Amicus Curiae Brief — Lebbos v. Supreme Judicial Court of Massachusetts

sumemg Court, U.S.

FJ LED

i NOV 26 1990

No. 90-401 20 =, 1OL, JR.

—> as — M

P In the

SUPREME COURT OF THE UNITED STATES

October Term, 1990

BETSEY WARREN LEBBOS,

Petitioner

vs.

SUPREME JUDICIAL COURT OF

THE COMMONWEALTH OF

MASSACHUSETTS

Respondent

AMICUS CURIAE BRIEF AND

APPENDIX IN SUPPORT OF

PETITIONER

JOHN RAKUS, ESQ.

PRESIDENT

CALIFORNIA JUSTICE

FOUNDATION

1617 Sixteenth Street

Sacramento, Ca. 95814

916-443-7769

Amicus Curiae

ge ee ee), ae ee eae Nt eae ee

In the

SUPREME COURT OF -THE UNITED STATES

October Term, 19990

BETSEY WARREN LEBBOS,

Petitioner

vs.

SUPREME JUDICIAL COURT OF THE

COMMONWEALTH OF MASSACHUSETTS

Respondent

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF IN SUPPORT OF

PETITIONER AND THIS COURT

GRANTING HER PETITION

Now comes JOHN RAKUS, ESQ.,

President of the California Jus-

tice Foundation and moves for

leave to file the attached brief

as Amicus Curiae in support of

Petitioner and this Court hearing

her Petition.

This motion is being filed as the

opposing party, Supreme Judicial

Court, and Bar Counsel have not re-

turned the written consent required

of United States Supreme Court Rule

37.2.

Pursuant to United States Supreme

Court Rule 57.1, Amicus wishes to

bring to the Court’s attention rel-

evant matter which has not already

been brought to its attention and

which has not been raised by the

parties. That relevant information

concerns the need for a declaration

of unconstitutionality of the State

Bar Court of the California State

Bar Association by reason of its

multiplicity of conflicts in being

a Court because of its private,

pecuniary, profit-making, politi-

cal, and entrepreneurial activi-

atite

ties and its agency status for a

private trade group involved in

coerced association.

Amicus believes that those

activities are dispositive of

the issue as to whether another

state may treat such a private

State Bar Court as if it were

a court of law entitled to Full

Faith and Credit or Comity.

For the foregoing, Amicus re-

quests the attached factual in-

formation explaining those con-

flicts be permitted to be consider-

ed in this Honorable Court’s deci-

s serious Petition.

IFORNIA JUSTICE FOUNDATION

1617 Sixteenth Street

Sacramento, Ca. 95814

916-443-7769

Amicus Curiae

QUESTION PRESENTED

1. Does the Due Process clause of

the United States Constitution

permit a private membership Bar

Association to create a State Bar

Court to license lawyers when that

Court is the agent of a private

membership trade group involved in

coerced association and other con-

flicting personal, profit-making,

entrepreneurial, partisan, pecun-

iary and lobbying activities ?

&

LIST OF PARTIES

The parties in the Petition

for a Writ of Certiorari are as

follows :

BETSEY WARREN LEBBOS, ESQ.

P.O. Box 490

New Almaden, Ca. 95942-90490

Petitioner Attorney

HON. PAUL J. LIACOS

Senior Justice

Supreme Judicial Court of The

Commonwealth of Massachusetts

Room 1412, Court House

Boston, MA. 921908

Respondent

DANIEL J. KLUBOCK, ESQ.

Bar Counsel

Board of Bar Overseers

75 Federal Street

Boston, Mass. 021190

Bar Counsel

w14a

Table of Authorities

Abood v. Detroit Board of 29

Education, (1977) 431 U.S. 209,

255, S. Ct. 1782, 1799

Carpenter v. state bar, (19351) 28

295 P. 25, 211 C. 358

Clark v. Willett (1868) 55 C. 13

534

Conway v. State Bar, 47 Cal. 27

Sd. 1107 (1989)

Erdman v.Stevens, C.A.N.M., 458 21

F.2d. 1205, cert. denied 93 S.Ct.

126, 409 U.S. 889, 34 L.Ed. 2d.

147

Elrod v. Burns, 427 U.S. 347, 20

Ex Parte Garland, (1867) 71 U.S. 21

(4 Wall) 333 22

Ex Parte Robinson, 19 Wall.513 31

(1873)

Herron v. State Bar of Califor- 29

nia, (1944) 147 P. 2d. 543, 24

C.2dad.53, certiorari denied 65

§.Ct.82, 323 U.S.753, 89 L. Ed.

603, rehearing- denied 65 S.Ct.

128, 323 U.S. 815, 89 L. Ed. 648.

Hill v. State Bar of California, 28

(1940) 97 P.2d.236, 14 C. 2da.732

In re: Cate, (1928) 273 P. 617, 13

supplementing opinions 270 P. 28

968 and 271 P.356

-i1ii-

EE

Kell Vv. ee of 2,14,17,23

California. 33,40,41

11 » 2d. Ag “cr S.Ct.

June 4,1990, overruling

767 P.2d.1020 (1989)

Ped sh ap v. Board of Regents, 20

385 589

Lathrop v. Donohue, (1960) 367 23

U.S. a3 319 U.S. 624, 63 S. Ct.

1178, 87 L.Ed. 1628.

