Petition for Writ of Certiorari — Rosenthal v. State Bar

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No.

Supseme Court, U.S.

4, LED

CLERK a

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

JEROME B. ROSENTHAL,

Petitioner,

Vv.

STATE BAR OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE

CALIFORNIA

PETITION FOR WRIT OF CERTIORARI

(APPENDICES 1-4 in accompanying,

separate Volume) ©

OF

JEROME B. ROSENTHAL

Suite 800

6535 Wilshire Blvd.

Los Angeles, CA

90048

(213) 658-6411

(213) 276-9673

Petitioner,

Pro Se

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, i989

JEROME B. ROSENTHAL,

Petitioner,

Vv.

STATE BAR OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF

CALIFORNIA

PETITION FOR WRIT OF CERTIORARI

(APPENDICES 1-4 in accompanying,

separate Volume)

JEROME B. ROSENTHAL

Suite 800

6535 Wilshire Blvd.

Los Angeles, CA

90048

(213) 658-6411

(213) 276-9673

Petitioner,

Pro Se

QUESTIONS PRESENTED

1. Whether Section 6083(c) of the California

Business and Professions Code ("B & P Code")

is facially unconstitutional as violative of

the due process clause of the 14th Amendment,

when the highest court of the state (acting as

de novo tribunal!) is required by that statute

to shift the burden of proof of his innocence

to Petitioner (accused, licensed lawyer), in

contravention of the rulings of Carella vs.

California, __U.S._—_—,_- 109 S.Ct. 2419, 105

L.Ed.2ad 218 (June 15, 1989); Sandstrom _ vs.

Montana (1979) 442 U.S. 510; and Connecticut

vs. Johnson (1983) 460 U.S. 73.

2. Whether a state statute (California B & P

Code Section 6049.1) abridging federal

constitutional rights of confrontation and

cross-examination is facially unconstitutional

inherently under the due process clause of the

lworth vs. State Bar (1978) 22 C3d 707,

150 Cal.Rptr. 273.

14th Amendment, and under the confrontation

Clause of the 6th Amendment.

24

age(s

QUESTIONS PRESENTED Oe FI

TABLE OF CONTENTS iii

TABLE OF AUTHORITIES iv, v

PETITION 1-4

OPINION BELOW 4

JURISDICTION 4-5

CONSTITUTIONAL PROVISIONS

AND STATUTES 5-8

STATEMENT OF THE CASE 8-13

QUESTIONS ARE SUBSTANTIAL 13-16

CONCLUSION 16-17

LIST OF APPENDICES 18

APPENDICES In accompanying,

separate volume

iii

Cases, Federal

Carella vs. California

U.S. , 109 S.Ct. 2419,

105 L.Ed.2da 218

(June 15, 1989)

Connecticut vs. Johnson

460 U.S. 73 (1983)

Coy v Ow.

__U.S.__, 108 S.Ct. 2798,

101 L.Ed.2d 857

(June 29, 1988)

Green vs. McElroy (1958)

360 U.S. 474

McFarland vs. American (1915)

241 U.S. 79

Morrison vs. California (1934)

291 U.S. 82

Follock vs. William (1944)

322 U.S. 4

Sandstrom vs. Montana (1979)

442 U.S. 510

Taylor vs. Georgia (1942)

315 U.S. 25

Willner vs. Committee (1963)

373 U.S. 96

Cases, State

Furman vs. State Bar (1938)

12 Cal.2d 212

iv

+,0,4-21,

12,13,15

14

14

14

8,13,15

TABLE OF CONTENTS (Cont ’d)

Cases d

Golden vs. State Bar (1931)

213 Cal. 237

Herrscher vs. State Bar (1935)

4 Cal. 2d 399

Rosenthal vs. State Bar (1987)

43 Cal.3d 612

Worth vs. State Bar (1978)

22 Cal.3d 707

ed t

28 U.S. Section 1257(2)

California Statutes

Business and Professions Code,

Section 6083(c)__

Business and Professions Code,

Section 6049.1

U.S. Constitution

14th Amendment, due process

clause

6th Amendment

i,1,3,4,6,

6,11,12,13,

14,15

i1,11,1,5,6,

11,13,16

11,9,8,11,

12,16

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

JEROME B. ROSENTHAL,

Petitioner,

Vv.

STATE BAR OF CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

—

JEROME B. ROSENTHAL, Petitioner,

respectfully prays that a Writ of Certiorari

issue to review the October 11, 1989 Final

Judgment and Opinion of the Supreme Court of

California, denying review, denying issuance

of a Writ of Error Coram Vobis/Nobis, and

rejecting Petitioner’s constitutional attack

on two California statutes, viz Business and

Professions Code, Section 6083(c), and

Business and Professions Code, Section 6049.1.

