Respondents Brief — Hoover v. Ronwin

Supreme Court brief1984

Ask Donna

What actually matters in this document.

Text

Otic Super o

oct 18 4a

No. 82-1474 ALEXANDER L STEVAS: |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

CHARLES R. HOOVER, HOWARD H. KARMAN,

ROBERT D. MYERS and HAROLD J. WOLFINGER,

Petitioners,

vs.

EDWARD RONWIN,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED CTATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENT'S BRIEF ON THE MERITS :

EDWARD RONWIN

Attorney at Law (Iowa)

P.O. Box 3585

Urbandale, Iowa 50322

(515) 223-8819

Respondent pro se nf

QUESTIONS PRESENTED FOR REVIEW

I. WAS THE GRADING PROCEDURE EMPLOYED BY

PETITIONERS FOR THE FEBRUARY, 1974

ARIZONA STATE BAR EXAMINATION CLEARLY

ARTICULATED AND AFFIRMATIVELY EXPRESSED

BY THE STATE OF ARIZONA ACTING AS SOV-

EREIGN; AND, IF SO,DID THE SOVEREIGN

ACTIVELY SUPERVISE THE GRADING?

II. ON THE ASSUMPTION, ARGUENDO, THAT THE

ISSUE IS PROPERLY BEFORE THIS COURT, AS

PETITIONERS ARGUED IN THEIR PETITION FOR

CERTIORARI AT 18-20, AND IN THEIR BRIEF AT

74-87, IS THE NOERR-PENNINGTON DOCTRINE

APPLICABLE TO PETITIONERS?

III. CAN A STATE EVER USE ANY PROFESSIONAL

OR OCCUPATIONAL LICENSING EXAMINATION, OR

ANCILLARY PROCEDURE, FOR THE PRIMARY PUR-

POSE OF LIMITING THE NUMBER OF LICENSEES

RATHER THAN TO DETERMINE THE INDIVIDUAL .

QUALIFICATIONS TO PRACTICE OF EACH APPLI-

CANT?

IV. DID THE NINTH CIRCUIT ERR IN AFFIRM-

ING THE DISMISSAL OF THE SPOUSES OF

THE INDIVIDUAL DEFENDANTS?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES

STATUTORY PROVISIONS AND RULES

INVOLVED 1

STATEMENT OF THE CASE 1

SUMMARY OF ARGUMENT 8

ARGUMENT 10

I. THE GRADING PROCEDURE EMPLOYED

BY PETITIONEFS FOR THE FEBRUARY,

1974 ARIZONA STATE BAR EXAMINA-

TION WAS NOT CLEA’LY ARTICULATED

AND AFFIRMATIVELY EXPRESSED BY 10

THE ARIZONA SUPREME COURT ACTING

AS SOVEREIGN; AND, IN ANY CASE,

THE SOVEREIGN DID NOT ACTIVELY

SUPERVISE THE GRADING.

A. Clarification of Confusion Over

Which Arizona Supreme Court Rules 10

Applied At Times Relevant Hereto

B. When Does the State-Action Exem- 15

ption From Antitrust Law Apply?

iii

Page

C. What Test Applies to Peti-

tioners? 20

D. Just What is Ronwin's

Complaint? 23

E. Does Petitioners' Status

Provide Immunity to Peti-

tioners? 32

F. Is the Feldman Case Appli-

cable? 43

G. Commentary on Selected Items

in the Briefs of Petitioners

and Their Amici. 52

1. On Scaled Scoring 52

2. On Active Supervision 58

II. ON THE ASSUMPTION, ARGUENDO,

THAT THE ISSUE IS PROPERLY

BEFORE THIS COURT, AS PETI-

TIONERS ARGUED IN THEIR PETI- 62

TION FOR CERTIORARI AT 18-20,

AND IN THEIR BRIEF AT 74-87,

IS THE NOERR-PENNINGTON DOC-

TRINE APPLICABLE TO PETITIONERS?

III. CAN A STATE EVER USE ANY PRO-

FESSIONAL OR OCCUPATIONAL LI-

CENSING EXAMINATION, OR ANCIL-

LARY PROCEDURE, FOR THE PRIMARY 68

PURPOSE OF LIMITING THE NUMBER

OF LICENSEES RATHER THAN TO

DETERMINE THE INDIVIDUAL QUAL-

IFICATIONS TO PRACTICE OF EACH

APPLICANT?

Page

IV. THE NINTH CIRCUIT ERRED IN

AFFIRMING THE DISMISSAL OF 73

THE SPOUSES OF THE INDIVIDUAL

DEFENDANTS.

CONCLUSION 75

APPENDIX

TABLE OF AUTHORITIES

Page

CASES

Application of Ronwin, 113 Ariz. 5.6

357, 555 P.2d 315 (1976) :

Bates v. State Bar of Arizona, 15.16.22

433 U.8. 32356, 97 Bees. 20k 30 45

53 L.Ed.2d 810 (1977), reh ;

den. 434 U.S. 881, 98 S.Ct. 242.

Benson v. Arizona State Board of

Dental Examiners, 673 F.2d 272 52

(9 Cir. 1982)

Board of Trustees of Community

College District No.508, County

of Cook v. Cook County College 42

Teachers Union, 74 I11.2d 412,

386 N.E.2d 47 (1979)

Butz v. Economou, 438 U.S. 478,

98 S.Ct. 2894, 57 L.Ed.2d 895 36,38

(1978)

ar.

California Retail Liquor Dealers

Ass'n v. Midcal Aluminum, Inc.,

445 U.S. 97, 100 S.Ct. 937,

63 L.Ed.2d 233 (1980)

City of Kirkwood v. Union

‘Electric Co., 671 F.2d 1173

(8 Cir. 1982), reh. den.

City of Lafayette, La. v. La.

Power & Light Co., 435 U.S.

389, 98 S.Ct. 1123, 55 L.Bd.2d

364 (1978)

Community Communications Co.,Inc.

v. City of Boulder, 455 U.S.

40, 102 S.Ct. 835, 70 L.Ed.2d

810 (1982)

Conley v. Gibson, 355 U.S. 41,

78 S.Ct. 99, 2 L.Ed.2d 80 (1957)

Del Castillo v. Wells, 22 Ariz.

App. 21, 523 P.2d 92 (1974)

Dennis v. Sparks, 449 U.S. 24,

101 S.Ct. 183, 66 L.Ed.2d 185

(1980)

District of Columbia Court of

Appeals v. Feldman, U.S.

103 S.Ct. 1303 (1983)

Doe v. County of Lake, Indiana,

399 F. Supp. 553 (N.D. Ind.1975)

Doe v. Pringle, 550 F.2d 596

(10 Cir. 1976), cert. den. 431

16, 18,

21, 34

15,17,

19,22,

36,42

9,37,

43-51,

U.S. 916, 97 S.Ct. 2179, 53 L.Ed.

2d 277.

Page

Eastern Railroad Presidents Con- 4

ference v. Noerr Motor Freight, 62-67

ing, 3263 0.8. 137, Bi BCC.

523, 5 L.Ed.2d 464 (1961)

Eng. v. Stein, 123 Ariz. 343, 599 74

P.2d 796 (1979)

Feldman v. Gardner, 661 F.2d 1295 45

(D.C. Cir. 1981)

Free v. Bland, 369 U.S. 663, 82 75

§.Ct.1089, 8 L.Ed.2d 180 (1962)

Goldfarb v. Virginia State Bar, 15.16

421 U.S. 773, 95 S.Ct. 2004, 34.35.

44 L.Ed.2d 572 (1975) .

Greene v. McElroy, 360 U.S. 474,

79 S.Ct. 1400 (1959) 69,70

Howe v. Haught, 11 Ariz. App.

98, 462 P.2d 395 (1970) 74

Jenkins v. McKeithen, 395 U.S.

411, 89 S.Ct. 1843, 23 L.Ed. 28

2d 404 (1969), reh. den. 396

U.S. 869, 90 S.Ct. 35, 24 L.

Ed.2d 123.

Lynch v. Household Finance Corp.,

405 U.S. 538, 92 S.Ct. 1113, 70

31 L.Ed.2d 424 (1972)

MacKay v. Nesbitt, 412 F.2d 846

(9 Cir. 1969) 47

New Motor Vehicle Board of Calif.

v. Orrin W. Fox, 439 U.S. 96, 17 -a@beae

99 S.Ct. 403, 58 L.Ed.2d 361

(1978)

vii

Page

Parker v. Brown, 317 U.S.34l,

63 S.Ct. 307, 87 L.Ed. 315 15,19

(1943)

Rankin v. Howard, 663 F.2d 844

(9 Cir. 1980) cert. den. sub.

nom. Zeller v. Rankin, 451 39,42

U.S. 939, 101 S.Ct. 2020,

68 L.Ed.2d 326

Rice v. Norman Williams Company,

o.8. , 102 S.Ct. 3294 32

(1982)

Ronwin v. State Bar of Arizona, 7,31-33,52,

686 F.2d 692 (9 Cir. 1982) 63,71,73,74

Schware v. Board of Bar Examin-

ers of State of New Mexico, 69

S353 USSi 23a, 74 B.Ges Foee

1 L.Ed.2d 796 (1957)

Sedco Intern. S.A. v. Cory,

522 F. Supp. 254 (S.D.Iowa 42

1981)

Shore v. Howard, 414 F. Supp. 43

379 (N.D. Tex. 1976)

Spevack v. Klein, 385 U.S. 5ll,

87 S.Ct. 625, 17 L.Ed.2d 574 52

(1967)

State v. Blazek, 105 Ariz. 216,

462 P.2d 84 (1969) 14

Thompson v. Montemuro, 383 F. 38

Supp. 1200 (E.D.Pa. 1974)

viii

Page

United Mine Workers of America

v. Pennington, 381 U.S. 657, 9,

85 S.ct. 1585, 14 L.Ed.2d 626 62-66

(1965)

United States v. Topco Associates,

405 U.S. 596, 92 S.Ct. 1126, 18

31 L.Ed.2da 515 (1972)

Willner v. Committee on Character

and Fitness, 373 U.S. 96, 83

S.Ct. 1175, 10 L.Ed.2d 224 70

(1963)

Wissner v. Wissner, 338 U.S. 655,

70 S.Ct. 398, 94 L.Ed. 424 74,75

(1950)

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES

Page

United States Constitution

Article VI, Clause 2 19

Article I, Sec. 8, Clause 3 19

Fifth Amendment 9,69-72

Fourteenth Amendment 9,69,71,72

United States Statutes

15 U.S.C. §l1, The Sherman Act 4,18,40,67

28 U.S.C. §1257 44,46,48,49

28 U.S.C. §1331 47,48,49

Page

28 U.S.C. §1343 47,48,49

28 U.S.C. §1983 47

United States Supreme Court Rules

Rule 34.1(a) 72

Arizona Constitution

Article 6, Section 5 13

Arizona Revised Statutes

§12-109 11-14

§12-111 12

§12-409 13

§ 25-215 (D) Tayto

Arizona Supreme Court Rules

Rule 28 (a) 24,25,29,36

Rule 28(c)VII 10,24,25,29

Rule 28(c)VIII 23740,14,

24,25,29,67

Arizona Rules of Civil Procedure

Rule 42(f£) 13

OTHER AUTHORITIES

BAR/BRI Digest, 1981 Ed., Harcourt 26,

Brace Jovanovich, Wash. D.C. App.12

Page

National Bar Examination Digest, 26

1977 Edition, Harcourt Brace :

App. 11,12

Jovanovich, Wash. D.C.

