# Petition for Writ of Certiorari — Rosenthal v. State Bar

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1066

## Text

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89-1267 |

‘ae

ie ee

“4d
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1058%3A1. Public record. Not legal advice.