Machinists v. Street, 567 U.S. 19

748

Martello v. SUpee ior Court 11

(1927) 202 Cc. ®, 261 P. 476

Miller v.Board of Public Works, 542

195 Cal. 477, 234 P. 381, 38 ALR

1479,

NLRB v. Employee’s Department 19

of H Hanson, 3553 »- 225

‘Norwood v. Kentfield (1867) 34 11

Cc. 329

Pacific Gas and Electric Co. v. 14

Public Utilities Commission 20

98 475 U.S.1, 10-11, 106

S.Ct.993, 908-9809, 89 L.Ed.2d.1

Pearson v. Great National Rail- 32

Co. 161 U.S. 646, 40 L. Ed.

838, 16 S. Ct. 705

Perry v. Sinderman 408 U.S. 595 20

-iv-

(i984) 466 U-8-609,625; 198-8 20

Ct. shea 3252, 82 L. Ed.2d.462

Shurbun v. Hooper (1879) 40 10

Tres a

Sone Ve (aomas (F Parisian 11

~ Cleani Works (1895)

ore om Dyeing and ° 38 P. 960 2~

West Virgini ad. of Ed. v. 21

Barnette, 319 a. 624, 642 25

California Constitution:

Article 2, section 8 12

Article 5, section 5 12

Article 4, section 1 12

Article 4, section 16 12

Article 6, section 1 12

Article 6, section 7 12

Article 6, section 9 12,13,16,18

Statutes: on

Ca. Business and Professions Code

sections:

Section 6000 18,26

Section 6001 18,26

Section 6002 18,26

Section 6005 18,26

-Vv =

Section 6004 18

Section 6005 18

Section 6007 27,41

Sections 6010-6015 26

Section 6028 35

Section 6031 18

Section 6041.1 34

Section 6079.1 18

Section 6086.5 18,54,41

Section 6125 18,26,41

Section 6126 (b). 18,45

Section 61490 26

Section 6141 26

Section 6148.5 26

Section 6141 26

Section 6143 26

California Code of Judicial

Conduct:

Canon 1 39

Canon 2 (B) 39

Canon 3(A)(1) 39

Canon 3(C) 39

-vi-

a

Canon 5 39

Canon 7 39

Articles:

Coke,-Cemmentaries on the 8

Magna Carta

Mayda, “ Lawyers under 17

Communism: A ‘New’ Legal

order in Czechoslavakia, 59 A.

B.A.J.1071 (1953)

Peselj, Legal Trends in 17

People’s Democracies," 22

Geo. Wash. L. Rev. 513, 551-

552 (1954)

Note 45 Schweizerische 17

Juristenzeiteng 48 (1949)

-vii -

Table of Contents

Question Presented.....-«eeeeecel

List of . ug tl). lee ee ee ii

The interest of the Amicus.... 1

Constitutional and Statutory

Provisions Involved.....-s«eeeeee3D

Summary of Argument.....-s+ses+++ 4

Argument In Support of Petition.5

I. <A substantial federal 5

question arises if Califor-

nia attorneys are the only

ones licensed by a private

court

II. The State Bar Court is un- 20

constitutional as it is the

agent of a corporation in-

volved in coerced associa-

tion

A. If the State Bar is an 23

arm of the state as a Pub-

lic Corporation, then private

attorneys may not be forced

to be automatic members or

pay for it

B. Since compelled private 25

members are required to pay

private dues to finance a

prohibited private court,

the state bar court,is

unconstitutiona

-viili-

Ve

III. The State Bar Court is 33

unconstitutional as it

is privately run without

Public approval, audit,

or accountability

IV. The State Bar Court is Ja

unconstitutional as it

is the agent of a corpor-

ation involved in private

activities

A. The state bar’s activities 35

involve profit-making,

proprietary, and entrepre-

neurial activities

B. The state bar’s activities 39

involve impermissible polit-

ical and lobbying activities

(jj @j@ (222. seeks cece eeecceecec es oe

-ix-

In the

SUPREME COURT OF THE UNITED STATES

October Term, 19990

BETSEY WARREN LEBBOS,

Petitioner

vs.

SUPREME JUDICIAL COURT OF

THE COMMONWEALTH OF MASSACHUSETTS

Respondent

AMICUS CURIAE BRIEF IN

SUPPORT OF PETITIONER

The Interest of Amicus

Applicant respectfully

requests permission to appear

to file an Amicus Curiae brief

in support of Petitioner. He

does so both on his own benefit

personally and on behalf of the

ate

\

California Justice Foundation.

As duly licensed attorneys and

registered voters, their mutual

concern is that citizens not be

coerced into forfeiting their

reserved powers under the Tenth

Amendment.

Applicant believes this Court

should not tolerate deviations

from this court’s clear decision

in Keller, of California 495 U.S.

» 110 L. Ed. 2d. 1, 110 S&S. Ct.

__dune 4, 1998. Amicus believes

that an alleged State Bar Court is

unconstitutional as the California

State Bar Association is a private

trade group. This is the appropri-

ate and may be the only Petition in

which this issue can now be resoiv-

ed as there will be no decisions of

the state’s highest court, the Cal-

affe:

ifornia Supreme Court, for this

Court to review. The California

Supreme Court has now passed rules

asserting that they no longer will

review all attorney discipline

cases, but will deny review to some

attorneys. As such, their denial of

hearing a Petition makes the al-

leged order of the bar association

the judicial order of suspension or

disbarment on a claim that the bar

association may have a " State Bar

Court."

Constitutional and Statutory

Provisions Involved

United States Constitution:

Amendment 1. Congress shall make

no law ... abridging the freedom

of speech, ...; or the right of

the People ... to petition the

Government for a redress of

~ =

grievances.

Amendment V. No person ... shall

be deprived of life, liberty, or

property, without due process of

law...