Random House Dictionary of the

English Language, unabridged 18

edition, N.Y. (1967)

No. 82-1474

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1963

CHARLES R. HOOVER, HOWARD H. KARMAN,

ROBERT D. MYERS and HAROLD J. WOLFINGER,

Petitioners,

vs.

EDWARD RONWIN,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENT'S BRIEF ON THE MERITS

———

STATUTORY PROVISIONS AND RULES INVOLVED

(Additional to and amplifying those found

in Petitioners' Brief on the Merits)

See Appendix ("App.") at 1-9,App.

STATEMENT OF THE CASE

Petitioners' Statement of the Case is

partially inaccurate, argumentative and

fails to present pertinent details.

Respondent ("Ronwin") did not allege that

"he did not receive a passing grade on the

[1974] examination," Petitioners' Brief,14;

c.£.,Complaint, 4's VII-IX, J.A. 10-12.

Petitioners fail to explain, as pled in

the Complaint, IV, J.A.9, and as admitted

in Petitioners' Answer, 43, 3.A.17, that

Petitioners informed Ronwin and the other

examinees that examinees who achieved the

pre-set standard of a grade of 70 or more

passed the examination and "..shall be re-

commended for admission to the Bar," 17A

A.R.S., Rule 28(c)VIII, 6-7, App.

Petitioner Hoover informed Ronwin that

Petitioners did not grade on a 0-100 scale;

rather, Petitioners used raw scores and af-

ter the results were known in raw score terms,

a raw score was picked as equal to 70, "there-

by the number of bar applicants who would

| Nevertheless, the ultimate grades that Petition-

ers reported were in a form reflecting a 0-100 scale

of grading.

receive a passing grade depended upon the

exact raw score value chosen as equal to 70,

rather than [on the] achievement by each

Bar applicant of [the] pre-set standard [of

70)," Complaint, VI, J.A.10.

That grading procedure was in conflict

with the Arizona Supreme Court's expressed

policy, 17 A, A.R.S., Rule 28(c)VIII,6=<7,

App., and gave rise to the anti-competitive

effect challenged by Ronwin.

Ronwin also takes issue with footnote 3,

Petitioners' Brief,15-16. Ronwin pled, Com-

plaint, YVIII, J.A.11-12:

When Plaintiff complained of the unlaw-

ful behavior of the Defendants, recited

above, using the procedures provided by

the rules of the Supreme Court of Ari-

zona for said purpose, the Defendants

without notice, hearing or medical ex-

amination, falsely and maliciously la-

belled the Plaintiff as ‘mentally un-

able to engage in the active and con-

tinuous practice of law,' and, denied

Plaintiff the right to take the July,

1974 Bar examination.

Proof: Defendant, George Read Carlock sub-

mitted an affidavit to the Arizona Supreme

Court (copy is Exh. C to Ronwin's Response

to Appellees' [First]"Petition for Rehear-

ing.." in 9th Circuit) in which Carlock aver-

red that, inter alia, as Ronwin had charged

",.that the Committee's action constituted

a conspiracy in violation of Section 1 of

the Sherman Act," he [Carlock] "..believed

that the Committee could not appropriately

find that [Ronwin] was mentally and physi-

cally able to engage in the active and con-

tinuous practice of law." see p.3, line 29

to p.4, line ll, Carlock's affidavit.

Ronwin also noted for the District Court,

Ronwin's Response to Defendants' Motion to

Dismiss,p.2, lines 2-12; and for the 9th

Circuit, Ronwin's Opening Brief, p.12, that:

Indeed it was only after [Ronwin] exer-

cised his First Amendment right and

criticized the manner of grading said

examination that [Ronwin's] mental fit-

ness [and physical fitness] was first

questioned. Thus in his deposition in

cause No. CIV 78-214 [District Court],

CARLOCK admitted that he had no specific

reason to raise the question about [Ron-

win's] mental ability, but in attempting

to cloth his charge, and that of the

Committee he headed, with some credi-

bility, CARLOCK asserted that it was

{Ronwin's] attack on the manner of grad-

ing which he considered 'wrongheaded'

and which gave rise to his, and said

Committee's, initiation of the charge

that [Ronwin] was not mentally able [and

physically able] to practice law.

The vicious assault on Ronwin's mental

ability (and even physical ability-later

dropped) to practice law originated in law-

lessness, and the same lawlessness, and fraud,

characterized the hearing and result before

the special committee, (which replaced the

"regular" committee on which Petitioners

served and which fact is not made clear in

Petitioners' footnote, but is made clear in

the Petition for Certiorari, fn. 3 at 4).

Although some elements are outside the

immediate record, matters concerning Appli-

cation of Ronwin, 113 Ariz. 357, 555 P.2d

315 (1976), also referred to in Petitioners'

footnote no. 3, are given in footnote here

so that this Court can have a fuller under-

standing of what occurred in connection

with Ronwin's challenge to the 1974 grading

process. 2

2 Application of Ronwin rests on the statement,

555 P.2d at 3I/:

In summary, there is significant expert testi-

mony in the record to indicate that Ronwin has

a "paranoid personality..."

The only expert to testify against Ronwin was a

psychologist, Or. Francis A. Enos. At the hearing

on Ronwin's latest application for admission to the

Arizona State Bar before the Arizona Supreme Court

on December 16, 1982, Justice Francis A. Gordon, Jr.,

who wrote Application of Ronwin, carried on a dis-

cussion with Ronwin. Ronwin read two examples of

Enos' perjury, which are in the record of said spe-

cial committee, to Justice Gordon, who, on being

asked, did not deny that Enos lied in his testimony.

Neither did Justice Gordon deny that those examples

and others of Enos' perjury had been brought to the

attention of himself and the Arizona Supreme Court

before Application of Ronwin was promulgated; and,

that, as against Enos, that Court had the testimony

of 3 psychiatrists who reported that Ronwin did not

suffer from any mental illness and was not a paranoid

personality. Two of those experts also informed the

Arizona Supreme Court that the condition of "paran-

oid personality" was not a serious matter nor did it

disable anyone from conducting normal professional

work. Neither did Justice Gordon deny that some 12

Arizona attorneys testified that Ronwin was not men-

tally ill. The Dean of the Arizona State Univ. Coll.

of Law testified to Ronwin's good mental health and

legal ability as did another professor. When asked

during the dialogue how he could justify the above-

quoted statement from Application of Ronwin, Justice

Gordon claimed it was "the record.” Since Applica-

tion of Ronwin appeared 4 more experts, making a

total of 7 (6 psychiatrists and 1 psychologist) have

told the Arizona Supreme Court that Ronwin is not

Petitioners exclaim, Petitioners' Brief 16:

The law considered by the courts below

showed that Arizona has a clearly arti-

culated affirmative policy restricting

competition in legal services.

The Ninth Circuit, which was a "court

below",held the opposite view, Ronwin v.

State Bar of Arizona, 686 F.2d 692, 698

(9 Cir. 1982).

In the Argument, §1.A., Ronwin challenges

Petitioners' contention that they were em-

powered to "select a grading system," Peti-

tioners' Brief, 16.

Petitioners' attempt to diminish the force

and quality of the 9th Circuit opinion,

Petitioners' Brief,17-18, overlooks the fact

that a majority of the eligible judges of

the Ninth Circuit saw no reason to rehear

2-Cont'd.

mentally i11 and is able to practice law. A total of

20 Arizona attorneys have done likewise. The Iowa

Supreme Court, with the record of the Arizona Supreme

Court before it in 1977, held Ronwin mentally able

to practice law.

When the tactics against dissent common in the

Soviet Union are adopted by Petitioners and the other

Defendants, and by the Arizona Supreme Court, this

Court should become very concerned.

the matter en banc, see Order, 2, J.A.

172-173.

SUMMARY OF ARGUMENT

Petitioners’ version of the applicable

rules is in error.

The state-action exemption applies, for

both official and private bodies, when the

sovereign units of the State (i) clearly

articulate and affirmatively express a pol-

icy whose purpose and effect is anti-compe-

titive, and (ii) when that policy is actively

supervised by the sovereign, which is the

Midcal test. At least the first prong of

the Midcal test applies to Petitioners.

Ronwin does not complain of the anti-com-

petitive effects which are incident to a

bar examination whose purpose is to determine

each examinee's aptitude to practice law

according to a pre-set standard; Ronwin does

complain of Petitioners' use of a grading

process which converted instant bar examina-

tion to a mechanism for choosing the number

of examinees admitted to practice law with-

out regard to their individual ability,

which purpose was not clearly articulated

nor affirmative expressed by the sovereign

concerned. Petitioners fail both the Mid-

cal test and their own suggested test.

The Feldman case does not apply herein

and, in any event, ought to be overruled.

Scaled scoring is a myth which enables

bar examiners to manipulate the numbers of

admitted examinees. The active supervision

prong is an essential ingredient of and in-

separable from the first prong of the Mid-

cal test.

No immunity, "official" or judicial, covers

Petitioners. Petitioners are not protected

by the Noerr-Pennington doctrine.

Any bar examination whose purpose and/or

grading is aimed at other than measuring

examinees' own ability to practice law is

violative of the 5th and 14th Amendments.

ARGUMENT

I. THE GRADING PROCEDURE EMPLOYED BY PETI-

TIONERS FOR THE FEBRUARY, 1974 ARIZONA

STATE BAR EXAMINATION WAS NOT CLEARLY ARTI-

CULATED AND AFFIRMATIVELY EXPRESSED BY THE

ARIZONA SUPREME COURT ACTING AS SOVEREIGN;

AND, IN ANY CASE, THE SOVEREIGN DID NOT

ACTIVELY SUPERVISE THE GRADING.

A. Clarification of Confusion Over Which

Arizona Supreme Court Rules Applied

At Times Relevant Hereto.

Petitioners' version of Rules 28(c)VII A

and B, and 28(c)VIII A, which they claim

were in force during the examination in con-

tention, are given at 7-9, App., see also

Petitioners' Brief, 9-10, 68,fn.16. Ronwin

believes that the correct version of the

rules is that given at 5-7, App. The order

allegedly promulgating Petitioners' version

of the rules was dated January 11, 1974

and ordered that the rules therein be ef-

fective January 15, 1974. A copy of the

certified order is attached to Petitioners’

(First) "Petition for Rehearing..." filed

in the Ninth Circuit phase of the case.

That, however, was contrary to Arizona law.

A.R.S., §12-109, at 3-4, App., provides

that any rules of court promulgated by the

Arizona Supreme Court shall be printed and

distributed to all members of the state bar

and to other persons who apply (sub-section

B, §12-109, at 4, App.,)and that, "[t]he

rules shall not become effective until sixty

days after distribution,” §12-109(C) at 4,

App. (emphasis added). Hence, the order of

January 11, 1974 promulgating Petitioners’

version of the rules could take effect, as-

suming arguendo that the required distribu-

tion took place, A.R.S.,§12-109(B), no ear-

lier than March 12, 1974, which was eleven

(11) days after the February, 1974 examina-

tion had ended.

