneys.”

In comparing Frazier with Piper, Friedman, and Bar-

nard, this Court’s analysis under its own “supervisory

authority” is virtually indistinguishable from this Court’s

analysis under the privileges and immunities clause.

What is however, plainly apparent, is that the Court of

Appeals, in affirming the decision of the District Court in

Giannini and hence Maynard, did no such analysis.

Instead, it merely looked to determine if there were any

reasons which would “justify” or provide a “rationale”

for the rule. That is a far cry from determining if each

“justification” or “rationale” provided is “arbitrary”

“irrational” or simply “unnecessary.”

Under such a superficial analysis, this Court would

have been justified in affirming the decision of the United

States Court of Appeais in Frazier, because the lower

Court did provided severai distinct “rationales” or justi-

fications for the rule. It would have been logical for this

Court then to have then followed the reasoning of the

United States Court of Appeals in Roberts, which dictates

that “any requirement for admission . . . rationally related

to the applicant’s fitness to practice law” will be upheld.

Plainly, Roberts, can no longer be the law on rules

governing admission in the District Courts, because each

reason given by the District Court in Frazier for having

the local rule demonstrated a mere “rational relationship”

to fitness to practice law, while at the same time each

reason was found by this Court to be “arbitrary” or

“irrational” or “unnecessary” under the factual circum-

stances of the case.

What factual considerations of this case, with appli-

cations of this rule, tend to suggest the “arbitrary” or

“irrational” nature of the rule? Consider the following:

The Petitioner, could lawfully handle a proceeding

on behalf of one of her clients in the United States District

Court in San Francisco, California. In fact, if she moved

her immigration practice to the San Francisco area, she

would not have this kind of a problem. If the same

proceeding were to be, for whatever reason, transferred

to the District Court in Los Angeles, she would have to

abruptly withdraw from representation, and have her

client find new counsel who might be less familiar with

the law, issues and facts of the case, merely because she

could not be admitted in a court having exactly the same

jurisdiction, substantially the same procedures and

within the confines of the same State.

The Petitioner could represent, as she consistently

does, individuals before the immigration courts, but

could not seek a “stay of deportation” order in the local

district court. However, she could handle the appeal of a

denial of that order in the United States Court of Appeals,

but she could not file the Notice of Appeal or designate

the record on appeal, because such must be done in the

District Court to which she cannot be admitted. Yet, she is

qualified to be admitted to practice before this, the high-

est federal court in the country, and could petition for

review on behalf of that same client here.

The Petitioner could not even be admitted on a pro

hac vice basis in the District Court because Central Dis-

trict Rule 2.2.3.2 “disqualifies” any applicant who “re-

sides in California.” That particular rule exists despite

this Court’s repeated denouncements of any “residency-

based” standard of admission.

In the same regard, an attorney working for the

government in the fields of immigration or tax, is equally

impaired if not working directly in immigration or tax

courts, even though the same law and issues might be

involved in a District Court proceeding.

A United States Attorney, specialized in a particular

area of criminal prosecution, could be admitted to handle

a federal criminal matter in some District Courts, but not

others. If, for example such Attorney sought transfer to

California to work in another office, he or she would not

need to take the California Bar if he or she sought a

position with the Northern District United States Attor-

ney’s Office. If he or she chose the Central District, he or

she would have to take the California Bar under local

rules. Again, if the criminal case to which he or she had

been assigned in San Francisco were transferred to Los

Angeles, then a new United States Attorney would have

to be assigned — not based upon his or her familiarity

with the case, area of federal law, or legal issues involved

— based solely upon his or her licensure to practice in the

State of California!

A non-California attorney practicing Bankruptcy law,

could lawfully practice in San Francisco and appear in the

local Bankruptcy Courts, because exclusively federal practice

has been determined not to constitute the practice of law in

California by the California Supreme Court and the Califor-

nia Court of Appeal. In re McCue, 211 Cal. 57, 66, 293 Pac. 47

(1930); Cowen vs. Calabrese, 230 Cal.App.2d 870, 41 Cal.Rptr.

441 (1964). The same attorney could probably maintain an

office in Los Angeles, but could not take cases in the Central

District Bankruptcy Court.

In addition, the same attorney could handle a bank-

ruptcy appeal for any client before the Ninth Circuit Bank-

ruptcy Appellate Panel, if admitted in the United States

Court of Appeals, and in San Francisco, at his option, also

appeal to the United States District Court. In Los Angeles,

the attorney would have no such option because he could

not be admitted to practice in the Central District and would

have to pursue his client’s appeal exclusively before the

Ninth Circuit Bankruptcy Appellate Panel.