Amendment XIV, section 1. No

state shall make or enforce any

law which shall abridge the priv-

ileges or immunities of citizens

of the United States; nor shall

any state deprive any person of

life, liberty, or property, with-

out due process of law, nor deny

to any person within its juris-

diction the equal protection of

the laws.

The California Constitutional

and statutory provisions appear

at the Appendix at A.

Summary of Argument

The Judgment of the Supreme

~

Judicial Court of the Commonwealth

of Massachusetts should be reversed

as the California system based on

an alleged State Bar Court is con-

stitutionally inadquate. Such an

alleged private court was not

created by the sovereign power of

the People. It is an agent of a

private membership trade group and

is disqualified from being a court

due to its principal’s involvement

in a multiplicity of private, pe-

cuniary, political, lobbying, and

entrepreneurial activities at odds

with the requisite neutrality and

non-partisanship of a Court of law.

Argument in Support of the Petition

I.

A substantial federal question

arises when California attorneys

are the only ones licensed by a

private court

-5-

The implications of having one

state’s lawyers licensed by a

private court instead of their

constitutionally-authorized and

public admitting court are far-

ranging. California is the most

populous state in the United

States. With a population of 390

million citizens, its people

comprise more than the popula-

tions of 21 other states and the

District of Columbia combined.

One out of every eight United

States citizens resides in the

State of California. They are

twelve percent of all United

States citizens. Their attor-

neys number in excess of 122,000.

If California attorneys are

no longer available to assist this

large population, out of fear their

=

opponent will have them disbarred

or suspended if they sue select

persons, then it is doubtful the

rule of law can be maintained.

One state’s lawyers will have

to comply with a private opponent’s

standards while the rest of the

attorneys in the United States

must only comply with their ad-

mitting court standards.

Prohibitions on private

courts emanates from the Magna

Carta. Historically, the King

sent out couriers or bailiffs

to hold courts of common pleas

in the countryside. This was

done without notice. The cour-

iers or bailiffs often confiscated

the goods or property of peasants

it adjudged guilty and kept those

goods as payment to themselves.

-

Lord Coke in his Commentaries on

the Magna Carta spoke of this

corrupt practice and its abolition

with a requirement that the King’s

representatives be paid solely out

of the public coffers and not by

private money. Since that time it

has not been doubted that a private

court could not exist in our Demo-

cracy.

There is a substantial differ-

ence between public and private

power. Public courts are taxpayer

funded. Their officers in the state

courts are elected and removable by

the voters. Their proceedings are

open to the public. Any deficit in

mental, legal, or psychological com-

petency of any judge can be redres-

sed through the ballot box and/ or

proceedings before a Commission to

remove the judge. There are no

other duties of the public courts

other than to decide cases. They

can not have private, profit-making

or entrepreneurial functions. They

can not lobby on _a variety of pol-

itical issues. Their structure is

such that they are not involved in

inherent conflicts of interest as

is the California State Bar Assoc-

lation. No private monies fund the

operations of the public Courts.

There is a significant Federal

question. If due process of law

permits licensing of California's

" Court Officers" by their own pri-

vate opponents and competitors, the

quality of legal representation

will suffer and all citzens will

suffer.

California prides itself on be-

-~9-

ing a leader in the nation. There

is even a saying, " So goes Cali-

fornia, so goes the nation." What

will happen nationally to the legal

profession and the quality of legal

services if attorneys are too

frightened to represent members of

the Public 7

A " Court,” within the meaning

of the Constitution is a permanent

tribumai for the administration of

Justice, and not one of those spec-

ial tribunals which are occasion-

ally called into existence by par-

ticular exigencies and that cease

to exist with such need. Shurbun v.

Hooper (1879) 4@ Mich. 503. Consent

-19=-

cannot create a Court. Norwood v.

Kentfield (1867) 34 C. 329. The

creation of the courts is an affair

of government, and may not be sub-

ordinated to private convenience

or private interest. Martello v.

Superior Court (1927) 202 C. 400,

261 P. 476. Courts are organized

for the purpose of determining the

controversies between litigants

according to their respective

rights. Warner v. Thomas (F.)

Parisian Dyeing and Cleaning

Works (1895) 105 C. 409, 38 P. 960.

A Court must be the agent of

the State and represent the sover-

eign power of the People. It may

not be created by and for private,

unelected persons. Article 4, sec-

tion 16 of the California Constitu-

tion specifically prohibits such

-11=-

special interest, private legisla-

tion as a statute delegating to 23

private, unelected persons the

power to create a private state bar

court.

In 1966, the People abolished

all legislalative authority to

create any new courts in the state

of California, reserving to then-

selves the power directly to vote

to create any new court. No one

voted to create a State Bar Court.

It is, therefore, void under Arti-

cle 6, sections 1 and 9, article 4,

sections 1 and 16, article 3, sec-

tion 35, and article 2, section 1 of

the California Constitution.

The State Bar Association is

composed of automatic attorney men-

bers who are licemsed to practice

law by the state supreme court.

-12-

Article 6, section 9, Ca. Consti-

tution. Attorneys are not Public

officers, but are private, unelec-

ted persons selected to aid in the

conduct and presentation of cases

and disputes before the constitu-

tional courts of law, are selected

by their admitting state supreme

court, and are " Court Officers,”

but not Public Officers of the

state. In re: Cate, (1928) 273 P.

617, supplementing opinions 279 P.

968 and 271 P. 356, Clark v. Wil-

lett (1868) 355 Cc. 534.