Section 6083(c) is facially

unconstitutional under the 14th Amendment due

process clause because it casts the burden of

proof of innocence upon the Petitioner

(accused lawyer), which action (casting the

burden of proof of innocence upon accused

lawyer) can never be harmless, either on the

ground that intent was not at issue, or that

the Carella-Sandstrom error could be harmless

on the ground of “overwhelming evidence."

Such action upheld the constitutionality of

state statute which shifts the burden of proof

of his innocence to the accused and thus

reverses and destroys the fundamental right of

the presumption of innocence during de novo

determination. Carella vs. California was

cited in Petitioner’s Petition for the Writ of

Error in the Supreme Court of California,

which Petition (together with Supplement to

Petition) is appended hereto, as Appendix 1.

In short, Petitioner correctly

anticipated the U.S. Supreme Court’s Decision

in Carella by citing it in his Petition to the

California Supreme Court dated April 10, 1989,

while Carella was pending in the U.S. Supreme

Court, for hearing on April 26, 1989.

Thereafter, this Court announced its decision

in Carella on June 15, 1989. In Petitioner’s

SUPPLEMENT TO HIS PETITION FOR WRIT OF ERROR

CORAM VOBIS/NOBIS dated June 20, 1989 which he

informed the California Supreme Court that

Carella vs California had been decided by this

Court exactly as was anticipated by Petitioner

in his original Petition for a Writ of Error,

on October 11, 1989 the California Supreme

Court rejected Petitioner’s contention that

clearly B & P Code Section 6083(c) was

facially unconstitutional in light of

Sandstrom vs. Montana, Connecticut vs.

Johnson, and as then reaffirmed by the

decision of this Court in Carella.

Additionally, Petitioner’s Petition to

the California Supreme Court (for Writ of

Error Coram Vobis/Nobis April 10, 1989) urged

the retroactive application, as a matter of

law of this Court’s decision in Coy vs. Iowa

(June 29, 1988) __U.S.__, 108 S.Ct. 2798;

101 L.Ed.2d 857 as binding on the California

Supreme Court as to cases then pending, as was

Petitioner’s case. The California Supreme

Court in its final judgment rejected Coy vs.

Iowa, and upheld the facial constitutionality

of B & P Code, Section 6049.1, despite its

unconstitutionality under Coy; the rejection

squarely presents the federal question of the

facial unconstitutionality of Section 6049.1

in light of the confrontation guarantee

enunciated in Coy, thus now posing that issue

as being ripe for decision by this Court.

OPINION BELOW

The Order of October 11, 1989 (final

action) of the Supreme Court of California

denying Petitioner’s Petition (and

Supplemental Petition) for a Writ of Coram

Vobis/Nobis appears as Appendix No. 2.

JURISDICTION

The final judgment (entered October 11,

1989), Appendix 2) of the Supreme Court of

California denying Petitioner’s Petition for

Writ of Error Coram Vobis/Nobis.

A Notice of Appeal (and Amended Notice

of Appeal) to this Court from that final

judgment was timely filed in the Supreme

Court of California on January 5, 1990.

(Appendix 3)

However, in light of rule change

effective January 1, 1990, (prohibiting direct

appeal from state court judgments) the former

appeal, filed January 5, 1990, is’ being

treated by Petitioner as a Petition for

issuance of Writ of Certiorari.

The jurisdiction of this Court is

invoked under 28 U.S.C. Section 1257(3).

CONS ON. PROVISIONS, STATUTES

6th Amendment, U.S. Constitution:

"In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, .. . and

to be informed of the nature and cause

of the accusation; to be confronted

with the witnesses against him; to

have compulsory process for obtaining

witnesses in his favor... ."

14th Amendment, U.S. Constitution, Section 1:

". . . No state shall make or enforce

2 In California, lawyer disciplinary

proceedings have been long classified as

"gquasi-criminal." Golden vs. State Bar

(1931), 213 Cal. 237; Furman vs. State Bar

(1938) 12 Cal.2d 212, 229; Herrscher vs. State

Bar (1935) 4 Cal.2d 399, 403, 421.

5

re

any law which shall abridge the

privileges or immunities of citizens

of the United States; nor shall any

state deprive any person of life,

liberty or property, without due

process of law; nor deny to any person

within its jurisdiction the equal

protection of the laws."

Section 6083(c):

"(c) Upon such review the burden is

upon the Petitioner to show wherein the

decision or action is erroneous or

unlawful."