The existence of these factual possibilities within the

confines of the same state — California - show the irra-

tional, illogical and arbitrary way in which such a rule

can be applied in the District Courts.

2. A LOCAL RULE OF A UNITED STATES DISTRICT

COURT, LIMITING ATTORNEY ADMISSION TO

PRACTICE TO MEMBERS OF THE BAR OF A SIN-

GLE OR PARTICULAR STATE, VIOLATES DUE

PROCESS AS GUARANTEED BY THE FIFTH

AMENDMENT OF THE UNITED STATES CONSTI-

TUTION BECAUSE IT IS NOT ABSOLUTELY NEC-

ESSARY TO THE NORMAL, ROUTINE AND

EFFECTIVE FUNCTIONING OF A UNITED

STATES DISTRICT COURT.

In Frazier, this Court recognized the power of a Dis-

trict Court only to enact rules “that are necessary to carry

out the conduct of its business.” This view suggests that

if a District Court can still conduct its business without a

particular rule, such rule is, per se, unnecessary even

though the same might be more “useful” or more “practi-

cal” to District Court to adopt than a less restrictive rule.

It follows that such a rule, under the reasoning of this

Court in both Piper and Frazier, might be viewed as

improper, if impairing the right to practice, because there

would be no “substantial reason” or “clese relationship”

between the rule and the purpose for which it is adopted

to serve.

Can a United States District Court “carry out the

conduct of its business” without a rule which requires

membership in the bar of the State in which it is located?

In California, the question has already been answered in

the affirmative. The United States District Court for the

Northern District of California currently does so, and

with the Petitioner as one of its own bar members. What

lack of legal knowledge, training or other skill would

then make her somehow incompetent to practice in

another District Court in the same State?

In commenting on the admission process in the Cen-

tral District, the United States Court of Appeal, in

Zambrano vs. City of Tustin, 885 F.2d 1473 (9th Cir. 1989),

had the following to say, at page 1483:

“The substantive knowledge required to prac-

tice in federal court is generally the same

throughout the country. Since 1938, the federal

courts have been engaged in the task of apply-

ing a uniform body of procedure and evidence;

federal statutes are applicable in all jurisdic-

tions. As a consequence, attorneys throughout

the country are aware of the nature and extent

of the relevant law, and there is little reason for

a district court to test substantive knowledge on

the part of lawyers admitted in other jurisdic-

tions. Similarly, ethical doubts are best resolved

through state bar proceedings. ‘Admission to a

state bar creates a presumption of good moral

character that cannot be overcome at the whims

of the District Court.’ (Citations) From a practi-

cal perspective, there exists little reason for a

member of any state bar to fear the admissions

process of the Central District; . . . ” (Emphasis

supplied).

Of course, in reality there is a substantial impediment

to a member of any state bar to admission in the Central

District, unless that person just happens to be admitted to

practice in California.

What reasons would mandate this specific require-

ment in the Central District which do not seem to concern

or effect the Northern District? It is difficult to say with-

out the Petitioner having had the opportunity to conduct

an evidentiary hearing, let alone have the ability to con-

duct discovery in this case, as was allowed and ordered

by the Court of Appeals in the Frazier case.

The only reasons ever advanced by anyone in this

case are those which are set forth by the Court of Appeals

in its decision in Giannini vs. Real, 911 F.2d 354, 360 (9th

Cir. 1990). With regard to each reason advanced, and in

particular in light of the facts of this case, other and

certainly less restrictive approaches could be employed.

In consideration of the first justification for this rule -

namely, that because the federal courts have no pro-

cedures of their own they must rely on the State Bar of

California — no reason whatsoever is given as to why they

could not simply rely upen the admission process in any

other jurisdiction, or develop one of their own. Certainly

the District Court in Northern California does not need to

rely only on the admission process in California to deter-

mine qualifications. This Court, under its own Rule 5.1,

and the various Circuit Courts of Appeal, under

Fed.R.App.P., Rule 46(a), have experienced no insur-

mountable problems in relying upon admission standards

in several jurisdictions around the country. Such an asser-

tion is, in effect, an insult to each and every other bar

examining and admitting authority in all the other states.

The Court has, in effect, determined that only the Califor-

nia State Bar is capable of determining competency to

practice in a District Court in California. However, the

experience of the Northern District of California, in that

regard, stands as clear proof that such an assertion is

sheer nonsense.