A. If the State Bar is an arm of

“ae at as a lic Corpor-

ation, then private attorneys

may not be forced to be auto-

matic members or pay for it

Compelled private association

with and coerced private membership

with a state unit of political pow-

er, as a condition of working in a

=) =

————

state, is Communism and is uncon-

stitutional under the First Amend-

ment guarantees of freedom to re-

fuse to associate with a unit of

state power. See Pacific Gas and

Electric Co. v. Public Utilities

Commission (1986) 475 U.S. 1, 10-

11, 106 S. Ct.903, 908-9089, 89 L.

Ed.2d.1; Roberts v. United States

Jaycees (1984) 468 U.S. 609, 623,

104 S. Ct. 3244, 3252, 82 L. Ed.

2d. 462, (The first amendment pro-

tects an individual’s rights not to

associate and not to speak).

In Keller, supra, this Court

held attorneys may be required to

join a bar association. What is

mot addressed is whether they can

be required to join it when it

claims it is not a private trade

group but asserts it is part of

at@a

the government as the agent of

the legislative branch. The court

considered that attorneys general-

lly prefer a measure of advisory

self-regulation to being regulated

by a state government distant from

problems of the legal profession.

The fallacy is that California

attorneys do not have advisory

self-regulation. No member, in

fact, votes on their standards of

comportment or any processes. The

California State Bar Association

lobbyist, with no vote from any

compelled member, lobbies the

legislature to pass the statutes

their 23 member board or paid staff

wants. No member ever voted on

whether the state bar associa-

tion should be permitted to have

a private court or private judges.

-~15-

————

No voter in the state did either.

The issue goes beyond trade

unionism, where the compelled

association and membership is with

other private persons. The designa-

tion of the State Bar as a " Public

Corporation " under Article 6, sec-

tion 9, of the California Constitu-

tion and the state statutes allow-

ing the Governor and a member of

the Assembly and Senate to select

members of the State Bar’s Board of

Governors virtually ensures that

the State Bar Association acts as

an agent of the State legislature

and not the agent of the compelled

members.

If private attorney membership

is automatic with a public unit of

state power, California attorneys,

unlike all other attorneys in the

atiie

United States, are forced to be

compelled members of a Soviet-

style, state-run, but privately-

financed Collegia or Collectiva.

See Mayda, " Lawyers under Commun-

ism: A ’New’ Legal order in Czech-

oslavakia, 39 A.B.A.J.1071 (1953);

Peselj, Legal Trends in ’ People’s

Democracies,” 22 Geo. Wash. L. Rev.

513, 551-552 (1954); Note 45

Schweizerische Juristenzeiteng 48

(1949). The statement of the major-

ity in the California’s Supreme

Court decision in Keller v. State

Bar, supra, that, " The California

Constitution, statutes, and judi-

cial decisions, however, appear to

envision the bar as a governmental

agency," Keller v. State Bar, 767

P. 2d. 18928 (1989), at p. 1025, now

carried to the extreme of assertin,

~~

that the state bar may have a pri-

vate court and private judges to

license lawyers, appears to be a

repudiation of common sense.

The conclusion that California

attorneys are compelled to be a

unit of state power against their

will and without their consent in

order to ork with their licenses

to practice law is different from

joining a trade group whose exis-

tence is limited to trade interests

and where no public power is clain-

ed or exercisable.

What is here involved is not

trade unionism, but trade group

communism.

All of the statutes at issue

strike at the heart of the rights

of freedom to refuse to associate

with and to finance activities of a

utiin

state-run collegia of California

attorneys, run and controlled, not

by their own members, but by the

state. Article 6, sec. 9, Ca. |

Constitution, Ca. Business and

Professions Code sections 6000,

6001, 6002, 6003, 6004, 6005, 6807,

6086.5, 6079.1, 6031, 6125, 6126

(b).

Unlike Abood v. Detroit Board

of Education, (1977) 431 U.S. 209,

255, 97 S.Ct. 1782, 1799, 52 L.

Ed.2d. 262, Machinists v. Street,

367 U.S.7498, NLRB v.Employee’s

Department of Hanson, 353 U.S. 225,

the issue is beyond compulsory pay-

ment of dues toa private member -

ship trade group. Here the coercion

is to affiliate directly with the

state in order to work in the en-

tire state. Article 6, section 9,

~19—

Ca.Constitution, Ca. Busn.and

Professions Code section 6002.

The government may not require

an individuai to relinquish rights

guaranteed to them by the First

Amendment as a condition of en-

ployment. Elrod v. Burns, 427 U.S.

347, 555-357; Perry v. Sinderman

408 U.S. 593; Keyishian v. Board of

Regents, 385 U.S. 589. Among those

freedoms must be the freedom to

refuse to be automatic and forced

members of a public corporation, a

unit of state government in power.

see Pacific Gas and Electric Co. v.

Public Utilities Commission (1986)

475 U.S.1, 10-11, 1@6 S.Ct.993,

998-909, 89 L.Ed.2d.1; Roberts v.

United States Jaycees 1984) 468

U.S. 609, 623, 104 S.Ct.3244, Jaoea o

82 L.Ed.2da.462.

=2G—

LE

As stated in West Virginia Bd.

of Ed. v. Barnette, 319 U.S.624,

642, the Constitution prohibits the

State Supreme Court trying to order

private lawyers to be a member of a

desired Public group and believe in

it and support its political agenda

as follows :

“ If there is any fixed star in our

constitutional constellation,

it is that no official, high or

petty, can prescribe what shall

be orthodox in politics, nation-

alism, religion, or other matters

of opinion or force citizens to

confess by word or act their

faith therein."