A copy of an order of the Arizona Supreme

Court, dated June 18, 1955, is shown at 9-

ll, App. Said order appears on p.2 of the

hard-bound volume of 17A, A.R.S., and on p.

464 of a soft-bound "pamphlet" labelled,

"Arizona Rules of Court," which accompanies

the Arizona Revised Statutes and conta-ns

all rule amendments to August 15, 1982. The

rules in the "pamphlet" are identical to

the texts found in Vol. 17A as modified by

the 1982-1983 pocket part. Said order marks

the rules which follow it in Vol. 17A and

in the pamphlet as the official publication

of the Arizona Supreme Court rules. The

replication of said order in the latest

pamphlet shows that the June 18, 1955 order

retains its vitality to the present; and,

3 of said order shows cognizance of, and

obedience to, the terms of A.R.S.,§12-109(C),

at 4, App.

In Arizona, §12-109 is, pursuant to A.R.S.,

§12-111 (at 4, App.), a “rule of court" which

can be modified or suspended "by rule promul-

gated by the [Arizona] Supreme Court,"at 4,

App. However, there has never been a modifi-

cation or suspension of the terms of §12-

109 such as occurred, in part, with A.R.S.,

§12-409, concerning recusal of State judges,

when the Arizona Supreme Court adopted Rule

42(f), Aris. R. Civ. Proc., VOL. 16, ARB,

pp. 325-330; see Del Castillo v. Wells, 22

Ariz. App. 21, 523 P.2d 92, 95 (1974). In-

deed, the continuing vitality of the order

of June 18, 1955, and the continued presence

of §12-109 in the A.R.S., shows that the

Arizona Supreme Court has continued to res-

pect the terms of §12-109 from its incep-

tion to the present.

In 1960, the Arizona Constitution was

amended and the Arizona Supreme Court was

given the exclusive power to make rules re-

lative to procedural matters in any [State]

court, Ariz. Const., Art. 6, §5, (added 1960);

nevertheless, as held by the Arizona Supreme

Court itself, "'statutory rules [such as

§12-109] remain in effect until modified

or suspended by the rules promulgated by r

the [Arizona] supreme court,'" State v.

Blazek, 105 Ariz. 216, 462 P.2d 84, 85

(1969).

Clearly, Ronwin's version of the rules,

at 5-7, App., apply to this case. Peti-

tioners' version of Rule 28(c)VIII requires

a “passing grade," 8-9, App.; whereas, Ron-

win's version designates 70 or more as the

passing grade, 6-7, App. Even under their

version, Petitioners are bound by the pre-

set passing grade of 70, since they admit,

Answer, 43, J.A.17, Ronwin's allegation

that they announced 70 to be the passing

grade, Complaint, IV, J.A. 9. However,

as the other variances between the two

versions may have some effect on what the

Arizona Supreme Court "clearly articulated

and affirmatively expressed," and to dispell

the incipient confusion, this detour on

the rules was appropriate.

B. When Does the State-Action Exemption

From Antitrust Law Apply?

From Parker v. Brown, 317 U.S. 341, 63 S.

Ct. 307, 87 L.Ed. 315 (1943) to Community

Communications Co., Inc. v. City of Boulder,

455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810

(1982), this Court has developed a test to

determine when a state action restraining

trade or commerce is exempt from antitrust

sanctions. In Goldfarb v. Virginia State

Bar, 421 U.S. 773, 791, 95 S.Ct. 2004, 2015,

44 L.Ed.2da 572 (1975), this Court said:

It is not enough that, as the County

Bar puts it, anticompetitive conduct

is 'prompted' by state action; rather,

anticompetitive activities must be com-

pelled by direction of the State act-

ing as a sovereign.

In an action where the State, in the

form of the Arizona Supreme Court, was "the

real party in interest," Bates v. State

Bar of Arizona, 433 U.S. 350, 361, 97 S.Ct.

2691, 2697, 53 L.Ed.2d 810 (1977), reh.

den. 434 U.S. 881, 98 S.Ct. 242, this Court,

at first, reiterated the Goldfarb theme,

433 U.S. at 360, 97 S.Ct. at 2697:

That court is the ultimate body wield-

ing the State's power over the prac-

tice of law, * * * thus the restraint

is ‘compelled by direction of the State

acting as sovereign,' (citing Goldfarb).

But then, this Court expanded the element

of sovereign compulsion by adding the need

for clarity of sovereign command and the

need for active State supervision, 433 U.S.

at 362, 97 S.Ct. at 2698:

[W]e deem it significant that the state

policy is so clearly and affirmatively

expressed [by the command of the Ari-

zona Supreme Court under its Rules 27(a)

and 29(a), and its Disciplinary Rule

2-101(B), 433 U.S. at 360, 97 S.Ct. at

2697] and that the State's supervision

is so active. (bracketted phrase and

emphasis added).

A year later, a plurality of this Court

in City of Lafayette,La. v. La. Power &

Light Co., 435 U.S. 389, 410, 98 S.Ct. 1123,

1125, 55 L.Ed.2d 364 (1978) slightly enlarged ~-

the test to one which requires that a State

policy which engenders an anticompetitive

restraint be:

Clearly articulated and affirmatively

expressed as state policy (emphasis

added),

and that the State's policy be actively

supervised by the sovereign.

Subsequently, this Court noted that the

"Clearly articulated and affirmatively ex-

pressed" standard has been adopted by a

majority of the Court, City of Boulder,455

U.S. at 51, 102 S.Ct. at 840, citing New

Motor Vehicle Board of Calif. v. Orrin W.

Fox, 439 U.S. 96, 99 S.Ct. 403, 58 L.Ed.2d

361 (1978) and California Retail Liquor

Dealers Ass'n. v. Midcal Aluminum, Inc.,

445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233

(1980). That standard also includes the

requirement of active State supervision,

Midcal, 455 U.S. at 105, 100 S.Ct. at 943.

Petitioners have been referring to that

test as the Midcal test; Ronwin will fol-

low suit.

"Clear" and "clearly" suggest without

doubt, obsurity, ambiguity or confusion,

Random House Dictionary of the English

Language, unabridged ed., N.Y. (1967),

pp. 274-275.

It is well that this Court has come to

require clear articulation of sovereign

compulsion of any State policy which would

nullify the reach of federal antitrust

law, since, United States v. Topco Associa-

tes, 405 U.S. 596, 610, 92 S.Ct. 1126, 1135,

31 L.Ed.2d 515 (1972):

Antitrust laws in general, and the Sher-

man Act in particular, are the Magna

Carta of free enterprise. They are as

important to the preservation of econ-

omic freedom and our free-enterprise

system as the Bill of Rights is to the

protection of our fundamental personal

freedoms...

and, through the Sherman Act, City of Lafay-

ette, 435 U.S. at 398, 98 S.Ct. at 1129:

..-Congress, exercising the full extent

of its constitutional power, sought to

establish a regime of competition as

the fundamental principle governing

commerce in this country.

This Court may take judicial notice that

in the great ideological conflict with the

. 19

"Eastern Bloc," this nation prides itself

on its commitment to free enterprise.

Quoting Parker, this Court in City of

Boulder, 455 U.S. at 53, 102 S.Ct. at 842,

observed that ours is a dual system of

government.

That is true; but its parts, federal and

state, are not equal. It is not even des-

cribable as a system of primus inter parus.

It is a system of supremacy of the federal

government over any, and all, state govern-

ments, U.S. Const., Art. VI, Cl. 2. The

authority of Congress to promulgate the

antitrust laws flows from the Commerce

Clause, U.S. Const., Art. I, §8, Cl.3,

which is the powerful tool whereby Congress

since the early Thirties has worked a re-

volution in our social, political and econ-

omic fabric.

Before the States are allowed to over-

ride the "Magna Carta of free enterprise;”" -

to override an essential linchpin in Amer-

ican ideological commitment; and to over-

ride the supremacy of Congressional acts,

the States ought surely be required to do

so only by a clear articulation and affir-

mative expression of the anticompetitive

policies they seek to promote thereby and

the States ought to be required to strictly

supervise any such clearly articulated and

affirmatively expressed policies regardless

of whom, public or private, the States ap-

point as enforcers thereof. Perhaps a third

element ought to be added to the Midcal

test requiring the States to describe and

to justify the compelling, or at least ra-

tionally related, interest in curtailing the

competitive, economic behavior of those

within the State.

C. What Test Applies to Petitioners?

Petitioners claim that the Midcal test

does not apply to them, Petitioners' Brief

33; rather, as "state officials" they claim

that, Petitioners' Brief, 33-34:

...this Court has consistently held

that when governmental conduct is at

issue, the test for state action im-

munity is whether the State has clear-

ly articulated an affirmative policy

designed to supplant competition with

regulation, and whether the policy

contemplated the challenged action.

New Motor Vehicle Board v. Orrin W.

Fox, supra; City of Lafayette, supra.

The claim of two different tests is re-

peated a number of times in Petitioners'

Brief, e.g. at 37, 39-40, 41-42, 43.

Preliminarily, Petitioners fail, in the

quotation above, to point to what part of

the decisions in either Orrin W. Fox or

City of Lafayette support their view. But,

in any case, they misstate the facts since,

as quoted above, 16-17, from City of Lafay-

ette, 435 U.S. at 410, 398 S.Ct. at 1235,

this Court states what became the Midcal

test therein; and, in Orrin W. Fox, the

first part of the Midcal test is given,

439 U.S. at 109, 99 S.Ct. at 412 and in

the next paragraph, the Court shows its

concern for the second part of the Midcal

test by stating: "The duration of interim

restraint is subject to ongoing regulatory

supervision," 439 U.S. at 110, 99 S.Ct. at

412 (emphasis added).

Petitioners' claim that one test is appli-

cable to private parties and another to pub-

lic parties finds no support. In fact, not

only do the authorities that Petitioners

quote hold to the contrary (see preceding

paragraph, supra), but in Bates, where the

State was attacked, the standard that be-

came Midcal was declared, as quoted herein-

above at 15-16.

From time to time this Court, or individ-

ual Justices, have made comments that would

appear to imply a distinction between an

antitrust charge against public officials

rather than against private parties; see

Justice Stevens' concurring opinion in City

of Boulder, 455 U.S. at 59, fn. 2, 102 S.

Ct. at 844, fn. 2; however, one cannot dis-

cern proof of Petitioners’ claim that this

Court has declared different tests for each

category of defendant.

Both tests described by Petitioners have

the identical first prong; i.e., the "clear-

ly articulated and affirmatively expressed"

requirement, Petitioners' Brief, 33-34;

and, it is submitted that it may become

academic as to whether or not the second

prong of the Midcal test applies to Peti-

tioners, as Ronwin believes, or the "con-

templated activity" prong applies as Peti-

tioners claim; since, as this brief unfolds,

it will be obvious that as to Petitioners,

the "clearly articulated and affirmatively

expressed" part of the Midcal test or of

Petitioners’ suggested test has not been

satisfied.

D. Just What Is Ronwin's Complaint?

Petitioners argue that, Petitioners’

Brief, 57:

[Petitioners] acted as state officials

under a clearly articulated state pol-

icy to supplant competition in legal

services with regulation. See also

Petitioners' Brief, 61-62.