The second offered justification - that questions of

California law permeate practice in the Central District -

is a position which even the Ninth Circuit discounted in

Zambrano, at 885 F.2d 1483. For the most part, legal issues

arising in federal court do not relate to local law. More

importantly, the California bar examination does not test

familiarity with California law except in the subject areas

of community pruperty, trusts and estates — subject areas

which are seldom at issue in federal cases. The California

bar otherwise tests on general common law principles,

apparently in much the same manner as in other jurisdic-

tions.

The logical extension of this argument is that all

individuals dealing with a case arising out of California,

should be admitted to practice in that state so the Courts

can be assured that they are familiar with California law.

The absurdity and unworkability of such a requirement is

readily apparent when one considers that justices of the

various Circuit Courts of Appeal and of this Court, rou-

tinely deal with a variety of legal issues from many

states.

As applied to the facts of this case, one is tempted to

simply ask the question: “What issues of California law

permeate the field of Immigration and Naturalization?”

The obvious answer is, “absolutely none!” It is an area of

absolute and exclusive federal concern.

The third, fourth and fifth proffered justifications for

Central District Rule 2.2.1 deal with the ethical conduct of

an applicant or admitted attorney. Surely, the Court of

Appeals is not intending to suggest that all of the other

jurisdictions in this country do not, or simply cannot,

determine character, fitness and moral integrity with the

same degree or skill of competency as does California. As

the Ninth Circuit has already stated: “Admission to a

state bar creates a presumption of good moral character

that cannot be overcome at the whims of the District

Court.” Zambrano, 885 F.2d at 1483 (citation omitted). This

Court rejected a similar justification proffered by the

Virgin Islands Bar Association in Barnard vs. Thorstenn,

489 U.S. 546, 109 S.Ct. 1294, 103 L.Ed.2d 559 (1989),

suggesting that the court could rely upon information

compiled by the National Conference of Bar Examiners, a

source relied upon by all bar authorities.

There is little doubt but that the court needs the

ability to handle disciplinary matters and to set standards

governing conduct. However, California State Bar mem-

bership is not required to accomplish this. The District

Court could either: (1) require that its members be

actively licensed to practice in at least one jurisdiction; or

(2) make the rules of professional conduct of the State Bar

of California applicable to practice in the District Court

and refer all disciplinary matter to the California Bar or a

special panel of the District Court, itself.

The first approach has been employed by this Court

and other federal courts, including all Courts of Appeal.

The second approach is currently employed by the North-

ern District in California. Unquestionably, the Supreme

Court of a State, whether directly or through the State Bar

as its authorized agent is entitled to exercise some control

over individuals who practice within the State, whether

licensed or not, as was noted by the Supreme Court of

Nevada in Waters vs. Barr, 747 Pac.2d 900 (Nev. 1987).

The last proffered justification deserves little, if any,

serious consideration by this Court. First, the purported

justitication assumes, as has been repeatedly rejected by

this Court, that attorneys will not always endeavor to

protect their clients’ own interests. See Barnard, 109 S.Ct.

at 1300 (refusing to assume that a non-resident lawyer

would not become familiar with local rules); Friedman,

108 S.Ct. at 2266 (refusing to assume that non-resident

lawyers would be committed to the Virginia bar and legal

profession); Frazier, 107 S.Ct. at 2612 (refusing to assume

that non-resident lawyers would be less competent and

would disserve their clients). Second, the lack of licensure

in the District Court could be viewed as just as much an

influence on the choice of “forum,” as previously illus-

trated in the example involving an appeal of a Bank-

ruptcy case. Finally, as has already been noted, there

simply does not exist, within the framework of many

federal proceedings, any state forum. Exactly what issues

would the Petitioner encounter, in dealing with her cli-

ents in the field of immigration, which could even be

addressed in California Courts?

In the cases cited, this Court has suggested a number

of viable, less restrictive alternatives to ensure the compe-

tency and diligence of attorneys practicing within a par-

ticular jurisdiction. Passing a particular or specific state’s

bar examination is but a single — and in this case the most

restrictive — method of achieving that goal.