Lawyers are licensed to be

" Court Officers.” Ex Parte Gar-

land, (1867) 71 U.S. (4 Wall) 333,

Ex Parte Robinson, 19 Wall.515

(1873); Erdman v. Stevens, C.A.

N.M., 458 F.2d. 1205, cert. denied

93 S.Ct.126, 409 U.S. 889, 34 L.Ed.

2d 147. They are not instruments of

a94«

the state legislature. In Ex Parte

Garland, supra, at page 578, the

United States Supreme Court made

clear that a legislature does not

license " Court officers," as

follows :

“ The profession of an attorney and

counselor is not like an office

created by an act of Congress,

which depends for its continu-

ance, its powers and its emolu-

ments, upon the will of its

creator, and the possession of

which may be burdened with any

conditions not prohibited by the

Constitution. Attorneys and

counselors are not officers of

the United States; they are not

elected or appointed in the

manner prescribed by the Consti-

tution for the election and

appointment of such officers.

They are officers of the court;

admitted as such by its order,...

the order of admission is the

judgment of the court... From

its entry the parties become

officers of the court... "

An Attorney’s oath is to the

People and their Constitutions, and

rot to a state government in power.

-22-

Pilati

Ca. Business and Professions Code

section 6067, 6068.

The assumption that the police

power of a state may be used to

create lawyers into a " public

corporation,” Keller v. state bar,

767 P.2d. 1020 ( Cal. 1989), at p.

1026, but then jumping to the

assumption that that power may then

be used to herd private attorneys

into " Goose-stepping state brig-

ades," assumes that the police

power may be used to force alie-

giance to the public policies of a

legislature, governor, and supreme

court presently in power in order

to work in the state. (1) Keller v.

state bar, gupra, at p. 1026.

(1) Justice Douglas, Lathrop v.

Donohue, (1960) 367 U.S. 843.

319 U.S. 624, 63 S. Ct. 1178, 87 L.

Ed. 1628.

-23-

lime

By said reasoning, doctors can

be forced to be an instrument of

the state as a " Public Corpora-

tion,” under state control, as can

dentists, veternarians,accountants,

football players, judges, butchers,

bakers, and every occupational

group in the state, and solely

by reason of their occupation, and

the state may force them to be

members of these public corpora-

tions and do public and govern-

mental duties in order to work in

the state. Thus, private trade

unions become state- sponsored

and controlled trade unions, as

exists in Communist China.

What is the effective differ-

ence between forcing people to

pledge allegiance to the flag and

forcing them to pledge allegiance

-24-

———————

to a public corporation in power 7?

West Virginia State Board of

Education v. Barnette (1943)

In one, the right to obtain a

public school education is lost,

but in the other, the right to use

that public school education to

protect the People’s constitutional

rights not to be forced to pledge

allegiance to the Government is

lost as the People’s Lawyers are

forced to pledge allegiance to a

particular state government in

power themselves. Attorneys can not

sue the Government to protect the

People from it, as they are part of

the Government.

B. Since compelled private

members are required to

pay private aes to fi-

mance a prohibited private

c

In addition to the compelled

membership with the state bar as-

sociation in order for lawyers in

California to work, Ca. Business

and Professions Code sections 6000,

6001, 6002, these coerced private

lawyers are also compelled to pay

it dues for purposes without audit,

vote, or any fiscal oversight. Ca.

Business and Professions Code sec-

tions 6125, 61480, 6141,6148.5,6141,

6143, 68001, 6010-6015. Should they

fail to pay the annual compelled

membership fee to the state bar as-

sociation, they are suspended as

members of the bar, but also they

are unable to use their license to

practice law from the State Supreme

Court. Ca. Business and Professions

Code sections 6143, 6125, 6126 (b).

Although the California Consti-

-26-

tution makes clear the membership

is to be automatic, rather than

discretionary with the bar, the

state bar has passed statutes

claiming it can change membership

in its association for any reason

at all without misconduct or non-

payment of dues. Ca. Business and

Professions Code section 6007 (c).

With the state bar claiming it can

prevent licensed attorneys’ working

by enrolling them as an inactive

member of their bar association,

this effectively gives the private

trade group the judicial power the

People placed elsewhere in their

Constitution and places it in the

hands of solely private people.

The California Supreme Court's

authorization for this private

judicial power in Conway v. State

=-27—

Bar, 47 Cal. 3d. 1107 (1989), is

contrary to all of the prior cases

limiting the California State Bar

Association’s existence to being

an advisory group. Carpenter v.

state bar, (1931) 295 P. 23, 211 C.

nia, (1940) 97 P.2d.236, 14 C. 2d.

732.

Originally the state statutes

creating a State Bar Association

with such judicial power were de-

clared unconstitutional and the

statutes were upheld only on con-

dition the State Bar never, in

fact, possess such judicial power.

In re: Cate, Supra.

When passed, the Board of Gov-

ernors of the State Bar, which was

a democratically-organized repre-

sentative cross-section of the

-28-

eae etl

ee

attorney members, fixed the fee to

be charged and when the fee was

used solely to defray the necessary

costs of running an advisory volun-

teer disciplinary group as an ad-

junct to advisory recommendations

for the state supreme court. There

was no paid staff, no non-lawyer or

public board members, and the Bar

Districts represented an equal

apportionment of votes for all

compelled members. There were no

paid employee prosecutors, no paid

officers, and no extra-curricula

and profit-making or proprietary

functions involved. Herron v. State

Bar of California, (1944) 147 P.

2d. 543, 24 C.2d. 53, certiorari

denied 65 S.Ct.82, 3525 U.S. 755, 89

L.Ed. 603, rehearing denied 65 S.