Busi "oo : bj 6049.1-

, : 1 7 ipt eT

Proceedings As Evidence:

"In all disciplinary proceedings in

this State, certified or duly

authenticated copies of findings,

conclusions, orders or judgments made

or entered in any court of record, or

any body authorized by law or by rule

of court to conduct disciplinary

proceedings against attorneys, of the

United States, or of any State or

Territory of the United States or of

the District of Columbia in any

disciplinary proceedings therein

against the same person, shall be

admissible in evidence, and so far as

relevant and material shall be prima

facie evidence of the facts, matters

6

and things set forth therein."

"The duly authenticated transcript of

the testimony taken in such out-of-state

proceedings shall be admissible in

evidence in any disciplinary proceeding

against the same person in this State

-

Petitioner’s claim of the facial

unconstitutionality of the two California

statutes (B & P Code Sections 6083(c), and

6049.1) was presented extensively to the Court

of Last Resort (Supreme Court, California) and

Petitioner squarely presented federal

consitutional challenges to the two statutes

specifically based upon opinions of this Court

in the cases of Carella vs. California,

__U.S.__ , #4109 S.Ct. 2419, 105 L.Ed.2d 218

(June 15, 1989), Sandstrom vs. Montana (1979)

442 U.S. 510, and Connecticut vs. Johnson

(1983) 460 U.S. 73, in support of the federal

constitutional challenge to the _ burden-

shifting statute, i.e. B & P Code 6083(c).

Petitioner’s claim of the _ facial

unconstitutionality of the second statute,

i.e. B_& P Code Section 6049.1 as a codified

denial of confrontation under the 6th

Amendment, was squarely presented to state

court of last resort by Petitioner’s

contention that Coy vs. Iowa, decided June 29,

1988 while Petitioner’s case was pending in

the California Court of Last Resort, was

retroactively applicable, consistent with

Willner vs. Committee, 373 U.S. 96 (1963),

which held that "In a situation such as this,

(373 U.S. at 104), the need for confrontation

is a necessary element of due process."

2) CASE

Petitioner petitioned the Supreme Court

of California for issuance of a Writ of Error

Coram Vobis/Nobis and for vacation of its

judgment entered on July 13, 1987 (Rosenthal

vs. California State Bar, 43 C3d 612).

(Appendix 4)

That Petition was made on the following

grounds:

FIRST GROUND

In its final judgment of October 11,

1989, California Supreme Court again rejected

the teaching of Carella and Sandstrom and

upheld the constitutionality of the statute, B

& P Code 6083(c).

California Supreme Court exceeded its

jurisdiction when it refused to follow the

binding precedent of the Supreme Court of the

United States. As a result of the extrinsic

error in the orders of the California Supreme

Court, neither in its July 13, 1987

order/judgment nor in its February 18, 1988

order (denying Petition for Rehearing and

related relief) did that Court’ consider,

entertain or dispose of the federal question

raised and presented by Petitioner, i.e.

facial federal unconstitutionality of Business

and Professions Code, Section 6083(c), based

on Sandstrom vs. Montana and on Connecticut

vs. Johnson.

If the California Supreme Court had

considered that federal question

(unconstitutionality of burden-shifting

statute), it would have entered a different

judgment or granted a rehearing and entered a

judgment consistent with Sandstrom, Johnson

and (later) Carella. On April 10, 1989,

Petitioner placed before the California

Supreme Court the pendency (in this Court) of

the case of Carella vs. California, and the

fact that this Court had noted jurisdiction.

Both in Carella and in Rosenthal (Petitioner

here) the attacks were directed to California

statutory shifting of burden of proof of non-

culpability to the accused, thus’ reversing

the presumption of innocence. On April 10th,

at the time Petitioner had presented this

attack, Carella was then scheduled for

hearing, on the question of the

unconstitutional statute, on April 26, 1989,

and that fact was brought to the attention of

10

the California Supreme Court.

SECOND GROUND

State statute (B._& P Code 6049.1)

abridging federal constitutional right of

confrontation is facially unconstitutional

inherently under the due process clause of the

14th Amendment and under the confrontation

clause of the 6th Amendment.

In its final judgment on October 11,

1989, California Supreme Court again refused

to determine the retroactivity of Coy vs. Iowa

and thereby determine the facial

unconstitutionality of the statute, B & P Code

6049.1.

Another extrinsic mistake of the

California Supreme Court occurred in its

consideration of the presentation made by

Petitioner in oral argument and in briefing.

Although the issue of federal

unconstitutionality of B & P Code, Section

6049.1 was considered and rejected by the

11

California Supreme Court in its

Opinion/Judgment, in that Court’s discussion

of Petitioner’s contention wherein Petitioner

contended that his 6th Amendment

confrontation rights were thereby violated,

the California Supreme Court failed to

consider the retroactive impact of Coy vs.

