Petition for Writ of Certiorari — Joseph v. State Bar of California

FILED

\ BD 101138 MAR 15 201

NO- _@FFICE OF THE CLERK

Supreme Court, U.S.

(!)

Jn The Supreme Court of the Anited States

JOEL D. JOSEPH,

Petiticner,

V.

STATE BAR OF CALIFORNIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

PETITION FOR A WRIT OF CERTIORARI

JOEL D. JOSEPH, Pro Se

9935 S. Santa Monica Blvd.

Beverly Hills, CA 90212

Telephone: (310) 623-3872

JoelDJoseph@Gmail.com

QUESTIONS PRESENTED

1. Whether the procedure for review of essay

exam answers for the Califorma bar exam (solely by

review by direct petition to the California Supreme

Court) provides applicants for admission with due

process of law under the Constitution of the United

States?

2. Whether the State Bar of California is

required by the Constitution of the United States to

establish a system for hearing appeals of claims of

inaccurate and unfair grading of essay exams

administered for admission to the State Bar of

California?

TABLE OF CONTENTS

Questions Presented

Table of Authorities

Opinion Below

Jurisdiction

Statutory Provision Involved

Statement of the Case

Reasons for Granting the Writ

The Decision Below Conflicts With Decisions

Of This Court

A. The Court Should Grant Review to Establish

Uniformity of Decision and Process to Provide

Applicants to the Bar with Fairness and Due

Process in the Review of the Bar Exam

~~

}

Nee een. nnscccccernscsccvacedeseveteaces 5

The Petitioner Has Been Denied the Right to

Procedural Due Process under the U.S.

Constitution

Conclusion ........ OS 9g

Neen coos c ac sanseescndanssvessocsvcencssne: Al

Order of the Supreme Court of California ............ Al

Opinion and Judgment of the Court of Appeal..... A2

Opinion and Judgment of the Superior Court ................ All

11

TABLE OF AUTHORITIES

CASES:

Fruchtman v. New York State Bd. of Law

Examiners, 534 F. Supp.

Oe ee: Fe ioeiksessaresdoeecee ee 6

Hooban v. Bd. of Governors of Wash. State Bar

Assn., 85 Wn.2d 774 (Supreme Court of

Washington, 1975)

In re Obermeyer, 717 P.2d 382 (Supreme

Court of Alaska, 1986)

Marbury v. Madison, 1 Cranch 137 (1801)

McGinn v. State Bar Board Of the State Of North

Dakota, 399 N.W.2d 864 (Supreme Court of

North Dakota, 1987)

Schware v. Board of Bar Examiners, 353 U.S.

232 (1957)

Sewell v. Committee of Bar Examiners, 154

Cal. App. 3d 256 (Court of Appeal, First

Appellate District, Division Four, 1984)

Supreme Court of New Hampshire v. Piper , 470

U.S. 274 (1985)

The Florida Bar re Williams, 718 So. 2d 773

(Supreme Court of Florida, 1998) ............00..... 5

Willner v. Committee on Character and Fitness,

373 U.S. 96 (1963) 3.6, 7-0

STATUTES and CONSTITUTIONAL PROVISIONS:

California Business and Professions Code §

LU, & | eee any mann. ie.

Fourteenth Amendment to U.S. Constitution

MISCELLANEOUS:

Bar Examiner, Nov. 2004 at 6

California Rules of Court, Sections 9.10, 9.12

The Handbook on Test Development, University

of Wisconsin

http:// admissions.calbar.ca.gov/Examinations/

Statistics.aspx

Wall Street Journal, “Raising the Bar’”.................

Washington Post, August 1, 2005, “SAT Grader

Next Door”

Opinions Below

The Superior Court of Los Angeles issued an

opinion on October 27, 2009. App. 20. The Court of

Appeal of California, Second Appellate District, Divi-

sion Two, issued an opinion on September 15, 2010.

App. 13. The California Supreme Court denied re-

view on December 15, 2010.

Jurisdiction

Jurisdiction is based on 28 U.S.C. §1257 for

review of judgment of the highest court of a State.

Statutory Provision Involved

There are no statutory provisions involved.

Statement of the Case

Petitioner Joseph is an attorney who has been

practicing law for 36 years on the East Coast. Pe-

titioner graduated from Georgetown University Law

Center, taught law at George Washington University

and is the author of ten books and scores of articles

on law. All these facts were alleged in his complaint.

