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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1040

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2771%3A12. Public record. Not legal advice.