At all times relevant hereto, and whe-

ther under the version of the rules con-

tended for by Ronwin ("Ronwin's version"),

or the version advocated by Petitioners,

("Petitioners' version"), Argument, §I1.A.,

Supra, there did not exist a "clearly ar-

ticulated state policy [of Arizona] to sup-

plant competition in legal services with

regulation."

Under either version of the rules, the

only possible rules of the Arizona Supreme

Court from whence the alleged "clearly ar-

ticulated state policy” may be discerned

are Rules 28(a); 28(c)VII and 28(c)VIII.

Rule 28(a) is identical in either ver-

sion, 5-6, 7, App. Said rule ordered Pe-

titioners to examine applicants (for their

own ability to practice law-implied) and

to recommend to the Arizona Supreme Court

for bar admission applicants who were found

by Petitioners to have the necessary qual-

ifications. There is no command in Rule

28(a) to "Supplant competition with regu-

lation.”

Ronwin's version of Rule 28(c)VIII, 6-7,

App., ordered Petitioners to recommend for

bar admission all applicants "who receive

a grade of seventy or more," and Rule 28

upon which applicants would be tested.

Under Ronwin's version, the only clearly

articulated policy of the Arizona Supreme

Court is that Petitioners were to determine

by examination the ability of each, indi-

vidual applicant by grading the examinations

on a 0-100 scale and declaring all those

who achieved a total grade of "seventy or

more" to have passed the examination. That

is not a clearly articulated policy to "sup-

plant competition in legal services with

regulation." It is a policy directed funda-

mentally at determining the qualified from

the unqualified and not directed, per se,

at limiting the numbers of admitted appli-

cants. In essence, it is a regulatory

policy which may have incidental anticom-

petitive effects; i.e., those applicants

not attaining a grade of "seventy or more"

cannot be admitted to the bar and hence

cannot compete for legal work. Yet, under

the policy, it is quite possible to have

no anticompetitive effects; e.g., every

applicant achieves a grade of "seventy

or more."3

3In Wyoming, the pass percentage on the Winter exam-

inations in 1974 and 1975 was 100 each time; in

South Dakota, the 100 percent passing rate was

achieved in the 1974 examination. See National Bar

Examination Digest, 1977 Ed., Harcourt Brace Jovan-

ovich, Wash. D.C., pp. 42,48. In North Dakota, the

100 percent pass rate was observed in the summer

examination in 1978 and in the winter examination

of 1979 (a 99% pass rate was obtained in the summer

of 1979). In West Virginia, the 100 percent pass

rates were observed for both examinations given in

1977 and on the winter examination in 1978. See

BAR/BRI Digest, 1981 Ed., Harcourt Brace Jovanovich,

Wash. 0.C, pp. 29, 38. It may be noted that for

many of the examinations whose results are reported

in said digests, passing rates of 90% or more are

not uncommon, which shows that relatively small anti-

competitive effects are involved. All of the States

The anticompetitive effects that would

have been incidental to the pass-fail ex-

perience if Petitioners had obeyed the

sovereign's command, (under Ronwin's ver-

sion) are not being complained of by

Ronwin.

However, instead of grading on a 0-100

scale without gimmicks, Petitioners employ-

ed a raw score system. After the raw scores

were obtained, Petitioners picked a raw

score as equal to seventy. Thus, the num-

ber of applicants passing the examination

and thereby recommended for admission to

the bar, depended upon which raw score was

taken as seventy. Furthermore, since the

raw score taken as equal to seventy was the

result of an averaging process of all the

raw scores, said raw score,and consequently

the "seventy" to which it was equated, was

3 Cont'd.

mentioned above employed the Multi-State and

essay examination combination as did Arizona

on the examination in contention herein.

a»

thereby divorced from the individual ac-

hievement of an actual, pre-set grade of

seventy based on a true 0-100 scale, Com-

plaint, VI, J.A. 10.4

In effect, Petitioners were no longer

determining each applicant's own ability

to practice law based on a pre-set stand-

ard, but were using the examination as a

means to recommend for admission (in prac-

tice virtually equivalent to admission) the

particular number of examinees that suited

Petitioners’ personal notion of how many

new lawyers the profession in Arizona could

8It is appropriate to recall that "[fJor purposes

of a motion to dismiss, the material allegations

of the complaint are taken as admitted...And, the

complaint is to be liberally construed in favor of

plaintiff," Jenkins v. McKeithen, 395 U.S. 411,

421, 89 S.Ct. A a .Ed.2d 404 (1969),

reh. den. 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d

123. Furthermore, "..a complaint should not be

dismissed for faflure to state a claim unless it

appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which

could entitle him to relief," Conley v. Gibson,

355 U.S. 41, 45-46, 78 S.Ct. 99, or, 2 L.ed.od

80 (1957).

absorb at that time, Complaint, YVII, J.A.

10-11.4

It is this latter anticompetitive effect

produced by the violation of the articula-

ted policy of Arizona to determine the qual-

ifications of each applicant, individually,

which has drawn Ronwin's fire.

Nor does Petitioners’ version of the rules

lend them comfort. Rule 28(a) is identical

in both versions, hence, as discussed above

at 24-25, the rule is not a command to "sup-

plant competition with regulation."

None of the discretionary allowances in

Petitioners' version of Rules 28(c) VII

and VIII, 7-9, App., convert the primary

thrust of the rules involved, including the

provisions of Rule 28(a) from the objective

of using the examination to determine the

qualifications of individual bar applicants

to a "clearly articulated and affirmatively

expressed" command to Petitioners to employ

the examination for the primary purpose of

limiting the numbers of admitted bar appli-

cants to the number Petitioners think pro-

per. That is particularly true, since, Pe-

titioners admit, Answer, 43, J.A. 17, Ron-

win's allegation that Petitioners fixed

the "passing grade” at the pre-set standard

of 70, Complaint, IV, J.A. 9, which puts

Petitioners in the same situation as they

are under Ronwin's version of the rules.

In any event, no interpretative permuta-

tions or combinations of the rules, under

either version, provides Petitioners with

any evidence of an order to which they can

point wherein the Arizona Supreme Court, as

sovereign in the relevant area of govern-

mental activity, Bates, 433 U.S. at 359-360,

97 S.Ct. at 2697, "clearly articulated and

affirmatively expressed" its command that

the bar examination was to be used for the

primary purpose of limiting the numbers of

admitted applicants rather than as a tool

to determine the individual qualifications

of each applicant by a pre-set standard.

That is precisely the major point upon

which the Ninth Circuit based its decision,

Ronwin, 686 F.2d at 698.

Moreover, as Ronwin has noted, Ronwin's

Opening Brief in the 9th Circuit,at 15:

--ethe Arizona Supreme Court would most

likely not promulgate a directive to

[Petitioners] requiring or compelling

the use of the Bar examination to con-

trol the numbers admitted for anti-com-

petitive purposes, since, on the two

occasions when the percent admitted

applicants fell into the fifty percen-

tile area [1974 and 1976, 11,App.], the

Deans of both law schools in Arizona

led the public outcry against [Peti-

tioners'] grading results.

Instant case reflects Petitioners' efforts

to achieve via the backdoor what would be

most impolitic if clearly articulated and

affirmatively expressed; i.e., an avowed pol-

icy to use the bar examination for deliberate

anti-competitive purposes; which outrages

the American concept of equal opportunity

in a competitive economy, and is as perni-

cious and lacking in any redeeming virtue

as horizontal price-fixing and therefore

is a per se violation of, and preempted

by, federal antitrust law, Rice v. Norman

Williams Company, U.S. , 102 S.Ct.

3294, 3299 (1982), fn. 5.

Petitioners neither come within the Mid-

cal test, as held by the Ninth Circuit,

Ronwin, 686 F.2d at 698; nor, the test

which Petitioners champion, Petitioners'

Brief, 33-35.

E. Does Petitioners' Status Provide

Immunity to Petitioners?

Petitioners describe themselves as

"state officials," Petitioners' Brief, 28.

The thread runs through Petitioners’

argument that as "state officials" the

"gauzy cloak of state involvement," refer-

red to in Midcal, 445 U.S. at 106, 100 S.

Ct. at 943, would not apply to them, Peti-

tioners' Brief, 46-48, since:

--a state agency or official acting

pursuant to a clearly articulated

state policy is restrained from anti-

competitive misconduct by the exis-

tence of the state policy and author-

ization for the official to act,

Petitioners' Brief, 49.

However, as shown herein, Argument,§I.D.,

Petitioners, as "state officials", did not

act pursuant to a clearly articulatec state

policy and, without restraint or authori-

zation from the sovereign (the Arizona Su-

preme Court), freely engaged in anticompe-

titive misconduct, Ronwin, supra, 686 F.2d

696, 698.

Petitioners' unauthorized use of the

grading process to control the numbers of

admitted bar applicants was an unlawful ex-

tension and exploitation of Petitioners'

mandate and represented a "private anticom-

petitive activity” which is no more pro-

tected than the fee-fixing activities of

the cooperative action of the Fairfax

County and Virginia State Bar Associations,

at 2015; City of Lafayette, 435 U.S. at

417, 98 S.Ct. at 1138-1139.

For the preceding reasons, Petitioners’

alleged status as "state officials" pro-

vides no shield for their liability herein;

nor would their alleged status, per se,

afford any protection, City of Boulder, 455

U.S. at 50, 102 S.Ct. at 842.

Petitioners' alleged defense as "state

officials" is a variant of their overall

claim of state action exemption, Petition-

ers' Brief, 25-62, and not an alleged de-

fense of judicial or quasi-judicial immun-

ity.

In the District Court, Petitioners raised

the doctrine of judicial immunity as an af-

firmative defense, Answer, 49, J.A.18, sta-

ting, without more, that: "This action is

barred by the doctrine of judicial immunity.”

That was Petitioners' last reference to any

alleged defense based on judicial immunity

in the courts below. Nor have Petitioners

attempted to erect a judicial immunity de-

fense herein;and, Petitioners have confined

themselves to the state-action issue, see

footnotes 1 and 4, Petition for Certiorari,

at i, 4. Petitioners have surely waived

any defense said doctrine might have given

them. Nevertheless, The State Bar of Cal-

ifornia ("SBC") has argued an alleged "of-

ficial conduct" immunity which reduces to

guasi-judicial immunity, SBC Brief at 20-25.

Ronwin believes that SBC lacks standing

to erect the defense of judicial or "offi-

cial" immunity for Petitioners and that,

as amicus, SBC is confined to presenting

its partisan view of such issues as are

raised herein by the litigants; however,

to avoid the peril of ignoring what may be

a properly raised issue, a response, arguendo,

is proffered hereby.

As above, Petitioners have certainly

failed to press any alleged defense of ju-

dicial immunity and thereby have waived it.

Petitioners are not "judges"; at best,

they might qualify as "quasi-judicial" of-

ficers with quasi-judicial immunity, Butz

v. Economou, 438 U.S. 478, 512, 98 S.Ct.