Ct.128, 323 U.S. 815, 89 L. Ed.

-29-

:

:

648.

Whatever justification under

the Police Power as a regulatory

measure was then warranted in order

to accomodate the desire for ad-

visory self-regulation among law-

yers, so that they could fulfill

their duties to the separate branch

of the Judiciary, rather than be

faced with a conflict in being

regulated by the legislature, whom

they might have to sue, is no

longer applicable to the facts and

circumstances of the California

State Bar Association, which is now

a unit under the legislature’s con-

trol and not under the Judiciary.

The justification for dues was

for advisory self-regulation con-

cerning infractions involving pro-

fessional misconduct. Now the dues

-30-

ee

are used for a wide variety of per-

sonal, political, proprietary, and

profit-making purposes as well as

bringing those political goals into

the disciplinary apparatus imper-

missibly by prosecuting lawyers for

political and not legal goals.

Since the dues are no longer used

for police power purposes of self-

regulation, the compelled member-

ship, the dues, and the use of the

dues, including for an alleged

State Bar court, are all outside

the scope of the police power of a

state. The Police power of the

state is a law of necessity, and is

exercisable only if there is a nec-

essity for the Public’s health,

safety, morals, and welfare, which

prohibits special interest legis-

lation, such as an alleged State

=$1-

Bar court.

Statutes are constitutional

only when they are used to protect

the rights of all people. Pearson

v. Great National Railway Co. 161

U.S. 646, 40 L. Ed. 838, 16 S.

Ct. 705. The interest of the People

is their attorneys’ independence of

state, coerced affiliation. The

Police Power is a law of Necessity

and is exercizable only for nece-

ssity. Miller v. Board of Public

Works, 195 Cal. 477, 234 P. 381, 38

ALR 1479, error dismissed. There

being no necessity in compelling

private attorneys, without their

consent, to finance a prohibited

special interest, trade group court

modeled on those of Communist

China, the statute creating an

alleged State Bar court is not for

-32-

the People’s welfare, but against

it, and is void under the due

process clause of the United States

Constitution. |

IIlI.

The State Bar Court is

unconstitutional as it is

privately run without Public

approval, audit, or accounta-

bilit

The fact that the State Bar is

not subject to any controlled state

audit or accountability for its

financial commitments to and for

its alleged State Bar court inval-

idates the alleged State Bar court,

as all courts must be responsible

fiscally and subject to state over-

sight control in order to exist. As

stated in the Opening Brief in

Keller v. State Bar, United States

Supreme Court,docket no. 88-1905,

p. 3, “" Although the Bar must

-33-

submit its proposed budget to the

Legislature, it does not require

legislattve approval nor is it

subjected to the review processes

applicable to other state budget-

ary items, most notably the Gov-

ernor’s line item veto power. Com-

pare Cal. Busn. and Prof. Code s.

6049.1 with Cal. Consti. IV,s. 10

(b). In fact, the Bar may even com-

pel the Legislature to maintain the

annual membership fee at a certain

level. See Cal. Bus. and Prof.

Code section 6008.5." As stated at

p.- 4, “" The Board of Governors of

the State Bar has broad ranging

powers under the State Bar Act.

In addition to being exempt from

the state procedures outlined

above, the board may also appro-

priate and disburse funds without

-34-

specific legislative approval or

action on the party of the State

Controller. Compare Cal. Busn. and

Prof. Code section 6028 with Cal.

Consti. Art. XVI, s. 7."

Because all courts must be sub-

ject to public approval, scrutiny

and oversight, and accountability

and they must be financed out of

public and not with private funds,

the State Bar court is unconsti-

tutional under the Due Process of

law clause of the State and United

States Constitutions as none of the

public accountability applies.

IV.

The State Bar Court is

unconstitutional as it is the

agent of a corporation involved

in private activities

A. The state bar’s activities

involve profit-making,

proprietary, and entre-

preneurial activities

-35-

The State Bar is involved ina

multiplicity of activities with

compelled dues that involve pro-

prietary functions normally re-

served to the free market and free

enterprise. One such activity is an

exclusive contract with the Los

Angeles Daily Journal Corporation

for it to publish the official 1

State Bar magazine, California

Lawyer, which issues monthly and

which yields the Journal Corpora-

tion approximately three million

dollars in advertising revenues.

Those funds have then been used

to buy up private, independent,

legal newspapers such as The San

Jose Post Record and The Advocate

Journal, thereby lessening their

own competition and restricting

the independence of the legal news

=§6-

and dissemimination of dissenting

and other views contrary to the

official policy of the California

State Bar association.

This lucrative, monopolistic

contract is consummated without the

vote of the compelled membership,

and it yields a substantial re-

striction on the freedom of the

press by giving a monopolistic

advantage through the name lend-

ing to this private newspaper

chain.

Another proprietary function,

normally reserved to the free

market and free enterprise, is that

of publication of law books. The

California Continuing Education of

the Bar uses the name of the Cali-

fornia State Bar Association to

promote its series of books and its

-37-

;

i

/

i

profit-making seminars and tapos.

The exact parameters of the rela-

tionship, financial and otherwise,

are not fully known. Suffice it to

say that the state bar’s position

on issues is a favored one. The use

of the official name, without the

consent or approval of the compel-

led members,is without their

authorization.

In addition, the State Bar is

involved in making a profit from

its sponsored lectures, tapes, and

books and other items it sells. In

addition, they are seeking to li-

cense para-legals, which will re-

strain any possible competition by

licensed para-legals to that of any

lawyer, thereby monopolizing

commerce in legal services more

than at presently, and which will

-38-

Dias seen

also yield additional funds from

this profit-making venture for

their political, lobbying, and

other non-regulatory activities.