In February, 2009, Joseph took the California

Bar Examination and received a failing grade. He re-

quested that the State Bar reread his examination,

but his request was denied. The State Bar also failed

to provide petitioner with an opportunity to review

the notes of the graders. [Facts in this paragraph are

taken from the opinion of the Court of Appeal.]

Petitioner graduated from Georgetown law school

in 1973 and passed the bar examination in the

District of Columbia on his first attemnt. That exam-

ination included the multistate bar examination.

Petitioner passed the lawyer’s bar examination in

Maryland in 1981 on his first attempt. That exam-

ination was a true lawyer’s examination, focusing on

the differences between Maryland practice and

practice in general, emphasizing procedure. Com-

plaint 4/3-5.

Petitioner received a score of 1,385 on the

California Bar. Complaint, {/ 29. A score of 1,390 is

needed for a second read of the essays. Complaint, 4]

31. Petitioner requested that the Board of Governors

of the Bar reconsider his grade on the essay portions

of the exam, but was denied. 923, J.A. 4. Petitioner

requested copies of the notes of the grader of his

exam, but was denied. Opinion of the Court of

Appeal.

California law requires the State Bar to provide

notes of the grader. California Business and Pro-

fessions Code Section 6065(a)(2).

The California Supreme Court has only once

granted review to an applicant for admission to

review the grading of the bar examination.

Petitioner has been able to identify only one case in

which the Supreme Court took any action on a

Petition for a Writ of Mandate concerning review of

the bar exam. Sewell v. Commuittee of Bar E'xam-

iners, 154 Cal. App. 3d 256 (Court of Appeal, First

Appellate District, Division Four, 1984).

Reasons for Granting the Writ

This court should grant review of this case

because it is necessary to secure uniformity of

decisions regarding admission to the bar and to

settle important questions of law.

For many years California has failed a large

number of experienced out-of-state attorneys, failing

a much higher percentage of experienced attorneys

than newly minted law graduates. In the past five

years California has failed more than 2,000

experienced attorneys from other jurisdictions.

http://admissions.calbar.ca.gov/Examinations/ _ stat-

istics.aspx.

California, unlike many other states, has only

one grader for each essay exam. In addition, Cal-

ifornia pays only $3 to have each essay question

graded. At the same time, California has no system

for review of grades on these essays, other than

direct review with the Supreme Court of California.

Justice Goldberg, joined by Justices Brennan

and Stewart, concurring in Wi//ner v. Committee on

Character and Fitness, 373 U.S. 96 (1963), stated:

“Certainly lawyers and courts should be particularly

sensitive of and have a special obligation to respect,

the demands of due process.” 373 U.S. at 106. (Em-

phasis added).

Petitioner asks this court to grant this petition

for certiorari in order to provide applicants to the bar

with due process regarding grading of the exams, by

providing a review process to determine if essays

were properly graded.

The Decision Below Conflicts With

Decisions of This Court

A. The Court Should Grant Review to Establish

Uniformity of Decision and Process to Provide

Applicants to the Bar with Fairness and Due

Process in the Review of the Bar Exam

Essays.

The practice of law is a right which is protected

by the Constitution of the United States. It is a right

which the United States Supreme Court has deemed

fundamental. See Supreme Court of New Hampshire

v. Piper, 470 U.S. 274, 281, (1985) 105 S.Ct. 1272,

1277, 84 L.Ed.2d 205, 211. “A State cannot exclude a

person from the practice of law or from any other

occupation in a manner or for reasons that contr-

avene the Due Process or Equal Protection Clause of

the Fourteenth Amendment” Schware v. Board of

Bar Examiners, 353 U.S. 232, 238-239 (1957).

The California Supreme Court has_ rarely

granted a petition for a writ reviewing the grading of

the bar exam. See Sewell v. Committee of Bar

Examiners, supra. Requiring applicants to file

directly with the Supreme Court, when such review

is not generally available is a Catch 22, depriving

applicants of due process of law.

In contrast, the California Supreme Court has

established a State Bar Court for hearings con-

cerning the discipline of attorneys. California Rules

of Court §9.10. There is also a procedure for appeals

from decisions of the State Bar Court concerning

discipline of attorneys. California Rules of Court

99.22.

Petitioner never has had his day in court or

before an administrative panel. That is what

Petitioner seeks. He wants, and 1s entitled to by the

Constitution of the United States, a due process

hearing to determine if he passed or failed the exam.