2894, 2913, 57 L.Ed.2d 895 (1978); but, Pe-

titioners would have both the burden to

claim the immunity, Dennis v. Sparks, 449

U.S. 24, 29, 101 S.Ct. 183, 187, 66 L.Ed.2d

185 (1980), which Petitioners have waived,

supra, and (if not waived), to demonstrate

their entitlement to the immunity, id, 449

U.S. at 29, 101 S.Ct. at 187, which Peti-

tioners have not attempted to do, supra at

34-35.

By their own assertions, Petitioners do

not decide who is admitted to practice law,

Petitioners' Brief at 80; that duty lies

exclusively with the Arizona Supreme Court,

17A A.R.S., Rule 28(a), at 5-6, App.

While Petitioners recommend admission

or denial, that function as to the passage

or failure of the bar examination is large-

ly without discretion and predetermined

since the applicable rules call for re-

commendation of examinees attaining a pass-

ing grade of 70 (Ronwin's version, Rule

28(c)VIII, at 6-7, App.) or a “passing

grade" (Petitioners' version,Rule 28(c)

VIII, at 8-9, App.) which "passing grade”

Petitioners admit was chosen at 70 for

instant examination, c.f. Complaint, IV,

J.A.9 with Answer, 43, J.A.17. Thus, Pe~

titioners' activity with respect to the

antitrust question herein, was not judicial

but administrative and ministerial such as

collection of examination data, proctoring

and arranging for the examination, grading.

While such acts may have some discretion-

ary content, they never rise to a judgment

status, c.f., District of Columbia Court of

Appeals v. Feldman, U.S. » 403 8.CSa

1303, 1312 (1983). Therefore, "..the func-

tional comparability of [Petitioners']

judgments to those of the judge..," Butz,

438 U.S. at 512, 98 S.Ct. at 2913, is ab-

sent, and in that absence, "quasi-judicial"

immunity is unavailable to Petitioners; see

also Doe v. County of Lake, Indiana, 399 F.

Supp. 553, 556 (N.D.Ind. 1975).

Assuming, arguendo, that Petitioners are

draped with quasi-judicial immunity, can

the defense hold under the circumstances of

this case? It is obvious from the prece-

ding quotation from Butz that what holds

for judicial immunity is equally applicable

to quasi-judicial immunity.

"({J)udicial immunity is not absolute and

unlimited," Doe, id., 399 F.Supp. at 556.

Judicial immunity from an action for dam-

ages is lost when the party acts in clear

absence of jurisdiction or pursues nonju-

dicial activities, Thompson v. Montemuro,

383 F.Supp. 1200, 1206 (E.D.Pa. 1974).

Furthermore, "..when a judge knows that he

lacks jurisdiction, or acts in the face of

clearly valid statutes or case law express-

ly depriving him of jurisdiction, judicial

immunity is lost," Rankin v. Howard, 663

F.2d 844, 849 (9 Cir. 1980), cert den.

sub. nom. Zeller v. Rankin,45l U.S. 939,

101 S.Ct. 2020, 68 L.Ed.2d 326, and Rankin

adds, 633 F.2d at 849: "..If his acts were

part of a conspiracy, he is properly held

responsible for the consequences."

In this case, Petitioners, (arguendo) qua

judges, had their "jurisdiction" clearly

set forth in the rules. Under Ronwin's

version, at 5-7, App., or under Petitioners'

version, at 7-9, App., under which Petition-

ers have admitted declaring a pre-set stan-

dard of 70, see 29-30, supra, the Arizona

Supreme Court gave Petitioners the "juris-

diction" to determine the ability to prac-

tice law of each individual applicant. Such

anti-competitive behavior as would accompany

the exercise of that "jurisdiction" was

incidental to the purpose of the "juris-

diction." However, when Petitioners con-

verted the purpose of the examination by

use of the grading system to a mechanism

for artificially determining the numbers

of admitted applicants, see 27-29, supra,

Petitioners knew, or should have known,

that: (i) they were acting without "juris-

diction” and (ii) were acting in violation

of 15 U.S.C.§l1. Thereby, Petitioners lost

their immunity--if they ever had any.

Petitioners proclaim their "official”

status, Petitioners’ Brief at 28. In truth,

they serve parttime, unremunerated and with-

out the welfare benefits common to regular

Arizona state officials. Petitioners’ true

occupation is the fulltime, private practice

of law with monetary profit as a major stim-

ulus. As a consequence, Petitioners have

a private, personal, pecuniary interest in

depressing the numbers of attorneys admit-

ted annually to practice. Had Petitioners

followed the clearly articulated and affirm-

atively expressed rule of the Arizona Su-

preme Court to use the examination to de-

termine the individual capacities of appli-

cants to practice law according to the pre-

set standard, Petitioners' private, per-

sonal, pecuniary interest would have been

separable from their duties; but, when Pe-

titioners decided sua sponte to use an ex-

amination grading procedure to artificially

control the numbers of admitted applicants,

Petitioners' private, personal, pecuniary

interest became, ab initio, inseparable

from their illegal activities.>

In February, 1974, the variation from the average

admittance rate resulted in approximately 37-42

less admitted attorneys, see Ronwin's Response to

Motion to Dismiss (in District Court), p. 5, and

Ronwin's Opening Brief in the Ninth Circuit, pp.

17-18. The absence of 37-42 admitted attorneys

was an actual or potential economic plus for

each Petitioner and/or his firm.

In essence, Petitioners do attempt to

draw the "gauzy cloak of state involvement,”

Midcal, 445 U.S. at 106, 100 S.Ct. at 943,

over their activities and by their conduct

brought themselves squarely within the Mid-

cal test, which they fail.

To allow Petitioners to escape liability

for damages would,in the circumstances,

continue an economic reward for their il-

legal behavior which is unquestionably

against public policy, Board of Trustees

of Community College..v. Cook County Col-

lege Teachers Union, 74 I11.2d 412, 425-426,

386 N.E.2d 47, 53 (1979); Sedco Intern.S.A.

v. Cory, 522 F.Supp. 254, 320 (S.D.Iowa

1981); and, does nothing to foster the pur-

pose of judicial immunity which is to allow

fearless decision making undeterred by the

prospect of damage liability, Dennis,supra,

449 U.S. at 31, 101 S.Ct. at 188, Rankin v.

Howard, 633 F.2d 844, 847 (9 Cir. 1980).

And, where the initiative and independence

of the judiciary is not effectively impaired,

the doctrine of judicial immunity does not

hold, Shore v. Howard,414 F.Supp. 379, 385

(N.D. Tex. 1976).

Beyond doubt, Petitioners are not enti-

tled to the protection of quasi-judicial

or "official" immunity.

F. Is the Feldman Case Applicable?

Petitioners’ single, brief citation to

the case of District of Columbia Court of

Appeals v. Feldman, U.S. , 103 S.Ct.

1303 (1983) is in a state-action immunity

context, Petitioners' Brief at 42, rather

than reference to Feldman's main thrust.

SBC makes mention, too, but without force,

SBC Brief at 6,7,23. On the other hand,

Petitioners’ amicus, The National Confer-

ence of Bar Examiners, ("NCBE") devotes a

section of its Brief (at 12-14) to argue

the alleged application of Feldman to this

case.

Ee EOE TRE

The Feldman decision rests in major part

on the terms of 28 U.S.C.§ 1257, which re-

guires that "final judgments or decrees

rendered by the highest court of a State

in which a decision could be had, may be

reviewed by [this Court]..." (emphasis

added), which NCBE recognized, NCBE's Brief

at 12. However, the predicate which NCBE

implies to be present; i.e., that a final

judgment of the Arizona Supreme Court is

being attacked, is absent. No judgment

of the Arizona Supreme Court is under re-

view in this action, see Complaint, J.A.

6-13.

What is attacked is a grading process

which (i) was not clearly articulated and

affirmatively expressed by the sovereign,

and (ii) the conversion of a bar examina-

tion from a means to determine individual

aptitude to practice law to a tool to ar-

tificially regulate the numbers of attor-

neys annually admitted to practice law.

Hence, Feldman's restriction on U.S. Dis-

trict Court jurisdiction is not applicable

herein.

It has long been held that exclusive jur-

isdiction to hear federal antitrust c])aims

lies in the U.S. District Courts, Feldman

v. Gardner, 661 F.2d 1295, 1303 (D.C. Cir.

1981) and fn. 60; therefore, this action

was properly commenced in the U.S. District

Court®; and, if Petitioners' actions were

not clearly articulated or affirmatively

expressed by the sovereign, the Arizona

Supreme Court, then the action may continue

in the U.S. District Court which is the

entire thrust of Goldfarb and is implicit

in Bates.

The predicates requiring the raising of federal

questions in the Arizona Supreme Court are absent

in this case, Feldman, 103 S.Ct. at 1315, fn. 16,

since Ronwin is not attacking a final judgment of

the Arizona Supreme Court, 44-45 supra, and as said

Court is without jurisdiction to entertain a federal

antitrust claim. In any event, Petitioners allege

that Ronwin did raise antitrust violation in the

State court, Petitioners’ Brief at 15.

Since Petitioners and their amici have

turned to Feldman, the quality of the de-

cision deserves examination. Feldman ap-

proves a dichotomy whose first appellate

announcement with any clarity is found in

Doe v. Pringle, 550 F.2d 596 (10 Cir. 1976),

cert. den. 431 U.S. 916, 97 S.Ct. 2179, 53

L.Ed.2d 227. The dichotomy ordains that

constitutional challenges to a State's

general rules governing bar admissions are

cognizable in the U.S. District Courts,

whereas, a claim based on constitutional

grounds that the State has unlawfully den-

ied a particular application for admission

is reviewable, if at all, only in this

Court, id., 103 S.Ct. at 1316.

The confinement of particular, individual

claims to hearing in this Court on certior-

ari is allegedly dictated by the terms of

28 U.S.C. §1257, id., 103 S.Ct. at 1317.

Although not identified in Feldman, the

basis for the constitutional claims, whe-

te.’

ther general or particular challenges, us-

ually stems from 28 U.S.C. §1983 and kin-

dred statutes, and/or from 28 U.S.C. §133l.

§1331 is its "own" jurisdictional statute;

whereas, jurisdiction for §1983 is given

in 28 U.S.C. §1343.

Both §§1331 and 1343 lodge jurisdiction

of constitutional questions in the U.S.

District Courts and, without doubt, are

intended to permit enforcement of the fun-

damental rights of citizens as embodied in

the Bill of Rights and such subsequent

Amendments as the 14th. As shown by the

approving quotation from MacKay v. Nesbitt,

412 F.2d 846 (9 Cir. 1969) on the "rule"

of §1257, Feldman, continuation of fn. 16,

103 S.Ct. at 1316, the purpose of §1257 is

respect for the principle of comity.

While not explicitly indicated, but re-

ferred to in Justice Stevens' dissent,

Feldman, 103 S.Ct. at 1318-1319, the ques-

tion as to particular, constitutional chal-

lenges facing this Court in Feldman was:

which jurisdictional statute takes prece-

dence; i.e., §1257 over §§ 1343 and 1331

or vice versa? The Feldman decision places

§1257 above the latter two and thereby ele-

vates the interests serving comity over

those serving and intended to uphold and

defend fundamental, constitutional rights.

That must be error. Suffice it as partial

proof that the members of this Court are

specifically sworn to uphold and defend the

Constitution, not comity.