B. The state bar’s activities

involve impermissibble

political and lobbying

activities

The Judicial Code of Conduct

and the Hatch Act prohibit those

who are engaged in the business of

a " Court " from being involved in

political activities, other than

as private individuals. refer Cali-

fornia Code of Judicial Conduct,

Canons 1, 2 (B), 3(A)(1), 3(C),5,

and 7.

This is not true of the alleged

State Bar Court. Its principal,

that finances, runs, and operates

it, the State Bar, has a full-time

Lobbying DeDepartment. It is finan-

-39-

ced without consent of any attor-

ney. The lobbying is done without

the consent of the members. It

takes positions and lobbies for

statutes that are recommended,

not by the automatic members, but

by those who are permitted to at-

tend the Conference of Delegates,

which involves solely those who are

members of voluntary local bar

associations. Refer Petitioner's

Opening Brief in Keller, supra, at

p.-6. It also lobbies for and has

statutes passed for its own self-

interest, without any vote of any

member, such as the State Bar court

statute involved, and the accompany-

ing statutes purporting to transfer

licensing of court officers from

the Judicial Branch to the Legisla-

tive branch of Government. Ca. Bus-

-49-

iness and Professions Code sections

6007 (c), 6086, 6086.5, 6125, 6126

(b).

As the Petitioner’s Opening

Brief in Keller v. State Bar in-

dicated, supra, p. 25 and their

Reply Brief at p. 12, the State Bar

lobbies for and submits Amicus,

without consent of the members, on

a wide-ranging spectrum of bills,

involving Nuclear freezes, envir-

onmental protection, armor-piercing

bullets, and any matter that some

consider is an " improvement of the

laws."

In addition, it privately fi-

mances and runs a " Clients Secur-

ity Fund.” The fund determines

which victims are to be paid resti-

tution when harmed by their attor-

=41-

neys. It also runs a" Prisoner on

Parole ™" program to assist those on

parole. In addition, it pays for

and runs a California Young Lawyers

Association in order to encourage

all attorneys under 35 to become

active with their membership activ-

ities. It also finances grants of

up to 28 million dollars for legal

services programs. In addition, it

favors and sponsors the local bar

associations by financing for them

the Conference of Delegates. In

fact, the voting that takes place

in the California State Bar Asso-

ciation is not done by members of

the State Bar, but solely the

representatives of the local bar

associations.

In addition, it has practial

training programs for law students,

-42-

a group insurance program, a Law-

yers Personal Assistance Program

to assist attorneys with drug or

alcohol problems, a Court Reform

Efforts program, a legislation

program, an unauthorized practice

program, a personal Building Fund

program, a Legal Services Trust

Fund program, and an " " Ethics

Hotline."

All of these special and private

interests are supported to the ex-

clusion of other interests. No

court of law could ever be permit-

ted to engage in such private ac-

tivities which favor some while

disfavoring other interests. With

the State Bar Court a mere agent of

all these private interests, and

responsible for making sure their

employer’s programs are successful,

a4 3a

it lacks the neutrality, focus,

and concentration necessary for

a court of law and is involved in

irreconcilable conflicts of in-

terest.

The State Bar court should be

declared unconstitutional as it is

a political arm of a political or-

ganizatton, whose principal pur-

pose is political aggrandizement. A

proper court under the due process

of law ‘clause can not be the agent

of a political entity, as is the

State Bar court, as Courts must be

independent, neutral, and non-par-

tisan. It is unconstitutional as it

does not adhere to the Hatch Act

or the prohibitions of the Judicial

Code, a sine qua non, of a court of

law.

-44-

CONCLUSION

The financing of the Courts is a

matter for public allottment, and

not private coerced dues of attor-

neys. Amicus requests the State Bar

court be declared unconstitutional

as it is privately created, private

ly financed, and privately run,

with no fiscal or political over-

sight and is the agent of a private

membership group, which engages in

political, personal, and proprie-

tary functions at odds with the

requisite independence, neutrality,

and non-partisanship required of a

— £2

OHN MAKUS, ESQ.

ST DENT

PALIFORNIA JUSTICE FOUNDATION

1617 Sixteenth Street

Sacramento, Ca. 95814

916-443-7769

Amicus Curiae

APPENDIX

California Constitution :

Article 11, section 1. All polit-

ical power is inherent in the

People. Government is instituted

for their protection, security, and

benefit, and they have the right to

alter or reform it when the public

good may require.

Article III, section 3. The powers

of state government are legisla-

lative, executive, and judicial.

Persons charged with the exercise

of one power may not exercise

either of the others except as

permitted by the Constitution.

Article VI, Section 1. Judicial

Power: Courts: The judicial pow-

er of this state is vested in the

Supreme Court, courts of appeal,

superior courts, municipal courts,

and justice courts. All ... courts

Appendix A-1

are courts of record.

Article VI, section 9. The State

Bar of California ie a public

corporation. Every person admit-

ted and licensed to practice law

in this State is and shall be a

member of the State Bar except

while holding office as a judge

of a court of record.

California Statutes

(underlining denotes 1989 changes)

Ca. Business and Professions

Code Sections :

Section 6000. Short Title.

This chapter of the Business

and Professions Code constitutes

the chapter on attorneys. It may

be cited as the State Bar Act.

Section 6001. State Bar; perpe-

tual succession; seal; powers;

revenue, laws applicable. The

Appendix A-2

State Bar of California is a

public corporation......