The record now is blank. Petitioner was given a

number, a score, with no notes as required by

California law. The bar exam graders were paid $3

per essay exam, or a total of approximately $24 to

grade an exam that Petitioner paid $1,000 for the

privilege of taking. 437, J.A. 4.

Petitioner is entitled to a due process hearing

under the Constitution of the United States to

demonstrate that he did indeed pass the bar exam.

B. The Petitioner Has Been Denied the Right to

Procedural Due Process under the U.S.

Constitution.

How much due process did Petitioner get for the

$24 that the California Bar paid to review the essays

he wrote for the bar exam? His exam essays,

allegedly, were read once. We don’t even know if

anyone actually read them. We don’t have the notes

of the grader, required to be produced under

California Business and Professions Code Section

6065 (a)(2), or any other evidence that would

demonstrate that the essays were actually read.

Most states have two graders for each essay

question. See e.g., In re Obermeyer, 717 P.2d 382,

385 (Supreme Court of Alaska, 1986); The Florida

Bar re Williams, 718 So. 2d 773 (Supreme Court of

Florida, 1998). Missouri uses two graders for each

essay. Bar Examiner, Nov. 2004 at 6.

Having two graders for essay exams is the

standard used in education. For the Scholastic

Aptitude Test (SAT) used by most colleges in the

United States, all essays are read by two readers.

Washington Post, August 1, 2005, “SAT Grader Next

Door.” The Handbook on Test Development, Uni-

versity of Wisconsin, provides as section 9, “Ideally,

there should be two graders for each item. Any dis

agreement between these two must be resolved by a

third grader.” www.testing. wisc. edu/handbook.

Many states have a review process for admin-

istrative review of essay exam grading. See e.g.

Hooban v. Bd. of Governors of Wash. State Bar

Assn., 85 Wn.2d 774(Supreme Court of Washing:

ton, 1975); McGinn v. State Bar Board Of the State

Of North Dakota, 399 N.W.2d 864 (Supreme Court of

North Dakota, 1987); Fruchtman v. New York State

Bd. of Law Examiners, 534 F. Supp. 692 (S.D.N-Y.

1982).

In Willner v. Committee on Character and Fit-

ness, 373 U.S. 96 (1963), the United States Supreme

Court ruled that a state bar must afford an applicant

a hearing before denying him admission. The court

ruled:

New York does not appear to have any

procedure whereby an applicant for

admission ... that gives him a hearing

prior to the court’s adverse action.

the requirements of procedural due

process must be met before a State can

exclude a person from practicing law

373 U.S. at 99, 102

California, hke New York in the Wi//ner case,

has no procedure for granting an applicant a hearing

concerning his bar exam. California does have a

statute that requires the California Bar to provide

unsuccessful applicants with notes of the grader

California Business and Professions §6065 (a)(2)

Petitioner wrote to the bar requesting those notes.

But the California Bar has refused to comply with

the law by refusing to provide Petitioner an op

portunity to review the notes of the graders

‘To comply with the Due Process Clause of the

144» Amendment, the California State Bar must

1. Provide petitioner with the notes of

the grader of his exam; and

2. Provide an opportunity to prove that

applicant earned a higher grade.

That Petitioner has the right to file a petition

with the California Supreme Court does not comply

with the Due Process requirements of the U.S.

Constitution. The California Supreme Court rou

tinely denies these petitions and has only once, to

counsel’s knowledge, in 160 years, granted a petition

to review an applicant's essay examinations.

There is also a presumption of a remedy for

every violation of law or of the Constitution. Mar

bury v. Madison, 1 Cranch (5 U.S.) 137 (1801). In

Marbury, the United States Supreme Court ruled

“The very essence of civil liberty certainly consists in

the right of every individual to claim the protection

of the laws, whenever he receives an injury.” 5 U.S

at 163. The Supreme Court continued

The government of the United States

has been emphatically termed = a

government of laws, and not of men. It

will certainly cease to deserve this high

appellation, if the laws furnish no

remedy for the violation of a vested

legal right 5 U.S. at 163.