Additionally, the absoluteness of the re-

quirement that final judgments of a State's

highest court can be reviewed "only in

this Court. See 28 U.S.C. §1257," Feldman,

103 S.Ct. at 1311 (see also 1315) is absent

from the statute whose language uses the

permissive, "may," and not the peremptory,

"shall," supra at 44. Thereby, Congress

declared no absolute barrier to the juris-

diction of U.S. District Courts to hear

all constitutional challenges to bar ad-

missions or other bar matters; and, as

Congress specifically gave U.S. District

Courts such jurisdiction in §1343, as in

§1331, in unambiguous language, this Court

lacked a legal basis for nullifying said

jurisdiction as to particular, constitu-

tional challenges arising after final judg-

ments in bar matters.

§1257 also refers to "review" of final

judgments within its compass. However,

the constitutional questions which are

raised in bar matters are usually not the

essence of the resulting final judgments

and, even where brought to the State court's

attention, no facility for trial accompan-

ied by proper due process, either exists

or is extended to hear the civil rights

complaints. As Justice Stevens notes, it

is not a "review" of a final judgment which

the U.S. District Courts would undertake

under §§ 1331, 1343, Feldman, 103 S.Ct. at

1318; rather, the U.S. District Courts

would be trying,de novo, civil rights

actions on the question of the constitu-

tionality of the procedures used by the >

State court or by a committee or agent

appointed by the State court just as in

the currently permitted jurisdiction of

U.S. District Courts under Feldman for gen-

eral, constitutional challenges to State

rules and regulations in bar matters. The

question of the bar admission or the dis-

ciplinary issue, per se, would not be "re-

viewed."

As to lawyers and bar applicants in con-

flict with bar and judicial authorities,

the practical result of Feldman has been

to approve past practice in various Cir-

cuits and now, nationally, future denials

of the most fundamental, constitutional

rights of members of those groups. Whereas

an applicant for a medical, dental, contrac-

ting or other professional or occupational

license can come as of right to the U.S.

District Courts with their particular, con-

stitutional challenges, see dissent in

Feldman, 103 S.Ct. at 1319, fn. 2, lawyers

and bar applicants are confined to seek

certiorari in this Court which is a matter

of grace and is usually denied. Members

of other professions and occupations can

move to jury trial of their constitution-

ally based grievances but lawyers and bar

applicants can be denied hearing with re-

gularity and with foreclosure of any prac-

tical, efficacious route to enforcement of

their civil rights.’

Feldman unconstitutionally relegates law-

yers and bar applicants to second class

/Ronwin's last nine (9) applications for admission

to the State Bar of Arizona have been denied with-

Out hearing and without elemental due process ac-

corded. Ronwin's demands for hearing with due

process safeguards have been rejected out of hand.

Ronwin's efforts to obtain certiorari in this

Court have met with similar denial. How does

Ronwin enforce his civil rights or are Ronwin's

civil rights less than those of other citizens?

citizenship contrary to this Court's spe-

cific holding in Spevack v. Klein, 385 U.

S. 511, 516, 87 S.Ct. 625, 629, 17 L.Ed.2d

574 (1967).

G. Commentary on Selected Items in the

Briefs of Petitioners and Their Amici.

Petitioners or their amici make various

statements which are either incorrect or

tend to mislead. For example, the con-

flict alleged in Petitioners' Brief at 69,

between the Ninth Circuit opinion in Benson

v. Arizona State Board of Dental Examiners,

673 F.2d 272 (9 Cir. 1982) and in Ronwin

does not exist, Ronwin, 686 F.2d 696, fn.4.

Space considerations prohibit other illus-

trations; however, the questions of scaled

scoring and of active supervision require

treatment.

1. On Scaled Scoring

Petitioners do not discuss the grading

process they used; however SBC describes

scaled scoring and paints it as beneficial,

SBC Brief at 7-8. NCBE also mentions the

system, NCBE's Brief at 23 and fn. 8.

NCBE's claim that the Arizona Supreme

Court did not specify "a particular met-

hod of grading..," NCBE Brief at 23, is

erroneous in its reliance on Petitioners’

version of Rule 28(c)VIII, see Argument,

§I.A, supra; and is specious in arguing

that Ronwin's version of said rule, "merely

said 70 would be a passing grade, specify-

ing neither the 0-100 grading Ronwin claims,

nor the method for determining what grade

to give an examination," NCBE Brief at 23.

It is universally accepted that a grade

of 60, 70, 80, etc., On a school or other

examination is invariably based on a 0-100

scale. NCBE forgets to acknowledge that

the final bar examination results on the

individual essay questions were reported

on an obvious 0-100 scale.

The gist of SBC's and NCBE's description

of "scaled scoring” is that the procedure

is employed only as a means allegedly to

"equalize" the difficulty of bar examina-

tions from year to year. By their own ad-

mission, only a "limited number of repeat

or control questions” are used for compar-

isons, SBC Brief at 7. Thus, most questions

are de novo and not "equated." Since the

answering and grading of essay questions

is a highly subjective process, the scheme

to "equalize" an entire examination by com-

paring results on a few repeat questions

borders on nonsense. If "scaled scoring"

was such an unqualified success at "equal-

ization", then the percent passing for in-

stant examination (Winter, 1974) should

have been approximately 75% rather than

54%, and 75% rather than 58% for the Summer,

1976 examination, see App. at 1l. The drop

in percent passing for instant examination

was equivalent to a reduction of approxi-

mately 29 percent in the number of admitted

attorneys (compared to the four year aver-

age, 1973 to 1976), which translated to

between 37 and 42 attorneys, see Ronwin's

Response to Motion to Dismiss (in District

Court), p. 5 and [Ronwin's] Opening Brief

in the Ninth Circuit, pp. 17-18. These

figures indicate that rather than equalize

examination difficulty, the unauthorized

method of grading was employed to reduce

the numbers of admitted examinees.

By the amicus admission, scaled scoring

involves pooling the results of the group

of examinees and determining their rela-

tive performance, SBC Brief at 7, which,

ipso facto, precludes grading their exam-

inations so as tw determine which examinees

met the pre-set standard of 70, (whether

in Ronwin's version of the rules or in

Petitioners' version, since Petitioners

adopted 70 as the pre-set standard, supra

at 14,29-30). Furthermore, the very act

of choosing a raw score as equal to 70 is

automatically and inseparably hinged to a

determination of the number of admitted

examinees.

The reason why SBC is so stirred herein

is reflected in the pass percentage results

from California when compared to States

which, like California, use the one-day,

multiple choice Multistate examination plus

an essay examination; see results compari-

son at 12, App.

Can one seriously believe that the law

in California is so much more difficult

than in Utah, Texas and New Mexico (the

latter two are community property States

as is California) to justify an average pass

percentage on the California bar examinations

from 1973 to 1979, inclusive, of only 50.21%

while Texas reports 87.76% passing and New

Mexico experiences 71.71% for the same per-

iod, and Utah comesin with 91.67% (the 1976

figure was not available for Utah)?

Furthermore, "scaled scoring” can be dis-

carded with no apparent ill effects which

is what Arizona has apparently done. Thus,

on the February and July, 1982 examinations,

a pre-set score of 120 or more correct ans-

wers, out of 200 Multistate examination ques-

tions, was an automatic pass for that part

of the examination. Similarly, each essay

question was graded on a "pass" or "fail"

basis. Seven "pass" scores out of ten

essay questions chosen from a field of

thirteen questions was taken as a passing

grade for the essay portion of said examin-

ations, c.f., NCBE Brief at 24, fn.9.

Contrary to the alarmist exclamations of

SBC, Brief at 6, 17; NCBE, Brief at 8-ll,

the displacement of scaled scoring by Ari-

zona with pre-set standards that are not

surreptitiously manipulated by "raw scores"

has not ended the bar examination, nor af-

fected the quality of applicants admitted

to practice law in Arizona.

Whatever the excuses given, "scaled scor-

ing" is nothing more than a tool to control

the numbers of admitted attorneys for sheer

anticompetitive purposes. If equalization

was the method's inevitable result, the

pass percentages for California, Utah, Texas

and New Mexico, as for all other States us-

ing a combination of the Multistate examin-

ation and essay examination should be very

nearly identical from examination to exam-

ination and from year to year; but, they

are not!

2. On Active Supervision

In the foregoing, it has been demonstra-

ted that Petitioners fail the first prong

of either the Midcal test, or their own

test, Argument, §1.D., supra; therefore,

the question of whether Petitioners were

subject to active supervision is possibly

moot. However, Petitioners, Brief at 50-53;

SBC, Brief at 16, 19-20, and NCBE, Brief

at 26-27, all address the question of what |

type of supervision, if any, is required

for persons such as Petitioners or for an

agency on which they served. As noted by

SBC, Brief at 19, the question of the de-

gree of supervision required for govern-

mental agencies or officials is unresolved

by this Court.

Contrary to SBC's position, Brief at 16,

and Petitioners' argument, Brief at 52,

Ronwin does not suggest that "every regu-

latory detail" need be supervised; nor

would that be a fair reading of the Midcal

supervision requirement.

Since the question is intrinsic to the

Midcal test featured herein and as this

Court may wish to consider the question,

even though it received scant attention

below, Ronwin proffers the following:

The degree of supervision required for

political subdivisions, agencies and offi-

cials will probably need an ad hoc deter-

mination in each case.

Analysis of the Midcal test reveals that

both prongs are intertwined and that the

test is as applicable to public bodies and

officials as to private entities. This

Court's cases reviewed at 15-20, supra,

have stressed, in evolving language, the

essential ingredient for state-action ex-

emption: clear articulation and affirma-

tive expression of the anticompetitive

policy by the sovereign. The active super-

vision prong of the Midcal test is vital,

regardless of whether public or private

entities are involved, to ensure that it

is the sovereign organs of the State and

not other State agencies, or private par-

ties, that clearly articulate and affirma-

tively express the State's anticompetitive

policy. De minimus, that consideration

gives rise to the need for active super-

vision which includes a requirement that

the non-sovereign unit or individual, offi-

cial or private, provide advance, overt

notification of record to the sovereign unit

or individual of the detailed substance of

any action, policy or decision whose in-

tended introduction or enforcement is

known, or should be known, to have an anti-

competitive purpose and/or effect; and,

concomitantly, the sovereign ought to be

required to signify by a declaration of

record its approval or disapproval prior

to the initiation or effectuation of the

action, policy or decision.

Active supervision needs to be particu-

larly strict where, as herein, “officials”

who are essentially full time practitioners

of the profession or occupation, have an

intrinsic, beneficial, economic interest

in promoting anticompetitive schemes, see

40-41, supra; or, where, as here, a private

guild, NCBE, exerts considerable and power-

ful influence on public bodies or officials,

NCBE Brief at 3-5, and which, beyond the

normal process of democratic selection, in-

serts itself into the body politic of the

State's subdivisions and from that vantage

point can and does cause harm and injury

to the constitutional and other rights of

citizens with relative impunity.

II. ON THE ASSUMPTION, ARGUENDO, THAT THE

ISSUE IS PROPERLY BEFORE THIS COURT, AS

PETITIONERS ARGUED IN THEIR PETITION FOR

CERTIORARI AT 18-20, AND IN THEIR BRIEF AT

74-87, IS THE NOERR-PENNINGTON DOCTRINE

APPLICABLE TO PETITIONERS?