3. A LOCAL RULE OF A UNITED STATES DISTRICT

COURT, LIMITING ATTORNEY ADMISSION TO

PRACTICE TO MEMBERS OF A PARTICULAR

STATE’S BAR IS IMPERMISSIBLY INCONSIS-

TENT WITH THE RULES GOVERNING ADMIS-

SION TO PRACTICE BEFORE THE UNITED

STATES SUPREME COURT, AND AS SUCH, IS

NOT IN KEEPING WITH THE PRINCIPLES OF

“FAIRNESS” AND “JUSTICE” AS RECENTLY

EMBRACED IN A DECISION BY THIS COURT IN

FRAZIER VS. HEEBE, 482 U.S. 641, 107 S.Ct. 2607, 96

L.Ed.2d 557 (1987).

Title 28 U.S.C. Section 2071(a) authorizes the

Supreme Court and all other federal courts to “prescribe

rules for the conduct of their business.” It further places

limitations on such power by providing that such “rules

shall be consistent with. . . . rules of practice and pro-

cedure prescribed under section 2072... ”

Title 28 U.S.C. Section 2072 states that the “Supreme

Court shall have the power to prescribe general rules of

practice and procedure... for . . . the United States

district courts . . . and court of appeals.” It further pro-

vides that such “rules shall not abridge, enlarge or mod-

ify any substantive right.”

In Piper at 470 U.S. 280-281, this Court embraced the

view that the opportunity to practice law was a protected

right.

Finally, in Frazier, this Court took note of the express

statutory grant of authority it has to supervise the rule-

making powers of the lower court and used such author-

ity to prevent what it deemed to be “arbitrary discrimina-

tion” against “otherwise qualified individuals.”

The case brought by Petitioner before this Court is far

more compelling than Frazier from the standpoint of a

limitation upon the rule-making authority in district

courts. In Frazier, this Court was not even faced with a

district court rule expressly addressed in its own rules. In

this instance, Petitioner challenges a rule which states

that she is not qualified to practice if she is not an “active

member in good standing of the State Bar of California.”

At the same time, Rule 5.1 of this Court actually

addresses the base qualifications by simply requiring

‘4 . that the applicant shall have been admitted to

practice in the highest court of a State, Commonweaith,

Territory or Possession, or of the District of Colum-

aC as

Given the fact that this Court has expressly promul-

gated a rule on this subject, which would allow members

of the California bar and, in effect, virtually all other bars

in the United States to practice before it, and Central

District Court Rule 2.2.1 indicates that they cannot all

practice, the local rule is plainly more restrictive than

express provisions of Supreme Court Rules, and is thus

“inconsistent” with Rule 5.1 of this Court, within the

meaning of that term as used in 28 U.S.C. Section 2071(a)

and further would “abridge” a “substantive right” to

practice under 28 U.S.C. Section 2072, otherwise offered

to attorneys by this Court under Rule 5.1.

What kind of a rule would be “inconsistent with” the

rules of this Court such as to justify this Court invoking

its Own inherent supervisory authority in striking it

down? This Court did not plainly say in its decision in

Frazier.

Surely, however, if this Court would not allow a local

district court the right to create a restrictive rule of a

subject matter not even covered by its own rules under

the Frazier decision, it cannot, consistent its own rules,

uphold a district court rule which makes a person satisfy-

ing the express minimum qualifications for admission in

this Court, incompetent to practice law in an inferior

federal court.

The Petitioner has already met all the standards for

qualification for admission to the bar of this Court.

CONCLUSION

This Court has never before directly addressed the

issues presented in this brief, although in a number of

recent decisions, it has repeatedly voiced its displeasure

with admission rules, not rationally related to the stated

purpose for which they were intended and proven to be

unnecessary in view of the factual context. This petition

has far reaching implications, not only for individual

attorneys who, in an ever increasing fashion, are called

upon to litigate across state lines and district boundaries,

but for individuals and businesses alike who frequently

find themselves involved as litigants in distant places.

Most often the forum of choice is the United States

District Court, in particular because of its standardized

rules of procedure and evidence and the belief that at

least a fair hearing might be better obtained there, than in

a state court.

Clients obliged to change their legal representation,

merely because they cross geographic boundaries, can be

placed at a further disadvaniage due to the attorney’s

lack of familiarity with certain facts and the needs of a

particular client, his or her lack of skills necessary to

handle a particular kind of action, in addition to the costs

of retaining an attorney for no other reason than his or

her having membership in a local bar association. Iron-

ically, it may well be that such an individual, having only

that qualification, may be the least able, prepared or

qualified to deal with the matter for which the client was

obliged to retain him or her.

For the reasons set forth in the Petition herein, it is

respectfully urged that this Petition for a Writ of Cer-

tiorari be granted.