A remedy in the California Supreme Court is a

remedy in theory only, for in reality, the Calfornia

Supreme Court rarely hears tndividual cases chal

lenging the grading of the bar exam. Due process

requires that petitioner be given the notes of his

vrader so that there 1s a record that can be reviewed

Under Wil/ner, supra, Petitioner is then entitled to a

hearing, a day in court, to prove that he is qualified

to be a member of the Bar of California

Conclusion

The bar applicant in the Wi//ner case was en

titled to a hearing concerning his moral character to

practice law. This same principle should apply to

the bar examination. Applicants to the bar should

be entitled under the same due process principles to

review how their grade was determined. Petitioner

could prove that he passed the bar exam, but was

graded unfairly.-For example, in the exam Petitione

“failed,” one question was a federal venue question

Petitioner not only answered the question ac

curately, he cited 28 U.S.C § 1404, the appropriates

statute. The Bar’s sample answer did not meet

petitioner’s standard. Yet the Bar failed petitione:

on this question because he gave a scholarly answe1

when the Bar was seeking a sophomoric respons¢

California passes a much higher percentags

recent law students than experienced attorney

This is contrary to reason. Experienced attorne’

should have a much higher passing rate since they

have already passed the bar in another jurisdiction

and are more experienced at practicing law

For example, Kathleen Sullivan, former dean of

the Stanford University Law School, failed the

California bar exam in 2005. “Raising the Bar: Even

Top Lawyers Fail California Bar,” Wal/ Street Jo

nal, December 5, 2005, Al.

Like Professor Sullivan, petitioner taught law

a major law school (George Washington University)

and authored ten books on law including /lack

Mondays: Worst Decisions of the Supreme Court

National Press Books, Bethesda, MD. (1987) [Justice

Thurgood Marshall wrote the foreword.]

All lawyers taking the bar should have the right

to due process to make sure that their essay exams

were graded accurately and fairly. Under W1//ner,

supra, due process of law should apply to the bar

exam as well as character and fitness test. For all of

these reasons, the petition for a writ of certiorari

should be granted

Respectfully submitted

Joel D. Joseph, Pro Si

9935 S. Santa Monica BI

Beverly Hills, CA 90212

(310) 623-3872

JoelDJoseph@Gmail.c

Appendix

Supreme Court of California

JOEL D. JOSEPH

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

JOEL D. JOSEPH, B221236

Plaintiff and \ppellant (Los Angeles

County

super. Ct. N

SC 103749

STATE BAR OI

CALIFORNIA

Kerr & Wagstaffe. Michael von Loewenf

Daniel A. Zaheer: State Bar of California Office of

General Counsel. Lawrence C. Yee Richard J

Zanassi, and Rachel Grunberg for Defendant and

Respond: nt

Plaintiff and appellant Joel D. Joseph (Joseph)

appeals from a judgment entered after the trial court

sustained without leave to amend the demurrer of

defendant and respondent State Bar of California

(the State Bar). Because the trial court rightly held

that it does not have jurisdiction over Joseph’s

claims, we affirm.

FACTUAL AND PROCEDURAL

BACKGROUND

“Because this matter comes to us on demurrer,

we take the facts from plaintiffs complaint, the

allegations of which are deemed true for the limited

purpose of determining whether the plaintiff has

stated a viable cause of action. [Citation.]” (Steven-

son v. Superior Court (1997) 16 Cal.4th 880, 885.)

Joseph is an attorney who has been practicing

law for 36 years on the East Coast.! In February

2009, he took the California Bar Examination“ and

received a failing grade. He requested that the State

Bar reread his examination, but his request was

denied. The State Bar also failed to provide him an

opportunity to review the notes of the graders.

Believing that his examination was. graded

unfairly, on June 26, 2009, Joseph filed the instant

|

; According to his complaint, Joseph is admitted to

practice law 11 aryland and in multiple district courts and

law in Mar

Courts of Appeals

This was the third time Joseph took the California bar

exam. He failed the two prior times

action, alleging four constitutional claims (denial of

due process, denial of equal protection, abuse of

discretion, and denial of privileges and immunities),

breach of contract, and defamation.

The State Bar filed a demurrer?’ to Joseph’s

complaint.

Over Joseph’s opposition,’ the trial court sus-

tained the State Bar’s demurrer without leave to

amend. Citing Business and Professions Code sec

tion 6066 and California Rules of Court, rule 9.13(d),

it found that “the State Bar’s examination fees and

scoring 1S ...encompassed within the Supreme

Court’s inherent power to control admissions.” Thus,

‘if [Joseph] is entitled to any relief, he must obtain it

by original petition to the California Supreme

Court.”