No law of this state restric-

ting or prescribing a mode of

procedure for the exercise of

powers of state public bodies or

state agencies, or classes therof,

including but not by way of lim-

itation, the provisions ( commenc-

ing with Section 118000), Division

4 ( commencing with section 16100),

and part I ( commencing with Sec-

tion 18000) and Part 2 ( commencing

with Section 18508) of Division 5,

of Title 2 of the Government Code,

shall be applicable to the State

Bar, unless the legislature so

declares.

Section 6002. Members. The members

of the State Bar are all persons

admitted and licensed to practice

Appendix A-3

law in this state, except justices

and judges of courts of record

during their conttnuance in office.

Section 6002.1 : Official member-

ship records; maintenance of infor-

mation ; service of notice initia-

ting proceedings; availability of

information on records; forms of

reportS ..-ce-«-

(c) The notice initiating a

proceeding conducted under this

chapter may be served upon the

member or former member of the

State Bar to whom it is directed

by certified mail, return re-

ceipt requested, addressed to

the member or the former member

at the latest address shown on

the official membership records.

The service of the mailing is

complete at the time of mailing

Appendix A-4

but any prescribed period of

notice and any right or duty to

do any act or make any response

within any prescribed period or

on a date certain after the notice

is served by mail shall be extended

five days if the place or address

is within the state of California,

wo days if the place of address is

outside the state of California but

within the United Statesm and 29

days if the place of address is

outside the United States.

Section 6003. Classes of members.

Members of the State Bar are

divided into two classes: (a)

Active members (b) Inactive mem-

bers.

Section 6004. Active members.

Every member of the State Bar is

an active member until, by action

Appendix A-5

of the board of governors as in

section 65307 of this code provided

or at his request, he is enrolled

as an inactive member.

Section 6005. Inactive Members.

Inactive members are those men-

bers who have requested that

they be enrolled as inactive

members or who have been en-

rolled as inactive members by

action of the board of governors

as in Section 6007 by this code

provided.

Section 6006. Retirement from

practice; Privileges of inactive

members. Inactive members are

not entitled to hold office or

vote or practice law. Those who

are enrolled as inactive members

at their request may, on applica-

tion and payment of all fees re-

Appendix A-6

quired, become active members.

Those who are enrolled as inactive

members *** as in secion 6007 of

this code provided may become ac-

tive members as in section 6007

provided.

Inactive members have such

other privileges, not inconsistenxt

with this chapter, as the board of

governors.

Section 6007 (c) (1).... Involun-

tary, inactive enrollment. (c) (1)

the Board'( of Governors of the

California State Bar Association )

may order the involuntary inactive

enrollment of an attorney upon a

finding that the attorney’s conduct

poses a substantial threat of harm

to the interests of the attorney’s

clients or to the public .....

(2) In order to find that

Appendix A-7

the attorney’s conduct poses a

substantial threat of harm to

the interests of the attorney’s

clients or the public pursuant

to this subdivision, each of the

following factors shall be found

based on all the availabie evi-

idence, including affidavits:

(A) The attorney has caused

or is causing a substantial harm

to the attorney’s clients or the

Public.

(B) The attorney’s clients

or the public are likely to suf-

fer greater injury from the den-

ial of the involuntary inactive

enrollment than the attorney is

ed, or there is a reasonable

likelihood that the harm will re-

occur or continue. Where the evi-

Appendix A-8

dence establishes a pattern of

behavior, including acts likely

to cause substantial harm, the

burden of proof shall shift to

the attorney to show there is

no reasonable likelihood that that

harm will reoccur or continue....

(C) There is a reasonable

probability that the State Bar

will prevail on the merits of

the underlying disciplinary matter.

ment under this subdivision, the

underlying matter shall proceed on

an expedited basis.

(4) The filing of a recommenda-

tion of disbarment after hearing or

default, creates for purposes of

this subdivision, a rebuttable

presumption that the factors

enumerated under paragraph 2) are

Appendix A-9

established. The presumption

described in this section is one

affecting the burden of proof as

defined in section 605 of the

Evidence Code.

(5) The board shall formu-

ulate and adopt rules of proced-

ure to implement this subdivi™®

sion.

In the case of an enrollment

pursuant to this subdivision,

the board shall terminate the

involuntary inactive enrollment

upon proof that the attorney’s

conduct no longer poses a substan-

tial threat of harm to the inter-

ests of the attorney’s clients or

the public....

Section 6086.5. State Bar Court;

establishment; powers; rules. The

board of Governors shall establish

Appendix A-1@

a State Bar Court, to act in its

place and stead in the determina-

ation of disciplinary and rein-

statement proceedings and proceed-

ings pursuant to subdivisions (b)

and (c) of section 6887 to the

extent provided by rules adopted by

the Board of Governors pursuant to

this chapter. In these proceedings

the State Bar Court may exercise

the powers and authority vested in

the board of governors by this

chapter, including those powers and

that authority vested in the com-

mittees of, or established by

the board, except as limited by

rules of the board of governors

within the scope of this chapter.

For the purposes of Section

6007, 6049, 6049.2, 6050, 6051,

6052,6077 ( excluding the first

Appendix A-11

sentence ), 6078, 6080, 6081, 6082,

“ board " includes the State Bar

Court.

Nothing in this chapter shall

authorize the State Bar Court to

adopt rules of professional conduct

or rules of procedure. The Execut-

tive Committee of the State Bar

Court may adopt rules of practice

of the conduct of all proceedings

within its jurisdiction. These

rules may not conflict with the

rules of procedure adopted by the

board, unless approved by the

Supreme Court.

Appendix A-12