Respectfully submitted,

Wituam E. WinpdHaAM, Esquire

Suite 3

133 North Buena Vista

Post Office Box 3540

Hemet, California 92343

(714) 925-5024

Counsel of Record

for Petitioner

and

Danie. L. Camp, Esquire

2347 Emory Lane

Marietta, Georgia 30068

(404) 973-4901

Co-Counsel on Appeal

for Petitioner

=i ie Fi mere a

A " ‘3 a4 ats eel aie i ._

P42 ee i ~ dna a

- c 7] y nt ~

eee ee ats

7 - 7 7 '.

SS oe oy *

App. 1

APPENDIX “A”

ROBERT C. BONNER

United States Attorney

FREDERICK M. BROSIO, JR.

Assistant United States Attorney

Chief, Civil Division

ROGER E. WEST

Assistant United States Attorney

First Assistant Chief

Civil Division

1100 United States Courthouse

312 North Spring Street

Los Angeles, California 90012

Telephone: (213) 894-2461

Attorneys for Federal Defendants

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

MARGARET DANEHY )

MAYNARD, ) NO. CV

Plaintiff, ) 87-07550-B(GHKx)

)

v. ) JUDGMENT AND

)

UNITED STATES DISTRICT

COURT FOR THE CENTRAL : ened

DISTRICT OF CALIFORNIA,

et al )

5 ) (Filed May, 1, 1989

)

Defendants. Entered May 3, 1989)

Plaintiff initially filed the within action on November

10, 1987, asserting numerous constitutional challenges to

the enforceability of Local Rule 2.2.1 of the Local Rules of

the Central District of California. By Memorandum Deci-

sion entered September 29, 1988, this Court dismissed the

action, and granted plaintiff 30 days leave to amend her

App. 2

Complaint. Plaintiff timely filed an Amended Complaint.

The matter again came before this Court on March 27,

1989, for hearing upon, inter alia, the Motion to Dismiss

brought by all federal defendants herein, save and except

for Judge A. Wallace Tashima.

After thoroughly reviewing the pleadings, the mov-

ing and opposition papers filed by all parties, and the

arguments of counsel at the aforesaid hearing, and being

fully advised in the premises, the Court finds that the

complaint as amended continues to fail to state a claim

upon which relief may be granted. Specifically, the Court

would find that Local Rule 2.2.1 of the Local Rules of the

Central District of California does not violate any consti-

tutional right of piaintiff, and is not inconsistent with the

rules of the United States Supreme Court regarding

admission of attorneys, nor is the rule otherwise violative

of 28 U.S.C. §2071 or any Federal Rule of Civil Procedure.

Accordingly,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that this action be, and the same is hereby,

dismissed, as to all defendants, with prejudice.

DATED: MAY 01 1989

Rudi M. Brewster

M. ER

UNITED STATES DISTRICT

JUDGE

APPROVED AS TO FORM:

/s/ William E. Windham

WILLIAM E. WINDHAM

GRAND TERRACE LAW CENTER

Attorneys for Plaintiff

App. 3

/s/ Richard J. Grad

RICHARD J. GRAD

SIDLEY & AUSTIN

Counsel for State Bar of

California as Amicus Curiae

/s/ Christopher G. Caldwell

CHRISTOPHER G. CALDWELL

HEDGES, POWE & CALDWELL

Counsel for Defendant The

Honorable A. Wallace Tashima

/s/ Roger E. West

ROGER E. WEST, Assistant U. S. Attorney

Attorney for Federal Defendants

App. 4

APPENDIX “B”

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARGARET DANEHY

MAYNARD,

Plaintiff/ Appellant, we. Se

D.C. No.

CV-87-07550-B

UNITED STATES DISTRICT

COURT FOR THE CENTRAL

DISTRICT OF CALIFORNIA,

et al.,

ORDER

(Filed Oct. 3, 1990)

Detendants/ Appellees.

i ee

Appeal from the United States District Court

for the Central District of California

Rudi M. Brewster, District Judge, Presiding

Submitted* September 11, 1990

Pasadena, California

Before: FLETCHER, BOOCHEVER, and WIGGINS, Cir-

cuit Judges

Margaret Danehy Maynard appeals from a Judgment

and Order dismissing her action for declaratory relief

against the United States District Court for the Central

District of California and that court’s judges. We have

jurisdiction pursuant to 28 U.S.C. § 1291. The issues

raised by appellant have been decisively resolved by this

* The panel unanimously finds this case suitable for decision

without oral argument. Fed. R. App. P. 34 (a) and Ninth Circuit

Rule 34-4.