Judgment was entered, and Joseph's timely

appeal ensued

DISCUSSION

Standard of Review

“Our Supreme Court has set forth the stan-

dard of review for ruling on a demurrer dismissal as

follows: ‘On appeal from a judgment dismissing an

action after sustaining a demurrer without leave to

amend, the standard of review is well settled. The

» State Bar's demurrer is

record

4 ) —

Presumably Joseph filed an ti none is part of

the appellate record

A4

reviewing court gives the complaint a reasonable

interpretation, and treats the demurrer as admitting

all material facts properly pleaded. [Citations.] The

court does not, however, assume the truth of

contentions, deductions or conclusions of law.

[Citation.] The judgment must be affirmed “if any

one of the several grounds of demurrer is well taken.

[Citations.]” [Citation.] However, it is error for a

trial court to sustain a demurrer when the plaintiff

has stated a cause of action under any possible legal

theory. [Citation.] And it is an abuse of discretion to

sustain a demurrer without leave to amend if the

plaintiff shows there is a reasonable possibility any

defect identified by the defendant can be cured by

amendment. [Citation.]’ [Citations.]” (Payne v. Na-

tional Collection Systems, Inc. (2001) 91 Cal.App.4th

1037, 1043-1044.)

IT. The Tria/ Court Properly Sustained the

State Bar's Demurrer Without Leave to

Amend

The State Bar acts as the California Supreme

wvuits administrative assistant or adjunct in the

areas of admissions and discipline of attorneys.

(Saleeby v. State Bar (1985) 39 Cal.3d 547, 557

(Saleeby).) It is a constitutional entity subject to the

California Supreme Court’s expressly reserved

primary and inherent authority over discipline and

admission. (/n re Attorney Discipline System (1998)

19 Cal.4th 582, 607.)

In other words, “the [California] Supreme Court

has ‘sole original jurisdiction’ over the attorney

admissions process.” (Smith v. State Bar (1989) 212

A5

Cal.App.3d 971, 976.) Because the Supreme Court

“controls the admission process as part of its

inherent power,” that court is the only state judicial

venue with jurisdiction to review Joseph's claim. (Cd.

at p. 978.) Joseph’s challenge to the State Bar’s

procedures for certifying applicants for admission

must be brought in the Supreme Court. (bid.

[challenges “should be initiated in the Supreme

Court under its inherent power and criginal juris”

diction over the admissions process”]; Saleeby,

supra, 39 Cal.3d at pp. 557-558; see also Bus. &

Prof. Code, § 6066 [providing that challenges to

State Bar certification denials shall be “reviewed by

the Supreme Court”]; Cal. Rules of Court, rule

9.13(d) [setting forth the procedure for review of

admissions decisions].) Our analysis could stop here.

For the sake of completeness, we will address the

remaining arguments raised in Joseph's appellate

briefs. We cannot do so, however, without pointing

out our distaste of his inflammatory and unsub-

stantiated comments that are peppered throughout

those briefs. Such remarks were unnecessary and

unprofessional, and an experienced attorney should

know better.

Joseph argues that under article 6, section 10 of

the California Constitution, the superior court has

jurisdiction over his claims. Pursuant to /n re

Attorney Discipline System, supra, 19 Cal.4th at

page 601, Saleeby, supra, 39 Cal.3d at page 559, and

Smith v. State Bar, supra, 212 Cal.App.3d at pages

977 to 978, we cannot agree. Those cases confirm

that the Supreme Court's jurisdiction over the

attorney admissions process is not only original, but

also inherent and plenary. Joseph has offered no

A6

argument as to why this authority should be

ignored.°

We likewise reject Joseph’s contention that

pursuant to Business and Professions Code section

6001, he could pursue his claims in superior court.

Business and Professions Code _ section 6001

provides, in relevant part, that the State Bar “may

sue and be sued.” That statute is entirely consistent

with the jurisdictional rules set forth by the

Supreme Court: while the State Bar is subject to

suit, any suit involving admissions matters must be

brought in the Supreme Court.

In urging us to reverse the judgment, Joseph

argues: “Requiring applicants to file directly with

the Supreme Court, when such review is_ not

generally available is a Catch 22, depriving

applicants of due process of law.” In other words,

according to Joseph, the availability of review in the

Supreme Court is “illusory.”