Petitioners claim that the Noerr-Penning-

ton doctrine immunizes their recommendations

regarding bar admissions, Petitioners’

Brief at 74-87.

As Petitioners noted in their Petition

for Certiorari at 18, fn. 9, the Noerr-

Pennington issue was raised for the first

time in two amicus curiae briefs in the

Ninth Circuit. By order of the Ninth Cir-

cuit, Ronwin could not either challenge the

raising of the issue in that manner or res-

pond thereto, Order of the Ninth Circuit,

filed July 29, 1982 (see Appendix to Ron-

win's Brief in Opposition to Petition for

a Writ of Certiorari, A-3, 4's (1) and (4)).

Petitioners, themselves, first raised the

issue in this Court in their Petition for

Writ of Certiorari at 18-20, and Ronwin

responded, "on the assumption, arguendo,

that the issue is properly raised before

this Court..," Ronwin's Brief in Opposition

to Petition for Writ of Certiorari at 22.

Notably, the Ninth Circuit decision, Ron-

win,686 F.2d at 692 totally ignored the

raising of the issue by the amici and Ron-

win submits that the issue is not properly

before this Court. However, as this Court

may hold otherwise, Ronwin hereby responds:

In advancing the purported defense of

Noerr-Pennington, Petitioners raise sophistry

to a new height!

Eastern Railroad Presidents Conference

v. Noerr Motor Freight, Inc., 365 U.S. 127,

81 S.Ct. 523, 5 L.Ed.2d 464 (1961) pro-

ceeds on the theme, 365 U.S. at 135:

.-that no violation of the Act can be

predicated upon mere attempts to in-

fluence the passage or enforcement of

laws.

Noerr drew a distinction between asso-

ciations having as their purpose attempts

to induce "particular action with respect

to a law that would produce a restraint..,"

and combinations normally held violative

of the Sherman Act, 365 U.S. at 136.

United Mine Workers of America v. Pen-

nington, 381 U.S. 657, 669, 85 S.Ct. 1585,

1593, 14 L.Ed.2d 626 (1965) follows Noerr.

The fact situations in both cases are

totally dissimilar to the case at bar and

both cases are inapplicable to this action.

Ronwin has not challenged Petitioners’

right protected by Noerr and by Pennington

to make a recommendation on Ronwin's appli-

cation as being violative of antitrust law;

rather, Ronwin has challenged the actual,

anticompetitive grading scheme employed

by Petitioners without authorization and

in disregard of the policy stated in the

applicable rules, Argument, §I.D., supra,

whether said rules are Ronwin's version or

Petitioners’ version, Argument, §I.A.,

supra. That anticompetitive behavior is

not shielded by Noerr-Pennington.

Petitioners argue, as they did in their

Petition for Writ of Certiorari at 20, fn.

ll, that:

Ronwin made no effort to plead that

petitioners’ acts fell within the

‘'sham' exception to Noerr-Pennington,

and could not do so...,

Petitioners' Brief at 82.

One reason why Ronwin made no effort to

plead the "sham" exception is that the

pleading took place in the courts below

and the issue was (i) not raised in the

trial court but was (ii) raised for the

first time in two amicus briefs in the

Ninth Circuit, as Petitioners admitted,

Petition for Writ of Certiorari at 18, fn.9.

As shown above at 62-63, Ronwin was not

permitted to respond to said amicus briefs.

For those reasons and the question of whe-

ther the issue was properly before the

Ninth Circuit or this Court, Ronwin made

no effort to plead the "sham" exception.

Noerr discusses the "sham" exception,

365 U.S. at 144, 81 S.Ct. at 533. In City

of Kirkwood v. Union Electric Co., 671 F.2d

1173, 1181 (8 Cir. 1982), reh. den., the

Court's comments are aimed at the sham ex-

ception:

The Noerr-Pennington doctrine protects

the First Amendment right to petition

government authorities, but later cases

demonstrate that the First Amendment

does not immunize all attempts to mani-

pulate the government for anti-competi-

tive ends. * * * Noerr protects the

right to make one's views known to the

government, but Cantor and Trucking Un-

limited make clear that the right may

not be used as a pretext to achieve

otherwise unlawful results. ‘If the

end result is unlawful, it matters not

that the means used in violation may be

lawful.' Trucking Unlimited, 404 U.S.

at 515, 92 S.Ct. at 614. The Noerr-

Pennington doctrine will not protect

a utility which manipulates the fed-

eral and state regulatory processes

to achieve anti-competitive results.

It is not for expression of opinion

that [Ronwin]) seeks to compel [Peti-

tioners] to respond in damages, but

rather for [Petitioners] conduct in

the market place.

Since Rule 28(c)VIII, Ronwin's version,

6-7, App., states that those who obtain a

grade of 70 and otherwise are found qual-

ified "..shall be recommended for admis-

sion to the Bar," and, as Petitioners'

adopted seventy as the passing grade,

assuming their version of the rules apply,

7-9, App., and 14,29-30, supra, Petition-

ers' recommendations are commanded and can

hardly be classified as attempts "to influ-

ence" judicial policy.

It is also clear from Noerr that the at-

tempts to influence which enjoy immunity

are in the nature of "political" efforts.

Thus, Noerr explains, 365 U.S. at 140:

Insofar as [the Sherman] Act sets up a

code of ethics at all, it is a code that

condemns trade restraints, not political

activity, and, as we have already poin-

ted out, a publicity campaign to influ-

ence governmental action falls clearly

into the category of political acti-

vity.

Petitioners' "recommendations" activity

hardly constitutes "political activity."

Whether or not the "sham" exception is

applicable to Petitioners, Petitioners'

whole attempt to clothe themselves with

Noerr-Pennington doctrine immunity is a

transparent sham.

III. CAN A STATE EVER USE ANY PROFESSIONAL

OR OCCUPATIONAL LICENSING EXAMINATION, OR

ANCILLARY PROCEDURE, FOR THE PRIMARY PUR-

POSE OF LIMITING THE NUMBER OF LICENSEES

RATHER THAN TO DETERMINE THE INDIVIDUAL

QUALIFICATIONS TO PRACTICE OF EACH APPLI-

CANT?

Ronwin raised this question in Ronwin's

Response to Petitioners' [First]"Petition

for Rehearing..." submitted to the Ninth

Circuit at 10-12; and, again in Ronwin's

Supplemental Response to said Petition for

Rehearing, at 4. Ronwin also raised the

question in his Cross-Petition for a Writ

of Certiorari, at 14-16, in this Court's

cause no. 82-1573, which Writ was denied.

In Schware v. Board of Bar Examiners of

State of New Mexico, 353 U.S. 232, 238,

77 $.Ct. 752, 756, 1 L.Bd.24 796 (1957),

this Court barred exclusion from the prac-

tice of law by manners or for reasons which

contravene the Due Process or Equal Protec-

tion Clause of the Fourteenth Amendment and

required that qualifications demanded of

bar applicants, and presumably the stan-

dards and tests therefor, have a "rational

connection with the applicant's fitness or

capacity to practice law," 353 U.S. at 239,

77 S.Ct. at 756. In Greene v. McElroy,

supra,360 U.S. at 492, 79 S.Ct. at 1411,

this Court declared the right to follow a

chosen profession free from unreasonable

governmental interference to be within the

compass of the liberty and property con-

cepts of the Fifth Amendment. The Court

———————__2_— NN

eloquently reminded us of the due process

principles which govern determinations of

the right to pursue a profession, Greene,

360 U.S. at 496-497, 79 S.Ct. at 1413-1414.

This Court explained that the right to en-

joy property without unlawful deprivation,

no less than the right to speak or to tra-

vel, is a "personal" right, Lynch v. House-

hold Finance Corp., 405 U.S. 538, 552, 92

S.Ct. 1113, 1122, 31 L.Ed.2d 424 (1972),

reh. den. 406 U.S. 91l.

Most apropos, are the observations in

Willner v. Committee on Character and Fit-

ness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d

224 (1963), which hold "admission to the

bar of a state" to be a "right," 373 U.S.

at 102, 83 S.Ct. at 1179.

In sum, the thrust of this Court's deci-

sions is that the right to admission to a

Bar and the right to pursue a profession

flow from the personal rights to due pro-

cess and equal protection under the Fifth

and Fourteenth Amendments.

Consequently, any examination for pro-

fessional or vocational licensure must

examine the applicant for his own abilities

and not allegedly determine the applicant's

abilities to practice by any scheme or pro-

cedure which, in effect, measures those

abilities by their relative standing in a

group or by grading on a curve.

As the Ninth Circuit noted, Ronwin had

pled that the grading of the February,

1974 bar examination was such that a pre-

determined number of persons were passed

without regard to "..achievement by each

Bar applicant of a pre-set standard [of

competence]," Complaint, VI, J.A. 10;

Ronwin, 686 F.2d at 695.

Hence, Petitioners' grading activity was

more than an unauthorized, anticompetitive

activity; it was an assault on the Fifth

and Fourteenth Amendment rights of bar

applicants to have the question of their

ability to practice law determined on the

basis of their own qualifications.

It is submitted that no examination or

other procedure for licensure to practice

any profession or occupation, may, conson-

ant with the Fifth and Fourteenth Amend-

ments be of such text or design, and/or be

so graded, as that anything is measured or

determinative of passage of the examination,

other than the individual achievement of

the examinee without regard for, or con-

tribution from, the results of any other

examinee on the same or on a prior examin-

ation.

The Ninth Circuit did not directly address

this issue but it is pregnant in this case.

Furthermore, the right to practice a li-

censed profession or vocation affects sub-

stantial numbers of citizens; and, there

are continual rows over licensing decisions

in all fields. The issue merits this

Court's attention, this Court's Rule 34.1(a).

IV. THE NINTH CIRCUIT ERRED IN AFFIRMING

THE DISMISSAL OF THE SPOUSES OF THE IN-

DIVIDUAL DEFENDANTS.

This matter was raised by Ronwin in his

Cross-Petition for a Writ of Certiorari,

No. 82-1573, which was denied by this

Court; however, if Ronwin has stated a

cause of action against Petitioners and if

Ronwin prevails at trial, this issue will

have significant effect on Ronwin's poten-

tial to collect damages from the Petitioners,

(all of whom are married) as a consequence

of Arizona's view of community property.

As the dissent noted, Ronwin, 686 F.2d

701, fn. 1, J.A. 137, in Arizona, unless a

prevailing plaintiff names the spouses as

co-defendants [even if such spouses took

no actual, personal part in the events

giving rise to the cause of action], the

prevailing plaintiff is estopped from

looking to the community property to satis-

fy the damage obligation, A.R.S., §25-215(D);

Eng v. Stein, 123 Ariz. 343, 599 P.2d 796,

799 (1979). Ronwin pled that the Petition-

ers acted on behalf of their respective

marital communities, J.A. 8, and thereby

named the spouses, J.A. 5-6. Whether Pe-

titioners acted on behalf of their commun-

ities is a fact question, Howe v. Haught,

ll Ariz. App. 98, 462 P.2d 395, 397 (1970).