App. 5

court in Giannini v. Real, No. 89-55466, Slip op. 9031

(August 16, 1990). Pursuant to this authority we affirm

the district court’s decision in this case.

Maynard’s suit challenges Rule 2.2.1 of the Local

Rules of the Central District of California. This rule

requires that an attorney seeking admission to practice

before the United States District Court in the Central

District be a member in good standing of the State Bar of

California. Maynard, admitted to practice in the State of

Indiana and before both United States district courts in

the District of Indiana and the Northern District of Cali-

fornia, was refused admission to the Bar of the United

States District Court for the Central District of California

pursuant to this rule. In her appeal, Maynard asserts that

Rule 2.2.1 violates the due process clause. She also con-

tends that under 28 U.S.C. § 2071 the rule is impermis-

sibly inconsistent with the Rules of the United States

Supreme Court and the Local Rules of the Ninth Circuit

Court of Appeals.

Giannini addressed and rejected the arguments raised

by appellant in the present case. The court first held that

Rule 2.2.1 is not a violation of the due process clause. It

went on to hold that the rule was not inconsistent with

the Supreme Court Rules. Finally, it held that the rule did

not violate the principles of the right and justice standard

set forth in Frazier v. Heebe, 482 U.S. 641 (1987).

The only issue raised here that was not directly con-

sidered in Giannini is whether Rule 2.2.1 is impermissibly

inconsistent with the Local Rules of the Ninth Circuit.

Giannini’s analysis regarding the rule’s asserted inconsis-

tency with the Supreme Court Rules is equally applicable,

App. 6

however, in this context. The Central District’s Local Rule

2.2.1 is not inconsistent with Local Rules of the Ninth

Circuit Court of Appeals.

The decision of the district court is AFFIRMED.

App. 7

APPENDIX “C”

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARGARET DANEHY

MAYNARD,

Plaintiff-Appellant, eres

UNITED STATES DISTRICT

COURT FOP. THE CENTRAL

DISTRICT OF CALIFORNIA,

et al.,

D.C. No.

CV-87-07550-B

ORDER

(Filed Jan. 9, 1991)

Defendants-Appellees.

Before: FLETCHER, BOOCHEVER and WIGGINS, Cir-

cuit Judges.

We grant the appeilant’s petition for rehearing as it

relates appellant’s claim that she was deprived of her

right to oral argument without advance notice and an

opportunity to set forth reasons why argument should be

heard. We find that the procedures set forth in Circuit

Rule 34-4 were not followed in this case.

We construe the petition for rehearing as a statement

of reasons why oral argument should be heard. Appellant

contends that oral argument was necessary in order to

present fully her argument that the Central District’s

local rule at issue was not absolutely necessary to the

ability of the district court to conduct its business. Appel-

lant relies on this court’s decision in Zambrano v. City of

Tustin, 885 F.2d 1483 (9th Cir. 1989) and asserts that

App. 8

Giannini v. Real, 911 F.2d 354 (9th Cir. 1990) erroneously

failed to apply the Zambrano decision in its analysis.

We reject appeilant’s premise that in order to survive

appellate scrutiny Zambrano requires a finding that the

local rule is absolutely necessary to the district court’s

ability to conduct its business. Rather, in its analysis of

the necessity for sanctions imposed by local rule,

Zambrano required that there be “a close connection

between the sanctionable conduct and the need to pre-

serve the integrity of the court docket or the sanctity of

the federal rules.” 885 F.2d at 1480. Zambrano does not

require the invalidation of any rule that the district court

could do without.

We are bound by this court’s decision in Giannini

which holds that the challenged local rule does not vio-

late the “principles of right and justice.” In accordance

with Circuit Rule 34-4, we conclude that the decisional

process would not be aided by oral argument because

“the dispositive issue . . . has been recently authori-

tatively decided” and “the facts and legal arguments are

adequately presented in the briefs.”

This matter is ordered submitted on the briefs nunc

pro tunc.

The petition for rehearing and suggestion for rehear-

ing en banc has been circulated to the full court. No

member of the court has requested that a vote be taken as

to whether the case be reheard en banc. Appellant’s peti-

tion for rehearing is denied insofar as it relates to the

merits of this case and appellant’s request for rehearing

en banc is denied. No further petition for rehearing will

be entertained. The mandate shall issue forthwith.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.