We cannot adopt Joseph’s unfounded, and, quite

frankly, offensive, assertion that the well-established

procedure for challenging admissions decisions

violates the Constitution. (See Giannini v. Real (9th

Cir. 1990) 911 F.2d 354, 357 [allowing bar applicant

to see exam and petition state Supreme Court for

review of applicant’s denial of admission to

California bar satisfies the requirements of due

process].) Joseph wants his day in court. Had he

sa Joseph similarly offers no argument or legal authority

to support his assertion that “[t]he only exclusive jurisdiction of

the California Supreme Court concerns the discipline of

attorneys.”

followed the appropriate procedure, he would have

received it.®

Joseph relies upon Wr//ner v. Committee on

Character (1963) 373 U.S. 96 for the proposition that

a state bar must afford an applicant a hearing before

denying him admission. He claims that California

has no such procedure and, therefore, his due

process rights have been violated. Joseph’s reliance

upon Wil/neris misplaced. In Wil/ner, the petitioner

seeking admission to practice law had passed the

New York bar examination. (/d. at p. 97.) The issue

was a charge regarding the petitioner’s character

and fitness. Ud. at pp. 100-101.) Unlike the peti-

tioner in Wil/ner, Joseph has not passed the Cal-

ifornia bar examination, and nothing in W/7//ner

compels the conclusion that an applicant is entitled

to a hearing regarding the grading of his bar exam.

Although not entirely clear, it appears that

Joseph is contending that because the State Bar has

neglected to provide him with the notes of the

graders of his bar examination, his due process

rights were violated.‘ The problem for Joseph is

© As pointed out by the State Bar, Joseph is well-aware of

this procedure. After he took his third bar exam but before he

received the results, Joseph filed a petition for a wnt of

mandate with the California Supreme Court, challenging the

results of his July 2008 exam. His petition was denied.

Business and Professions Code section 6065 provides

in relevant part: ‘“(a)(1) Any unsuccessful applicant for

admission to practice, after he or she has taken any

examination and within four months after the results thereof

have been declared, has the right to inspect his or her

examination papers at the office of the examining committee

located nearest to the place at which the applicant took the

A8

that this theory is not pled in his complaint. The

first cause of action, titled “Denial of Due Process of

Law,” alleges that the State Bar’s “failure ... to

provide a system for review of the grading of bar

examinations constitutes a deprivation of property

without due process of law in violation of the

California and United States Constitutions.” The

complaint further alleges that “[iJn order to preserve

and protect [Joseph’s] property rights, the bar

examination should have been graded and marked

with comments concerning errors and omissions”

and the State Bar “should have a procedure for

review of grading and an appeal process.” Nowhere

does Joseph allege that he requested the graders’

notes and his request was denied.

In passing, Joseph argues that because Cal

ifornia only has one grader for each essay question

but most states have two, “he has the right to hav:

his essays considered by more than one grader, and

due process requires it.” Joseph offers no legal

authority to support this novel proposition. (Benach

vy. County of Los Angeles (2007) 149 Cal.App.4th 836

852 lappellant bears the burden of supporting a

point with reasoned argument] County

Sacramento v. Lackner (1979) 97 Cal.App.3d 576

591 [appellant must present argument on each point

made].) All Application of Obermeyer (Alaska 1986

717 P.2d 382, 385 noted was that in Alaska, ther

are two graders for each bar exam essay \nd

nothing in The Florida Bar re Willams (Fla. 1998)

718 So.2d 773 indicates that there are two grader:

f

examination. [] (2) The applicant also has the

inspect the grading of the papers whether the record thereof

upon the examinatton or otherwise.’

AQ

for the essays of certification examination. Even if

both of these states did have two graders for the

essay portion of their state bar examinations, that

certainly would not amount to “most” states.

Because we conclude that the superior court

does not have jurisdiction, we need not reach the

State Bar’s argument that Joseph's claims are

barred by the doctrines of res judicata and collateral

estoppel.

DISPOSITION

The judgment of the trial court is affirmed

The State Bar is entitled to costs on appeal

\SHMANN-GERST

. pol TODD

SUPERIOR COURT OF THE STATE OF

CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

JOEL D. JOSEPH. Case No. SCI03749

Plaintiff ORDER

SUSTAINING

DEFENDANT STATE

BAR’S DEMURRER

WITHOUT LEAVE

TO AMEND

STATE BAR OF CALIFORNIA

The demurrer of Defendant State Bar of Cal

ifornia came on for hearing in Department B of thi

court on October 27, 2009. Having reviewed thi

papers submitted in connection with the demurrer

and considered the arguments of counss | the Court

HEREBY ORDERS THAT

Defendant's reque

IKevid. Code § 452(d

The demurrer 1

imend. CCP §430.10(a)