The Ninth Circuit had no basis in the re-

cord for determining that fact question;

and, as above, Ronwin's allegation of

community involvement was sufficient to

require the spouses to remain joined. Never-

theless, the Ninth Circuit dismissed the

spouses on the grounds that "no specific

wrongdoing" was alleged against them,

Ronwin, 686 F.2d at 694, fn. l.

The judgment of the Ninth Circuit carries

the force of law. Does said judgment mean

with respect to the dismissal of the spouses

that, as with the Act of Congress involved

in Wissner v. Wissner, 338 U.S. 655, 70 S.

Ct. 398, 94 L.Ed. 424 (1950) and as with

the Treasury regulations involved in Free

v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8

L.Ed.2d 180 (1962), the community property

laws of Arizona, in particular A.R.S. §

25-215(D), do not hold as to federal prac-

tice in Arizona and do not require joinder

of spouses as co-defendants in federal

suits in order to reach a defendant's

share of his or her community property?

If not, then, there was no basis for the

Ninth Circuit's affirmance of the dismis-

sal of the spouses and said action should

be reversed.

CONCLUSION

For the foregoing reasons, the Ninth

Circuit's decision should be affirmed and

the Ninth Circuit's dismissal of the

spouses should be reversed. The Feldman

case should be overruled. Use of any

examination for professional or occupa-

tional licensing which by grading or by

text or otherwise does not measure indi-

vidual abilities to practice should be de-

clared an unconstitutional activity. The

Midcal test, with an added prong requiring

the sovereign to explain its compelling

need to adopt an anticompetitive measure,

should be declared the test for state-ac-

tion exemption applicable to official or

private parties.

Respectfully submitted,

~ Bdward Ronwin

P.O. Box 3585

Urbandale, Iowa 50322

(515) 223-8819

Respondent pro se

(Appendices follow)

APPENDIX

STATUTORY PROVISIONS AND RULES INVOLVED

(Additional to and amplifying those found

in Petitioners' Brief on the Merits)

UNITED STATES CONSTITUTION:

Fifth Amendment

No person shall...be deprived of life,

liberty, or property, without due process

of law...

Fourteenth Amendment

.-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 protec-

tion of the laws.

UNITED STATES STATUTES:

15 U.S.C. §1. Trusts, etc., in restraint

of trade illegal; (as in effect prior to

December 21, 1974).

Every contract, combination in the form

of trust or otherwise, or conspiracy, in

restraint of trade or commerce among the

several States, or with foreign nations,

is declared to be illegal * * *

Every person who shall make any contract

or engage in any combination or conspiracy

declared by sections 1 to 7 of this title

to be illegal shall be deemed quilty of a

misdemeanor, and, on conviction thereof,

shall be punished by fine not exceeding

fifty thousand dollars, or by imprisonment

not exceeding one year, or by both said

punishments, in the discretion of the court.

July 2, 1890, ¢.647, §1, 26 Stat. 209; Aug.

17, 1937, c. 690, Title VIII, 50 Stat. 693;

July 7, 1955, ¢.281, 69 Stat.282.

And, as amended December 21, 1974, Pub.L.

93-528 §3, 88 Stat.1708: (The December 12,

1975 amendment,Pub. L. 94-145 §2, 89 Stat.80l, 3

deleted the anti-trust exemption to State

Fair trade laws which are deleted from the

above text).

§l1. Trusts, etc., in restraint of trade

illegal; penalty

Every contract, combination in the form

of trust or otherwise, or conspiracy, in

restraint of trade or commerce among the

Several States, or with foreign nations, is

declared to be illegal. Every person who

shall make any contract or engage in any

combination or conspiracy hereby declared

to be illegal shall be deemed guilty of a

felony, and, on conviction thereof, shall

be punished by fine not exceeding one mil-

lion dollars if a corporation, or, if any

other person, one hundred thousand dollars

or by imprisonment not exceeding three years,

or by both said punishments, in the discre-

tion of the court.

ARIZONA REVISED STATUTES:

§12-109. Promulgation of rules of plead-

ing, practice and procedure; distribution

A. The supreme court, by rules promulga-

ted from time to time, shall regulate plead-

ing, practice and procedure in judicial pro-

ceedings in all courts of the state for the

purpose of simplifying such pleading, prac-

tice and procedure and promoting speedy de-

termination of litigation upon its merits.

The rules shall not abridge, enlarge or mod-

ify substantive rights of a litigant.

B. The supreme court shall print and dis-

tribute the rules to all members of the state

bar and to all other persons who apply.

C. The rules shall not become effective

until sixty days after distribution.

Source: Laws 1939, Ch.8, §3

Code 1939, §19-204

§12-1l1l1. Statutes as rules of court

All statutes relating to pleading, prac-

tice and procedure shall be deemed rules

of court and shall remain in effect as

such until modified or suspended by rules

promulgated by the supreme court.

Source: Laws 1939, Ch.8 §3.

Code 1939, §19-204.

- ARIZONA SUPREME COURT RULES:

(All in Volume 17A, Arizona Revised

Statutes)

(Rules as contended by Ronwin to have

been in effect during the February, 1974

bar examination)

Rule 28. Examination and Admission

28(a) Committee on examinations and ad-

missions; powers and duties. The examina-

and admission of applicants for membership

in the State Bar of Arizona shall conform

to this Rule. For such purpose, a committee

on examinations and admissions consisting

of seven active members of the state bar

shall be appointed by this court.

* * *

The committee shall examine applicants and

recommend to this court for admission to

practice applicants who are found by the

committee to have the necessary qualifica-

= tions and to fulfill the requirements pre-

scribed by the rules of the board of govern-

ors as approved by this court respecting

examinations and admissions * * *

The court will then consider the recommen-~

dations and either grant or deny admission.

Amended,effective Sept. 15, 1970.

Rule 28(c)VII

Examinations will be upon the following

subjects: Contracts, Torts,Criminal Law,

Equity, Agency-Partnership, Wills and Ad-

ministration, Professional Responsibilities,

Pleading and Procedure, Constitutional Law,

Evidence, Private Corporations (including

State and Federal regulations regarding

issuance and sale of corporate stock), Pro-

perty (including Real and Persoril Property,

Community Property Laws and the Uniform Com-

mercial Code in relation to preperty law),

Trusts, Federal Income Tax, Conflict of Laws.

Rule 28(c)VIII

The semi-annual examinations in February

and July shall be in writing. All applicants

who recegve a grade of seventy or more in

the general examination (all subjects except

professional ethics) and who receive a grade

of seventy or more in professional ethics

and who are found to be otherwise qualified

under these rules shall be recommended for

admission to the Bar. (Adopted April 1,1967;

amended effective Aug. 1, 1970).

(Rules as contended by Petitioners to have

been in effect during the February, 1974

bar examination. The following version of

the rules are dated January 11, 1974 and

allegedly made effective January 15, 1974;

see Argument, §I.A, supra. A certified

copy of the order containing this version

of the rules is attached to Petitioners’

(First)"Petition for Rehearing..." filed

in the Ninth Circuit phase of the case).

Rule 28(a). The text is identical to

that in Ronwin's version, 5-6,App.

Rule 28(c)VII

A. Examinations will be upon the follow-

ing subjects:

a * *

(deleted portion identical to the text in

Ronwin's version, 6,App.)

The Committee may utilize the Multi-State

Bar Examination sponsored by the National

Conference of Bar Examiners and may utilize

such grading and scoring system as the Com-

mittee deems appropriate in its discretion.

B. The Committee on Examinations and Ad-

missions will file with the Supreme Court

thirty (30) days before each examination

the formula upon which the Multi-State Bar

Examination results will be applied with

the other portions of the total examination

results. In addition the Committee will

file with the Court thirty (30) days before

each examination the proposed formula for

grading the entire examination.

Rule 28(c)VIII

A. The semi-annual examinations shall

not be oral. All applicants who receive a

passing grade in the general examination

(all subjects except Professional Responsi-

bilities) and who also receive a passing

grade in Professional Responsibilities and

who are found to be otherwise qualified un-

der these Rules shall be recommended for

admission to the Bar.

IN THE SUPREME COURT OF THE STATE OF

ARIZONA

ORDER ADOPTING AND PROMULGATING RULES OF

THE SUPREME COURT OF THE STATE OF ARIZONA

Pursuant to Laws 1939, Chapter 8,§§1,2,

3(19-202 through 19-204, Arizona Code Anno-

tated 1939), IT IS ORDERED:

1. That the Rules of the Supreme Court

of the State of Arizona hereto annexed be

and they are hereby adopted and promulgated

as Rules of the Supreme Court of the State

of Arizona.

2. That the Rules nereby adopted and pro-

mulgated shall take effect and be in force

on and after twelve o'clock midnight Decem-

ber 31, 1955.

3. That a copy of the annexed Rules shall

be distributed to all members of the State

Bar of Arizona, and to all persons who apply

therefor, not later than sixty days before

such Rules become effective and in force.

DATED AND ENTERED at the City of Phoenix,

the Capitol of the State of Arizona, this

18th day of June, 1955.

/s/ Arthur T. La Prade

Chief Justice

/s/ Levi S. Udall

Judge

/s/ Dudley S. Windes

(SEAL) Judge

/s/ M.T.Phelps

Judge

/s/ Fred C. Struckmeyer,Jr.

Judge

Attest:

/s/ Eugenia Davis

Clerk

(Copy of above appears at p.2, Vol 17A,

Arizona Revised Statutes and on p. 464 of

the soft-bound "pamphlet" labelled "Arizona

Rules of Court", 1982 version of the rules;

said "pamphlet" accompanies and is part of

the complete set of the Arizona Revised

Statutes which is the official publication

of same).

Passing Percentage Results for the Arizona

State Bar Examinations from 1973-1976, in-

Cclusive. Taken from National Bar Examina-

tion Digest, supra, at 14:

1976 1975 1974 1973

Winter 70 76 54 70

Summer 58 76 76 83

If "equalization" occurred, rather than use

of the examination for anti-competitive

purposes in February, 1974, then the results

would read:

1976 1975 1974 1973

Winter 70 76 75 70

Summer 75" 76 76 83

*- average obtained by deleting the 54% in

Winter, 1974 and the 58% in Summer, 1976.

Comparison of the Passing Percentage Results

on the bar examinations of the States of

California, Utah, Texas and New Mexico for

the years, 1973 to 1979, inclusive: |

CALIFORNIA

a: nat. Bae eee St: Tae) et SO”

Winter 44 38 44 37 43 #51 £50)

)50.21%

Summer 52 52 55 59 61 62 £«55)

UTAH

Winter 94 85 87 -=- 83 94 96)

)91.67%

Summer 89 93 93 -=— 94 94 98)

TEXAS

Winter 86 87 86 90 89 87 90)

)

Summer 85 90 86 79 91 90 93)87.76%

)

Fall 99 86 87)

NEW MEXICO

Winter 7) 6€2' 7 73. BB Te oe

)71.71%

Summer 83 67 69 66 67 76 75)

Data taken from: For years 1973-1976, Na-

tional Bar Examination Digest, supra,pp.

15,36,43,44. For years 1977-1979, BAR/BRI

Digest, supra, pp. 7,26,35,36.

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.