Iowa (June 29, 1988) __U.S.__, 108 S.Ct.

2798, 101 L.Ed.2d 857.

That Court’s Opinion/Judgment was filed

July 13, 1987, and again such determination

was made in its Order (denying rehearing) of

February 18, 1988 during the pendency of Coy

vs. Iowa in this Court. If the California

Supreme Court had been aware of that pendency,

it would not have entered its Order/Judgment

of July 13, 1987, or its Order denying

rehearing (February 18, 1988) both of which

upheld the constitutionality of B & P Code

Section 6049.1 against constitutional attack,

the validity of which attack was determined

and reaffirmed by Coy. Thus, the California

12

Supreme Court mistakenly rejected the

confrontation attack without awaiting the

announcement of the decision in Coy vs. Iowa

was decided by the U.S. Supreme Court on June

29, 1988 holding that the right of

confrontation (and at least by implication the

companion right of cross examination) is

absolute, inviolate and indispensable under

the due process clause of the 14th Amendment,

precisely what Petitioner had raised and urged

before the California Supreme Court, prior to

Coy. Again, in its final judgment of October

11, 1989, Appendix 2, the California Supreme

Court rejected the constitutional challenge

based on Coy and the precedents that Coy

followed, including Willner v. Committee,

supra.

G E WRI

QUESTIONS ARE SUBSTANTIAL

The first of the two statutes here under

13

tas

afl

attack (B & P Code 6083(c), shifting the

burden of proof of innocence to the accused,

and concomitantly denying him the time-honored

right of the presumption of innocence) is

another example of California’s legislative

disregard, for the presumption of innocence,

and the contrary presumption of wrongdoing,

both of which were condemned not only in

Sandstrom vs. Montana and Connecticut vs.

Johnson, but specifically here, in Carella

vs. California. Carella is the offspring of a

long and prestigious line of precedents in

this Court, including Sandstrom (a recent

offspring) and McFarland vs. American Sugar

(1915) 241 U.S. 79; Morrison vs. California

(1934) 291 U.S. 82; Pollock vs. William (1944)

322 U.S. 4; Taylor vs. Georgia (1942) 315 U.S.

25; Green vs. McElroy (1958) 360 U.S. 474-

all of which cases arose as statutory due

process violations in civil litigation.

The second statute challenged here

concerned constitutionality of B & P Code

14

ee —_— - ~ 7

6049.1, which denies confrontation and cross

examination rights. That position of the

California Supreme Court creates an extremely

substantial question. Notwithstanding the

clear mandate of this Court, as elucidated in

Coy vs. Iowa (reaffirming Willner and an

unbroken line of decisions in this Court) and

notwithstanding the retroactive applicability

of Coy vs. Iowa, the California Supreme Court

has arbitrarily and capriciously rejected both

the decisions of this Court reaffirming and

upholding the fundamental nature of the rights

of confrontation and cross-examination, as

well as the decisions of this Court making the

principle of Coy retroactive.

Whether the two statutes (one shifting

burden proof of innocence, and the other

denying the right of confrontation and cross-

examination) are considered separately or

together, California’s impact is severe

quantitatively, as well as fundamentally in

kind. California is our most populous state,

15

and has at least more than its share of

lawyers, per capita, or otherwise. The number

of disciplinary cases keeps rising along with

the number of licensed attorneys who should be

accorded due process on a par with other

persons.

CONCLUSION

The two statutes are codified

legislative deprivations of due process, and

cannot withstand constitutional attack under

the 6th and 14th Amendments, consistent with

the controlling decisions of this Court.

/////

/////

/////

/////

16

Therefore, it is respectfully submitted

that this Court should issue its Writ of

Certiorari to the California Supreme Court,

or, per curiam, vacate the July 13, 1987

Order/Opinion of the California Supreme Court.

DATED: January 5, 1990.

ROSENTHAL

535 Wilshire Blvd.

Los Angeles, CA 90048

(213) 658-6411

(213) 276-9673

Petitioner,

Pro Se

APP ICES TO

ET ON FOR OF CERTIORARI

in accompanying, separate Volume)

(List of Appendices follows p. 17)

17

LIST OF APPENDICES

Pi TT TN eee

LIST OF APPENDICES

Description

Petition for Writ of Error

(and Supplement to Petition)

to California Supreme Court

October 11, 1989 California

Supreme Court Final Judgment

Notice of Appeal (and Amended

Notice of Appeal) to U.S.

Supreme Court

Opinion, California Supreme

Court, filed July 13, 1987

APPENDICES TO

PETITION FOR WRIT OF CERTIORARI

in accompanying, separate Volume)

18