The court declines to rule on the special motion

to strike given that the “Supreme Court has ‘sol

original jurisdiction’ of the attorney admission

process.” Smith v. State Bar (1989), 212 Cal.App.3d

971, 976; see In re Rose (2000) 22 Cal.4th 430, 443

144) and because in the absence of subject matter

jurisdiction, this trial court has no power “to hear or

determine [the] case” (see Varian Medical System

Ine. v. Delfino (2005) 35 Cal.4'» 180. 196

The first basis for the demurrer listed in the

operative statute 1s that the “court has no juris

diction of the subject of the cause of action alleged in

the pleadings.” Plaintiff alleges that he took and

failed the California Bar Examination in February

2008, July 2008, and February 2009, claiming that

his failing score is “false.” Id. 4425-30. Plaintiff

alleges that he requested a_re-read of his

examination, but was refused. Id. £33. Plaintiff

alleges that he received his examination back with

no markings or explanation of the scoring, and the

State Bar later informed him that “there is no

review of examination” results and no. recon

ideration of the scoring.” /d. 436. Plaintiff allege

that “The State Bar of California has de-signed the

vrading of the bar examination in order to deprive

lawyer Who have practiced in

many practicing

other states for many years, of the right to practice

law in California” as evidenced by the fact that the

pass rate for law students and those ineligible t

take the lawyer's bar examination in July 2008 wa

61.7% which contrasts with the pass rate for out of

tate lawvers taking the exam. which was 45% 41

February 2009 13.6% im duly 008 9O% VW

february ZOOS 61% In July YPOOT. and 36.8! 1)

February 2007. Id., V¥939°41. Plaintiff alleges cau

of action for (1) denial of due process of law for thi

Bar's failure to “provide a system for review of thi

vrading of the bar examination (2) breach of the

imphed contract to ore the exam $ fairly) and

iccurately; (3) demal of equal protection by charging

those taking the “Lawyer's Examination” $314 mor

045)

than those taking the law student examination; (4)

“abuse of discretion” by “discriminating against out

of state attorneys through the grading system,” and

(5) denial of privileges and immunities for the

discriminatory grading of exams and charging of

additional exam fees. /d., 94 44,52,55,59,65. Plaintiff

adds a sixth cause of action for defamation by

publishing a pass list which presumably did not

include his name and therefore declared him

“unqualified to practice law in California” when he

in fact did pass. /d., 4§| 67-69. Plaintiff seeks an

order requiring the State Bar of California to review

plaintiffs examination and grade, or in the al-

ternative, to “mandate that the State Bar of Cal-

ifornia admit plaintiff to the Bar of California, or

that this court admit petitioner sua sponte, and that

the State Bar of California be ordered to admit

plaintiff to the Bar of California” in addition to $1

million in damages and an additional $1 million in

exemplary Damages. /d., 8717-23.

The State Bar is a public corporation created by

the article in the California Constitution, that con-

cerns the judicial branch. Jn re Atty. Discipline Sys.

(1998) 19 Cal.4th 582, 598. The Supreme Court

retains the power to disbar or discipline members

ofthe bar as this power existed prior to the

enactment of the State Bar Act, although the

Supreme Court may by rule authorize the State Bar

to take any action otherwise reserved to the

Supreme Court in any matter arising under this

chapter or initiated by the Supreme Court; provided,

that any action by the State Bar shall be reviewable

by the Supreme Court pursuant to such rules as the

Al13

Supreme Court may prescribe. /d., at 598-99. The

bar is “a public corporation created ... as an

administrative arm of this court for the purpose of

assisting in matters of admission and discipline of

attorneys.” /d., at 599-600. Although the legislature

may pass regulations "related to the admission and

discipline of attorneys" such is neither exclusive nor

final, since they are, "at best, but minimum

standards unless the courts themselves are satisfied

that such qualifications as are _ prescribed by

legislative enactment are sufficient .... /n other

words, the courts in the exercise of their inherent

power may demand more than the legislature has

required." Id., at 602 (emphasis in original, citation

omitted). Further, “legislative enactments relating to

admission to practice law are valid only to the extent

they do not conflict with rules for admission adopted

or approved by the judiciary. When conflict exists,

the legislative enactment must give way.” /bdid.

When “the matter at issue involves minimum stan-

dards for engaging in the practice of law, it is this

court and not the Legislature which is [the] final

policy maker.” Ibid. (emphasis in original). The

“State Bar is not an entity created solely by the

Legislature or within the Legislature’s exclusive

control, but rather is a constitutional entity subject

to this court's expressly reserved, primary, inherent

authority over admission and discipline.” /d., at 607.

The court acknowledges that in Saleeby v. State

Bar (1985) 39 Cal.3d 547, 575, the Supreme Court

held “that individual CSF [Client Security Fund

(Bus. & Prof. Code, § 6140.5)] 7 decisions in the

future may be reviewed by mandamus (Code Civ.

Proc., § 1094.5) in the superior courts in the first in-

stance because such decisions are not an integral

part of this court's regulatory jurisdiction over the

bar.” The instant case, however, does not deal with

Client Security Fund reimbursements. This is plain-

tiffs complaint that the bar examination discrim-

inates against out of state attorneys in grading and

in fees, and improperly published a 12 pass list

without his name on it. See Complaint, 4/4] 44, 52, 55,

59, 65. It concerns a part of the Supreme Court's

regulatory jurisdiction over admission and discipline

of bar members. See /n re 74 Atty. Discipline Sys., 19

Cal.4th at 607; cf Saleeby, 39 Cal.3d at 575 (unlike

the admissions process, the CSF was created at the

State Bar’s request, not by the Supreme Court under

its inherent power to control admissions and

discipline); see also Smith v. State Bar (1989) 212

Cal.App.3d 971, 978 (“admission fee challenges

should be initiated in the Supreme Court under 18

its inherent power and original jurisdiction over the

admissions process” - thus, “Smith’s action 19

properly was dismissed because his challenge to the

State Bar's admissions fees policies should 20 have

been by original petition to the Supreme Court”).

It is not too far a stretch to apply the foregoing

to find that the State Bar’s examination fees and

scoring is also encompassed within the Supreme

Court’s inherent power to control admissions.

Indeed, “lalny person refused certification to the

Supreme Court for admission to practice may have

the action of the board, or of any committee auth-

orized by the board to make a determination on its

behalf, pursuant to the provisions of this chapter,

reviewed by the Supreme Court, in accordance with

the procedure prescribed by the court.” Bus. & Prof.

Al5

Code § 6066.

27 CRC, rule 9. 13 (d) provides:

(d) Review of other decisions A

petition to the Supreme Court to review

any other decision of the State Bar

Court or action of the Board of

Governors of the State Bar, or of any

board or committee appointed by it and

authorized to make a determination

under the provisions of the State Bar

Act, or of the chief executive officer of

the State Bar or the designee of the

chief executive officer authorized to

make a determination under article 10

of the State Bar Act or these rules of

court, must be filed within 60 days after

written notice of the action complained

of is mailed to the petitioner and to his

or her counsel of record, if any, at their

respective addresses under section

6002.1. Within 15 days after service of

the petition, the State Bar may serve

and file an answer and brief. Within 5

days after service of the answer and

brief, the petitioner may serve and file a

reply. If review is ordered by the

Supreme Court, the State Bar, within

45 days after filing of the order, may

serve and file a supplemental brief.

Within 15 days after service of the

supplemental brief, the petitioner may

file a reply brief.

The Supreme Court has held that challenges to

the admission process “should be initiated in the

Supreme Court under its inherent power and

original jurisdiction over the admission process and

affirmed a dismissal of an action because the

challenge to the State’s Bar’s admissions fees pol-

icles should have been by original petition to the

Supreme Court. Szuth, 212 Cal.App.3d at 978.

Indeed, with regard to claims seeking review of the

State Bar’s decision not to certify someone _ to

practice law by the Committee of Bar Examiners,

“the California Supreme Court exercises original

jurisdiction and is not restricted to the limited

review made by an appellate court”—indeed, the

“final determination . . . rests with [the Supreme

CJourt, and its powers in that regard are plenary

and its judgment conclusive.” /n re Rose (2000) 22

Cal.4th 430,443-444. Under the foregoing auth-

orities, if plaintiff is entitled to any relief, he must

obtain it by original petition to the California

Supreme Court. The demurrer is sustained to the

entire complaint without leave to amend. CCP §&

430.10(a).

IT IS SO ORDERED.

/s/ Norman P. Tarle

JUDGE OF THE SUPERIOR COURT

Dated: October 27, 2009